COMMENTARIES
UPON
INTERNATIONAL LAW,
BY
ROBERT PHILLIMORE, M.P.,
OF THE COLLEGE OF ADVOCATES, AND OF THE MIIDDLE TEMPLE, AUTHOR OF
"THE LAW OF DOMICIL."
6A (Ksa rOXhOkv
AataXFs /aO ov, KCl bIA6rgoros Eig6va, railxat'Avg rrt 7Xrcorov, Xg'aEat
Ila&Eg EfloivXov OWtrog."    PIND. Oln0p. 13.
" Justice is the common concern of mankind."
BURKE, vol. V. p. 375. Thoughts on the French Revolutior.,
VTOL. I.
P 1I1  LA D EL PH II A:
T. & J. W. JOHNSON, LAW BOOKSELLERS,
NO. 197 CHESTNUT  STREET.
1854.




XiTE & WALTO1XD




TO
CHARLES JOHN VISCOUNT CANNING.
IN AFFECTIONATE
ACKNOWLEDGMENT OF HIS LONG FRIENDSHIP,
AND IN. SINCERE VENERATION FOR THE ILLUSTRIOUS NAME
WHICH HE WORTHILY BEARS,
THESE PAGES ARE INSCRIBED).








PREFACE.
THE necessity of mutual intercourse is laid in the nature of States, as
it is of Individuals, by God, who willed the State and created the Individual. The intercourse of Nations, therefore, gives rise to International
Rights and Duties, and these require an International Law for their regulation and enforcement.
That law is not enacted by the will of any common Superior upon
earth, but it is enacted by the will of God; and it is expressed in the
consent, tacit or declared, of Independent Nations.(a)
The law which governs the external affairs equally with that which
governs the internal affairs of States, receives accessions from custom and
usage, binding the subjects of them as to things which, previous to the
introduction of such custom and usage, might have been in their nature
indifferent. (b)
Custom and usage, moreover, outwardly express the consent of nations
to things which are naturally, that is by the law of God, binding upon
them.  But it is to be *remembered that in this latter case, usage [*vi
is the effect and not the cause of the Law.(c)                    I
International Jurisprudence has received since the civilization of mankind, and especially since the introduction of Christianity, continual culture and improvement; and it has slowly acquired, in great measure and
on many subjects, the certainty and precision of positive law.
There can be few nobler objects of contemplation and study than to
trace the gradual progress of this jurisprudence-the steps by which it
has arisen from  a few simple rules of natural law transferred from individuals to states, to the goodly and elaborate fabric which it now presents.
The history of this progress has been written by Ompteda, Miruss, and
Wheaton(d) in a manner which leaves the German, the English, and the
French readers but little to desire.  This subject receives some further
(a) Grot. Proleg. ss. 19-25. " Omni autem in re consensio omnium gentium
lex naturae putanda est::" Cic. Tusc. i. 13.
(6) " Omne jus aut necessitas fecit, ant consensus constituit, aut formavit consuetudo."-Dig. de Leg. 40.
(c) Veruntamen hic etiam usus est effectus juris, non ipsum jus, quia hocjus non
ex usu, sed usus ex jure est." —Suarez, De Lege a terra et naturali, ac Jure Gentium, 1. i. c. xix. 8.. Cic. de Off. 1. 3. 5.
(d) By this author, both in English and French.




Vi    PHILLIMORE ON INTERNATIONAL LAW.
notice in the body of this work, but the space within which this preface
is necessarily confined, does not allow me to enter into details, which have
received a very able exposition from the authors to whom I have referred;
and I must content myself with inviting the attention of my readers to the
principal epochs of this interesting and instructive portion of the moral
and intellectual history of mankind.
I propose to cast a very rapid glance over the principal Jurists, whose
labours have contributed to raise the edifice of International Law, and to
conclude this preface with some observations on a subject, not altogether,
it may be hoped, devoid of interest to all students of jurisprudence and
[*vii] *history, but certainly not unworthy the attention of English
readers-namely, the growth and cultivation of the science of
International Law in this country.
BEFORE THE CHRISTIAN AERA.
It is hardly necessary to say, that the peculiar dispensation under which
the Jewish nation was placed, and the rigidly prescribed mode of their
dealings with foreign nations, render vain any attempt to trace in the history of that people the vestiges of International Jurisprudence.(e)
The Egyptians held the persons of ambassadors sacred upon strictly
religious grounds, and it appears to have been not unreasonably supposed
that the Egyptian priests compiled a written jus feciale, which Pythagoras transplanted into Greece. Neither the source nor the nature of International Law can be said to have been unknown to the Greeks.
It was indeed a maxim of their wisest statesmen(f) that no State could
subsist without acknowledging the rights of its neighbours, and the remarkable institution of the Amphyctyonic League approached to the
reality of an international tribunal, so far as the great republic of the
different States of Greece was concerned; but the stranger with whom
there was no alliance was an enemy, and all treaties of peace, like those
formerly made between the Turks and Europeans, were for a limited
period.
The Collegiuv and the Jus Feciale of the Romans are the most remarkable instances of regard for International justice ever exhibited by any
*viii nation, and the wonder is *increased by the reflection, that this
[   Collegiyum was the institution of a nascent state, which, in its
very infancy, laid down the observance of right towards other nations, as
a cardinal principle of its public policy. —The institution of the recuperatores also bears testimony to the same political integrity; how much,
indeed, the practice of Rome in her maturity and decline was at variance
with that principle of her early days, is well known.
But making, as History compels us to do, this admission, it must be
(e) Michaelis, Mosaisches Recht, Th. ii. Israelitisches Staatsrecht.
See the treatment of David's ambassador by the King of the Ammonites. —2
Samuel, c. x.
(f) Wacksmuth, Jus Gentium quale obtinuit apud Graecos (Berol. 1822.)
Vide post, Part I., chapter ii.




PREFACE.                             Vii
remembered that if the Jus inter Gentes(g) strictly speaking, was violated by the practice of conquering Rome, yet the Jus Gentium was in
reality established by her compilation of Jurisprudence; for in this stood
transcribed externally, if the word were applicable to a mortal work, those
maxims of written Reason, those principles of Natural Law, which not
only guide a State in its conduct towards Individual Foreigners, and are
the root of Comity or Private International Law, but which guide a
State in its conduct towards other States, and which constitute the most
considerable foundation of Public International Justice.
THE CHRISTIAN ERA BEFORE GROTIUS.
We enter next upon the Christian etra.  Great and inestimable has been
the effect of the doctrines of Revelation upon the Jurisprudence of Nations, though long retarded by the evil passions both of mankind generally and of the governors of men; yet the language, and the teaching,
the system of a representation of different *nations, the very forms
of the assembling of the Councils of the Church, the notion of a  1X3
common International Tribunal, the authority of the Pope during ages
steeped in intellectual ignorance and moral grossness, contributed to preserve some idea of the Duties and Rights of Nations.
During the earlier part of the Middle Ages the Pope discharged the
functions of International Judge and Arbitrator in the conventions of
Christendom.  The practice might have been imperfect, but the theory
was sublime.  The Right of the Pope to discharge these noble functions
was almost unquestioned before the time of Boniface VIII., 1302, A. D.
A great change was effected by the introduction and prevalence of the
doctrine, that a distinction was to be taken between temnporal scbjection
ratione feudi, and subjection in tenmporal matters ratione peccati. (h)  In
Ecclesiastical Law the distinction was of little avail, and easily evaded,
for in the Middle Ages the acts of an absolute irresponsible prince were
easily brought within the category of sin (ratione peccati).  But in International Law, the distinction was of the utmost importance, for it was
now competent to Princes to tell their subjects, that there were circumstances, under which the Papal Interdict was unlawful, and therefore
invalid.  The Pope lost his character of international Judge, and retained but for a season, and with difficulty, the character of International
Arbitrator. That too, had disappeared before the epoch of the Reformation; though up to that period all the foreign or international affairs of
a state were considered and treated as matters appertaining solely to the
prince, and with which the people had no concern.
It must be remembered that, even in the year 1493, *Ferdinand   *
and Isabella were confirmed in their possessions and discoveries tin [*x]
the New World by the Bull of the Pope, issued, as former Bulls had
been, in virtue of his territorial supremacy over the whole world; and
(g) The expression of Lucan as to the violation of the Laws of Embassy by the
Egyptians is very remarkable; I do not remember to have seen it noticed:
" Sed neque jeus mundi valuit, neque fcedera sancta
Gentibus." —Pharsal. x, 471-2.
(A) De Marca, De Concord. Sacerd. et Imper. iv. c. xvi. 5.




viii   PHILLIMORE ON INTERNATIONAL LAW.
that as late as the year 1701, the Pope complained in his Consistory,
that Austria had recognized the Ruler of Prussia under his new title of
King, "( not considering that it was the exclusive privilege of the Holy
See to make kings."(i)
The Crusades introduced the principle of Intervention, both upon the
general ground of religious sympathy, and upon the particular ground of
reverence for those holy places which had been the scenes of our Lord's
life and death-principles which, after the lapse of five centuries, are,
while I write these pages, again most powerfully affecting the destinies
of Europe. Though the Greek Empire, for many centuries before its
destruction, occupied no position which affects the history of International
Jurisprudence, yet the conquest of Constantinople by the Turks operated
very injuriously upon the jus commune of Christendom; because thereby
an important portion of Christendom  has been, up to a very recent period, exempted from its influence.  Events, however, which are now happening, the great internal changes in the habits and laws of that extraordinary people, and their increasing connection with the Christian states,
are evidently preparing the way for a general diffusion of International
justice among nations of different religious creeds.  During the Middle
Ages, the most remarkable features of International Jurisprudence are
the maritime codes of commercial towns, the institution of the Consulate,
the laws and customs of Embassies.
[-xi]                   *3AERA  OF GROTIUS.
It is strange that the admirable and luminous treatise of Suarez,(k)
De Legibus et Deo Legislatore, is not referred to by Grotius in his great
work, because it appears from his other writings that he was acquainted
(as indeed he could not but have been) with the works of this profound
jurist.  Suarez certainly cannot be claimed as a fruit of the Reformation,
but at that epoch, from whatever cause, a new;era of International Jurisprudence opens upon us.  Streaks of light from various countries, our
own included, preceded the dawn of International Jurisprudence which
appeared in the Mare Liberum of Grotius, published in 1609; but its full
meridian shone forth in his great work, De Jure Belli et Pacts, which
was published in 1624.
It is scarcely too much to say, that no uninspired work has more largely
contributed to the welfare of the Commonwealth of States. It is a monument which can only perish with the civilized intercourse of nations, of
which it has laid down the master principles with a master's hand. Grotius first awakened the conscience of Governments to the Christian sense
of International duty.(l)
His work has been blamed for a want of systematic arrangement, and
because the examples which illustrate the principles of law are taken
chiefly from  classical times and classical literature; but these defects
(i) Lamberty, Memoires, t. i. 353, cited Gtinther, ii. 445.
Vide post, pp. 86-T, and Appendix.
(k) Born 1548, died 1617.
(1) "Christianis placuit.," "Christianis in universiumn placuit,"'hoc perfecit reverentia Christianc legis," &c. Vide post, p. 39.




PREFACE.                              ix
were, in truth, necessarily incident to the particular period at which he
wrote.  His work was defended from  these charges by himself during
his lifetime,(m) and since his death has *received a vindication
from the pen of Sir James 3Mackintosh, which will not easily be [   ]
surpassed. (n)
I would fain linger on the merits of this famous master-builder of International Jurisprudence, this great legislator of the community of
states, but I am admonished by diminishing space to proceed.
FROM THE PEACE OF WESTPHALIA, 1648, TO THE
TREATY  OF UTRECHT, 1713.
International Jurisprudence received considerable cultivation, a natural
result from the increased intercourse between European nations, both in
Europe and in their colonies.
Puffendorf, in 1672, published his once admired, and still celebrated
work, De Jure Naturta et Gentitmn: it had the merit of stating boldly
that Natural Law was binding upon nations as well as upon individuals.
It would indeed be hardly fair to say that Grotius had altogether
omitted Natural Law from the sources of International Jurisprudence;
but certainly Puffendorf is entitled to the merit of having supplied, by
greater precision of statement, a philosophical defect upon this subject
in the work of his predecessor.  In other respects, however, the disparaging opinion of Leibnitz upon the work of Puffendorf has been generally confirmed; it is, in truth, very inferior to the treatise of Grotius.
*Leibnitz, whose Codex Juris Gentium  Diplomaticus was  *Xiii
published in 1693, manifested in his preface, and in other pas- I
sages scattered about his works, a profound and just acquaintance with
the principles of the science which we are considering, and left posterity
for ever to regret that the fuller prosecution of it was swallowed up in
the variety and vastness of his other studies.
THE INTERVAL BETWEEN THE TREATY OF UTRECHT,
1713, AND OF PARIS, 1763.
In 1740-43, Wolff, a disciple of Leibnitz, published the fruit of his
enormous labours in nine quarto volumes, Jus Naturge Methodi Scientific6
Pertractatum, &c.  An abridgment of his work, dealing separately with
the question of Jus Gentium, subsequently appeared.  He prided himself on accurately distinguishing the Natural from the Voluntary, Consuetudinary, and Conventional Law  of Nations.  His work had two
great defects; the application of technical and mathematical terms to
moral subjects, and the assumption of the false hypothesis that there
existed de fccto a great republic of which all nations were members.
(in) In one of his latest letters to his brother, Grotius says of some one who
had attacked his work: "Non probat quod, in illis libris De Jure Belli ac Pacis,
utor Paganorum dictis: vertm non ita ut utor, ut illa sequi satis esse Christianis
arbitror, sed ut erubescent Christiani si minas proestent." —H. Grot. Epistolke, Ep.
546, p. 920 (Ed. Amstelod. 1687); and see Proleg. to De Jure B. et P.
(n) Lecture on the Law of Nature and Nations.
JULY, 1854.-2




X'PHIL LIMORE  ON  INTERNATIONAL  LAW.
The latter error, however, does not in reality affect the force of his
general position, and exists, perhaps, more in the pedantry of the language than in the spirit of the argument which he derives from it. The
work of Wolff with all its merits-and it had many-would probably
have been both unread and unknown to modern readers, but for his
abridger Vattel, who, departing in some points from his original, has
melted down his ponderous quartos into the concise, readable, practical,
sensible, but superficial work, which still retains its popularity. I must,
however reluctantly, pass by AMontesquieu.
i *Bynkershoek ranks next to his illustrious fellow-countryman
[lXiv] Grotius, whom he delighted to call i ~;w~, and for whom, though
not unfrequently dissenting from his opinions, he entertained the reverence which one great jurist feels for another.  The Qunestiones Juris
Publici appeared in 1737;-this work, and the two treatises, by the
same author, De Dominio MIaris and Do Foro Legatorum, are among
the most valuable authorities which this science can claim.
THE INTERVAL BETWEEN THE TREATY OF PARIS, 1763,
AND THE FRENCH REVOLUTION, 1789.
Italy furnishes us with Lampredi and Galliani; Germany with Moser
and Martens. The latter has obtained, not undeservedly, a place among
the classics of International Law. But this interval is chiefly memorable
in its effect upon this science, for the event of the independence of the
North American Republics, accompanied by the distinct recognition of
the authority and principle of Christian International Law in another
quarter of the globe, and by a cultivation of that law which has already
produced no less eminent professors of it than a Story, a Kent, and a
Wheaton.
FROM THE FRENCH REVOLUTION, 1789, TO THE PRESENT
TIME.
Germany has furnished many writers upon International Law. Two
appear to me worthy of especial notice-Kliiber, whose work, in spite
of leaning to the doctrines of the Holy Alliance, is of great value,-and
Ileffters, who is still enjoying the reputation which he has acquired.
England, to pass by for the moment the achievements of her distinct
International profession, has made no mean *contributions to
[*xv] the cultivation of International Jurisprudence, in the writings
of Bentham, Ward, Mackintosh, Mr. Manning, Mr. Reddie, IMr. Wildman, and Mr. Bowyer.
Private Initernational Law (jus gentium) has greatly flourished, thanks
to the transfusion of Hertius, Huberus, Rodenburghius, Voet, and other
Latin authors, into the well-arranged and carefully-reasoned works of
Story, Wlaiehter, Savigny, and Faelix; of the first and the last of these
authors we have but lately deplored the death.
It will be seen that I have been compelled to omit the mention of
many authors, whom I have consulted, whose names will be found below




PREFACE.                              xi
in the catalogue of authorities, and to whom I owe a debt of much gratitude.
HISTORY OF INTERNATIONAL JURISPRUDENCE IN
ENGLAND.
It remains only to invite attention to a subject which, however little
known, is not without interest to the historian, the jurist, and the statesman, namely, the existence in England of a distinct Bar for the cultivation of International Jurisprudence. (o)
It cannot be denied that the Common Law of England has hitherto
been, to a certain extent, like the territory in which it prevails, of an
insulated and peculiar character.  It must be acknowledged that it has
borrowed less than any other state in Christendom from  the jurisprudence of ancient and modern Rome.  The fountains of wisdom, experience and written reason, at which the European continent in former and
America in later times have so largely drunk, were passed by in England with a hasty *and scanty draught.  The Gothic conquerors
of continental Europe fell by degrees and from a variety of causes [*Xvi]
under the dominion of the laws of the vanquished.   c Capta ferum vietorem  cepit" was eminently true of the restoration of the Civil Law
during the middle ages in every country, but our own; and yet, for
more than three centuries, England had been governed by the Civil
Law.  It is a very remarkable fact, that, from the reign of Claudius to
that of Honorius (a period of about 360 years), her judgment-seats had
been filled by some of the most eminent of those lawyers(p) whose
opinions were afterwards incorporated into the Justinian compilations.
But all germs of such jurisprudence would have perished with every
other trace of civility under the rude incursions of Saxons and Danes,
had not the tribunals of the clergy afforded them shelter from the storm.(q)
Occasionally, too, some maxims of the Roman Law, admitted either
from their intrinsic merit, or through the influence of the clergy, enriched the then meagre system of English law. The Norman invasion
was attended with a memorable change in the constitution as it then
existed.  The Bishop and the Sheriff had heretofore sat together in the
Court of Justice, administering with equal jurisdiction the law upon
temporal and spiritual offences; by the charter of William the Conqueror,
the Ecclesiastical was separated from the Civil Court. This division has
continued (with the exception of a temporary reunion in the reign of
Henry I.) till the present period; the Ecclesiastical tribunal deciding,'according to the rules and practice of the Civil and Canon Law, [ *vii]
generally, on all matters relating to the Church, to the spiritual
discipline of the laity, and among other questions of a mixed nature,
(o) The following sketch, with slight alterations, has appeared in a letter from
the author to Mir. Gladstone, published in 1848.
(p) Papinian, Paulus, and Ulpian. Vide Duck De Usu ac Autor. Juris Romani,
1. ii. c. 8, pars secunda, s. 7.
(g) Blackstone, vol. iv. 410; Preface by Dr. Burn to his Ecclesiastical Law;
Millar's Historical View of the English Government, vol. iii.; Burke's Fragment
of the History of England.




Xii   PHILLIMORE  ON  INTERNATIONAL   LAW.
upon two of the most important kind, namely, the contract of marriage
and the disposition of personal property after death.(r)  It is not necessary to dwell on the original reasons for assigning these mixed subjects
to the jurisdiction of the Spiritual Courts.  It was an arrangement at
the time almost universally prevalent in Christendom.
The Ecclesiastical Courts, however, were not the only tribunals in
which the Roman law was administered.  In the High Court of Admiralty(s) (established about the time of Edward I.) and in the Courts of
the Lord High Constable and the Earl Marshal (the Courts of Honour
and Chivalry), the mode of proceeding was regulated by the same code.
The Courts of Equity also borrowed largely, and for a long time almost
exclusively, from the same jurisprudence. Almost every Lord High
Chancellor from  Beckett to Wolsey-that is, from the Conquest to the
Reformation-was an ecclesiastic; and it was a matter of course, that,
like every eminent ecclesiastic of those days, he should be well skilled
in the Civil and Canon Law. Indeed, it was chiefly because they were
deeply versed in this jurisprudence, though partly, no doubt, because
their general attainments were far superior to those of the lay nobility,
that the dignitaries of the Church were usually(u) employed *in
[LXiii] the foreign negotiations of this period.(v)  Nor can it be denied
by the most zealous admirer of our municipal law that, during the period
which elapsed from the reign of Stephen to Edward I., the Judges of
Westminster Hall had frequent recourse to the Justinian Code; for in
truth the writings of Fleta contain many literal transcripts of passages
taken from the Digest and the Institutes.(x)
Lastly, in the Courts of the two Universities the same system prevailed.  Universities, which are not the least remarkable institutions of
Christendom, had indeed originally been founded for the express purpose of teaching this science, and even in this country, where the feudal
law so largely prevailed, had succeeded in kindling into a flame the precious spark which the schools of the cloisters and the learning of the
clergy had preserved from total extinction.(y)
I pass now to the epoch of the Reformation.  On the Continent,
where the civil law was the basis of all municipal codes, the study of
(r) Burn's Preface, xvii.  Lyndewodes Provinciale, pp. 96-7, 261, 316 (Ed.
1679, Oxford.)
(s) Blackstone, vol. iii. p. 68; Millar's English Goverdrment, vol. xi. p. 338.
(ui) Hurd's Dialogues, Moral and Political, vol. ii. p. 183; Duck de Usu, &c.
Juris Civilis, p. 364.
(v) By the Statutes of York Calhedral express provision is made for the absence
of the Dean when employed beyond seas in the service of the State. The Bishop
of bristol, who was also Lord Privy Seal, was one of the negotiators of the Treaty
of Utrecht; the last instance, I believe, of the kind.
(x) Millar, p. 325; Preface to Halifax's Civil Law; Mackintosh's Law of Nature
and Nations, p. 52; Lord Holt, 12 Mod. Rep. p. 482: "Inasnmuch as the laws of
all nations are doubtless raised out of the ruins of the Civil Law, as all governments are sprung out of the ruins of the Roman Empire, it must be owned that
the principles of our law are borrowed out of the Civil Law, therefore grounded
upon the same reason in many things."
(y) See Lyndwood's Life, Biog. Brit. Dedication; Ridley's View of Civil and
Ecclesiastical Law, p. 118; Zouche's Preface to his Treatise on the Punishment
of Ambassadors, &c., to Henry, Marquis of Dorchester; et vide infra.




PI R   ACE.                            x1ii
this science was scarcely, if at *all, affected by this memorable   xix
event.  In England it was otherwise.  The professors of the  [xix]
Civil and the Canon Law belonged chiefly to the Ecclesiastical Courts,
and were associated in the minds of the people partly with the exactions(z)
of Empson and Dudley in the preceding reign, and partly with the authority of the Pope. Severe blows were dealt at the former, which were
aimed solely at the latter system.
"LThe books of Civil and Canon Law were set aside to be devoured
with worms as savouring too much of Popery," says the learned Ayliffe
in his history of the University of Oxford during the Visitation of 1547.(a)
And Wood,(b) after stating'"That as for other parts of learning at Oxford, a fair progress was made in them," observes, cc The Civil and Canon
Laws were almost extinct, and few or none there were that took degrees
in them, occasioned merely by the decay of the Church and power of
the Bishops."
In 1536, Thomas Cromwell, Chancellor of the University of Cambridge, Secretary of State, and Vice-gerent of the King in Spirituals,
was appointed (by the King's seal used for causes ecclesiastical) Visitor
of that University; by the same instrument, he promulgated, in the name
of the King, certain injunctions, of which the fifth was"cThat as the whole realm, as well clergy as laity, had renounced the
Pope's right and acknowledged the King to be the supreme head of the
Church, no one should *thereafter publicly read the Canon Law, [*
nor should any degree in that Law be conferred."(c)
About the same time, or rather earlier, similar injunctions were issued
to the University of Oxford-these are preserved in the State Paper
Office, and the corresponding injunction to the one just mentioned is as
follows:"4 Quare volumus ut deinceps nulla lectio legatur palamn et publice per
Academiam vestram  totamn in jure Canonico sive Pontificio, nec aliquis
cujus conditionis homo gradumr  aliquem  in studio illius juris Pontificii
suscipiat, aut in eodem in posterum promoveatur quovis modo."  These
injunctions (for there never was, as is commonly believed, any statutable
provision on the subject) underwent some modification from the regulations of Edward VI.  In 1535, Henry VIII. appointed certain Visitors,
the chief of whom were Richard Layton and John London, LL.D., to
visit the University of Oxford; these Visitors joined a Civil to the Canon
Law Lecture in every Hall and Inn.
In 1549, a Visitation of the University of Cambridge took place under
the auspices of the Protector Somerset.  Bishop Ridley was appointed
to be one of the Visitors, and one of the professed objects of this Visita(z) Elmpson and Dudley justified their extortions by citations from the Civil
Law. See Hurd's Dialogues, Mloral and Political, vol. ii. p. 211, though they contain a very superficial and very imperfect sketch of the fortunes of the Civil Law
in England.               (a) Ayliffe's Oxford, vol. i. p. 188.
(b) Wood's Hist. and Antiquities of the University of Oxford, vol. ii. b. i. s.
lxxix. (Ed. Gutch.)
(c) Strype's Ecclesiastical Memorials, vol. i. c. xxix. App. No. lvii. lviii.;
Cooper's Annals of the University and Town of Cambridge, p. 375.




xiv     r HILLIMO RE  ON  INTERNATIONAL  LAW.
tion, according to Bishop Burnet,(d) was to "econvert some fellowships
appointed for encouraging the study in Divinity to the study of the Civil
Law; in particular, Clare Hall was to be suppressed.  Bishop Ridley
found his task very difficult and odious, and wrote to the Protector that,
to diminish the number of divines went against his conscience.
LCXxi  *Somerset replied, 4"We should be loth anything should be done
by the King's Majesty's Visitors otherwise than right and conscience
might allow and approve; and visitation is to direct things for the better,
not the worse; to ease consciences, not to clog them;" and further, "rmy
Lord of Canterbury hath declared unto us, that this maketh partly a
conscience unto you that Divines should be diminished; that can be no
cause; for first, the same was met before in the late King's time to unite
the two Colleges together, as we are sure ye have heard, and Sir Edward
North can tell, and for that cause all such as were students of the Law,
out of the newly-erected Cathedral Church, were disappointed of their
livings, only reserved to have been in that Civil College.  The King's
Hall being in a manner all Lawyers, Canonists were turned and joined
to Michael House, and made a College of Divines, wherewith the number of Divines was much augmented, Civilians diminished.  Now at this
present also, if in all other Colleges where Lawyers be by the Statutes
or the King's injunctions, ye do convert them or the more part of them
to Divines, ye shall rather have more Divines upon this change than ye
had before.  The King's College should have six Lawyers; Jesus College some; the Queen's College and others, two apiece; and, as we are
informed by the late King's injunctions, every Colleye in Cambricyge
one at the least.! All these together do make a greater in number than
the Fellows of Clare Hall be, and they now made Divines, and the statutes in that reformed Divinity shall not be diminished in number, but
increased, as appeareth, although these two Colleges be so united. And
lwe are sture ye are not ignorant Iowt necessary a study that study of Civil
Law is to all Treaties with Foreign Princes anld *Wtrangers,
[jxxii] and how few there be at this present to the King's liaj'esty's service therein," &c.
Queen Elizabeth, among the Statutes which she promulgated for the
University of Cambridge, and which have been recently published by
Dr. Lamb, enacted one, De Temporibus Lectionum et Libris prcelegendis
(c. iv.), in which it is ordered, "Theologicus prmlector tantum sacras
literas doceat et profiteatur.  Jurisconsultus Pandectas, Codicem, vel
Ecelesiastica regni Jura quer nos edituri sumus et non alia prseleget."
Since the reigns of Stephen and Henry II., when Vacarius first read
lectures at Oxford on the Civil Law, the Universities have made it their
legitimate boast that the study of the Roman Law found its shelter and
encouragement within their pomceria.  The history of almost every college will show that the promotion of this study was an object which its
founder had at heart.  The statutes promulgated after the Reformation,
during the royal visitations of the Tudors, as has already been shown,
most carefully provided for the furtherance of the same end.  The sta(d) Burnet, vol. ii. part ii. p. 222.




PREF ACE.                               xv
tutes of Edward VI. define more closely the knowledge requisite for a
Doctor of Civil Law, and set forth the usefulness of such knowledge to
the Church and State, as follows: "cDoctor Legum —Doctor mox a doctorutu dabit operam  legibus Angliae, ut non sit imperitus earum legumr
quas habet sua patria, et dif7erentifam exteri pcttriique jur is noseat, et in
solemnibus comitialibus qusestionibus unus qui id maxime  certissime-que
seiat facere ad finem quamstionum quid in illis jus civile, quid ecclesiastiCUMz,  1slid reygni Angicej6us teneat, defineat, determinetque."(e)
t*In truth, the Universities were doubly interested in the pre- "
servation of this study; first, because the statutes, both those ofL Xnl]
the University and of the College, must, in cases of doubt, which not
unfrequently arise, receive their interpretation from the Canon and Civil
Law; the founders of Colleges (Chicheley and Wykeham  for example)
were often deeply versed in both branches of jurisprudence, and in cases
tried before the Visitors of Colleges, many of the arguments have been
drawn from these sources; but, secondly, inasmuch as the degrees conferred at the Universities were the necessary passport to the College of
Advocates at Doctors' Commons.
Of the five professorships(f) which Henry VIII. founded on the
spoils of the Church, one was instituted and endowed at each University
for teaching the Civil Law.  At Oxford, the lay prebend of Shipton was
attached to the Professorship, and in Charles II.'s reign this endowment
was expressly recognized and confirmed as an exception to the general
law laid down in the Statute of Uniformity.  The foundation of these
Professorships in some measure counterbalanced the injury which the
Civil Law received from the discredit into which the Common Law had
fallen.(g)  But this was not, I think, the sole or the principal circuimstance which kept alive at this time the knowledge of this jurisprudence.
About this period a great and important change had begun to take
place in the relations of the European communities towards each other,
which rendered the preservation *of the study of the civil law of
great, and indeed indispensable necessity to these islands.  Dur- [ xxiv]
ing the reign of the Tudors, the English had been compelled, by a multitude of concurring causes (far too many for enumeration in these pages,)
to abandon their hopes of permanent conquests in France; nevertheless,
at this very period, Great Britain began to assume that attitude with
respect to foreign powers, which, from the days of Lord Burleig h to Mr.
Canning, it has been the constant endeavour of her wisest and greatest
statesmen to enable her to maintain.  She became an integral part, in
spite of her "salt-water girdle"(h), of the European system, and daily
(e) These statutes are copied from Dr. Lamb's book, but they are, nuetatis nzutandis, the same as those given to Oxford, save that Oxford has some post-statutc,
which Cambridge has not. Twyne's Collect. vol. iv. p. 144, in Turr. Schol. Oxon.;
Lamb's Documents from MS. Library, C. C. C. C., p. 127; see also a similar statute of Elizabeth's, 323.
(f) Divinity, Hebrew, Greek, Civil Law, Medicine, founded 1540, confirmed
1546. John Story appears to have been the first Professor at Oxford appointed
with a fixed salary.-Wood, Hist. & Ant. of Oxford, vol. ii. pt. ii. pp. 840, 859 (Ed.
Gutch.)
(g) Luther openly burnt at Wittenburgh the books of the Canon Law.-Robertson's Charles V. b. ii.                    (h) Cymbeline, act iii. sc. 1.




Xvi    P H ILLIMORE  ON  INT E  NATIONAL  LAW.
more and more connected her interest with that of the commonwealth of
Christendom.  Every fresh war and revolution on the Continent, every
political and religious movement, rendered that interest indissoluble.
The closer the bond of international intercourse became, the more
urgent became the necessity for some International Law, to whose decisions all members of the commonwealth of Christendom  might submit.
The rapid advance of civilization, bringing with it an increased appreciation of the blessings of peace, and a desire to mitigate even the necessary miseries of war, contributed to make this necessity more sensibly
felt.  A race of men sprang up, in this and in other countries, whose
noble profession it became to apply the laws of natural justice to nations,
and to enforce the sanction of individual morality upon communities.
But the application of these laws and sanctions to independent states,
and still more any approach towards securing obedience to them, was no
easy achievement.  No one nation, it was *obvious, had any right
to expect another to submit to the private regulations of her
municipal code; and yet, according to the just and luminous observation of Sir James Mackintosh, ", In proportion as they approached to the
condition of provinces of the same empire, it became almost as essential
that Europe should have a precise and comprehensive code of the law of
nations, as that each country should have a system of municipal law.(i)
It was, as has been said, soon after the era of the Reformation that the
science of International Law began to flourish on the Continent; and it
has been said that this epoch was on the whole unfriendly to its study in
this island.  It remains to show by what means any vestiges of it have
been preserved; and how a profession, whose duty it was to be cc lawyers
beyond seas,"(sk) has been maintained in these islands, where honour and
emolument have ever, with few exceptions, attended the knowledge and
practice of a distinct and isolated system of municipal law.
Long before the Reformation there existed an ancient society of Professors and Advocates, not a corporate body, but voluntarily associated
for the practice of the Civil and Canon Law.  IIn 1587, Dr. Henry Hervey, lMaster of Trinity Hall in the University of Cambridge, purchased
fromi the Dean and Chapter of St. Paul's, for the purpose of providing a
fixed place of habitation for this society, an old tenement, called Mountjoy House, on the site of which the College of Advocates at Doctors'
Commtons now stands.  In this sequestered place the study and practice
of laws proscribed from Westminster Hall, took root and flourished.
*The Tudors, who, with all their faults, were unquestionably
[xxvi] the most accomplished and lettered race which as yet has occupied the English throne, always looked with a favourable eye upon civilians, employed them in high offices of state, and set especial value on
their services in all negociations with foreign countries.  Few, if any,
matters of embassy or treaty were concluded without the advice and
sanction of some person versed in the Civil Law.  The enmity of Henry
VIII. to the Canon, as has been observed, materially injured the pro(i) Lecture on the Law of Nature and Nations, p. 13.
(i) Ayliffe's Parergon Juris Canonici, Introduction.




P RE F AC e.                         Xvii
fession of the Civil Law; but this was a result neither contemplated nor
desired by that monarch.  He founded, as has been said, a Professorship
of Civil Law at both Universities, and in many respects befriended the
maintenance and culture of this science.  In 1587, Albericus Gentilis,(1)
an illustrious foreigner, was appointed to the Professorship of Civil Law
at Oxford; his work, De Jure Belli, was in truth the forerunner of
Grotius.  According to the emphatic language of the learned Fulbeck,
he it was 4" who by his great industrie hath quickened the dead body of
the civil law written by ancient civilians, and hath in his learned labours
expressed the judgment of a great state, with the soundness of a deep
phylosopher, and the skill of a cunning civilian.  Learning in himn bath
showed all her force, and he is therefore admirable because he is absolute."(rn)
During the earlier period of the Tudor sway, ecclesiastics, many of
them of high renown, were advocates of the civil law, but towards the
close of Elizabeth's reign the *profession became, and has ever *xii]
since been, composed entirely of lay members.(n)  During this [      ii]
reign a nice question of International Law was raised in the case of the
Bishop of Ross, ambassador to Mary Queen of Scots, and Elizabeth submitted to Drurye, Lewes, Dale, Aubrey, and Johnes, advocates in Doctors' Commons, that most difficult and important question as to the propriety and lawfulness of punishing an ambassador for exciting rebellion
in the kingdom to which he was sent.  Civilians were also consulted as
to the power of trying(o) the unhappy Mary herself; and -Mr. Hallam
seizes on the facts, with his usual sagacity, to demonstrate that the science of International Law was even at this period cultivated by a distinct
class of lawyers in this kingdom. James I., who, besides his classical
attainments imbibed a strong regard for the Civil Law from his native
country, protected its advocates to the utmost that his feeble aid would
extend.(p)  To this monarch Sir Thomas Ridley dedicated his View of
the Civil and Ecclesiastical Law, a work of very considerable merit and
of great learning; it had for its object to demonstrate the pettiness and
unreasonableness of the jealousy with which the common lawyers had
then begun to regard the civilians, and the law which they administered
at Doctors' Commons-and it appears to have been by *no   [*xxii
naeans unattended with success; for it was perhaps a conse- [*xxviii
quence of this able work that, about the year 1604, each of the two Uni(Z) He came from the University of Perugia, died 1609.-Wood's Hist. and Antiq.
of Oxford, vol. ii. pt. ii. p. 858 (Ed. Gutch.)
(im) A Direction or Preparative to the Study of the Law, f. 266 (Lond. 1620,
8vo.) Irving's Introduc. to the Civil Law, s. 97.
(n) An unsuccessful attempt was made in Highmore's case (8 East's Reports, 213)
to obtain a mandamus from the archbishop commanding the Dean of the Arches
to admit Dr. Highmore a member of the College of Advocates. This was in 1807.
(o) Constitutional History, vol. i. pp. 218, 219; Strype, 360-362.
(2) Cowell, who was Professor of Civil Law at Cambridge, had acquired a profound knowledge of this law, and had in consequence been chosen Master at Trinity
Hall (an office at this moment filled by the learned Judge of the Arches,) published
a dictionary of law, in imitation of Calvin's Lexicon Juridicum, a work of much
learning, but containing extravagant dicta about the king's prerogative. James
shielded him from the wrath of Coke.




SXill    PHILLI.MORE  ON  INTERNATIONAL  LAW
versities was empowered by royal charters to choose two members to
represent them in Parliament, and by the same Charters they were admonished to select such as "c were skilful in the imperial Laws."(q)
The reign of the First Charles produced two Civilians of great eminence, whose reputation, especially that of the latter, was as great on the
Continent as in these islands-Arthur Duck and Richard Zouche.  The
former steadlily adhered to the fortunes of his unhappy sovereign; and
his work, De Usu ac Authoritate Juris Civilis, has never ceased to maintain its deserved authority. Zouche, who held several high appointments,
submitted to the authority of the Parliament.(r)  In 1653, the famous
case of the Portuguese ambassador happened: Don Pantaleon de Sa,
having deliberately murdered an English subject in London, took refuge
in the house of his brother, the Portuguese ambassador.  That high
functionary insisted on the exemption of his brother from punishment on
account of the inviolable character which the law of nations impressed
upon the dwelling of an ambassador.  Cromwell, however, caused him
to be tried before a commission composed of Sir H. Blunt, Zouche, Clerk
and Turner, Advocates of Civil Law, and others; before whom  he was
convicted of murder and riot, and for these offences was executed at Ty*xxx] burn.  On this occasion, Zouche wrote a very *able and learned
xxilx] treatise entitled, "s A Dissertation concerning the Punishment of
Ambassadors who transgress the Laws of the Countries where they
reside," &c.  This civilian was also the author of several other treatises
on public law, the most celebrated of which was entitled, Juris inter
Gentes Quiestiones, a book which is to this day of high authority and
constant reference by all jurists both in Europe and America.
During the reign of Charles II., various causes conspired to extend
and strengthen the influence of the Civilians.  The restoration of the
orders and discipline of the Church-the rapid growth of commerce and
its consequences, augmentation of personal property and increase of
shipping-the creation of a navy board,(s) and widely spreading relations
with foreign states-the two Dutch wars, and the personal merits of the
great Civilian of the day, Sir Leoline Jenkins-all contributed to produce this result.
If," says Sir Robert Wiseman, Advocate-General, writing in 1680,
cc we look no farther back than twenty years ago, we shall remember the
Civil Law did so far spread itself up and down this nation, that there was
not any one county which had not some part of the government thereof
managed and exercised by one or more of that profession, besides the
great employment and practice it had in the Courts in London.  So that
it being thus incorporated, and, as I may say, naturalised by ourselves
into this Commonwealth, it ought not to be reputed or looked upon by us
a stranger any longer."(t)
(q) Vide infra, pp. 49, 50.
(r) Zouche had received a patent from King James, assigning to him a stipend
of 401. per annum, and all emoluments and privileges enjoyed by  "Albericus
Gentilis, Frauncis James, and John Budden" A copy of this patent is to be found
in Rymer's Fcedera.                     (s) Vide Pepys' Memoirs, passim.
(t) The extract is taken from a treatise called The Law of Laws, or the Excellency
of the Civil Law.




PREFACE.                               Xix
*I come now to the last period, that which elapsed between
the Revolution of 1680 and the present time.  During this in. C*XXX]
terval the profession of the Civil Law has been sustained by a succession of advocates and judges, who may challenge comparison with their
brethren of Westminster Hall, and who have done good service to the
State, both in her domestic tribunals, in her courts of the law of nations,
and in her pacific intercourse with foreign nations.  Nobody acquainted,
with the history of our country since the Revolution, can be wholly ignorant of Sir Leoline Jenkins, Sir George Lee, Sir G. Hay, (it) Sir William;
Wynne, Dr. Lawrence, and Lord Stowell.
The biography of Sir Leoline Jenkins contains a history of the foreign
affairs of this kingdom  from  the breaking out of the first Dutch war
(1664) to the Peace of Nim6guen (1676-7,) which he negociated in concert with his illustrious colleague Sir W. Temple.  He filled various high
offices, those of Member of Parliament, Judge of the High Court of
Admiralty, Judge of the Prerogative Court of Canterbury, Principal of
Jesus College, Oxford, Ambassador, Secretary of State.
Throughout the works(v) of this great jurist are scattered tracts upon
various questions of Public and International Law, rich in deep learning
and sound reasoning, and consequently forming a mine from which all
subsequent jurists have extracted materials of great value.  His acquaintance with the Civil Law was *deep and accurate, as he  xxi]
had opportunities of evincing upon several occasions; and he 
often lamented, we learn from his biographer, that the Civil Law " was
so little favoured in England, where all other sciences met with a suitable
encouragement."' ( x)
"His learned decisions," I quote from the same source,(y) "crendered
his name famous in most parts of Europe (there being at this time almost
a general war, and some of all nations frequently suitors to this court),
and his answers or reports of all matters referred to him, whether from
the Lords Commissioners of Prizes, Privy Council, or other great officers
of the kingdom, were so solid and judicious as to give universal satisfaction, and often gained the applause of those who dissented from him,
because they showed not only the socundness of his juclgdnent in the pca)ticular mnatters of his profession, but a great commpass of knowlecge in
the general caffairs of Eulrolge, and ~in, the ancient as well as mnodernz practice of other nations.  Upon any questions or disputes arising beyond
(ut) Vide Walpole's History of Last Ten years of George II., vol. ii., for an account of Dr. -lay's eloquence.
(v) I believe that the Colleges of Jesus and All Souls contain MSS. yet unpublished of Sir L. Jenkins, which, it is to be hoped, will one day see the light.
(x) Life of Sir L. Jenkins, p. xi. preface.
(y) lb. p. xiii. and vol. ii. p. 741. He advised the Duke of York as to his title
to the Seigneury of Aubigne, on the death of the Duke of Richmond, vol. ii. p.
704. He advised upon the claim of the Crown of England to the dominion of the
narrow seas and the homage due to her flag; upon the Electoral Prince Palatine's
settlement; on the effect of a settlement of property nmade by Maurice Prince of
Orange; as to the succession of the personal estate of the Queen Mother of France,
and on many other cases of great importance and delicacy, in which the knowledge of a civilian and publicist was required. See vol. ii. pp. 663. 673, 674, 709,
&c.; see also Temple's Memoirs.




XX      PHII   IMORE ON INTE R NATION A   LAW.
sea between his Majesty's subjects and those of other Princes, they often
had recourse to Dr. Jenkins. Even those who presided in the seats of
foreign Judicatures in some cases applied to him to know how the like
points had *been ruled in the Admiralty here, and his sentences
[*xxxii]
were often exemplified and obtained as precedents there, &e."
9cFor his opinion, whether in the Civil, Canon, or Laws of Nations,
generally passed as an uncontrovertible authority, being always
thoroughly considered and judiciously founded."(z)
The Law which governs the disposition of the personal estates of in-'testates, commonly called the Statute of Distributions,(a) was framed by
Sir L. Jenkins, principally upon the model of the 118th Novel of Justinian.
It was also by the influence of this distinguished member of their
body, that after the Fire of London the Advocates of Civil Law obtained
a share of certain immunities enjoyed by other branches of the Bar. The
PRescript of Charles II. on the subject begins, "Charles R. The Society
of the Doctors at Civil Law, Judges and Advocates of our Court now
settled at Doctors' Commons, in London, having to their great charges
rebuilt the same, &c. &c.  And we knowing the usefuielness of that pro.
fession for the service of us and our kingdomn in mnany affairs, found
just cause to assert their exemption from payment of taxes, burdens, and
impositions in the same manner as the Societies of the Serjeants' Inn
are and have used to be."
The death of Jenkins happened soon after the accession of James II.
After the abdication of that monarch the Civilians were consulted upon
a very nice question of International Law, to which reference is made at
length in this work.(b)  In the reign of Anne, Sir John Cooke, a distinguished Civilian, and Dean of the Arches, *was one of the
[2xxiij] Commissioners for the Treaty of the Union with Scotland: and
everybody acquainted with the treaty of Utrecht is aware that the Civilians were continually consulted by the Crown upon the framing of the
different Articles contained in it. Thus, the Queen, in her instructions
to Lord Bolingbroke, "c whom we have appointed to go to France," speaking of the exchange or alienation of Sicily by the House of Savoy, observes, " As for the second point which you are to adjust, as far forth as is
possible, we have directed what has been prepared by the Civilians upon
this subject to be put into your hand."(c) The reigns of the first two
Georges produced Sir George Paul, Sir Henry Penrice, and the two
Bettesworths, Judges of great learning and ability; but I pass on to the
date of 1729, when Sir George Lee first entered upon his career of distinction.  This able Civilian was an active enemy of Sir Robert Walpole; he was also Treasurer to Frederick Prince of Wales, and deservedly
venerated for the learning, accuracy, and clearness of his decisions in the
Prerogative and Arches Courts, in both of which tribunals he presided
as Judge.  But he enjoys also no inconsiderable European fame; for he
was the principal composer of a State Paper(d) on a great question of
(a) P. xviii.   (a) 22 & 23 Car. II.. c. 10.    (b) Vide post, pp. 308-46.
(c) Bolingbroke's Correspondence, vol. i. p. 4, note.
(d) It is printed in the Collectanea Juridica.




PREFACE.                             xxi
International Law-the Answer to the Memorial of the King of Prussia,
presented to the Duke of Newcastle by Mr. Mitchell, and to borrow the
words of his biographer,(e) " it has universally been received and acknowledged throughout Europe as a correct and *masterly exposition of the nature and extent of the jurisdiction exercised over
the ships and cargoes of Neutral Powers by Courts of the Law of Nations, established within the Territories of belligerent States.  Montesquieu characterises it as re'ponse sans redlpiqzue, and Vattel terms it un
excellent morceaa du droit des gens."  To that memorial indeed another
name was affixed, the name of one who was not indeed a member of the
College of Advocates, but who was destined to be among the few luminaries of Jurisprudence in our island, and able to vie with those which
have shone upon the Continent-of one whose boast it was that he had
early and late studied the Civil Law, and who built upon this avowed
basis, and on his knowledge of the writers on Public Law, that goodly
fabric of Commercial Jurisprudence which has since indeed received addition and ornament, but which owed its existence to a mind saturated
with the principles of the Roman Law.  This great man was then Mr.
Murray, afterwards Lord Mansfield.  For comprehensive grasp of mind,
for knowledge of general principles of law, and of their particular application in various countries, this illustrious magistrate was second only to
one, with the mention of whom I shall presently close my brief notice of
distinguished Civilians.(f)
But, to be historically correct, I should first advert to a circumstance
of great importance in its relation to the history of the Advocates of
Civil Law.  Sir G. Lee died in 1756; in 1768, George III. granted to
this Society a formal charter, by which it became a legally recognised
body corporate.  The charter recites, that the members of *the
College at Doctors' Commons had devoted themselves to the [xxv]
study of the Civil and Canon Law, and were either advocates or judges
in the Ecclesiastical and Admiralty Courts, and that they had for "4 centuries past formed a voluntary society," &c., and prayed the king to be
pleased, by letters-patent under the great seal, " to incorporate them and
their successors by the name, style, and title of the College of Doctors
of Law, exercent in our Ecclesiastical and Admiralty Courts."  The
charter goes on to say-" We having taken the said petition into our
royal consideratiol, and being willing to give all fitting encouragement
to the said study," &ec., and then proceeds to constitute, with every
imaginable formality of expression, the College a legal corporate society,
with visitors and power of making bye-laws, &c.  I return to the mention of that Civilian whose reputation as a jurist over-topped even the
great name of Lord Mansfield.  In 1779, Dr. Scott enrolled his name
among the advocates of Doctors' Commons; he is now better known by
(e) See Dr. Phillimore's Preface to Sir G. Lee's Reports, p. xvi. See also an
* elaborate panegyric by Dr. Harris, in the Preface to his translation of the Institutes
of Justinian.
(f) Want of space compels me reluctantly to omit all mention of such judges
as Sir E. Simpson and Sir tG. Hay.




xxi     P i I LLIMORE ON INTERNATIONAL  LAW.
his well-deserved title, Lord Stowell, of whom it may be indeed emphatically said, that he left
" Clarum et venerabile nomen
Gentibus."
And the remainder of the line is scarcely less his due,
" Et multum nostree quod profuit urbi."
The history of Lord Stowell is familiar to the present generation.
His great natural endowments-his long residence at the University —
the admirableuse he made of the opportunities which such residence
affords for storing the mind with all kinds of knowledge-his vast and
varied intellectual attainments-the mature age at which they were
brought into the fray of active life-the *keen insight into human nature-the judicious character of his wise, patient, and
deliberative mind-the marvellous power of lucid arrangement, educing
order and harmony from the most perplexed and discordant matter-the
clear and beautiful robe of felicitous language and inimitable style which
clothed all these high attributes-the awful crisis and convulsion of the
civilized world which called for the exercies of these powers in the judgment-seat of International Law at the very time he was elevated to itthe renown of his decisions over both hemispheres(y) —the great age to
which he enjoyed the full possession of his faculties-all this is matter
of too recent history to require a more detailed enumeration.  "; Testes
vero jam  omnes ore  atque omnes exterwe gentes ac nationes: denique
maria omnia turn universal turn in singulis oris, omnes sinus atque portus."(h7)  With this justly venerated name I close my catalogue of English Civilians, omitting, not without regret, all mention of Dr. Strahan,
the translator of Domat; of Dr. Harris, a Civilian of great eminence,
the translator of The Institutes; of that learned and able Judge, Sir
William Wynne; and of Dr. Lawrence, the well-known friend of Burke.
To the latter indeed ample justice has been done by Lord Brougham in
his Characters of British Statesmen.(i)
I have endeavourad to give a sketch of the fortunes of International
Law in this country, and to illustrate them by some comments on the
most distinguished disciples of that jurisprudence.  My sketch has been
necessarily meagre and imperfect; it would otherwise have transgressed.*the limits of my Preface; and I have been compelled, espe[ xxxvii] cially during the latter period, to pass by in silence many
English Civilians who would have deserved commemoration in a larger
work.
CONCLUSION.
In conclusion, the author trusts that, in any judgment which may be
passed upon this work, it will be recollected, that it is an endeavour,
upon a larger scale than has hitherto been attempted in England, to
(g) Vide passim the American Reports.   (h) Cicero, pro Lege Manilia.
(i) See also Horner's Memoirs, vol. i.




PRE FACE.                           Xxiii
reduce, in some measure at least, to a system, the principles and precedents of International Law; and that this is a task which the very
nature of the materials renders extremely hard: inasmuch as it is very
difficult so to arrange them, as to avoid on the one hand a vague unsatisfactory generality, and on the other an appearance of precise mnathematical accuracy, of which the subject is not susceptible.
The author is anxious to express a sincere hope that others of his
fellow countrymen, profiting by what may be useful, avoiding what may
be erroneous, supplying what may be defective in his labours, may by
them be stimulated to undertake and exeeute a better treatise upon the
same subject.
It is by such gradual additions and painful accumulations that the
edifice of this noble science may one day be completed, and the Code of
International Jurisprudence acquire in all its branches the certainty and
precision of Municipal Law; such a result would be greatly instrumental
in procuring the general recognition and ultimate supremacy of Right
in the intercourse of nations, and, *with the blessings of God,
in hastening the arrival of that period, when the aspiration [ xxxvil
of the Philosopher and the vision of the Prophet shall be accomplished.'" Nee erit alia lex Roma alia Athenis; alia nunc, alia posthac, sed et
omnes gentes et omni tempore una lex et sempiterna et immutabilis
continebit."  (Cicero, De Ire Public-, 1. 3, c. 22.)  "Nation shall not
lift up sword against nation, neither shall they learn War any more."
(Isaiah, c. ii. v. 4.)








C O N T EN T S.
PART  I.
The pages referred to are those between brackets [  l.
CHAPTER I.
INTRODUCTIOiN. FOUNDATIONS OF INTERNATIONAL JURISPRUDENCE. Pp. 1 —10.
1. The Laws which govern International Relations.
2. The Subjects of these Laws.
3. The Objects of these Laws.
4. Certain Subjects requiring a particular Consideration.
5. Legal Means of enforcing International Public Rights.
6. Jus Privatum inter Gentes, or Comity.
CHAPTER II.
PLAN OF THE WORK,  Pp. 10-14.
CHAPTER  III.
SOURCES OF INTERNATIONAL LAW. Pp. 14-29.
i. Natural Law.
2. Revealed Law.
3. Custom.
4. Treaty.
15. Divine and Natural Law. How applied to Christian and Heathen States.
Effect of Christianity upon International Law.
CHAPTER IV.
REASON OF THE THING. Pp. 29-37.
Appliation of Natural and Revealed Law to States. Use of the Roman Law.
CHAPTER V.
CONSENT OF NATIONS. Pp. 37-43.
How manifested. Bypositive Convention. By Custom.
JULY1 1854.-3




xxvi    PHILLIMORE ON INTERNATIONAL LA W.
CHAPTER VI.
HISTORY. Pp. 43-58.
Repositories of International Law. History. Treaties. Proclamations. Marine
Ordinances. Decisions of Prize Courts.
CHAPTER VII.
WRITERS ON INTERNATIONAL LAW. Pp. 58 —64.
Their Authority and Use.
CH APTER  VIII.
RECAPITULATION OF SOURCES OF INTERNATIONAL LAw. Pp. 64-72.
Instance of the Application of the Law as derived from its various Sources.
CHAPTER IX.
OBJECTION THAT THERE IS NO LAW BECAUSE NO SUPERIOR. Pp. 72 —75.
Not tenable. Confusion of Ideas. All moral Obligations equally Perfect,
although Means of compelling Performance may be Imperfect. International Law recognised as a Matter of Fact. Recognition of it incorporated
into Municipal Law of many States.
PART II.
CHAPTER  I. -.
SUBJECTS OF INTERNATIONAL LAW. STATES. Pp. 75-88.
What is a State. Barbary States. The Ottoman Porte.
CH: APTER II.
DIFFERENT KINDS OF STATES. Pp. 88-120.
Principal Division.
1. One or more States under one Sovereign.
2. Several States under a Federal Union.
1. States under one Sovereign.
a. Single States.,f. States united reali unione.
y. Case of Poland.
J. States united personali unione.
e. Protected States retaining International Personality.
i. Protected States having lost International Personality.
Ionian Isles.
0. European Free Towns and Republics.
t. The case of Belgium.
K. The case of Greece.




CONT E N T S.                        Xxvii
X. Feudal States. Turkish Provinces.
T. The Case of Egypt.
CHAPTER III.
STATES UNDEI  A FEDERAL UNION. Pp. 120 —122.
1. Germanic Confederation.
2. Swiss Confederation.
3. North American United Republics.
4. South American United Republics.
CHAPTER IV.
GERMAN CONFEDERATION. SWISS CONFEDERATION. Pp. 122-138.
History and Character of.
CHAPTER V.
UNITED STATES OF NORTR AMERICA. CENTRAL AND SOUTHI AMERICAN
REPUBLICS. Pp. 138-147.
History and Character of.
CHAPTER VI.
EXTINCTION OF A STATE. P. 147.
A State may lose its International Personality. How.
CHAPTER VII.
CHANGES IN A STATE. Pp. 148 —159.
Doctrine of Roman Jurists-of Savigny; Hooker; Grotius; De Mably;
D'Aguesseau; Montesquieu; Heineccius; Vattel; Bynkershoek; Kent;
Wheaton; Puffendorf;-all support the Doctrine that Changes in a State
do not affect previously-existing International Obligations. If the Territory of a State be divided, Rights and Duties are apportioned. Opinion of
Kent and Story. Recent Case of Belgium.
PART III.
CHAPTER I.
OBJECTS OF INTERNATIONAL LAw. Pp. 159 —162.
1. Rights stricti juris. 2. Usages of Comity. Importance of observing Distinctions between.




xxviii  P H ILLIMORE ON INTERNATIONAL LAW.
CHAPTER II.
RIGHTS OF INDEPENDENCE AND EQUALITY. Pp. 162-164.
I. Rights of Independence.
1. Free Choice, &c. of Government. 2. Territorial Inviolability. 3. SelfPreservation.  4. Commerce.  5. Right of Acquisition.  6. Jurisdiction over Persons and Things wvithin, and, by way of Exception,
without her Territory. Christian Strangers in Mahometan Territories.
Extradition of Criminals.
II. Limitation of foregoing Rights.
Doctrine of Intervention.
III. Rights of Equality.
1. Right of protecting Subjects abroad. 2. Rights to Recognition.
3. Right to external Marks of Honour. 4. Right to make Treaties.
CHAPTER III.
RIGHT TO A FREE CHOICE OF GOVERNMENT. P. 164.
CHAPTER IV.
TERRITORIAL INVIOLABILITY. NATIONAL POSSESSIONS. Pp. 165 —167.
1. RiversandLakes. 2.OpenSea. 3.NarrowSeas. 4.BritishSeas. 5.Straits.
6. Portions of the Sea.
CHAPTER V.
PROPERTY OF A STATE. RIVERS. Pp. 167-194.
General Law respecting. Stipulations in the Treaty of Vienna as to free Navigation of great Rivers. The Scheldt. The Rhine and Tributaries. The
Vistula. The Douro. The Danube. The Mississippi. The St. Lawrence.
The open Sea. Nootka Sound. The North Sea. Rights of Fishing.
CHAPTER VI.
NARROW SEAS, AS DISTINGUISHED FROM THE OCEAN. Pp. 194-200.
British Channel. Mare liberums of Grotius. Mare clausunm of Selden. Holland. William III. Sir L. Jenkins. Bynkershoek. Lord Stowell.
CHAPTER VII.
NARROW SEAS. STRAITS. Pp. 200-210.
British Channel. Great and Little Belt. Straits of Messina. Dardanelles.
Hellespont. Fisheries.
CHAPTER  VIII.
PORTIONS OF THE SEA. Pp. 210-218.
Rule of Territory within Marine League or Cannon shot. Hovering or Revenue
La;ws. Landlocked Seas.




C O N T E N T 8.                     XxiX..CHAPTER  IX.
PECULIAR CASE OF THE ISTHMUS OF CENTRAL AMERICA. Pp. 218-225.
British Treaty with United States of North America. Question respecting
British Settlements in Honduras.
CHAPTER' X.
SELF-PRESERVATION. Pp. 225-235.
Means of Security. National Safety. Lawful to prevent as well as repel Attack.
Rules and Illustrations. When Conduct of individual Subjects implicates the
State. Doctrine of patientia and receptus.
CHAPTER XI.
RIGHT TO A FREE DEVELOPMENT OF NATIONAL RESOURCES BY COMMERCE.
Pp. 235-237.
Former Claims of Spain and Portugal. Colonial Monopoly.
CH AP TER  XII.
RIGHT OF ACQUISITION. Pp. 237 —265.
Doctrine of-1. Possessio, and 2. Dominium acquisition. 1. Original. 2. Derivative. Different kinds of Original Acquisitions: 1. Occupation; 2. Accession; 3. Prescription. Occupation, Elements of, in Discovery, Use. Settlement. Illustrations. Extent of Occupation. The Middle Distance. Law
of Ccntiguity. Fluvial Accessions. Case of the Anna. Boundaries. Bull
of Alexander VI. Penn. Cabot. Falkland Islands. Treaty of Utrecht.
Oregon.
CHAPTER XIII.
PRESCRIPTION, DOCTRINE OF. Pp. 265-282.
Roman. Private. Public. International Law respecting it.
CHA'PT ER XIV.
DERIVATIVYE ACQUISITION. Pp. 282-302.
I. Facto hominis. 2. lFacto legis. Competent to a State to alienate Property.
When. Usufructuary and Patrimonial Dominions. Case of Norway in 1814.
International Transactions between State and Subjects, and State and other
States, distinguished. Sovereigns defacto and de jure. Doctrine of Transference or traditio. Modes of Transference considered: 1. Exchange; 2.
Cession; 3. Gift; Case of Louisiana; 4. Election of Sovereign; 5. Marriage
Contract; 6. Successio ab intestato; 7. Testamentary Disposition.
CHAPTER  XV.
ACQUISITION OF RIGHTS. P. 302.
Servitutes Juris Gentiurn: 1. Servitus negativa; 2. Servitus afi~rmativa. As to
Persons. As to Places.




XXX   PHILLIMORE ON INTERNATIONAL LAW.
CHAPTER XVL
EXTINCTION OF DOMINION. Pp. 307-316.
Maxim of " Quibus modis acquirimus iisdem in contrarium actis omittinmus."
Protests. Postlimnizium. Property becoming extra commercium.
CHAPTER XVII.
SLAVES AND THE SLAVE TRADE. Pp. 316-344.
Man not among the res positce in commercio.
1. Slavery of the White Man. Captives in War. Barbary powers. Bynkershoek's Opinion. Lord Exmouth's Bombardment of Algiers.
Occupation of Algiers by France.
2. Slavery of the Dark or Coloured Man. Lord Stowell's Opinion in favour
of slavery. Slavery contrary to the Natural Law of Nations. Treaty of
Paris, 1814, as to the Slave Trade. Subsequent treaties. Catalogue of
existing Treaties on the subject. Case of the Queen v. De Serva. Cases
of Shanley v. Harvey; of Somerset the Negro; of Forbes v. Cochrane;
of Borcaut; of Francisque; of the Pole; of the Creole brig; of the
Slave of the the Spanish Merchant in France.
CHAPTER XVIII.
RIGHT OF JURISDICTION OVER PERSONS. Pp. 345-361.
1. Over Subjects. 2. Over Foreigners commorant in the Land. Native and
Naturalised citizens. DomiciledPersons. Naturalisation; Laws ofdifferent States respecting. Jurisdiction over Foreigners: Laws of different States respecting.
CHAPTER  XIX.
EXCEPTIONS TO THE TERRITORIAL RIGHT OF JURISDICTION. Pp. 361-379.
1. Christian Sojourners in Infidel Countries. Echells du Levant. British
Subjects in China.
2. Foreign Sovereigns.
3. Ambassadors.
4. Foreign Armies.
5. Foreign Ships: a. Ships of War;,l. Ships of Commerce; different Rules
respecting.
Cases of The Exchange, The Santissima Trinidad, The Prinz Frederic, The
Newton, The Forsattning.
CHAPTER XX.
RIGHTS OF JURISDICTION. PIRATES. Pp. 379-407.
That they are justiciable everywhere. Cases and Charges of Judges in Courts
of Admiralty. Letters of Marque and Privateers; when they are, and when
they are not, considered as Pirates by International Law. Treaties and private
Laws of States respecting Privateers. An abdicated Monarch cannot issue
Letters of Marque. Case in the Time of James II.




C O N T E N T S.                      XXXi
CHAPTECR  XXI.
RENVOI. EXTRADITION. Pp. 407-433.
1. The Right of a State to dismiss Foreigners. Renvoi.
2. The General Law as to the Obligation of a state to Surrender Foreigners.
Extradition.
3. Treaties of Extradition.
4. Statute Law of England on this Subject.
PART IV.
CHAPTER I.
INTERVENTIONX PRINCIPLE OF. Pp. 433-483.
Analogous to Interdict and Injunction.
Opinion of Lord Bacon. Two Kinds of Intervention.
I. Sometimes, but rarely, in domestic Concerns of Foreign Nations.
at. When Institutions are inconsistent with the Peace and Safety
of other Nations.,. Rights and Duties of a Guarantee.?. Invitation of Belligerent Parties in a Civil War.
S. Protection of Reversionary Rights or Interest.
II. When Territorial Acquisitions of a State threaten the peace and Safety
of other States.
a. Balance of Power, a Corollary of the Principle of Self-Defence.
A. Intervention on religious Grounds: when justifiable. Treaty
of Westphalia. Case of Christian Subjects in the Ottoman
Empire.
Justice of the War declared by England and France against Russia in 1854 to
be tried by Principles of International Law already laid down in this Work.








LIST OF AUTHORITIES
REFERRED TO IN THIS VOLUME.
A.
/Eschinis et Demosthenis Orationes duse contrarike.
Ahrens, Cours de Droit naturel, ou de Philosophie du Droit (Brux. 1844.)
Allgemeine Geschichte.
Am6dde Felix. (See Code.)
Ancillon fiber den Geist der Staatsverfassung.
Annals of Congress. See Congress.)
Annuaire HIistorique Universel (1832).
"    des Deux Mondes (1850-1-2-3-4).
Annual Register.
Aristoteles, de Rhetorica (London, 1619).
r"     Ethicse.
B.
Bacon (Lord), Essays: An Advertisement touching on Holy War.
Barbeyrac. (See Grotius and Puffendorf.)
Barbosa, Collectanea Doctorum in Jus Pontificium.
Barnwall and Alderson's Reports.
Bartolus, Opera.
Bingham's Reports.
Blackstone's Commentaries on the Laws of England.
Blume, Deutsches Privatrecht.
Bodinus de Republica.
Bolingbroke's Letters on the Study and Use of History.
r"     Letters.
Bowyer's Readings before the Society of the Middle Temple.
Brockenbrough's Reports (American).
Burke's Works, Tracts on the Popery Laws.
"     "   Thoughts on the French Revolution.
"     "   Letters on a Regicide Peace.
"     i   Reform of Representation in the House of Commons.
"a Ad   Appeal from the New to the Old Whigs.
"     "   Letter to R. Burke, Esq.
"'    "   Speech on Motion relative to-the East India Company.
d"   dC  Speech on the Conciliation of America.
Barlamaqui, Principes du Droit Naturel et du Politique (1747) —French and
English edition cited.
Burrow's Reports.




xxxiv    PHIILLIMORE   ON  INTERNATIONAL  LAW.
Butler (Bishop), (Sermon III.) On Human Nature.
Bynkershoek, Questiones Juris Publici (Lug. Bat. 1767).
"~ rr 4' Privati (Lug. Bat. 1767).
De Dominio Maris (Lug. Bat. 1767).
De Foro Legatorurnm (Lug. Bat. 1767).
C.
Cabinet Library of Scarce and Celebrated Tracts (published by Clark, Edinburgh,
1837).
Camdenus in vita Elizabethoe, ad ann. 1580.
Canning's Speeches.
Carrington and Payne's Reports.
Casaregis-Discursus Legales de Commercio.
Cicero Pro Cluentio.
"   De Republica.
"   De Officio.
"   Pro Milone.
De Leg.
"   De Finibus.
" Orat. Pro Balbo.
"   Pro Caecina.
Clarendon (Lord), Life of.
Code Civil, suivi de l'Expos6 des Motifs, par Locre.
Codes, Les Huit, Frangais.
Codes des Etrangers, on Recueil des Lois et de la Jurisprudence Anglaise concernant les Etrangers (F6lix Ame6dee: Paris, 1849).
Coke's Institutes of the Laws of England.
"   Reports.
Colquohoun's Civil Law.
Congress Documents; Sess. 1827, 1828, No. 43.  See Papers.)
Connecticut Reports.  (See Reports.)
Consolato del Mare.
Corpus Juris Civilis.
Corpus Juris Canonici.
Correspondence. (See Papers.)
Cranch's Reports (American).
Croke's Reports.
Cussy, De.  (See Martens.)
D.
D'Aguesseau, (Euvres de M. Le Chancelier.
Dahlman, Geschichte von Dinemark.
Dallas's Reports (American).
Davis's (Sir John) Reports.
Decretalia.  (See Corpus Juris Canonici.)
Decretum.  (See Corpus Juris Canonici.)
De Martens et De Cussy, Recueil de Traitds et de Conventions.
Demosthenes (rinp;) vpatrpwpo-,R) Krac Cixrrsov.
Denisart, Collection de Decisions Nouvelles.
Denison's Crown Cases Reserved.
Digest. (See Corpus Juris Civilis.)
Dionysius Halicarnassensis.
Dodson's Reports (Admiralty.)
Dohm, Denkwfirdigkeiten meiner Zeit.
Domat, Traite des Lois.
Dumont, Corps Universel Diplomatique.
Duvergier (M.), Collection de. (1843.)




LIST  OF  AUTIORITIES.                        XXXV
E.
East's Reports.
Eden's Reports in Chancery.
Edinburgh Review, No. LXXXII.
Edwards's Admiralty Reports.
Egan's Law of Extradition. (London, 1846.)
Eichhorn, Kirchenrecht.
Elliot's American Diplomatic Code. (Washington, 1834.)
Emerigon, Contrats et des Assurances.  (Mars, 1783.)
F.
Fselix Revue ftrangere de LUgislation.
De Droit International.  (Paris, 1847.)
Falck, Dissertatio Jurid. Inaugur. de servo libertate donato si Europoe solurm
tetigit.
Farrinacius-Opera.
Federalist, the (American.)
Fenelon, (Euvres de.
Ferrand, Histoire des Trois D6emembrements de la Pologne.
Ferreiras (Pinheiro), Commentaries on Vattel.
Feuerbach, Lehrbuch.
Flassan, Histoire de la Diplomatic Francaise.
Forster-Crown Law.
G.
Gagern (Von), Kritik des V~lkerrechts.
Garden (Le Comte de), Code Diplomatique de l'Europe.
Ad     Ad       Traite complet de la Diplomatie (1833.)
Gazetteer of the World.
Gentilis Albericus, Hispanicae Advocationes.
"      "    De Legationibus.
Gentz (Von), Fragmente aus der neuesten Geschichte des politischen Gleichgewichts in Europa: Schriften.
Gibbon's Decline and Fall of the Roman Empire.
Gilpin's Opinions of the Attorney-General of the United States. (1841 ed.)
Gothofred (Jac.), de famosis Latronibus Investigandis.
Greenville's (Lord) Speech in the House of Lords on the Blockade of Norway
May 10th, 1814.  (Hansard's P. D.)
r'Ad    Speech in the House of Peers, on the Motion of the Duke
of Bedford, for the Dismissal of Ministers, 22d March,
1798. (Published by J. Wright, Piccadilly.)
"  " rr Speech in the House of Lords, upon the Motion for an
Address to the Throne approving of the Convention with
Russia in 1801. (Published by Cobbett and Morgan,
Pall Mall, 1802.)
Grotius, de Jure Beli et Pacis-French translation and notes by Barbeyrac.
"    Mare Liberum.
"    Epistolle.
Guizot, De la D6mocratie en Franc.
Guiinther, Europaisches Volkerrecht.  (Altenburg, 1787.)
H.
Haggard's Reports (Admiralty).
Hale's Pleas of the Crown. (London, 1716.)
Hallam, History of the Middle Ages.
Handbuch der Schweizerischen Staaten.




Xxxvi   PHILLIMORE ON  INTERNATIONAL  LAW.
Hansard's Parliamentary Debates.
Harris and Johnson's Reports (American.)
Hawkins's Pleas of the Crown. (London, 1716.)
Heffters, Europaiishe Vllkerrecht der Gegenwart. (Berlin, 1848.)
Heineccius-Praelectiones Academica in H. Grotii De. J. B. et P. libros iii.
C"    Jus Naturae et Gentium.
Henry on Foreign Law (the Judgment of the Court of Demarara in the case of
Edwin v. Forbes). (London, Published by Sweet, 1823.)
Herodotus.
Hertius.
Hertslet's Collection of Commercial Treaties between Great Britain and Foreign
Powers.
Hobart's Reports.
Hobbes (Thomas), De Cive.
Homan, De Delictis Peregrinorum, eaque puniende ratione.
Horner, Memoirs of.
Hooker's Laws of Ecclesiastical Polity. (London, 1705.)
Howell's State Trials.
Huberus, De Conflictu Legunm.
Hugo, Jus Civile Antejustinianeum.
Hume's History.'   Essays.
Ihering, Geist des Rimischen Rechts.
Institutiones. (See Corpus Juris Civilis.)
Isocrates, Archidamus, Orationes et Epistolke (Gr. et Lat.).
Jacobsen, Seerecht.
Jenkins, Sir Leoline, Life of (Wynne's edition).
Jenkinson, Treatise on the Government of Great Britain in 1758.
Johnson's (Dr.) Works: Thoughts on the Transactions relating to the Falkland
Islands..ohnson's Reports (American).
"4     I     Chancery (American).
Jurist, The English.
" " ArnAmerican.
K.
Kaltenborn, V8lkerrecht.
Kamptz (Von), Neue Literatur des Vilkerrecht, (1817.)
Kant, Rechtslehre.
Keble's Reports.
Kent's Commentaries on American Law.
Klinkhammers —Disp. Hist. Pol. de Belli propter Success. Regni Hispan. &c.,
(Amstelodami, 1829.)
Kliuber, Europaisches Vblkerrecht (Scaffhausen, 1831).
"   Oeffentliches Recht des deutschen Bundes und der Bundesstaaten.
"   Acten des Wiener Congresses.
Kluit, Dissertatio de Deditione Profugorum (Utrecht, 1829).
Knapp's Privy Council Reports.
Koch, Histoire abreg6e de Traites de Paix, continude par Schoell (ed. Bruxelles).
Tableau des Revolutions de l'Europe.
aL.
Lamartina, Trois Mois au Pouvoir.




LIST  OF  AUTHORITIES.                        XXXSVi
Laws of Oleron.
Leach's fHawkins's Pleas of the Crown.
Leibnitz, Opera.
Les Huit Codes Franqais (Code d'Instruction Criminelle( (Paris, 1834).
Livius.
Loccenii (Jo.), Jus Maritimum Sueciae (Holm. 1674).
M.
Mably, Droit Public de l'Europe fond6 sur les Traites.
Mackeldey, Lehrbuch des Rom. Rechts, and French Translation.
Mackintosh (Sir James), Speech on the Recognition of South American Republics.'" "r  Speech on the Blockade of Norway.
tr"       "       Discourse on the Law of Nature and Nations.
"   "   Miscellaneous Works.
l"        "r      Second Review of Burke's Letter on a Regicide Peace.
Manning, Law of Nations.
Manuel de Droit Public, par Snell. (See Handbuch.)
Droit Roman.  (See Mackeldey.)
Martens (De), Recueil de Traitds (Gbtting.).
Nouveau Recueil de Traites.'"    ~Precis du Droit des Gens (Paris, 1831).
"'    Primmx Linese Juris Gentium (Gott. 1785).
"      Causes Celebres.
{"     Erziihlungen merkwiirdiger FAlle des neueren Europ. V6lkerrechts.
"      Guide Diplomatique.
"      et De Cussy, Recueil de Traites et de Conventions.
Mass6 (G.), Le Droit Commercial, avec le Droit des Gens et le Droit Civil
(1845, ed.).
Merlin, Repertoire de Jurisprudence.
" Questions de Droit.
Miltitz, Manuel des Consuls (London, 1839).
Miruss, Das Europaische Gesandschaftsrecht.
Molloy, De Jure Maritimo et Navali.
Montesquieu, Esprit des Lois.
Moore, Privy Council Reports.
Moser, Versuch des neuesten Europaischen Vi1kerrechts.
Milhlenbrucek, Doctrina Pandectarum.
N.
Nepos (Cornelius), De Vita Excellentium Imperatorum (Delph. Paris, 1675).
Neyron, Principes du Droit des Gens Europ6ens.
Newspapers:Times, The,
Globe, The,
Morning Post, The,
Morning Chronicle, The,
0.
Ompteda, Literatur des Vblkerrechts, to 1784, continued by Von Kamptz to
1817.
Oppenheim, System des Vl1kerrechts.
Orient, La Question de (Paris, 1853.)
Ortolan, Diplomatie de la Mer.
"    Des Moynes d'acquerir le Domaine International, ou Propriet6 d'Etat
entre les Nations &c.
Ovidius- Fasti.




XX:xViii  PHILLIMORE  ON  INTERNATIONAL LAW.
P.
Papers relative to the Affairs of Greece and Belgium, printed by the Foreign
Office, London, 1835.
Correspondence relating to the Project of annexing Cuba to the United
States, laid before Parliament, April 11th, 1853  and especially the
English Foreign Secretary's (Lord John Russell) Letter of February
16th, 1853.
Congress Documents, sess. 1827-1828, No. 43.
(American,) on the Navigation of the St. Lawrence, sess. 1827-28.
(British,) on the Navigation of the St. Lawrence, No. 45.
State (English,) during the war, London, 1794.
State Papers-(British  and Foreign —Compiled by the Librarian and
Keeper of the Papers, Foreign Office.-Ridgway and Sons, London.)
Presented to the House of Parliament by command of Her Majesty,
1853, with respect to British Subjects in China.
Report of the House of Lords respecting the African Slave Trade, July,
22nd, 1849.
Report of the Select Committee of the House of Commons on the Slave
Trade Treaties, August 12th, 1853.
Papers relative to the Rights of Liberated Africans, and the Prevention
of Slave-dealing at Sierra Leone, laid before Parliament, August 12th,
1853.
Protocols of Conferences in London relative to the Affairs of Belgium.
Relating to the Latin and Greek Churches, laid before Parliament in
1853.
Correspondence with the Russian Government respecting Obstructions to
the Navi ation of the Sulina Channel of the Danube, in Papers laid
before Parliament, 1853.
Correspondence between some of the Continental Powers and Great
Britain respecting the Foreign Refugees in London, presented to both
Houses of Parliament by command of Her Majesty, 1862.
Pascal, Pens6es de.
Pestel, De Necessitate et Usa Juris Gentium Dissertatio.
Peters's Reports (American.)
Phillimore (R.), Case of the Caroline Steamer, Letter to Lord Ashburton.
L Pamphlet on the Case of the Creole.
Pamphlet, Armed Intervention on the ground of Religion considered
as a Question of International Law.
Phillimore (Dr.), Preface to Sir George Lee's Reports.
Plato.
Plutarchus, Vite Parallele (Lipsine, 1812.)
Polybius.
Portalis.  (See Code Civil.)
Pothier, (Euvres de.
Puchta, Cursus der Institutionen.
"    Pandekten.
Puffendorfius, de Jure Naturoe et Gentium (London, Scan. 1672.)
Idem, French (Amsterdam, 1712.)
ar       Idem, English (London, 1717.)
Piutter Specimen Juris Publici ac Gentiumn Medii 2AEvi.
Puttingen (De,) Die gesetzliche Behandlung der Auslander in (Esterreich.
R.
Raumer (Von,) Polens Untergang, Histor. Taschenbuch.
Rayneval (Gerard de,) Institutions du Droit de la Nature et des Gens (Paris,
1851.)
Reiffenstuel-Jus Canonicum Universum,




LIST  OF AUJTHOlRITIES.                         XXXiX
Reports, Barnwell and Alderson's.
Bingham's.
Brockenbrough's (American).
Burrow's.
Carrington and Payne's.
Coke's.
Connecticut (American).
Cranch's (American).
Croke's.
Dallas's (American).
Davis's (Sir John).
Denison's Crown Cases Reserved.
Dodson's Admiralty.
East's.
Eden's, in Chancery.
Edwards's Admiralty.
Haggard's Admiralty.
Harris and Johnson's (American).
Howell's State Trials.
Johnson's (American).
"    Chancery (American).
Jurist, The (English).
(American).
Keble's.
Knapp's, in Privy Council.
Moore's,    ditto.
Peters's (American).
Robinson's (Sir Ch.) Admiralty.
"     (Dr. Wm.)   "
Russell and Ryan's Crown Cases Reserved.
Schoales and Lefroy, in Chancery in Ireland.
Sergeant and Rawle's (American).
State Trials (Howell's English).
"'    (Wharton's American).
Strange's.
Sumner's (American),
Taunton's.
Ventris's.
Vermont's (American).
Vezey's (Sen.).
Washington's Circuit (American).
Wheaton's (American).
Revue de Droit Frangais et Etranger.
"   de Legislature et de Jurisprudence (1843), t. xvii.
Ridley, View of the Civil Law, 387.
Robinson's (Sir C.) Admiralty Reports.
"     (Dr. WV.)   " 
Rocco, Dell' Uso e delle Leggi Due Sicilie.
Rulhidre, Histoire de l'Anarchie de Pologne.
Russell and Ryan's Crown Cases Reserved.
Russell on Crimes (ed. 1843).
Rutherforth, Institutes of Natural Law.
Rymer —Federa, Conventiones, Literie et Acta Publica, inter Reges Anglioe et
alios Principes (London, 1704).
S.
Saalfeld, Handbuch des positiven Vo1kerrechts.
Sallustius, Bellum Jugurthinum.
Savigny, System des Rgrnischen Rechts.'    Recht des Besitzes.




Xl       P H ILLIMO RE  ON  IN TERNATIONAL LAW.
Schilling, Pandekten Recht.
Schlegel, Staatsrecht des Konigreichs Danemark, &c.
Schmalzgrueber, Jus Ecclesiasticum Universum.
Schmauss, Corpus Juris Gentium Academicum.
"     Einleitung zu der Staatswissenschaft.
Schmalz, Das Europaische Vilkerrecht.
Schoales and Lefroy's Reports, Chancery, in Ireland.
Schoell, Continuation of Treaties by De Martens.
Seldenus-Mare Clausumn.
Seneca-Epistolke.
Smith (Sir Thomas), Commonwealth of England.
Spelman, Glossar. in voce Pirata, 387.
State Papers.  (British and Foreign-Compiled by the Librarian and Keeper
of the Papers, Foreign Offce —Ridgway and Sons, London.) (See Papers.)
Statutes at Large of the United Kingdom of Great Britain and Ireland.
Stephen's Commentaries on the Laws of England (3rd ed. London, 1853).
Story, Commentaries on the Constitution of the United States.:" Conflict of Laws.
Strange's Reports.
Sumner's Reports (American).
Suarez, Tractatus de Legibus et Deo Legislatore.
T.
Talleyrand (M.), Note to the Congress of Vienna.
Taunton's Reports (American).
Taylor's Civil Law. (1756.)
Temple's Memoirs. (1709.)
Thucydides.
Tindall (Matthew, LL.D.), an Essay concerning the Laws of Nations and the
Rights of Sovereigns.
Tittman, Die Strafrechtspflege in vlkerrechtlicher Ricksicht.  (Dresden.
1817.)
Troplong, De l'Influence de Christianisme sur le Droit Civil des Romains.
Twiss —Oregon Question Examined.'    The Duchies of Schelswig and Holstein. (London, 1848.)
V.
Valin, Commentaire sur l'Ordonnance de la Marine.
Vattel, Droit des Gens.
Ventris's Reports.
Vermont Reports (American).
Vezey's (Sen.) Reports.
Voet (J.), Comment. ad Pandectas.
" (Paul) de Statutis.
Wo
Wacksmuth, Jus Gentium apud Groecos.
Waite's American State Papers.
Wallace (E. J.), Pamphlet; the Oregon Question.
Valtershausen, Urkundliche Geschichte des Ursprunges, der Deutschen Hanseo
Ward's Law of Nations.
Warnkenig, De Studio Jur. Rom. Utilitate ac Necessitate oratio.  (1817.)
"      Doctrina Juris Philosophica.
"      Institutisnes Juris Romani Privatam.
Washington's Circuit Reports (American).
Wenkins, Codex Juris Gentium.
Wharton's State Trials of the United States.
Wheaton's Histony of International Law. (1845.)




LIST  OF AUTHORITIES.                             xli
Wheaton's Elements of International Law. (1836.)
R" eports (American.)
"     -Iistorie des Progres du Droit des Gens. (1853.)
The French Translations of these Treatises are constantly referred
to in this Work, because they are of a later date, and contain
additional matter.
"    Historie des Progres du Droit des Gens en Europe et en Amerique
(1853.)
Elements Du Droit International. (1852.)
Wicquefort, l'Ambassadeur et Fonctions.
Wieland, De Necessitate et Usu Juris Gentium, &c. (Philadelphia, 1849.)
Wilkinson's Dalmatia and Montenegro. (1848.)
Wiseman's Excellency of the Civil Law.
Wolfius, Opera.
Wyck (H. A. M. Van Asch) De delictis extra Regni teritorium  admissis.
(Utrecht, 1839.)
Zacharia, Le Droit Civil Franqais. (1854).
"   Deutsches Staats-und Bundesrecht.  (GOtting. 1841.)
Zouch, De Jure Feciali, sive Judicio inter Gentes.
l6 De Jure Nautico.
JuLY,  1854.-4








CASES
FRO3f THE
ENGLISH, SCOTCH, AND IRISH REPORTS.
The pages referred to are those between brackets [    ].
A.                Flad Oyen, The, 38, n. 39, n. 40,
Anna, The 256.                     n. 43.
Forbes v. Cochrane, 337.
B.
G.
Bingley's (Sir R.) Case, 388.
Bond v. Hopkins, 36, n.
Bonnet, Major, and others, Trials
of (State), 386.
Burvot v. Barbut, 61.           Hastings, Warren, Impeachment
of, 23.
C.                Helena, The, 21. 81.
Calvin's Case, 158. 345.        Henrick and Maria, The, 40. 51, n.
Codling, William, and others, Trial Henry v. Adey, 57, n.
of (State), 389.                oop, The, 51, n.
Creole, The, 335. 337. 344. 414.   Hurtige Hane, The, 23.
).                               I.
Illeanon Pirates, The, Queen v.
I)awson, Joseph, and others, Trial   Belcher, 78.
of (State), 385, 386.         Indian Chief, The, 82, n.
E.                               K.
East India Company v. Campbell, Kinder v. Kinder, 42.
412.                          King v. Kimberley, 412.
Edmian and Smith's Case, 388.    Knight the Negro, Case of, 336.
Elsobe, The, 40, n.
L.
F.               Launghorn v. Allnutt, 97.
]Fama, The, 28, n. 244.         Le Case de mixt, Moneys, 69.




xliv    PHILLIMORE  ON INTERNATIONAL LAW.
Le Louis, The, 38, 211, n. 216. Rex v. M. A. de Mattos, 358, i,
321, 322. 359, n. 379, 381.     " v. Sawyer, 358, n.
Lucy, The, 69, 70.              Ringende, Jacob, The, 41. 50.
Lundy, Case of, 412.
S.
Santa Cruz, The, 40, 41, 42. 50.
Madonna del Burso, The, 22, n.   Santa Anna, The, 92, n.
Madrazzo v. Willis, 321, n.     Serhassan Pirates, The, 78. 381.
Magellan Pirates, The, 391.     Shanley v. Harvey, 336.
Maria, The, 32. 36, n. 40, 41, 42, Slave Grace, The, 322. 335.
46, 51, 52. 59, n. 60, n. 69, n. Snipe and others, The, 42. 51.
153. 160, n. 199.             Sootragum Satputty v. Sabitra Dyoe,
Mercurius, The, 40, n.            35, n.
Mirehouse v. tennell, 36, n.    Somersett's (The Negro) Case, 335,
Alure v. Kaye, 412.               336, 337.
P.                               T.
Peach and others v. Bath, 62.   Tandy, James Napper, and another,
Peltier, Jean, Trial of (State), 417.   Trial of (State), 413.
Pilkington v. The Commissioners Triquet and others v. Bath, 62.
for Claims on France, 70.     Twee GQebraeders, The, 35. 170.
Prinz Frederick, The, 370.        194. 207, n. 211.
Progress, The, 40.
V.
R.                Vint and others, Trial of (State)
Recovery, The, 52.                417.
Reg. v. Serva and others, 329, n.
333. 381.
Rex v. Lepardo, 358, n.         Walsingham Packet, The, 42, n.
" v. Clinton, 430.            Wall, (Governor), Trial of (State),
" v. Helsham, 358, n.           358.
FROMI THE REPORTS OF THE NORTH AMERICAN
UNITED STATES.
A.                Commonwealth v. Deacon, 410.414.
Antelope, The, 77, 321.                       v. De Longehamps,
Arrogante Barcelones, The, 372.   410. 414.
C.                              D.
Church v. Hubbards, 211, n. 233.  Dalafield v. Hand, 57, n.




CASES CITED.                         xlv
Desobray v. Laistre, 57, n.                    S.
Santissima Trinidad, The, 369. 373.
Santos, Jose Ferreire Jos, Case of,
Exchange, The.  (See Schooner   414.
Exchange.)                    Schooner Exchange, The, v. MBFaddon and others, 366, 367. 372.
G.                  374.
Guinet, John Etienne et al., Trial
of (State), 394. 
Terrett and others v. Taylor and
H.                  others, 158.
Henfield, Gideon, Trial of (State), Thompson v. Stewart, 56, n.
394.
Holmes v. Jennison, 410. 414.
IHolmes, Exparte, 414.          United States v. Smith, 380........ v. Davis, 410. 413.
J-.                            v. Nash, 429.
Jackson v. Lunn, 158.                          V.
K.                Villato, Francis, Trial of (State),
394.
Kaine (Thomas), Case of, 430.
Kelly v. Harrison, 158.                        W.
Washburn, In the matter of, 410.
M.                  413.
Monte Allegro, The, 372.        Williams, Isaac, Trial of (State),
394.
R.
Rex v. Ball, 410. 414.                         Y.
Robbins's Case, 429.            Yeaton v. Fry, 56, n.
FROM  THE FRENCH REPORTS.
A                 Francisque, The, Case of, 342.
Anonymous, Captain of English
merchantman, Case of, 375.
N.
B.                Newton, The, 374.
Bercaut, Jean, 341.
F.                               S.
Forsattuing, The, 375.           Sally, The, 374.








COM i MEN TAR I ES
UPON
INTERNATIONAL LAW.
CtIAPTER  I.
INTRODUCTIONO
I. THE great community, the universal commonwealth of the world,
comprehends a variety of individual members manifesting their independent national existence through the medium of an organized government,
and called by the name of States.(a)
II. States in their corporate capacity, like the individuals which compose them, are (subject to certain limitations) free moral agents, capable
of rights, and liable to obligations.(b)
(a) " Communitas, que genus humanum  ant populos complures inter se colligat"-" jura magnse universitatis." —Grotius, de Jure Belli et Pacis, Proleg.
17. 23.
" Societes, qui forment les nations-membres principaux de ce grand corps
qui renferme tous les hommes."-D'Aguesseau, 1. 444; Institution au Droit
Public, v., vi.
"Comme dont le genre humain compose une societ6 universelle divis6e en
diverses nations, qui ont leur gouverneurs separees," &c.-Donmat, Trait6 des Lois,
ch. 11, s. 39.
(b) Dig. lib. v. tit. i. 76: " (De inoff. testamento) populum eundem hoc tempore
putari, qui abhinc centum annis fuisset, cum ex illis nemo nunc viveret."
Dig. lib. vii. tit. i. 56:  " (De usufructu) an ususfructifs nomine actio, mnnlzicipibus dari debeat, quoestitum est, periculum  enim  esse videbatur ne perpetuus
fieret quia neque morte nec faci16 capitis diminutione periturus est.... sed
tamen placuit dandam esse actionem: unude sequens dubitatio est quousque tuendi
sunt municipes? et placuit centum annis tuendos esse municipes, quia is finis vitC
longcevi hominis est.
The expression municipes is identical with municipium.-Savigny, R. R. ii. 249.
Dig. lib. xlvi. tit. i. 22: " (De fidejuss.) hareditas personce vice fungitur sicuti
municipiunz, et curia, et societas."
Dig. lib. iii. tit. 4: " Quod cujuscunque universitatis nomine veol contra rem
agatur."-Lib. i. s. 1, 2.
Cod. lib. ii. t. 29; "De jure reipublicae: 30, de administratione rerumpublicarum; 31, de vendendis rebus civitatis; 32, de debitoribus civitatum."
Hobbes, with his usual perspicuity: "Quia civitates semel institutce induunt
proprietates hominum personales." —De Civ. c. 14, ss. 4, 5.




48    PHILLIMOR1E ON INTERNATIONAL LAW.
*2     XIII. States, considered in their corporate  character, are not
[  *] improperly said to have internal and external relations.(c)
1V. The internal relations of states are those which subsist between
governments and their subjects in all matters relating to the public order
of the state: the laws and principles which govern these internal relations form the subject of public jurisprudence, and the science of the
publicist-jus gentis publicum.(d)
V. The internal relations of a state may, generally speaking, be varied
or modified without the consent of other states-aliis inconsultis.(e)
VI. But in the great community of the world, in the society of
societies, states are placed in relations with each *other, as indi[   ] viduals are with each other in the particular society to which they
bclong.(f)  These are the external relations of States.
VII. As it is ordained by God that the individual man should atta{n
to the full development of his faculties through his intercourse with other
men, and that so a people should be formed,(g) so it is divinely appointed
that each individual society should reach that degree of perfection of
which it is capable, through its intercourse with other societies.
To move, and live, and have its being in the great community of
nations, is as much the normal condition of a single nation, as to live in
a social state is the normal condition of a single man.
VIII. From  the nature then of States, as from  the nature of individuals, certain rights and obligations towards each other necessarily
spring; these are defined and governed by certain laws.(h)
IX. These are the laws which form the bond of justice between
Puffendorff adopted this view. —Ib. 3. 13.
Wolff, Prsef.: ":Enimvero cum gentes sint personae morales ac ideo nonnisi
subjecta certorum jurium et obligationunm."
"Puis done qu'une nation doit' sa mani6re X un autre nation ce qu'un homme
doit a un autre homme," &c. —Vattel, Droit des Gens, liv. ii. ch. 1, s. 3; 1" Celle
qui a tort p~che contre sa conscience. "-Ib. Prelim. s. 21.
(c) D'Aguesseau, ib.
Blume, Deutsches Privatrecht, s. 19: " Der Staat-als ideale Person wird er
sum lebedigen Trager des gesamten offentlichen Rechts."
Puchta, Cursus der Institutionen, s. 25, b. 73, 4.
(d) " The Law which belongeth unto each nation-the law that concerneth the
fellowship of all."-Hooker's Ecclesiastical Polity, b. i. s. 16.'" Publicum jus est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem." —Ulpian, Dig. lib. i. t. i. s. 2, De Just. et Jure.
(e) Hoc autem non est jus illud gentium propri6 dictum; neque enim pertinet
ad mutuam inter se societatem, sed ad cujusque populi tranquillitatem: unde et
ab uno populo aliis inconsultis mutari potuit," &c.-Grotius, de Jure Belli et Pacis,
lib. xi. ch. 8, s. 2.
(f) "Ex hoc jure gentium  introducta bella, discrete gentes, regna condita,
dominia distincta." -Dig. lib. i. tit. i. s. 5.
Jus Gentium however, here as elsewhere in the Roman Law, means Natural
Law.-Grot. de J. B. et. P. lib. ii. c. viii. tit.. i. 26.
Savigny, R. R. b. 1. App.          Taylor's Civil Law, 128.
(g) Puchta, Cursus der Institutionen, i. s. 25, b. 73.
1" That Law which is of commerce between grand Societies, the Law of Nations
and of Nations Christian."-Hooker, ib.
(h) "Si nulla est communitas quse sine jure conservari possit, quod memorabili
latronem exemplo probabat Aristoteles; certo et illa quma genus humanum ant
populos complures inter se colliget, jure indiget." —Grot. Proleg. 23; Vattel,
Prdlim, s. 11.




IN TROD UCTIO N..49
nations, " qume societatis humande vinculum continent,"(i) and which are
the subject of international jurisprudence, and the science of the international lawyer —jus inter gentes.(j)
*"' The strength and virtue of that law (it has been well said)
are such that no particular nation can lawfully prejudice the same [ 4]
by any their several laws and ordinances, more than a man by his private resolutions the law of the whole commonwealth or state wherein he
liveth; for as civil law, being the act of the whole body politic, doth
therefore overrule each several part of the same body, so there is no
reason that any one commonwealth of itself should to the prejudice of
another annihilate that whereupon the whole world hath agreed.(k)
X. To clothe with reality the abstract idea of justice, to secure by law
within its own territories the maintenance of right against the aggression
of the individual wrong-doer, is the primary object of a State, the great
duty of each separate society.
To secure by law, throughout the world,(g) the maintenance of right
against the aggression of the national wrong-doer, is the primary object
of the commonwealth of states, and the great duty of the society of
societies. Obedience to the law is as necessary for the liberty of states
as it is for the liberty *of individuals.  Of both it may be said
with equal truth, "; legumn idcirco omnes servi sumus ut liberi esse [5 ]
possumus."(m)
XI. It has been said that States are capable of rights, and liable to
obligations; but it must be remembered that they can never be the subjects of criminal law.(n)  To speak of inflicting punishment upon a
(i) Grot. de Jure B. et P. 1. ii. 26.
(j) It is to the English civilian Zouch that we owe the introduction of this
correct phrase, the forerunner of the terms International Law, now in general
use.-See Von Ompteda, Litteratur der Volkerrecht, s. 64.
D'Aguesseau afterwards adopted the phrase jus inter gentes.-Tom. i. 444, 521;
Instit. an Droit Public, vii. 2 partie, 1.
(k) Hooker, ib., b. 1, s. 10.
~ "Dicitur ergo humana lex quia proximb ab hominibus inventa et posita est.
Dico autem p9roximc quia primordialiter omnis lex humana derivatur aliquo modo
a lege eternh."-Suarez, Tractatus de Legibus et Deo legislatore, c. 3, p. 12 (ed.
Lond. 1679.):' Omnes populi qui legibus et moribus reguntur, partim sueo proprio, partim
communi omnium hominum jure utuntur; nam quod quisque populus ipse sibi
jus constituit, id ipsius propriumn  civitatis est: vocaturque jus civile, quasi jus
proprium ipsius civitatis. Quod vero naturalis ratio inter omnes homines constituit, id apud omnes pernqu6 custoditur; vocaturque jus gentium, quasi quo
jure omnes gentes utuntur." —Dig. lib. i. tit. i. s. 9.
(1) "' Dieselbe Kraft welche das Recht hervortreibt, bildet auch den Staat, ohne
welchen das Recht nur ein unvollstindiges Daseyn, cine prekare Existenz hatte,
ohne den der gemeine Wille, auf dem das Recht beruht, mehr ein Wunsch, als ein
wirklicher, kr/iftiger Wille seyn wiirde."-Puchta, Instit. xi. 27.
" Dennoch ist seine erste und unabweisliche Aufgabe die Idee des Rechts in der
sichtbaren Welt herrschend zu machen." —Savigny, R. R. b. 1, k. ii. s. 9, 25.
(mz) Cic. pro Cluentio, 53. "Der Staat ist die Anstalt zur Beherrschung des
Rechtes in einem bestimmten Volke, das h6chste Rechtsinstitut dieser Nation." —
Kaltenborn, Volkerrecht, 259.
(n) Savigny, R. R., 2, 94-96, has some excellent remarks on the analogous subject of the capacities and liabilities of corporations in a state.
See Pinheiro Ferreira's Commentaries on Vattel, wherever the word "ppunir"
occurs.




50   PHILLIMORE ON INTERNATIONAL LAW.
State, is to mistake both the principles of criminal jurisprudence and the
nature of the legal personality of a corporation.  Criminal law is concerned with a natural person; a being of thought, feeling, and will.  A
legal person is not, strictly speaking, a being of these attributes, though,
through the medium  of representation and of government, the will of
certain individuals is considered as the will of the corporation; but only
for certain purposes.  There must be individual will to found the jurisdiction of criminal law.   Will by representcation cannot found that
jurisdiction. Nor is this proposition inconsistent with that which ascribes
to States a capacity of civil rights, and a liability to civil obligations.
This capacity and liability require for their subject only a will competent to acquire and possess property, and the rights belonging to it.  A
legal as well as a natural person has this will.  The greatest corporation
of all, the State, has this will in a still greater degree than the minor
subordinate corporations-the creatures of its own municipal law.  The
attribute of this limited will is consistent with the idea and object of a
legal person. But the attribute of the unlimited will, requisite for the
commission of a crime, is wholly inconsistent with this idea and object.
The mistake respecting the liability of nations to *p2uishment,
*[   ] which appears in Grotius and Vattel, arises from two causes: First,
from an indistinct and inaccurate conception of the true character of a
State; secondly, from confounding the individual rulers or ministers with
that of the nation which they govern or represent. The error may be
fairly illustrated by an analogy drawn from municipal law. Lunatics
and minors, like corporations, have no nzatural capacity of acting; an
artificial capacity is therefore vested in their representatives, their guardians or curators.  The lunatics and minors are rendered, by the acts of
these representatives, capable of civil rights, and liable to civil obligations; but the possibility of their being rendered liable to _punishment
for the vicarious commission of crime, is a proposition as yet unknown
to any human code of municipal law.  Justice and law lay down the
rule: " Ut noxa tantum caput sequatur."(o)  It does not militate with
this doctrine, to maintain that a Stat;e may be injured and insulted by
another; may seek redress by war, or may require the deposition of the
ruler, or the exile of the representative of another State; or may deprive
a State of its territory, wholly or in part.  These measures may be
necessary to preserve its own personality and existence, the welfare of
other States, and the peace of the world, and on these grounds, but upon
no other, they may be defensible.  These acts, when lawful, are acts,
directly or indirectly, of self-defence, not of punishment. It has happened, that corporations have been subjected to calamities which at first
sight resemble punishments.(p)  Municipalities have been deprived of
(o) It is hardly necessary to say, that the awful question of God's dealing with
sinful nations does not enter into this discussion.
", Nunquam curia a provinciarum rectoribus generali condemnatione mulctentur,
curi utique hoc et oequitas suadeat et regula juris antiqui, ut nozo tantumn caput
sequatur, ne propter unius fortasse delictum alii dispendiis affligantur."-Nov. Majoriani, tit. 7; Hugo Jus Civile Antejust. p. 1386, s. 4: cited Savigny, R. R. 2, 321.
(p) Savigny, R. R. 2, 318.




INTRO DUC TION.                                51
their legal personality, or have been stripped of their ~honours and
privileges, as regiments have been deprived of their colours.  But C   3
these acts, duly considered, are acts of the politician, not of a judge.(g)
We read in Roman history of the punishment inflicted upon the city
of Capua, which had revolted from Rome, and become the ally of Hannibal.  Reconquered Capua was stained with the blood of her eminent
citizens, and disfranchised of all her corporate privileges.(r)  But this,
and other less remarkable instances of the like kind in Roman history,
did not purport to be, and were not judicial applications of criminal law;
but were rather acts of state policy, intended to strike a salutary terror
equally into foes and subjects.(s)
A very different principle appears in the pages of Roman jurisprudence, in which the obligation arising from the commission of a crimeobligatio ex delicto-is distinguished from the obligation arising from the
possession of a benefit obtained by the commission of a crime-obligctio
ex re, ex eo quod ad aliquenm pervenit.(t)  The latter, but not the former obligation may bind a corporate body.
Under what circumstances States become responsible for the guilty
acts of their individual members,(u) will be considered *hereafter.
But even in these cases the State is not punishable, though liable [8 ]
to make compensation for the injury which it has sanctioned.
XII. Vattel describes with simplicity and truth the province of Inter(q) Livy, lib. xxvi. c. 16: De supplicio componi,"' &c.
C. 17: " Quod ad suppliciumn, ad expetendas penas,"' &c.
(r) C. 17: " Cceterum habitari tantum, tanquam urbem, Capuam, frequentarique
placuit: corpus nullum civitatis, nec senatus, nec plebis concilium, nec magistratus
esse sine consilio publico, sine imperio, multitudinem, nullius rei inter se sociam,
ad consensum inhabilem fore."
(s) C. 17: " Confessio expressa hosti quanta vis in Romanis ad expetendas ponzas
ab infidelibus sociis, et quam nihil in Annibale auxilii ad receptos in fidem tuendos esset."
(t) Dig. xliii. t. xvi. s. 4: " De vi.-Si vi me dejecerit quis nomine municipum
in mnunicipes mihi interdictum reddendum Pomponins ait, si quid, ad eos yervenit."
(st) " Solere pcnce expetendte causa bella suscipi, et supra ostendimus et passim
docent histori~t: ac plerumque hmc causa cum altera de damno reparando conjuncta est, quando idem actus et vitiosus fuit et damnum reipsa intulit, ex quibus
duabus qualitatibus dum diversia nascuntur obligationes."-Grotius, lib. ii. c. 20,
s. 28.'" Sciendum quoque est, reges, et qui par regibus jus obtinent, jus habere pcenas
poscendi non tantum ob injurias in se ant subditos suos commissas, sed et ob eas
qune ipsos peculiariter non tangunt, sed in quibus vis personis jus natura anut gentium immaniter violant."-Ib. lib. ii. c. 20, s. 40.
1"Et eatenus sententiam  sequimur Innocentii, et aliorum qui bello agunt peti
posse eos qui in naturam  delinquunt: contra quam sentiunt Victoria, Vasquius,
Azorius, Molina, alii, qui ad justitiam belli requirere videntur, ut qui suscipit anut
lesus sit, in se anut republica su, anut ut in euml qui bello impetitur jurisdictionem
habeat. Ponunt enim illipuniendi potestatem esse effectum proprium jurisdictionis civilis, cum nos eaml sentiamus venire etiam aejure naturali, qua de re aliquid
diximus libri primi initio. Et sane si illorum a quibus dissentimus admittatur sententia, jam hostis in hostem puniendi jus non habebit, etiam post just6 susceptum
belllum ex caush non punitivd: quod tamen jus plerique concedunt, et usus, omnium
gentium confirmat, non tantum postquam debellatum est, sed et manente bello; non
ex ulla jurisdictione civili, sed ex illo jure naturali quod et ante institutes civitates
fuit, et nunC etiam viget, quibus in locis homines, vivunt in familias non in civitates distributi."-Ib. lib. ii. c. 20, s. 40 (4).
C. 21: " De communicatione polznaun."




52       PHI LLIM ORE  ON  INTERNATIONAL  LAW.
national Jurisprudence: "Le droit des Gens" (he says) c est la science
du droit qui a lieu ent2re les Nations et les Etats, et des obligations qui
r6pondent a ce droit."(x)
The same favourite expounder of International Law does not hesitate
to class among these obligations binding upon the national conscience,
the duty of succouring another nation unjustly invaded and oppressed.
The fact that no defensive alliance formally subsists between the two
nations cannot, he says, be alleged as an excuse for the neglect of this
duty. The nation that renders the succour, is keeping alive that benevolent spirit of mutual assistance, the application of which she herself
may one day need.  To perform  her duty to another is, in truth, to
strengthen the foundations of her own security; and in the case of the
nation, *as in the case of the individual, duty and true self-love
['9 ] point to the same path.(y)
The whole edifice of this science, pronounced by the still higher authority of Grotius to be the noblest department of jurisprudenee,(z) may be
said to rest upon the sure foundations-first, of moral truth; and, secondly, of historical fact:1. The former demonstrates that independent communities are free
moral agents.
2. The latter, that they are mutually recognized as such in the universal community of which they are individual members. (a)
[*10]                    *ICHAPTER  II.
PLAN OF THE WORK.
XIII. A  TREATISE on International Jurisprudence appears to admit
of the following general arrangement:(x) Prelim. s. 3.
(y) " Ainsi quand un Etat voisin est injustement attaqu6 par un ennemi puissant,
qui menace de l'opprimer, si vons pouvez le d6fendre sans vons exposer'a un grand
danger, il n'est pas douteux que vous ne deviez le faire. N'objectez point qu'il
n'est pas permis a un sounverain d'exposer la vi de ses soldats pour le salut d'un
Stranger, avec qu'il n'aura contracte aucune alliance defensive. I1 pent lui-m6me
se trouver dans le cas d'avoir besoin de secours; et par consequent mettre en vigueur cet esprit d'assistance mutuelle, c'est travailler an salut de sa propre Nation."-Liv. ii. c. i. s. 4.'(z) Grotius, Proleg. 32: " In hoc opere quod partern jurisprudentime longe nobilissimam continet."'
Aristoteles, Eth. lib. i. c. 2: "'Ayare7rTv fuy Kai &vi 1iiOx KaiAIov & Kat 06t06repov'OvEl
Kai 7r6Xotl.)"
(a) Domat, Traite des Lois, c. xi. s. 30.
KaItenborn, Kritik des Volkerrechts, s. 295.
"' Possunt autem gentium proecepta ad unum principium revocari, quo quasi fundamento suo nituntur. Oportet enim esse gentes vel respublicas, quse se invicem
ut liberas et sui juris nationes agnoscunt.  liac agnitione sine qua jus gentium no
cogitari quidem potest efficitur, ut illie civitates personarunb ad instar habeantur,
quze non minus quam singuli homines caput habentes suo jure utuntur, et mutuo
juris vinculo inter sejunguntur. Huj us vinculi definitio atque ponderatio juris gentium argumentum est."-Doctrina Juris Philosophica, &c., Warakoenig, s. 145, p.
189.




PLAN OF THE WORK.                              53
1. An inquiry into the origin and nature of the Laws which govern
international relations (leges.)
2. The Subjects of these laws. The original and immediate subjects
are States considered in their corporate character.
3. The Objects of these laws. These objects are Things, Rights, and
the Obligations which correspond to them (Res, Joura, Obligationes.)
4. (ertain Subjects of these laws which, though only to be accounted
as such mediately and derivatively, yet, for the sake of convenience, require a separate consideration.
These Subjects of International Law are the following individuals who
are said to represent a state: —
1. Sovereigns.
2. Ambassadors.
Also another class of public officers who are not clothed, accurately
speaking, with a representative character, but who are entitled to a quasi
diplomatic position, namely3. Consuls.
4. Lastly, the International Status of Foreign Spiritual Powers,
especially of the Pope, requires a distinct consideration.
XIV. Public International Rights, like the Private Rights of an Individual, are capable of being protected and enforced by Legal Means.
*These Legal Means are of two kinds, aptly expressed by jur- 11 ]
ists as being (1) viai amicabili, and (2) viacfacti.
1. Negotiation.
1. Via amicabili.         1. Negotiation.
{ 2. Arbitration.
f 1. Reprisals.
2. Via facti.         r   2. Embargo.
3. War.
When war has actually begun, we enter upon the jus belli, which is to
be considered with reference to
1. The Rights of Belligerents;
2. The Rights of Neutrals"t Sequitur enim  de jure belli: in quo et suscipiendo, et gerenzclo et deponendlo, jus, ut plurimum valet, et fides.(a) For the wars (as Lord
Bacon says) are no massacres and confusions, but they are the highest
trials of right."(b)
Grotius points out, with his usual sound and true philosophy, the proper place, object, and functions of war in the system  of International
Law:(c) " Tanturn  vero abest ut admittendum sit, quod quidam fingunt,
in bello omnia jura cessare, ut nec suscipi bellumn  debeat nisi ad juris
consecutionem, nec susceptum geri nisi intra juris et fidei modumn.  Bene
Demosthenes bellum  esse in eos dixit, qui judiciis coerceri nequeunt;
judicia enim vigent adversus eos qui invalidiores se sentiunt: in eos qui
(a) Cicero de Rep. lib. ii. c. 14; and he adds, " horumque ut publici interpretes
essent lege sanximus."
(b) Bacon's Works, vol. v. p. 384 (ed. Basil MIontagu.)
(c) Grotii Proleg. 25, De Jure Belli et Pacis; though he illogicially misplaces
the treatment of it in his great work, beginning, as indeed he admits, with the end
of his subject.




54    PHILLIMORE ON INTERNATIONAL LAW.
pares se faciunt aut putant, bella sumuntur; sed nimirum ut recta sint,
non minori religione exercenda quarm jldicia exerceri solent;" and again,
" bellurmpacis causd suscipitur."(d)
2  XV. When by use of the Legal Means of War the *Right has
1[ 12] been obtained or secured, or the Inquiry redressed-post juris
consecutionem —the normal state of peace is re-established.
A consideration of the negotiations which precede, and the consequences which follow, the Ratification of Peace will conclude that portion of this work which relates to Public International Law.
XVI. We have hitherto spoken of Public International Law (jus publicum inter gentes-ju6s pacis,) which governs the mutual relations of
States with respect to their Public Rights and Duties; but, as States are
composed of Individuals, and as individuals are impelled by nature and
allowed by usage to visit and to dwell in states in which they were not
born, and to which they do not owe a natural allegiance, and as they
must and do enter inter transactions and contract obligations, civil,
moral, and religious, with the inhabitants of other states, and as States
must take some cognizance of these transactions and obligations, and as
the municipal law of the country cannot, in many instances at least, be
applied with justice to the relations subsisting between the native and
the foreigner-from these causes a system of Private International Law,
a.i"jus gentiumn privatumn," has sprung up, which has taken deep root
among Christian, though it more or less exists among all, nations.
The distinction, however, between the two branches of International
Jurisprudence is exremely important.  It is this:The obligationes juris privati inter gentes are not —as the obligationes
juris publici inter gentes are-the result of legal necessity, but of social
convenience, and they are called by the name of Comity-comitas gentUzlm.
It is within the absolute competence of a State to refuse permission
to foreigners to enter into transactions with its subjects, or to allow them
to do so, being forewarned that the *municipal law of the land
['13 ] will be applied to them;(e) therefore a breach of comity cannot,
strictly speaking, furnish casus belli, or justify a recourse to war, any
more than a discourtesy or breach of a natural duty, simply as such, can
furnish ground for the private agtion of one individual against another.(f)
For a want of Comity towards the individual subjects of a foreign
State, reciprocity of treatment by the State whose subject has been injured, is, after remonstrance has been exhausted, the only legitimate
remedy; whereas the breach of a rule of Public International Law constitutes a casus belli, and justifies in the last resort a recourse to war.
(d) Ib. lib. i. c. i. s. 1.
" Le mal que nous faisons a l'agresseur n'est point notre but: nous agissons en
vue de notre salut, nous usons de notre droit; et l'agresseur est seul coupable du
mal qu'il s'attire." -Vattel, liv. ii. c. ii. s. 18.
Taylor's Civil Law, p. 131.
(e) Neyron, Principes du Droit des Gens Europ6ens, 1. clxxi. c. vi. s. 177.
Barbeyrac, Ad Grotium, 1. ii. c. ii. s. 13.
(f) Vattel, liv. ii. c. i. s. 10.




SOURCES OF INTERNATIONAL LAW.                            55
It is proposed to treat the subject of Comity or Private International
Law next in order to the subject of Public International Law.
*CHAPTER III.                            [*14
SOURCES OF INTERNATIONAL LAW.
XVII. IT is proposed in this chapter to trace the source and ascertain
the character of those laws which govern the mutual relations of independent States in their intercourse with each other.
XVIII. International Law has been said, by one profoundly conversant with this branch of jurisprudence, to be made up of a good deal of
complex reasoning, and though derived from very simple principles,
altogether to comprise a very artificial system.(a)
XIX. What are the depositories of this reasoning and these principles?
What are the authorities to which reference must be made for the adjustment of disputes arising upon their construction, or their application
to particular instances? What are in fact the fountains of International
Jurisprudence —"dijudicationum  fontes?" —to borrow the just expression of Grotius.  These are questions which meet us on the threshold
of this science, and which require as precise and definite an answer as
the peculiar nature of the subject will permit.(b)
XX. Grotius enumerates. these sources as being "ijsa natura, leges
divince, mores, et pacta."(c)
In 1753, the British Government made an answer to a memorial of
the Prussian government(d) which was termed *by Montesquieu
rfelonse sans replique,(e) and which has been generally recognised [*15
as one of the ablest expositions of international law ever embodied in a
State paper.  In this memorable document, c"Thb Law of Nations" is
said to be " founded upon justice, equity, convenience, and the reason of
the thing, and confirmed by long usage."
XXI. These two statements may be said to embrace the substance of
all that can be said on this subject. An attempt must now be made to
examine in detail, though not precisely in the same order, each of the
individual sources set forth in the foregoing citations.
XXII. Moral persons are governed partly by Divine law (leyes cZivince,)
which includes natural law-partly, by positive instituted human law,
which includes written and unwritten law or custom (jus scripttum, non
scriptzum  consuetudo.)
(a) Lord Stowell: the Hurtige lIane, 3 Robinson, Adm. R. 326.
(b) Arist. Eth. lib. i. c. 2: " lE7Eraevltov yCip ErOTLv Eri 7oo0rov 7dKptPA5 Eb1re7-reLv
Kae' cCKarov ybvo5 E o'brov 7'1 rov rpylparog bc5s brtleasr)al 7rapaerXiotov yhp oatvrerat, taO27JparCKOv re rtOavoXoyoivrog d7roUXEOBat,  Kait pn7OptOKV droEsf:etS d7rBatrEYV.
(c) Prolegom.: " By the Law of Nature and Nations and by the Law Divine,
which is the perfection of the other two."-Lord Bacon, Of an Holy War.
(d) Cabinet of Scarce and Celebrated Tracts, 1 vol. (Edinburgh).
(e) Lettres Persannes, liv. xlv.




56    PHILLIMORE ON INTERNATIONAL LAW.
States, it has been said, are reciprocally recognized as moral persons.
States are therefore governed, in their mutual relations, partly by Divine,
and partly by positive law.  Divine Law is either (1) that which is written by the finger of God on the heart of man, when it is called Natural
Law; or (2) that which has been miraculously made known to him, when
it is called revealed, or Christian law.(f)
XXIII. The Primary Source, then, of International Jurisprudence is
Divine Law. Of the two branches of Divine Law which have been
mentioned, natural law, called by jurists jus primarium, is to be first
considered.  " In jure gentium,"(g) Grotius says, c" jus naturn3 includitur;" and, again, "jure primo gentium  quod et naturale dicitur."
All civilized heathen nations have recognized this law as binding upon
themselves in their internal relations. They called it the unwritten, the
innate law —the law of which *mortals had a Divine intuition(h)
I  — the law which was begotten and had its footsteps in heaven,
which could not be altered by human will,(i) which secured the sanctity
of all obligations —the law which natural reason has rendered binding
upon all mankind.(k)
XXIV. It has been often said that the civilized  heathen nations of
old, that the Greeks and Romans recognized no such law in their external relations; that is, in their intercourse with themselves or with other
nations.   But this conclusion is founded on slender and insufficient premises, chiefly upon the absence of distinct treatises on the subject, on
the want of a distinct phrase expressing the modern term international
law-on the etymological meaning of words —on the use of v; jus gentium " in the repositories of Roman law, as an expression identical with
jus naturce-and on the practical contempt for the law, exhibited in the
unbounded ambition and unjustifiable conquests of ancient Rome.
XXV. Nevertheless, we know that Aristotle(l) wrote a treatise on the
justifying causes of war; and we read, in one of his works, a severe censure upon those nations who would confine the cultivation of justice
within the limits of their own territories, and neglect the exercise of it
in their intercourse with other nations.(m)  Thucydides(n) prefers the
same charge against the Lacedaemonians, which is repeated *by
Plutarch;(o) and we find Plato demanding,(p) with indignation,
(f) Arist. Eth. lib. v. e. T. St. Paul's Ep. to the Romans, ii. 14, 15.
(g) Mare Liberum, lib. v.; Merlin Rep. de Jurispr. tom. v. p. 291.
(h) Arist. Rhet., b. i. c. 13: " "I&dov y0v T/ov IKCaroLGS ptcILEVO  71p0S avrovgS'  ait rouroy
Yv tdoU  liypaqov, 7t' &g yeypapopvov.  Kotvv As r&op Kata 0rgtv u't' yf'rt y7p, 8 toavraEovoat T
r'vrrs-, pCot K KOV GV tiaov Cat Ka tov) Iao v Knzld$ilsa KovwyLVa p rpvs dXXiXovs,, o  CVil 0K:.2
(i) Soph. Antig. v. 450-7; "UTroles- v6po." — CEd. Tyr. 836.
(k) Cic. Pro Milone, 3; De Rep. 1. iii. c. 22.
(1) AttrKaotlara T-rv 7roXVlotJV.
(m) "'Avrot Pilt' yyp zrap iv7ror rd -  KtlruOg pKStLY cSTOIvo -ipsdi ci r7oSl 0 XXovs  OUdCe ftXe
reYV ltKacoVy." —Polit. lib. vii. c. 2. And when he is discussing the different ends of
different kinds of oratory, and observing that the speaker in the public assembly
dwells on the inexpediency and not the immorality of a particular course of action:
LOCS I' ovK aolov ron oy darvyeirovas raradovXo~Oae  Kraei roos ip8,v  dtclKovtvras; roXXLKL5  v(Jd'
ppovrr7ovoet."I-Rhet. tom. i. c. 3.
(n) Thucyd. lib. v.
(o) Plutarch: Vita Agesilai.
(p) "; II6Xt' aen alt aiov o sivea al gal   -Xtag 7rocs rXetpesy ZovXorcOat d[KgOg Kat eara



SOURCES OF INTERNATIONAL LAW.                                 57
whether it was reasonable  to suppose that any society could flourish
which did not respect the rights of other societies.  We find Euripides
speaking of the natural equality of rights as binding city to city, and
ally to ally.(q)  We find Themistocles claiming  the right, cccomnuzni
jure getiunt,"' of placing Athens in a state of defence.Q()  We find that
the rights of embassy were respected-that treaties were ratified  by
solemn sacrifices,(s) and placed under the especial care of the deities who
avenged  violated faith.   We  read  of the memorable Amphictyonic
league, which constituted the tribunal of public international law for
Greece.  These and other historical facts demonstrate that the application of the principles of natural justice to international relations, however imperfectly executed, and though never, perhaps, reduced to a system, was not unknown to Greece.(t)
XXVIII.  We are led with yet more certainty to this conclusion with
respect to Rome, by the consideration of two remarkable institutions
which existed there:-1. The Collegium  Fecialium, with the Jus Feciale,(u) which could not *be better translated than by the words   18
"' Public International Law."  2. The institution of the Recupe- [           ]
ratores, with the doctrine of the Reculpercatio, the precursor of that system which is now  called " Private International Law."   Traces of the
same fact are abundantly scattered over the pages of Latin authors, legal,
historical, and  philosophical.  The phrase,j'us gentium," in classical
writers, and in the Justinian compilations of law, is indeed generally
(though not without exceptions) used as synonymous with natural
law;(x) for there are passages in these compilations, as well as in the
pages of Sallust and Livy, in which the phrase, strictly speaking, denotes
international law.  The fact, moreover, that the expression  ljus gentiHum" was used as synonymous with what is now called,"jus n2atacrale,"
is by no means inconsistent with the position, that the principles of
natural law were, theoretically at least, recognised by Rome in her external as well as her internal relations.(y)
&diovXh(rOat 7roXX)aS iE Kcai (p' Eavr~7'~Xetv JovXooCapEvrv; 7ri(g, yap ov U; E..'aXXat d7 K1 tai T6E [o  ipto-at Kac Xiyje' JOKte aIv 77 [6ntv, i c OrpardTTrelov, i X rlo'rr i KXITTr7a
j amXXo Tr E'Oog, So-a KotV# Eisri rt'pxerat dfK(OJo 7rpdat av -Ct EiVao-Oa-t Ei daiuKOZes diXsXovX;
ot 34ra  6' 0' rti a' ECt pi aIzsKOECv; o pIaXouv Have Y7c2" K. r. X. —De Rep. lib. i. pp. 77,
78, ed. 1829. Gothae et Erfordia.
(q)  IKETvo KtiXXtov) rEKvov
i6Cdrra rp,  tliV S SXOV;US  di iXotiS
rdXES T E 7TdsEt CVCttXovg re - Svpp[AXotls
ovvseZ, 7O yap Yrov v6pOtiov  dAvOpoJrost Sv."
oOtvLo-Cat 535.
(r) Cornelius Nepos, Vita Themistoc.            (s) Livy, 1. xxiv.
(t) See Appendix for a fuller dissertation upon this subject.
(ui) Zouch's Treatise on International Law is entitled, " De Jure Feciali, sivre de
Jure inter Gentes."
(x) Puchta, Instit. 362. See Appendix.
(y) Taylor, p. 128.'The law was natural law before: the existence of this
situation only gives it use and application. Suppose the observance of faith to
be a rule of nature: when, to speak in the language of the Schools, it is lJus
Natures ab origine et caustd p2roxim, it is Jus Gentium a stubjecto."  And again:
" Contracts were introduced by the law of nations; no new law is formed, but an
eternal and necessary law has now a scene to exert its operations in."
JULY, 185. —5




58       P H ILLIMORE  ON  INTERNATIONAL  LAW.
A cursory reference to the works of Cicero alone will show that in his
time, and before the destruction of the Republic, the science of International Law was beginning to receive great cultivation in all its
branches; nor can the necessity and duty of international obligations be
more forcibly inculcated than in these words: a Qui civium  rationem
habendam  dicunt, exterorum  negant, hi communionem  et societatem  hu.
nmani generis dirimnunt."
Cicero praises Pompey for being well versed, not only in what is now
called Conventional or Diplomatic Law, but also in the whole jurisprudence relating to Peace and War.
Cicero maintains, that God has given to all men conscience and intel*19 1 lect; that where these exist, a law exists, of which *all men are
common subjects.  Where there is a common  law, he argues,
there is a comvmon right, binding more closely and visibly upon the
members of each separate State, but so knitting together the Universe,
1 ut jam  universus hie mundus una civitas sit, communis Deorum atque
hominum  existimanda."(z)
That law, this great Jurist says, is immortal and unalterable by prince
or people, and in glowing language he anticipates the time when one
law and one God will govern the world: "'Neque erit alia lex Rome,
alia Athenis, alia nunc, alia posthac; sed et omnes gentes et omni tempore una lex et sempiternl et immutabilis continebit, unusque erit communis quasi magister et imperator omnium Deus."(a)
XXIX. The subject which has been just discussed is not one of mere
literary curiosity or philosophical research.  It has indirectly a practical
20  bearing on the theme of this *treatise.  The same school which
[* 20 ] denies that the polished nations of antiquity recognised international obligations, uses the assumed fact as an illustration of a further
and more general position, namely-a denial that any general International Law, not the result of positive compact, exists between Christian
nations and those which are not Christian.
XXX. This position, it will be seen, directly conflicts with the prin(z) De Rep. Seneca, the contemporary of St. Paul, breathes in his Epistles the
the very spirit of Christian brotherhood and unity: " Philosophia docuit colere
divina humana diligere, et penes Deos imperium esse inter honmines consortium." (Ep.
95.) "l Iomo, sacra res homini-omne hoc quod vides, quo divina atque humana
conclusa sunt, unum est: mzembra sumus corporis magni, naturc nos cognatos edidit,
qulm ex iisdem et in eadem gigneret. HMec nobis amorem dedit mutuuum et sociabiles'frcit."  (Ep. 90.)
Troplong: De l'Influence du Christianisme sur le Droit Civil des Romains.P. 70, &c.
" Homo sum: humani nihil a me alienum puto," is the language which Terence
puts into the mouth of one of his characters.-Heautontimor: act i. sc. i. 25.
(a) De Rep. lib. iii. c. xxii. See also De Legibus (lib. i. c. vii.), and a noble
passage (lib. i. c. xxiii.), where he bids his hearer elevate his mind to the prospect of the universe, its rules, and its laws: "Seseque non unius circumdatum
mcenibus loci, sed civem totius mundi quasi unius urbis agnoverit."
" Of Law there can be no less acknowledged than that her seat is the bosom of
G od, her voice the harmony of the world; all things in heaven and earth do her
homage-the very least as feeling her care, and the greatest as not exempted
from her power; both angels and men, and creatures of what condition soever,
though each in different sort and manner, yet all with uniform consent, admiring
her as the mother of their peace and joy."-Hooker, ib. b. i.




SOURCES OF INTERNATIONAL LAW.                            59
ciple just enunciated; and, on the contrary, the first important consequence which flows from the influence of Natural upon International Law
is, that the latter is not confined in its application to the intercourse of
Christian nations, still less, as it has been affirmed, of European nations,
but that it subsists between Christian and Heathen, and even between
two Heathen nations, though in a vaguer manner and less perfect condition than between two Christian communities; so that whenever communities come into contact with each other, before usage or custom has
ripened into a quasi contract, and before positive compacts have sprung
up between them, their intercourse is subject to a Law.(b)
Lord Stowell, in one of those judgments in the British High Court of
Admiralty which contain a masterly exposition of the principles of International Jurisprudence, speaking of the Mahometan States in Africa,
observed, "It is by the law of treaty only that these nations hold themselves *bound, conceiving (as some other people have foolishly
imagined) that there is no other law of nations, but that which [      ]
is derived for positive compact and convention."(c) The true principle
is clearly stated in the manifesto of Great Britain to Russia, in 1780:
"- His Majesty," it is said in that state paper, " has acted towards
friendly and mutual powers according to their own procedure respecting
Great Britain, and conformable to the clearest principles generally
acknowledged as the Law of Nations, being the only law  between powers where no treaties subsist, and agreeable to the tenor of his different
engagements with others; those engagements have altered this primitive
law by mutual stipulations proportioned to the will and convenience of
the contracting parties."(d)
Montesquieu was not ignorant, as has been supposed, of the science of
International Law when he said, " Toutes les nations ont un droit des
gens; et les Iroquois memes qui Tangent leurs prisonniers en out un.
Ils envoient et recoivent des ambassades: ils connoissent des droits de
la guerre et de la paix: le mal est que ce droit des gens n'est pas fonda
sur les vrais principes."(e) In other words, these barbarous nations acknowledged, even while polluted by such abominations, that certain rules
were to be reciprocally observed in their intercourse with each other,
whether in Peace or War-even as the savages who practise infanticide
do homage to the Moral Law in holding ingratitude to be infamous.
(b) So Mr. Jenkinson (afterwards Earl of Liverpool,) in his able treatise " On
the Conduct of the Government of Great Britain in 1758," observes (p. 29)-"-I
shall therefore examine the right which neutral powers claim in this respect, first,
according to the law of nations-that is according to those principles of natural
law which are applicable to the conduct of nations, such as are approved by the
ablest writers and practised by states the most refined. I shall then consider the
alterations which have been made in this right by those treatise which have been
superadded to the law of nations, and which communities for their mutual benefit,
have established among themselves."
" Jus hoc (i. e. legationis) non ut jus naturale ex certis rationibus certo oritur,
sed ex voluntate gentium modum accipit."  Here the distinction between natural
and conventional international law is clearly laid down.-Grot. lib. ii. c. xviii. 4, 2.
(c) Robinson's Admiralty Reports (The Helena,) vol. iv. p. 7.
(d) Ann. Regis. vol. xxiii. p. 348, Manifesto of England to Russia, April 23d, 1780.
(e) Montesquieu, de l'Esprit des Lois, lib. i. c. iii.




60    PHILLIMORE ON INTERNATIONAL LAW.
In the same spirit an eminent writer on English Criminal Law,(f)
speaking of the immunities of Ambassadors, says: " But for murder and
other offences of great enormity, which are against the light of nature
and the fundamental laws of *all society, the pers ons mentioned
*[22 ] in this section are certainly liable to answer in the ordinary
course of justice, as other persons offending in the like manner are.  For
though they may be thought not to owe allegiance to the Sovereign, and
so to be incapable of committing high treason, yet they are to be considered as members of society, and consequently bound by that eternal
universal law by which all civil societies are united and kept togjether."(jg)
Vattel says: "cLes nations 6tant libres, indEpendantes, dgales, et chacune devant juger en sa conscience de ce qu'elle a' faire pour remplir
ces devoirs,  &c. celle qui a tort peche contre sa conscience." (h)
XXXI. But if the precepts of Natural Law  are obligatory upon
Heathen States in their intercourse with each other, much more are they
binding upon Christian Governments in their intercourse with Heathen
States.
Infldel Nations indeed are, it has been frequently held, entitled, in the
absence of any compact, to an indulgent application of rules derived exclusively from the positive law and established custom of Christian
States,(i) though the application of rules even from these sources becomes
[*23 ]  more stringent as the intercourse increases between the Chris[*23 ] tian and the Infidel community.
The great point, however, to be established is, that the p9rincip2les of
international justice do govern, or ovght to govern, the dealings of the
Christian with the Infidel community. They are binding, for instance,
upon Great Britain, in her intercourse with the native powers of India;
upon France, with those of Africa; upon Russia, in her relations with
(f) Foster on Crown Law, p. 188; Ward's Law of Nations, vol. ii. p. 542. The
correctness of the application of this principle to the case of ambassadors will be
considered hereafter.
(g) See, in the Annual Register for 1840, vol. lxxxii. p. 429, the Chinese Commissioner's letter to the Queen of England, in which he recognises " the principles
of eternal justice" as binding between nations.
(h) Vattel Prdlim. s. 21.
(i) Lord Stowell speaks of the Ottoman Porte as a State long connected with
this country by ancient treaties, and at the present day (i. e. in 1802) by engagements of a peculiar nature. " But," he adds, " independently of such engagements,
it is well known that this Court is in the habit of showing something of a peculiar indulgence to persons of that part of the world. The inhabitants of those
countries are not possessors of exactly the same Law of Nations with ourselves.
In consideration of the peculiarities of their situation and character, the Court
has repeatedly expressed a disposition not to hold them bound to the utmost rigour
of that system of public laws on which European States have so long acted in
their intercourse with one another."-The AModanna del Burso, 4 Robinson's Adm.
Rep. p. 172.
And again he says: "It has been argued that it would be extremely hard on
persons residing in the kingdom of Morocco, if they should be held bound by all
the rules of the Law of Nations as it is practiced among European States. On
many accounts, undoubtedly, they are not to be so strictly considered on the same
footing as European merchants: they may, on some points of the Law of Nations,
be entitled to a very relaxed application of the principles established by long usage
between the States of Europe holding an intimate and constant intercourse with
each other." —The Hurtige Hane, 3 Robinson's Adm. Rep. p. 326.




SOURCES OF INTERNATIONAL  LAW.                               61
Persia or America; upon the United States of North America, in their
intercourse with the native Indians.(k)
The violation of these principles is indeed sometimes urged in support
of an opposite opinion, but to no purpose; for it is clear that the occasional vicious practice cannot affect the reality of the permanent duty.
XXXII. Unquestionably, however, the obligations of International
[Law attach with greater precision, distinctness, and accuracy to Christian
States in their commerce with each other.(1)  The common profession of
Christianity both *enforces the observance(m) of Natural Law,  24
and introduces, according to the language of Bartolus, a C slpeciale    24
jus gentisfidelis,"(n) a new and nmost important element into this as into
all other systems of jurisprudence; Christianity imparts a form and
colour of its own to those elements of public justice and morality which
it finds already existing in these systems, while it binds together by close
though invisible ties the different members of Christendomn, not destroying indeed their individuality, but constituting a common bond of reciprocal interest in the welfare of each other, in lieu of that exclusive
regard for isolated nationality, which was the chief, though certainly not
the sole end proposed to itself by the Heathen State.  The language of
the principal treaties of Europe fully recognizes this doctrine.(o)
(k) Hyder Ali was invited by France and England to accede to the treaty by
which the status quo atte bellum was established in India.-Wheaton's History of
Int. Law, p. 305.
Heineccius, in Grotium Przef. v. i. p. 14: " Quid vero si gens quoedam cum Turcis vel Sinensibus', &c.
"Now, having contended, as we still contend, that the Law of Nations is the
law of India as well as of Europe, because it is the law of reason and the law of
nature, drawn from the pure sources of morality, of public good, and of natural
equity, and recognised and digested into order by the labour of learned men, I
will refer your lordships to Vattel, b. i. c. xvi., where he treats of such engagements," &c.-Burke's Works, xv. 109, (Speech on the Impeachment of Warren
Hastings; Cranch's Reports (American,) vol. v. p. 1; Peters's Reports (American,)
vol. v. p. 1; Kent's Commentaries, vol. iii. p. 382; Wheaton's Elements du Droit
International, i. 50.
(1) The Canon Law, which is, with some exceptions, International Ecclesiastical
Law, took a distinct and especial cognizance of General International Law, and
valuable remarks upon it are to be found in the commentators on the Decretum.
Decret. Prima Pars, dist. i. c. ix:," Jus gentium est sedium occupatio, sedificatio,
munitio, bella, captivitates, servitutes, postliminia, foedera, paces, inducise, legatorum non violandorum  religio, connubia inter alienigenas prohibita (sect. 1.)
Hoc inde jus gentium appellatur, quia eo jure omnes fer6 gentes utuntur."  The
great Portuguese canonist, Barbosa, observes on this: " Si princeps velit veljus
gentium prinzmaium, vel secundariuin intra sui imperil limites abrogare, potestate sun
abuti censendus est." —Barbos. Collect. in c. ix. dist. i. See, too, Reiffenstuel and
Schmalzgrueber on the same passage in the Decretum.
(in) Clement the Fifth, in his Bull "Pastoralis," annulling the extraordinary
semi-legal procedure by which the Emperor Henry VII., meant to deprive Robert,
king of Naples of his kingdom, stated, among other reasons, that Robert had been
deprived of a natural right-viz., the means and opportunity of defending himself: " Per quas de crimine prmesertim sic quasi deleto defensionis (quc ca jure provenit naturali) facultas adimi valuisset;" a nd, he adds, " Curn illa imperatori tollere non
licuerit qua? juris naturalis existunt. "-Clement, 1. ii. t. xi.
(n)'" Si enim jus gentium de servitute captivorum in bello justo in Ecclesia mutatum est, et inter Christianos id non servatur ex antiqua Eclesiae consuetudine
quae est veluti specialejus gentis fidelis ut notavit Bartolus in 1. hostis ss de captivis, n. 16." —Suarez, Ib. c. xx. s. 8.
(o) Treaty of Westphalia (Munster,) 1648: " Au nom et a la gloire de Diezu soit




62    PHILLIMOIRE ON INTERNATIONAL LAW.
*25  *XXXIII. This would be called by many who have of late
[ *5] years written on the science, International Morality: they would
restrict the term Law absolutely and entirely to the treaties, the customs,
and the practice of nations.
If this were a mere question as to the theoretical arrangement of
the subject of International Law, it would be but of little importance;
and the disputes to which the different modes of treating the science have
given rise would perhaps be found, upon careful examination, to resolve
themselves for the most part into disagreements of a verbal character.
But it is of great practical importance to mark the subordination of the
law derived from the consent of States to the law derived from God.(p)
[*26 ]. XXXIV. One important practical inference from this position
[ 26 ] is, as has been shown, the necessary existence of International
Obligations between Christian and Heathen States. Another practical
consequence is, that the Law derived from the consent of Christian States
is restricted in its operation by the Divine Law; and just as it is not
morally competent to any individual State to make laws which are at
variance with the law of God, whether natural or revealed, so neither is
notoire i tous, &c.; eux Seigneurs Roi et Etats touches de compassion Chretienne
&c.; an bien non seulement des Pays-Bas, mais de toute la Chretiente convians
et prians les autres Princes et Potentats d'icelle de se laisser fiechir par la Grace
Divine / la mrme compassion," &c.-Schmauss, Corpus Jur. Gent. Acad. i. 614.
Treaty of Paris, 1763: " Au nom de la tr6s-sainte et indivisible Trinite, Pere,
Fils, et Saint Esprit, ainsi soit-il. Soit notoire a tous ceux qu'il appartiendra, &c.:
I1 a plu au fYbut-puissant de rdpondre l'esprit d'union et de concorde sur les Princes,
dont les divisions avaient port6 le trouble dans les quatres parties du monde, &c.
(Artic. 1). I1 y aura une Paix Chrietienne universelle et perpetuelle," &c.-Wenckii
Codex Juris Gentium, iii. 329.
Treaty of Utrecht, 1713:  "Quoniam visum est Deo optimo maximo, pro nominis sui gloria et salute universa, ad miserias desolati orbis jam suo in tempore medendas, ita regum animos dirigere ut mutuo pacis studio erga se invicem gerantur;
notum sit, &c.: Quod sub his Divinis auzspiciis Seren. ac Poten. Princeps et Domina
Anna, &c. &c., et S. ac P. Prin. et Dom. Ludovicus XIV., &c., totius Christiani orbis
tranquillitate prospicientes, &c. suo proprio motu et patern'a ea cura quam ergo
subditos suos et Rempublicam Christianam  exercere, amant," &c.-Schmauss, ii.
1312.
Treaty of Versailles, 1783, Art 1: " I1 y aura une Pair Chretienne universelle
et perpetuelle taunt par mer que par terre," &c.-Recueil de Traites et de Conventions, De Martens et De Cussy, i. 301.
Treaty of Vienna, 1815: " Au nom de la tr6s-sainte et indivisible Trinite.-De
MI. et C. iii. 61.
" Deux lois suffisent pour r6gler tout la republique Clhritienne, mieux que toutes les
lois politiques-l'amour de Dieu, et celui du prochain."-Pascal Pensees, part ii.
art. xvii.
(p) Savigny, R. R. i. 80; Burke, vol. viii. 182, Letters on a Regicide Peace.
Suarez: De Legibus a Deo Legislatore 1. ii. c. ii. s. 6, tit. De Lege -iEterna et
Naturali ac Jure Gentium.
Grot. de J. Bel. & P. 1. ii. c. iii. s. 6.
Voet ad Pandectas, lib. i. t. i. s. 19. p. 11. Vattel Proef. 22.
" Quod si populorum jussis, si principum  decretis, si sententiis judicum, jura
constituerentur: jus esset latrocinari; jus adulterare; jus testamenta falsa supponere: si htec suffragiis ant scitis multitudinis probarentur.  QuTe si tantme potestas
est stultorum sententiis atque jussis, ut eorum suffragiis rerum natura vertatur:
cur non sanciunt, ut qum mala perniciosaque sunt, habeantur pro bonis ac salutaribus? aut cur, quum jus ex injuria lex facere possit, bonum eadem facere non
possit ex malo?  Atqui nos legem bonam a malo nulla alia nisi naturie norma
dividere possumus." —Cic. de Leg. 1. i. c. xvi.




SOURCES OF INTERNATIONAL LAW.                             63
it morally competent to any assemblage of States to make treaties or
adopt customs which contravene that Law.
Positive Law, whether National or International, being only declaratory,(q) may add to, but cannot take from the prohibitions of Divine
Law.  " Civilis ratio civilia quidem jura corrumpere potest, naturalia non
utique"(r) is the language of Roman Law; and is in harmony with the
voice of International Jurisprudence, as uttered by Wolff: "Absit vero, ut
existimes, jus gentiurn voluntarium ab earum  voluntate ita proficisci, ut
libera sit earum in eodem *condendo voluntas, et stet pro ratione  j27
sola voluntas, nullg habita ratione juris naturalis."(s)
Upon this principle we may unhesitatingly condemn as illegal and
invalid all secret articles in treaties opposed to the stipulations which are
openly expressed.  Upon this principle it is clear that a custom of countries to destroy and plunder foreigners shipwrecked upon their shores
must always, and under all circumstances be an outrage upon the rights
of nations.  So with respect to an usage of imprisoning strangers who
have innocently arrived in time of peace, under a lawful flag, into a
foreign port, on the ground that they are free men of that particular
colour or complexion, which disquiets the slaveholder of the country,
inasmuch as his slaves, being of the same colour and complexion, are, by
the presence of the free strangers, reminded of the possibility of becoming
free also; so, if there existed in a country under the government of an
autocrat a law or custom of imprisoning all strangers having peaceably
arrived from a country under a republican form of government-any usage
of this or the like kind, however inveterate, however sanctioned by Mliunicipal Law, however accordant with national feeling, must always be a
grievous violation of International Justice.  Upon the same principle
Grotius condemns the violation of women in time of war, as an undoubted
breach of International Law among all Christian nations.(t) In the same
manner and for the same reason he denies that captives can be lawfully
made slaves, and either sold or condemned to the labour of slaves.
(q) "It would be hard to point out any error more truly subversive of all the
order and beauty, of all the peace and happiness of human society, than the position that any body of men have a right to make what laws they please, or that
laws can derive any authority from their institution merely, and independent of
the quality of the subject matter. All human laws are, properly speaking, only
declaratory. They may alter the mode and application, but have no power over
the substance of original justice."-Burke's Treatise on the Popery Laws.
" That power which, to the legitimate, must be according to that immutable law
in which will and reason are the same."-Burke's Works, vol. v. p. 180 (Thoughts
on the French Revolution).
(r) Instit. de Legit, Aguat. 1. iii.
(s) Wolff, Jus Gent. Prief.
(t) The prohibition even among heathen nations was, he observes, " Jus gentium, non omnium, sed meliorum;" but amongst Christian nations, he proclaims it
as an undoubted principle: "Atqcue id inter Christianos observari par est, non
tantum ut discipline militaris partem sed et at partemrn juris gentium-id est ut
qui pudicitiam vi lcesit, quamvis in bello, ubique pcenm sit obnoxius." —lib. iii. c.
v. s. 2.
"'Sed et Clzristianis in universum placuit bello inter ipsos orto captos servos non
fieri, ita ut vendi possunt ad operas urgeri, et alia pati quoe servorum sunt atque
ita hoc saltemr quemquam exiguum est perfecit reverentia Christianae legis." —libo.
iii. c. vii. s. 9.




64      PHILLIMORE  ON  INTERNATIONAL  LAW.
[*28]    *XXXV. This branch of the subject may be well concluded
[ *28] by the invocation of some high authorities from the jurisprudence
of all countries, in support of the foregoing opinion.
Grotius, says emphatically: " Ninmirum humana jura mullcta constituere
possunt prwter naturam, contra nihil."(u)
John Voet speaks with great energy to the same effect: < Quod si contra
recta rationis dictamen gentes msu quredam introduxerint, non ea jus gentium  rect6 dixeris, sed pessimam npotiis mnorum hutmani generis corruptelanz."(x)
Suarez, who has discussed the philosophy of law in a chapter which
contains the germ of most that has been written upon the subject, says:
ccLeges autern ad jus gentiurn pertinentes verse leges sunt, ut explicatum
manet, propinquiores sunt legi naturali quam  leges civiles ideoque impossibile est esse contrarias aquitati naturali."(y)
Wolff, speaking of his own time, says: "cOmnium fer6 animos occupavit perversa illa opinio, quasi fons juris genrtiznt sit utilitas propria:
unde contingit, id potentime conequari. Damnamus hoc in privatis, damnamus in rectore civitatis; sed wgue' idem damnandum est in gentibus."(z)
Mackintosh nobly sums up this great argument: "s The duties of men,
of subjects, of princes, of lawgivers, of magistrates, and of states, are all
parts of one consistent system of universal morality.  Between the most
abstract and elementary maxim of moral philosophy, and the most complicated controversies of civil or public law, there subsists a connection.
The principle of justice, deeply rooted in the nature and interest of man,,
pervades the whole system, and is discoverable in every part of it, even
to its minutest ramification in a legal formality, or in the construction of
an article in a treaty." (a)
[*29]                   *CHAPTER IV.
REASON OF THE THING.
XXXVI. The next question which arises in the prosecution of our
inquiries into the sources of International Jurisprudence is this-How
are the principles of Natural or Revealed Law to be applied to States?
Though States are properly and by a necessary metaphor treated as
moral persons, and as the subjects of those rights and duties which
naturally spring from the mutual relations of individuals and self-conscious agents; nevertheless it must be recollected that a State is actually
a different thing from an individual person. Reason, therefore, which
governs the application of common principles to diverse subjects, may be
(u)' De. J. B. et P. lib. ii.' c. vi. s. 6.
(x) Comment. ad Pand. de Just. et Jure, t. i. s. 19.
(y) Lib. ii. c. xx. s. 3: De Lege ZEterna et Naturali ac Jure Gentium.
(z) Jus Gent. s. 163.
(a) Discourse on the Law of Nature and Nations.




REASON OF THE THING.                            65
regarded as a distinct source of International Law, and demands, therefore, a different application of principles intrinsically the same.(a)
This application must be made justly, and in a manner(b) suitable
to this actual difference; and in order to effect this, the reason of the
thing," which has been already enumerated as one of the sources of
International Law —" necessitas finis quse jus facit in moralibus"(c)must in all cases be considered.
Vattel, following and improving upon Wolff, expresses himself upon
this point with his usual clearness, and more than his usual force.(d)
There are many cases, he observes, *in which Natural Law can-  *30
not decide between nation and nation as it would between indivi- [    ]
dual and individual. It is necessary to learn the mode of applying the
law in a manner agreeable to the subject; and it is the art of doing
this according to justice, founded on right reason, which makes International Law a particular science.  It must, as Grotius says,(e) be " recta
illatio ex naturm principiis procedens" which guides the national conscience in its international duties.
XXXVII. The most strenuous —it might be said the most vehement
- advocate for this source of International Jurisprudence is Bynkershoek.
There is no dissertation of his upon any subject of International Jurisprudence which does not teem  with references to it.   "l Ratio" and
"Usus" are, according to him, the two props which sustain the whole
building; and "Recta ratio" is " Juris gentium magistra."
The tendency of this author, who ranks in the first class of jurists, is
rather perhaps to undervalue the authority both of his predecessors and
of the tribunals of his own country.  His opinion on this matter, however, construed by reference to the context, and subject to the qualification which it must receive from  his frequent reliance upon precedents,
and upon the opinions both of jurists and civilians, contains in reality
nothing objectionable or inconsistent with the doctrine of other writers(f)
with respect to the international authority due to these precedents and
these opinions.
Bynkershoek was very far from meaning to convey the notion that
whenever a question arose between nations, either of the contending
parties was at liberty to solve it arbitrarily, according to its own notions
of convenience or by an independent process of reasoning.  On the contrary, in every case of doubt, the reason which long usage had sactioned
was to prevail; and the authorities of writers and of precedents were also
recognised as leading to a *just conclusion of Law.  But he more
especially recognised the fitness of one authority to direct and [ 31]
guide the Reason of States in the adjustment of their mutual relations;
that authority was the written reason of the Roman Law.
His predecessors indeed, in every page of their writings, had assumed
as unquestionable the homage due to this collection of the maxims
(a) Vattel, Preface, p. 22, 23.
(b) KaTra -w 17rOKECtjEVrv XVXnv.-Arist. Eth. i.; Woiff, Jus Gentium, Praof.
(c) Grot. de J. B. et P. 1. ii. c. v. 24, s. 2.
(d) Vattel, ib. et Pr6lim. s. 6.  (e) Proleg. s. 40.
(f) Vattel, Prelim. s. 6. And see Appendix to this Work.




66       P HILLIMO RE  ON  IN TERN          ATIONAL  LAW.
deducible from  right reason and natural justice.  None, however, have
spoken more strongly with respect to it than Bynkershoek: " Non quod,
in iis," he says, guam sola ratio commtendat a jure Romano adjus gentihum non tuta sit collectio."(g)
And again: " Quamvis non de populi Romani, sed de gentium  jurisprudenti, agamus non  abs re tamen erit de jure Romano quvedam
praemonuisse, cum qui id audit vocem fere omniurn gentium videatur
audire."(h)
Again: "Abstine commodo si damnum  metuis, ipsa juris gentiumn
non sola Ulpiani vox est.(i)
XXXVIII. The Roman Law  may in truth be said to be the most
valuable of all aids to a correct and full knowledge of international
jurisprudence, of which it is indeed, historically speaking, the actual
basis; and it has been remarked with equal force and elegance by an
English civilian, "9 That although whatever we read of in the text of the
Civil Law was not intended by the Roman legislators to reach or direct
beyond the bounds of the Roman empire, neither could they prescribe
any law to other nations which were in no subjection to them......
Yet since (j) there is such a strong stream of natural reason continually
flowing in the channel of the Roman Laws, and that there is no affair
or business known to any part of the world now which the Roman
*3!2 ]empire dealt not in before, and their *justice still provided(k)
[ *32] for; what should hinder but that, the nature of affairs being the
same, the same general rule of justice, and dictates of reason, may be as
fitly accommodated to foreigners dealing with one another (as it is clear
that they have been by the civilians of all ages,) as to those of one and
the same nation, when one common reason is a guide and a light to
them both; for it is not the persons, but the case, and the reason therein,
that is considerable altogether."(l)
In the case of the Maria,(m) Lord Stowell expresses surprise that
Vattel should mention a rule of International Law as a law merely
modern, when it is remembered that it is a principle not only of the
Civil Law (on which a great part of the Law of Nations is founded,) but
of the private jurisprudence of most countries in Europe-that a contumacious refusal to submit to fair inquiry infers all the penalties of
convicted guilt."
XXXIX. Independently of the historical value of the Roman Law as
explanatory of the terms and sense of treaties, and of the language of
jurists, its importance as a repository of decisions, the spirit of which
(g) Qusestiones Juris Publici, 1.. c. iii.    (h) De Foro Legat. c. vi.
(i) Quxest. J. P. c. viii. in fine. The passage cited from Ulpian will be found Dig.
lib. xvii. t. ii., s. 23.-Pro socio-" abstine commodo, quod per servum accessit, si
damnum petis."
(j) Albericus Gentilis, 1. i.; de Jure Belli, c. i.
(k) "~ Mirum tamen est hanc novam prudentiam, Romanos, & quibus ad omnes
populos juris fecialis, justitise fontes purissimi manarunt, antea semper latuisse."Bod. de Rep. 1. v. c. vi. p. 594.
(1) Wiseman's Excellency of the Civil Law, p. 110; Burke, viii. 185; Letters on
a Reg. Peace.
(m) 1 Robinson's Adm. Rep. p. 363.




HREASON  OF TI-E  THING.                      67
almost always, and the letter of which very frequently, is applicable to
the controversies of independent States, can scarcely be over-stated.
From this rich treasury of the principles of universal jurisprudence, it
will generally be found that the deficiencies of precedent usage, and
express international authority, may be supplied.
Throughout the greater portion of Christendom it presents to each
State what may be fairly termed their own consent, bound up in the
municipal jurisprudence of their own country; *and this not
merely to the nations of Europe, whose codes are built on the [*33 ]
Civil Law, but to their numerous Colonies, and to the independent States
which have sprung from those Colonies, and which cover the globe.
And so we find that the Roman Law was more than once referred to
as an authority, upon the international question of the Free Navigation
of Boundary Rivers, by the president and diplomatic ministers of the
United States of North America, in the discussion which took place between this Republic and the kingdom of Spain, as to the navigation of
the Mississippi, in the year 1792; and to all nations, whatsoever and
wheresoever, this law presents the unbiassed judgment of the calmest
reason, tempered by equity, and rendered perfect, humanly speaking, by
the most careful and patient industry that has ever been practically
applied to the affairs of civilized man.
It may be fairly said, that almost all International disputes in time
of peace might be adjusted by this providentially appointed arbiter,
assisted by the helps, and modified by the other sources which will presently be considered; certainly it may be most truly affirmed, that the
greater number of controversies between nations would find a just solution in this comprehensive system of practical equity, " Dixi siopius,"
said Leibnitz,'c post scripta Geometrarum nihil exstare quod vi ac subtilitate cum Romanorum  scriptis comparari possit: tantum  nervi inest
tantum profunditatis..... nec uspiam juris naturalis proeclare exculti
uberiora vestigia deprehendas; et ubi ab eo recessum est, sive ob formularum ductus, sive ex majorum traditis, sive ob leges novas, ipsae consequentive ex nova IHypothesi reternis rectie rationis dictaminibus additee,
mirabili ingenio nec minore firmitate deducuntur."(n)
So the English civilian before quoted observes:(o) "c And moreover, by, as
it were, a general consent of nations, *there is an appealing to, and
a resting in, the voice and judgment of the Civil Law in these cases ['34 ]
between nation and nation.  The reason whereof is, because any thing
that is irrational, unnatural, absurd, partial, unjust, immodest, ignoble,
treacherous, or unfaithful, that law abhorreth; and for that it is the
most perfect image and representation of nature, and of the equity and
reason nature prescribes to humane actions, that was ever yet presented
or set forth to the world in a law."
In the negotiations between the United States of North America and
Spain relative to the navigation of the Mississipi, the provisions of the
(n) Op. iv. 254.
(o) Wiseman's Excellency of the Civil Law, p. 110; Burke, viii. 185, Letters on
a Reg. Peace.




68    PHILLIMORE ON INTERNATION AL LAW.
Roman Law were cited with respect to the public character of rivers, to
the use of the shores as incident to the use of the water, and to the occasional extension of this incidental right, when circumstances rendered it
necessary that the cargo should be removed further inland, the shores
being, for some reason, an unsafe place of deposit."(p)
XL. It is hardly necessary to guard against the supposition that what
has been said applies to the technical and formal parts of the Roman
Code, the " formularum ductus" just mentioned, or to those which
related exclusively to the particular policy of the empire; but it should
be remarked, that an error of this description tinged the early writings
upon International law, and tended to bring the science itself into disre[*35] pute.(q)  It is the,esolida et mascula ratio" *of Bynkershoek
which must guide and enforce the application of it to the affairs
of independent nations.
Besides the actual compilations of Roman Law, the Commentaries
upon them-for the like reason of their comprehensiveness, impartiality,
wisdom, and enlarged equity-are of great use and constant service in
elucidating the rules of justice between nations.
For instance, every writer on the Law of Embassy relies for the elementary propositions relating to it upon the Commentary of Huber on
the Civil Law; and so Lord Stowell, in the case of the Twee Gebrooders,
fortified his judgment as to the legal marks of territory, and the evidence
by which it is to be supported, by reference to the opinions of Farrinacius Gail and Loccenius.(r)
The decisions contained in the Roman Law  may often form a safe
guide even between nations in whose Municipal Code it has no root; in
the interpretation, for example, of agreements, express or tacit, between
European and Asiatic nations, and in the equitable resolution of doubts
and difficulties unforeseen and unprovided for by the letter of any compact.(s)
XLI. Analogy(t) has great influence in the decision of International
(p) Wheaton's Hist. pp. 510, 511; Waites' American State Papers, x. 135-140;
Instit. 1. ii. t. i. ss. 1-5.
(q) Grotiuns, de J. B. et P. 1. iii. c. ix. s. 1, De Postliminio: "Accuratius heec
res a veteribus Romanis tractata est, sed saepe confus6 nimis, ita ut qun juris gentium, quseque civiles Romani esse vellent, lector nequiret distinguere.".... iv.
s. 2; " Sed hsec ratio Romanorum propria non potuit constituere jus gentium," &c.
Heineccius, Prselect. ad Grotium, Prcemium, s. 54, and in his work Jus Naturse
et Gentium Praefatio, p. 14, shows how the " Glossatores" erred in their application of portions of the Roman law to International questions.
It will be seen when the subject of embassies is treated of, into how serious an
error the English civilians were led by applying the text of the Roman law respecting legati as the rule of International law upon the question of the privileges
of the ambassador of Mary Queen of Scots.
(r) 3 Robinson's Adm. Rep. 338. 348, 349.
(s) The learned judges of the English Privy Council, in deciding questions
arising out of the law and customs of Hindostan, have made reference to the
analogies furnished by Roman law —Sootragun Satputty v. Sabitra Dye, 2 Knapp's
Privy Council Reports (Lord Wynford)-a case on the law of Hindoo adoption.
(t) Bynkershoek, de Foro Leg. c. iii. p. 446.
By the ancient law of Europe, such a consequence (i. e. the condemnation of a
ship on account of a contraband cargo) would have ensued; nor can it be said




CONSENT  OF  NATIONS.                              G_9
as well as of Municipal tribunals; that is to say, the application of the
principle of a rule, which has been adopted in certain former cases, to
govern others of a similar character as yet undetermined. Of course
the justice *and force of this application  must chiefly depend,    36
in each case, on the closeness of the parallel between the circum- [    J
stances of the precedents appealed to and those of the cases in dispute.
*CHAPTER  V.                             [*37a
CONSENT OF NATIONS.
XLII. The next and only other source of International Law is the
consent of Nations.  The obligations of Natural and Revealed Law exist
independently of consent of men or nations, and although the latter
acknowledge no one superior upon earth, they, nevertheless, owe obedience to the laws which they have agreed to prescribe to themselves, as
the rules of their intercourse both in peace and war.(a)
How and where is this consent expressed? It is not indeed to be
found in any one written code: but this may be the case with the iMunicipal Law  of any country, as it was till lately with the institutions of
every European nation, and as it is now with those of Great Britain.
XLIII. This consent is expressed in two ways:-1. It is openly expressed by being embodied in positive conventions or treaties.  2. It is
tacitly expressed by long usage, practice, custom,-"Jus moribus et
tacito pacto introductum,"(b) —according to Grotius; or, in the precise
that such a penalty was unjust, or not supported by the general acnalogies of law."Lord Stowell, The Maria, 1 Rob. Adm. Rep. 90.
" Is qui jurisdctioni proeest ad similia procedere et ita jus dicere debet."-Diig
1. i. t. iii. s. 12.' Semper quasi hoc legibus inesse credi oportet, ut ad eas quoque personas et
ad eas res pertinerent, que quandoque similes erunt."-Ib. 27.
"De quibus causis scriptis legibus non utimur, id custodiri oportet quod moribus et consuetudine inductum est: et si qua in re hoc deficeret, tunc quod proximnum et consequens est." —Ib. 32.
" Si quid in edicto positum non inveniatur, hoc ad ejus regulas ejusque conjecturas et imitationes possit novre instruere auctoritas."-Cod. 1. i. t. xvii. 2, 18.
Savigny, R. R. i. s. 46; Auslegung der Gesetze-Analogie.
Bowyer's Readings, p. 88: " Analogy is the instrument of the progress and
developmeat of the law." See some good observations on the use of the analogy
in the English Law in the cases of Mirehouse v. Rennell, 8 Bingham's Rep. 518;
Bond v. Hopkins, 1 Schoales and Lefroy, Rep. 429.
(a) " Quum enim gentes null, superiore in terris contineantur, sunt illis pro legibus, ipsi sibi dixere; vel scriptis tabulis rel moribus. introductis, qui suape scripturis istis comprobrantur."- Leibnitz, Dissertatio 11. "De actorum publicorum
usu atque de principiis juris nature ct gentium," &c. —S. i. p. 310.
" Sed sicut cujusque civitatis jura utilitatem sume civitates respiciunt, ita inter
civitates aut omnes, anut plerasque, ex consensu jura qunadam nasci potuerunt; et
nata apparet qua, utilitatem  respicerent non caterum  singulorum, sed magnae
illius universitatis. Et hoc jus est quod jus gentium dicitur, quoties id nomen t
jure naturali distinguimus."-Grot. De J. B. et P. Proleg. s. 17.
(b) Grotii Proleg. s. 1, De Jure B. et P.




70    P H ILLIORE  ON  INTERNATIONAL   LAW.
language of Bynkershoek, 4"Ipsum jus gentium, quod oritur e pactis
tacitis et proesumptis qum ratio et usus inducunt."(c)
*XLIV. Customs and eusages which have long subsisted be[ 38] tween nations constitute a law to them: "Nec negamus," says
Grotius, "d mores vim pacti accipere."(d) Each State has a right to count
upon the presumption of their continuance: in no instance are they to
be lightly departed from by any single nation; never without due notice
conveyed to other countries, and then only in those cases in which it may
be competent to a nation so to act.
For instance, a State may refuse —though it would be a defeazance of
comity bordering upon hostility —to receive the resident Ambassador of
another State; but if it does receive him, it must accord to him the full
privileges of his station: they are secured to him by the universal consent of all nations, which it is not competent to any individual nation at
her pleasure to abrogate or deny.
So in the case of The Louis, Lord Stowell reversed the sentence of a
Vice-Admiralty Court, which had condemned a lFrench ship for being
employed in the slave trade, and resisting the search of a British cruiser,
saying, " That neither a British Act of Parliament, nor any Commission
founded on it, can effect any right or interest of foreigners, unless they
are founded upon principles, and impose regulations that are consistent
with the Law of Nations. That is the only Law which Great Britain
canl apply to them; and the generality of any terms employed in an Act
of Parliament must be narrowed in construction by a religious adherence
thereto." (e)
*The force of International Custom is emphatically expressed
E]391 by Grotius in the phrase often repeated by him, "s Placuit genti-,us;'"(f) and still more in the phrase, " Christianis in, universum,
placuit."(g)  Bynkershoek speaks of "lIlla perpetuo usu inter diversos
sui juris populos observata consuetudo," and repeatedly of the c Gentium
usus" as one of the two pillars of International Law.
Prince Talleyrand, in his note (19th December, 1814), to the Congress
(c) Qunestionum Juris Publici, 1. iii. c. x. Again he says, " Ut in omni argumento, quod de jure gentiurm est, ratio et usus faciunt utramque paginam."lb. c. v.
(d) Lib. ii. c. v. s. 24, p. 259. " It is my lduty not to admit that, because one
nation has thought proper to depart from the common usages of the world, and
to meet the notice of mankind in a new and unprecedented manner, I am, on that
account under the necessity of acknowledging the efficacy of such a novel institution, merely because general theory might give it a degree of countenance,
independent of all practice, from the earliest history of mankind."-Flad Oyen, 1
Rob. 139-146. See, too, Vattel, ii. 1. iv. c. vii. s. 106.
Bynkershoek, de Foro de Legatorum, c. v. ad fin., speaking of the attempt to
subject a foreign prince to a municipal tribunal by seizing some trifling property
of his as it passed though the kingdom, says, "Nec quicquam magis erit contra
prcesumtanz si non testatam mentem gentium."
(e) 2 Dodson's Admiralty Reports, p. 239.
(f) De J. B. et P. 1. ii. c. xviii. 4, s. 5; 1. iii. c. vi. 3; c. vii. 5. s. 2.
(g) Lib. iii. c. vii. 9. s. 1. "Hoc saltem.  perfecit reverentia Christianae
legis." —Ib.
As to preserving women from violence: " Atque id inter Christianos observari
par est non tanthim ut disciplines militaris partem, sed et utpartem juris gentium."Lib. iii. c. v. xix. s. 2; cf. The Flad Oyen, 1 Rob. Adm. Rep. 141 (Lord Stowell.)




CUSTOM.                              71
of Vienna, expostulated upon the violation of International Law contained in the arrangements which sanctioned the fresh partition of Poland,
and the annexation of parts of Saxony to Prussia. He said that such
arrangements would tend to establish the principle, I That the nations of
Europe are united to each other by no other moral ties than those which
unite them  to the islanders of the Pacific; that they live among each
other under the pure law of nature, and that what is called the Public
Law of Europe does not exist; since although all the civil societies of the
earth are, wholly or partially, governed by usages which constitute laws,
the customs which are established between the nations of Europe, and
which they have universally, constantly, and reciprocally observed for
three centuries, do not form a law for them; in one word, that there is
no other law but that of force."(h)
XLV. Lord Stowell frequently expressed his entire concurrence with
the opinions of preceding jurists as to the great and inestimable influence
of Custom upon the Rights and Duties of Nations.  Speaking of the
condemnation of a ship in a neutral country, he says: ("It has been contended that such a sentence is perfectly legal, both on *principle  *40
and authority.  It is said that, on principle, the security and [    ]
consummation of the capture is as complete in a neutral port as in the
port of the belligerent himself.  On the mere principle of security it
may perhaps be so; but it is to be remembered that this is a matter not
to be governed by abstract principles alone; the use and practice of nations
have intervened, and shifted the matter from its foundations of that
species: the expression which Grotius uses on these occasions (Placuit
gentibus) is, in my opinion, perfectly correct, intimating that there is a
use and practice of nations, to which we are now expected to conform."(i)
In another case,(j) he says: "This is a position in which I am justified by the general practice of mankind, and the practice of mankind
forms one great branch of the law of nations."  Throughout his celebrated judgment in The Maria(k) he relies invariably upon "the law
and practice of nations." And again, in The Santa Cruz, after having
observed that there is no statute of the British Parliament upon the subject of Prize which directly applies to recapture, he continues: "But
there is a law of habit, a law of usage, a standing and known, 2rinciple,
on the subject in all civilized and commercial counties: it is the common
practice of European States in every war to issue proclamations and
edicts on the subject of Prize; but till they appear, Courts of Admiralty
have a law and a usage on which they proceed, from habit and ancient
practice, as regularly as they afterwards conform  to the express regulations of their prize acts."(l)
(h) Wheaton's History of the Law of Nations, p. 429.
Klfiber, Acten des Wiener Congresses, Band. vii. s. 48.
(i) The Henrick and Maria, 4 Rob. Adm. Rep. pp. 54, 55.
(j) The Progress, 7 Rob. Adm. Rep. 220.
(k) 1 Robinson's Adm. Rep. 350. 362, &c. See, too, Flad Oyen, Ib. 140, 141.
(I) 1 Robinson's Adm. Rep. p. 61.
The Mercurius 1 Rob. Adm. Rep. p. 82; "Under the modern law of nations."




72    PHILLIMORE ON INTERNATIONAL LAW.
Similar expressions abound in the luminous expositions of International
Law which these judgments afford.
41  LVI. The Law of Nations has received continual acces[41 ] sions and improvements since the first cultivation of it in the
Christian world; not only have evil customs been abrogated, but the
rigour of many ancient customs has been softened and relaxed in their
application, without any departure from  the principle on which they
were founded. This effect is happily described by Lord Stowell; when
speaking of contraband articles found on board a neutral vessel, he says,
" I do not know that, under the present practice of the Law of Nations,
a contraband cargo can effect the ship.   By the ancient law  of
Europe, such a consequence would have ensued; nor can it be said
that such a penalty was unjust, or not supported by the general ancalogies of law, for the owner of the ship has engaged it in an unlawful
commerce.  But in the modern practice of the Courts of Admniralty of
thAs countryl/  and I believe of other nations also, a milder rule has
been adopted."(m)  On the other hand, usage has decided that many
things are contraband in naval war concerning which there had formerly
been much dispute.  Valin says honestly and boldly in his Commentaries,
ac De droit ces choses sont de contrabande aujourd'hui et depuis le commencement de ce siecle, ce qui n'6tait pas autrefois neanmoins."(n) iThere
must be, however, a reciprocity(o) in the conduct of the nation demanding from another nation the privilege of these mitigations introduced by
usage into the ancient Law; and a nation may be estopped by its usage
from  claiming the benefit of a principle of the Law of Nations which
would operate in its favour.
XLVII. Such is the influence of universal usage, that it will in some
measure affect even the stipulations of a treaty made long prior to the
commencement of that usage, and at a time when the law which has
been since settled, was in a state of fluctuation and controversy.(p)
* 42 ]   *In 1654, a treaty was entered into between England and
L[421  ]Portugal, by which, among other things, both countries mutually bound themselves not to suffer the ships and goods of the other
taken by enemies, and carried into the ports of the other, to be conveyed away from the original owners or proprietors.  c" Now, I have no
scruple in saying" (observes Lord Stowell, in 1798,) " that this is an
Article incapable of being carried into literal execution, according to
the modern understanding of the Law of Nations, for no neutral country can interpose to wrest from a belligerent prizes lawfully taken."(q)
This is perhaps the, strongest instance that could be cited, of what civilians call the c" consuetudo obrogatoria."(r)
The Maria, lb. 371, a: " According to the modern understanding of the law of
nations."
The Santa Cruz, 1 Rob. Adm. Rep. p. 65; The Elsebe, 4 Ib. p. 421.
(mn) The Ringende Jacob, 1 Rob. Adm. Rep. p. 90.
(n) Ordonnance de la Marine, 1. iii. t. ix. art. xi.
(o) The Santa Cruz, 1 Rob. Adm. Rep. pp. 49, 64.
(p) The Maria, 1 Rob. Adm. Rep. pp. 371-373.
(q) The Santa Cruz, 1 Rob. Adm. Rep. pp. 49, 64. See also vol. ii. p. 732, of
Sir Leoline Jenkins's Works.
(r) Savigny, System des ROmischen Rechts, b. i. 195.
Bynkershoek, do Fore Legat. c. xix. s. 7.




HISTO RY.                                 73
XLVIII. So the establishment of the Courts of the Law of Nations
in all civilized countries in time of war, is an institution introduced by
civilized usage, and binding upon all civilized countries.
Neutral Nations in time of War have now no right,(s) when they are
injured, to exact compensation from the countrymen of the aggressors,(t)
though the Barbary States are said by Lord Stowell to do so," under a
Law  of Nations "c now  peculiar to themselves."(u)  Neither in time of
Peace are Nations entitled to have recourse to Reprisals, until reparation
for the injury sustained has been formally asked and denied, both of the
proper tribunal, and of the government, in re 1niznie' clhiCb6.
These points, however, will receive a fuller discussion in another part
of this work.
*CIHAPTER  VI.                            [*43]
(HISTORY.
XLIX. Such being the influence of usage upon International Law,(a)
it becomes of importance to ascertain where the repositories, and what
the evidence may be of this great source of International Law.
L. (1.) In the enumeration of these, History, unless the term be too
general, necessarily takes the first place.  It supplies, according to Grotius, both example and authoritative judgments-of which the latter owe
their weight to the general acceptance which they have obtained, whilst
the former are more or less valuable according as they are more or less
derived from  epochs and Nations more or less entitled to universal
respect.(b)
It is scarcely necessary to guard against the error which Grotius, in
another part of his work denounces-that instances recorded in History,
merely by virtue of being so recorded, constitute precedents of International Law.(c)
(s) Bynkershoek, Observationes Juris Romani, c. ii. vol. ii.' "Propulsatio vis
atque injurike quo sensu juri gentium tribuatur."
(t) The Maria, 1 Rob. Adm. Rep. p. 373; The Walsingham Packet, lb. p. 83;
The Snipe and others, Edwards's Adm. Rep. p. 412.
(zi) The Kinder Kinder, 2 Rob. Adm. Rep. p. 88.
(a) " Quamquam enim nec sit exemplis judicandum, et aurea ea dicitur Justiniani lex, ab exemplis tamen duci probabilem conjecturam  certum est, et in dubio
judicandum imo est exemplis; et cnm itum in consuetudinem est. Neque enim mutare decet que certam observantiam semper habuerunt, etfirmihs judicium creditur,
quod plurimorum sententiis confirmatur." —Albericus Gentilis, lib. i. c. ii. De Jure
Belli.
(b) Grot. Proleg. s. xlvi.: aR Historise duplicem habent usum qui nostri sit argumenti: nam et exempla suppeditant et judicia. Exempla quo meliorumn sunt temporum et populorum eo plus habent auctoritatis; ideo Groca et Romana vetera
cseteris pratulimus. Nec spernenda judicia prsesertim consentientia; jus enim
naturae ut diximus, aliquo modo inde probatur; jus vero gentium non est at aliter
probetur."
The Flad Oyen, 1 Rob. Adm. Rep. p. 141.
(c) "' Solet et illudqaqueri an jure talionis interfici, aut mal] tractari legatus possit ab eo veniens, qui tale quid perpetravit. Et sunt quidem ultionis talis exempla
in historiis satis multa: sed minirihm historiae non tanturnm qu  just6, sed et quae
iniqu6, iracund6, impotenter facta sunt memorant."-Grot. 1. ii. c. xviii. 7.
JUILY  1854. —6




74      PHILLIMOS PE ON  INTERNATIONAL LA W.
History is a record of the injustice, evil passions, and folly, as well as
of the justice, virtues, and wisdom of Nations.
=*}44 ]    The necessities of the epoch in which Grotius wrote, left'44] him little or no choice in selecting his examples and precedents
chiefly from  the antiquity of Greece and Rome.  This is not the case
with his successors; they have far ampler and far apter materials. But
the edifice is not the weaker for the breadth and depth of the classical
foundations laid by the first architect; and the principle which guided him
is in this, as in most other instances, most valuable to the latter and, in
spite of their advantages, inferior builders.
LI. (2.) Secondly, the consent of Nations is evidenced by the contents of Treaties, which for this, as well as for other reasons, constitute
a most important part of International Law.(d)
LII. Upon this point there is one observation which merits, from its
importance, precedence over all others.  It is this: No treaty between
two or more Nations can affect the general principles of International
Law prejudicially to the interest of other Nations not parties to such
covenant; at the same time, the contracting parties(e) may introduce into
a treaty expressions so generally worded as to be either explanatory of
a previously contested point of law, or declaratory of the future interpretation of it, or in other ways frame the covenants of the Treaty
between themselves so as to lay down an universal principle binding on
them, at least, in their intercourse with the rest of the world. Nowhere
will this important doctrine be found laid down with greater
[    I45] *precision, or more irresistible argument, than in Lord Grenville's speech in the House of Peers, upon the motion for an address to
the throne approving  of the convention  with Russia in  1801.(f)
Among the many attributes of a statesman possessed in rare excellence
by that minister, was his intimate acquaintance with International Jurisprudence in all its branches.  His opinion is, therefore, of very great
authority.  He argued that, by the language of that convention, a new
sense, and one hitherto repudiated by Great Britain, with respect to contrabiand of war would be introduced, so far at least as Great Britain
was concerned, into general International Law; that inasmuch as some
provisions of the Treaty with respect to what should be considered contraband of wair were merely 2')rosj2ective, and confined to the contractingl
(d) " All this body of old conventions, composing the vast and voluminous collection called the Corps Diplomatiqne, forms the code or statute law, as the methodized reasonings of the great publicists and jurists form the digest and jurisprudence of the Christian world. In these treasures are to be found the usual relations of peace and amity in civilized Europe."-Letters on a Regicide Peace,
Burke's Works, ix. 235.
(e) " Usus intelligitur ex perpetuk, quodam modo, paciscendi edicendique consuetudine; pactis enim principes ssepe id egerunt in casum belli, sucpe etiam edictis contra quoscunque, flagrante bello. Dixi, ex pelpetzi gtloaodam modo conzsuletuldine,
quia unum forte alterumve pactum, quod a consuetudine recedit, jus gentium non
mutat."-Bynkershoelk, Qustionum Juris Publici, 1. i. c. x.
Wheaton's El. of Int. Law, i. 60.
(f) This speech was published separately, by Cobbett and Morgan, Pall Mall,
November 13, 1802.
See too, Hansard's Parliamentary Debates-1801.




TREATIES.                               75
parties, England and tRussia, while other provisions of the same Treaty
were so couched in the preamble, the body, and certain sections which
contained them, as to set forth, not the concession of a sjpecical privilege
to be enjoyed by the contracting parties only, but ca recognition. of one'
universal pre-ex.istinyg rigyht, they must be taken as laying down a general rule for all future discussion with any Power w7ltever, and as establishing a principle of law which was to decide,universally on the just
interpretation of the technical term contrabancld of war.(g)
LIII. The constant consent of various nations to adopt a particular
interpretation of a particular term is, generally speaking, strong evidence
that such is the true International meaning belonging to it. Bynkershoek
was in the habit of placing great stress upon the language of Treaties,
as evidence of the universal consent of nations, and especially on this
point:(h) " Excutepactac yentismn, quc  diximus, excute et alia, qume alibi
exstant, et-reperies, omni ailla appellari *conztrabancla, qun, uti
hostibus suggeruntur, bellis gerendis inserviunt, sive instrumenta ['46]
belliea sint, sive materia, per se bello apta;" and, again, aPriusquam
autem, quid mihi videatur, exponam, operce pretium erit, pactiones gceztiuzm  consuluisse;" again,;; Sed his paulisper sepositis auczi pacta gentiu/sn;"-these and the like expressions abound in his most valuable
dissertations.  Nor in this respect is he at variance with other jurists;
it is their universal opinion that the general spirit, as well as the particular provisions, of Treaties to which at different periods many nations
have been parties, is of great moment and account as the evidence of
their consent to the doctrine contained in them. So Lord Stowell, in his
judgment of The Maria, arguing for the universal right of the belligerent
to visit neutral merchant ships, says:;;The. right is equally clear in
practice, for practice is uniform  andc universal upon the subject: the
many European Treaties which refer to this right refer to it as pre-existing, and merely regulate the exercise of it."(i)
So the c Reponlse sans repliqle," already mentioned, of Great Britain
to the Prussian memorial, and that memorial itself refer to a variety of
Treaties as containing provisions illustrative and confirmatory of the doctrine maintained in the reply.
LIV. When, however, it is said that the consent of nations may be
gathered in some degree from the conventions of Treaties, it is not meant
that every kind of Treaty can furnish even this degree of evidence. Many
are concerned with matters of no general (k) interest to other than the
(g) See Appendix for the extract at lenogthl from the speech upon this point.
(h) Qumestionum Juris Publici, 1. i. c. x. 113.
(i) 1 Robinson's Adm. IRep. p. 360.
(kc) " By this means the proposed fraternity is hustled in the crowd of those
treaties which imply no change in the public law of Europe, and which do not,
upon system, affect the interior condition of nations. It is confounded with those
conventions in which matters of dispute among sovereign powers are compromised,
by the taking off a duty more or less, by the surrender of a frontier town or a disputed district on the one side or the other, by pactions in which the pretensions
of families are settled (as by a conveyancer making family substitutions and successions), without any alterations in the laws, manners, religion, privileges, and
customs of the cities or territories which are the subject of such arrangements."Burke, viii. 234, Letters on a Regicide Peace.




76&    PHILLIMORE ON INTERN ATIONAL LAW.
47   *contracting parties; many contain stipulations wrung from the
[ 47] necessities of one party, and compelled to admit claims to which
by the general law its adversary was not entitled.(l)  From  Treaties of
this description no argument of the consent of Nations can be fairly deduced.  But there are certain great and cardinal Treaties in which, after
long and bloody wars, a re-adjustment of International relations has taken
place, and which are therefore more especially valuable, both from  the
magnitude and importance of their provisions, which have necessitated a
recurrence to, and a re-statement of, the fundamental principles of International Law; and also from the fact, that frequently the greater number
of European States, and lately some American and even Asiatic communities, have been parties thereto.(n)
This subject will come again under discussion in a subsequent chapter
upon Treaties.  It may, however, be as well to mention in this place
that the Treaties which have principally affected International Law,
are:(n) —
48 or Europe generally:-W-estphalia, (1648,) to which every
*[     *48    Sovereign and State on the Continent of Europe, except the Pope
and the Grand Seignor, was a party; Utrecht, (1713;) Paris and Hubertsbourg, (1763;) Paris, (1814,) and the Congress of Vienna.
The principal Treaties between the United States of North America
and the European powers are:The Treaty of Versailles, (1783,) containing the recognition of this
Republic.
The Treaty of Ghent, (December, 1814,) between Great Britain and
the United States, chiefly as to boundaries of their respective dominions
in North America.
(1) " Quod vero conth rationem juris receptum est, non est producendum ad consequentias." —Dig. i. iii. s. 14 (De Legibus).
"1 Qun propter necessitatem recepta sunt, non debent in argumentum trahi."Dig. 1. xvii. 162; de Diversis Regulis Juris Antiqui.
(in) Tous les princes et etats de l'Europe se trouvent ainisi directement ou indirectement compris dans ce traite, 2 l'exception du Pape et du Grand Seigneur qui
seuls n'y prisent aucune part.'"-Koch. Hist. de Tr. c. i. 1, 3, in fine.
(n) " Si l'on examine les revolutions qui ont contribut6 et constituer 1'etat actuel
de l'Europe, on se convaincra qu'il y a pen de traites anterieurs'a ceux deWestphalie,
d70Oliva, et de Carlowitz, dont Flinfluence s'etende aux affaires ge6nrales, et an syst6me politique de nos jours. L'6tude des trait6s qui les prec6dent ne laisse cependant pas d'avoir son utilite, parce que les stipulations qu'ils renferment son souvent rappel6es et confirmees dans des actes plus recents; que les pr6tentions des
puissances derivent en grande partie des anciens traites, et qu'enfin la connaissance
de ceux-ci sert a etendre les vues de la politique; car plus on p6netre dans l'histoire
des trait6s, plus on s-e rend propre aux n6gociations et aux travaux diplomatiques.
" I1 serait superflu d'entrer dans un plus grand d6tail sur les avantages que procure la connaissance des traites; il suffit de remarquer qu'elle donne celle de l'etat
actuel de l'Europe, ainsi que des droits et des obligations reciproques des puissances.
Elle est done indispensable B tous ceux qui sont charg6s du maniement des affaires
publiques on qui veulent s'y former. Elle n'est pas d'une moindre utilit6'a ceux
qui etudient l'histoire en philosophes et en politiques.
" En suivant le fil des n6gociations, on decouvre l'origine des evenements qui
out change la face du monde politique, et produit l'6tat de choses qui r6gne aujourd'hui en Europe. Cette etude conduit done a lavraie connaissance de l'histoire,
et nous met en etat de relever beaucoup d'erreurs commises par les historiens qui
ont n6glig6 d'approfondir les traites."-Koch. Hist. des Tr. Pr6f.




T R E AT I ES.                        77
The Treaty between the United States of North America with the
Confederation of Central America, (December 4, 1845.)
The Treaty which established the kingdom of Belgium, (1839.)
A group of Treaties negotiated for the North of Europe only:-Oliva,
(1660;) Kiel, (1814,) with the Ottoman Porte; Carlowitz, (1699;) Bucharest, (1812.)
The Treaties which have affected the relations between the Ottoman
Porte and the European Powers generally:The Act of the Porte granting to British merchant vessels the privileges of commerce in the Black Sea, (October 30, 1799.)
The Treaty which established the kingdom of Greece, (1832.)
The Convention concluded between the Courts of Great Britain,
Austria, Prussia, and Russia, and the Sublime Ottoman Porte, for the
pacification of the Levant, signed at London, July 15, 1840.
The Treaty of July 13, 1841, as to the Navigation of *the
Dardanelles and the Bosphorus, which incorporated into the writ- [49 ]
ten Law of Nations the conventional maxim as to territorial jurisdiction
over adjacent waters.
The Treaty between Russia and Persia, signed at Seiwa (1813), and
confirmed at Teflis, under the mediation of Great Britain, in which Persia
recognized the exclusive right of Russia to have ships of war in the Caspian sea.
The Treaty between Great Britain and Persia, signed at Tehran, November 25th, 1814, followed by the royal order of the Schah relative to
the trade of British subjects in Persia.
LV. These Treaties furnish one of the many reasons why the science
of International Law has made such progress since the Treaty of Westphalia, which is usually considered as the first great adjustment of International Relations on the Continent of Europe.  It is, then, a sound
maxim that a principle of International Law acquires additional force
from having been solemnly acknowledged as such in the provisions of a
Public Treaty.(o)
LVI. How far a provision of a treaty may be affected by its omission
in a subsequent treaty between the same powers is a question of much
gravity.  When the independence of the United States of North America
was acknowledged, the right of navigating the Mississippi was secured to
the subjects of Great Britain as well as those of the United States by a
treaty (1783) between these two powers: but in the Treaty of Ghent
(1814), which put an end to the war between these powers which had
broken out in 1812, the stipulation of 1783 in favour of British subjects
was not renewed, and it is now contended by the United States that the
right belongs exclusively to their own subjects.(p)
When a treaty, dealing with certain subjects, is silent as to others
naturally connected with them, or leaves them on an indefinite and disputable footing, questions afterwards *arising upon subjects of
this latter class will then be decided according to the subsequent [50 ]
(o) For a list of Treaties relating to the olgening of ports usually closed to foreigners-relicle force —see Appendix.
(p) Wheaton's Hist. 507, 508, 585.




78    PHILLIMORE ON INTERNATIONAL LAW.
judgment and practice of nations, which must be looked to for exposition
of these subjects; and when in a treaty an enumeration is made of particular articles, or particular matters, according to the nature of the
treaty, this is held to be done in order to prevent misunderstanding, and
not to warrant the inference, that the articles or matters excepted from
the enumeration should be considered as tacitly sanctioned thereby: the
rule ". Exceptio con firmat regulam" is not applicable to cases of this
description. (q)
LPTII. The consent of Nations is also evidenced by the Proclamations
or 3Ianifestoes(r) issued by the governments of States to the subjects of
them upon the breaking out of war.  These frequently contain, not only
expositions of the causes which have led to this result, but also a defence of the government, founded upon a reference to the principles of
International Law, in declaring an offensive or undertaking a defensive
war.
These public documents furnish, at all events, decisive  evidence(s)
against any state which afterwards departs from the principles which it
has thus deliberately and solenmnly invoked; and in every case they
clearly recognize the fact, that a system  of law  exists which ought to
regulate and control the international relations of every state.
LVIII. The 3Marine Ordinances or regulations of a State afford valuable testimony, first, as to the practice of the State itself upon this
branch of International Law; and also, in some degree, as to the usage
of Nations as generally recognized Cat that time by the jurists
[ 51] and statesmen, the legislative assemblies of the country which
issued them.(t)
When the institutes of great maritime countries agree upon a question
of International Maritime Law, they constitute a tribunal from  which
there can rarely, if ever, be any appeal.
Certain of these institutes, independently of their agreement or disagreement with other maritime codes, have always been held in the
highest respect; and certainly no English writer or judge can be accused
of national partiality for relying upon them.(m)  These are the cele(q) The Ringende Jacob, 1 Rob. Adm. Rep. p. 92 (Lord Stowell).
(9) The Santa Cruz, 1 Rob. Adm. Rep. 61.
s) The remarks which AEschines so forcibly urges as to the advantage of public
records, and the testimony they bear to the character of public men, is equally ap-.
plicable to states: " KaX6o, c [i) ps'AOrwaiot, icaXdv h r7i J rltocorwv ypap.latrv vbXaLKf'
dKriv7ror ycap  rL't Ocat oV pU/raETrThrTT roEt  dvrotoAovti Ev  r 7XoTeraqC dXa' E)u)WKS rT()d4j2jL
bnr67av foio.laLat vvPlJsTv mroS TLrXaCt [tv rOVpOVg, K: [lETC ONsr/4o a' dtoivras ESvat XpGo'ro~s.V
-iEschin. Orat. Adv. Ctesiph. s. 75.
(t) Wheaton states the proposition in a less limited shape. —Elements of Intern.
Law, p. 101.
See The MIaria, passim, especially p. 368, 1 Rob. Adm. Rep.; The Hoop, 1 Rob.
Adm. Rep. pp. 198, 199.
(u) The Mlaria, passim.
Oppenheim, System des Volkerrechts, 1kap. v. s. 8.
" The venerable authority of the Consolato."-Lord Stowell, 5 Rob. Adm. Rep.
p. 4, Henrick and Maria.
" I1 Consolato del MIare, cap. 273, expressly says,' The enemy's goods found on
board a friend's ship shall be confiscated;' and this is a book of great authority."The Duke of Newcastle's Letters to MI. Michel, note to first Proposition, p. 64.




TREATIES.                              79
brated "(Consolato del Miare," with the commentary of Casaregis, and
the French Ordonnance sur la Marine of 1681, with the commentary of
Valin; and, due regard being had to the modern practice, the " Collection des Lois Maritimes Anterieures au XVIII.e Siecle," by Pardessus.
LIX. The consent of Nations is also evidenced by the decisions of
Prize Courts, and of the tribunals of International Law sitting in each
country.
It has been already observed, that in time of war, neutral States have
a right to demand ex clebito jtstiticc(x) that there be courts for the
administration of International Law sitting in the belligerent countries. (y)
*The duties of those courts are faithfully described by Lord    52
towell, in the case of the Swedish Convoy:(z) ", In forming my [ 521
judgment, I trust that it has not for a moment escaped my anxious recollection what it is that the duty of my station calls for from  me;
namely, not to deliver occasional and shifting opinions to serve present
purposes of particular national interest, but to administer with indifference
that justice which the Law of Nations holds out, without distinction, to
independent states, some happening to be neutral, and some belligerent:
the seat of judicial authority is indeed locally here, in the belligerent
country, according to the known law and practice of nations, but the law
itself has no locality.  It is the duty of the person who sits here to determine this question exactly as he would determine the same question if
sitting at Stockholm; to assert no pretensions on the part of Great
Britain which he would not allow to Sweden in the same circumstances;
and to impose no duties on Sweden, as a neutral country, which he would
not admit to belong to Great Britain in the same character."
In another case,(a) he says: "cIt is to be recollected that this is a
Court of the Law of Nations, though sitting here under the authority of
the king of Great Britain. It belongs to other nations as well as to our
own; and what foreigners have a right to demand from it is the administration of the Law of Nations simply, and exclusively of the introduction
of principles borrowed from our own municipal jurisprudence, to which
it is well known they have at all times expressed no inconsiderable reluctance."
It cannot be denied that this theory of judicial duty breathes the very
spirit of pure and impartial justice. It is to be rememberedcl, also, that
the simple enunciation of such a theory is, to a certain extent, a guarantee for a corresponding practice on the part of the nation proclaiming it.
It holds up the severest standard by which to measure *the decisions of the court; and it witnesses beforehand, as it were, [ 5
against any deviation from  the path of duty thus emphatically pointed
out.
The remark of Mr. Wheaton upon this theory, expounded, he admits,
(x) The Snipe and others, Edwards' Adm. Rep.; also published separately.
(y) See important remarks of Mably, Droit Public, vol. iii. pp. 350, 351; and
Wheaton, Hist. p. 171, note.
z) The Maria, 1 Robinson, p. 350.
(a) The Recovery, 6 Dodson's Adm. Rep. p. 349.




80      PHILLIMtIORE  ON  INTERNATIONAL  LAW.
by c one of the greatest of maritime judges," is, that those whose
interests are affected by those adjudications will always doubt whether
the practice corresponds with the theory-especially in the case of a
great maritime country, whose judge must, he thinks, unconsciously feel
the national bias in favour of whatever operates to the encouragement of
the national navy. These judgments, however, he says, if the principles
upon which they are founded be rigorously examined, may be an
instructive source of information upon Prize Law; and he himself
enumerates " the adjudication of Boards of Arbitrators  and Prize
Courts" among the sources of International Law, ascribing greater weight
to the former than to the latter authority.
It is true that the value of the judgments referred to depends upon
the principles, reasonings, and authorities upon which they rely; but it
is the constant practice in these cases to state the clata at length, as well
as the judicial conclusion; and IMr. Wheaton himself does not suggest
that the latter are often found inconsistent with the former.
In the very elaborate letter addressed, March 28, 1843, to the British
Government, by Mr. Webster, then Foreign Secretary to the United
States, that eminent person, after contending that there is no distinction
between the right of Visitation and the right of Search, observes: " If
such well-known distinction exists, where are the proofs of it?  What
writers of authority on the public law, wehat adjudications in Courts of
Admiralty, what public Treaties, recognise it?"(b)
As reference has been, and must afterwards be made, in the course of
this work, to the judgments of Lord Stowell, and as it is important to
m54    ark the place which these are *entitled to occupy among the
[ 54 ] sources of International Law, the opinion of American jurists
with respect to them becomes valuable, and for many reasons.  When
they were delivered, the greater portion of Continental Europe was under
the actual dominion, or at least the predominating influence of France,
which then disregarded all the authorities of the ancient Law of Nations.
These judgments contain frequent references to French writers upon
Maritime Law, and to Vattel generally, as a work of the highest authority. The assent or dissent therefore of France, and the countries subject to France at that timne, could not affect the merit of these decisions.
The United States of North Amrerica, however, were naturally inclined
to favour France from  motives of gratitude.  These States composed a
free maritime nation, daily increasing in all the elements of national
greatness and prosperity; occupying an immense territory in the new
world; avowedly adhering to the system of International Law(c) as acknowledged and received at the time when they became an independent
kingdom: they were themselves, during a portion of the momentous
period over which these decisions extend, a Neutral Power, upon whom
the principles laid down in them  pressed, however justly, with great
and acknowledged severity; and during another portion a Belligerent,
(b) Wheaton's Hist. p. 711.
(c) Commentaries upon American Law, by Mr. Chancellor Kent, vol. i. p. 1, citing
instance of the 4th of December, 1781; Annals of Congress, vol. vii. 185.




DECISIONS OF PRIZE  COURTS.                       81
actuated by the keenest hostility against the country in which these
judgments were delivered.
The verdict of such a nation is unquestionably entitled to great weight
in matters of International Law, and not open to the charge, with respect
to this epoch at least, of partiality to the Prize Tribunals of Great Britain.  For this reason, the opinion of Mr. Chancellor Kent upon the
subject of Lord Stowell's judgments is very valuable.  A portion of the
Chancellor's work was devoted by him  to the subject *of International Jurisprudence, and it is certainly in no way inferior to [*55]
the rest of the commentaries which have earned for him a very high
legal reputation in the Western hemisphere;(d)"c In the investigation of the rules of the 3Modern Law of Nations, particularly with regard to the extensive field of maritime capture, reference
is generally and freely made to the decisions of the English Courts.
They are in the habit of taking accurate and comprehensive views of
general jurisprudence, and they have been deservedly followed by the
Courts of the United States on all the leading points of National Law.
We have a series of judicial decisions, in England and in this country,
in which the usages and the duties of nations are explained and declared
with that depth of research, and that liberal and enlarged inquiry, which
strengthen and embellish the conclusions of reason.  They contain more
intrinsic argument, more full and precise details, more accurate illustrations, and are of more authority, than the loose dicta of elementary
writers.  When those courts in this country which are charged with the
administration of International Law have differed from the English adjudications, we must take the law from domestic sources; but such an
alternative is rarely to be met with; and there is scarcely a decision in
the English Prize Courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of
our National Courts.  We have attained the rank of a great commercial
nation; and war, on our part, is carried on upon the same principles of
maritime policy which have directed the forces, and animated the councils of the naval powers of Europe.  When the United States formed a
component part of the British Empire, our Prize Law and theirs was the
same; and after the Revolution it continued to be the same as far as it
was adapted to our circumstances, *and was not varied by the  *56
power which was capable of changing it.  The great value of a I5]
series of judicial decisions in prize cases, and on other questions depending on the Law of Nations, is, that they render certain and stable the
loose general principles of that Law, and show their application, and
how they are understood, in the country where the tribunals are sitting.
They are, therefore, deservedly received with very great respect, and are
presumptive, though not conclusive evidence of the Law in the given
case." This was the language of the Supreme Court of the United States
so late as 1815; and the decisions of the English High Court of Admiralty, especially since the year 1798, have been consulted and uniformly
respected by that Court as enlightened commentaries on the Law of
(d) Kent's Commentaries upon American Law, vol. i. p. 68.




8       PHILLIMORE  ON  INTERNATIONAL  LAW.
Nations, and affording a vast variety of instructive precedents for the
application of the principles of that Law.
Few names have obtained greater celebrity upon questions of International Law than that of Dr. Story; and with his opinion this branch
of the subject may be concluded: "l How few," he says, "s have read with
becoming reverence and zeal the decisions of that splendid jurist-the
ornament, I will not say, of his own age or country, but of all ages and
all countries; the intrepid supporter equally of neutral and belligerent
rights;'the pure and spotless magistrate of nations, who has administered
the dictates of universal jurisprudence with so much dignity and discretion in the Prize and Instance Courts of England! —Need I pronounce
the name of Sir William Scott?"
The seal of Courts of Admiralty, being also Courts of International
Law, is judicially taken notice of, without positive proof of its authenticity, by the Courts of all Nations.(e)
[*58]                   *CHAPTER VII.
WRITERS ON INTERNATIONAL LAW.
LX. THE consent of nations is further evidenced by the concurrent
testimony of great writers(c) upon International Jurisprudence.  The
works of some of them have become recognised digests of the principles
of the science; and to them every civilized country yields great, if not
implicit homage.(b)
(e) Yeaton v. Fry, 5 Cranch's (American) Rep. 335,.343 (Ch. J. Marshall);,*,r7 Thompson v. Stewart, 3 Conn. (American) Rep. 171; 2 *Kent's Commentaries, 121, note. But the rule is different as to the seal of other foreign
courts: Delafield v. Hand, 3 Johns. (American) Rep. 310; Desobrey v. Laistre, 2
Harr. & Johns. (American) Rep. 192.
Henry v. Adey, 3 East 221: " In an action upon a judgment obtained in the
island of Grenada, the plaintiff, at the trial before Lord Ellenborough, C. J., at
the sittings after last term at Guildhall, proved the handwriting of the Judge of
the Court subscribed to the instrument purporting to be the judgment of the
Court, but could not prove that the seal affixed to it was the seal of the island;
for want of which proof the plaintiff was nonsuited."  The Court, on an application to set aside the nonsuit, upheld it.
(a) See some very sensible remarks on this head, by M. Ortolan, Diplomatie de
la Mer, 1. i. c. iv. t. i. p. 74, &c.
" Text writers of authority showing what is the approved usage of nations, or
the general opinion respecting their natural conduct, with the definitions and
modifications introduced by general consent," are placed as the second branch of
International Law by Wheaton.-El. of Int. Law, vol. i. p. 59.
(b) The English Courts of Common Law, and English commentators upon that
law, both in cases of public and private International Law, have been in the habit
of referring to other works of these foreign authors, as containing evidence of the
law to be administered in England: e. g. see Comyn's Digest, tit. Ambassador,
where Grotius is cited. See the authorities cited by Lord Mansfield in the cases
relating to ambassadorial privileges, mentioned in a later part of this work; and
see the whole part of this work on Comity, or Private International Law. Lord
AMansfield, in fact, built up the fabric of English Commercial Law upon the foundation of the principles contained in the works of foreign jurists. In the Admi



WRITERS ON  INTERNATIONAL  LAW.                            83
~When Grotius wrote his immortal work he derived but little help(c)
from  any predecessor in the noble career which *he chose for
himself.  Albericus Gentilis, Arthur Duck, and Suarez had in- [59 ]
deed left him materials of which he fully availed himself, as well as of
the labours of publicists like Ayala and Bacon, and of the commentators
on the Civil and Canon Law; but he may be almost said to have himself laid the foundation of that great pillar of International Law-the
authority of International Jurists.  His own book, one of the firmest
barriers yet erected by Christendom against barbarism, and the works of
some subsequent writers upon the same subject, have long obtained the
honour of being the repositories to which nations have recourse for argument to justify their acts or fortify their claims.  They are indeed, with
the modifications that reason and usage apply, admitted umpires in International disputes; and this fact has greatly contributed, and still does
contribute, to clothe the Law of Nations, more and more, with the precision and certainty of positive and municipal law.
The value ascribed to the opinion(d) of each writer, in the event of
there being a difference between them, is a point upon which it is impossible to lay down a precise rule; but among the criteria of it will be the
length of time by which it is, as it were, consecrated, the period when it
was expressedcl, the reasoning upon which it rests, the usage by which it
has been since strengthened, and to the previous existence of which it
testifies. (e)
*When, on the other hand) their authority, in the absence of
any contrary usage or convention, may be safely said to be bind- [ 60  ]
ing upon all nations: " All writers upon the Law of Nations unanimously
acknowledge it," is not the least of Lord Stowell's arguments for the
belligerent's right of search.(f)
"In cases where the principal jurists agree, the presumption will be
very great in favour of the solidity of their maxims: and no civilized
nation that does not arrogantly set all ordinary law  and justice at defiralty and Ecclesiastical Courts, these works had been always referred to as authorities. It is by these courts indeed, and the practitioners therein, that the study of
Civil and International Law was alone preserved from perishing in these islands:
the seed was sown and kept alive in them, which subsequently bore fruit of which
no country need be ashamed.-See Preface, by Dr. Phillimore, to Sir G. Lee's
Reports.
(c) Grotii Prolegomena, xxiii., as to the auxilia scripti which he had.
"Solent antem gentium sententike de eo quod inter illos justem esse debent
triplici modo manifestari moribus scilicet et usu, pactis et feederibus, et tacita
approbatione juris regularum a prudentibus esx ipsis rerum causis per interpretationem et per rationem deductarum." —Warnkcenig, Doctrina Juris Philosophica
Aphorismis Distincta (a most valuable little work,) s. 146, p. 190.
(d) No rule of International Law exists like that of the Imperial Law of Rome,
which decided that the opinions of Papinianus, Paulus, Gaius, Ulpianus, and Modestinns should have the force of law; that, in points where they differed, the
opinion of the majority, and, where they were equally divided, the side on which
Papinianus was found, should prevail. —Th. Cod. i. 4, De Responsis Prudentum
L. un.; lb. ix. 3, L. un. Pr. de Sent. Pass.; Cod. ix. 51, 13 de Sent Pass.; Muhlenbruch, Doctr. Pand. Pr. s. 8.
(e) Vattel cited " as a witness as well as a lawyer."-The Maria, 1 Rob. Adm.
Rep. p. 363. See the case generally on this point.
(f) The Maria, 1 Rob. Adm. Rep. p. 360.




84      PHILLIMORE ON  INTERNATIONAL LAW.
ance will venture to disregard the uniform sense of the established writers
of International law."(g)
And how great is the advantage of this, that a controversy between
France and England should be capable of being referred to principles
laid down by an arbitrator who existed long before the disunion arose,
and whom it is impossible to accuse of partiality! This remark supposes the reference made to a neutral jurist, belonging to neither country; but the advantage is not so limited-it may be that the authorities
belonging to the very country which is urging a demand will be found
to pronounce against it.
If the authority of Zouch, of Lee, of Mansfield, and, above all, of
Stowell, be against the demand of England-if Valin, Domat, Pothier,
and Vattel(h) be opposed to the pretensions of France —if Grotius and
Bynkershoek confute the claim of Holland-Puffendorff(i) that of Swe*61 [  den —if *Heineccius, Leibnitz, and Wolff  array themselves
E1 ] against Germany-if Story, Wheaton, and Kent condemn the
act of America, it cannot be supposed (except, indeed, in the particular
epoch of a Revolution, when all regard to law is trampled underfoot)
that the acgurynmenturn   ad patriarn  would not prevail —at all events, it
cannot be doubted that it ought to prevail, and should the country relying upon such authority be compelled to resort to arms, that the guilt of
the war would rest upon the antagonist refusing to be bound by it.
It is with reference to the authority of jurists that we find Lord Stowell using such expressions as these: "It is the necessary consequence
acknowledged in all books."  " The institution (i. e. of a particular state
with respect to a matter of the Law of Nations) must conform  to the
text law, and likewise to the constant usage upon this matter;" and
again, cc all writers upon the Law of Nations unanimously acknowledge
it, without the exception of even Hubner himself, the great champion of
neutral privileges.?'
And Lord Mansfield, deciding a case in which the privileges of the
attendant of an ambassador were concerned, said —" I remember, in a
case before Lord Talbot, of Burvot v. Barbut, upon a motion to discharge
the defendant (who was in execution for not performing a decree)'because he was agent of commerce, commissioned by the king of Prussia,
and received here as such,' the matter was very elaborately argued at the
bar, and a solemn, deliberate opinion given by the court.  These questions arose and were discussed:' Whether a minister could, by any act
(g) Kent's Commentaries, vol. i. p. 19.
(I) " I stand with confidence upon all fair principles of reason-upon the distinct authority of Vattel —upon the Institutes of other great maritime countries as
well a those of our own countries-when I venture to lay it down that, by the
Law of Nations," &c.-The Maria, 3 Rob. Adm. Rep. p. 369 (Lord Stowell.)
(i) So, in the case of the Swedish convoy, Lord Stowell said: " If authority is
required, I have authority-and not the less weighty in this question for being
Swedish authority; I mean the opinion of that distinguished person-one of the
most distinguished which that country (fertile as it has been of eminent men) has
ever produced-I mean Baron Puffendorff.... In the opinion, then of this wise
and virtuous Swede... his words are memorable. I do not overrate their
importance when I pronounce them to be well entitled to the attention of his
country."




WR ITERS ON  INTERNATIONAL LAW.                          85
or acts, waive his privilege?' —  whether being a trader was any objection against allowing privilege to a minister personally?'-' whether an
agent of commerce, or even a consul, was entitled to the privileges of a
public minister?'-' what was *the rule of decision?'  Lord Talbot declared a clear opinion,'That the Law of Nations, in its [62]
full extent, was part of the law of England;''that the Act of Parliament was declaratory, and occasioned by a particular incident;''that
the Law of Nations was to be collected from  the practice of different
nations, and the authority of writers.'  Accordingly, he argued and determined from such instances, and the authority of Grotius, Barbeyrac,
Bynkershoek, Wiquefort, &c., there being no English writer of eminence
upon the subject.(k)
In truth, a reverence for the opinions of accredited writers upon Public and International Law  has been a distinguishing characteristic of
statesmen in all countries, and perhaps especially of those who have
deserved that appellation in this kingdom.
It has been felt, and eloquently expressed by them, that though these
writers were not infallible, nevertheless, "c the methodized reasonings of
the great publicists and jurists formed the digest and jurisprudence of
the Christian world;" that their works contained principles which influenced every state, and constituted the permanent and embodied voice
of all civilized communities; and that upon their decisions depended one
of the best securities for the observance and preservation of right in the
society of nations.
Sir James Mackintosh, in his speech on the annexation of Genoa to
the kingdom  of Sardinia, touched upon this important subject, in the
following well-weighed and emphatic terms:, It is not my disposition
to overrate the authority of this class of writers, or to consider authority
in any case as a substitute for reason.  But these eminent writers were,
at least, necessarily impartial. Their weight, as bearing testimony to
general sentiment and civilized usage, receives a new accession from
every statesman who appeals to their *writings, and from every   *63
year in which no contrary practice is established, or hostile prin- [ 
ciples avowed.  Their works are thus attested by successive generations
to be records of the customs of the best times, and depositories of the
deliberate and permanent judgments of the more enlightened part of
mankind.  Add to this, that their authority is usually invoked by the
feeble, and despised by those who are strong enough to need no aid from
moral sentiment, and to bid defiance to justice. I have never heard
their principles questioned, but by those whose flagitious policy they had
by anticipation condemned."(l)
In the same spirit Cicero had long ago observed: "Qui peritis non
putat esse obtemperandum, non homines Icedit soed leges ac jura labefactat." (int)
(k) Triquet and Others v. Bath, Peach and Others v. Same, 3 Burrows's Rep.
1480.
Burke's Work, vol. xiii. p. 235, Letters on a Regicide Peace.
(I) The Miscellaneous Works of Sir J. Mackintosh, vol. iii. p. 342.
(min) Cicero, pro Cmecina, ss. 23-25.
Suarez has the following remarks concerning what he designates the docrinalis




86       PHILLIMORE  ON'INTERNATIONAL LAW.
[*64]                 *CHAPTER VIII.
RECAPIT'ULATION OF SOURCES OF INTERNATIONAL LAW.
TIE sources; then, fromn which International Jurisprudence is cerived,
are these:1. The Divine Lawv, in both its branches-namely: The principles of
Eternal Justice implanted by God in all moral- and social creatures, of
which nations are the aggregate, and of which governments are the International Organs —
2. The Revealed Will of God, enforcing and extending these principles of Natural Justice.
3. Reason, which governs the application of these principles to particular cases, itself guided and fortified by a constant reference to analogous cases and to the e written reason" embodied in the text of the Roman
Law, and in the works of Commentators thereupon.
4. The universal consent of nations, both as expressed (1) by positive
compact or treaty, and (2) as implied by usage, custom, and practice:
such usage, custom, and practice being evidenced in various ways-by
precedents recorded in Historyj by being embodied and recorded in
Treaties; in public documents of States; in the Marine Ordinances of
States; in the decisions of International Tribunals; in the works of erminen t writers upon International Jurisprudence.
LXI. It may be well to illustrate by an example the practical application of the principles of International Law derived from the sources
which have been enumerated in the preceding pages.
In 1839, the Emperor of China seized the opium  of certain British
merchants at Canton.  Reparation was demanded by Great Britain, and
on the refusal of it, war followed between the two countries. Peace
beingo made, and the reparation promised, a question arose, Whe*65_] ther, *according to the principles of International Law, the measure of compensation which one government ought to demand of another
for the forcible seizure of the property of its subjects with the cost Sjnice
of the property, or its mzar'ket price at the place of seizure?
This curious and important question between a Christian and civilized
Heathen nation might have been impartially answered by a reference to
the principles of the Roman Law, and to the commentaries of foreign
jurists, aided by the analogy derived from similar cases adjudicated upon
between subject and subject, both in England and other countries. The
decision which these authorities pronounced would have furnished no unintelpret-atio of Laws: "' De hUa igitur interpretatione certum est, non habere vim
legis, quia non procedit h potestate jurisdictionis, sed a scientia, etjudicio prudentum; et ideo dicimus per se non inducere obligatiodem. Quia vero in omni arte
judicium peritorum in illa magnam inducit probabilitatem, ideo etiam in hac legum
humanarum interpretatione huee doctrinalis interpretatio magnum habet authoritatis pondus. In quo varii gradus esse possunt; nam si in alicujus legis intelligentia omnes interpretes conveniant, faciunt humanam certitudinem, et regulariter
loquendo, etiam inducunt obligationem servandi legem, et utendi illa in praxi juxta
talem interpretationem."-De Legibus, lib. vi.




INSTANCE OF APPLICATION OF LAW.                           87
fair measure of the redress due from the Chinese government to the subjects of Great Britain.
The claims of the British government on behalf of her merchant subjects might have been supported by the following arguments: First, the
obligations which the Chinese Government would have incurred if they
had simply constituted themselves the purchasers of the opium, and deferred the payment till the period of the treaty; and, Secondly, the obligations which they incurred by the act of violence, and the character of
wrong-doers with which that act clothed them.
As to the first points then —that is to say, let the Chinese be considered simply as debtors, who had delayed the fulfilment of their contract
till the price of the article had fallen in the market. Perhaps the portion of the Roman Law which, on account of its acknowledged wisdom
and equity, is most generally incorporated into the municipal codes of
Europe is that which relates to obligations.  One of the most celebrated
expounders of this branch of Jurisprudence is Pothier.  In the third
article of the second chapter, and first part of his Treatise, he considers
dcles dommages, et inttrets r6sultans, soit de l'inexecution des obligations, soit dzi r~etard apportd c? leera execution."  And he begins by defining his subject thus-: "On appelle cdomamnages et interets, la perte que
quelqu'un a faite, et le gain qu'il a manqu6 de faire: e'est la    6
definition qu'en donne la loi (13 Ff. Rat. remn hab.) —QuantmzA   [ *66
rned interfuit id est quantuinm  mnihi abest, quancztt'imqe lucaci 2potuli."
The result of his examination of this law is, that in all cases, even where
the debtor is guilty of no bad faith, he shall be compelled to idemnify
the creditor both for the actual loss which he has sustained, and for the
gain which it may reasonably be supposed that he would have made, had
he not been impeded by his engagement.  In cases of bad faith, the rule
is much more severe.
A  particular kind of action was known to the Roman Law, in cases
where the price or value of a thing in which one person was indebted to
another was sought in lieu of the thing itself, payment of which hadc
been delayed.  The action was called, for an antiquated reason which
need not be discussed, Condictio triticcaria;(a) and it is most learnedly
treated by J. Voet, who says, it is necessary to consider, first, whet'her
the value of the thing is the principal object of the suit, or whether the
thing itself be the principal object, and the value only the necessary
substitute, under the circumstances.  If it be the value of the thing, if
the price was to be paid in money, the law, he says, is clear-the sum
due is to be measured by the value of the article at the time when the
obligation was first contractedl, not at the time when the payment was
enforced.(b) If the thing itself be the principal object of the suit, its
value should be estimated, either by that which it was worth at the time
of beginning the suit (litis co~ntestatio), or at the time the sentence was
(a) Dig. de Condic. Tritic. xiii. iii. 1.
(b) " Neque aliam contrahentes videri possunt mstimationem adeoque quantitatem pecuniariam respexisse, qualm que fuit eo tempore, quo primitus obligatio
nascebatur, sive bonze fidei sive stricti juris negotium sit."-Voet, ad Pand. i. xiii.
tit. iii.




88       PIIILLIIMORE  ON INTER NATIONAL LAW, 
pronounced (condemnationis temnpus); provided always that no delay has
been caused by the party against whomn the suit is brought, because then
" dubium  non est, quin frustratio moratori, et non alteri obesse debeat;
ac propterea, si inter moram et litem contestatam remve, judicatam res
[*67] pluris valuerit, quam *ipso litis contestatm vel condemnationis
l67 omento, reus in id, quanti res plurimi fuit, a tempore morc ad
tempus litis contestate, in stricti juris, ant rei judicate in bonre fidei judiciis, damnandus foret."
There can be no doubt that the Chinese Government was the
c lorator" in this case, or that, according to the maxim  of jurisprudence which has been cited, it ought to have been condemned in the
costs of the opium at the time it became possessed of that article, unless,
between that period and the period of restitution, the opium had become
of greater value; for the only doubt raised by Voet is, whether in cases
of bona fides, the augmented price should be due.
Again, from the time of the seizure, the Chinese Government became
the Enmptor; and whatever depreciation of price happened in the interim
betwixt that time and the treaty, enured to the detriment of the purchasers, no maxim being clearer than c periculum rei venditte ad emptorem
statim pertinet."(c)
Again, let the Chinese government be considered, not as the actual
purchasers, but as securities for the payment of the money, and let the
question be tried by the principle of Commercial, which is quasi International Jurisprudence. What is the value in which the insurer is
bound to indemnify the insured-that of the goods at the time of their
loss, or that of their invoice price?  Emerigon, no light authority, is
clear upon this point. He says,(d) adopting the language of other writers,
" En fait de pret h la a Grosse et d'Assurance, on ne fait point attention
d la valeur des effets au temps de leur perte; mais setlemnent dc ce qu'ils
valoient ani tenzps de leur chargement."  So the English law adopts the
original value of the goods as the basis of the calculation of the amount
in which the partial loss of the insured is to be indemnified by the insurer.(e)
Secondly, as to the obligations which the Chinese Government
["68 ] *incurred by its act of violence, and by the character of a wrongdoer with which it thereby clothed itself; and if the language and spirit
of Roman Jurisprudence was in favour of the claim of the opium owners
against the Chinese Government, considered as simple debtors, or as
securities for debtors, infinitely more was it in their favour against that
government treated as wrong-doers.
And, first, as to the Civil Law, which throughout that chapter, "t De
obligationibus que ex delicto nascuntur," teems with analogies, and those
of great force and directly bearing upon this subject.
When a party, wrongfully deprived, was reinstated in his property by
the well-known decree of the Prmetor, the " restitutio in integrum" —the
law said, "Sive quid amiserit sive lucratucs non sit, restitutio facienda
est, etiamsi non ex bonis quid amissum sit;" and in cases of theft, where
(c) Vide passim, Dig. lib. xviii. tit. vi.; Cod. lib. iv. tit. xlviii.
(d) Tom. i. p. 262.     (e) Langhorn v. Allnutt, 4 Taunton's Reports, 511.




INSTANCE OF APPLICATION OF LAW.                           89
thie sentence restored with heavy damages the stolen property, it also
provided for the value of the property where it could not be so restored
--  restimatione relath in id tempus quo furtum factum est."(f)
So by the "Lex Aquilia," where there had been "damnum  injuria
datum," in consequence of which the thing had diminished in value, the
measure of restitution was " quanti ea res in anno plurimdfuit tanturn
domino dare damnetur;"(g) and again it is said,'"placet ad id tempus
spectandum quo res unqum p2urimifuit."(h)
So Pothier, in the chapter already cited, after stating the mitigating
circumstances attaching to transactions of bona ficles, observes,(i) ",Les
principes que nous avons etablis jusqu'a pr6sent n'ont pas lieu, lorsque
c'est le dol de mon d6biteur qui a donne lieu a mes dommages et inter6ts.
En ce cas le debiteur est tenu indistinctement de tous les *dommages et int6rets que j'ai soufferts, auxquels son dol a donne [' 69]
lieu, non-seulement de ceux que j'ai soufferts par rapport a la chose qui
a fait l'objet du contrat, propter r'em ipsam, mais de tous les domrmages
et int6rkts que j'ai soufferts par rapport'a mes autres biens, sans qu'il y
ait lieu de distinguer et de discuter en cc cas, si le delbiteur doit etre
cens6 s'y )tre soumis; car celui qui commet un dol s'oblige, velit, nolit,
a la reparation de tout le tort que ce dol causera."
Grotius,(j) in that chapter of his work which treats c"De damno injuria dato, et de obligationibus quve ex delicto nascuntur," fully adopts
these maxims of the civil law.
To the same effect are the instances cited by Sir John Davis,(k) in a
very curious case, called "Le case de mixt moneys."  In that case the
English Privy Council,(l) assisted by the Judges, seem to have said, that
if a man, upon marriage, receives ~1000 as a portion with his wife, paid
in silver money, and the marriage is dissolved causaprecontractuis, so
that the portion is to be restored, it must be restored in equal good silver
money, though the state shall have depreciated the currency in the meantime;(?M) so if a man recover 2100 damages, and he levies that in good
silver money, and that judgment is afterwards reversed, by which the
party is put to restore back all he has received, the judgment creditor
cannot liberate himself by merely restoring ~100 in the debased currency
of the time, but he must give the very same currency that he had received.
To the same, or even to a stronger effect were the decisions of Lord
Stowell(n) in restoring captured vessels which had been condemned by
illegally constituted Courts in the West Indies.  The ship and cargo
were directed to be restored in value; and on reference being made to
the registrar and *merchants, they took the invoiceprices as the
measure of the value, allowing upon, it ten per cent. profit. [*70]
(f) Dig. de Furtis. xlvii. t. 2. 51.     Inst. iv. t. iii. (De Lege Aquilia.)
(g) Dig. lib. ix. tit. ii. 23.
(h) Dig. lib. xiii. tit. i. 8. 1. De Condictione Furtiva.  (i) Lib. i. p. 72.
(j) De. J. B. et P. lib. ii. c. xvii.  (k) Sir John Davis's Reports, p. 27.
(1) Knapp, Privy Council Rep. vol. ii. p. 20.
(mn) Conf. Burke, Thoughts on the French Revolution, v. 277.
(n) The Lucy, 3 Robinson's Adm. Rep. p. 208.
JULY, 1854.-7




90      PHILLIM ORE ON INTE R NATIONAL  LAW.
Nor was this a solitary case; it was, as the Queen's advocate of that day
said, ("A question in which a great number of cases, and very considerable amount of property, were involved."(o)
Lastly, there was in favour of this position the elaborate judgment of
Sir William Grant, in the case of Pilkington v. The Commissioners for
claims on France.(p)  The circumstances of that case were, that the
Revolutionary Government had confiscated the debts owing from the
subjects of France to those of Great Britain.  By the Treaty of 1814,
compensation was to be made to the latter.  Between the decree of conliscation and the repeal of it, the assignats in which the debts were to
be paid had been depreciated in value: it was disputed whether or no
the depreciation should be charged to the French.  Sir William Grant,
after touching upon the curious question of depreciated currency as
affecting the relations of debtor and creditor, observes: ccI have said it
is "unnecessary to consider whether the conclusion drawn by Vinnius
or the decision in Davis's Reports be the correct one, for we think this
has no analogy to the case of creditor and debtor.  There is a  wrong
act done by the French Governmnent; then they are to undo that worong
act, and to put the party into the same situation as if they never had
done it.  It is assumed to be a wrong act, not only in the Treaty, but
in the repealing decree.  They justify it only with reference to that
which, as to this country, has a false foundation-namely, on the ground
of what other Governments had done towards them, they having confiscated the property of French subjects; therefore they say, we thought
ourselves justified at the time in retaliating upon the subjects of this
country. That being destitute of foundation as to this country, the
Republic themselves, in effect, confess that no such decree ought to have
been *made, as it affected the subjects of this country; therefore
[*71]  it is not merely the case of a debtor paying a debt at the day it
falls due, but it is the case of a wrong-doer, who must undo, and completely undo, the wrongafu act he has done: and if he has received the
assignats at the value of 50d., he does not make compensation by returning an assignat which is only worth 20d.-he must make tzp the diference between the valzue of the assignat at dcfferent periods.  *  *  *  *
If the act is to be undone, it must be completely undone, and the party
is to be restored to the situation in which he was at the time the act to
be undone took place."
If in thy case of the British merchants and the Chinese government,
the treaty had not specified the sum of six millions for the compensation,
but merely promised in general terms to restore the value of the opium
seized-then the principles of International Law which govern the construction of treaties,(q) would have entitled the original possessors of the
opium to demand the most favourable interpretation which could be put
upon the term " value."(r)
The conclusion then to which we are led with respect to the case which
has been discussed, from the application of the principles of International
(o) The Lucy, 3 Robinson's Adm. Rep. p. 210.
p) Knapp, Privy Council Rep. p. 19.
(q) Grotius, lib. ii. c. xiv.               (r) Vattel, t. ii. p. 33.




OBJECTION  TO INTERN A T I O NAL LAW.                     9
Law, derived from all the sources which have been enumerated, is this:
That the British government would have been justified by the law of
nations in demanding the cost price of the opium from the Chinese
government, even if the depreciation in value of that article at the time
of the conclusion of the treaty had been the result of the usual fluctuations of commerce.  It is obvious that this conclusion applied with increased force to a case where the diminished value was one of the consequences of the wrongful acts of that government itself.
*CHAPTER IX.                            [*72]
OBJECTION THAT THERE IS NO LAW BECAUSE NO SUPERIOR.
LXII. IT is sometimes said that there can be no law between nations
because they acknowledge no common superior authority, no international
executive capable of enforcing the precepts of International Law.  This
objection admits of various answers: First, it is a matter of fact that
states and nations recognize the existence and independence of each
other; and out of a recognized society of nations, as out of a society of
individuals, Law must necessarily spring.  The common rules of right
approved by nations as regulating their intercourse are of themselves, as
has been shown, such a law.  Secondly, the contrary position confounds
two distinct things; namely, the physical sanction which law derives
from being enforced by superior power, and the moral sanction conferred
on it by the fundamental principle of right; the error is similar in kind
to that which has led jurists to divide moral obligations into perfect and
imperfect.  All moral obligations are equally perfect, though the means
of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall under the cognizance of human law.(a)
In like manner, international justice would not be the less deserving of
that appellation, if the sanctions of it were wholly incapable of being
enforced.
*1ow far and by what means they are capable of being executed are questions which have been already alluded to, and [*73]
which will be more fully discussed in a subsequent portion of this work,
when the international process of enforcing the execution of International
justice by Negotiation, Treaties, Reprisals, or War comes under consideration.
But, irrespectively of any such means of enforcement, the law must
remain.(b)  God has willed the society of States as he has willed the
(a) Kant, Rechtslehre, s. 54, req. —Warnkcenig says, with much force and truth,
"Nonne ex mutua inter sese invicem agnitione inter eas quoedam constituitur societas, et probantur communes justi regul-e qua verum jus efficiunt? miscet vir
summllus (i. e. Kant) juris sanctionem cum justi notione, ehque in re parum sibi
constans esse videtur."-Doctrina Juris Philosophica, s. 147.
Brown's Philosophy of the Human Mind, vol. iv. pp. 396-7-8.
(b) Kaltenborn, Kritik des Volkerrechts, has a very good chapter on this head,
entitled, Die Laugner des Volkerrechts, kap. vi. p. 306: " Mit Recht nennt Stein es
eilen ckahlen und trostlosen Satz, das es kein Volkerrecht geben solle." —" Stahl




92       PHILLIMORE  ON  INTERNA.TIONAL  LAW.
society of individuals. The dictates of the conscience of both may be
violated on. earth: but to the national, as to the individual conscience,
the language of a profound philosopher is applicable: cc Had it strength
as it had right, had it power as it has manifest authority, it would absolutely govern the world."(c)
Thirdly, most, if not all, civilized countries have incorporated into
their own Municipal Law a recognition of the principles of International
Law.
The United States of North America, almost contemporaneously with
the assertion of their independence,(d) and the new Empire of Brazil, in
1820, proclaimed their national adherence to International Law: in
England it has always been considered as a part of the law  of the
land,(e)
land.(e)   "Lastly, it may be observed on this head, that the History of
[* 74] the World, and especially of modern times, has been but incuriously and unprofitably read by him, who has not perceived the certain
nemesis which overtakes the transgressors of International Justice; for to
take but one instance-what an "Iliad of woes"(f) did the precedent of
the first partition of Poland open to the kingdoms who participated in
that grievous infraction of International Law!  The Roman law nobly
expresses a great moral truth in the maxim-"- Jurisjurandi contempta
religio satis Deum habet ultorem."(g)  The commentary of a wise and
learned French jurist upon these words is remarkable, and may not inaptly close the first part of the work: "Paroles (he says) qu'on peut
appliquer egalement a toute infraction des Loix naturelles.  La justice
de i'Auteur de ces Loix n'est pas moins armee contre ceux qui les transgressent, que contre les violateurs du serment, qui n'ajoute rien a l'obligation de les observer, nii k la force de nos engagements, et qui ne sert
qu'a nous rappeler le souvenir de cette justice inexorable."(h)
(Rechtsphilosophie) erklirt, nicht alles Recht sei erzwingbar, unter Anderem nicht
das Volkerrecht. Wena man aber nur richtiger und allgemeiner Weise die Erzwingbarkeit als Russere Realisirbarkeit auffast, so ist auch das Volkerrecht erzwingbar zu nennen," pp. 307, 309, n.
-.(c) Bishop Butler (Sermon III.), On Human Nature.
" Si les Loix Naturelles ont assez de force pour regner sur les Rois meme par la
crainte de l'auteur de ces Loix, elles ne r6gnent pas moins entre les Rois ou entre
les differentes nations comparees les unes avec les autres. Elles sent le seul appui
ordinaire de ce droit qui merite proprement le nom deDroit des Gens; c'est k dire,
de celui qui a lieu de Royaume a Royaume ou d'Etat a Etat." —Institution au Droit
Public, xii. t. i. 498; (Euvres d'Aguesseau.
(d) "; According to the general usages of Europe." —Kent, Comm. i. p. 1.
e) Blackstone's Commentaries on the Laws of England, book iv. c. v.
f) Burke, Letters on a Regicide peace.
(g) Cod. lib. iv. t. i. 2, De Reb. Cred. et de Jurejurando (Alexander Ceverus).
(h) D'Aguesseau, Ib. xiv. t. i. p. 500. See, too. p. 482.
" Auch ist di Erzwingbarkeit nict der einzige Charakter des Rechts, auch nicht
sein wesentlichester-Dieser besteht vielmehr darin, das es Norm und Ordnung
fiir alle menschlichen Gemein verhailtnisse in allen Sphdiren und Dimensionem des
privatan und des offentlichen Lebens, mithin auch des socialen Verhaltnisses der
Volker und Staaten untereinander also Yilkerrecht ist-Der Zwang geht nun aber
von Gemeinschaft als solcher aus-Dies ist die Ordnung die Aufrecht erhalten werden soll-Das Rechtsleben ist das Gemeinleben, u. s. w." —Kaltenborn, 310, ib.




PART THE  SECOND.
*CHAPTER  r.                          [*75]
SUBJECTS OF INTERNATIONAL LAW-STATES.
LXIII. States are the. proper, primary, and immediate subjects of
International Law. It will be seen, indeed, that questions of this jurisprudence may be raised in matters affecting the persons and property
both of Private Individuals and of Sovereigns and Ambassadors-the
Representatives of States-and of public officers like Consuls, but mediately and indirectly, and in so far only, as they are members, or representatives, or public officers of States. Under the appellation of State
are included all the possessions of a Nation; so that if a Nation establish
a Colony, however distant that is looked upon by the eye of the Law as
a part of the State, in the same manner as a province or city belonging
to her ancient territory; and therefore, unless by the policy of the Mother
State, or by the provisions of Treaty, a different character has been impressed upon the Colony, the Law applicable generally to the territory
of the State is applicable to the Colony or Colonies belonging to her:
all together make up one State, and are to be treated as one by International Law. (a)
LXIV. The question as to the origin of States belongs rather to the
province of Political Philosophy than of International Jurisprudence.
The idea that any descendant of *Adam ever existed in what has - 
been falsely called a state of nature, that is, out of the society of [*76]
his fellow-men, has been long ago demonstrated to be equally inconsistent
with reason and experience. The occasions, however, which led to the first
formation of the particular society, of which each man is a member, may
be of various kinds. That society may have been created by the division
of a great empire into several kingdoms, whether by force of arms or by
mutual consent; thus the empires of Alexander, of Charlemagne, and of
Charles V. were distributed, among their successors, into separate kingdomns. It may have been founded by an accidental concourse of individuals abandoning another country, according to the classical legend of
(a) Vattel, lib. i. c. xviii. s. 210:' "Tout ce qui est dit du territoire d'une Nation,
doit s'entendre aussi de ses Colonies."




94        PHILLIMORE  ON  INTERNATIONAL  LAW.
Antenor(b) and the story of the fugitives from the oppression of Attila,
to which Venice(c) was said to owe her origin, or it may have been
formed by the separation of a province from the community of which it
was formerly an integral part, and by its establishment as an independent
nation.(d)   In all the foregoing ways,,"novus populus suijuris nasci1[*77] tur."(e) The last instance will be *more particularly considered
in another part of this work, when the doctrine of Recognition
comes under discussion.
LXV. But for all purposes of International Law, a State (btz,
civitas, Volk) may be defined to be, a people permanently occupying a
fixed territory (certain sedem), bound together by common laws, habits,
and customs into one body politic, exercising, through the medium of
an organized Government, independent sovereignty and control over all
persons and things within its boundaries, capable of making war and
peace, and of entering into all International relations with the other
communities of the globe.  It is a sound general principle, and one to
be laid down at the threshold of the science of which we are treating,
that International Law has no concern with the form, character, or power
of the constitution or government(f) of a State, with the religion of its
inhabitants, the extent of its domain, or the importance of its position
and influence in the commonwealth of nations.  "'Russia and Geneva
have equal rights:"(g) " Une petite Republique n'est pas moins un Etat
(b) 1" Antenor potuit mediis elapsus activis,
Illyricos penetrare sinus, atque intima tutus
Regna Liburnorum, et fontem superare Timavi:
*      *       *       -*      *      *
Hic tamen ille urbem Patavi sedesque locavit
Teucrorum, et genti nomen dedit, armaque fixit
Troia."-                                    LAEn. i. 242-249.
(c) Gibbon, Decline and Fall of the Roman Empire, vol. vi. c. xxxv. 119-121.
() Vattel, lib. i. c. xviii. s. 206; Rutherforth, b. ii. c. ii. s. 5, p. 1259; Kliiber,
pt. i. c. i.; Wheaton's Elements, vol. i. p. 91.
(e) Grotius, lib. ii. c. x. p. 327.
" Concilia ecetusque hominum jure sociati qucs civitates appellantur."-Cicero,
Somn. Scip. iii.
" Quid est enim civitas nisi juris societas."-De Rep. lib. i. 32.
"Est igitur, inquit Africanus, respublica res populi, populus autem, non omnis
hominum ccetus, quoquo modo congregatus, sed ccetus, multitudinis juris consensu
et utilitatis communione sociatus.-Ib. lib. i. 25.
" Consociatio juris atque imperii."-Grotius, De J. B. et P. lib. ii. c. ix. s. 8, p.
326.
"~'0 oxXo; (gcrrt) X7r)0oo d6ptrov, Xr)6Oos cvyeexv[tcvov, 7r)TX0o  do-vvaK-rov -ov yip o7ov b
Xopas, oedi otov b ios' O   bi yV 7ap 6iiu6 E rort rX40o; ovvBe6OevOUv 6b   dXXos &eorao-aopeov."`Plato, Proclus in Alcib. lib. xviii.'farep yap ocr 0 K   royv rv7oro 7r-XOv; 7roXt; y7yVerat." —Arist. Polit. v. 3, 10.
"Facultas ergo moralis civitatem gubernandi, quee potestatis civilis vocabulo
nuncupari solet a Thucydide, tribus rebus describitur, cum civitatem, quwe ver6
civitas sit; vocat, adrovoyov, aVrol&KOV, adTorEX4 (lib. v. 18), suis utentum legibus,
judiciis, magistratibus."-Grotius, lib. i. c. iii. s. 6.
Grotius observes (lib. ii. c. xviii. s. 2) most truly, " Qui autem externi habendi
sint, ita clar6 exposuit Virgilius ut nemo jurisconsultorum possit clarius:
Omnemr equidem sceptris terram quae libera nostris
Dissidet, externam reor.' "-L-En. 369, 370.
(f) Vattel, liv. i. c. i. s. 4: " Toute nation qui se gouverne ellemdme sous quelque forme que ce soit, sans d6pendance d'aucun etranger, est un Etat Souverain."
The words " sans dependance" are, it will be seen, too lax.
(g) Judgment of Chief Justice Marshall, in the case of The Antilope, Wheaton's




SUBJEOTS  OF INTERNATIONAL LAW-STATES.   95
souverain que *le plus puissant royaume."(h)  Provided that
the State possess a Government, capable of securing at home [*78]
the observance of rightful relations with other States, the demands of
International Law are satisfied.
LXVI. If the foregoing definition be considered in detail, it will be
found to exclude from the legal category of a State the following aggregates of individuals: (1.) All hordes or bands of men recently associated
together, newly arrived at or occupying any previously uninhabited tract
or country, though it may be possible that such horde or band may, in
course of time, change its character, and ripen into a body politic, and
have a claim to be recognised as such.  "Est autema  civitas," Grotius
says,(i) c" cwetus perfectus liberorum hominum, juris fruendi, et communis
utilitatis causa sociatus;" and in another place, defining the character of
sovereignty, c"Summa autem  illa dicitur (i. e. potestas civilis) cujus
actus alterius juri non subsunt, ita ut alterius voluntatis humanve arbitrio
irriti possint reddi.....   summrs potestatis subjectum commune est
civitas quam  perfectum  ccetum esse supra  discimus."(k)  (2.) All migratory hordes not occupying a fixed or certain seat-and all associations
of men united for the accomplishment of immoral ends (sceleris causa),
such as piratical hordes, although they may have a fixed abode, and call
themselves by the name of States.  The Malay and Sooloo pirates of
Borneo and the Eastern Archipelago furnish an existing example of such
societies.(l)  "Populus autem," Cicero says, in a definition copied by
most jurists, "non omnis homlinum  ccetus, "quofquo mnodo congregatus,
sed coetus multitudinis juris *consensu et ztilitatis communione
sociatus;"(nm) and in another place,'Neque esset unum vinculum  [*79]
juris, nec consensus ac societas coetus, quod est populus."(n)
LXVII. With respect to societies united sceleris causa, the philosophers and jurists of antiquity are in perfect accordance with those of
modern times. All agree to class such bodies amongst those of whose
corporate existence the law takes no cognizance (qui civitatem nonfaciunt,) and therefore as not entitled to any International Rights either in
peace or War. The question has generally been raised in time of war
as to when a state should be considered a legitimate enemy (Ihostis,) and
when as a lawless freebooter (pirata latro).(o) It is not, however, because
a nation commits a piratical act, or is guilty of the violation of International Rights, that it is to be considered as wholly without the pale of a
State.   The ancient Greeks, we learn from  Homer and Thucydides,
practised rapine and piracy, and considered these exploits rather glorious than shameful.  The Normans, the original discoverers of AmeReports (American), vol. x. p. 66; Wheaton's History of the Modern Law of
Nations, p. 637.
(h) ~attel, Prelim. s. 18, Egalit6 des Nations; and s. 19, 1" Par une suite n6cessaire de cette 6galit6, cc qui est permis h une nation l'est aussi a toute autre, et ce
qui n'est pas permis h l'une, n'est pas non plus a l'autre."
(i) De J. B. et P. lib. i. c. i. s. 14.       (k) Ib. c. iii. s. 7.
(1) Serhassan Pirates, 2 Robinson, Jun., Adm. Rep. pp. 354 —358; The Illeanon
Pirates, Queen v. Belcher, 6 Moore's Privy Council Rep. pp. 471-484.
(m) De Rep. lib. i. 25.            (n) De Rep. lib. iii. 31.
(o) Grotius, De J. B. et P. lib. iii. c. iii. ss. 1, 2: "Distinctio populi, quamvis
injuste agentis, a piratis et latronibus."




96       PHILLIMORE  ON  INTERNATIONAL  LAW.
rica, who swept the seas with their victorious gallies, and subverted and
founded kingdoms by the prowess of their individual subjects, dealt, it
is said, with the ships which they encountered on the high seas as their
legitimate prey.(p)  The ancient Greeks and Normans, however, were
*80   not pirates in the legal sense of the term.  Their *society was
[     ]uJ formed for civil and moral objects, not for plunder; and their
acts of violence sprung from a confusion, incident to a barbarous age, in
the principles of right and wrong, and the laws of war and peace.
Pompey was allowed the honour of a triumph for his victory over the
Illyrians, who certainly exercised indiscriminate hostilities against the
ships of all counties, but they were considered a "cgens," and as having,justumn imperium."   He did not receive the same distinction for his
destruction of the pirates who infested the Mediterranean: c"Tantum
discrimen," Grotius observes,(g) "c est inter populum quantumvis sceleratumrn, et inter eos, qui, cum populus non sint, sceleris causa coeunt."
In the time of Charles the Second of England, Molloy wrote as follows: e"Pirates that have reduced themselves into a government or
state, as those of Algiers, Salley, Tripoli, Tunis, and the like, some do
conceive ought not to obtain the rights and solemnities of war, as other
towns or places; for though they acknowledge the supremacy of the
Porte, yet all the power of it cannot impose on them more than their
own wills voluntarily consent to." He there mentions that Louis IX.
treated them as a nest of wasps,(r) and unworthy of the rights of civilized war; r"notwithstanding," he adds, "e this Tunis and Tripoli, and
their sister Algiers, do at this day (though nests of pirates) obtain the
rights of legation: so  that now  (though indeed pirates,) yet having
acquired  the reputation of a government, they cannot properly be
esteemed pirates, but enemies."(s)  Bynkershoek,(t) some years after[* 811 wards expressed yet more strongly *the same opinion.  And
L81 J in the year 1801, Lord Stowell fully adopted this position, and
asserted that the African States had long ago acquired the character of
established governments, with whom we have regular treaties acknow(p) Thucyd. i. 5: " ot yap'"EXXvEs to' r,tv.... Erpd6roPro 7rpd Xls7Eiav.... Kai
2p7raiov.... OVK EXOV"Tr oe7 ai)X7Yv7v ro7Trov Tro O pyov, 0;povrT 6' re7 KaLt 6rnS paXXov. —
Arist. Pol. v. 2, 3; Hom. Od. iii. 73; ix. 252; Herod. ii. 152; iii. 39, 47; Thucyd.
vi. 4; Appollod. i. 9, 18. Liv. v. 28: " Iaud procul freto Siculo a piratis Liparensium excepti, devehunter Liparas. Mos erat civitatis, velut publico latrocinio partam prsedam dividere."'
Lord Clarendon's account of the Privateers of Ostend, by whom he was taken
prisoner, puts them pretty much upon the same level as the classical Freebooters.
See Clarendon's Life (8vo ed.), p. 208: " All the ships, though they had the king
of Spain's commission, were freebooters, belonging to private owners, who observed
no rules or laws of nations." See, too, p. 212.
(q) Lib. iii. c. iii. s. 2.
(r) "Bugia ed Algieri infami nidi di corsari." —Tasso.
(s) Molloy, s. 4, p. 33.
(t) " Quod autem Albericus Gentilis (Advoc. Hispan. 1. i. c. xv. (aliique eos qui
Barbari in Africa vocantur, jure Piratarum censent, et eorum occupatione dominium
mutari negant, nulla ratione defendi potent-Algerienses, Tripolitoni, Tunitini,
Zaleenses piratm non: sunt, sed civitates, quae certam sedem, atque ibi imperium
et quibuscum habent, nunc pax est nunc bellum, non secus ac cum aliis Gentibus,
quique propterea ceterorum Principum jure esse videntur."-Bynkershoek, Qunest.
J. P. b. i. c. 1Z.




SUBJECTS OF  INTERNATIONAL  LAW-STATES.  97
ledging and confirming to them the relations of legal communities;(u)
and he remarked that, although their notions of International justice
differ from those which we entertain, we do not on that account venture
to call in question their public acts-that is to say, that although they are
perhaps in some some points entitled to a relaxed application of the principles of International Law, derived exclusively from European custom,
they are nevertheless treated as having the rights and duties of states
by the civilized world.(x)
*These observations were always applicable in some degree to
the relations of the Ottoman Porte itself with other Govern- [*82 
ments.  The Ottoman Empire extends, whether in Asia, Africa, or
Europe, over a vast variety of distinct nations and separate races.
IHardly have those separate races which profess the M3ahometan religion
coalesced into one nation.  But the Christian whether of the Greek or
the Roman Catholic Faith, has never entirely lost those distinctions of
origin, manners, institutions, and, above all, of religion, which eternally
separate him  from  the Turk.  These distinctions have always been and
must always be indelible.  The Mahometan and the Christian may live
under the same government,(y) but they will remain distinct nations.
The two streams are immiscible in their character, and will never " flow
the same."
For some time after the conquest of Constantinople  (1453) grave
doubts were entertained by the nations of Christendom as to the lawfulness of any pacific intercourse with the Sultan.  It was not until after
the Treaty of Constantinople in 1720, that the Russian Minister was permitted to reside at Constantinople; and direct relations between Roman
Catholic Sovereigns and the Porte can scarcely be said to have any earlier date than the end of the eighteenth century.(z) Even after the
(u) The Helena, 4 Rob. Adm. Rep. p. 5. Life of Sir Lionel Jenkins, vol. ii. p.
794.
(x) It is well known that, for some time, the lawfulness of any dealings, much
more any treaty, between the Christian and the Turk was denied. Albericus Gentills discusses (De Jure Belli, lib. iii. c. xix.), "Si fcedus rectb contrahitur cum
diversoe religionis hominibus, qumstio partim  theologalis, partim  civilis."  He
treats it however, for the most part, theologically, and arrives at the conclusions
that commerce is lawful between Christian and Heathen States, but not in alliance
against another Heathen State; and d fortiori, not against another Christian State.
Nevertheless, in a former chapter, he had said, with a liberality scarcely known
to the age in which he lived, " Religionis jus hominibus cum hominibus proprib
non est: itaque nec jus lheditur hominum ob diversam  religionem; itaque, nec
bellum  causr religionis. Religio erga Deum est; jus est divinum, id est, inter
Deum -et hominem; non est jus humanum, id est, inter hominem  et hominem:
nihil igitur quneritat homo'violatam sibi ob aliam religionem." —Lib. i. c. ix.
Grotius, De J. B. et P. lib. ii. c. xv. 8-12: " De fcederibus frequens est quaestio,
licitbne ineantur cum his qui h verk religione alieni sunt: quo res in Jure naturae
dubitationem non habet; nan id jus ita omnibus hominibus commune est, ut religionis discrimen non admittat. Sed de jure divino qunritur."
Lord Coke said there were four kinds of Leagues: lst, Fcedus Pacis; 2nd, Fcdus
Congratulationis; 3rd, Feedus Commutationis Mercium: these three might exist between a Christian and an Infidel State, but the 4th Fecedus Mlutui Auxilii could
not.-4th Instit. 155.
Ward's Law of Nations, ii. 321 (Of Treaties with Powers not Christian).
(y) See Lord Stowell's Judgment on The Indian Chief, 3 Robinson's Admiralty
Reports, p. 29.
(z) 2 Miltitz, IMlanuel des Consuls, p. 1571.




98      PHILLIMORE  ON INTERNATIONAL LAW.
lapse of nearly four centuries, at the Congress of Vienna, 1815, the
Ottoman Empire was not represented, nor was it included in the provisions of positive public law contained in the Treaty which was the result
of the Congress. Nevertheless, the International intercourse between
the Sultan and other Powers was then, and had been for a long time,
upon a much stricter footing of legality, than had subsisted between those
powers and the African or Barbary States.
Long before the Treaty of Vienna (1815) the crescent had ceased to be
an object of terror to Christendom; and a principle of International
Policy with respect to the Ottoman Power, *directly the reverse
*[ 83] of that which had formerly prevailed, had taken root in Europe
-namely, the principle that the preservation and independence of the
Ottoman Power was necessary for the safety of European Communities.(a)
LXVIII. The Treaties affecting the relations of Russia with the Porte
are the following:Adrinople... 1681
Carlowitz....                 1699
Constantinople.....       1700
Constantinople.. 1709
Peace of Pruth... 1711
Constantinople  ~.. 1712
Adrinople.... 1713
Constantinople.. 1720
(By this treaty a Russian Minister was permitted to reside at Constantinople.
Belgrae....... 1739
Kayenardgi.. 1774
Explained... 1779
Constantinople.....   1783-4
Szistowe, Gallacz, Yassy... 1790-1-2
Constantinople.. 1809
Bucharest..... 1812
Ackermanl.. 1826
Adrinope..... 1829
Unlkiar S.kelessi..... 1833
London. 1840
Dardanelles...... 1841
Balta Liman....      1846
Balta Liman...... 1849
LXIX. But the general Treaties between the Ottoman Porte and the
European States appear to be best arranged as follows:1. From the conquest of Constantinople to the Treaty of Carlowitz, 1699.
2. From the Treaty of Carlowitz, 1699, to the Treaty of Belgrade, 1739.
3. From the Treaty of Belgrade, 1739, to the Treaty of Bucharest, 1812.
(a) The question of the Religious Protectorate claimed by Christian Powers
with respect to the Christian subjects of the Sultan, both in Europe and Asia, will
be discussed hereafter.




SUBJ E C T S OF  INTE R NATIONAL  LAW-STATES.  99
4. From the Treaty of Bucharest, 1812, to the Treaty of the Dardanelles
in 1841.
5. From  the Treaty of the Dardanelles, 1841, to the present time.
*LXX. By the Treaty of Vienna in 1731, Great Britain
made common cause with Austria against every enemy but the [ 84 
Turk.(b)
The Peace of Szistowe, (1791,) between Austria and the Porte, and
the Peace of Jassy, (1792,) between Russia and the Porte, were concluded under the mediation of the triple alliance of Great Britain, Prussia,
and Holland.
In 1798, when Napoleon invaded Egypt, Russia and the Porte concluded an alliance confirming the Treaty of Jassy, and mutually guaranteeing the integrity of their dominions.  To this Treaty Great Britain
acceded in 1799: it expired in 1806, and was renewed in 1809 by the
Treaty of Constantinople, by the eleventh article of which Great Britain
acknowledged that the strait of the Dardanelles was mare claususm under
the dominion of the Porte.
The Treaty of Bucharest, in 1812, put an end to the hostilities which
had raged between Russia and the Porte since 1809.  This Treaty greatly
advanced the boundary of Russia.  It contained stipulations confirming
those of former Treaties in favour of the national privileges of Moldavia
and Wallachia, and it contained some conditions in favour of the Christian Servians, which, in 1813, were violated with circumstances of great
barbarity; but the Servians applied in vain to the Congress of Vienna
for mediation or succour.
In 1819 the Porte recognized the Protectorate of Great Britain over
the Ionian Islands.(c)
(b) Mably, Droit Public de l'Europe, ii. 226.
(c) Marten's Nouv. Rec. de Trait6s, xiii. (5 Supp.) 386. The Treaty containing this recognition sets forth the titles of the Sultan, and the style of the Porte's
negotiations with Christian States: " Nous, par la grace du Souverain maitre des
empires et du fondateur immuable de l'edifice solide dlu califat, par l'influence
merveilleuse dulmod6le des saints, du soleil des duex mondes, notre grande proph6te
Mahomet Mustapha, ainsi que par a cooperation de ses disciples et successeurs, et
de toute la suite des saints, sultan, fils de sultan, empereur, fils d'empereur, MahmoudHan, vainquer, fils d'Ahmed-Han, vainquer, dont les nobles diplbmes sont d6cor6s
du titre souverain de sultan des deux hemispheres; dont les ordonnances portent
le nom 6clatant d'6mpereur des duex mers, et dont les devoirs attaches a notre
dignit6 impfriale consistant dans l'administration de la justice, les soins d'un bon
gouvernement, et l'assurance de la tranquillit' de nos peuples; seigneur et gardien
des plus nobles villes du monde, vers lesquelles se dirigent les vceux de touns les
peuples, des duex saintes villes de la Mecque et de Medine, du sanctuaire interieur
du pays saint; calife supreme des contrdes et provinces situses dans l'Anatolie et
la Romelie, sur la mer Noire et sur In mer Blanche, dans l'Arabie et 1a Chaldee;
enfin, glorieux souverain de nombreuses forteresses, chateaux, places et villes, nous
declarons:" Que, vu la parfaite union et l'ternelle amitie qui rbgnent entre notre Sublime
Porte, d'ternelle dur6e, et le plus glorieux de tous les grands princes qui crolent
en Jesus Christ, le modble de tons les personnages d'un rang 6leve de la naclioiZ g.e
A7essie, le mediateur des interets politiques des peuples, rev6tu des ornemens de 1a
majeste et de la glorie, et convert des marques de 1n grandeur et de la celebrt6,
Sa Majeste, notre tr6s-estimable, ancien, intim6, sincere, et constant ami, le roi
(padischah) des royaumes unis d'Angleterre, d'Ecosse, et d'Irlande, et d'une
grande partie des pays qui en dependent, George III. (dont 1a fin puisse btre
heureuse!)




100     PHILLIMORE  ON  INTERNATIONAL  LAW.
* In 1828 the Great Powers interfered with the Porte on behalf
[85 ] of the Greeks, whose independence they established after the
battle of Navarino.
In 1829 the Treaty of Adrianople was concluded between Russia and
the Porte, by which the power of the latter was much increased, especially with regard to the mouths of the Danube, in a manner scarcely
consistent with the Public Law of Europe.(d) In 1833, the Treaty of
Unkiar Skelessi was concluded between Russia and the Porte, the avowed
object of which was to protect the Porte against the rebellion of the Pasha
of Egypt.  The casus foderis contemplated by this Treaty having arisen,
the other European Powers interposed, on the double ground of protecting the Porte against Egypt, and of preventing the protectorate of the
Porte from being exclusively vested in and exercised by Russia.
A convention between all the European Powers, except France, took
*86 ] place in London, July 15, 1840, for the pacification of the East,
to which the Porte also was a party.  *The maintenance of the
integrity and independence of the Ottoman empire as a security for the
Peace of Europe was the avowed principle of this convention.
The language of the preamble of the Treaty is as follows:
a In the name of the most merciful God."
",His highness the Sultan having addressed himself to their majesties
the Queen of the United Kingdom of Great Britain and Ireland, the
Emperor of Austria, King of Hungary and Bohemia, the King of Prussia, and the Emperor of all the Russias, to ask their support and assistance in the difficulties in which he finds himself placed by reason of the
hostile proceedings of Mehemet Ali, Pacha of Egypt; —difficulties which
threaten with danger the integrity of the Ottoman empire, and the independence of the Sultan's throne; their said majesties, moved by the sincere friendship which subsists between them and the Sultan; animated
by the desire of maintaining the integrity and independence of the Ottoman empire as a security for the peace of Europe; faithful to the engagement which they contracted by the collective note presented to the
Porte by their representatives at Constantinople, on the 27th of July,
1839; and desirous, moreover, to prevent the effusion of blood, which
would be occasioned by a continuance of the hostilities which have recently
broken out in Syria between the authorities of the Pacha of Egypt and
the subjects of the Sultan; their said majesties and his highness the
Sultan have resolved, for the aforesaid purposes, to conclude together a
Convention." (e)
By the Treaty of the Dardanelles (July 10th, 1841) the five great European Powers admitted the exclusive authority of the Porte over these
straits, and incorporated this principle of Law into the written Law (jus
patict'cium) of Europe.(f)
S,%ome of these Treaties, and the events which led to them, will be
" L'une et l'auter cour ont le d6sir et l'intention la plus sincere d'affermir les
bases de leur amitie, et de resserrer de plus en plus les liens de la bonne intelligence et de l'intimite qui les unit."
(d) Vide post.          (e) Ilertslet's Treatise, v. p. 544.
) Wheaton's Hist. 289, 556-585.




DIFFERENT KINDS OF STATES.                          i01
noticed more at length hereafter.  But it is clear, *even from this
slight and cursory notice, that the Porte must now be considered [ *87 
as subject, with only such exceptions as the reason of the thing may dictate, not only to the principles of general International Law, but to the
particular provisions of the European Code.(g)
*CIHAPTER   II.                         [-88]
DIFFERENT KINDS OF STATES.
LXXI. HAVING considered the general attributes and characteristics
required by International Law for the constitution of a State, it becomes
necessary to apply these tests to the different forms of States which are
found to exist, in order to fix the position of each in the Commonwealth
of Nations.  This part of the subject appears to admit of the following
principal division:First. One or more States under One Sovereign.
Secondly. Several States under a Federal Union.
LXXII. I.-As to one or more States under one Sovereign.  It is
proposed to consider this first branch of the principal division under the
following heads:i. Single States, under one Sovereign.
2. Several States perpetually united (reali unione) under one Sovereign.
3. The peculiar case of Poland.
4. Several States temporarily united under one Sovereign (personali
unione).
5. A State under the Protectorate of another, or of others, but retaining its International personality.
6. A State under such Protectorate so as to have forfeited its International personality-The Ionian Islands.
7. The European Free Towns or Republics.
8. The peculiar case of Belgium.
9. The peculiar case of Greece.
10. States paying tribute, as standing in a Feudal relation to other
States-The Turkish Provinces.
11. The peculiar case of Egypt.
LXXIII. First.-With respect to a Single State, under one Sovereign,
like Spain or Portugal as at present constituted, *no doubt can
be raised as to such a State being the proper subject of Interna- [ *89 ]
tional Law.
LXXIV. Secondly.-Where several States, perpetually under one
(g) Speech of the Earl of Clarendon (Secretary of State for Foreign Affairs,) in
the House of Lords, April, 1853, on the interference of the Continental powers in
the relations subsisting between the Porte and Montenegro. See also the Debates
in both Houses of Parliament upon the subject of Russian intervention in Turkey
on the ground of an alleged religious Protectorate of the Greek Church.-Hansard's Parl. Deb. 1853; Koch. iv. 349. Vide post, chapter on " Intervention."




102     PHILLIMORE ON INTERNATIONAL LAW.
Sovereign (reali utnione), have retained certain(a) rights and privileges
as far as their International Relations are concerned, but have lost all
separate and distinct existence as far as their External Relations are
concerned, they are not, properly and strictly speaking, subjects of International Law-at least, they can only be so mediately and indirectly,
and not directly and immediately.  For instance, a State which entered
into any negotiations with Hungary, Sicily, or Ireland as independent
States (even while they possessed a separate legislature) would be guilty
of a gross violation of International Law towards Austria, Naples, or
Great Britain.
LXXV. Thirdly.-The particular State of Poland requires a distinct
and separate consideration.   The various partitions of that unhappy
country are not now under discussion; it is with the condition of Poland
under the treaty of Vienna, and the Russian manifesto of 1832, that we
are at present concerned. The union established between Russia and
Poland by the Congress of Vienna was of an wholly anomalous kind.
By the first act of that Congress the Duchy of Warsaw, with the exception of certain districts, was united to the Russian Empire, and was irrevocably bound by its constitution to belong to the Emperor of Russia,
and his heirs in all perpetuity. The emperor undertook to confer on
this State, which was to be under a separate and distinct government,
such powers of internal administration as he might think fit. *The
Emperor was to take the title of King of Poland.  The Poles,
whether subjects of Austria, Prussia, or Russia, were to obtain representative institutions, regulated according to the manner which might seem
expedient to the respective governments. In conformity with these stipulations, the Emperor Alexander granted a constitutional charter to the
Kingdom of Poland, November 15 (27), 1815. This charter declared
that The Kingdoqn of Poland was united to Russia by its constitutionthat the sovereign authority in Poland was to be exercised in conformity
therewith-that the coronation of the King of Poland was to take place
in the Polish capital, where he was bound to take an oath to observe the
charter. Poland was to have a perpetual representation, composed of
the king and the two chambers forming the diet, in which body the power
of legislation and taxation was to be vested.  A distinct Polish army,
coinage, military orders, were to be preserved in the kingdom.  But in
1832, the Emperor Nicholas established what was called an organic statute for Poland, the principal features of which were, that the Kingdom
of Poland was henceforth to be perpetually united to, and form an integral part of, the Russian Empire; the Polish diet was to be abolished;
the Polish army absorbed into the Russian; the administration of Poland
(a) Grotius, De J. B. et P. lib. i. c. iii. s. 21; lib. ii. c. ix. s. 9: " Quod si quando
uniantur duo populi non amittentur jura sed communicabuntur..... Idemque
censendum est de regnis qua non fcedere, aut eo duntaxat quod regem communem
habeant sed vera unitate junguntur."
Vattel, I. liv. i. c. i.
Oppenheim, System des Volkerrechts, Zweiter, Theil, kap. vi. s. 4.
Wheaton, Ele6ments du Droit International, p. 20.
Kliber, Europaisches Volkerrecht (ed. 1851), Erster Thiel, kap. i. s. 27.
Heffter Europ. Volker, s. 20.




DIFFERENT KINDS OF  STAT ES.                           103
carried on under a Russian Council of State, called the Section for the
Offices of Poland. The Government of England and France protested
against this act as a violation of the spirit, if not of the letter of the
Treaty of Vienna.(b)  It seems, however, impossible at the present time
to consider Poland as retaining any of those characteristics which would
entitle it to be considered as an independent kingdom, according to the
principles of International Law.
LXXVI. Fourthly.-In the cases which have been mentioned the
several States are realliy and perpetually (unione reali) united under one
sovereign; but there may be cases in *which the union is of a
personal character (unio personalis), depending upon the contin- [    ]
uance of a certain dynasty.(c)
Hanover and Great Britain, while under the same crown, Prussia and
Neufchatel in Switzerland, at the time when Vattel wrote, afforded
examples of this kind. Norway and Sweden, since the Treaty of Vienna,
have presented a similar instance. - In these cases the individuality of
the State as to her external relations remains in abeyance, and is not
lost, though it be merged in the union; and therefore, emerging when
that union is dissolved, she is entitled to the rank and consideration of
an independent kingdom.
LXXVII. Fifthly.-A  State may place itself under the protection of
another State with or without losing its international existence.  It may
well be, as Grotius, translating Appian, says, " Sub patrocinio non sub
ditione;"(d) or, according to his own expression in another part of his
work, it may be cc Cbum imminutione i2?nerii;" or, "; Sine imnminutione
imperii. (e)
The proper and strict test to apply will be the capacity of the protected
State to negotiate, to make peace or war with other States, irrespectively
of the will of its protector.  If it retain that capacity, whatever may be
the influence of the protector, the protected State must be considered as
an independent member of the European commonwealth.
It must, however, retain this capacity de facto as well as de jure;(f)
and it is necessary to make this observation, *because, at no distant period of history, an attempt was made to evade the appli- []92]
(b) Annuaire Iistorique, 1832, Documens Historique, p. 184. Wheaton's History, 433, 441. Wheaton, Elam. du Droit Inter. i. 53-55. Hansard's Parliamentary Debates, vol. xiii. p. 1115.
(c) " Rursum accidit, ut plurium populorum idem sit caput, qui tamen populi
singuli perfectum ccetum constituunt: neque enim ut in naturali corpore non
potest caput unum esse plurium corporum, ita in morali quoque corpore; nam ibi
eadem persona, diversd ratione consideratt caput potest esse plurium ac distinctorum corporum. Cujus rei certum indicium esse potest, quod extincta domo regnatrice imperium ad quemque populum seorsim revertitur."-Grot. De J. B. et P. lib.
i. c. iii. s. 7, ~ 2.
(d) Lib. i. c. iii. s. 21, & 3.    (e) Lib. ii. c. xv. s. 7, 7  1.
(f) "Interim verum est accidere plerumque, ut qui superior est in foedere, si is
potentia multum antecellat, paulatim imperium proprib dictum usurpet: prmsertim si fcedus perpetuum sit, et cum jure praesidia inducendi in oppida, &c....
Hlec cum fiunt, et ita fiunt ut patientia in jus transeat, qua de re alibi erit disputandi locus, tune ant qui socii fuerant flunt subditi, aut cert6 partitio fit summi
imperii, qualem accidere posse supra diximus."-Grotius, lib. i. c. iii. s. 21, pp.
126, 127.




104      PITILLIMORE  ON  INTERNATIONAL  LAW.
cation of this principle of law, by retaining theoretically the name when
the substance was practically and notoriously lost. The Swiss Cantons
and the States forming the Confederation of the Rhine, to say nothing of
other countries, were nominally free and independent when their armies
were under French officers, their cabinets under French ministers, and
their whole constitution entirely subject and subservient to their French
ruler and protector Napoleon.  They were, therefore, justly considered
by International Law as provinces of France, and were denied the rights
of independent States during the continuance of this state of subserviency.
It was on this ground that the capture of the Danish fleet, in 1806, by
Great Britain was justified-namely, that it was de facto a fleet in the
power and under the orders of France.  This will be treated of in a later
portion of this work.
On the other hand,(g) while this capacity remains, no mere inequality
of alliance is destructive of the personality (personac standi) of a State
among nations.  The parties to such alliance are not the less sovereign
9   because they *have consented of their own accord to disadvan*93 3 tageous terms in their treaties with other nations; it belongs, as
Grotius says, to unequal alliances, "Ut potentiori plus honoris, infirmiori
plus auxilii deferatur;"(h) or because they rely upon the arm  of those
nations for succour and defence when attacked: " Si ergo populus tali
foedere obligatus liber manet, si alterius potestati subjectus non est,
sequitur ut summum imperium retineat. Atque idem de rege pronunciundunm est enim populi liberi, et regis qui verb rex sit, eadem ratio."(i)
LXXVIII. Sixthly.-States which cannot stand this test, which cannot negotiate, declare peace or war with other countries without the consent of their protector, are only mediately and in a subordinate degree
considered as subjects of International Law."(k) In war they share the
(g) "Proculus Libro, Epistolarum viii. —Non dubito, quin frederati et liberi
nobis externi non sint, neque inter nos atque eos postliminium sit; etenim quid
inter nos atque eos postliminio opus est, quum et illi apud nos et libertatem suam
et dominium rerum suarum aeque, atque apud se retineant, et eadem nobis apud
eos contingent?" Sec. 1.:" Liber autum populus est is, qui nullius alterius populi
potestati est subjectus sive qui foederatus est, item sive sequo fredere in amicitiam
venit, sive foedere comprehensum est, uCt is populus alterius populi majestatemn comiter
conservaret; hoc enim  adjicitur, ut intelligatur, alterum non esse liberum; et
quemadmodum clientes nostros intelligimus liberos esse, etiam si neque auctoritate, neque dignitate, neque jure omni nobis pares sunt, sic eos, qui majestatem
nostram conziter conservare debente liberos esse intelligendum est." —Dig. xlix. tit. xv.
De Captivis et de Postliminio, &c. Grotius incorporates this reasoning into
International Law.-Lib. i. c. iii. 21, 22; De J. B. et P. p. 119.
See the reason of the exception in the case of the Santa Anna, 7 Edwards's
Adm. Rep. 181.
(h) Grotius, ubi supra           (i) Grotius, ubi supra.
Adherbal's Speech to the Roman Senate describes a protected kingdom in these
words: "P.' 0. Micipsa pater meus moriens mihi pruecepit, uti regni Numidise
tantummodo procurationem existimarem meanm; ceterum jus, et imzperiuem penes vos
esse: simul eniterer domi militioeque quam maximo usui esse populo Romano.
Vos mihi cognatorum, vos in locum affinium ducerem; si ea fecissem, in vestra
amiciti4 exercitum, divitias munimenta regni me habiturum."  Sallust, Bellum
Jugurth. 14.
(k) Though Grotius (c. xxi. p. 118) would seem to think otherwise; but Barbeyrac's note (vol. i. 161, 25) supports the view in the text.




DIFFERENT KINDS OF STATEs.                          105
fortunes of their protectors;(z) but they are for certain purposes, and
under certain limitations, dealt with as independent, moral persons, especially in questions of Comity, touching the persons and property of their
own subjects in a foreign country, or of strangers in their own territory,
and with respect to other matters of the like kind.
States of this description are sometimes, but with admitted impropriety of expression, called semi-sovereign (demi-sozuveran-hallbsouveranz.)  Such appears to be the lordship of Kniphausen, in North Germany, which exercises independent jurisdiction over the inhabitants of
a territory enjoying maritime traffic* and a(m) flag of its own,
under the protection of the German Confederation and the Suze- [ *94
rainete (lioheit Oberhoheit) of Oldenburg.(n)  Such is the Republic of
Polizza,(o) in Dalmatia, under the protection of Austria. Such, it should
seem, are the provinces of Montenegro, Moldavia and Wallachia,(p) and
the hereditary principality of Servia, under the Suzeraint6 of Turkey;
but the international status of these tributary provinces of Turkey will
be presently considered. Such was the little State of Monaco, from
1641 to the Revolution, under the Protectorate of France; replaced
under it by the Treaty of Paris in 1814; and, finally, by a Treaty in
1815, placed under the Protectorate of Sardinia.
LXXIX. The Ionian Islands, placed by the Treaty of Paris under the
protection of Great Britain, are cited by Kliiber as a perfect specimen of
a semi-sovereign State.(g)
By the Treaty between Great Britain and Austria, and Russia and
Prussia, signed at Paris, November 5th, 1815, it is provided, that —
"4 I. The Islands of Corfu, Cephalonia, Zante, Santa Maura, Ithaca,
Cerigo, and Paxo, with their dependencies, such as they are described in
the Treaty between his Majesty the Emperor of all the Russias and the
Ottoman Porte, of the 21st of March, 1800, shall form a single, free, and
independent State, under the denomination of the United States of the
Ionian Islands.
4" II. This State shall be placed under the immediate and
exclusive protection of his Majesty the King of the United [ 95]
Kingdom of Great Britain and Ireland, his heirs and successors.  The
other contracting Powers do consequently renounce every right or particular pretension which they might have formed in respect to them, and
formally guarantee all the dispositions of the present Treaty.
cc III. The United States of the Ionion Islands shall, with the approbation of the protecting Power, regulate their internal organization; and,
in order to give to all the parts of this organization the necessary con(1) Vattel, 1. xvi., Wolff, c. iv. 437-439.
(zn) Under this ancient German Empire, there were a variety of petty Principalities exercising a territorial supremacy (Landeshoheit,) but, nevertheless, subject to the legislative and judicial authority of the Emperor and the Empire.
These were absorbed in the German Confederation, except Kniphausen.
(n) Heffters, das Europaische VOlkerrecht, 1 Buch. xxxviii. s. 19.
(o) Marten's Droit des Gens, liv. i. c. ii. s. 20.
(p) Wheaton, E16m. De Dr. Int. i. 49.
(q) "Einen wahren halbsoureranen Staatbilden, seit 1815, Die Vereinigten
Staaten der Ionischen Inseln wegen der schutzund Souverainetits Rechte, welche
Grossbritannien fiber sie auszutiben hat."-Kldber, ~ 33.
JULY, 1854.-8




106   PHILLIMORE ON INTERNATIONAL LAW.
sistency and action, his Britannic Majesty will employ a particular solicitude with regard to the legislation and the general administration of
those States.  His Majesty will therefore appoint a Lord High Commissioner to reside there, invested with all the necessary power and authorities for this purpose.
" IV. In order to carry into execution without delay the stipulations
mentioned in the articles preceding, and to ground the political re-organization of the United Ionion States upon' that organization which is
actually in force, the Lord High Commissioner of the protecting Power
shall regulate the forms of convocation of a legislative assembly, of
which he shall direct the proceedings, in order to draw up a new Constitutional Charter for the States, which his Majesty, the King of the
United Kingdom  of Great Britain and Ireland, shall be requested to
ratify.
" Until such Constitutional Charter shall have been so drawn up and
duly ratified, the existing Constitutions shall remain in force in the different Islands, and no alterations shall be made in them, except by his
Britannic Majesty in council.
"4 V. In order to ensure, without restriction, to the inhabitants of the
United States of the Ionian Islands the advantages resulting from the
high protection under which these States are placed, as well as for the
exercise of the rights inherent in the said protection, his Britannic Ma*96  jesty shall have the right to occupy the fortresses and places of
[9  ] *those States, and to maintain garrisons in the same.  The
military force of the said United States shall also be under the orders of
the Commander-in-Chief of the troops of his Britannic Majesty.
"VI. His Britannic Majesty consents that a particular Convention
with the Government of the said United States shall regulate, according to
the revenues of those States, everything which may relate to the maintenance of the fortresses already existing, as well as to the subsistence
and payment of the British garrisons, and to the number of men of
which they shall be composed in time of peace.
" The same Convention shall likewise fix the relations which are to
exist between the said armed force and the Ionian Government.
"-VII. The trading flag of the United States of the Ionian Islands
shall be ackowledged by all the contracting Parties as the flag of a free
and independeent State.  It shall carry with the colours, and above the
armorial bearings thereon displayed before the year 1807, such other as
his Britannic Majesty may think proper to grant, as a mark of the protection under which the said United Ionion States are placed; and for
the more effectual furtherance of this protection, all the ports and harbours of the said States are hereby declared to be, with respect to
honorary and military rights, within the British jurisdiction. The commerce between the United Ionion States, and the dominions of his
Imperial and Royal Apostolic Majesty, shall enjoy the same advantages and facilities as that of Great Britain with the said United States.
None but commercial agents, or Consuls, charged solely with the carrying on commercial relations, and subject to the regulations to which




DIFFERENT  hKINDS OF STATES.                      107
commercial agents or Consuls are subject in other independent States,
shall be accredited to the United States of the Ionian Islands."(r)
*By the Constitutional Chart of the United States of the
Ionion Islands, as agreed on and passed unanimously by the [ 97]
legislative assembly on the second of May, 1817, it is provided as follows (s. 4) as to their Foreign Relations:cc I. Whereas, in the latter part of the seventh article of the Treaty
of Paris, it is agreed,'That no person, from  any Power whatsoever,
shall be admitted within these states, possessing or pretending to possess
any powers beyond those which are defined in the aforesaid article;' it
is hereby declared, that any person who shall assume to himself any
authority as an agent for a foreign Power, except as therein directed,
shall be amenable to be tried before the Supreme Council of Justice,
and be liable, if found guilty, to punishment, as in case of high treason
against the State.
"II. No native, or subject, of the United States of the Ionion Islands
shall be held competent to act as Consul or Vice-Consul for any foreign
Power within the same.
"III. The British Consuls, in all ports whatsoever, shall be considered to be the Consuls and Vice-Consuls of the United States of the
Ionian Islands, and the subjects of the same shall be entitled to their
fullest protection.'" IV. All applications necessary to be made by these States to any
foreign Power, shall be transmitted by the Senate to his Excellency the
Lord High Commissioner of the protecting Sovereign, who shall forward the same to the Ambassador or Minister to the protecting Sovereign, resident at the court of the said foreign Power, for the purpose of
submitting them in due form to the said Power.
c" V. The approval of the appointment of all foreign agents or Consuls the United States of the Ionian Islands shall be by the Senate,
through the medium  of his Highness the President thereof, with the
concurrence of his Excellency the Lord High Commissioner of the protecting Sovereign.
-" VI. With a view to ensure the most perfect protection to the commerce of these Islands, every vessel, navigating under the Ionian flag,
shall be bound before leaving the port of the Ionian States to which she
belongs, to provide herself *with a pass, signed by his Excel- [*98
lency the Lord High Commissioner of the protecting Sovereign,  98 
and no vessel, sailing without such pass, shall be considered as navigating according to law.  But it is reserved to his Majesty the protecting
Sovereign to decide how far it may be necessary that, independent of
such pass, they should be bound to supply themselves with Mediterranean
passes."
The sixth section relates to the National Colours and Armorial Bearings --
"' I. The National Commercial Flag of the United States of the
Ionian Islands, as directed by the seventh article of the Treaty of Paris,
(r) Extracted from Hertslet's Treaties, vol. i. p. 47.
Marten's Rec. de Tr. N. R. ii. 663.




108      PHILLI  O RE  ON  INTERN A TIONAL  LAW.
shall be the original flag of these States with the addition of the British union to be placed in the upper corner next to the flag-staff.
", II. On usual days the British colours shall be hoisted on all the
forts within the United States of the Ionion Islands; but a standard
shall be made, to be hoisted on days of public rejoicing and festivity,
according to the model of the armorial bearings of the said States.,, III. The arms, or armorial bearings, of the United States of the
Ionian Islands shall hereafter consist of the British arms in the centre,
surrounded by the arms of each of the Islands composing the said
States.
-"IV. The armorial bearings of each of the Islands shall consist of
the individual arms of the Island, and such emblem denoting, the Sovereign protection, as may be deemed advisable."
In the seventh section are the following General Clauses:" III. In the instance of all maritime transactions and the collection
of the customs, it shall be competent for the proper authorities to employ
either British or Ionian subjects.
c" V. A specific law shall settle the terms, time, and mode for the
natutralization offoregin, subjects in these States; but the subjects of the
protectinig Power shall, in all instances, *be entitled to natural['.9 ] ization in half the time that is required for those of any foreign
Power; and a subject of the protecting Power, or of any other Power,
may be at once naturalized by a bill to that effect, without reference to
any fixed time of residence in these States, which shall be laid down in
the law itself.(s).
The Protectorate of Great Britain over the seven Ionian Islands was
ratified by the Porte in 1819.(t)
LXXX. In all the foregoing instances, though' they may exhibit a
greater or a less derogation from the rights of independent Sovereignty
(excepting perhaps in the case of Servia), the attribute of free and uncontrolled agency in their external relations with foreign States in wanting.
LXXXI. Seventhly. —There are in Europe some few States which are
Free Republics, to which Consuls are accredited, and which, strictly
speaking, are capable of entering into treaties(u) with Foreign Powers.
Bremen, Hambourg, and Lubeck(x) are Free cities of Germany —the
only remains of that once formidable and celebrated Hanseatic League,
(s) Extracted from Hertslet's Treaties, vol. i. p. 53.
(t) Marten's N. R. (Suppl.) v. 387. Acte de Ratification de la Porte Ottomane
relativement & la cession des Iles Ioniennes a le Grande Bretagne, at de Parga a
la Turquie, du 24 Avril, 1819.-Vide ant6, p. 94.
(u) For example, see the Treaty, in 1841, between Mexico and these cities,
entitled "Trait6 d'Amit6 de Navigation et de Commerce, conclu entre la Republique du Mexique et les villes Ans6atiques de Breme, Lubeck, et Hambourg; signu
a Londres le 7 Avril, 1832, ratifid h Londres le 8 Novembre, 1841."-De M. et De
C. v. 155.
Convention between the Hanseatic States and United States of North America,
London, Sept. 29, 1825.-Elliot's American Diplomatic Code, ii. 202.
Convention with the Porte, May, 1839.-Marten's Nouv. Rec. ii. 183.
(x) Miltitz, Manuel des Consuls, 1. i. c. iii. s. 9; 1. ii. c. i. s. 3, Art. 6.
Waltershausen, Urkundliche Geschichtes des Ursprunges der Deutschen Hanse.
Gazetteer of the World, vol. vi., " Hanse Towns."




DIFFERENT KINDiS OF STATES.                         109
the last general diet of which was held at Lubeck in 1630.  These three
towns were Cities of the German Empire, and since 1814 have [100]
been *admitted as members of the German Confederation, and
have, in conjunction with Frankfort, a vote in the Diet.
LXXXII. Frankfort-on-the -Maine(y) is the most important free town
of Germany, and, as has been mentioned, is the seat of the German diet.
The present constitution of this free city was established in 1816.  It
consists of a Senate in which the Executive Power is lodged, and a Legislative body chosen by Electors of the city and suburbs.
LXXXIII. Andorra or Andorre(z) is a small independent State composed of three valleys on the southern side of the Central Pyrenees.  It
is considered as a neutral and independent Province, though to a certain
extent connected both with France and Spain.  This little Republic has
preserved for a long series of years the institutions which it now enjoys.
LXXXIV. San Marino is also a very small but independent Republic
in the north-east of Italy, surrounded on all sides by the Papal dominions.
The military force of the Republic is said to consist of 80 men, and the
whole population to be about 7,600. In 1739, Cardinal Alberoni subjected it to the Pope, who, however, restored the Republic.  It declined
the offer of an increase of territory made to it by Napoleon in 1797.
LXXXV. Eighthly.-The Constitution and Territory of Belgium have
been also definitively established by Treaty, and are therefore matter of
International Law. It will be seen that a perpetual neutrality,(a) in questions arising between other Powers, is the most remarkable condition of
*the national existence of Belgium.  The articles of the Treaty   101
which establish the kingdom of Belgium are as follows:-         101
"c 1. The Belgian territory shall be composed of the provinces of South
Brabant, Liege, Namur, Hainault, West Flanders, East Flanders, Antwerp, and Limbourg; such as they formed part of the United Kingdom
of the Netherlands constituted in 1815, with the exception of those districts of the province of Limbourg which are designated in Art. 4.
c"The Belgian territory shall, moreover, comprise that part of the
Grand Duchy of Luxembourg which is specified in Art. 2.
"2. In the Grand Duchy of Luxembourg, the limits of the Belgian
territory shall be such as will be hereinafter described: viz., commencing
from the frontier of France, between Rodange, which shall remain to the
Grand Duchy of Luxemburg, and Athus, which shall belong to Belgium
there shall be drawn, according to the annexed map, a line which —leaving to Belgium the road from Arlon to Longwy, the town of Arlon with
its district, and the road from Arlon to Bastogne-shall pass between
Mesancy, which shall be on the Belgian territory, and Clemancy, which
(y) Treaties between Great Britain and Frankfort:Treaty, Commerce and Navigation, London, May 13, 1832.-Hertslet's Treat. vol.
iv. 147, 153, 548.
Ib. Dec. 29, 1835. —Ib. vol. v. 97, 98, 625.
Convention, Commerce and Navigation, March 2, 1841.-Ib. vol. vi. 751, 755,
996.
Traite de Commerce et de Navigation entre la Grace et Villes Anseatiques, May
1843.-Vide De M. et C. 311.
(z) Gazetteer of the World, "Andorra."    (a) Vide post, Arts. 7 —26.




110   PH I L LIM ORE  ON  INTERNATIONAL  LAW.
shall remain to the Grand Duchy of Luxembourg, terminating at Steinfort, which place shall also remain to the Grand Duchy. From Steinfort
this line shall be continued in the direction of Eischen, Heecbus, Guirsch,
Oberpalen, Grende, Nothomb, Parette, and Perle, as far as Martelange:
Ieebus, Guirsch, Grende, Nothomb, and Parette being to belong to Belgium; and Eischen, Oberpalen, Perl6, and Martelange to the Grand
Duchy.
",From Martelange the said line shall follow the course of the Sure,
the waterway (thalweg) of which river shall serve as the limit between
the two States as far as opposite to Tintange, from whence it shall be
continued, as directly as possible, towards the present frontier of the Arrondissement of Diekirch, and shall pass between Surret, Harlange, and
Tarchamps, which places shall be left to the Grand Duchy of Luxem102  bourg, and Honville, Liverchamp, and Loutremange, *which places
-[102] shall form part of the Belgian territory.  Then having-in the
vicinity of Doncols and Soulez, which shall remain to the Grand Duchy
-reached the present boundary of the Arrondissement of Diekirch, the
line in question shall follow the said boundary' to the frontier of the
Prussian territory. All the territories, towns, fortresses, and places situated to the west of this line, shall-belong to Belgium; and all the territories, towns, fortresses, and places situated to the east of the said line shall
continue to belong to the Grand Duchy of Luxembourg.
" It is understood that, in marking out this line, and in conforming as
closely as possible to the description of it given above, as well as to the
delineation of it on the map, which, for the sake of greater clearness, is
annexed to the present article, the Commissioners of demarkeation, mentioned in Art. 6, shall pay due attention to the localities, as well as to
the mutual necessity for accommodation which may result therefrom.
t"3. In return for the cessions made in the preceding article, there
shall be assigned to his Majesty the King of the Netherlands, Grand
Duke of Luxembourg, a territorial indemnity in the province of Limbourg.'4. In execution of that part of Art. 1, which relates to the province
of Limbourg, and in consequence of the cessions specified in Art. 2,
there shall be assigned to his Majesty the King of the Netherlands, either
to be held by him in his character of Grand Duke of Luxembourg, or
for the purpose of being united to Holland, those territories, the limits
of which are hereinafter described:
"'First. On the right bank of the Meuse: to the old Dutch enclaves
upon the said bank in the province of Limbourg, shall be united those
districts of the said province upon the same bank, which did not belong
to the States General in 1790; in such wise that the whole of that part
of the present province of Limbourg, situated upon the right bank of
the Meuse, and comprised between that river on the west, the frontier of
[*103] the Prussian territory on the east, the present *frontier of the
province of Liege on the south, and Dutch Guelderland on the
north, shall henceforth belong to his Majesty the King of the Netherlands, either to be held by him in his character of Grand Duke of Luxembourg, or in order to be united to Holland.




DIFFERENT KINDS OF STATES.                        111
c"Secondly. On the left bank of the Meuse: commencing from  the
southernmost point of the Dutch province of North Brabant, there shall
be drawn, according to the annexed map, a line which shall terminate
on the Meuse below Wessem, between that place and Stevenswaardt, at
the point where the frontiers of the present Arrondissement of Ruremond
and Maestricht meet, on the left bank of the Meuse; in such manner
that Bergerot, Stamproy, Neer Itteren, Ittervoord, and Thorne, with their
districts, as well as all the other places situated to the north of this line,
shall form part of the Dutch territory.
" The old Dutch enclaves in the province of Limbourg, upon the left
bank of the Meuse, shall belong to Belgium, with the exception of the
town of Maestricht, which, together with a radius of territory, extending
1,200 toises from the outer glacis of the fortress on the said bank of this
river, shall continue to be possessed in full sovereignty and property by
his Majesty the King of the Netherlands.
"5. It shall be reserved to his Majesty the King of the Netherlands,
Grand Duke of Luxemnbourg, to come to an agreement with the Germanic
Confederation, and with the Agnates of the House of Nassau, as to the
application of the stipulations contained in Arts. 3 and 4, as well as upon
all the arrangements which the said articles may render necessary, either
with the above-mentioned Agnates of the House of Nassau, or with the
Germanic Confederation.
"c 6. In consideration of the territorial arrangements above stated,
each of the two parties renounces reciprocally, and for ever, all pretension to the territories, towns, fortresses, and places situated within the
limits of the possessions of the other party, such as those limits are described in Arts, 1, 2, and 4.
*~' The said limits shall be marked out in conformity with [104]
those Articles by Belgian and Dutch Commissioners of demarca- [
tion, who shall meet as soon as possible in the town of Maestricht.
"t 7. Belgium, within the limits specified in Arts. 1, 2, and 4, shall
form an independent and perpetually neutral State.  It shall be bound
to observe such neutrality towards all other States.
" 8. The drainage of the waters of the two Flanders shall be regulated
between Holland and Belgium, according to the stipulations on this subject, contained in Art. 6 of the definitive Treaty, concluded between his
Majesty the Emperor of Germany and the States General on the 8th of
November, 1785; and in conformity with the said article, Commissioners, to be named on either side, shall make arrangements for the application of the provisions contained in it.
t" 9. The provisions of Arts. 108-117, inclusive of the General Act
of the Congress of Vienna, relative to the free navigation of navigable
rivers, shall be applied to those navigable rivers which separate the Belgian and the Dutch territories, or which traverse them both.
"4 So far as regards specially the navigation of the Scheldt, it shall be
agreed that the pilotage and the buoying of its channel, as well as the
conservation of the channels of the Scheldt below Antwerp, shall be subject to a joint superintendence; that this joint superintendence shall be
exercised by Commissioners, to be appointed on both sides for this pur



112.PHILLIMORE  ON  INTERNATIONAL  LAW.
pose; that moderate pilotage dues shall be fixed by mutual agreenlent,
and that such dues shall be the same for the Dutch as for the Belgian
commerce.
(" It is also agreed that the navigation of the intermediate channels
between the Scheldt and the Rhine, in order to proceed from Antwerp
to the Rhine, and vice versa, shall continue reciprocally free, and that it
shall be subject only to moderate tolls, which shall provisionally be the
same for the commerce of the two countries.
*"I 25. The Courts of Great Britain, Austria, France, Prussia,
[*105] and Russia, guarantee to his Majesty the King of the Belgians,
the execution of all the preceding articles.
is 26. In consequence of the stipulations of the present Treaty, there
shall be peace and friendship between their Majesties the King of the
United Kingdom of Great Britain and Ireland, the Emperor of Austria,
the King of the French, the King of Prussia, and the Emperor of all the
Russias, on the one part, and his Majesty the King of the Belgians, on
the other part, their heirs and successors, their respective States and
subjects, for ever."(b)
LXXXVI. Ninthly.-The Constitution and Territory of Greece are
the subject of Treaty and guarantee, and under the protection of International Law. The articles which principally affect the International
Status of-Greece are as follows
"1 i. The Courts of Great Britain, France, and Russia, duly authorized for this purpose by the Greek nation, offer the hereditary Sovereignty of Greece to the Prince Frederick Otho of Bavaria, second son
of his Majesty the King of Bavaria.
cr 2. His Majesty the King of Bavaria, acting in the name of his said
son, a minor, accepts, on his behalf, the hereditary Sovereignty of Greece,
on the conditions hereinafter settled.
"l3. The Prince Otho of Bavaria shall bear the title of King of
Greece.
"4. Greece, under the Sovereignty of the Prince Otho of Bavaria,
and under the guarantee of the three Courts, shall form a monarchical
and independent State, according to the terms of the Protocol, signed
between the said Courts on the 3rd of February, 1830, and accepted both
by Greece and by the Ottoman Porte.
" The limits of the Greek State shall be such as shall be definitively
settled by the negotiations which the Courts of Great Britain, France,
and Russia, have recently opened with the Ottoman Porte, in execution
of the Protocol of the 26th of September, 1831.
106' 6. The three Courts having beforehand determined to con[#106] vert the Protocol of the 3rd of February, 1830, into a definitive
Treaty, as soon as the negotiations relative to the limits of Greece shall
have terminated, and to communicate such Treaty to all the States with
which they have relations, it is hereby agreed, that they shall fulfil this
(b) Hertslet's Treaties, vol. iv. pp. 2Y7-31, 37.




DIFFERENT  KINDS OF STATES.                       113
engagement, and that his Majesty the King of Greece shall become a
contracting party to the Treaty in question.
c" 7. The three Courts shall, from the present moment, use their influence to procure the recognition of the Prince Otho of Bavaria as King
of Greece by all the Sovereigns and States with whom they have relations.
"8. The Royal Crown and dignity shall be hereditary in Greece; and
shall pass to the direct and lawful descendants and heirs of the Prince
Otho of Bavaria, in the order of primogeniture.  In the event of the decease of the Prince Otho of Bavaria, without direct and lawful issue, the
Crown of Greece shall pass to his younger brother, and his direct and
lawful descendants and heirs, in the order of primogeniture.  In the
event of the decease of the last-mentioned Prince also, without direct and
lawful issue, the Crown of Greece shall pass to his younger brother, and
to his direct and lawful descendants and heirs, in the order of primogeniture. In no case shall the Crown of Greece and the Crown of
Bavaria be united upon the same head.
c" 9. The majority of the Prince Otho of Bavaria, as King of Greece,
is fixed at the period when he shall have completed his twentieth year;
that is to say, on the 1st of June, 1835.
"c 10. During the minority of the Prince Otho of Bavaria, King of
Greece, his rights of Sovereignty shall be exercised in their full extent
by a Regency composed of three Counsellors, who shall be appointed by
his Majesty the King of Bavaria.
"c 11. The Prince Otho of Bavaria shall retain the full possession of
his appanages in Bavaria.  His Majesty the King of Bavaria, moreover,
engages to assist, as far as may be *in his power, the Prince [107
Otho in his position in Greece, until a revenue shall have been [* ]
set apart for the Crown in that State."(c)
LXXXVII. Tenthly.-As to States standing in a Feudal Relation to
other States. These may be said to be now confined to the province of
Turkey.
The existing independent Regencies tributary to the sublime Porte
are:I. In Africa:
I. Tunis.                         2. Tripoli.
II. In Europe:
1. Montenegro.                    2. Moldavia.
3. Wallachia.                     4. Servia.(d)
III. Egypt.
LXXXVIII. The relations subsisting between the Porte and these
tributary States is of an anomalous and perplexing character; nor have
the great powers of Europe been always agreed as to the light in which
all these Regencies are to be considered.
LXXXIX. First, with respect to the Barbary States, which are tributary to the Porte. These have been almost of necessity treated to a cer(c) Hertslet's Treaties, vol. iv. pp. 320, 322.
(d) Vide post. Tripoli is not exactly in this category. See Koch, Hist. des Tr.
iv. 388, 424, 438.




114     PHILLIMORE  ON  INTERNATIONAL  LAW.
tain extent, and for certain purposes, as de facto independent States,
though their de jure subordination to the Porte was undisputed.
The course(e) which the European Powers have adopted chas
[1081 been such as, on the one hand, would recognise the Supremacy
(Suzerainete') of the Porte over its dependencies; while, on the other
hand, these powers have often demanded and enforced redress in vindication of the injuries done to their subjects, immediately and in the first
instance from these dependencies themselves.
The necessity of the cases, and the reason of the thing, have rendered
this irregular mode of International proceeding unavoidable.
"Nature" (Mr. Burke(f) observes, with his usual sagacity) " has said
it, that the Turk cannot govern Egypt, Arabia, and Curdistan as he
governs Thrace. Nor has he the same dominion in Crimea which he has
at Brusa and Smyrna....... The Sultan gets such obedience as
he can. He governs with a loose rein that he may govern at all; and
the whole force and vigour of his authority in his centre is derived from
a prudent relaxation in all his borders."
XC. Since the conquest of Algiers by France, (1830,) Tr~ipoli and
Tunis are the only Barbary States (Re'gences Barbaresques) tributary to
the Porte.  Indeed, Tri2oli is) properly speaking, not a Barbary State
under the protection of the Porte, but a province of the Porte, in the
same condition and category as Bagdad or any other province of the
Ottoman Power.  The Bey is appointed and removed at the pleasure of
the Sultan: nevertheless, European Powers haue entered into Treaties
with the Bey(g) as an independent power, and have sought redress from
him, in the first instance, for injuries inflicted on their subjects.
[,109_-   *XCI. Tunis, at the present time, stands in a different and
[*109] more independent category. The Bey is Hereditary Regent, and
practically, if not theoretically, also irremovable by the Sultan, though,
like Egypt, tributary to the Porte.
In 1803,(h) nevertheless, the Porte addressed a Firman equally to
Tunis and Tripoli, commanding both Regencies to obey the conditions
of a Treaty of navigation and commerce which the Porte had entered
into with Prussia, and which related to both Tripoli and Tunis.
(e) Mably, Le Droit Public de 1YEurope, t. i. c. v. " Le commerce ne seroit point
en suret6 contre les Puissances de la cSte de l'Afrique, si l'on se contentoit de prendre k ce sujet des engagemens avec la Porte..... Aussi la France, l'Arngleterre,
les Provinces Unies, &c., traitent elles directement avec Tunis, Tripoli, Alger, &c.
Cependant ces Barbaresques, n'observant leur Trait6s qu'autant qu'ils y sent forces,
s'exposent souvent h etre chaties avec vigueur; et dans ces occasions il est trbs
avantageux d'avoir contract6 de telle faqon avec le Grand Seigneur qu'il ne puisse
prendre leur defence." —Ib. p. 396.
Wheaton's Elem. de Dr. Inter. p. 49; Wheaton's Hist. p. 536.
(f) Speech on Conciliation with America.-Burke's Works, vol. iii. pp. 56, 57.
(g) The Bey styles himself, in these Treaties, " Bey, Gouverneur, et CapitaineGeneral de la cit6 et royaume, or regence, de Tripoli."  See Treaties of 1762 and
1818 (last Treaty) between Tripoli and Great Britain; Treaty of 1830 (last Treaty)
between France and Tripoli.
The Apppendix to this volume will contain a chronological catalogue of the
Treaties between European Powers and the Re'gences Barbaresques-Algers, Tripoli, Tunis.
(h) De Martens et De Cussy, Rec. de Tr. ii. 311.




DIFFERENT KINDS OF STATEYS.                        115
In 1813 a Treaty was entered into between Great Britain and Tunis,(i)
by which this Regency agreed to accord to the inhabitants of the Ionian
Islands the privileges of British subjects, provided Algiers and Tripoli
adopted the same course.
XCII. The principal circumstances which mark the recognition by
the European Powers of the Suzerainete' of the Porte over these Regencies appear to be these:1. That they do not accredit Public Miinisters to the Courts of these
Regencies, but send Consuls only.(k)
2. That when the Beys, Pachas, or Governors of these Regencies visit
the European Courts, they are presented there by the Ambassador of the
Porte, and are not received as the representatives of an independent
State. France, it is believed, has not always been so particular as Great
Britain in the observance of this not insignificant point of etiquette.
3. That they have recognised the rule, however departed from in
emergencies, either of negotiating through the Porte with respect to
these Regencies, or of obtaining the subsequent confirmation of the
Porte for arrangements entered into with these Regencies.
XCIII. Morocco, it may be observed in passing, is unquestionably an
independent State, of which the Emperor is the *International
Representative.  Various Treaties between him  and European [110
Powers have been from time to time concluded, without any reference
direct or indirect to the Porte.
XCIV. The mountainous province of Montenegro, which is a district
of Western Turkey, consists of an elevated plain, separated by a narrow
strip of Austrian territory from the Adriatic, bounded on the northwest
and north by the Bosnian Herzegovina, on the east and south by the
Albanian Paschalic of Scutari, and on the southwest by the Austrian
frontier of Dalmatia, at the Bocca di Cattaro.(l)
This singular region of mountain fortresses, which was occupied by
Ivan Czernojewich, who left his paternal domains near the Lake Scutari
towards the end of the fifteenth century, has ever since that period been
in a semi-independent condition.
At first, the Montenegrins, having adopted the Greek religion, were
placed under the Protectorate of Venice; but in 1623, after a desperate
resistance, they were compelled to pay a capitation tax (haratsch) to the
Sultan.
The Montenegrins have been till lately governed by a Prince Bishop
of the Greek church, called a Vladika.  For a century and a half this
dignitary appears to have been hereditary in the Petrovitsck family; but
(i) lb. 401.
(Il) Vide post, the important distinction in International Law between the public
Minister and the Consul.
(1) Gazetteer of the World; Fullarton, 1853, vol. ix.-" Montenegro."
Wilkinson, " Delmatia and Montenegro;" 2 vols. 1848.
Treaty of Carlowitz, 1699; Schmauss, ii. 1131.
Treaty of Passarowitz, 1718; Schmauss, ii. 1705.
Treaty of Belgrade, 1739; Wenck, Cod. J. Gent. i. 316.
Treaty of Sistowa, 1791; Marten's Rec. de Tr. vol. v. p. 246.




116      PHILL-IMORE  ON  INTERNATIONAL  LAW.
the present Vladika, who succeeded in 1830, refused the episcopal dignity, and is a lay Chief.
By the Treaty of Carlowitz in 1699 between' the Republic of Venice
and the Ottoman Porte, Montenegro appears to have been left under the
Protectorate of Venice; but by the Treaty of Passarowitz in 1718, it became again subject to the Porte; in 1791, it was still a part of the Turkish
*empire; for it is a provision of the Treaty of Sistowa,(mn) con[*11] eluded in that year between Austria and the Porte, that the
Montenegrins shall not be molested or punished for having declared
against their proper Sovereign.
In 1796, the Montenegrins placed themselves under the Protectorate
of Russia; and ever since that period a relation of an undefined kind has
subsisted between them.
Since 1815 the Venetian possessions on the Illyrian coast, including
the Bocca di Cattaro and the Ragusan territory, have been annexed to
Austria.  Nevertheless, two small points on the coast-the Leek and
the Sutorina, which had been secured by the Treaties of Carlowitz and
Passarowitz to Turkey-remained in her possession till 1852.  In that
year the Prince of Montenegro attacked and carried a fortress at the head
of the Lake Scutari: this act of aggression provoked Turkey to attempt
the subjugation of Montenegro.  Austria, and, more tardily, Russia interfered on behalf of the Montenegrins; *while England and
France advised Turkey, without abandoning her de jure  title
over Montenegro, to respect the quasi independence of that territory,
and on this basis a dangerous quarrel, which might have embroiled all
Europe, was adjusted. But Austria obtained the establishment of Consulates in Bosnia, Servia, and Herzegovina, and other parts of Roumelia;
and though she did not possess herself of Leek and Sutorina —the strips
of territory whereby Turkish Herzegovina touches the Adriatic-she
obtained a stipulation that Turkey should make no use of them as ports,
and that no Turkish vessels should approach them.
(m) Trait6 de Paix entre sa Majest6 Imperiale Royale Apostolique et la Sublime
Porte Ottomane. Fait e Sistow, le 4 me A6ut, 1791. (En lanugue Franqoise et
Turque):Art. 1. I1 y aura ddsormais une paix perpetuelle et universelle, par terre, sur
mer, et sur les rivi6res, entre les deux empires, leurs sujets et vassaux, une amitie
vraie et sincere, une union parfaite et etroite, une abolition et amlnestie pleine et
g6n6rale de toutes les hostilit6s, violences, et injures commises dans le cours de
cette guerre, par les deux puissances, ou par les sujets et vassaux de l'une, qui ont
suivi le parti de lanutre; et specialement les habitans de toute condition du illontenegre, de la Bosnie, la Servie, la Vallachie, et Moldavie, qui, en vertu de cette
amnistie, pourront tous rentrer dans leurs anciennes demeures, possessions et droits
quelconques, et en jouir paisiblement, sans etre jamais inqui6t6s, molest6s, ni punis
pour s'etre declares contre leur propre souverain, ou pour avoir pret6 hommage'a
la cour Imperiale et Royale.
Art. 12. Et quant & l'exercice de la religion catholique Chretienne dans l'Empire
Ottoman, ses pretres, ses sectateurs, ses eglises k entretenir, on X reparer, la libertd
du culte, et des personnes, la frequentation et la protection des lieux saints de
Jerusalem et d'autres endroits, la Sublime Porte Ottomane renouvelle et confirme,
d'aprbs la regle du status quo strict, non seulement les privileges assures par l'article
IX., du Traite de Belgrade h cette religion, mais aussi ceux qui out 6t6 post6rieurement conc6des par ses fermans, et autres actes 6man6s de son autorit6." —Marten's
Rec. de Tr. (1791), vol. v. p. 246.




DIFFERENT  KINDS OF STATES.                          117
XCV. The districts of Eastern Europe called Moldavia and Wallachia
are two principalities situated between the Carpathian mountains and the
Danube and the Pruth.
These principalities, as well as those of Servia and Bulgaria, before
the conquest of Gallipoli in 1358, by which Solyman opened to the
Turks an entrance into Europe, had been governed by Princes of their
own, tributary, sometimes to Hungary, and sometimes to Poland.(n)
In 1529 these principalities submitted to the Porte, on condition of
obtaining security for their religion (which, like that of Montenegro and
Servia, is of the Greek church) and their laws, and of being exempt from
all taxes save that of a yearly tribute to the Sultan.
These conditions were never rigidly adhered to, and the principalities
were always in a state of chronic revolt from Turkey; but they suffered
more especially from being the battle-field on which Russia and the Porte
contended for the mastery.
This is not the occasion on which to enter into the history of the various fortunes of these principalities. But while these pages are preparing
for the press, a most grave matter of International Law has become involved in the proposition, "that these Christian Principalities are  *
Provinces (with whatsoever privileges) of the Turkish Empire. [    ]
It has become of great importance to the welfare of Europe to ascertain
in what light Russia, the most powerful neighbour of Turkey, is bound
to consider them, and what she has herself declared to be the limits of
the Russian and Ottoman Empires.  To answer the last question first:
Russia dictated her own terms in the Treaty referred to by Count Nesselrode, as sustaining her present demand, the Treaty of Adrinople,
1829; for, by the 3d Article of that Treaty, it is provided that the Pruth
shall continue to be the limit of the two Emnpires. The same Treaty provided, both by the 5th Article, and by supplemental annexed provisions,
for the constitution of the Principalities. They are placed under the
Suze'rainete of the Porte, with the guarantee of Russia for their liberties
and privileges.
The next question is, In what light has Russia bound herself to consider these provinces?  The Treaty of Adrinople answers-as part of
the Turkish Empire.  The comnmercial Treaty between Russia and the
Porte in 1846 makes the same reply still more distinctly.  The 16th
Article says, "Les cleux cours contractantes, prenant en considedratioln Aue
)arqni les provinces que font partie des Etats de la Sublime Porte les
princicaute's de Valachie, cde Jlocl6avie, et de Servie jouissent d'une administration distincte, sont convenues que les marchandises," &c., &c.(o)
The yet more recent Treaty of Balta-Liman, of the first of May, 1849,
does not annul the previous stipulations on this subject between Russia
and the Porte, but, on the contrary, by the 7th Article, provides that
they shall not be set aside.(p)
(a) Hist. Abreg. des Tr. Koch.: Traites entre la Porte Ottomane et les Puissances
Chretiennes depuis la Paix de Carlowitz en 1699 jusqu'au Traite de Bucharest en
1812, t. iv. pp. 342, 410, ed. Bruxelles, 1838.
(o) De 5M. et De C. p. 637, Treaty of Balta-Liman in 1846.
(p) Russia and Turkey: Armed Intervention on the Ground of Religion considered as a Question of International Law; with Appendix of Documents. By
Robert Phillimore. London: gidgway, 1853. Vide post, "Intervention."




118    PHILLIMORE ON INTERNATIONAL  LAW.
14 *XCVI. The executive government of these provinces is that
[*114] of a Hospodar or Woivode, elected by the inhabitants. This
right of election, and that of administrative and legislative independence
and inviolability of territory, constitute the principal privileges acquired
by capitulation from the Porte.
By the Treaty of Bucharest, in 1812, the third part of Moldavia was
ceded by the Porte to Russia.  The rest of Moldavia and Wallachia was
restored to Turkey, with a special provision for the privileges of the
inhabitants of Moldavia.(q)
By the Treaty of Ackerman, in 1826, it was stipulated that the Hospodars should be nominated for seven years, and be liable to be deposed
by the Suzerain or by the protecting power.
But by the Treaty of Adrinople, signed three years later, it was stipulated that the Hospodars should be appointed for life. By the Treaty
of Balta-Liman, of the 1st of May, 1849, it is agreed that the iHospodars should be appointed by the Sultan for a term not exceeding seven
years; that two Commissioners should be appointed for the reformation
of abuses, whose proposed alterations were to be submitted to the cabinets of St. Petersburgh and the Porte; and that the consent of both of
them should be obtained previous to their promulgation, by a hattischer'ff
of the Sultan.
XCVII. Servia is not exactly in the same category as the provinces
which have been first mentioned.
Servia Proper contains about a million of inhabitants; but the Servian race is said to amount to above five mi.lions in number and to oc.
cupy one-third of the European territories of Turkey, and all the south
of Hungary.
In the middle ages the Chief of this people assumed the title of Emperor of the East, and was only subdued by the united forces of the
adjoining nations.
The Servian empire was at last divided between Austria and the Porte.
By the Treaty of Passarowitz, in 1718, the Porte ceded the north of
Servia, with the capital Belgrade, *to Austria, but regained this
U1 ]) territory by the Treaty of Belgrade in 1739.   In 1801 the
struggle of the Servians for liberty began to be aided-at first secretly,
and after 1809 openly-by Russia; and the Treaty of Bucharest, in 1812,
between Russia and the Porte, contained in its eighth article a provision
securing, among other things, to the natives the internal administration
of their affairs, on the payment of a moderate contribution to Turkey.
In 1813 the Servian insurrection broke out again, but, no longer assisted
by Russia, was put down with circumstances of horrible barbarity. The
Servians applied in vain to the Congress of Vienna for the mediation of
Christendom in their favour. But the Greek insurrection in 1821, and
the subsequent independence of Greece, operated favourably upon the
condition of Servia; and it is now recognized by the European Powers
as a distinct and independent nation, governed by a native Prince. The
(q) The Treaty of Sistowe secured Moldavia to the Porte in the same condition
as formerly.




DIFFERENT  KINDS OF  STATES.                            119
Turks have, indeed, a garrison at Belgrade: but Foreign Powers send
Consuls to Servia, whose exaquatur emanates from the Sovereign of the
country.
Beside the Treaty of Bucharest, already mentioned, between Russia
and the Porte, the Treaties of Ackermann in 1826,(r) and of Adrinople
in 1829, are to be consulted *for the national Status of Servia, [.116]
as well as for that of the Danubian principalities of Moldavia [  I
and Wallachia.(s)
XCVIII. With respect to Montenegro, the Danubian principalities,
and Servia, an International question of some delicacy and difficulty
arises —namely, To what extent the Protectorate of Austria or Russia
over the Christian subjects of the Porte, in matters relating to their religion, has been allowed by custom or by treaty to extend?
This point will receive further discussion in a later part of this work,
when the Right of Intervention is considered.
XCIX. In all the foregoing instances, though they may exhibit a
greater or a less derogation from the rights of independent Sovereignty
(excepting perhaps the case of Servia), the attribute of free and uncontrolled agency in their external relations with Foreign States is wanting.
C. States that pay tribute, or stand in a feudal relation towards other
States, are, nevertheless, sometimes considered as Independent Sovereignties.  It was not till 1818 that the King of Naples ceased to be a nominal vassal of the Papal See; but this feudal relation was never considered
as affecting his position in the Commonwealth of States.  Of the same
kind some German Jurists appear to consider the subsisting relation between Kniphausen and Oldenburgh; but, in fact, it is a relation which
can hardly be said to exist in these days, except where, as in the instan(r) Extract from Convention between the Ottoman Porte and Russia, signed at
Ackermann, September 25th, 1826.-Acte separ6 relatif a la Servie:" La Sublime Porte, dans l'unique intention de remplir fiddlement les stipulations de l'Article VIII. du Trait6 de Bucharest, ayant precddemment peromis aux
d6putes Serviens a Constantinople de lui presenter les demandes de leur nation,
sur les objets les plus convenables pour consolider la siiret6 et le bien-etre du pays,
ces deputes avaient precedemment exposd dans leur requete le voau de la nation
relativement X quelques-uns de ces objets, tel que la liberte du culte, le choix de ses
chefs, l'independance de son administration interieure, la reunion des districts detaches de la Servie, la reunion des diffdrents impbts en un seul, l'abandon aux
Serviens de la rdgie des biens appartenants X des Musulmans, a charge d'en payer
le revenu ensemble avec le tribut, la libert6 de commerce, la permission aux negociants Serviens de voyager dans les Etats Ottomans avec leurs propres passeports,
l'tablissement d'hSpitaux, 6coles et imprimeries, et enfin la defense aux Musulmans, autres que ceux appartenants aux garnisons, de s'etablir en Servie. Tandis
que l'on s'occupait a verifier et a regler les articles ci-dessus specifies, certains empechements servenus en motivdrent l'ajournement. Mais ]a Sublime Porte persistant aujourd'hui encore dans la ferme resolution d'accorder h la nation Servienne
les avantages stipul's dans l'Article VIII. du Traite de Bucharest, elle rdglera, de
concert avec les deputes Serviens a Constantinople, les demandes ci-dessus mentiounenes de cette nation fidele et soumise, comme aussi toutes les autres qui lui
seraient presentees par la deputation Servienne, et qui ne seront point contraires
a la qualit6 de sujets de l'empire Ottoman."-De Martens et De Cussy, Rec. de
Traitds et Conventions, vol. iv. pp. 40, 41.
(s) De Martens et De Cussy, Rec. de Tr. Treaty of Bucharest, t. ii. p. 393.
Treaty of Ackermann, t. iv. p. 40. Treaty of Adrinople, ib. p. 223. Wheaton's
History, p. 558.




120  PHILLIMORE  ON  INTERNATIONAL LAW.
ces of the Barbary States, there is a direct and practical acknowledgment
of a superior Sovereignty.
[*117]   *CI. Eleventhly. —The Status of Egypt with respect to its
International relations is very peculiar.
Under the rule of the Mamelukes, Egypt had assumed the shape of
an Independent State, though owing an allegiance of a feudal character,
and being tributary to the Porte.
After the destruction of the Mamelekes, the then Pacha of Egypt,
Mehemet Ali, endeavoured to establish an entirely independent kingdom.
This endeavour led to the Intervention —which will be more fully considered hereafter —of the principal European  Powers in the conflict
between the Sultan and the Pacha, and the Convention of July, 1840.(t)
On November 3, 1839, the Porte published an Ordinance for the regulation of its provinces and of its vassal States, called ilatti Sherif of
Gulhane'.(u)  This Iatti Sheriff was followed by the promulgation of
a collection of Laws called the Tan-zirnat, and this, with certain modifications, has been applied to  Egypt by a Firman decore d'un Ifatti
Sherif,(x) of July, 1852.  This Firman appears to overrule the Code
d'Abbas, which the present Pacha had established in Egypt.
This Firman can hardly be said to affect the International relations of
the Pacha; the principal derogation from  the Sovereignty of the latter
consisting in the reservation to the Sultan of the power as to life and
death over the subjects of the Pacha.(y)
*In the Separate A ct annexed to the Convention, concluded
[*118] at London, on the 15th  of July, 1840, between the Courts of
Great Britain, Austria, Prussia, and Russia, on the one part, and the
sublime Ottoman Porte, on the other, the International Status of Egypt
is described in the following articles:4s I. His Highness promises to grant to lMehemet Ali, for himself and
(t) See the Acte de Soumission, in the Firman du 13 Fevrier, 1841; Correspondence relative to the Affairs of the Levant, vol. ii. 735 (London, 1841).
(u) See the Morning}Chronicle, 27 November, 1839; the Times, 24 October, 1839,
(x) This has not yet been published, but it describes itself as-" Firman addesse
a mon illustre etjudicieux Vizir Abbas Halmi Pacha, actuellement et h6reditairement Gouverneur de l'2Egypte, avec le rang 6minent de Grand Vizir."
(y) The following are extracts from this Firman:-" Comme r6sultat salutaire
de ces sentimens les Tauzimati-Hairiy  quli renferment les principes d'&quite et de
justice que la Loi Sainte dont les bases sont inebranlables, preserit, ont e6t institues, j'ai r6ussi a faire executer ces Tauzimat qui conformement 4 mon HattiSheriff qui a ete lu, il y a quelques temps, sur la Place de Ghiulkaneh assurent
comnpletement la vie, la propriete, et l'honneur de toutes les classes des sejuts de
ma Sublime Porte etablis dans mes etats.
"D'apras les lois ge6nrales de ma Sublime Porte, l'execution des criminels qui
doivent 8tre mis' la Porte, soit en vertu de la loi du talion, soit par mesure d'administration, apres les formalit6s neessaires d'une enqu8te juridique et conforme
aux lois reglementaires depend absolument de mes ordres souverains.
" Lorsque tu auras pris connaissance des mes ordres souverains, tu auras, &c.,
soin que d6sormais aucune autorit6, aucun employ8 n'ait a contrevenir en la
moindre chose aux Tauzimat-Hairiyb, et tu mettras  en pratique  toutes les
dispositions et tons les reglemens qui sont contenus dans le statut susmentionne. *'"Ayes-le pour entendu et ajoutes foi au noble chiffre dont est orne le present
commandement Imperial, done dans la derniere dizaine du mois Ramazan l'an
mil deux cents soixante huit (vers la mi-Juillet, 1852.)




STATES UNDER  A FEDERAL  UNION.                      121I
for his descendants in the direct line, the administration of the Pachalic
of Egypt; and his Highness promises, moreover, to grant to Mehemet
Ali for his life, with the title of Pacha of Acre, and with the command
of the fortress of Saint John of Acre, the administration of the southern
part of Syria, the limits of which shall be determined by the following
line of demarcation:"cThis line, beginning at Cape Ras-el-Nakhora, on the coast' of the
3Mediterranean, shall extend direct from thence as far as the mouth of
the River Seizaban, at the northern extremity of the Lake of Tiberias.
It shall pass along the western shore of that lake.  It shall follow the
right of the River Jordan and the western shore of the Dead Sea.;From
thence it shall extend straight to the Red Sea, which it shall strike at
the northern point of the gulph of Akaba; and from thence *it
shall follow the western shore of the gulph of Akaba, and the [.1191
eastern shore of the gulph of Suez, as far as Suez.'"3. The annual tribute to be paid to the Sultan by Mehemet Ali
shall be proportioned to the greater or less amount of territory of which
the latter may obtain the administration, according as he accepts the first
or the second alternative.
"'5. All the Treaties and all the Laws of the Ottoman Empire shall
be applicable to Egypt and to the Pachalic of Acre, such as it has been
above defined, in the same manner as to every other part of the Ottoman
Empire. But the Sultan consents, that on condition of the regular payment of the tribute above mentioned, Mehemet Ali and his descendants
shall collect-in the name of the Sultan, and as the delegate of his Highness, within the provinces, the administration of which shall be confided
to them-the taxes and imposts legally established. It is moreover
understood, that in consideration of the receipt of the aforesaid taxes
and imposts, Mehemet Ali and his descendants shall defray all the
expenses of the civil and military administration of the said provinces.
" 6. The military and naval forces which may be maintained by the
Pacha of Egypt and Acre, forming part of the forces of the Ottoman
Empire, shall always be considered as maintained for the service of the
State."(z)
*CHAPTER III.                        [*1203
STATES UNDER A FEDERAL UNION.
CII. We now arrive at the second branch of this part of our subjectnamely, the consideration of several States under a Federal Union. The
examples at present existing of this description of States are the following:1. The Germanic Confederation (Der Deutsche Bund). (a)
(z) Hertslet's Treaties, vol. v. pp. 547-549.
(a) Deutsches Staats und Bundesrecht von Zacharia, Erster Theil, kap. i. s. 21
JULY, 1854. —9




1]22     PHI LLII ORE ON  INTER  ATIONAL LA Wr.
2. The Confederated Cantons of Switzerland.
3. The United Republics of North America.
4. The United Republics of Central and South America: —namely,
first, The United Provinces of Guatemala, or the Republic of Central
America; secondly, The United Provinces of Rio de la Plata, or the
Argentine Republic.
CIII. States under a Federal Union may be classed under two principal heads: —First. Those which have retained their Independent and
Individual Sovereignty, especially as to the adjustment of their external
relations with other Nations, and belong to a system  of Confederated
States only for purposes of domestic and internal policy, and of mutual
assistance and defence (Statenlbunde). (b)
But the laws of this federal body have only effect and force in the
separate members of the system through the agency and application of
the particular laws and jurisdiction of each individual government; therefore, as far as Foreign Power is concerned, these Confederated States
must be considered as individually responsible for their conduct, and as
['121  *separate Independent States. In this class must be ranked the
-[      existing Germanic Confederations.
Secondly. The Federal Union may be so adjusted that the management of the external relations of the respective members of the Union be
absolutely vested in the Supreme Federal Power.
[+122]                  *CHAPTER  IV.
GERMAN CONFEDERATION.
CIV. The ancient Germanic Empire,(a) august and venerable for
many reasons to the student of International Jurisprudence and Public
Law, was virtually destroyed by Napoleon's Confederation of the Rhine,
and must be considered as formally extinguished by the Act(b) of Abdication of the Emperor Francis, in August, 1806.  By this Act the
Electors were absolved from their duty to him  as head of the Empire,
and his own German dominions were incorporated into the Austrian
States, over which he henceforth ruled as Emperor of Austria.
CV. The Germanic Confederation is to be distinguished from  those
confederated States which have indeed an Independent National Govern(Goottingen, 1841): "Von dem zusammengesetzten Staate, der union, und dem
volkerrechtlichem Staatenvereine."
(b) Zacharid, ib. b. i. kap. i. s. 21. The other class is aptly designated Bundesstaat.
(a) Deutsches Staats und Bundesrecht Zacharia, band. i. kap. ii. " Die Zeit des
Deutschen Reichs.-Von dem Gesandschaftsrechte des Deutschen Bundes.-Miruss,
i. p. 523. Vattell, ii. p. 338, s. 59.
(b) See the Act Marten's Rec. des Trait6s, VIII. p. 498; Wheaton's History, p.
70; Hallam's Middle Ages, vol. ii. c. 5; Koch, I-istoire des Traites, c. i. s. 1 (par
Schoell). The Germanic Constitution, and still more the Medieval Councils of the
Church, are the Institutions which have, in theory, made the nearest approach
which perhaps the world has ever seen to an Universal International Tribunal.




G E R M AN  C O N F E D E RA T ION..             123
ment, but have also a Central Federative Government which conducts
the International relations of the Confederacy.
The deliberations of the Germanic Confederacy are conducted by a
Diet, which sits at Frankfort-on-the-Maine, and is the established organ
of the Confederacy, and the permanent congress of the plenipotentiaries
of the States which are members of it.(c)
It does not interfere with the internal arrangements of the individual
members of the Conf6deracy, except in so far as *they affect the rL23
general interests of the whole body; and each of these members L
communicates directly, and not through the medium of a Central Government, with the Governments of Foreign Nations.(d)
CVI. The Treaties which must be consulted upon this subject areThe Treaty of Vienna, 1815-the Annexes to that Treaty; the Acte
Tinal ( Wiener Schrlussacte) signed at Vienna, May 15, 1820; the Loi
Organigue, which settles the military constitution of the Confederation:
the Act of the Diet of the 28th of June, 1832, and of the 30th of October, 1834.
By the fourth, fifth, and sixth articles of the Act which settled the
Constitution of the German Confederation at the Congress of Vienna, it
was provided, That, in the Federative Diet, all the members vote by
their plenipotentiaries, either individually or collectively: —
Votes.
Austria.....    1
Prussia......    1
Bavaria......    1
Saxony                                                i
Hanover....    1
Wurtemburg.....             1
Baden.....       1
Electoral HIesse...          1
The Grand Duchy of Hesse....    1
Denmark (for Holstein).....    1
The Netherlands (for Luxemburg)...    1
The Grand Ducal, and Ducal Houses of Saxony           1
Brunswick and Nassau....                1
3Mecklenburg, Schwerin, and Strelitz...    1
Oldenburg, Anhalt, and Schwartzburg..    1
Hohenzollern, Lichtenstein, IReuss, Schaumburg,
Lippe, Waldeck, and Hesse IHomburg..    1
The Free Cities of Lubeck, Frankfort, Bremen,
and Hamburg.....    1
(e) Total.   17
Austria presides over the Diet. Each State has a right to make pro(c) Zacharii, ib. iii. ss. 223, 11; ss. 261, 1.
(d) The Diplomatic intercourse of the German Confederation, as such, with
other nations, will be considered hereafter.-Zachar. ib. s. 262.
(e) De Martens et De Cussy, Rec. de Tr. tom. iii. p. 145. Wheaton on International Law, vol. i. pp. 70, 71.




124      PHIILIMORE ON  INTERNATIONAL LAW.
*124] positions, under limitations as to time fixed by the *President.
Whenever Fundamental Laws are to be proposed or altered,
when Organic Institutions or other arrangements of a common interest
are to be adopted, the Diet resolves itself into a General Assembly, and
the votes are taken: as follows:Votes.
Austria....        4
Prussia.....    4
Saxony....                      4
Bavaria....           4
Hanover....                                      4
Wurtemburg...                       4
Baden......    3
Electoral Hesse...          3
The Grand Duchy of Hesse                               3
Holstein......    3
Luxemburg...                             3
Brunswick....    2
Mecklenburg Schwerin.....    2
Nassau......    2
Saxe-Weimar.....        1
Saxe-Gotha.                                          1
Saxe-Coburg.                                           1
Saxe-Meiningen...                       1
Saxe-Hilburghausen..        1
Mecklenburg-Strelitz..              1
Oldenburg.......    1
Anhalt-Dessau....    1
Anhalt-Bernburg...                 1
Anhalt-Coethen...    1
Schwartzburg-Sondershausen                             1
Schwartzburg-Rudolstadt.                               1
Hohenzollern-Hechingen.                               1
Lichtenstein....    1
Hohenzollern-Sigmaringen...        1
Waldeck.......    1
Reuss (elder branch)                                   1
Reuss (younger branch)...                  1
Schaumburg-Lippe.....    1
Lippe......    1
Hesse-Homburg......    1
The Free City of Lubeck...    1
"     Frankfort...    1'     "c     Bremen...    1
c~    c      l Hamburg...           1
(/) Total          70
(f) De Martens et De Cussy, Rec. de. Tr. tom. iii. pp. 146, 147. Wheaton on
International Law, vol. i. pp. 71, 72.




GER MAN  CONFEDERATIO N.                         125
*CVII. By the sixth article of the Treaty of Paris, (1814) 15
it was stipulated that the States of Germany should be  uinde- [125
pendent, and united by a Federal League."
By the Federal Act(g) of 1815, the possessions of those Sovereigns
and Free Towns <"which had anciently appertained to the German Empire" were anew incorporated into a League, entitled, c" The, German
Confederation.?"(h)
By the eleventh article to the Annexe to the Treaty, it was provided,
thatc"(Art. 11.) The States of the Confederation bind themselves to defend,
not only the whole of Germany, but also each individual State of the
Union, in case it should be attacked, and mutually guarantee all their
possessions included in this Union.
a "When war is declared by the Confederation, no member can engage
in separate negotiations with the enemy, nor make peace, or a truce, without the consent of the others.
"4 The members of the Confederation, whilst reserving to themselves
the right of forming alliances, bind themselves not to contract any
engagement which shall be directed against the security of the confederation, or of the individual States of which it is composed.(i )
" The Confederated States bind themselves not to make war against
each other under any pretext, and not to prosecute their controversies
by force of arms, but to submit them to the Diet, which shall endeavour
to mediate through the medium of a Commission; and if this fail, and
a judicial sentence be necessary, it shall be obtained by an Austregal
Tribunal (Austrsegal Instanz) properly constituted, from which there
shall be no appeal."(k)
The Act of 1815, so incorporated in the Treaty of Vienna, was completed by the First Act of 1820 (May 15.)  This *Act contains the following articles as to their JlMutual International Iela- [ 126]
tions:(/)"' Art. 1. The Germanic Confederation is an Intertnational union (V1lkerrechtlicher verein) of sovereign princes and free cities of Germany, for
the preservation of the independence and inviolabilty of the States comprised in the Confederation, and for the maintenance of the internal and
external security of Germany.
" Art. 2. This union is, in its relations, a self-subsiting Association of
States, mutually independent of one another, with equal reciprocal rights
and obligations; but, in its external relations, a collective power combined in political unity.
" Art. 3. The extent and the limits which the Confederation has
marked out for its operation are defined by the Federal Act, which is
the original compact and first groundwork of this unioni: whilst it
(y) See Annexe 9 of the Final Act of Congress of Vienna.
(h) Martens, Nouv. Rec. ii. p. 516.
(i) This clause is not in the body of the Treaty, see s. 63.
(k) Annexe to the Treaty, De M. et De C. i., p. 145.
(1) Confdd6ration Germanique.-De Martens et De Cussy, Rec. de Traites, &c.,
vol. iii. pp. 463, 464. Wheaton's History, p. 445.




126     PHIILLIMORE ON  INTERNATIONAL  LAW.
announces the object of the confederation, it provides and determines at
the same time its powers and obligations.
"e Art. 4. The power of developing and, perfecting the Federal Act,
so far as the completion of the object therein set forth may require,
belongs to the assembly of the members of the Confederation.  The
resolutions, however, to be adopted for this purpose may not contravene
the spirit of the Federal Act, nor deviate from the fundamental character of the Confederation."
CVIII. The following articles respect the International relations of
the Confederation with other States, both with respect to its corporate
capacity, and with respect to the individual members under its protection.
And, first, it should be observed, that by the fiftieth article of the Acte
Final (Veiner Schiussacte) of 1820, it is provided:
"4 That with respect to Foreign Affairs in general, it is the duty of the
Diet[*127]   <" 1. As the organ of the Confederation, to watch over the
maintenance of peace and amicable relations with Foreign
States.
"2. To receive the Envoys accredited by Foreign States to the Confederation, and to nominate, if it should be thought necessary,
ministers to represent the Confederation at Foreign Courts.
" 3. To conduct, when it may be necessary, negotiations, and conclude
treaties on behalf of the Confederation.
"c 4. To interpose with Foreign States good offices on behalf of those
members of the Confederation who desire them, and to employ
the same agency with the separate States, members of the Confederation, on behalf of the Foreign Governments who ask for
such intervention."
By the thirty-fifth article it is declared, that "- The Germanic Confederation has the right, as a collective body, to declare war, make peace, and
contract alliances, and negotiate treaties of every kind; nevertheless,
according to the object of its institution, as declared in the second article
of the Federal Act, the Confederation can only exercise these rights for
its own defence, for the maintenance of the external security of Germany, and the independence and inviolability of each of the States of
which it is composed.' Art. 36. The Confederated States having engaged, by the eleventh article of the Federal Act, to defend against every attack Germany in its entire
extent, and each of its Co-States in particular, and reciprocally to guarantee the integrity of their possessions comprised in the union, no one
of the Confederated States can be injured by a foreign power, without
at the same time, and in the same degree, affecting the entire Confederation.
e On the other hand, the Confederated States bind themselves not to
give cause for any provocation on the part of foreign powers, or to exercise any towards them.  In case any Foreign State shall made a wellF*1281 grounded complaint to *the Diet of an alleged wrong committed
on the part of any member of the Confederation, the Diet shall
require such member to make prompt and satisfactory reparation, and




ER AN  O N FED ERA TI ONo                        127
take other necessary measures to prevent the disturbance of the public
peace.
" Art. 37. Where differences arise between a Foreign Power and any
State of the Confederation, and the intervention of the Diet is claimed
by the latter, that body shall examine the origin of the controversy, and
the real state of the question.  If it results from  this examination that
such State has not a just cause of complaint, the Diet shall engage such
state, by the most earnest representations, to desist from its pretentions,
shall refuse its intervention, and, in case of necessity, take all proper
means for preserving peace. Should the examination prove the contrary,
the Diet shall employ its good offices in the most efficacious manner, in
order to secure to the conplaining party complete satisfaction and seeucurity.
c" Art. 38. Where notice received from any member of the Confederation, or other authentic information, renders it probable that any of its
States, or the entire Confederation, are menaced with a hostile attack,
the Diet shall examine into and pronounce without delay upon the question whether such danger really exists; and if determined in the affirmative, shall adopt the necessary measures of defence.
" This resolution and the consequent measures are determined in the
permanent counsel by a plurality of votes.
"c Art. 39. When the territory of the Confederation is actually invaded
by a foreign power, the state of war is established by the fact of invasion; and whatever may be the ultimate decison of the Diet, measures
of defence proportioned to the extent of the danger, are to be immediately
adopted.
"c Art. 40. In case the confederation is obliged to declare war in form,
this declaration must proceed from the general assembly determining by
a majority of two-thirds of the votes.
"v Art. 41. The resolution of the permanent council *declaring   129
the reality of the danger of a hostile attack renders it the duty [12
of all the confederated States to contribute to the measures of defence
obtained bythe Diet.  In like manner the declaration of war, pronounced
in the general assembly of the Diet, constitutes all confederated States
active parties to the common war.
"t Art. 42. If the previous question concerning the existence of the
danger is decided in the negative by a majority of votes, those of the
confederated States who do not concur in the decision of the majority,
preserve the right of concerting between themselves measures of common
defence.
"cArt. 43. Where the danger and the necessary measures of defence
are restricted to certain States only of the Confederation, and either of
the litigating parties demands the mediation of the Diet, the latter body
may, if it deems the proposition consistent with the actual state of things,
and with its own position, and if the other party consents, accept the
mediation; provided that no prejudice shall result to the prosecution of
the general measures for the security of the territory of the Confederation, and still less any delay in the execution of those already adopted
for that purpose.




128      P HILLIMORE ON INTERNATIONAL LAW.
cc Art. 44. War being declared, each confederated State is at-liberty
to furnish for the common defence a greater amount of force than is
required as its legal contingent; but this augmentation shall not form
the ground of any claim for indemnity against the confederation.
"cArt. 45. Where in case of war between foreign powers, or other
circumstances, there is reason to apprehend a violation of the neutral
territory of the Confederation, the Diet shall adopt without delay, in the
permanent council, such extraordinary measures as it may deem necessary to maintain this neutrality.
"Art. 46. Where a confederated State, having possessions without
the limit of the Confederation, undertakes a war in its character of a
European power, the Confederation, whose relations and obligations are
unaffected by such war, remains a stranger thereto.
*,; Art. 47. Where such State finds itself menaced, or attacked,
['130 ] in its possessions not included in the Confederation, the latter is
not bound to adopt defensive measures, or to take any active part in the
war, until the Diet has recognized in the permanent council a plurality
of votes, the existence of a danger threatening the territory of the Confederation.  In this last case, all the provisions of the preceding articles
are equally applicable.
" Art. 48. The provision of the Federal Act, according to which,
when war is declared by the Confederation, none of its members can
commence separate negotiations with the enemy, nor sign a treaty of
peace or armistice, is equally applicable to all the confederated States,
whether they possess or not dominions without the territories of the Confederation.
"tArt. 49. In case of negotiations for the conclusion of a peace or
armistice, the Diet shall confide the special direction thereof to a select
committee named by that body, and shall appoint plenipotentiaries to
conduct the negotiations according to instructions, with which they shall
be furnished. The acceptance and confirmation of the treaty of peace
can only be pronounced in the general assembly."(m)
CIX. The Federal Constitution was modified by a decree of the Diet
at Frankfort (30th October) 1832, and still further by the act of 1834;
but these modifications whether desirable or not, were pronounced by
the British Minister for Foreign Affairs to involve no point which concerned the foreign relations of the different States with other States,
and, therefore, not to found any just ground for their interference.(n)
But in 1834 the British Minister at the Germanic Diet protested against
the occupation of Frankfort *by Austrian and Russian troops as
[131 ] a violation of the Treaty of Vienna, and said, "The Germanic
Confederation has been created by the Treaty of Vienna; and, as to its
(nm) Martens, Nouveau Recueil, tom. v. pp. 467-501; De M. et De C. i. p. 463;
Wheaton's Law of Nations, pp. 457 —460; Relations of the Duchies of Schleswig
and Holstein.-Twiss, p. 111; Zachar. ib. 111, s. 261.
(n) Wheaton's History, 460, 468, 470, 472, 483. Mr. Bulwer's Speech in the
House of Commons, August, 2, 1832; and Lord Palmerston's Reply. —Hansard's
Parliamentary Debates (third series), vol. xiv. pp. 1020-1049.




GERMAN CO N FEDERAT ION.                        129
relations with other States, the rights of the Confederation, its powers,
and its obligations are to be sought for in the stipulations alone."(o)
It would not be within the limits of this work to describe the various
attempts made to remodel the Germanic Confederation, extending from
the month of February, 1848, to the 15th May, 1851.  The end of the
revolutionary agitation which distracted Germany during this period
is the restoration of the Frankfort Diet as it had existed since 1815.(p)
CX. From what has been stated, the following propositions appear to
be legitimately deduced:First. That the Germanic Confederation maintains with those who
are members of that league relations of a. special International character,
resting entirely upon the Federal Act of 1815, and further explained by
that of 1820, as their sole foundation; but that all the members of this
league are governed in their relations with other Independent States by
the general International Law.
Secondly. That the mutual rights and duties of the members of this
Confederation are wholly distinct from those which exist between them
and other States, not members of the Confederation.
Thirdly. That the operation of the duties and rights growing out of
the constitution of the Confederation is not only exclusively confined to
the Independent Sovereigns *who are members of it, but also to
the territories which belong to them, by virtue of which they   132
were originally incorporated into the Germanic Empire.(q)
Fourthly. That the admission of new  States, not being German,
into the Confederation, or the admission of States not sovereignties,
would conflict with the principle and the objects of the Confederation.(r)
If these propositions be sound in point of law  and reason, it follows
that neither territories belonging to these sovereigns at that time, nor
subsequently acquired territories, can be engrafted into this Confederation without the consent of other nations, especially of those who were
parties to the Treaty of Vienna.
CXI. The events of our own day have called for very important
practical applications of these principles: first, in the case of the Duchies
of Schlewig and Holstein(s) as to the relation in which they stood to the
Crown of Denmark, on the one hand, and to the Germanic Confederation
on the other: Schleswig having been a fief of the Danish Crown from
the period of its first creation as a Duchy up to the year 1658, and
having since that time been annexed to the Gottorp Duchy, and having
been afterwards re-annexed with Gottorp to Denmark, and never having
been directly connected with the German Empire; Holstein, on the contrary, having been a German fief.
Those who argued for the German side (as it was called) of the ques(o) Zacharia, ib. b. iii. kap. iii. s. 256; Streitigkeiten fiber Auslegung und Anwendung der Verfassung.-Bundeschiedsgericht von 1834.  The Relations of
Schleswig and Holstein, by Dr. Twiss, p. 119; 1 Wheaton, Elem., p. 65.
(p) Annual Register, vol. xciii. p. 277.
(q) Zacharid, ib. band. iii. s. 219. Begriff und Zweck des Deutschen Bundes.
(r) Zachar. lb. s. 222.
(s) The Relations of the Duchies of Schleswig and Holstein to the Crown of
Denmark and the Germanic Confederation, by Dr. Twiss, chap. v. p. 103.




130    PEHILLIMORE  ON  INTERNATIONAL LAW.
tion, contended that because the King of Denmark was subject, as Duke
of Holstein, to the laws of the Confederation with respect to that Duchy,
therefore his Duchy of Schleswig was also subject to the same condition.
It was answered irresistibly, it would seem, so far as justice, practice,
3 and the reason of the thing are concerned, that it might as well
LJ ] be said that his province of Jutland was subject to the Confederation; that the King of Holland by reason of his Duchy of Luxemburg,
had not subjected Belgium to the Confederation; and that the members
of it had not pretended to interfere as to the separation of Belgium from
Holland, though they had done so as to the arrangements with respect
to the Duchy of Luxemburg. On the establishment of the kingdom of
Belgium, Luxemburg, was divided, half being given to Belgium, and
half remaining to Holland; the German Confederation being compensated by the admission into its membership of the newly-created Duchy
of Limburg.(t)
Secondly, the other case which has given rise to a discussion as to the
practical application of the principles of the German Confederation, has
been the alleged attempt or desire of Austria to incorporate her Hungarian, Croatian, and Italian dominions into the German Confederation;
to which attempt the powers who guaranteed the Treaty of Vienna would
have an unquestionable right to refuse their consent, and which right
they might hold themselves bound by their obligations, both with respect
to themselves and to the general peace of the world, to exert.(tc)
34]  XII. II. —The second class of Federal States embraces those
which,(x) by the terms of their confederation, vest *the adjustment of their external relations in a Supreme Federal Power.  ( Unio
civitatum-e'tat conpose-Bundesstaact-univrte-Staate, -  Stactela- Vercine.)  The Achean League and the United Provinces of the Netherlands furnish memorable illustrations of such a confederation.(y)
CXIII. To this denomination belongs, at the present day, the Confederation of the Swiss Cantons.(z) The Thirteens Cantons of Switzerland
(t) Zachar. ib. s. 221. II. D.
(u) See the note on this subject of the French and English to the Austrian
Government in the Appendix to the second volume of the' Annuaire," 1852-3,
by the editors of the 1" Revue des Deux Mondes."
xx) " In these days, their union is so entire and perfect, that they are not only
joined together in bonds of frendship and alliance, but even make use of the same
laws, the same weights, coins, and measures, the same magistrates, counsellors,
and judges; so that the inhabitants of this whole tract of Greece seem in all srespects to
fonrm but one single city, except only that they are not inclosed within the circuit of
the same walls: in every other point, both through the whole republic and in
every separate state, we find the most exact resemblance and conformity."-Hampton's Polybius, vol. i. p. 224.
Polyb., Hist. 1. ii. c. iii.; Bynkershoek, Qusest. Jur. Publ. 1. ii. c. xxiv.
Burlamaqui, Principes du Droit Politique, pt. ii. ch. i. s. 43.
The Federalist (American).
(y) Manuel du Droit Public de la Suisse.
Handbuch der Schweizerischen Staaten.
Wheaton, Elam. du Droit Intern. 1. i. pp. 72, 73.
Wheaton, Hist. pp. 492-496.
(z) See Martens, Nouv. Rec. t. ii. p. 68; t. iv. pp. 161, 273; t. vii. p. 173, and
De 3i. et De C., t. iii. pp. 14, 38, 89, 197, 242, for the following treaties relating to
the Swiss Confederation. "1814,-Paix de Paris, Art. vi. 3. La Suisse ind6pend



GERMAN  CONF E D E RATION.                       131
had for some time previous to the Treaty of Westphalia been de facto
independent,(a) but that Treaty formerly recognised their existence as
Independent States.  The effects of the French Revolution in 1789 were
severely felt in Switzerland. The Cantons, in consequence of the separation of various districts, were increased, first to the number of nineteen,
and finally to the number of twenty-two.  Their internal dissensions
brought about an Act of Mediation under Buonaparte in 1803, and subjected them to the invasion of the Allied Powers in 1813.
In 1815 the claims of the conflicting Cantons were adjusted, and the
Confederation re-modelled at the Congress of Vienna, (1815;) and in the
same year, (August 7,) the number of the Cantons was increased to
twenty-two by the Federal Act, signed at Zurich, and their neutrality
was recognised (November 20), by an Act signed by the Allied Powers
at Paris.
*CXIV. According to the Federal Act of 1815, the Swiss [35
Confederation consists of the union of twenty-two Cantons. The  131
object of their union is declared to be the preservation of their liberty
and independence, security against foreign invasion, and the maintenance
of internal public tranquillity and order. They mutually guarantee their
respective territories and constitutions.  Their Diet is formed by a Congress of Deputies, one being delegated from each Canton, and each having
equally a single voice in the deliberations of this common senate.  It
assembles every year, alternately, at Berne, Zurich, and Lucerne-these
being the Cantons (Vorort) in which the executive power of the Confederation resides when the Diet is not actually sitting. The Diet has
the exclusive power of declaring war, of entering into treaties of peace,
commerce, and alliance with Foreign States.  These negotiations, however, require the assent of three-fourths of the Diet, though in other
matters a simple majority suffices for the validity of the resolution.
It is competent, however, to each Canton separately to conclude with
foreign powers treaties which have for their object regulations of revenue
and police; provided always that they do not conflict with the Federal
Convention, the Existing Alliances, or the Constitutional Rights of other
Cantons. The Confederation has a common army and treasure, supported
by levies of men and contributions of money, according to fixed proportions, from each Canton.
The Diet is responsible for the internal and external security of the
Confederation.  It appoints the commanding officers, and directs the
operations of the Federal army, and moreover nominates the Federal
Ministers at Foreign Courts.
CXV. Since the year 1830, the separate constitutions of each of the
Cantons has received a more or less democratic modification, but the
ante continuera de se gouverner par elle-mdme."  "1814, 16 Adut. Les Dix-neuf
Cantons' Traite d'alliance pour ai conservation de leur liberte et ind6pendence."
"1815, 7 Abut. Act de Confederation entre les Vingt-deux Cantons Helv6tiques,
sign6 a Zurich." "' 1815, 20 Novembre. Acte sign6 & Paris par les pl1nipotentiaires d'Autriche, de France, de la Grande Bretagne, de Prusse, et de Russie, par
lequel la neutralite de la Suisse a et6 reconnue."
(a) Koch., Hist. des Tr. i., iii.




132   PHILLIMORE ON INTERNATIONAL LAW.
attempts to alter the principle of the Federal Act of 1815 have failed.
Bale, Unterwalden, and Appenzell have been subdivided, and the subdivisions added to the number of the Confederated Cantons, which is
[1366  thereby *increased to twenty-five; but the number of votes in
the Diet is still limited to twenty-two, each division of these
three Cantons enjoying only half a vote. Before the French Revolution,
it was competent to each Canton to enter into a special alliance both
with another Canton and with a Foreign State;(b) but it is clear, from
what has been stated, that no individual member of this federal body,
since the Federal Act of 1815, has the character and position-or, as
civilians say, the persona stanrtdi-of a separate independent nation.
CXVI. This subject should not be dismissed without the observation,
that one of the Swiss Cantons, Neufechatel, bears the title of a Principality, and is placed in some, though it may be doubtful in what, degree
under the Siuzerainete of the King of Prussia.(c)
After the death of Marie de Longueville, Duchess of Nemours, in
1707, the States of Neufchatel transferred the fief of their principality
to the King of Prussia, as the representative of the House of Chalons,
with a reservation of their liberties and of their Treaties of Alliance with
the Swiss Cantons.
The ninth article of the Treaty of Utrecht recognised this act of the
States of Neufchatel, and so the relations between Prussia and Neufchatel continued till 1805, when Prussia *ceded the principality
[     to Napoleon.  It was restored, however, at the Peace of Paris,
to Prussia, from whom, in 1814, it received a new constitutional form
of government.   But Neufchatel was subsequently admitted into the
new  Helvetic Confederation, its relations to which were defined by the
9th article(d) of the Acte (April 7, 1815), which reunited Neufechatel,
Geneva, and Valais to the Helvetic Confederation, and declared that
"cThe sovereign state of Neufchatel is received as a Canton into the Swiss
Confederation. This reception takes place under the express condition
that the fulfilment of all the duties which devolve upon the State of
Neufehatel as a member of the Confederation, the participation of that
state in deliberations on the general affairs of Switzerland, the ratification
and performance of the resolutions of the Diet, shall exclusively. concern
(b) Merlin, R6pertoire de Jurisprudence, tit. " Ministre Public."
Wheaton, Elem. i., pp. 73, 74. Annuaire des DeuxMondes, 1850, p. 294; 1851-2,
p. 188.
(c) " Extrait du manifeste publi6 par l'Ambassadeur du Roy de Prusse au sujet
des affaires de Neufehatel, 1707." —Schmauss, ii. p. 1205.
"Articles g6n6raux dress6s et proposes au nom, etc., de la Principautd de Neufchatel et de Valangin-agrees et accordes par l'Ambassadeur de S. M. le Roi de
Prusse, 1707." —Ib. p. 1209.
"M6moire, etc., 1707." —Ib. pp. 1211, 1212.
" Articles accordes par le Roy de Prusse, Frederic I., a 1a Ville de Neufchatel,
1707."-Schmauss, ii. p. 1213: in which the King of Prussia is described (p. 1217)
as " Prince Souverain de Neufchatel et Yalangin."
In the Treaty of Utrecht (1713) the authority of the King of Prussia is fully recognised.-Ib. p. 1361, and p. 1369, art. ix. of that part of the Treaty which concerns the relations of France and Prussia. The King of Prussia is acknowledged
"'pro sstpremo Domino Principatfts Neo-Castri et T7allengioe."
(d) Martens, t. iv. pp. 168, 170. Aufnahmsurkunde des Cantons Neuenburg.




UNITED  STATES OF NORTH  AMERICA.                         133
the government residing in Neufchatel, without requiring any further
sanction or assent."
CXVIL. In 1847-8, Switzerland, like the rest of Europe, was agitated
by a civil war, with respect to which the States of Neufchatel resolved
to maintain a strict neutrality.  The King of Prussia supported them
in this resolution; but the extreme party constituting the then majority
in the Swiss Diet declared that this resolution was inconsistent with the
terms of the stipulation by which Neufchatel was incorporated into the
union.(e) After undergoing the evils of a revolutionary war, Neufehatel
has returned to its ancient relations with Prussia.(f)
*CIIAPTER   V.                       [*138]
UNITED STATES OF NORTH AMERICA.
CXVIII. The United States of North America(a) furnish the greatest
example which the world has yet seen of a Federal Government.
The Constitution of the United States of North America differs materially from that of the Germanic Confederation: the latter is a league of
Sovereign States for their common defence against external and internal
violence; the former is a Supreme Federal Government-it is, in fact, a
Composite State, the constitution of which affects not only members of
the Union, but all its citizens, both in their individual and in their corporate capacities.
According to the language of the charter or act of the Constitution, it
was established by i"the people of the United States, in order to form
a more pefect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure
the blessings of liberty to them and their posterity." The legislative
power of the union is vested in a Congress, consisting of a Senate, the
members of which are chosen by the local legislatures of the several
States, and of a House of Representatives, chosen by the people in each
State.
The Executive Power is lodged in a President, chosen by electors appointed in each State according as the legislature thereof may direct.
The powers of Congress and of the President, so far as they affect the
International relations *of the United States with other countries,
are expressed in the following articles of the Constitution, which [*139]
was finally ratified by the thirteen States in 1790: —(b)
(e) Annuaire Historique Universel, 1848-9, ch. viii. p. 515; Suisse, Ib. 1850, ch.
vii., p. 487.
(f) "'Neufchatel ist seit dem Wiener Congress: Absehied ein souverainer
(monarchiseter) Schweizer, Canton."' Note of Morstadt (1851) to his edition of
Kliiber's VOlkerrecht.
Annuaire des Deux Mlondes, 1850, p. 301.
(a) Wheaton's InternationalLaw; Story's Commentaries on the Constitution of
the United States; Kent's Commentaries on American Law.
(b) The articles of the Confederation were finally ratified in 1781. It was superseded by the Constitution in 1790.




1.34    PHILLIMORE  ON  INTERNATIONAL  LAW.
Art. I.-Sect. 8.
CXIX.  1. To lay and collect taxes, duties, imposts, and excises, to
pay the debts and provide for the common defence and general welfare of
the United States; but all duties, imposts, and excises shall be uniform
throughout the United States.
" 2. To borrow money on the Credit of the United States.
"3. To regulate commerce with foreign nations, and among the several
States, and with the Indian tribes.
c"4. To establish au uniform rule of naturalization, and uniform law
on the subject of bankruptcies throughout the United States.
"' 10. To define and punish piracies and felonies committed on the high
seas, and offences against the law of nations.
"' 11. To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water."(c)
Sect. 10.
1 i. No State shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money; emit bills of credit;
make anything but gold and silver coin a tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
"'2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely nenecessary for executing its inspection laws; and the net produce of all
duties and imposts, laid by any State on imports or exports, shall be for
the use of *the treasury of the United States; and all such laws
[*140] shall be subject to the revision and control of the Congress. No
State shall, without the consent of Congress, lay any duty of tonnage,
keep troops or ships of war in time of peace, enter into any agreement
or compact with another State, or with a foreign power, or engage in war,
unless actually invaded, or in such imminent danger as will not admit of
delay." (d)
Art. II.-Sect. 2.
"s 2. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators
present concur; and he shall nominate, and by and with the advice and
consent of the Senate shall appoint ambassadors, other public ministers
and consuls, judges of the Supreme Court, and all other officers of the
United States whose appointments are not herein otherwise provided for,
and which shall be established by law: but the Congress may by law vest
the appointment of such inferior officers as they think proper in the President alone, in the Courts of Law, or in the heads of departments.(e)
(c) Story's Commentaries on the Constitution of the United States, pp. xxi., xxiii.
of " The Constitution."
(d) Story, p. xxiv.               (e) Ib. p. xxvi.




UNITED  STATES OF NORTH  AMERICA.                       135
Sect. 3.
dt1. He shall from time to time give to the Congress information of
the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both houses, or either of them; and in case of
disagreement between them with respect to the time of adjournment, he
may adjourn them at such time as he shall think proper.  He shall receive ambassadors and other public ministers.  He shall take care that
the laws be faithfully executed, and shall commission all the officers of
the United States."(f)
Art. III.-Sect. 1.
c 1. The judicial power of the United States shall be vested in one
Supreme Court, and in such inferior Courts *as the Congress may   141]
from time to time ordain and establish. The judges, both of the [
Supreme and Inferior Courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation,
which shall not be diminished during their continuance in office."(g)
Sect. 2.
"1. The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, —the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers and consuls; to all cases of
admiralty and maritime jurisdiction; to controversies to which the United
States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different
States, between citizens of the same State claiming lands under grants of
different States, and between a State, or the citizens thereof, and foreign
States, citizens, or subjects.(h)
42. In all cases affecting ambassadors, other public ministers, and
consuls, and those in which a State shall be a party, the Supreme Court
shall have original jurisdiction.  In all the other cases before mentioned,
the Supreme Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions and under such regulations as the Congress
shall make."(i)
Art. IV.-Sect. 2.
"1. The citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.(j)
Sect. 3.
"s 1. New States may be admitted by the Congress into this Union, but no
new State shall be formed or errected within the jurisdiction of any other
State, nor any State be formed by the junction of two or more States, or
(f) Story, p. xxvi.             (g) Story, p. xxvii.
(h) lb.      (i) lb. p. xxviii    (j) lb.




136     P HILLIMO RE ON INTE RNATIONAL LAW.
*1]42] parts of *States, without the consent of the Legislatures of the
States concerned, as well as of the Congress.(k)
It is remarkable that no provision on this subject is to be found in the
Articles of the Confederation finally ratified in 1781.  The contingency
of the establishment of new States within the limits of the Union seems
to have been wholly overlooked by the framers of the instrument of the
Confederation.  Under the provisions of the present article twelve States
have been admitted into the Union, upon an equality with the original
States.(l)
6" 2. The Congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property belonging
to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.(m)
Sect. 4.
" 1, The United States shall guarantee to every State in this Union a
republican form of government, and shall protect each of them against
invasion; and on application of the legislature, or of the executive (when
the legislature cannot be convened), against domestic violence."(n)
Art. VI.
"2. This Constitution, and the laws of the United States which shall
be made in pursuance thereof, and all treaties made, or:which shall be
made, under the authority of the United States, shall be the supreme
law of the land; and the judges in every State shall be bound thereby,
anything in the constitution or laws: of any State to the contrary notwithstanding."(o)
[*143]               *Art. XI.-AMENDMENTS.
"' The judicial power of the United States shall not be construed to
extend to any suit in law or equity commenced or prosecuted against one
of the United States by citizens of another State, or by citizens or subjects of any Foreign State."(p)
CXX. It is clear from this account of the Constitution of the United
States of North America that the whole Federal Body is responsible for
the International acts, so to speak, of each State, and of the individuals
composing them.  For example, if the government of either of the Carolinas inflict an injury upon a foreign nation, that nation must direct its
complaints to, and seek its redress from, the Federal Government.
The proposition that each State of the Union is separately responsible
for its own misconduct, but that the attempt by a Foreign State to en(k) Story, p. xxix.-See opinions of the Attorney-General of the United States
(published at Washington, 1841,) vol. i. p. 311, as to the conditions under which
the State of Illinois entered the Union.
Resolutions du Crongrbs des Etats-Unis pour ladmission du Texas au nombre
des Etats de l'Union du 22 Decembre, 1845. —Vide De M. et C. 599.
(1) Story, b. iii. c. xxx.    (m) Ib. p. xxix.       (n) Ib.
(o) Ib. p. xxx.          (p) Story, p. xxxiii.




CENTRAL AND SOUTH AMIERICAN REPUBLICS. 137
force its claims for redress against an individual State would be resisted
by the whole Federal Body, is a proposition wholly untenable in reason
or law. Joint responsibility must accompany joint protection; therefore
the strengthening of the hands of the American Executive has been desired by her ablest statesmen and jurists, as well as by Foreign Powers,
in order that she may be the more readily able to fulfil her International
obligations.(q)
CXX[. The Central and South American Republics, since [44
the establishment of their independences, have undergone, and [14
will probably yet undergo, frequent divisions and subdivisions.  The
existing Federal Republics are those of Mexico, of the United States of
aRio de la Plata, or the Argentine Republic, and of the United States of
Guatemala, or, as it is called, the Federal Republics of Central America.
In these Federal Republics there is a general Congress, which superintends the relations of the Republics with Foreign States.(r)
The whole of America is under the government of Christians, being
either Europeans or of European descent; this vast continent therefore
must be presumed to recognize, not only the obligations of general International Law, but the positive maxims of the European code. This continent is at present parcelled out into the following States.
There are seven Republics in North and Central America, viz.:United States.
1lxc United States.      f 21 States a Feleral District
Mexico, United States of
e   of Mexico, and 3 Territories.
Guatemala. 
Honduras.            8,..
St. Salvador.
Costa Rica.       f
Nicaragua.
(q) Wheaton, E1lm. vol. i. p. 74:'Puisque les relationes de ces Etats avec des
Etats dtrangers, en paix et en guerre, sont maintenues par le gouvernement federal, tandis qu'il est express6ment defendu aux Etats isoles de l'Union d'exercer
ces actes de souverainete exterieure, ii est evident que la souverainete ext6rieure
de la nation reside exclusivement dans le gouvernement fed6ral. L'ind6pendance
de chaque Etat se trouve done sous ce rapport condfondue dans la souverainete du
gouvernement f6deral, et l'on pent par suite qualifier'Union Am6ricaine de
Bundesstaat."
" Opinions of the Attorney-General of the United States, vol. i. Letter of the
Attorney-General, dated November 20, 1821, p. 392. " The people of the United
States seem to have contemplated the National Government as the sole and exclusive
organ of intercourse with foreign nations. It ought, therefore, to be armed with
power to satisfy all fair and proper demands which foreign nations may make on
our justice and courtesy; or, in other words with power to reciprocate with
foreign nations the fulfilment of all moral obligations, perfect and imperfect,
which the Law of Nations devolves upon us as a nation. * In this respect, our
system appears to be crippled and imperfect."
See the correspondence relating to the project of annexing Cuba to the United
States, laid before Parliament April 11, 1853, and especially the English Foreign
Secretary's (Lord John Russell's) letter of February 16, 1853.
(r) Elliot's American Diplomatic Codes, vol. ii. part iii. Treaties with the new
nations of South America.
Hertslet's commercial treatise contain nearly all the various conventions between
Great Britain and the Central and South American States.
The last treaty with the State Equator, signed at Quito, May 3, 1851, was laid
before Parliament in that year.
Annuaire des Deux Mondes, 1850, pp. 885, 1104.
JULY, 1854. —10




138      PHILLIMO RE ON INTERNATIONAL LAW.
*The Republics of South America are nine in number, as follows:
*   or, United States of Rio de la
Argentine Confederation     Plata, 14 in number: capital,
Buenos Ayres.
Peru
New Granada.
Bolivia.
Chili.
Venezuela.
Ecuador.
Paraguay.
Uruguay; or, La Bande Oriental: capital, Monte Video.
The American monarchies are three in number, as follows:
Brazil.
Mosquitia.
Hayti.(s)
The British American provinces are:Canada East.
Canada West.
New Brunswick.
Nova Scotia, with Cape Breton.
Prince Edward's Island.
Newfoundland.
Honduras.
CXXII. It is clear that no private associations(t) or companies can
be now considered as substantive members of the community of States.
The ancient confederation of the Ilanse Towns is scarcely to be classed
under the category of these private companies, which had at one time, as
a distinct Federal Body, a persona stanchd in International Law.  No
analogy, however, can be derived even from  them, applicable to modern
companies, associated for the purposes of trade.
The British East India Company has indeed exercised sovereign rights
in respect to foreign nations, has made war, and concluded treaties in its
[*146] own name with Indian princes; *but this power has been delegated
146]to it by the Crown and Parliament of England, and therefore the
responsibility of the International acts of the Company rests upon Great
Britain, as much as the acts of any other of her accredited public agents;
and this company has no International status as a substantive community.
States associated, for the purposes of trade, into a commercial league,(u)
may have a sort of International, or rather Public Law, regulating the
intercourse between the members of the league,(x) upon the principle of
(s) The empire of Hayti is in the French, the republic of San Domingo in the
Spanish part of the island.
(t) Heffters, ss. 13-29. Wheaton's Elem. 1. ii c. i. s. 5, p. ix. Martens, 1. viii.
c. ii. ss. 260-264. Vattel, 1. iii. c. i. s. 4. De M. et de C. 1. i. Index: Compagnie
Anglaise des Indes.
(u) Klfiber, ss. 150-153. Heffters, ss. 8, 93.
(x) For example: 1. Equality of rights and obligations among the members.
2. Apportionment of the common burthens according to the means and strength
of each individual member. 3. That the original conditions of the association
cannot be altered without the consent of every member, &c. —Yide Heffters, Ib.




CI ANG E S IN A  S T A TE.                      139
the ancient adage, ccubi societas ibi jus est;" but States who are not
members of this League, are not bound to regard those who are such, as
clothed, on that account, with any peculiar privileges in their general
International relations.
CXXIII. This observation is applicable to all associations of States
which are not founded upon universal principles of International Law,
but framed for the advancement of some particular object; such, for instance, as associations for the suppression of the slave-trade, or the great
German commercial confederations called the Zollverein, whether presided over by Austria or by Prussia.(y)'CHAPTER VI.                             ['147]
EXTINCTION OF A STATE.
CXXIV.  A State, like an individual, may die; its' corporate capacity
may be extinguished, its body politic may perish, though the individual
members of it may survive.
CXXV. It ceases to exist when the physical destruction of all its
members takes place, or when they all migrate into another territory —
events scarcely to be contemplated as possible in the present times —or
when the social bond is loosed, which may happen either by the voluntary or compulsory incorporation of the nation into another sovereignty,
or by its submission, and the donation of itself, as it were, to another
country.  On the happening of any of these contingencies,(a) a State
becomes, instead of a distinct and substantive body, the subordinate portion of another society.  The incorporation of Wales, Scotland, and Ireland into Great Britain; of Normandy, Britanny, and other provinces
into France, are among the most familiar historical instances which illustrate this proposition.
*CHAPTER  VII.                            [*148]
CHANGES IN A STATE.
CXXVI. But a State may undergo most important and extensive
changes without losing its personalty.(b)  It may be stripped of a por(y) 1 D. M. et C. Index to this title, and Martens, Nouv. Rec. ii., 434-508
(A. D. 1841): Convention entre les Gouvernemens des Etats appartenans h l'association douaniere, Prussienne, etc.
(a) Vattel, 1. i. c. xvi. 194. Heffters, b. i. s. 24. Klfiber, pt. i. c. i. s. 23.
Rutherforth, b. ii. c. x. ss. 12, 13. Wheaton's El6m. i. 33.
(b) Grotius, lib. ii. c. ix. iii. i. " Idem  si populus. Dixit Isocrates, et post eum
Julianus imperator, civitates esse immortales id est, esse posse, quia scilicet
populus est ex eo corporum genere, quod ex distantibus constat, unique nomini
snbjectum est, quod habet'itv tlav, ut, Plutarchus; spiritum  unum, ut Paulus
Jurisconsultus loquitur. Is autem spiritus, sive Elgr in populo est vito civilis con



140     PHILLIM ORE  ON INTERNATIONAL LAW.
tion of its subjects and its territory; it may place itself under the protection of another State, and be reduced to a semi-sovereignty; thereby,
indeed, as has been shown, materially affecting its external relations,
though retaining, in many respects, its corporate character: it may change
its form of civil constitution or government from a Republic to a limited
Monarchy, from an Aristocracy to a Despotism, or to any imaginable
shape; but it does not thereby lose its personality, and does not thereby
forfeit its rights, or become discharged from its obligations.  The nation
[149] now governed by a Despot must pay the debt which she incurred
under a Republican Government the treaty contracted *by a nation
when represented to the rest of the world by the executive of a limited
Monarchy, is equally binding upon her when she has fallen under the
rule of an Oligarchy.
CXXVII. This vital principle of International Law  is a necessary
and principal consequence flowing from the doctrine of the moral personality and actual intercommunion of States.  The Legion, the Roman
jurists said, is the same though the members of it are changed; the Ship
is the same though the planks of it are renewed; the Individual is the
same though the particles of his body may not be the same in his youth
as in his old age, and so " Populum eundem hoc tempore putari qui abhinc centum annis fuisset."(c)
CXXVIII. The learned and wise Savigny, discussing the proper manner of cultivating and improving the municipal law of a country, expresses
an opinion pregnant with true philosophy, when he observes that there
is no such thing as the entirely individual and severed existence of mankind, but that as every individual man must be considered as the member
of a family, a people, and a state; so every age of a people must be regarded as the continuance and developement of times that are past.(d)
Every age does not produce its own world according to its own arbitrary
will and for itself only, but it does this in indissoluble intercommunion
[*150] with the whole past.(e)  Every age, therefore, must acknowledge,
*as it were, certain data, the inheritance of necessity, and yet
sociatio plena atque perfecta, cujus prima productio est summum imperium, venculum per quod respublica cohueret, spiritas vitalis quem tot millia trahunt, ut
Seneca loquitur. Plane autem  corpora hac artificialia instar habent corporis
naturalis. Corpus naturale idem esse non desinit, particulis paulatim, commutatis, una manente specie, ut Alphenus ex Philosophis disserit." This opinion of
Alfenus is to be found in the Digest, 1. v. t. i. 76: " De judiciis et ubi quisque
agere vel conveniri potest." A tribunal had been composed originally of certain
judges; some of them during the hearing of the cause had retired, and others
being substituted in their place; " Quaerebatur, singulorum  judicum  mutatio
eandumn rem an aliudjudicium fecisse. Respondi, non modo si unus aut alter sed
et si omnes judices mutati essent, tamen et rem eandum et judicium idem, quod
antea fuisset permanere."
(c) Dig., ubi supra.
(d) Shakespere puts this reasoning into the mouth of the Duke of York:" Take Hereford's rights away, and take from time
His charters and his customary rights;
Let not to-morrow then ensue to-day:
Be not thyself, for how art thou a king
But by fair sequence and succession?"
Rich. II. act ii. sc. 1.
(e) " Our political system is placed in a just correspondence and symmetry, with




CIHANGES IN  A  STATE.                         141
not imposed upon it by force: a necessary inheritance, in so far as they
are not dependent upon the arbitrary will of the particular present; not
imposed upon it by force, because they are not, like the command of a mnaster to a slave, dependent upon the arbitrary will of any particular foreign
influence; but, on the contrary, are the free produce of the higher part
of the nature of a people, l"the service of perfect freedom" —parts of
one whole continually existing and continually developing itself.  Of
this higher part of a people the present age is a member, which wills and
acts in and with that whole; so that what is transmitted to us from that
whole, may be said to be freely produced by this particular member of
it.  History, Savigny concludes, is not therefore a mere collection of
examples, but the only way to the true knowledge of our own actual
status.(f)  Hooker had long' before arrived at Savigny's conclusion:
" To be commanded," he says, c" we do consent when that Society whereof
we are part hath at any time before consented, without revoking the same
after by the like universal agreement: wherefore as any man's deed past
is good as long as himself continueth; so the act of a public society of
men done five hundred years sithence, standeth as theirs who presently
are of the same societies, because corporations are immortal: we were
then alive in our predecessors, and they in their successors do live
still."(g)
Applying this principle to International relations, we learn that as one
generation does not constitute a State,(h) it *is not merely by the
obligations contracted by one generation that the present State is L    i
bound; the engagements of the past, whether arising from the implied
contract of long usage, or the express letter of treaty, or the pledge of
the Executive Government, howsoever plighted, are as stringent upon
her as those of the present.  The individual succeeds to rights and obligations which he had no share in obtaining or contracting; and still more
is this condition predicable of every corporate body.  Nor is the greatest
of all corporations, the State, exempt from the operation of a rule which
is laid in the eternal constitution of things: " Coetus quilibet, non minus
quam  personvo singulares jus habet se obligandi per se ant per majorern
sui partem.  Hoc jus transferre potest tum expresse turn per consequentiam necessariam, puta imperium  transferendo."(i)  The rule by which
an individual's duties are discovered-namely, by considering the place
which he occupies in the great system of the universe; " qua parte locathe order of the world and with the mode of existence, decreed to apermanent body
composed of transitory parts; wherein by the disposition of a Stupendous Wisdom,
so moulding together the great mysterious incorporation of the human race, the
whole at one time is never old, or middle-aged, or young, but in a condition of
unchangeable constancy moves on through the varied tenor of perpetual decay,
fall, renovation, and progression."-Burke, v. 79. Thoughts on French Revolution,
Ib. 183, 184.
(f) Uber deu Zweck der Zeitschiift fir die gesehichtliche Rechtswissenschalft.Savigny, Vermischte Schriften, 1 —110.
(g) Hooker, Eccles. Pol. b. i.
(h) " Because a nation is not an idea only of local extent and individual momentary aggregation, but it is an idea of continuity which extends in time as well
as in members and in space."-Burke's Works, vol. x. p.97: Reform of Representation in the House of Commons.
(i) Grotius, 1. ii. c. xiv. s. 11, p. 408.




142     PHILLIMORE0   ON INTERNATIONAL LAW.
tus es in re"-furnishes an equally sound maxim for national as for individual conduct.  c"I1 ne seroit pas," says the Abb6 Mably, "c moins superflu de m'arreter a prouver q'un Prince est lie par les engagemens de
son prdd6cesseur: puisqu'un Prince qui fait un Trait6 n'est que la delegue de sa nation, et que les Traitds deviennent pour les peuples qui les
ont conclus, des Lois qu'il n'est jamais permis de violer."  He proceeds to
cite a passage from Bodinus to the effect that a king of France is not bound
by the treaties of his predecessors; because each k]ing of France is only the
" usjfructuartus" of his kingdom, and does not appoint his successor, who
has an absolute right to the throne; and observes truly, ", Il n'est point
de lecteur qui ne sente tous les vices de ce miserable raisonnement."(k)
CXXIX. The authority of D'Aguesseau(l) and Montesquieu further
[*152] strengthens a position of such paramount importance *to the
peace of the globe.  The latter conclusively destroys the sophistry by which it has been attempted to chicane away the binding force of
Treaties, on the ground of their having been extorted by that superior
force which might vitiate a civil contract between individuals.(m)
It might indeed, have been supposed that this truth was too firmly
established, and the value of it too deeply felt and too generally recognised, to be liable to question in these days. After the recent overthrow
of the Orleans' dynasty in France, the proclamation of M. de Lamartine
(1848) appeared for a moment to throw the weight of France into the
opposite scale, as disavowing the obligations in the treaty of Vienna,
chiefly, it would seem, because at the time it was made, France was
governed by a Monarchical, and at the time it was disavowed by a Republic Government.(n)
Now no doctrine more fatal than this to the tranquillity of the globe
can well be maintained-none which it is more the duty of every upholder of International Law  to denounce.  Nor can any doctrine be
more pernicious to the country itself, be it Monarchical or Republican,
which propounds it. " Nulla res," said Cicero, with all the energy of
moral wisdom, " vehementius Rempublicam continet quam fides." What
becomes of national faith if it be made to depend upon a form of Government?  Much what would become of individual faith if it depended
upon no change happening in the condition or age of the person who
plighted it.
CXXX. The importance of the subject did not escape the notice of
Grotius; and I do not know that, upon such a point, a higher authority
can be appealed to: cc"Neque refert quomodo gubernetur, regione, an
pluriumn, an multitudinis imperio.  Idem  enim est populus Romanus
sub regibus, consulibus, imperatoribus.  Imo etiamsi plenissimo jure
[*153] regnetur, populus idem  erit qui ante erat *cum sui esset juris,
dum rex ei prasit ut caput istius populi, non ut caput alterius
(kI) Mably, De Droit Public, &c., t. i. p. 111, 112.
(1) There are some striking remarks of D'Aguesseau, i. 493. s. 4, as to the observance of Treaties.
(me) Esprit des Lois, 1. xxvi. c. xx.-"- Qu'il ne faut pas decider pas les principes
des lois civiles les choses qui appartinnent an droit des gens."
(n) Trois mois au pouvoir par M. de Lamartine, p. 75.




CHANGES IN  A  STATE.                         143
populi.  Nam  imperium  quod in rege ut in capite, in populo manet ut
in toto, cujus pars est caput: atque adeo rege si electus est, aut regis
familia extincta, jus imperandi ad populum redit, ut supra ostendimus." (o)
And in another part of this great work he expresses his free and
manly opinion on this matter: " Huc et illa frequens questio referenda
est de pactis personalibus ac realibus.  Et siquidem cum populo libero
actumrn sit, dubium non est, quin quod ei promittitur sui natura reale sit,
quia subjectum est res permanens.  Imo etiamsi status civitatis in regnum mutetur, manebit foedus, quia manet idem corpus etsi mutato capite,
et ut supra diximus, imperium, quod per Regem  exercetur, non desinit
imperium esse populi."(p)  With this opinion Heineccius, in his commentary on Grotins, entirely concurs.
CXXXI. An English civilian of considerable note in his day, commenting upon this passage, recognises and adopts the doctrine which it
conveys: cAll leagues and treaties are national; and where they are
not to expire within a shorter time, though made with usurpers, will bind
legal princes if they succeed, and so vice versa; and a league made with
a king of any nation will oblige that nation if they continue free, though
the Government should be changed to a Commonwealth, because the
nation is still the same though under different Governments."(q)
Vattel, whom Lord Stowell pronounced to be not the least indulgent
of modern professors of Public Law,(r) speaks unhesitatingly to the
same effect:'" Puisque les traites publics, me'me personnels, conclus par
un roi, on par tout autre souverain qui en a le pouvoir, sont trait6s
de l'Etat, et *obligent la Nation entiere, les trit6s r6els, faits [*154]
pour subsister ind6pendamment de la personne qui les a conclus obligent sans doute les successeurs.  L'obligation qu'ils imposent h
l'Etat passe successivement A tous seas conducteurs, a mesure qu'ils
prennent en main l'autorit6 publique. II en est de meme des droits
acquis par ces traites.  Ils sont acquis a l'Etat, et passent a ses conducteurs successifs."(s)  And in another place he says,'" Des qu'une puissance l6gitime contracte au nom  de l'Etat, elle oblige la nation elle
meme, et par consequent tons les conducteurs futurs de la societe.  Lors
done qu'un Prince a la pouvoir de contracter au nom de l'Etat, il oblige
tons ses successeurs; et ceux-ci ne sont pas moins tenus que luimeme a
remplir ses engagements."(t)
CXXXII. The language of Bynkershoek is still more forcible.  In
one passage he observes: "lRecte dixit Grotius(u) jus Populi non deficere
nisi deficiat ipse Populus.  Forma autema Regiminis mutata non mutatur ipse Populus. Eadem utique Republica est, quamvis nunc hoc, nune
alio modo regatur: alioquin diceres, Rempublicam  in statu, quo nune
est, exsolutam videri pactis et debitis in alio statu contractis De debitis
(o) Grotins, 1. ii. c. ix. s. 8.  (p) Grotius, 1. ii. c. xvi. s. 16.
(q) An Essay concerning the Laws of Nations and the Rights of Sovereigns by
Matthew Tindall, L. L. D. p. 14 (London, 1734).
(r) The Maria, 1 Rob. Adm. Rep. p. 163.
(s) Vattel, Le Droit de Gens, 1. ii. c. xii. s. 191, p. 400.
(t) Ib. 1. ii. c. xiv. s. 215.  (u) De Jure Bel. ix. 1. ii. c. ix. s. 3.




144      PHILLIMORE ON  INTERN.ATIONAL LAW.
id dichre non licere consentit Grotius(x) De factis ut idern dicamus,
eadem qua in debitis obtinet ratio persuaserit."(y)  His chapter " De
servandt fide pactorum  publicorum, et an quve eorum tacitwe exceptiones," begins: cPacta privatorum tuetur jus civile, pacta principum
bona fides.  Hanc si tollas, tollis mutua inter principes commercial quve
oriuntur e pactis expressis, quin et tollis ipsum jus gentiumn, quod oritur
e pactis tacitis et presumptis, quva ratio et usus inducunt."(z)
*He then proceeds to comment upon the sophistry which defends
a departure from the obligation of treaties: " Haec pactis omnibus inesse
credit clausulam salutarem, rebus sic stantibus, atque adeo a pactis recedi
posse. I. Si qua nova causa, satis idonea, obveniat. II. Si res eo
deducta sit, unde incipere non posset.  III. Si ipsa pacetorum  ratio
cesset.  IV. Si necessitas ac utilitas Reipublicoe aliud flagitent."(a)
The last pretext he denounces as a detestable machiavellism-" the
beast of many heads, Reason of State, the bane of Princes," and characterizes the three former excuses as " totidem ruptoe fidei velanmenta:"_and again in his boldest manner, "Promissum igitur si me audias, etiam
tune servandum, cum id servari Reipubliea non expediat, imo periculosum
sit." (b)
CXXXIII. Not less emphatic and decisive is the language of the
great Republican State of North America: "Nations are at liberty"
(says Mr. Chancellor Kent) "to use their own resources in such manner
and to apply them to such purposes as they may deem best, provided
they do not violate the perfect rights of other nations, nor endanger their
safety, nor infringe the indispensable duties of humanity.  They may
contract alliances with particular nations, and grant or withhold particular privileges, in their discretion.  By positive engagements of this kind
a new class of rights and duties is created, which forms the conventional
law of nations, and constitutes the most diffusive, and generally the most
important branch of public jurisprudence.  And it is well to be understood, at a period when alterations in the constitutions of governments
and revolutions in States are familiar, that it is a clear position of the
law of nations that treaties are not effected, nor positive obligations of
any kind with other powers or with creditors weakened, by any such
mutations.  A  State neither loses any of its rights nor is discharged
*from  any of its duties by a change in the form  of its civil
- 156] government.  The body politic is still the same, though it may
have a different organ of communication."(c)
CXXXIV. Puffendorf, in his chapter "IDe mutatione et interitu civi(x) lb. 1. ii. c. ix. s. 8, n. 3.    (y) L. J. P. 1. ii. c. xxv. —arik Qucestiunculhe.
(z) Bynkershoek, Q. J. P. 1. ii. c. x. See, too, Burke's Tracts on the Popery
Laws, c. iii. infine, as to the ratification of the Treaty of Limerick.
a) Ibid.        (b) See too Cicero, De Off. 1. iii. c. v. 6, 11.
c) Kent's Commentaries on American Law, vol. i. pp. 25, 26.
Wheaton (Elem. i., 33) speaks fully to the same effect: " Un 6tat est un corps
changeant quant au membres qui composent la societ6, mais quant C la societe
mnme, c'est le m6me corps dont lFexistence est perp6tuee par une succession constante de membres nouveaux. Cette existence continue taut qu'aucun changement
fondamental n'a Ste introduit dans l'Etat."




C H A N G E S IN  A  S T ATE.                      145
tatum," adds the authority of Sweden to fortify these positions in one
of the best chapters of his treatise on ( De Jura Natura et Gentium."(d)
CXXXV. We have, then, this opinion of the continuity of the right
and obligations of a State confirmed by the unanimous authority of the
most celebrated jurists and statesmen(e) of all countries.  This accumulation of authorities *must not be regarded as an idle parade of ['157
evidence, because, as has been already observed, a proposition [15
which is maintained by the concurrent voice of eminent jurists of various
civilized countries becomes ipso facto, as it were, a part of International
Law.(f)
CXXXVI. We arrive then, with confidence at the conclusion, that
this reciprocal observance of good faith, whether it be plighted to the
payment of debts or to the fulfilment of the stipulations of treaties(g) is
binding upon all nations.  This good faith is the great moral ligament
which binds together the different nations of the globe.(h)  Without
this, war would be, as has been sometimes asserted, the perpetual destiny
of mankind, and that miserable fiction of shallow declamation and specious
sophistry would be reality and truth.
CXXXVII. It remains only to add a proposition which is indeed a
corollary from  the foregoing statements.  If a nation be divided into
various distinct societies, the obligations which had accrued to the whole,
before the division, are, unless they have been the subject of a special
(d) L. viii. c. xiv.
(e) " L'unite permanente qui s'etablit, et le developpemeut progressif qui s'opere
par cette tradition incessante des hommes aux hommes, et des ge6nrations aux
g'nerations, c'est 1 le genre humain; c'est son originalite et sa grandeur;  c'est
un des traits qui marquent l'homme pour la souveraint6 dans cce monde, et pour
l'immortalit6 au del. de co monde.
": C'est de 1i qui derivent et par 1h que se fondent la famille et l'6tat, la propriete
et l'heredit6, la patrie, i'histoire, la gloire, tous les faits et tous les sentiments qui
constituent la vie etendue et perpetuelle de l'humnanite au milieu de l'ciapparition si bornne
et de la disparition si crapide des individus humains.
"La lRpublique sociale supprime tout cela: elle ne voit dans les hommes que
des Btres isoles et ephembres qui ne parissent dans la vie et sur cette terre, th6atre
de la vie, que pour y prendre leur subsistance et leur plaisir, chacun pour son
compte seul, au mrmne titre et sans autre fin.
" C'est pre'cis6ment la condition des animaux. Parmi eux, point de lieu, point
d'action qui survive aux individus, et s'etende a tous; point d'appropriation permanente, point de transmission he'reditaire, point d'ensemble ni de progres dans la
vie de l'espece; lieu que des individus qui paraissent et passent, prenant en passant leur part des biens de la terre et des plaisirs de la vie, dans la mesure de leur
besoin et de leur forcequi font leur droit."-De la Democratic en France, par M.
Guizot, pp. 58-60.                   (f) Vide ante, Chapter VII. p. 58.
(g) "Item fcedera pacis et induciarum  possunt sub hoc capite collocari, non
quatenus servanda sutnt postquam suntfacta; hoc enim potius pertinet ad jus naturale."-Suarez, De Legibus et Deo Legislatore, p. 109.
(h) " Je ne crois pas" (says Abbe Mably) "qu'il soit necessaire de parler dans
cet ouvrage de la fidelite scrupuleuse avec laquelle les Etats doivent remplir leurs
engagemens; je ne fais pas ici un traite de droit natural. D'ailleurs que pourrois-je ajouter k ce que tout de savans hommes ont ecrit sur cette matidre?  Executer ces promesses, c'est le bien de la societe generale, c'est la base de tout le bonheur de chaque societ6 particuliere; tout nous le prouve, tout nous le demontre,
cette v6rite dont de mauvais raisonneurs veulent douter est connue des peuples les
moins polices; et les princes malheureux qui se font un jeu de leurs sermrnens,
feignent de la respecter, si leur ambition n'est pas stupide ou brutale." —Tome i.
p. 111.




146   PHILLIMORE ON INTERNATIONAL LAW.
agreement, rateably binding upon the different parts:(i) "Contra
U[    ]t*evenit" (as Grotius expresses himself) e"ut quae una civitas
fuerat, dividatur, aut consensu mutuo, aut vi bellic, sicut corpus imperii
Persici divisum est in Alexandri successores. Quod cum sit, plura pro
uno existunt summa imperia, cum suo jure in partes singulas. Si quid
autem commune fuerit, id aut communiter est administrandum, aut pro
rato portionibus dividendum."(k)   And  " so" (says Mr. Chancellor
Kent) if a State should be divided in respect to territory, its rights and
obligations are not impaired; and if they have not been apportioned by
special agreement, those rights are to be enjoyed, and those obligations
fulfilled, by all the parts in common."(1)  So Mrr. Justice Story, delivering a judgment in the Supreme Court of the United States, observed:,"It has been asserted as a principle of the common law, that the division
of an empire creates no forfeiture of previously vested rights of property;
and this principle is equally consonant with the common sense of mankind, and the maxims of eternal justice."(m) Lastly, it should be observed, that this principle is in viridi observantial in International practice, and was incorporated into the treaty by which the modern kingdom
of Belgium was established.(n)
(i) "Das iibrigens die Acte der Staatsgewalt eines friiherern Herschers, welche
des Verfassung des regierten Staates entsprechen, auchlfir der Nachfolger verbindlich sind, kann gewiss nach internationalem Recht in keiner Zweifel gezogen werden."-Heffters, s. 57, p. 111; Zacharia, Staats und Bundesrecht, s. 58.
(k) Grotius, 1. ii. c. ix. s. 10, p. 327.
(1) Kent's Commentaries, vol. i. p. 25.
(m) Terrett and others v. Taylor and Others, ix., Cranch's (American) Reports,
50; citing Kelly v. Harrison, 2 John. C. 29; Jackson v. Lunn, 5 John. C. 109
(American); Calvin's Case, 7 Co. 27.
(n) Wheaton's Hist. 546,




PAART THE THIR D.
*CHAPTER  I.                          [*159]
OBJECTS OF INTERNATIONAL LAW.
CXXXVIII. The Sources and the Subjects of International Law
having been stated, it remains to consider the objects of this system of
jurisprudence; that is, the rights which are to be ascertained, protected,
and enforced by this law.(a)
CXXXIX. These rights flow as moral and logical consequences from
the positions laid down in the first chapter with regard to the individuality
and intercommunion of States, and from the definition of a State in the
second chapter.  Some of these rights concern more immediately the internal and domestic, others the external and foreign condition of a State.
Moreover, the rights of nations, like the rights of individuals, admit of
a general division into rights which relate to persons, to things, and to
the mode of their enforcement.
CXL. These are rights properly so called-rights strictijuris; but
the constant intercourse and increasing civilization of nations has given
rise to a usage and practice which greatly mitigates the severity with
which these rights, *abstractedly considered, might be exercised, [*160]
both with respect to the foreign community, in its aggregate
capacity, and with respect to the persons of the individual members
belonging to it.  This usage is called comitas gentiure —the comity of
nations-droit de convenance.
CXLI. With regard.to the intercourse of indivi'dual members of different States, this CoMITY has been suffered to grdw up into what may
be termed a j'us gentium privattum; and which requires, on account of
its magnitude and importance, a separate and distinct notice in another
part of this work.
CXLII. With regard to a State in its aggregate capacity, questions
of comity being much fewer in kind, and rarer in occurrence, may be
(a) "Jus gentium est sedium occupatio, oedificatio, munitio, bella, captivitates,
servitutes, postliminia, fcedera, paces, inducie, legatorum non violandorum religio,
connubia inter alienigenas prohibita. Hoc inde jus gentium appellatur, quia eo
jure omnes fern gentes utuntur. — Decret. i., Dist. i. c. ix.




148      P11 ILLIMORE  ON  INTERNATIONAL  LAW.
conveniently mentioned and distinguished in the general treatment of
rights properly so called.
CXLIII. But with regard to both, the fundamental distinction between the usage of comity and the right st'ricti juris must never be forgotten.(b)
goteL61]   *The violation of rights stricti jueris may be redressed by
forcible means, by the operation of war, which in the community of nations answers to the act of the judicial and executive power
in the community of individuals.  But the departure from the usage of
comity cannot be legally redressed by such means.  The remedy, where
expostulation has failed, must be a corresponding reciprocity of practice
on the part of the nations whose subjects are so treated. IcIllud quoque
sciendum  est," observes Grotius; "csi quis quid debet, non ex justitif
propria, sed ex virtute alia, puta liberalitate, gratia, misericordia, dilectione, id sicut in foro exigi non potest, ita nee armis deposci."(c)  It is,
however, often a question of some nicety and difficulty to ascertain to
which class an asserted claim belongs, because the usage which had its
origin in the precarious concession of Comity may be, and in many instances has been transferred through uninterrupted exercise and the lapse
of time, into the certain domain of Right.(d)
(b) "Non minus sollicite separavimus ea qufe juris sunt, stricte ac proprie dicti,
unde restitutionis obligatio oritur, et ea quae juris esse dicuntur, quia aliter agere
cum alio aliquo rectue rationis dictato pugnat."-Grot. Proleg. s. 41.
In the case of The Maria, Lord Stowell observes (speaking of Art. 12 of the
Order of Council, 1664, which directs, "That when any ship, met withal by the
Royal Navy or other ship commissionated, shall fight or make resist, the said ship
and goods shall be adjudged lawful prize:") "I am aware that in those orders
and proclamations are to be found some articles not very consistent with the law
of nations as understood now, or indeed at that time, for they are expressly censured by Lord Clarendon. But the article I refer to is not of those he reprehends;
and it is observable that Sir Robert Wiseman, then the King's Advocate-General,
who reported upon the Articles in 1673, and expresses a disapprobation of some
of them as harsh and novel, does not mark this article with any observation of
censure. I am therefore warranted in saying that it was the rule, and the undisputed rule of the British Admiralty. I will not say that that the rule may not have
been broken in upon in some instances by considerations of comity or of policy, by
which it may be fit that the administration of this species of law should be tempered in the hands of those tribunals which have a right to entertain and apply
them; for no man can deny that a State may recede from its extreme rights, and
that its supreme councils are authorised to determine in what cases it may be fit
to do so, the particular captor having in no case any other right and title than
what the State itself would possess under the same facts of capture."-1 Rob. Ad.
Rep., 367, 368.
And again, further on in the same case, he says: "It is lastly said, that they
have proceeded only against the merchant vessels, and not against the frigate,
the principal wrong-doer. On what grounds this was done-whether on that sort
of comity and respect which is not unusually shown to the immediate property of
great and august Sovereigns, or how otherwise, I am again not judicially informed;
but it can be no legal bar to the right of a plaintiff to proceed, that he has for
some reason or other declined to proceed against another party, against whom he
had an equal or possibly a superior title."-Ib. p. 376.
"PDe oficiis innoxice utilitatis, que, si primum illorum originem spectaveris, sunt
imjperfecta, per ea, quae accedunt, autem in perfecta mutari atque transire possunt;
paullo difficilior est disquisitio." —De Necessitate et Ussu Juris Gentium lDissertatio,
c. ii. s. 17.-Pestel.
See the part of this work which relates to COMITY for distinction between Yus
Gentiurn and Jus inter Gentes.
(c) Grotius, 1. ii. c. xxii. s. 16.         (d) Vide ante, p. 11.




RIGHTS  OF  INDEPENDENCE, ETC.                     149
*CIHAPTER   II.                       [*162]
RIGHTS OF INDEPENDENCE AND EQUALITY.
CXLIV. Some of the rights of nations appear to flow more directly
from the first, and some more directly from the second of those propositions which have been laid down as together constituting the basis of
International Law.(a)
CXLV. From the first proposition-namely, that States are recognised
as free moral persons-seem to be more especially derived the rights incident to INDEPENDENCE, which are the following:1. The right to a Free Choice, Settlement, and Alteration of the Internal Constitution and Government without the intermeddling of any
foreign State.
2. The right to Territorial Inviolability, and the free use and enjoyment of Property.
3. The right of Self-preservation, and this by the defence which prevents as well as by that which repels attack.
4. The right to a free development of national resources by Commerce.
5. The right of Acquisition, whether original or derivative, both of
Territorial Possessions and of Rights.
6. The right to absolute and uncontrolled jurisdiction over all persons
and things within, and in certain exceptional cases without, the limits of
the territory. Under this head may be considered the status of Christians in Mahometan or Infidel countries, not being subjects of those
countries, and the question of Extradition of criminals.
*CXLVI. The limitations which the abstract Rights of one   163
nation may receive in their practical exercise, from the existence [1 
of similar Rights in another nation, will be considered in a chapter on
the doctrine of INTERVENTION.
CXLVII. From  the second proposition-namely, that each State is
a member of an Universal Community —seem to be more especially
derived the Rights incident to EQUALITY, which are the following:1. The Right of a State to afford protection to her lawful subjects
wheresoever commorant; and under this head may be considered the
question of debts due from the Government of a State to the Subjects of
another State.
2. The Right to the Recognition by Foreign States of the National
Government.
3. The Right to External marks of Honour and Respect.
4. The Right of entering into International Covenants or Treaties
with Foreign States.
(a) Vide ante, p. 9.
Kaltenborn, kap. v. s. 9: Versuch einer wissenschaftlichen Systematick des
Volkerrechts.




1 50     PI ILLIMORE  ON  INTERN ATIONAL  LAW.
[*164]                *CHAPTER III.
RIGHT TO A FREE CHOICE OF GOVERNMENT.
CXLVIII. I. We will now consider the rights which flow asnecessary
consequences from the INDEPENDENCE of States.
And, first, in the rank of internal and domestic rights, is the liberty
incident to every Independent State, of adopting whatever form  of
government, whatever political and civil institutions, and whatever rulers
she may please, without the interference or control of any foreign power.
This elementary proposition of International Law is so unquestionable
that it would be superfluous to cite authorities in support of it.(a)
CXLIX. This proposition, nevertheless, however true and however
important, generally speaking, is not without some limitations in its
practical application; because, rights on the part of other States, members
of the same system, may control, to a certain extent, the right of unlimited liberty generally incident to a State in the establishment of its
government, as the right of an individual in society to perfect liberty is,
to a certain extent, limited by a similar right in his neighbour. The
limitation of which this right is susceptible will be discussed hereafter
in the chapter on INTERVENTION.
[*165]                   *CHAPTER  IV.
TERRITORIAL INVIOLABILITY-NATIONAL POSSESSIONS.
CL. II.-A State, like an Individual, is capable of possessing property.
The property of a State is marked by the same characteristics relatively to
other States, as the property of individuals relatively to other individuals;
that is to say, it is exclusive of all foreign interference, and susceptible
of free disposition.(a)
This property consists of Things (corpora), and of Rights to things
(jura); or, in other words, it consists of things divided into those which
are corporal or incorporeal, movable or immovable (res, bona, pecunia).(b)
(a) It is nowhere more faithfully enunciated than in Guinther, i. 284, ss. 6, 7:'Keine nation ist beffigt, sich in die handlungen der andern zu mischen, am
wenigsten in die innere Staatsverfassung."  The principle is recorded in many
treaties: e. g., Treaty of the Pyrenees, 1659, (Art. 60-France promises not to interfere in the affairs of Portugal;) Peace of Lubeck, 1629, (Arts. 2, 3-the Emperor
of Germany takes a similar engagement as to Denmark-a reciprocal one being
taken by Denmark;) Peace of Neustadt, 1721, (Art. 7-Russia makes a like promise with respect to Sweden.) During the last twenty years most of the great
European powers have, on various occasions, formally, at least, promulgated the
same doctrine. Vide post, " INTERvENTION-Balance of Power."
(a) Heffters, s. 64.
(b) " Cum pupillus a tutore stipulatur rem salvam fore, non solum quae in patrimonio habet, sed etiam quao in nominibus sunt, ea stipulatione videntur contineri."
-Dig. 1. xlvi. t. vi. 9.
"In bonis autem nostris computari sciendum est non solum qute dominii nostri
sunt, et si bona fide a nobis possideantur vel superficiaria sint.,Equo bonis ad



T E RR I TO RAL  I N v  OL AB I LITY                 151
As in the case of Individuals, certain things belong by their nature so
equally to every person, that they are incapable of being appropriated by
any one person; so in the case of States, certain things belong so equally
to all communities, as to be incapable of being appropriated by any one
of them (extra commercium-extra patrimnonilum.)
All these Things and Rights taken together would be designated by
the Roman law c' universitas."(c)  At present *we are concerned
only with that portion of'this collective whole which relates to [166]
real or territorial rights, and more especially with the right which flows
from  the above-mentioned characteristic of exclusiveness-namely, the
Right of Territorial Inviolability.
CLI. A State in the lawful possession of a territory has an exclusive
right of property therein, and no stranger can be entitled, without her
permission, to enter within her boundaries, much less to interfere with
her full exercise of all the rights incident to that supreme dominion,
which has obtained from jurists the appellation of donbiniumn  enminens.
CLII. No individual proprietor can alienate his possessions from  the
State to which they belong, and confer the property of, or the sovereignty
over, them to another country.(d)  Whether and to what extent it may
be competent to the sovereign of a territory to alienate any portion of
it will be hereafter considered.
CLIII. This general principle of dominnium  eminens is applicable to
all possessions, whether acquired, 1, by recent acquisition, through the
medium  of discovery and lawful occupation; 2, by lawful cession or
alienation; 3, by conquest in time of war, duly ratified by treaty; or,
4, by prescription.
CLIV. National Territory consists of water as well as land; and,
in order to examine carefully the former species of possession, we must
consider whether, and to what extent, and under what limitations, the
following waters may be the objects of national property and dominion:1. Rivers and Lakes.
2. The Open Sea.
3. The Narrow Seas.
4. The British Seas.
5. The Straits.
6. Portions of the Sea.
numerabitur, etiam si quid est in actionibus, petitionibus, persecutionibus: namr
haec omnia in bonis esse videntur."-Ib. 1. t. xvi. s. 49.
" Pecunice verbum non solum numeratam pecuniam complectitur: verum omrnem
omnino pecuniam, hoc est omnia corpora: nam corpora quoque pecuniae appellatione contineri nemo est qui ambiget." —Ib. 178.
"Pecunice nomine non solum numerata pecunia; sed omnes res, tam soli quam
mobiles, et tam corpora quamr jura continentur." —Ib. 222.
(c) " Bonorum appellatio, sicut hTcreditatis, universitatem quandam ac jus successionis, et non singulas res demonstrat. —Dig. lib. 1. t. xvi. 208.
(d) De Garden Traitd de Diplomatic, t. i. p. 387.




152      PHILLIMORE  ON  INTERNATIONAL LAW.
[*167]                   *CHIAPTER V.
PROPERTY OF A STATE-RIVERS.
CLV. No difficulty can arise with respect to Rivers and Lakes entirely
enclosed within the limits of a State; but questions of some difficulty
have arisen with respect to rivers which are not so enclosed, but which
flow  through more than one State.(a)   The Roman law  declared all
navigable rivers to be so far public property that a free passage over
them was open to everybody, and the use of their banks (jus littoris) for
anchoring vessels, lading and unlading cargo, and acts of the like kind,
to be incapable of restriction by any right of private domain.(b)
CLVI. The navigable rivers, however, were classed, according to that
law, among the " res publicce," and not, as might appear from a superficial view, among the  i "res communes," as the sea was.  Rivers were
the public property of the State, not commnon to the whole world like the
ocean. (c)
CLVII. It has been contended, that the principle of this law has been
engrafted upon International Law, and that it is a maxim of that law
that the ocean is free to all mankind, and rivers to all riparian inhabitants. So that the nation which possessed both banks of a river where
it disembogued itself into the sea, was not at liberty to refuse the nation
or nations which possessed the banks of the river *higher up,
[1681] from the use of the water, for the passage of vessels to the sea,
and from  the incidental use of the banks for the purposes mentioned
above.(d) The opinion of Grotius(e) seems to be in favour of this position; for he held that, though the property and domain over the stream
belonged to the riparian States, "at idem  flumen qua aqua profluens
vocatur, commune mansit;"(f) and this upon two grounds: 1. Because
this was one of the rights excepted and reserved, at the period when the
right of property was introduced as a limitation upon the original community of possession, in which fiction this great man believed; but as
the basis of this opinion clearly was and is now universally acknowledged
to be a fiction, this reason, built upon the supposition of its being a
truth, can be of no avail.(g)  2. Because the use of rivers belonged to
the class of things "c utilitatis innoxice,"(h) the value of the stream being
in no way whatever diminished to the proprietors by this innocent use of
them by others, inasmuch as the use of them is inexhaustible.(i)  Grotius,
(a) Grotius, 1. ii. c. ii. ss. 12-14, p. 191; c. iii. ss. 7-12, p. 207.
(b) Inst. l. ii. tit. i. ss. 1-5; Dig. l. i. tit. viii. s. 5.
(c) " Qu dam enim naturali jure communia sunt omnium, quedam publica....
Et quidem naturali jure communia sunt omnia hAec: AMr, Aqua profluens, et Mare,
et per hoc littora maris.... Flumina autem omnia, et Portus,p~ublica sunt.Inst. 1. ii. tit. i. ss. 1, 2.
(d) Wheaton's History of the Law of Nations, p. 502.
(e) Lib. ii. c. ii. s. 12, et seq. p. 191.
(f) Vattel, 1. i. c. x. ss. 103, 104; 1. i. c. xxiii. s. 292.
(g) So Vattel, t. i. 1. ii. c. ix. s. 123:'" -un reste de la communion primitive."
(h) Grotius, 1. ii. c. ii. s. 11.
(i) Vattel, t. i. 1. ii. c. ix. s. 126: "Des choses d'un usage inepuisable."




dIVER S.                           153
as it will be necessary to remark hereafter, appears to have considered
the right of mere passage (jus transituis innoxii) by one nation over the
domain of another-whether that domain was an arm of the sea, or lake,
or river, or even the land-to be one of strict law, and not of comity;
but his opinion is not founded upon any sound or satisfactory reason;
and is at variance with that of almost all other jurists.(j)  For, the reason of the thing and the opinion of other jurists, speaking generally,
seem to agree in holding that the right can only *be what is called
(however improperly) by Vattel and other writers imperfect, and [169
that the State, through whose domain the passage is to be made, must
be the sole judge as to its being innocent or injurious in its character.(k)
CLVIII. It may be conceded, however, that the right to the free
navigation of a river being once granted, the innocent use of the different waters which unite that river with the sea follows as a matter of
course, and by necessary implication.  This proposition was stoutly
maintained by the States who were interested in the free navigation of
the Rhine, and who insisted that no other construction could be put upon
the expressions in the treaties of Paris and Vienna, declaring that river
to be free.  "c Au point ohu il devient navigable jusqu'a la mer,"(l) which
expressions included, not only the course of the Rhine Proper, which
lost itself in the sands, but the other channels through which this river
disembogued itself into the sea.(mn)
CLIX. And it may also be admitted, that when this right of free
navigation has been conceded, the maxim of Roman jurisprudence applies, and that the right of the shores is incident to the use of the water.
Mr. Wheaton remarks, in his valuable history of the Law of Nations,
that the laws of every country probably intended the same provision;
and he adds a remarkable instance of the practical application of'the
principle in the following precedent of International Law:-"- This" (he
says) "' must have been so understood between France and Great Britain
at the Treaty of Paris, when a right was ceded to British subjects to
navigate the whole river (the Mississippi), and expressly that part between
the island of New Orleans and the western bank, without stipulating a
word about the use of the shores, though both *of them belonged [170
then to France, and were to belong immediately to Spain.  Had [1
not the use of the shores been considered as incident to that of the water,
it would have been expressly stipulated, since its necessity was too obvious
to have escaped either party.  Accordingly, all British subjects used the
shores habitually for the purposes necessary to the navigation of the
river; and when a Spanish governor undertook at one time to forbid this,
and even cut loose the vessels fastened to the shores, a British vessel
(j) Monsieur Eugene Ortolan, however, a modern French author, who writes
with care, good sense, and perspicuity, agrees with Grotius. See Des Moyens
d'acquerir le Domaine International ou Proprie6t d'Etat entre les Naions, etc., p.
30 (Paris, 1851.)
(k) Puffendorf, 1. iii. c. iii. s. 8. Wheaton's Elem. of International Law, vol. i.
pp. 229, 230. History of the Law of Nations, pp. 508-510. Puffendorf, 1. iii. c.
iii. ss. 3-6. Wolff's Inst. ss. 310-312. Vattel, 1. i. s. 292; 1. ii. ss. 123-139.
(I) De Martens et de Cussy, Rec. de Tr., t. iii. p. 179.
(m) Annual Register for 1826, pp. 259-263.
JULY, 1854.-11




154   PHILLIMORE ON INTERNATIONAL LAW.
went immediately, moored itself opposite the town of New Orleans, and
set out guards with orders to fire on such as might disturb her moorings.
The governor acquiesced, the right was constantly exercised afterwards,
and no interruption was offered." (n)
CLX. These accessaries, however, can of course only be demanded
when the principal right has been granted; and we must return to the
position, that where the free navigation of a river has not been conceded
by the State possessing both banks, there is not sufficient authority for
maintaining that such concession can be, irrespectively of treaty, lawfully compelled. It is true, indeed, that the United States of America,
in their controversy with Spain with reference to the navigation of the
Mississippi, before the Treaty of Lorenzo el Real in 1795, insisted upon
a strict International right, founded as it was alleged, upon the natural
sentiments of man, to the free use of rivers from  the source to the
mouth to all riparian inhabitants.  But the practice of nations' was not
at that time in favour of this position, and a treaty was finally resorted
to in this, as it has been since in other cases, as the only certain means
of placing this claim upon the footing of right, and of securely regulating its exercise.
CLXI. The general law upon this head is summed up with characteristie perspicuity by Lord Stowell in the case of the cc Twee Gibroe1171] ders."(o)  This was a case of considerable *importance, as it
respected the claim of a sovereign State to the right of territory
over the spot where the capture in question was alleged to have taken
place.  The case arose on the capture of vessels in the Groninger  Watt,
on the suggestion that they were bound from Hamburg to Amsterdam,
then under blockade, and a claim was given under the authority of the
Prussian minister, averring the place in question to be within the territories of the King of Prussia.  Lord Stowell said, "It is scarcely necessary to observe, that a claim  of territory is of a most sacred nature.
Strictly speaking, the nature of the claim brought forward on this occasion is against the general inclination of the law, for it is a claim of private and exclusive property, on a subject where a general, or at least a
common use is to be presumed. It is a claim which can only arise on portions of the sea, or on rivers flowing through different States: the law
of rivers flowing entirely through the provinces of one State is perfectly
clear. In the sea, out of the reach of cannon shot, universal use is presumed; in rivers flowing through conterminous States, a common use
of the different States is presumed. Yet, in both of these, there may,
by legal possiblity, exist a peculiar property excluding the universal or
the common use.  Portions of the sea are prescribed for, so are rivers
flowing through contiguous States; the banks on one side may have
been first settled, by which the possession and property may have been
acquired, or cessions may have taken place upon conquests, or other
events.  But the general presumption certainly bears strongly against
such exclusive rights, and the title is a matter to be established, on the
part of those claiming under it, in the same manner as all other legal
(n) Hist. of the Law of Nations, 510, 511.   (o) 3 Rob. Ad. Rep. 338-340.




RIVERS.                                155
demands are to be substantiated, by clear and competent evidence.  The
usual manner of establishing such a claim is, either by the express recorded
acknowledgment of the conterminous States, or by an ancient exercise
of executive jurisdiction, founded presumptively on an admission of prior
settlement, or of subsequent cession.  One hardly *sees a third   172]
species of evidence, unless it be, what this case professes to [172]
exhibit, the decision of some common superior in the case of a contested
river. The sea admits of no common sovereign; but it may happen that
conterminous States, through which a river flows, may acknowledge a
common paramount sovereign, who, in virtue of his political relation to
them, may be qualified to appropriate exclusively and authoritatively the
rights of territory over such a river, to one or other of them."
CLXII. This free Inavigation,  and this innocent use of rivers, have
formed an important part of many treaties; and the subject has been
most carefully considered in some of the principal conventions of modern
times.
CLXIII. When the Seven United Provinces had obtained, after a
struggle of eighty years' duration, the recognition of their independence
from the crown of Spain, they were not contented with having achieved
their own liberty, and with having possessed themselves of some of the richest
colonies of their former sovereign in the new world; they strove, being
far-sighted according to the notions of trade then prevalent, to secure to themselves, both at home and abroad, the closest commercial monopoly;(p)
and by the peace of Munster (Jan. 30, 1648) they actually compelled
Philip the Fourth to deprive the Ten Provinces, which had retained their
allegiance, of the commercial advantages naturally incident to their geographical situation. The fourteenth article of that Peace(q) contained a stipulation that the Scheldt in all its branches, and in its mouths of Sas,
Zwyn,(g?) and the other openings *into the sea, should be for-  *173
ever closed to the Belgian provinces.  This stipulation, to which [173
the ruin of the once magnificent commerce of Antwerp has been ascribed,
was rigidly enforced till 1783,(s) when Joseph the Second eadeavoured
to remove the-unnatural obstacles to the natural prosperity of his fine Belgic provinces, by forcing most illegally it must be confessed, the opening
of the Scheldt.  But the Dutch made on the whole a successful resistance to this attempt, retaining, by the Treaty of Fontainebleau (which
they concluded under the mediation of France, with Joseph in 1785,) the
(p) Kock, Histoire des Trait6s de Paix, tom. i. pp. 84, 483 (ed Bruxelles, 1837).
(q) The stipulation was said to be only a confirmation of ancient right of Staple
(d'etapas) by which foreign vessels entering the Scheldt were compelled to break
bulk, and put their cargo on board Dutch vessels; but by this stipulation foreign
vessels were absolutely prohibited from entering the Scheldt.
(r) The Dutch, it should be observed, always maintained that the whole course
of the two branches of the Scheldt, which passed within the dominions of Holland,
was entirely artificial: that it owed its existence to the skill and labour of Dutchmen; that its banks had been erected and maintained by them at a great labour
and expense.
(s) See Martens' Causes (Cl6bres, t. ii. p. 203-Cause Huitieme:' DiffDrends survenus en 1783 et 1784, entre l'Autriche et la R6publique des Provinces, unies des
Pays-Bas, an sujet des limites de la Flandre, de la cession de Mastricht, de l'ouverture de 1'Escaut et du commerce aux Indes-Orientales."




156      P H ILLI M ORE  ON  INTERNATIONAL  LA W.
Scheldt from Saftingen to the sea, and all the mouths of the Scheldt in
the same closed condition, in which they had been placed by the Treaty
of Munster.  The forcible opening  of this navigation by the French
when they overrun Belgium in 1792, and the utter disregard which they
avowed for all treaties upon the matter, was one of the circumstances
which brought England and Holland into the war against France.
CLXIV. The Treaty of\Vienna in 1815 introduced a more liberal
principle upon this subject into the public law of Europe.  The final act
of the Congress of Vienna provided, by what is called the Annexe XVI.,
that the navigation of all rivers separating or traversing different States
should be entirely free, from  the point where each river became navigable,
*174] to the point of its disemnboguement in the sea.(t)  The *general
principles of this act of regulation  (re'glement) were founded
(t) Hertslet's Tr., vol. i. p. 2. —"Art. CVIII. Les puissances dont les etats sont
sdpar6s ou travers6s par une meme riviere navigable, s'engagent bh regler d'un commun accord, tout ce qui a rapport a la navigation de cette riviere.  Elles nommeront, k cet effet, des commissaires qui se r6uniront au plus tard, six moins apres
la fin du CongrBs, et qui prendront pour bases de leurs travaux les principes etablis
dans les articles suivans.
" Art. CIX. La navigation dans tout le cours des rivieres indiquees dans l'article
precedent, du point oti chacune d&elles devient navigable jusquh' son embouchure,
sera entierement libre, et ne pourra, sous le rapport du commerce, etre interdite h
personne; bien entendu que l'on se conformera aux reglemens relatifs'a la police
de cette navigation; lesquels seront conqus d'une maniere uniforme pour tous, et
aussi favorable que possible au commerce de toutes les nations.
" Art. CX. Le systeme qui sera etabli, tant pour la perception des droits que pour
le maintien de la police, sera, autant que faire se pourra, le meme pour tout le
cours de la riviere, et s'etendra aussi, a moins que les circonstances particulieres
ne s'y opposent, sur ceux de ses embranchemens et confluens qui, dans leur cours
navigable, separent ou traversent diff6rents etats.
" Art. CXI. Les droits sur la navigation seront fix6s d'une maniere uniforme,
invariable, et assez inddpendante de la qualite differente des marchandises pour
ne pas rendre necessaire un examen detaill6 de la cargaison, autrement, que pour
cause de fraude et de contravention. La quotite de ces droits, qui, en aucun cas,
ne pourront exceder ceux existans actuellement, sera determinke d'apres les circonstances locales, qui ne permettent gueres d'etablir une regle g6nerale i cet egard.
On partira neanmoins, en drossant le tarif, au point de vue d'encourager le commerce en facilitant la navigation, et loctroi etabli sur le Rhin pourra servir d'une
norme approximative.
" Le tarif une fois regle, il ne pourra plus etre augmente que par un arrangement commun des etats riverains, ni la navigation grevee d'autres droits quelconques, outre ceux fixes dans le reglement.' Art. CXII. Les bureaux de perception, dont on requira autant que possible le
nombre, seront fixes par le reglement et il ne pourra s'y faire ensuite aucun changement, que d'un commun accord, k moins qu'un des etats riverains ne voulftt diminuer le nombre de ceux qui lui appartiennent exclusivement.
"Art. CXIII. Chaque etat riverain se chargera de lentretien des chemins de
hallage qui passent par son territoire, des travaux ndcessaires pour la meme etendue dans le lit de la riviere pour ne faire 6prouver aucun obstacle'a la navigation.
"Le reglement futur fixera la manieire dont les etats riverains devront concourir'i ces derniers travaux, dans le cas ou les deux oives appartiennent h diffirens
gouvernment.
"Art. CXIV. On n'etablira nulle part des droits d'etape, d'echelle, ou de relache
forede. Quant a ceux qui existent deja, ils ne seront conserves qu'en tant que les
etats riverains, sans avoir egard i l'interet local de l'endroit ou du pays ohi ils sont
dtablis, les trouveroient n6cessaires ou utiles a la navigation et au commerce en
gn6eral.
" Art. CXV. Les douanes des etats riverains n'auront rien de commun avec les
droits de navigation.  On empachera, par des dispositions r6glimentaires, que




RIvERs.                               157
upon a memoir of the celebrated Wilhelm  Von *I-umboldt,(u) *" 75]
then the Prussian plenipotentiary; they were afterwards applied, I
by a series of articles, to the details of the tolls,(x) octroi, police, and
other matters incident to the navigation of rivers, and in particular to
the Rhine, the Neckar, the Main, the Moselle, the Mense, the Scheldt
-the stipulations relating to the Meuse and the Scheldt were subsequently incorporated into the treaty of 1839, between the then independent kingdoms of Holland and Belgium.
CLXV. Arrangements made in a similar spirit with respect to the
free navigation of the Vistula, entered into in May, 1815, between
Austria and Russia,(y) and between *Russia and Prussia, to
which Austria subsequently acceded, and  with respect to the [176
rivers and canals of ancient Poland, were confirmed by the fourteenth
article of the final diet of this Congress.   Similar regulations were
established with respect to the navigation of the Elbe, by a convention
signed at Dresden, on the 23rd of June, 1821, by the States bordering
on that river (les Otats riverains;) and by an additional act, signed by
the same parties at Dresden, on the 13th of April, 1844, a similar act
was entered into by the States bordering on the Weser on the 10th of
September, 1823.(z) By the ninety-sixth article of the same Congress,
the same general principles with respect to the free navigation of rivers
were extended to the Po.
CLXVI. By a Treaty(a) between  Spain  and Portugal, signed  at
Lisbon on the 13th of August, 1835, the perfect freedom of navigation
l'exercice des fonctions des douaniers ne mette pas d'entraves h Ia navigation; mais
ou surveillera, par une police exacte sur la rive, toute tentative des habitans de
faire la contrebande h l'aide des bateliers.
"Art. CXVI. Tout ce qui est indique dans les articles pr6cedens, sera determine
par un reglement commun qui renfermera egalement tout ce qui auroit besoin d'etre
fix6 ult6rieurement. Le reglement, une fois arr6te, ne pourra etre change, que du
consentement de tons les 6tats riverains, et ils aurout soin de pourvoir a son
execution d'un maniere convenable, et adaptee aux circonstances et aux localites.
" Art. CXVII. Les reglements particuliers relatifs k la navigation du Rhin, du
Neckar, du Mein, de la Moselle, de la Moeuse et de l'Escaut, tels qu'ils se trouvent
joints au present acte, auront la meme force et valeur que s'ils y avaient 6t6
textuellement inser6s."
(u) Wheaton's History, p. 498.
(x) Grotius, 1. ii. c. ii. xiv. 2, observes generally upon the question of tolls:
"Sed quaeritur, an ita transeuntibus mercibus, terra, aut amne, aut parte maris,
quoe terrme accessio dici possit, vectigalia imponi possint ab eo, qui in terra imperium habet.  Certe quaecunque onera ad illas merces nullum habent respectum,
ea mercibus istis imponi nulla oequitas patitur. Sic nec capitatio, civibus imposita
ad sustentanda reipublice onera, ab exteris transeuntibus exigi potest. Sed si
aut ad proestandamn securitatem mercibus, aut inter caetera etiam  ob hoc onera
sustinentur, ad ea compensanda vectigal aliquod imponi mercibus potest, dum
modus causae non excedatur."  Upon this passage Barbeyrac remarks, "Cette
raison et autres sembables ne font que rendre plus Juste la levee des impdts. Mais
independamment de tout cela on peut exiger, quelque chose pour la simple permission de passer, qu'on n'etoit pas oblig6 d'accorder k la riguear. II est libre 3
tout proprietaire, par une suite du droit meme de proprietaire, de n'accorder a
autre que, moiennant un certain prix, l'usage de son bien."  See also Vattel, 1. i.
c. x. pp. 103, 104, 128; 1. ii. c. x. p. 362.
(y) Treaty between Austria and Russia as to the Dniester, March 19, 1810.
(z) Martens Nouv. Recueil, tom. ix. p. 361.
(a) Martens et De Cussy, tom. iv. p. 123.




158      PHILLIM ORE ON INTERNATIONAL  LAW.
of the river Douro was secured to the subjects of both the contracting
powers.
CXLVII. The Treaty of Bucharest in 1812 put an end to the hostilities which had been carried on between Russia and the Ottoman Empire
since 1809. By the fourth article of that Treaty it was covenanted,
that the boundary of Russia on the side of Turkey in Europe should be
the Pruth, from the point where it joins the Danube, and the left bank
of the Danube to its mouth into Kilia in the Black Sea; that the navigation of both rivers, according to these limits, should be equally free
-the latter only having been so before —to the subjects of both
empires; that no fortifications should be erected on the island in it;
and that the right of fishing and cutting wood should also be common to
both countries.(b) But on the 25th of July, 1840, the navigation of
the noble and mighty Danube was subjected to pretty much the same
regulations as the other great rivers which have been mentioned.(c)
1 The extension of the principle of free navigation to this great
1771 ] artery of Europe is a fact of no light importance to the present
and future welfare of mankind. But by the Treaty of Adrinople(d) the
Sulina channel of the Danube is practically placed under the power of
Russia, and much of the value of the navigation depends upon the
state of this channel, about which great complaints have been recently
made.(e)
CLXVIII. The expressions in the Treaties of Paris and Vienna,
stipulating for the free navigation of the Rhine "sjusqu'a la muer," gave
rise to a serious controversy between the Dutch government and all the
other powers interested in the navigation of that river, except Baden
and France; they supported the interpretation put upon these words by
the Dutch.  t"To the sea," they contended, in the first place, did not
mean "into the sea;" and, secondly, if the upper states were to insist
so strictly upon words, then they must be contented with the course of
the proper Rhine itself.  The mass of water which forms the Rhine,
dividing itself a little way above Nimeguen, is carried to the sea through
three principal channels, the Waal, the Leek, and the Yssel; the first
descending by Gorcum, where it changes its name for that of the Meuse;
the second, farther to the North, approaching the sea at Rotterdam; and
the third, taking a northerly course by Zutphen and Deventer, to disgorge
itself into the Zuyderzee. None of these cannels, however, is called or
reckoned the Rhine; that name is preserved to a small stream  which
leaves the Leek at Wyck, takes its course by Utrecht and Leyden,
gradually losing its waters, and dwindling away so as to be unable to
reach the sea, *disappears among the downs in the neighbourhood
[*178] of Kulwyck.  The Rhine itself, strictly speaking, being thus
(b) Wheaton's Hist. p. 504.
(c) " Convention conclue le 25 (13) Juillet, 1840, entre l'Autriche et la Russie,
concernant la navigation du Danube.'-Martens, Rec. de Traites, &c., vol. xxx. p.
209.'             (d) Art. 2, 1829.
(e) Correspondence with the Russian Government respecting obstructions to the
navigation of the Sulina Channel of the Danube, in papers laid before Parliament,
1853.




RI   E RS.                          159
useless for the purposes of sea-navigation, it had been agreed between
Holland and her neighbours to consider the Lecl as the continuation of
the Rhine; and the government of the Netherlands afterwards consented
that the Waal, as being deeper and better adapted to navigation, should
be substituted for the Leek.  Now the Waal, said the government of
Holland, terminates at Gorcum, to which the tide ascends; there consequently ends the Rhine; all that remains of that branch from Gorcum
to Gravelingen, Helvoetsluys, and the mouth of the MIeuse, is an arm
of the sea, inclosed within our own territories, and therefore to be subjected to any imposts and regulations which we may think fit to establish.
This interpretation, though supported, as has been remarked, by France
and Baden, was strenuously opposed by all the other powers of Germany,
who denounced it as an attempt to evade by chicane the plain meaning
of the Treaty of Paris.  Prussia addressed a memorial to the great
powers who had been parties to the Treaty of Paris and the Congress of
Vienna, calling upon them to state what had been the real meaning of
that Treaty in regard to the navigation of the Rhine. The allied powers
put upon the Treaty the same interpretation as the German States; but the
government of the Netherlands having returned an unfavourable answer
to their joint remonstrance, the Austrian envoy at Brussels presented a
note to that Court, in February, 1826, in which he argued, that, "-by
the Treaty of Paris, the allied powers, in conjunction with France, agreed
that the sovereignty of the House of Orange should receive an accession
of territory, and that the navigation of the Rhine, from the point where
it is navigable to the sea (jusqu'a la mer,) and vice versa, should be free.
This last point was further confirmed in the separate article, which provides' that the freedom of navigation in the Scheldt shall be established
on the same principles as those on which the navigation of the Rhine is
regulated by Article 5 of the present Treaty.   *The allied
powers further reserved to themselves to determine, at the next [*179]
Congress, the countries which should be united with Holland, and
declared'that then the principles should be discussed, upon which the
tolls to be levied by the States on the banks might be regulated in the
most uniform manner and most advantageously to the commerce of all
nations.'  It appeared, from  the simultaneous issuing of these two
resolutions, that, among other conditions which the allies annexed to the
incorporation of Belgium, this increase of territory was combined on their
side, even before the establishment of the kingdom of the Netherlands,
with the above obligation to restore the freedom of the navigation.
There could certainly be no more express and positive obligation than
that which is united with the foundation of a State, and which, in the
present case, had been fully sanctioned by the accession of the king of
the Netherlands to the Treaty of Paris, and the act of Congress at
Vienna. It was inconceivable how the government of the Netherlands
could flatter itself with the hope of making a right obscure and doubtful,
by prolix observations on the main resolution, and to do away with the
principle of the free navigation of the Rhine, which was proclaimed in
the face of the world in the first document of the political restoration of




160    P]ILLIMORE  ON INTERNATIONAL LAW.
Europe, and on the same day when Holland was given up to the House
of Orange."
The cabinet of Brussels replied by a repetition of the geographical
argument, that the Rhine, properly so called, did not reach the sea;
and by an assertion, that the Republic of Holland had never ceased to
exist de jure, and had preserved its existence under a monarch de facto,
before the act of the Congress of Vienna, and before the treaties which
incorporated with it the Catholic Netherlands.  The outlets of the Rhine
were certainly streams belonging to Holland, and to Holland only; but
the question was, whether the opening of these streams was not a part
of the condition whereby Holland had gained the accession of the Belgic
provinces, —whether they were not conferred and accepted on the understanding *that the exclusive territorial right to the mouths of
the Rhine should be modified and limited for the future.  The
reply of the Dutch Cabinet does not seem to meet this objection; and it
must be confessed that, to contend that the Rhine Proper is lost in a
little brook, while two-thirds of its mighty volume of water are flowing
on through the Waal and receiving the tributary Meuse, is a proposition
which, however geographically accurate, cannot be very agreeable to the
plain common sense of mankind. All that could be gained, however, at
this time was a concession that the Leek should be considered as the
Rhine, and that German vessels should be allowed to navigate it unmolested under no higher duties than might be imposed on other parts of
the river, and that the prohibitions against the transit of goods should
be abolished.  Still however, the main question-through what channel
the Rhine cjtzsqu'a la nzer" was to be navigated-remained in uncertainty; for the Leek ends at its junction with the Meuse before it reaches
Rotterdam, and the Meuse was a river purely Belgic and Dutch.(f)
But by the Treaty(g) concluded at Mayence, March 31st, 1831, it was
finally settled by all the riparian States of the Rhine, that this river
should be free from the point where it is first navigable into the sea
itself (bis in die See,) and that the two outlets to the sea should be the
Leek and the Waal-the passage through the Leek being by Rotterdam
and Briel, and through the Waal by Dortrecht and Helvoetsluys-with
the use of the canal between the latter place and Voovre.  Various and
particular regulations were made by this Treaty concerning police and
tolls; and it was especially stipulated, that, if the aforesaid outlets to
the sea should be *dried up, the government of the Netherlands,
[*181] in whose dominions they were, should indicate other courses to
the sea equal in convenience to those used for navigation by its own
subjects.
CLXIX. But on no occasion were the principles of this branch of International Law more elaborately discussed than in the cases of the great
(f) Annual Reg. vol. lxviii., year 1826, pp. 259-263.
(g) "Conventions entre les Gouvernemens des Etats riverains du Rhin, et r6glement relatif h la navigation du dit fieuve conclue A M[ayence le 31 Mars, 1831, et
dont les ratifications ont ete 6chang6es reciproquement le 16 Juin." —Martens, Rec.
de Traites, vol. xvii. p. 252.




RIVERS.                            161
American rivers, the Mississippi and the St. Lawrence.  By the Peace
of Paris and Hubertsburg in 1763, France ceded Canada, and Spain
ceded Florida to Great Britain.  France lost by this Treaty all her possessions in North America, Louisiana having been previously ceded to
Spain as an indemnity for Florida.  The boundary line between the
British and French possessions in North America was drawn through
the middle of the Mississippi, from its source to the Iberville, and through
the Iberville and the lakes of Maurepos and Pontchartrain to the sea:
and the free navigation of the Mississippi was secured to British subjects
upon the ground, which has since proved to be erroneous in point of
fact, that the Mississippi took its rise in the British territory.  Subsequently France ceded Louisiana to Spain, and to the same power Great
Britain, at the Treaty of Versailles in 1783, eretroceded" (to use the
language of the Treaty) Florida. Spain thus became sovereign over
both banks of the river for a considerable distance above and at its
mouth: and on this fact she built her claim to an exclusive navigation
of the river below the point of the southern boundary of the United
States.
The recognition of the independence of the United States was the
object of the Treaty of 1783; and by the eighth article it was provided,
that " the navigation of the river Mississippi shall for ever remain free
and open to the subjects of Great Britain and the citizens of the United
States."  The United States therefore resisted the claim of Spain, taking
their stand upon these articles in the treaties of 1763 and 1783, and also
upon the general principles of International Law.  They insisted that
by this law a river was open to all riparian inhabitants, and that the
upper *inhabitants of a river had a right to descend the stream,  182
in order to find an outlet for their produce; and that, even if [
Spain possessed an exclusive dominion over the river between Florida
and Louisiana, that an innocentpassage over it was not the less on that
account the right of the inhabitants of its upper banks. The dispute
was ended in 1795 by the Treaty of San Lorenzo el Real; the fourth
article of which provided that the Mississippi should be open to the
navigation of the citizens of the United States from its source to the
ocean. By the twenty-second article they were permitted to deposit
their goods at New Orleans, and to export them from thence on payment
of warehouse hire.
The United States having acquired Louisiana, by the cession of Napoleon, on the 30th April, 1803,(h) and Florida by Treaty with Spain on
the 22d February, 1819, thereby included within their territory the
whole of this magnificent stream the Mississippi, from its source to the
Gulf of Mexico.  The stipulation in favour of British subjects, in the
article of the Treaty of 1783, was not renewed in the Treaty of Ghent,
24th December, 1814; and it is therefore maintained by the United
States that the right of navigating the Mississippi is vested exclusively
in their subjects.(i)
(h) Vide post.        (i) Wheaton's Hist. p. 506-9; E16m. t. i. p. 185-6.




162   PHILLIMORE  ON  INTE  RNATIONAL  LAW.
CLXX. The case of the navigation of the St. Lawrence was as follows:(j)lows183]     Great Britain possessed the northern shores of the lakes, *and
[183] of the river in its whole extent to the sea, and also the southern
bank of the river from the latitude forty-fiv  degrees north to its mouth.
The United States possessed the southern shores of the lakes, and of the
St. Lawrence, to the point where their northern boundary touched the
river. These two governments were therefore placed pretty much in the
same attitude towards each other, with respect to the navigation of the
St. Lawrence, as the United States and Spain had been in with respect
to the navigation of the Mississippi, before the acquisitions of Louisiana
and Florida.
The argument on the part of the United States was much the same
as that which they had employed with respect to the navigation of the
Mississippi.  They referred to the dispute about the opening of the
Scheldt in 1784, and contended that, in the case of that river, the fact
of the banks having been the creation of artificial labour was a much
stronger reason, than could be said to exist in the case of the Mississippi,
for closing the mouths of the sea adjoining the Dutch Canals of the Sas
and the Swin, and that this peculiarity probably caused the insertion of
the stipulation in the Treaty of Westphalia; that the case of the St.
Lawrence differed materially from that of the Scheldt, and fell directly
under the principle of free navigation embodied in the Treaty of Vienna
respecting the Rhine, the Neckar, the Mayne, the Moselle, the Meuse,
and the Scheldt. But especially it was urged, and with a force which
it must have been difficult to parry, that the present claim of the United
States with respect to the navigation of the St. Lawrence, was precisely
of the same nature as that which Great Britain had put forward with
respect to the navigation of the Mississippi when the mouth and lower
shores of that river were in the possession of another State, and of which
claim Great Britain had procured the recognition by the Treaty of Paris
in 1763.
The principal argument contained in the reply of Great Britain was,
that the liberty of passage by one nation through the dominions of another was, according to the *doctrine of the most eminent writers
18411 upon International Law, a qualified occasional exception to the
paramount rights of property; that it was what these writers called an
inmperfect, and not a perfect(k) right; that the Treaty of Vienna did not
sanction this notion of a natural right to the free passage over rivers,
(j) Wheaton's Hist. 5, 12, 17, citing AMr. Secretary Clay's letter to Mr. Gallatin,
American Minister in London, June 19th, 1826.
Congress Documents, sess. 1827, 1828, No. 43.
American Paper on the Navigation of the St. Lawrence.-Ib. sess. 1827, 1828,
No. 43.
British Paper on the Navigation of the St. Lawrence.
Wheaton's Eletm. i. 187.
State Papers (English), 1826-9.
Times Newspaper, Oct. 25, 26, 1850.
(k) The inaccuracy of this phrase has been already noticed. It was intended
to say that the navigation was a right not strictijuris, but a concession of comity.




RIVERS.                              163
but, on the contrary, the inference was that, not being a natural right,
it required to be established by a convention; that the right of passage
once conceded must hold good for other purposes besides those of trade
in peace, for hostile purposes in time of war; that the United States
could not consistently urge their claim on principle without being prepared to apply that principle by way of reciprocity, in favour of British
subjects, to the navigation of the Mississippi and the Hudson, to which
access might be had from  Canada by land carriage or by the Canals of
New York and Ohio.
The United States replied, that practically the St. Lawrence was a
strait,(l) and was subject to the same principles of law; and that as straits
are accessory to the seas which they unite, and therefore the right of
navigating them is common to all nations, so the St. Lawrence connects
with the ocean those great inland lakes, on the shores of which the subjects of the United States and Great Britain both dwell; and, on the
same principle, the natural link of the river, like the natural link of the
strait, must be equally available for the purposes of passage by both.
The passage over land, which was always pressing upon the minds of the
writers on International Law, is intrinsically different from  a passage
over water; in the latter instance, no detriment or inconvenience can be
sustained by the country to which it belongs.  The track of the ship is
effaced as soon as made; the track of an army may leave serious and lasting injury behind.  The *United'States would not "shrink" [185
from the application of the analogy with respect to the naviga- [185
tion of the Mississippi, and whenever a connection was effected between
it and Upper Canada, similar to that existing between the United States
and the St. Lawrence, the same principle should be applied. It was,
however, to be recollected, that the case of rivers which both rise and
disembogue themselves within the limits of the same nation is very distinguishable, upon principle, from  that of rivers which, having their
sources and navigable portions of their streams in States above, discharge
themselves within the limits of other States below.
Lastly, the fact, that the free navigation of rivers had been made a
matter of convention did not disprove that this navigation was a matter
of natural right restored to its proper position by treaty.
The result of this controversy has hitherto produced no effect.  Great
Britain has maintained her exclusive right.  The United States still remain debarred from the use of this great highway, and are not permitted
to carry over it the produce of the vast and rich territories which border
on the lakes above to the Atlantic Ocean.
It seems difficult to deny that Great Britain may ground her refusal
upon strict Law; but it is at least equally difficult to deny, first, that in
so doing she exercises harshly an extreme and hard law; secondly, that
her conduct with respect to the navigation of the St. Lawrence is in glaring and discreditable inconsistency with her conduct with respect to the
navigation of the Mississippi. On the ground that she possessed a small
(1) Vide post, the law as to Straits.




164     PHILLIMORE  ON  IN TERNATIONAL  LAW.
tract of domain in which the Mississippi took its rise, she insisted on
her right to navigate the entire volume of its waters: on the ground that
she possesses both banks of the St. Lawrence where it disembogues itself
into the sea, she denies to the United States the right of navigation
though about one half of the waters of Lakes Ontario, Erie, Huron, and
Superior, and the whole of Lake Michigan through which the river flows,
are the property of the United States.
1 An English writer upon International Law cannot but express
a hope, that this stummum jus, which in this case approaches to
sumnma injuria, may be voluntarily abandoned by his country.  Since
the late Revolution in the South American Provinces, by which the dominion of IRosas was overthrown, there appears to be good reason to hope
that the States of Paraguay, Bolivia, Buenos Ayres, and Brazil, will
open the River Parana to the navigation of the world.(m)
CLXXI. The question whether the open sea, or maion ocean, could be
appropriated(n) by any State to the exclusion of others, has been the
subject of celebrated controversies.   Spain and Portugal, at different
epochs, have claimed exclusive right, founded upon the titles of previous
discovery, possession, and Papal grants, to the navigation, commerce,
and fisheries of the Atlantic and Pacific Oceans.  The Mare Liberum,
written by Grotius in 1609, the chief object of which was to demonstrate
the injustice of the Portuguese pretensions, founded on their discovery of
the Cape of Good Hope, to the exclusive navigation of the African and
the Indian seas,-the Mare Clausumn, written by our own countryman Selden, to establish the exclusive right of Great Britain to the British seas,
-Puffendorf, in the fifth chapter of his fourth book, (" De Jure naturale
Gentium,"-and the essay of Bynkershoek in 1702, De Dominio Maris,
e*1871 have exhausted -*this theme.(o)  It is sufficient to say, that the
reason of the thing, the preponderance of authority, and the practice of nations, have decided, that the mnain ocean, inasmuch as it is the
necessary highway of all nations, and is from its nature incapable of
being continuously possessed, cannot be the property of any one State.
(m) See Speech of the Earl of Clarendon, Secretary of Foreign Affairs, in the
House of Lords, June 3rd, 1853.-Hansard's Parl. Deb. vol. cxxvii. No. 6, p.
1073-4.
(n) Albericus Gentilis, lib. i. c. 8. Advocationes Hispanice, maintains (in 1613)
the claim of Great Britain to the Narrow Seas.
Wheaton's Law of Nations, 1, 225-9.
Vattel, lib. i. c. xxiii.
Martens, lib. ii. c. 1, s. 43. De l'Ocean, lib. iv. c. iv. s. 157. Droits sur l'Ocean
et sur la Mur des Indes.
Guinther, ii. p. 28. "Das Hauptwerk heirbei kommt darauf an; das AMan die
offene See, oder das grosse Weltmeer von den einzelnen Theilen desselben, die
an oder zwischen die Lander der nationen gehen Nnterscheide."
(o) When the Spanish envoy, Mendoza, complained to the Queen Elizabeth that
English ships presumed to trade in the Indian Seas, that queen gave for answer,"That she saw no reason that could exclude her, or other nations, from navigating to the Indies, since she did not acknowledge any prerogative that Spain might
claim to that effect, and much less any right in it to prescribe laws to those who
owed it no obedience, or to debar them trade. That the English navigated on
the ocean, the use of which was like that of the air, common to all men, and
which, by the very nature of it, could not fall within the possession or property
of any one."-Camd. in vit^a Elizabeth, ad ann. 1580, p. m. 328 et seq.




RIV ER S.                                   165
c Igitur quicquid dicat Titius, quicquid Mcevius, ex possessione jure naturali et gentiumt  suspenditur dominium, nisi pacta dominium, citra possessionem, defendant, ut defendit jus cujusque civitatis proprium.(p) It
is possible, as is indeed apparent from  this citation, that a nation may
acquire exclusive right of navigation  and fishing of the main ocean as
acgainst another nation, by virtue of the specific provisions of a treaty;
for it is competent to a nation to renounce a portion of its rights; and
there have been instances of such renunciation, both in ancient and
modern times.
CLXXII. The treaty  of peace, justly called'"famous"  by Demosthenes(q) and Plutarch,(r) whereby the Athenians *extorted from   *188
the Persians a pledge that they would not approach the Greek   *188
sea within the space of a day's journey on horseback, and that no ship
of war should sail between the Cyanean and Chelidonian isles; the treaties whereby the Carthaginians bound the Romans not to navigate the
Mediterranean beyond a certain point, and whereby the Romans imposed
restrictions of the like kind upon the Illyrians, and on King Antiochus;
-these are memorable examples of the voluntary resignation of a nation's
intrinsic rights.
So, in modern times, the House of Austria(s) has renounced, in favour
both of the English and Dutch, her right to send ships from the Belgic
provinces to  the  East Indies: and the Dutch  attempted to  interdict
Spanish ships, sailing to the Philippine Islands, from  doubling the Cape
of Good Hope.
CLXXIII. Instances of this kind, however, are far from proving that
the  main ocean is capable of becoming  property.   c Possunt enim  ut
singuli," (Grotius truly remarks) " ita et populi pactis, non tantum  de
jure quod proprie sibi competit; sed et de eo quod cum  omnibus hominibus commune habent, in gratiam  ejus cujus id interest decedere."(t)
He illustrates this position, according to his wont, by a reference to the
Roman Law.  A  person sold  his maritime farm  with the condition that
(p) Bynkershoek, Opera, t. vi. p. 361.
(q) "Ka)XXfav rd'I7r7rov(Kov7, 71 r7a)tlv r1v  17r6 7rvCoJv Opv) pXXoVylv ElpVl7lV 7rpsEflEavraV7,
XrrOV /, dAp6)7OY ltEpaeg re pIl Ka7aaivsfetv E7r 7'7, 0Xarra5v fla/rX6a EvrS6 (S XsEXIsoYvovs Kai
Kcvavrwrv, rXotcf paKp, ypt 7Xrs1.1' —Orat. de falsa Legat., Demosth.
(r) "Toi ro rO E'pyov or7CO trEssLMfVro   rv), yvY4Vv TroV /a3CLaXi)wg, JLUrs vO(IvO0at 7rv TEptolro  epV pV VU  V BeEisPv~'rrov yptYv p6tov dEt r1s'EXXhlvtigs d OrtXvv OaX6o'cnlo, irovr   Kvavtwo
Kat XEXdtovEWV L.aKpt rV1n Kal XakXKElqO3dXT lP rTEZV." —Plutarch. in vita Cimon.
Grotius, 1. ii. c. iii. s. 15.
Vattel, 1. i. c. xxiii. s. 284.
(s) Traite de Vienne, 16 Mars. 1731, Art. 5.
(t) Grotius, 1. ii, c. iii. s. 15.
Vattel, 1. i. c. xxiii. s. 284.
Barbeyrac remarks in a note on this passage,-" Cela est vrai; mais rien
n'empeche aussi que, quand on fait des traites comme ceux dont il s'agit, on n'ait
dessein de s'assurer par l1 la propri6te de quelque mer, et d'obliger les autres a 1a
reconnoitre. M. Vitrarius, dans son Abreg6 de notre Auteur (1. ii. c. iii. s. 18), pr6tend, que, si celui qui fait un tel traite etoit d6jk maitre de la mer doent il vent que
l'autre s'loigne, il ne serait pas neccssaire de stipulur une telle clause.  Mais ii
ne s'est pas souvenu de ce qu'il, etablit lui-m6me, apres nbtre Auteur (1. ii. c. xv.,)
qu'il y a des traites qui roulent sur des choses dc6j  dues, menme par le Droit
Naturel."




166      PHTILLIMORE  ON  INTERNATIONAL LAW.
the purchaser should not fish for thunnies *to the prejudice of
F[189] another maritime farm, whfch the seller retained in his possession. Upon this case, Ulpian gave his opinion that, although the sea
belonged to the class of things which could not be subjected to a servitus(u) of this kind, yet the bona fides of the contract required that the
restriction should be binding against the purchaser, and those who succeeded to his rights and estates.
The right of navigation, fishing, and the like, upon the open sea,
beingjura mnerm facultatis, rights which require a continuous exercise
to maintain their validity, but which may or may not be exercised
according to the free will and pleasure of those entitled to them, can
neither be lost by non-user or prescribed against, nor acquired to the
exclusion of others by having been immemorially exercised by one
nation only.  No presumption can arise that those who have not hitherto
exercised such rights, have abandoned the intention of ever doing so.(v)
1 CLXXIV. But though no presumption can arise, it is the
[*190] opinion of Vattel,-who holds most explicitly, in more than one
part of his work, the doctrine which has just been laid down-that such
non-user on the part of other nations may possibly, under certain circumstances: become clothed with the character of a tacit consent and
convention, which may found a title in one nation to exercise such rights
to the exclusion of others. tc Qu'une nation en possession de la navigation et de la peche en certains parages, y pretende un droit exclusif, et
defende a d'autres d'y prendre part, si celles-ci ob6issent a cette d6fense,
avec des marques suffisantes d'acquiescement, elles renoncent tactitement
a leur droit en faveur de celle-la, et lui en etablissent un, qu'elle peut
legitimement soutenir contre elles dans la suite, surtout lorsqu'il est
confirm6 par un long usage."(w)
CLXXV. Mr. Wheaton does not appear to agree with the qualification
of the doctrine contained in the passage just cited; but the reasoning of
Vattel does not seem to be unsound: the case for its application is not
often likely to occur.
(u) Dig. 1. viii. t. iv. leg. 13. —  Venditor fundi Geroniam fundo Batriano, quem
retinebat, legem dederat, ne contra eum piscatio thynnaria exerceretur. Quamvis
mari, quod natura omnibus patet, servitus imponi privata lege non potest, quia
tamen bona fides contractus legem servari venditionis exposcit, personai possidentium ant in jus eorum succedentium per stipulationis vel venditionis legem
obligantur."
(v) Vattel, I. i. c. viii. s. 95: "Si les droits touchant le commerce sont sujets'
la prescription."
Lib. i. c. xxiii. s. 285-6.
Puffendorf, Jur. Nat. et Gent. 1. iv. c. v. s. 5.
Heffters, s. 74: "Sogar ein unvordenklicher Besitzstand, wenn er nicht ein
freiwilliges Zugestandniss anderer Nationen deutlich erkennen l;Isst, vermag keine
ausschliesslichen Befugnisse bei solchen res mercefacultatis zu ertheilen."
Wheaton's Elements, vol. i. p. 228: " The authority of Vattel would be full and
explicit to the same purpose, were it not weakened by the concession, that though
the exclusive right of navigation or fishery in the sea cannot be claimed by one
nation on the ground of immemorial use, nor lost to others by non-user on the
principle of prescription, yet it may be thus established where the non-user
assumes the nature of a consent or tacit agreement, and thus becomes a title in
favour of one nation against another."
(w) Vattel, Le Droit des Gens, t. i. 1. i. c. xxiii. s. 286.




RIVER S.                           167
CLXXVI. In 1790, May 25,(x) Lord Grenville vindicated the British
dominiumn over Nootka Sound against the Spaniards.  In a message
laid before both Houses of Parliament it was said that "t His Majesty
has received information, that two vessels belonging to His ~Majesty's
subjects, and navigated under the British flag; and two others, of which
the description is not hitherto sufficiently ascertained, have been captured
at Nootka Sound, on the north-western coast of America, by an officer
commanding two Spanish ships of war; that the cargoes of the British
vessels have been seized, and that their officers and crews have been sent
as prisoners to a Spanish port.
*t; The capture of one of these vessels had before been *notified  *1
by the Ambassador of His Catholic Majesty, by order of his [*191
court, who, at the same time, desired that measures might be taken for
preventing His Majesty's subjects from frequenting those coasts which
were alleged to have been previously occupied and frequented by the
subjects of Spain.  Complaints were also made of the fisheries carried
on by His Majesty's subjects in the seas adjoining to the Spanish continent, as being contrary to the rights of the Crown of Spain.  In consequence of this communication, a demand was immediately made, by
His Majesty's order, for adequate satisfaction, and for the restitution of
the vessel previous to any other discussion.
ev By the answer from the Court of Spain, it appears that this vessel
and her crew had been set at liberty by the Viceroy of Mexico; but
this is represented to have been done by him on the supposition that
nothing but the ignorance of the rights of Spain encouraged the individuals of other nations to come to those coasts for the purpose of making
establishments, or carrying on trade; and in conformity to his previous
instructions, requiring him to show all possible regard to the British
nation.', No satisfaction is made or offered, and a direct claim is asserted by the
Court of Spain to the exclusive rights of sovereignty, navigation, and
commerce in the territories, coasts, and seas in that part of the world.
" His Majesty has now directed his minister at Madrid to make a fresh
representation on this subject, and to claim  such full and adequate
satisfaction as the nature of the case evidently requires.  And, under
these circumstances, His Majesty, having also received information that
considerable armaments are carrying on in the ports of Spain, has judged
it indispensably necessary to give orders for making such preparations as
may put it in His Majesty's power to act with vigour and effect in
support of the honour of his Crown and the interests of his people.
And His Majesty recommends it to his faithful Commons, on whose zeal
and public spirit he has the most perfect reliance, to enable Thim  P192
to take such measures, and to make such augmentation of his [192
forces, as may be eventually necessary for this purpose.
c" It is His Majesty's earnest wish, that the justice of His Majesty's
demands may ensure, from  the wisdom  and equity of His Catholic
Majesty, the satisfaction which is so unquestionably due; and that this
(x) Annual Register, vol. xxxii., 1790.




168      P HILLIMO R E  ON  INTER            NATIONAL  LAW.
affair may be terminated in such a manner as to prevent any grounds of
misunderstanding in future, and to continue and confirm that harmony
and friendship which has so happily subsisted between the two Courts,
and which His Majesty will always endeavour to maintain and improve,
by all such means as are consistent with the dignity of His Majesty's
Crown, and the essential interests of his subjects." The dispute was
terminated by the Nootka Sound Convention, the importance of which
was much insisted upon in the recent discussions between Great Britain
and the North American United States relative to the question of the
Oregon boundary.(y)
CLXXVII. Upon the 17th of April, 1824,(z) a convention was entered
into at St. Petersburgh, between the United States of America and
Russia, respecting the navigation of the Pacific Ocean, and the forming
of settlements upon the north-western shores of America.  By this convention it was agreed generally, that the subjects of both  countries
might freely navigate the Pacific, or South Sea, occupy shores as yet
unoccupied, and enter into commerce with the native inhabitatants: and
it was stipulated that for the future it should be unlawful for the subjects
of the United States to make any settlement on the north-west coast of
America, or of the adjacent isles, cc"aa  nord du cinquantequatrieme
d6gr6 et quarante minutes de latitude septentrionale;" and for any subjects of Russia to make any settlement *m au sud de la meme
parallele."(a)  This convention therefore restricts the natural
rights of these two countries; but it cannot extend beyond them, or have
any effect, per se, upon other countries.
CLXXVIII. Denmark(b) has not always confined her pretensions of
sovereignty to the narrow sea of the Baltic, but has also extended them
to the open north sea.(c) Queen Elizabeth complained in a letter which
she wrote to the king of Denmark, in 1600, of the manner in which
British vessels were prevented from fishing in this sea, maintaining their
right to do so as resting upon an undoubted principle of law.(d).'[*194]                 *CHAPTER   VI.
NARROW  SEAS, AS DISTINGUISHED FROM THE OCEAN.
CLXXIX. Claims have been preferred by different nations to the
exclusive dominion over the seas surrounding their country; if not to
(y) Vide post.             (z) Ratified 11th January, 1825.
(a) Martens et De Cussy, Recueil de Trait6s, t. iii. p. 659.
(b) Schlegel, Staatsrecht Danemark.           (c) Vide post, p. 202.
(d) " Regiam proinde protectionem nostram implorant, atque humiliter supplicant n6 ab honestissima hac vivendi ratione (cui jam inde a primis annis assueverunt) alti nemp6 maris piscatione, Jure Gentium omniumque Nationum moribus
liberd, excludi illos facile permittamus."-Rymer, Foed., t. xvi. p. 395., A Regina ad
Regem Danise; super Piscatione in Alto Mari permittenda.




NARRoW  SEAs.                            169
every part of such seas, to an extent far beyond the limits assigned in
the foregoing paragraphs.
This kind of claim is distinguished from the claim of jurisdiction over
the ocean by being confined to what are called the narrow or adjacent
seas, they not being (it is contended), like the ocean, the great highway
of the nation.  It is further distinguished from the case of the Straits
which just has been discussed, by the fact of the claimants not possessing
the opposite shore.
CLXXX. This claim is rested upon immemorial usage, upon national
records, upon concessions of other States, upon the language of treaties.
Considering the nature of the claim, and of the subject over which it is
to be exercised, it cannot be built securely upon a less foundation than
the express provisions of positive treaty, and can be valid only against
those nations who have signed such Treaty.  "There may, by legal possibility" (as Lord Stowell says,(a)) "exist a peculiar property excluding
the universal or common use;" but the strongest presumption of law is
adverse to any such pretension.  The Portuguese affected at one time
to prevent any foreiga vessel from navigating the African seas near the
Bissagos Islands; and it is known that Great Britain once laid claim to
exclusive rights of property and *jurisdiction, not merely over [195]
the British Channel extending from the island of Quessant to the      
Pas de Calais, but over the four seas which surround her coasts.(b) Nor
was this only while the Duchy of Normandy was held with the British
dominions; or even while Calais, or the Pas de Calais, belonged to Great
Britain, a circumstance of considerable weight with respect to their claim.
Albericus Gentilis, in one of his Advocationes Hispanics(c) published
in 1613, supports these pretensions. Queen Elizabeth seized upon some
Hlanseatic vessels lying at anchor off Lisbon for having passed through
the sea north of Scotland without her permission.
CLXXXI. In support of this doctrine, Selden(d) wrote his celebrated
Mare Clausum, in which he sought to establish two propositions: —l.
That the sea might be property; 2. That the seas which washed the
shores of Great Britain and Ireland were subject to her sovereignty even
as far as the northern pole.
The opinions of jurists, as well as the practice of nations, have decided,
that this work did not refute the contrary positions laid down by Grotius
in his MSare Liberum, to which it purported to be an answer.  Selden
dedicated his work to Charles I.; and so fully did that monarch imbibe
its principles, that in 1619 he instructed Carleton, the British ambassador, to complain to the States-General of the Dutch provinces of the
(a) The Twee Gebreders, 3 Robinson's Ad. Rep. 339.
Das Britannische Meer, Gfinther, vol. ii. s. 20, p. 39.
(b) Wheaton's Hist. part i. s. 18, p. 152, &c., contains a clear and valuable
account.
c) Lib. i. cap. viii.
id) Joh. Seldeni, Mare Clausumn, sive de Dominio Maris, lib. ii.: "Primo, mare
ex jure naturne sive gentium hominum non esse commune, sed dominiiprivati sive
proprietatis capax pariter ac tellurem esse demonstratur; Secundo, Serenissimun
Magnie Britanniah Regem maris circumflui ut individume atque perpetual Imperii
Britannici appendicis dominum esse asseritur,"
AUGUST, 1854.-12




17 0    PHILLIAMORE  ON  INTERNATIONAL  LAW.
audacity of Grotius in publishing his Mare Liberum, and to demand that
he should be punished.  Not less agreeable was this doctrine to Cromwell and the republican *parliament.  They made war upon the
Dutch to compel them  to acknowledge the British empire over
these seas.(e)
CLXXXII. The rights occasionally claimed by Great Britain in these
seas were chiefly those of exclusive fishing, and of exacting the honage
of salute from  all foreign vessels.  But it is very remarkable that Sir
Leoline Jenkins, who was in fact the expounder of all international law
to the government of Charles II. and James IT., appears never to have
insisted upon these extravagant demands, but to have confined the rights
of his country within the just and moderate limits which have been
already stated.
CLXXXIII. It is true that the Dutch appear to have occasionally admitted the exclusive right of fishery, by making payment and taking out
licenses to fish-payment and licenses which were afterwards suspended
by Treaties between England and the Burgundian princes. It is true
that, by the fourth Article of the Treaty of Westminster, concluded in
1674, the Dutch conceded the homage of the flag in the amplest manner
to the English.  "It was carried" (says Sir W. Temple, the negotiator
of the Treaty) " to all the height his Majesty could wish; and thereby a
claim of the crown, the acknowledgment of its dominion in the Narrow
Seas, allowed by treaty from the most powerful of our neighbours at sea,
which had never yet been yielded to by the weakest of them that I remember in the whole course of our pretence; and had served hitherto
but for an occasion of quarrel, whenever we or they had a mind to it,
upon either reasons or conjectures."(f)
[,197-I   *CLXXXIV. Upon this concession, so humiliating to the
[*197] countrymen of Ruyter and Van Tromp, so little to be expected
by those who in 1667 had demolished Sheerness and set fire to Chatham,
Bynkershoek(g) ingeniously remarks, "Usu scilicet maris et fructu con(e) Comte de Garden, Traite Diplom. t. i. p. 402.
(f) " Proedicti Ordines Generales Unitarium Provinciarum debite ex parte sun
agnoscentes jus supramemorati Serenissimi Domini Magnoe Britannin Regis, nt
vexillo suo in maribus infra nominandis honos habeatur, declarabunt, et declarant,
concordabunt et concordant, quod quecunque naves aut navigia ad prefatas Unitas
Provincias spectantia, sive naves bellicoe, sive alie, e eque vel singula vel in classibus conjunctoe, in ullis maribus a Promontorio Finis Terrcea dicto usque ad medium
punctum terrao van Staten dicto in Norwegia, quibuslibet navibus nut navigiis ad
Serenissimum Dominum Magnae Britannie Regem spectantibus, se obviam dederint
sive illie naves singular sint, vel in numero majori, si majestatis sume Britannicaplustrum sive vexillum Jack appellatum gerant, predictae Unitarum Provinciarum
naves anut navigia vexillum suum e mali vertice detrahent et supremum velum demittent, eodem modo parique honoris testimonio, quo ullo unquam tempore anut in
illo loco antehac usitatum fuit, versus ullas Majestatis sum Britannica anut antecessorum suorum naves ab ullis Ordinum Generalium  suorumve antecessorum
navibus." —Tractatus Pacis inter Carolumn II. Regemn Magnae Britannine et Ordines
Generales foederati Belgii, 1674, Art. 4.
Bynkershoek, Qunst. J. P. 1. ii. c. xxi.
Temple's Memoirs, ii. p. 250.
Hume, vol. vi. c. lii.
Wheaton's Hist. pp. 155-6.
(g) Queest. J. P. lib. i. cap. xxi.




NARROYW  SEAS.                            171
tenti Ordines, aliorumn ambitioni, sibi non damnosoe, haud difficulter
cedunt."  And in his Treatise De Dominio Maris, published in 1702,
and before the work from which the extract just cited is taken, he observes, on this Article of the Treaty, —  Sed quod ita accipiendum est,
ut omnes pactiones, quas, ut bello abstineatur, pasciscimur, nempe Anglis
id competere, quia in id convenit, per se enim nihil in eo mari habent,
proecipuum. Porro ut ita hoc accepi velim, ut ne eredamus Belgas eo
ipso Anglis concessisse illius maris dominium, nam aliud est se subditumn
profiteri, aliud majestatem  alicujus populi comiter conservare, (ut hec
explicat Proculus in Dig. xlix. t. 15, 7, de Captiv. et Postlim.) fit hoc,
ut intel ligamus alterum populum superiorem esse, non ut intelligamus,
alterum non esse liberum."(h)
CLXXXV. France, however, as Mr. Wheaton observes, never formally
acknowledged the British pretension. Louis XIV. published an ordinance on the 15th of April, 1689, not *only forbidding his naval
officers from saluting the vessels of other princes bearing a flag [98
of equal rank, but, on the contrary, enjoining them to require the salute
from  foreign vessels in such a case, and to compel them by force, in
whatever seas and on whatever coasts they might be found.  This ordinance was plainly levelled at England.  Accordingly, in the manifesto
published by William III. on the 27th of May, 1689, he alleged this
insult to the British flag as one of the motives for declaring war against
France.(i)
CLXXXVI. In another part of his very able Treatise, Bynkershoek
clearly and irrefragably lays down the principles of law applicable to the
occupation of the sea: —" Totum, qua patet, mare non minus jure naturali cedebat occupanti, quam  terra quevis, aut terra mare proximum.
Sed difficilior occupatio, difficillima possessio; utraque tamen necessaria
ad asserendum dominium, jure videlicet gentium, ad quod ea disputatio
unice exigenda est.  Nam  ex iis, quve Cap. 1. enarravimus, certum  est
consequi, dominium  maris prima ab origine non fuisse qusesitum  nisi
occupatione, hoc est, navigatione eo animo instituta, ut qui libera per
vacuum ponit vestigia princeps, ejus, quod navigat, maris esse velit
dominus; certum est et porro consequi, non aliter id dominium retinere,
quam possessione perpetua, hoc est, navigatione, qua perpetuo exercetur
ad custodiam maris, si exterum  est, habendam: eai namque remissa, remittitur dominium, et redit mare in causam pristinam, atque ita rursus
occupanti primumn cedit."(k)
CLXXXVII. Thus the opinion of Sir Leoline Jenkins *and [199
Bynkershoek are in harmony upon this question; and in spite of [    ]
(h) De Dominio Maris, cap. v.
(i) Valin, Commentaire sur lOrdonnance de la Marine, liv. v. tit. 1, p. 689: De
la Libert6 de la Peche: " Que le droit de pavilion, qui appartient' la couronne
d'Angleterre, a ete dispute par son ordre (de Louis XIV.); ce qui tende a la violation de notre souverainete sur la mer, laquelle a Wt6 maintenue de tout temps par
nos pred6cesseurs, et que nous sommes aussi r6solus de maintenir pour l'honneur
de notre couronne et de la nation Angloise."
Wheaton's History, pp. 155-6.
(k) Bynkershoek, De Dominio Maris, cap. iii. pp. 365-6.




172   PHILLIMORE ON INTERNATIONAL LAW.
the proclamation of William III. it does not appear that Great Britain
has ever again insisted upon any other limits to her or to other nations.
This right, however, was alluded to by Lord Stowell in his judgment
in The Maria.(l) a Swedish vessel sailing under convoy of an armed ship
condemned for resisting the belligerents' visitation and search: cc It might
likewise" (he observes) be improper for me to pass entirely without
notice, as another preliminary observation (though without meaning to
lay any particular stress upon it), that the transaction in question took
place in the British Channel close upon the British coast, a station over
which the Crown of England has, from pretty remote antiquity, always
asserted something of that special jurisdiction which the sovereigns of
other countries have claimed and exercised over certain parts of the seas
adjoining to their coasts."
[*200]                   *CHAPTER    VI I.
NARROW  SEAS-STRAITS.
CLXXXVIII. With respect to Straits (detroits de mer, Meerenge,
freta), where there is, as Grotius says in the passage already cited, supra
et infrafretunm, both the shores of which belong to one nation, these
may be subject to the proprietary rights of that nation. Or if the shores
belong to several nations, then, according to Puffendorf,(a) the dominion
(1) 1 Rob. Ad. Rep. p. 352.
(a) Lib. iv. c. v. s. 7.: " Aquandi ergo et levandi usus nec magni est, nec nisi
littorum accolis patet, et revera inexhaustus est. Inservit quoque aqua marina
sali excoquendo; sed quo usu accole littorum duntaxat gaudent.  Inexhaustum
quoque et innoxis utilitatis est mare quantum ad navigationem.  (Vid. 1. xxiii. s.
1. D. de Servit. prued. rust.) Verum sunt pr eter hos alii quoque usus maris, qui
partim non penitus sunt inexhausti; partim populo maris accole occasionem damni
prabere possunt, ut ex re ipsius non sit, omnes maris partes cuivis promiscue patere.
Prioris generis est piscatio, et collectio rerum in mari nascentium. Piscatio etsi
in mari fere sit uberior, quam in fluminibus aut lacubus: patet tamen ex parte
earn exhauriri posse, et accolis maris maligniorem fieri, si omnes promiscue gentes
propter littora alicujus regionis velint piscari; prsesertim cum frequenter certum
piscis, anut rei pretiose genus, puta, margaritT, corallia, succinum, in uno tantum
maris loco, eoque non valde spatioso inveniantur. Hic nihil obstat, quo minus
felicitatem littoris anut vicini maris ipsorum  accolie potius, quam  remotiores sibi
propriam queant asserere; quibus csateri non magis jure irasci aut invidere possunt,
quam  quod non omnis fert omnia tellus; India nittit ebur, moZles s8a thura Saboei.
Exposteriori genere est, quod mare regionibus maritimis vicem munimenti prsebet."
And at the close of s. viii. he observes-" Ex hisce patet, hodie post remn navalem
ad summunim perductam fastigium pr.sumi, quemvis populumr maritimum, et cui
ullus navigandi usus, esse dominumr maris, littoribus suis pretensi quousque illud
munimenti rationem  habere censetur: imprimis autem  portuum, ant ubi alias
commoda in terrainm exscensio fieri potest. (Bodinus de Rep. 1. i. c. ult. Baldi fide
asserit; jur'e quodainmnodo pr'inciptum omnium maris accolarum communi receptunm esse,
ut sexaginta milliaribus a littore Painceps legyen ad littns accedentibus dicere possit.)
" Sinus quoque niaris regulariter pertinere ad eurm populum, cujus terris iste ambitur; neque minus freta. Quod si autem diversi populi fretum, anut sinum accolant, eorumn imperia pro latitudine terrarum ad medium usque ejusdem  pertinere
intelligentur; nisi vel per conventionem indivisim id imperium contra exteros ex



NARROW  SEAS-STRAI T S.                                173
is *distributed amongst them, upon the same principle as it would ['20]
be among the several proprietors of the banks of a river: " eorem  L
imtperia, pro latitudine terrarum, ad medium  usque ejusdemn pertinere
intell'igentur."
The exclusive right of the British Crown to the Bristol channel, to
the channel between Ireland and Great Britain (Mfare hibernicumn, Canal
de saint George,) and the channel between Scotland and Ireland is uncontested.  Pretty much in the same catagory are the three straits, forming
the entrance to the Baltic, the Great and the Little Belt, and the Sound,
which belongs to the Crown of Denmark;(b) the straits of Messina (il
Faro  di Messina, fretumn Siculum), belonging to  the kingdom  of the
Two Scicilies: the straits leading to the Black Sea, the Dardanelles and
Hellespont; the Thracian Bosphorus, belonging to the Turkish empire.(c)
To narrow seas which flow between separate portions of the same kingdom, like the Danish aud Turkish straits, or to other seas common to all
nations, like the straits of Messina, and perhaps the St. George's Channel, the doctrine of innocent *use is, according to Vattel, strictly   202
applicable.(d)   How far this doctrine is sound to the extent to [02
which it is carried by this jurist has been already considered in the matter of Rivers.
In 1602, Queen Elizabeth sent a special embassy to Denmark, having
for its object the general adjustment of the relations between the two
countries.
ercere, ipsos autem promiscue inter se isto oequore uti placuerit; ivel alicui soli in
totum istum sinum, anut fretum sit dominium quasitum ex pacto, reliquorum concessione tacitda, jure victoriw, aut quia is prior ad id mare sedes fixerat, idque
statim totum occupaverat, et contra adversi littoris accolam actus imperii exercuerat.  Quo casu tamen nihilominus reliqui sinus aut freti accolae suorum quisque
portuum, tractusque littoralis domini esse intelligentur."-Puffendorf, De Jure Nat.
et Gent. 1. iv. c. v. s. 8.
(b) Schlegel, Staatsrecht Danemark, p. 359.
(c) Martens, 1. ii. c. i. s. 41., Des Mers adjacentes.
Grotius, 1. ii. c. iii. s. 13. 2: " Videtur autem imperium in maris portionem eadem
ratione acquiri qua imperia alia, id est, ut supra diximus, ratione personarum et
ratione territorii.  Ratione personarum, ut si classis, qui maritimus est exercitus,
aliquo in loco maris se habeat: ratione territorii quatenus ex terra cogi possunt
qui in proxima maris parte versantur, nec minus quam si in ipsa terra reperirentur."
Wheaton's Hist. pp. 577, 583, 585, 587.
(d) Vattel, Des Detroits en particulier, 1. i. c. xxiii. s. 292: " I1 faut remarquer
en particulier,  1'6gard des detroits, que quand ils servent a la communication de
deux mers dont la navigation est commune a toutes les nations, ou' plusieurs, celle
qui poss6de le ddtroit ne peut y refuser passage aux autres, pourvu que ce passage
soit innocent et sans danger pour elle.  En le refusant sans juste raison, elle priverait cette nation d'un advantage qui leur est accorde par la nature; et encore
un coup, le droit d'un tel passage est un reste de la communion primitive. Seulement le soin de sa propre slfret6 autorise le maitre du detroit a user de certaines
pr6cautions, a exiger des formalites, etablies d'ordinaire par la coutume des nations.
II est encore fond6e  lever un droit modique sur les vaisseaux qui passent, soit
pour l'incommodite qu'ils lui causent en l'obligeant d'etre sur ses gardes, soit pour
la surete qu'il leur procure en les prot6geant contre leurs ennemis, en eloignant les
pirates, et en se chargeant d'entretenir des fanaux, des bailises et autres choses
n6cessaires au salut des navigateurs.  C'est ainsi que le roi de Danemarck exige
un peage au detroit du Sund. Pareils droits doivent Otre fondes sur les mrmes
raisons et soumis aux memes r6gles que les peages etablis sur terre, ou sur une
rivi6ere.'




174  PHILLIMORE ON INTERNATIONAL LAW.
In the instructions given to the ambassadors, the principles of International Law, with respect to the subjects treated of in this Chapter, are
laid down with the perspicuity and precision which might be expected
from the learning and ability, both of the Monarch and of her councellors:"And you shall further declare that the Lawe of Nations alloweth
of fishing in the sea everywhere; as also of using ports and coasts of
princes in amitie for traffique and avoidinge danger of tempests; so
that if our men be barred thereof, it should be by some contract.  We
acknowledge none of that nature; but rather, of conformity with the
Lawe of Nations in these respects, as declaring the same for the removing of all clayme and doubt; so that it is manifest, by denying of this
Fishing, and much more, for spoyling our subjects for this respect, we
have been injured *against the Lawe of Nations, expresslie
- 208] declared by contract, as in the aforesaid Treaties, and the King's
own letters of'85.
"'And for the asking of license, if our predecessors yielded thereunto,
it was more than by Lawe of Nations was due; —yielded, perhaps, upon
some special consideration, yet, growing out of use, it remained due by
the Lawe of Nations, what was otherwise due before all contract;. wherefore by omitting license, it cannot be concluded, in any case, that the
right of Fishing, due by the Lawe of Nations, faileth; but rather, that
the omitting to require License might be contrarie to contract, yf any
such had been in force.
"c Sometime, in speech, Denmacrlk claymeth propertie in that Sea, as
lying between Norway and Island,-both sides in the dominions of oure
loving brother the king; supposing thereby that for the propertie of a
whole sea, it is sufficient to have the banks on both sides, as in rivers.
Whereunto you may answere, that though propertie of sea, in some small
distance from the coast, maie yeild some oversight and jurisdiction, yet
use not princes to forbid passage or fishing, as is well seen in our Seas
of England and Ireland, and in the Adriaticke Sea of the Venetians,
where we in ours, and they in theirs, have propertie of command; and
yet neither we in ours nor, they in theirs, offer to forbid fishing, much
lesse passage to ships of merchandize; the which, by Lawe of Nations,
cannot be forbidden ordinarilie; neither is it to be allowed that propertie
of sea in whatsoever distance is consequent to the banks, asit hapneth in
small rivers. For then, by like reason, the half of every sea should be
appropriated to the next bank, as it hapneth in small rivers where the
banks are proper to divers men; whereby it would follow that noe sea
were common, the banks on every side being in the propertie of one or
other; wherefore there remaineth no colour that Denmarke may claim
any propertie, in those seas, to forbid passage or fishing therein.
[*204]   *" You may therefore declare that we cannot with our dignitie,
[204 ] yeld that our subjects be absolutelie forbidden those seas, ports,
or coasts, for the use of fishing negotiation and safetie; neither did we
ever yeld anie such right to S'pa.ine and Portugall, for the Indian Seas
or Havens; yet yf our good brother the king, upon speciall reason, maie
desire that we yeld to some renuinge of license, or that some speciall




NARROW  SEAS-STRAITS.                          175
place, upon some speciall occasion, be reserved to his particular use, in
your discretion, for amitie sake, you may yield thereunto; but then to
define the manner of seking license, in such sort as it be not prejudiciall to our subjects, nor to the effect of some sufficient fishing, and
to be rather caried in the subject's name, than in ours, or the king's." (e)
CLXXXIX. The alliances contracted between the United Provinces
of the Netherlands with the city of Lubeek in 1613, with Sweden in
1614 and 1640, and with the Hanseatic towns in 1615 and 1616,
were all directed against the extraordinary pretensions of the Danish
Crown.
But in more modern times these pretentions, though extravagant
enough, have been limited to the right of excluding foreigners, not only
from all commerce with Iceland and the Danish portion of Greenland,
but from fishing within fifteen miles of the coast of Iceland.
The first ordinance of the kind was put forth by Denmark on the 1] 6th
of April, 1636, and pointed at Great Britain; in 1682, it was renewed
and confirmed; again on the 30th of May, 1691; again on the 3rd of
May, 1723; and again on the 1st of April, 1776.
With respect to Greenland, the first prohibition to fish appears to
have been issued on the 16th of February, 1691.  This was pointed
against the Hanseatic towns.  By a Treaty concluded on the 16th of
August, 1692, the city of Hamburg obtained the right of navigation
and fishing in Davis's Straits.
By Royal Edicts in 1751, in 1758, and in 1776, the *com- [*205
merce of unprivileged foreigners with Greenland was strictly  205
forbidden.
CXC. In these prohibitions there was no violation of the strict law,
however they might offend the usual comity of nations.  But the validity of the prohibition to fish within fifteen German miles of the shore of
Greenland and Iceland was strictly denied by England and Holland, who
adhered to the usual limit of cannon-shot from the shore.
CXCI. In the year 1740, a Danish man-of-war seized upon several
Dutch vessels, alleged to be found navigating and fishing within the forbidden limits.  They were taken to Copenhagen, tried and condemned in
the Court of Admiralty of that capital.  This act led to a vehement remonstrance on the part of the Dutch.(f)
The States-General, in a Resolution of the 17th April, 1741, laid
down three distinct propositions, of which the substance was,1. That the sea was free; and that it was competent to every one to
fish in it in a proper manner, cpozurvu qu'il ne fasse pas d'une nctniere
intdue," which they maintained could not be predicated of fishing within
four German miles of the coast, inasmuch as Denmark might make such
a JIulicipal prohibition binding on her own subjects, but could not convert it into an International obligation.
2. That this right was fortified, in the case of Holland, by several
Treaties with Denmark.
(e) Rymer, Fced. t. xvi. pp. 433-4.
(f) Martens, Caus. C615br. t. i. p. 359.




176      PHILLIMORE ON  INTERNATIONAL LAW.
3. That they were in possession, and had long been so, of the right in
question.
The Danish Government denied all these positions, with reference to
the particular sea.
1. " Les rois de Danemark," they said c" Norvege, &c., out joui depuis
un temps imm6morial des pleins efets d'une juste possession dans la mer
du Nord.(g)  That, possessing this "domination juste et inme'nmoriale,"
*206] they were, *on the authority of Grotius, entitled to the exclusive
fishery.(ih)
2. They went at length into the alleged Treaties, and drew from them
a contrary inference.
3. They denied the possession of the right by the Dutch; alleging
that clandestine acts, punished as soon as discovered, could not be construed as possession; and that none others could be shown.
The dispute came to no legal termination.  The crews of the seized
ships were given up, but neither the ships nor their cargoes. In 1748
the Dutch sent ships of war to protect their merchantmen.  Denmark
threatened to make war, but did not.
CXCII. In 1776 the strict provisions of the Danish Government, for
prohibiting all foreign nations from  carrying on any commerce with
Greenland, gave rise to disputes between Denmark and Great Britain,
and between Denmark and Hlolland, with respect to the seizure of an
English brigandine and two Dutch vessels for alleged violation of these
provisions, and their condemnation in the Danish Court of Admiralty.
In both cases the vessels were, at the application of their respective
Governments, restored; but all claims for compensation by way of damage were steadily refused, as it was said that the vessels had been legally
condemned by a proper tribunal.(i) The Dutch on this occasion protested *against the Danish pretensions with respect to Davis's
[*207] Straits and the Greenland fisheries.(k)
(g) Ibid. t. i. p. 392.      (h) Martens, Cans. C616br. t. i. pp. 393-4.
(i) Extract from letter of Danish Government to the British Minister at Copenhagen:" Reponse du Comte de Bernstorff h la note precedente, du 10 Octobre, 1776."" On a l'honneur de r6pondre h la note remise par M. de Laval en date du 7 Octobre, 1776, que la demande du d6dommagement du S. Kidder, menant le vaisseau
le Windsor, pouvait avoir lieu, tant qu'il 6tait douteux si sa saisie etait l6gale, ou
si elle ne l'6tait pas; mais qu'elle n'est plus admissible selon la nature de la chose
et les usages generalement regus de toutes les puissances de l'Europe, deis qu'une
sentence a e6t prononc6e par un tribunal competent a decider ce point, et des qu'un
vaisseau a 6t6 regalement condamn6 et declare confiscable avec sa cargaison. S.
M. est sure d'avoir donne la preuve la momins equivoque et la moins ordinaire de
son amitie pour S. M. Britannique, en arretant l'ex6cution et leffet d'un arrat
donne en faveur de la compagnie de Groenlande." —Martens Cans. C6lebr. t. ii.
pp. 131-2.
(k) Extract from the Dutch Minister at Copenhagen to Danish Government:"'Mais comme veritablement cette affaire est d'une importance ge6nrale pour
toutes les puissances interess6es dans la peche de Groenlande et du d6troit de Davis,
LL. HH. PP. se verraient obligees d'en faire une cause commune avec ses puissances, et de d6fendre et protdger le droit indisputable de toutes les nations de
pouvoir naviguer et pecher librement par toutes les mers ouvertes, les d6troits, et
les payes, et en particulier celui de leurs sujets, qui de temps immemorial ont 6t6




NARROW   SEAS  -STRAITS.                          l 7
CXCIII. Great Britain has never been remiss in maintaining the
rights of her fisheries. The Newfoundland fisheries were the subject of
careful provisions in the Treaties of Utrecht and Paris, 1763;(l) and
were in 1818 regulated by a Convention between Great Britain and the
United States of North America.(m)
CXCIV. The language of the Article of the Convention was, that
( Whereas differences have arisen respecting the liberty claimed by the
United States, for the inhabitants thereof to take, dry, and cure fish on
certain coasts, bays, harbours, and creeks of his Britannic Majesty's
dominions in America, it is agreed between the high contracting parties,
that the inhabitants of the said United States shall *have for  208
ever, in common with the subjects of his Britannic Majesty, the [208]
liberty to take fish of every kind on that part of the southern coast of
Newfoundland which extends from Cape Ray to the IRamean Islands, on
the Western and Northern Coasts of the said Newfoundland, from the
said Cape Ray to the Quirpon Islands, on the shores of the Magdalen
Islands, and also on the coasts, bays, harbours, and creeks, from Mount
Joly, on the southern coast of the Labrador, to and through the Straits
of Belle Isle, and thence northwardly indefinitely along the coast, without
prejudice, however, to any of the exclusive rights of the Hudson's Bay
Company; and that the American fishermen shall also have liberty for
ever to dry and cure fish in any of the unsettled bays, harbours, and
creeks of the southers part of the Coast of Newfoundland, here above
described, and off the Coast of Labrador; but so soon as the same, or
any portion thereof, shall be settled, it shall not be lawful for the said
fishermen to dry or cure fish at such portion so settled, without previous
agreement for such purpose with the inhabitants, proprietors, or possessors of the ground.
" And the United States hereby renounce for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure
fish on or within three marine miles of any of the coasts, bays, creeks,
or harbours of his Britannic Majesty's dominions in America not included
within the above-mentioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbours for the
purpose of shelter and of repairing damages therein, of purchasing wood,
and of obtaining water, and for no other purpose whatever. But they
shall be under such restrictions as may be necessary to prevent their
en possession d'usur de cce droit sur les c6tes de Groenlande, dans le d6troit de Davis,
et nommdment aussi dans la paye de Disco."-Ibid. pp. 139-40. 
See, too, disputes between England, Denmark, and Holland, 1776; as to the
Iceland fisheries, 1790, between Denmark and Holland, ib. t. i.; as to Finland,
Heffters, 140, n. 3; Ortolan, Dipl. de la Mer, i. 176; as to the Zuyder Dee, The
Twee Gebrceders (Lord Stowell), 3 Robinson's Adm. Rep. p. 339.
(1) Koch, Hist. des Tr. i. 209, 362.
Art. 13 of the Treaty of Utrecht.
Art. 5 of the Treaty of Paris.
(m) The line of demarcation between the rights of fishing of English and French
subjects in the British Channel was elaborately defined by the recent Treaty of 2d
August, 1839. —De Martens et de C. iv. 601.
De Mlartens et de C, iii. 391.




17 8   PHILLIMORE ON INTERNATIONAL LAW.
taking, drying, or curing fish therein, or in any other manner whatever
abusing the privileges hereby reserved them."(n)
[*209] 0 * CXCV. It appears that these provisions had not been strictly
720911 observed by the subjects of the United States, and that in 1849
complaints were made by the Canadian colonists to the British Crown,
who took the opinion of the Law officers as to the true construction of
the Article. This opinion was, that, "-by the terms of the convention,
American citizens were excluded from any right of fishing within three
miles from the coast of British America, and that the prescribed distance
of three miles is to be measured from the headlands, or extreme points
of land, next the sea or the coast, or of the entrance of bays or indents
of the coast, and that consequently no right exists on the part of American citizens to enter the bays of Nova Scotia, there to take fish, although
the fishing, being within the bay, may be at a greater distance than three
miles from the shore of the bay, as we are of opinion that the term'headland' is used in the Treaty to express the part of the land we have
before mentioned, including the interior of the bays and the indents of
the coasts."(o)
The neglect of these provisions by the subjects of the United States
still continued, and in 1852, British men-of-war were sent to protect the
fisheries and seize the boats which violated the Treaty. This act of the
British Government created a great excitement in the United States,
though it does not appear that the legality of the construction of the
Article was impugned; but the late Mr. Webster insisted on the inconvenience to the subjects of the United States, and in the want of comity
shown in its sudden enforcement after many years of an opposite practice.(p)  The subject is still under discussion between the Governments
of the two countries.
[*210]                *CHAPTER VIII.
PORTIONS OF THE SEA.
CXCVI. Though the open sea be thus incapable of being subject to
the rights of property, or jurisdiction, yet reason, practice, and authority
have firmly settled that a different rule is applicable to certain, portions
of the sea.(a)
CXCVII. And first with respect to that portion of the sea which
(n) Annual Reg. vol. xciv. (1852) pp. 295-6.
o) Annual Reg. vol. xciv. (1852) pp. 296-7.
(p) Ib. for 1852, vol. xciv. pp. 295-300.
Morning Chronicle and Daily News, August 9-10, 1852.
(a) Giinther, t. ii. s. xxviii. p. 48: " Eigenthum und Ierrschaft des MIeeres an
den Kfisten."
Heffters, 1 Buch, s. lxxvi. p. 141: "Schutzrechte fiber die Kiistengewasser."
Ortolan, Dipl. de la Mer, t. i. 1. ii. c. viii.: " Mer Territoriale."
Kent's Commentaries, vol. i. s. xxvi. p. 25.




PORTIONS  OF  THE  SEA.                              179
washes the coast of an independent state.  Various claims have been
made, and various opinions pronounced, at different epochs of history,
as to the extent to which territorial property and jurisdiction may be
extended.  But the rule of law may be now considered as fairly established:-namely, that this absolute property and jurisdiction does not
extend, unless by the specific provisions of a Treaty(b) or an unquestioned
usage, beyond a marine league (being three miles), or the distance of a
cannon-shot from  the  shore at low tide: —"quousque e terra imperari
potest" —" quousqcue tormenta exploduntur,"-" terroa dominium finitur
ubi finitur armorurn vis,"-is the language of Bynkershoek.(c)   "In
the sea, out of the reach of cannon-shot," (says Lord Stowell,) 4' universal
use is presumed."   This is the limit *fixed to absolute property
and jurisdiction; but the rights of Independence(d) and self-preservation in time of peace, justify a nation in preventing her revenue
laws from being evaded by foreigners beyond this exact limit; and both
Great Britain and the United  States of North America have provided
against frauds being practised on their revenues, by prohibiting foreign
goods to be transhipped within the distance of four leagues of the coast,
and exercising a jurisdiction for this purpose in time of peace: and in
time of war by preventing, within a similar distance, the hoveringz(e) of
*foreign belligerent ships so near the neutral coasts as to menace [1212]
and alarm  vessels homeward or outward bound.
(b) Valin, Ordonnance de la Marine, 1. v. tit. i. p. 687, De la Liberte de la PNche,
contains a full dissertation on this subject.
Klfiber, s. 130, n. a.
(c) Qunstiones Juris Publici, cap. viii.
(d) The Louis, 2 Dodson's Adm. Rep. 245.
The Twee Gebroeders, 3 Rob. Adm. Rep. 339.
Jacobsen, Seerecht, 586-590.
"Si quelque vaisseau de l'une on de l'autre partie est en engagement avec un
vaisseau appartenant h quelqu'une des puissances chrdtiennes a la portee dc canon
des chateaux de l'autre, le vaisseau qui se trouvera ainsi en action sera dcefendu
et prot6g6 autant que possible, jusqu'h ce qu'il soit en shirete."-Etats-unis et Maroc
(1787), Art. 10.-De Martens et de Cussy, Rec. de Traites, &c., vol. i. p. 380.
" En consequence de ces principes, les hautes parties contractantes s'engagent
reciproquement, en cas que l'une d'entre elles ffit en guerre contre quelque puissance que ce soit, de n'attaquer jamais les vaisseaux de ses ennemis qgae hors de la
portee du canon des cotes de son alli." —France et Russie, Art. 27, ibid. p. 395. (This
treaty was only entered into for 12 years.)
" Aucune des deux parties ne souffrira que le vaisseau on effets appartenants aux
sujets ou citoyens de l'autre, soient pris k uneportee de canon de la cote, ni dans aucune
des baies, rivieres on ports de leurs territoires, par des vaisseaux de guerre ou
autres, ayant lettres de marque de prince, r6publique ou 6tat, quels qu'ils puissent
6tre. Mais dans le cas ott cela arriverait, la partie dont les droits territoriaux auraient ete ainsi violds, fera tous les efforts dont elle est capable pour obtenir de'offenseur pleine et entiere satisfaction, pour le vaisseau ou les vaisseaux ainsi pris,
soit que ce soient des vaisseaux de guerre ou des navires marchands."-Etats-Unis
d'Amerique et Grande Bretagne, Art. 25.-De Martens et De Cussy, Rec. de Traites,
vol. ii. p. 92.
(e) 9 Geo. III. c. 35, prohibited foreign goods from being transhipped within four
leagues of the coast without payment of duties.  The American Act of Congress,
1799, March 2, ss. 25, 26, 27, 99, contains the same prohibition, and their Supreme
Court has declared this regulation to be founded upon International Law.-Church
v. Hubbards, 2 Cranch's (American) Reports, p. 187.-The Le Louis, 2 Dodson's
Adm. Rep. 245-6.




180   PHILLIMORE ON INTERNATIONAL LAW.
CXCVIII. The rule of the marine league being the boundary of the
territorial jurisdiction is of course liable to be affected by Treaty.  The
Emperor of China has conceded jurisdiction to the Crown of England
over British subjects in China, and the Crown, by an order in Council
assented to by the Chinese Government, has jurisdiction over British
subjects "being within the dominions of the Emperor of China, or being
within any ship or vessel at a distance of not more than one hundred
miles from the coast of China.(f)
CXCIX. Besides the rights of property and jurisdiction within the
limit of cannon-shot from the shore, there are certain portions of the sea
which, though they exceed this verge, may, under special circumstances,
be prescribed for.  Maritime territorial rights extend, as a general rule,
over arms of the sea, bays, gulfs, estuaries which are inclosed, but not
entirely surrounded by lands belonging to one andl the same state. With
respect to bays and gulfs so inclosed, there seems to be no reason or authority for a limitation suggested by Martens,(g) "surtout en tant que
ceux-ci ne passent pas la largeur ordinaire des rivieres, ou la double
portee du canon," —or for the limitation of Grotius(h) which is of the
vaguest character,-"- mare occupari potuisse ab eo qui terras ad latus
utrumque possideat, etiamsi ant supra pateat ut sinus, aut supra et infra
ut fretum, dummodo non ita magna sit pars maris ut non Cum terris comparata portio earum videri possit."  The real question, as Giinther truly
remarks, is, whether it be within the physical competence of the nation,
possessing the circumjacent lands, to exclude other nations from the
whole portion of the sea so surrounded: or, as Martens declares in his
L*213] earliest, and in *some respects best, treatise on International Law,
['213 c] "Partes maris territorio ita natura vel arte inclusm ut exteri
aditzu i~mzpedicripossint, gentis ejus sunt, eujus est territorium  circumjacens."(i)  To the same effect is the language of Vattel: "cTout ce que
nous avons dit des parties de la mer voisines des cetes, se dit plus particulierement et a plus forte raison des rades, des baies et des ddtroits,
comme plus capables encore d'etre ocecups, et plus importants a la surete
du pays.  Mais je parle des bales et detroits de peu d'etendue, et non de
ces grands espaces de mner auxquels on donne quelquefois ces noms, tels
que la baie de Htldson, le detroit de 3Magellan, sur lesquels l'empire ne
saurait s'dtendre, et moins encore la proprift6. Une baie dont on peut
d6fendre l'entr6e, peut etre occup6e et soumise aux lois du souverain; il
importe qu'elle le soit, puisque le pays pourrait etre beaucoup plus ais&ment insulte en cet endroit que sur des cotes ouvertes aux vents et a
l'impktuosit6 des iots."(k)
Thus Great Britain has immemorially claimed and exercised exclusive
property and jurisdiction over the bays or portions of sea cut off by lines
drawn from one promontory to another, and called the King's CGhambers.
And there is the high authority of Sir Leoline Jenkins,(l) that the
(f) Papers presented to both Houses of Parliament by command of Her Majesty,
1853.          (g) Lib. ii. c. i. s. 40.     (Ih) Lib. ii. c. iii. s. 8.
(i) Prima  Lins Juris Gentium, 1. iv. c. iv. s. 110.
(k) Vattel, Le Droit, &c., t. i. 1. i. c. xxiii. s. 291.
(1) Life of Sir Leoline Jenkins, vol. ii. pp. 727, 732, 755, 780.




SEA  NEAR  THE  COAST.                       181
vessels, even of the enemies of Great Britain, captured by foreign cruisers
within these Chambers, would be restored by the High Court of Admiralty. Nor can there be any doubt that the portion of the sea which
flows between the Isle of Wight and the main land belongs as completely
as the soil of the adjacent shores to Great Britain.  The revenue laws
of the United States of America contain similar provisions.
CC. Mr. Chancellor Kent states the claims of the United States
upon this matter in the following language: —
" Considering the great extent of the line of the American coasts, we
*have a right to claim, for fiscal and defensive regulations, a [x214]
liberal extension of maritime jurisdiction; and it would not be
unreasonable, as I apprehend, to assume, for domestic purposes connected
with our safety and welfare, the control of the waters on our coasts,
though included within lines stretching from quite distant headlands,
as, for instance, from Cape Ann to Cape Cod, and from Nantucket to
Montauck Point, and from that point to the Capes of the Delaware, and
from the South Cape of Florida to the Mississippi.  It is certain that
our Government would be disposed to view with some uneasiness and
sensibility, in the case of war between other maritime powers, the use of
the waters of our coast, far beyond the reach of cannon-shot, as cruising
ground for belligerent purposes.  In 1793 our Government thought they
were entitled, in reason, to as broad a margin of protected navigation as
any nation whatever, though at that time they did not positively insist
beyond the distance of a marine league from the seashores; and, in
1806, our Government though it would not be unreasonable, considering
the extent of the United States, the shoalness of their coast, and the
natural indication furnished by the well-defined path of the Gulf Stream,
to expect an immunity from belligerent warfare, for the space between
the limit and the American shore.  It ought, at least, to be insisted,
that the extent of the neutral immunity should correspond with the
claims maintained by Great Britain around her own territory, and that
no belligerent right should be exercised within c the chambers formed
by headlands, or anywhere at sea within the distance of four leagues, or
from a right line from one headland to another.' In the case of the
Little Belt, which was cruising many miles from the shore between Cape
Henry and Cape Hatteras, our Government laid stress on the circumstance that she was.'hovering on our coasts;' and it was contended on
the part of the United States, that they had a right to know the national
character of armed ships in such a situation, and that it was a right.immediately connected with our tranquillity and peace.  It was [215
further observed, that all nations exercised the right, and none   215
with more rigour, or at a greater distance from the coast, than Great
Britain, and none on more justifiable grounds than the United States.
There can be but little doubt that, as the United States advance in commerce and naval strength, our Government will be disposed more and
more to feel and acknowledge the justice and policy of the British claim
to supremacy over the narrow seas adjacent to the British Isles, because
we shall stand in need of similar accommodation and means of security."(m)
(m) Commentaries, vol. i. pp. 29, 30.




182      P HILLIM ORE  ON  INTERNATIONAL  LAW.
CCI. In 1822 Russia laid claim to a sovereignty over the Pacific
Ocean north of the 51st degree of latitude; but the Government of the
United States of America resisted this claim as contrary to the principles
of International Law.(n)
CCII. The portion of sea actually occupied by a fleet riding at anchor
is within the dominion of the nation to which the fleet belongs, so long
as it remains there; that is, for all purposes of jurisdiction over persons
within the limits of the space so occupied.  The like principle is applicable to the portion of territory occupied by an army, —a fleet being
considered as a maritime army.(o)
['216]    *This proposition is of course not to be considered without
[216 ] reference to the place of anchorage: a French fleet permitted to
anchor in the Downs, or an English fleet at Cherbourg, would only have
jurisdiction over the subjects of the respective countries which happened
to be within the limits of their temporary occupation of the water.  Both
in the case of the fleet and the army, there is, according to the theory of
the law, a continuation or prorogation of the territory to which they
belong.(p)
CCIII. The undoubted proposition, that the sea is open to the navigation of all nations, does not carry with it the further proposition, that
it is competent to every individual to navigate his ship without any
authority from his government.
Every ship is bound to carry a flag, and to have on board ship's papers
(lettres de mner) indicating to what nation they belong, whence they have
sailed, and whither they are bound, under pain of being treated as a
pirate. (q)
CCIV. With  respect to  seas entirely inclosed by the land, so as to
constitute  a salt water-lake  (Maria clausa; mers fermeies, enclosees;
Binnenmneere, geschlossene innere AIeere,) the general presumption of law
is, that they belong to the surrounding territory or territories in as full
(n) Commentaries, vol. i. p. 28.
Mr. Adams' Letter to the Russian Minister, March 30th, 1822.
(o) " Videtur autem imperium in maris portionemr eadem ratione acquiri ut imperia alia, id est, ut supra diximus, ratione personarum et ratione imperili. Ratione personarum, ut si classis qui est maritimus exercitus, aliquo in loco maris se
habeat: ratione territorii, quatenus ex terra cogi possunt qui in proximamar is
parte versantur, nec minus quam si in ipsa terra reperentur."-Grotius, 1. ii. c. 3,
xiii. 2.
"Addo, classem que stat in anchoris, eam  maris partem  cui incubat, videri
occupasse, eatenus nempe, quatenus et quamdiu occupat.  Si occupaverit transit
in imperium et dominium occupantis secundum ea que disputavi."-Cap. iii. s. 4.
Bynk. De Dominio Maris.
Heffters, 136.
Wheaton's Hist. 723.
(2p) Vide post, further observations on the question of jurisdiction.
(q) "Quand on dit que la mer est libre, on ne s'entend parler que des nations,
car elle ne l'est point pour des particuliers; ils ne peuvent en jouir que sous la
sauvegarde de leur Gouvernement, et c'est pour dtablir cette sauvegarde qu'on a
institue les pavilions et les lettres de mer; la stlrete a exig6 cette restriction du
droit naturel; et tout batiment naviguant sans pavilion et sans lettres de mer est
traite comme un forban." —Garden Traite de Diplomatie, i. 406.
Ortolan, Dipl. de la Mer, t. i. 1. ii. c. ix.-The Le Louis, 2 Dodson's Adm. Rep.
246-7.




ISTHMUS OF CENTRAL AMERICA.                             183
and complete a manner as a fresh-water lake.  The Caspian and the
Black Sea naturally belong to this class. Upon the former sea Russia
had, by the Treaty with Persia, the exclusive right of navigating with
ships of war; and by the Treaty of the *D)ardanelles, the Black   217]
Sea is practically confined to Russian and Turkish ships of war.(r) [*  ]
CCV. There is another class of inclosed seas to which the same rules
of law are applicable; seas which are land-locked, though not entirely
surrounded by land. Of these, that great inlet which washes the coasts
of Denmark, Sweden, Russia, and Prussia, the Ostsee, as the Germans
call it, the Baltic Sea, according to its usual appellation, is the principal.(s)
*CHAPTER IX.                            [*218]
PECULIAR CASE OF THE ISTHMUS OF CENTRAL AMERICA.
CCVI. The most remarkable, and perhaps the most important, instance of the establishment of the jus transitts innoxii is afforded by the
recent convention between Great Britain and the United States respecting the Isthmus of Central Atmerica, which connects the great highways
of the world, the Atlantic and Pacific Oceans. The treaty concerns the
formation of a ship-canal, or of a 9railway over this strip of land. This
Treaty, both on account of its immediate object, and the principle which
it expressly recognizes and recites, is of such vast importance, both to
the present and future interests of mankind, that it is necessary to state
the provisions in extenso.
The preamble set forth that, c" Her Britannic Majesty and the United
States of America being desirous of consolidating the relations of amity
which so happily subsist between them, by setting forth and fixing in a
convention their views and intentions with reference to any means of
communication by ship-canal, which may be constructed between the
Atlantic and Pacific Oceans by way of the river St. Juan de Nicaragua,
(r) 2 De Martens et De Cussy, 399, Art. 5.
Heffters, 140.
Wheaton's Hist. 158, 567.
(s) Heffters, 143, n. 2.
4 De Martens et De C. t. i. Index Explicatif.
"M ers fermees. Parmi les mers ferm6es on compte gen6ralement:
Le grand et le petit Belt.
Le Sund (le seul d6troit dont le passage soit soumis, pour les navires de la
marine commerciale, a un p6age; Voir Sund.)
Le Canal de Bristol.
Le Canal de Saint George.
Le D6troit d'Ecosse.
Le Detroit de Messine.
Les Dardenelles.
La Mer de Marmora.
Le Bosphore, etc. etc.
En 1780, le Danemarck declara la mer Baltique une.mer fermee, a l'abri des
courses des armateurs et des vaisseaux arm6s."




184      PIITLLIMORE  ON INTERNATIONAL  LA W.
and either or both of the lakes of Nicaragua or Managua, to any port or
place on the Pacific Ocean," &c.
The Articles were as follows::-"Art. 1. The Governments of Great
Britain and the United States hereby declare that neither the one nor
the other will ever obtain or maintain for itself any exclusive control
over the said ship-canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof,
for occupy, or fortify, or colonise, or assume or exercise any doL*219] minion over Nicaragua, Costa Rica, the Mosquito Coast, or any
part of Central America;(a) nor will either make use of any protection
which either affords or may afford, or any alliance which either has or
may have, to or with any State or people, for the purpose of erecting or
maintaining any such fortifications, or of occupying, fortifying, or colonising Nicaragua, Costa Rica, the Mosquito Coast, or any part of C(entral America, or of assuming or exercising dominion over the same.  Nor
will Great Britain or the United States take advantage of any intimacy,
or use any alliance, connection, or influence that either may possess with
any State or Government through whose territory the said canal may
pass, for the purpose of acquiring or holding, directly or indirectly, for
the subjects or citizens of the one, any rights or advantages, in regard to
commerce or navigation through the said canal, which shall not be offered,
on the same terms, to the subjects or citizens of the other.
" Art. 2. Vessels of Great Britain or the United States traversing the
said canal shall, in case of war between the contracting parties, be exempted from blockade, detention, or capture by either of the belligerents;
and this provision shall extend to such a distance from the two ends of
the said canal as it may hereafter be found expedient to establish.
" Art. 3. In order to secure the construction of the said canal, the
contracting parties engage that if any such canal shall be undertaken
upon fair and equitable terms by any parties having the authority of the
local government or governments through whose territorry the same may
pass, then the persons employed in making the said canal, and their
property used or to be used for that object, shall be protected, from the
commencement of the said canal to its completion, by the Governments
of Great Britain and the United States, from  unjust detention, confiscation, seizure, or any violence whatsoever.
[220   Art. 4. The contracting parties will use whatever influence
[*220] they respectively exercise with any State, States, or Governments
possessing, or claiming to possess, any jurisdiction or right over the territory which the said canal shall traverse, or which shall be near the
waters applicable thereto, in order to induce such States or Governments
to facilitate the construction of the said canal by every means in their
power; and furthermore, Great Britain and the United States agree to
use their good offices, wherever or however it may be most expedient, in
order to procure the establishment of two free ports, one at each end of
the said canal.
"vArt. 5. The contracting parties further engage, that when the said
(a) Vide infra.




ISTHM uS OF CENTRAL AMERICA.                       185
canal shall have been completed, they will protect it from  interruption,
seizure, or unjust confiscation, and that they will guarantee the neutrality
thereof, so that the said canal may for ever be open and free, and the
capital invested therein secure.  Nevertheless, the Governments of Great
Britain and the United States, in according their protection to the construction of the said canal, and guaranteeing its neutrality and security
when completed, always understand that this protection and guarantee
are granted conditionally, and may be withdrawn by both Governments,
or either Government, if both Governments or either Government should
deem that the persons or company undertaking or managing the same
adopt or establish such regulations concerning the traffic thereupon, as
are contrary to the spirit and intention of this Convention, either by
making unfair discriminations in favour of the commerce of one of the
contracting parties over the commerce of the other, or by imposing oppressive exactions or unreasonable tolls upon passengers, vessels, goods,
wares, merchandise, or other articles. Neither party, however, shall
withdraw the aforesaid protection and guarantee, without first giving six
months' notice to the other.
"i Art. 6. The contracting parties in this Convention engage to invite
every State with which both or either have -friendly intercourse, *221
to enter into stipulations with them similar to those which they [221
have entered into with each other, to the end that all other States may
share in the honour and advantage of having contributed to a work of
such general interest and importance as the canal herein contemplated;
and the contracting parties likewise agree, that each shall enter into
treaty stipulations with such of the Central American States as they may
deem  advisable, for the purpose of more effectually carrying out the
great design of this Convention, namely, that of constructing and maintaining the said canal as a ship communication between the two oceans
for the benefit of mankind, on equal terms to all, and of protecting the
same; and they also agree, that the good offices of either shall be employed, when requested by the other, in aiding and assisting the negotiation of such treaty stipulations; and should any differences arise as to
right or property over the territory through which the said canal shall
pass, between the States or Governments of Central America, and such
differences should in any way impede or obstruct the execution of the
said canal, the Governments of Great Britain and the United States will
use their good offices to settle such differences, in the manner best suited
to promote the interests of the said canal, and to strengthen the bonds of
friendship and alliance which exist between the contracting parties.,"Art. 7. It being desirable that no time should be unnecessarily lost
in commencing and constructing the said canal, the Governments of
Great Britain and the United States determine to give their support and
encouragement to such persons or company as may first offer to commence
the same, with the necessary capital, the consent of the local authorities,
and on such principles as accord with the spirit and intention of this
Convention: and if any persons or company should already have, with
any State through which the proposed ship-canal may pass, a contract
for the construction of such a canal as that specified in this Convention,
AuausT, 1854.-13




186   PHILLIMORE ON INTERNATIONAL LAW.
to the stipulations of which contract neither of the contracting
[*222] *parties in this Convention have any just cause to object, and
the said persons or company shall, moreover, have made preparations
and expended time, money, and trouble on the faith of such contract, it'
is hereby agreed that such persons or company shall have a priority of
claim over every other person, persons, or company, to the protection of
the Governments of Great Britain and the United States, and be allowed
a year, from the date of the exchange of the ratifications of this Convention, for concluding their arrangements, and presenting evidence of sufficient capital subscribed to accomplish the contemplated undertaking; it
being understood, that if, at the expiration of the aforesaid period, such
persons or company be not able to commence and carry out the proposed
enterprise, then the Governments of Great Britain and the United States
shall be free to afford their protection to any other persons or company
that shall be prepared to commence and proceed with the construction
of the canal in question.
"pArt. 8. The Governments of Great Britain and the United States
having not only desired, in entering into this Convention, to accomplish
a particular object, but also to establish a general prissciple, they hereby
agree to extend their protection by treaty stipulations to any other practicable communications, whether by canal or railway, across the isthmus
which connects North and South America; and especially to the interoceanic communications, should the same prove to be practicable, whether
by canal or railway, which are now proposed to be established by the
way of Tehuantepec or Panama. In granting, however, their joint protection to any such canals or railways as are by this Article specified, it
is always understood by Great Britain and the United States, that the
parties constructing or owning the same shall impose no other charges
or conditions of traffic thereupon than the aforesaid Governments shall
approve of as just and equitable; and that the same canals or railways,
being open to the subjects and citizens of Great Britain and the United
States on equal terms, shall also be open on like terms to the
[*223]  subjects, and citizens of every other State which is willing to
grant thereto such protection as Great Britain and the United States
engage to afford.
"Art. 9. The ratifications of this Convention shall be exchanged at
Washington within six months from this day, or sooner if possible.
"In faith whereof, we, the respective Plenipotentiaries, have signed
this Convention, and have hereunto affixed our Seals.
4"Done at Washington, the nineteenth day of April, anno Domini One
thousand eight hundred andfifty.
(Signed)             HENRY LYTTON BULWER,
JOHN M. CLAYTON."(b)
CC(]VII Before the ratifications were exchanged, it was explained by
the British to the American Plenipotentiary, that the words ("or any
part of Central America" were not to apply to the British Settlements
in Honduras, or its dependencies.  This explanation was fully adopted
(b) Annual Register, vol. xcii. (1850) pp. 387-390.




SELF-PR ESERV AT IO N.                        187
by the American Plenipotentiary, and the ratifications were exchanged.
The Treaty was subsequently submitted by the President of the United
States to the Senate,(c) and was approved of, after discussion, by that
deliberative assembly.
It was, however, contended by certain persons averse to the conditions
of the Treaty, that the Senate did not understand that the Treaty was
to be construed with reference to the American Plenipotentiary's consent, which had been expressed in the reply to the British Plenipotentiary's explanation with respect to the Honduras, and consequently that
the Senate had in reality not assented to the Treaty so qualified.
Though there is no ground for this supposition, the *objection
evinces how much a knowledge of the department of Government [*224]
in which the power of making and ratifying Treaties is vested by the
Constitution of each State, is necessary for the security of the foreign
relations of all States.
CCVIII. The reason of the thing would indeed seem to have excluded
the Honduras, as the terms were employed in the Treaty, even without
the subsequent express limitation, from  the category  of " Central
America," though geographically and literally within the scope of the
expressions. It is true that Great Britain had originally only certain
limitedjura isn re with respect to the Honduras, such as the rights of
cutting mahogany and logwood conceded to her by Treaties with Spain,
the right of sovereignty being reserved to the crown of the latter country; yet since Spain has ceased to exercise any sovereignty, either at
Honduras or in the circnmjacent territory, and the British jurisdiction is
exercised there under a Commission of the Crown which has been recognised by the United States, inasmuch as their Consul is received at Belize
under the exequatur of the British Crown;-since the occurrence of these
events, Honduras must be and is considered as both defacto and de jure
a British settlement; and the terms in the Treaty would therefore appear,
by the ordinary and admitted rules of construction,(d) applied with reference to the subject-matter and context of the Treaty, not to include
the British possession of Honduras.(e)
*CHAPTER  X.                           [*225]
SELF-PRES ERVATION.
CCIX. The Right of Self-Preservation, by that defence which prevents, as well as that which repels, attack, is the next International
Right which presents itself for discussion, and which, it will be seen,
c) Vide supra, p. 140.        (d) Vide post, Chapter on TREATIES.
(e) "Convention entre Sa Majeste le Roi de la Grande-Bretagne et Sa Majeste
le Rol d'Espagne, conclue a Londres le 14 Juillet, 1786." —Martens, Rec. de Tr.
iv. (1786), pp. 133-140.
Annual Register, 1787, p. 78.
Times of 31st January, 1853.




18 8     PILLIM  OR E ON  INTERNATIONAL LAW.
may, under certain circumstances, and to a certain extent, modify the
Right of Territorial Inviolability.
CCX. The Right of Self-Preservation is the first law of nations, as it
is of individuals. A society which is not in a condition to repel aggression from without, is wanting in its principal duty to the members of
which it is composed, and to the chief end of its institution.(a)
All means which do not affect the independence of other nations are
lawful for this end.  No nation has a right to prescribe to another what
these means shall be, or to require any account of her conduct in this
respect.
CCXI. The means by which a nation usually provides for her safety
are, 1. By alliances with other states; 2. By maintaining a military and
naval force; and, 3. By erecting fortifications, and taking measures of
the like kind within her own dominions.  Her full liberty in this respect cannot, as a general principle of International Law, be too boldly
*226] announced or too firmly maintained; though some *modification
of it appears to flow from the equal and corresponding rights of
other nations, or at least to be required for the sake of the general welfare and peace of the world.
CCXII. Armaments suddenly increased to an extraordinary amount,
are calculated to alarm  other nations, whose liberty they appear, more
or less, according to the circumstances of the case, to menace.(b)
It has been usual, therefore, to require and receive amicable explanations of such warlike preparations; the answer will, of course, much
depend upon the tone and spirit of the requisition.
Thus the British Secretary for Foreign Affairs (Lord Grenville), in
1793, replied to Monsieur Chauvelin (who had been the accredited minister of the king of France, and remained in England after the Republic
was declared), ", It is added, that if these explanations should appear to
us unsatisfactory; if you are again obliged to hear the language of
haughtiness; if hostile preparations are continued in the ports of England, after having exhausted everything which could lead to peace, you
will dispose yourselves to war.
", If this notification, or that which related to the treaty of commerce,
had been made to me in a regular and official form, I should have found
myself obliged to answer, that a threat of declaring war against'England, because she thinks proper to augment her forces, as well as a declaration of breaking a solemn Treaty, because England has adopted for
her own security precautions of the same nature as those which are
already established in France, could neither of them be considered in
any other light than that of new offences, which, while they subsisted,
would preclude all negotiation."(c)
CCXIII. We have hitherto considered what measures a nation is
(a) Vattel, t. i. c. xiv. s. 177. " o6 y6p alpscts a-rtv hl/tv roiv rrpgylarosg dXX' wroXE0t7reratl rt &Kcat6rarov Kai dvayKat67rarov r(iV E'pyCov 8' VrEpflatvovtv K6OVreS OVrot7 rtL OV, EarCr
rovro; dpvvla r-rat rdv rp6repov 7roXepoiovo' i71itv." fl. Demosth. srpt r7civ v Xeqjov. Est
igitur hsec non scripta sed nata lex, &c. 4. Cic. pro Milone.
(b) Martens, 1. iv. c. i. pp. 116-7-8.
(c) State Papers during the War, Lond. 1794, p. 242.




SELF-PRE SERVATION.                          189
entitled to take, for the preservation of her safety, within her own [227
dominions.  It may happen that the same Right may warrant [    ]
her in extending precautionary measures without these limits, and even
in transgressing the borders of her neighbour's territory.  For International Law considers the Right of Self-Preservation as prior and paramount to that of Territorial Inviolability, and, where they conflict, justifies the maintenance of the former at the expense of the latter right.
The case of conflict indeed must be indisputable, pomeridiancd luce
clarior in the language of canonists.  Such a case, however, is quite
conceivable.  A rebellion, or a civil commotion, it may happen, agitates
a nation; while the authorities are engaged in repressing it, bands of
rebels pass the frontier, shelter themselves under the protection of the
conterminous state, and from thence, with restored strength and fresh
appliances, renew  their invasions upon the State -from which they have
escaped.  The invaded State remonstrates.  The remonstrance, whether
from favour to the rebels, or feebleness of the executive, is unheeded, or,
at least, the evil complained of remains unredressed.
In this state of things the invaded State is warranted by International
Law in crossing the frontier, and in taking the necessary means for her
safety, whether these be the capture or dispersion of the rebels, or the
destruction of their stronghold, as the exigencies of the case may fairly
require.
CCXIV. Vattel maintains strongly this opinion: " n  est certain flue
si mon voisin donnait retraite a ones ennemnis lorsqu',is auralent ducpire
et se trouveraient trop faibles pour m'e'chapper, leur laissant, le tentms de
se refaire, et d'edpier l'occasion de tenter iune nouvelle irrujption scur mnes
terres, cette conduite, si pr6judiciable a ina sarete et a mes inte6rts,
serait incompatible avec la neutralit6e.  Lors done que mes ennemis battus se retirent chez lui, si la charit6 ne lui permet pas de leur refuser
passage et sufrete, il doit les faire passer outre le plus tot possible, et ne
point sozifirir u''ils se tiennent aux aguets poz9ur 17' attaquer de nouveau;
autrement il mze met en droit de les aller cherc7her dans ses *terres.
C'est ce qui arrive auxznations qui e sont ps en  tat de faire [228
resqpecter leur territoire; le th6atre de la guerre s'y 6etablit bientot; on y
marche, on y campe, on s'y bat, comme dans un pays ouvert a tous
venants."(d)
CCXV. The hypothetical case here described, was that which Great
Britain alleged to have actually occurred, except that the circumstances
were of a more aggravated character, with respect to the invasion of her
Canadian possessions in 1838. For she alleged, that the Canadian rebels
not only found shelter on the American frontier of the Niagara, but that
American citizens joined the rebels, and that they obtained arms, by
force indeed, from the American arsenals, and that shots were fired from
an Island within the American territories, while a steamer called the
" Caroline" was employed in the transport of munitions of war to the
Island, which when not so employed was moored off the American shore.
In this state of things a British captain and crew having boarded and
(d) Lib. iii. c. vii. s. 133.




190     PHILLIMORE  ON  INTERNATIONAL  LAW.
forcibly captured the "a Caroline," cut her adrift, and sent her down the
falls of Niagara.  The act was made the subject of complaint, on the
ground of violation of territory, by the American Government, and vindicated by Great Britain on the ground of self-preservation; which, if
her version of the facts were correct, was a sufficient answer, and a complete vindication.(e)
CCXVI. In 1826, the mustering and equipment of Portugese
rebels(f) on the Spanish frontier, unchecked by the Spanish authorities, was considered by Great Britain as obliging her to consider that
", casus fooderis," on the happening of which she was bound to assist her
ally, to have actually arisen; and she accordingly sent troops to Portugal.
CCXVII. Upon the same principle, though a nation has a right to,*22,9 afford refuge to the expelled governors, or even the *leaders of
[ U29] rebellion flying from another country, she is bound to take all
possible care that no hostile expedition is concerted in her territories, and
to give all reasonable guarantees upon this subject, in answer to the remonstrances of the nation from which the exiles have escaped.(g) During
the time when the residence of the Pretender in France within the vicinity of England, gave reasonable alarm to the British Government, the
removal of his residence to a place of less danger to Great Britain formed
the subject of the stipulations of various Treaties.  If the hostile expedition of the present Emperor of the French in 1842, against the then
existing monarchy of France, had taken place with the sanction or connivance of the British Government, England would have been guilty of
a very gross violation of International Law; and she showed at the time
a wise and just anxiety to purge herself from any such suspicion.  But
though the strange and almost unparalleled vicissitudes of fortune afterwards compelled the very monarch, against whom that expedition had
been directed, to take refuge in this country, the then representative of
the executive of France, though the leader of that expedition, had no
cause of complaint, either on this ground, or because other political
refugees, professing all shades and kinds of opinion, resided in safety in
2 England; which, before it was their refuge, *had so often been,
[*230] and indeed still is, the theme of their vituperation.
CCXVIII. In all cases where the territory of one nation is invaded
(e) Vide post, authorities and references.
(f) Mr. Canning's Speech on the King's message relative to the affairs of Portugal, December 12th, 1826.-Canning's Speeches, vol. vi. p. 60.
(g) "Les Princes de Transilvanie refuseront asyle aux ennemis de la Maison
d'Autriche; et reciproquement cette Puissance ne pourra donner retraite aux
ennemis des Princes et Etats de Transilvanie."-Trait6 de Vienne, Art. 12; Mably,
Le Droit Public, t. ii. p. 59.
"L'annee 1716 fut employ6e en negociations entre la France, l'Angleterre et les
Provinces Unies; et dans la suivante, ces Puissances signerent / la Haye le Traite
de la Tfi~ple Alliance. La France se chargeoit d'engager le Chevalier de SaintGeorges 1h sortir du Comtat d'Avignon pour se retirer au-dela des Alpes. Chaque
contractant prommettoit de ne donner aucun asyle ser ses terres, aux personnes
qui seroient diclardes rebelles par l'un des deux autres."-Ib. p. 119.
"' La France promet de ne point reconnoitre les droits que le fils du Roi Jacques
II. peut avoir sur l'Angleterre, et de ne le pas souffrir sur ses terres." —Traite
d'Ut. Fr. Ang. Art. 4; Ib. p. 157.




SELF-PRE SE R VATION.                         191
from  the country of another,-whether the invading force be composed
of the refugees of the country invaded, or of subjects of the other country
or of both-the Government of the invaded country has a right to be
satisfied that the country from which the invasion has come, has neither
by sufferance nor reception (patientif  ant receptu) knowingly aided or
abetted it. She must purge herself of both these charges, otherwise, if
the cause be the feebleness of her Government, the invaded country is
warranted in redressing her own wrong, by entering the territory, and
destroying the preparations of war therein made against her; or, if
these have been encouraged by the Government, then the invaded country
has a strict right to make war upon that country herself; because she
has afforded not merely an asylum, but the means of hostility to the foes
of a nation, with whom she was at peace.  For it never can be maintained,
that however much a State may suffer from  piratical incursions, which
the feebleness of the executive government of the country whence they
issue renders it incapable of preventing or punishing, that, until such
government shall volutntary acknowledge the fact, the injured State has
no right to give itself that security, which its neighbour's Government
admits that it ought to enjoy, but which that Government is unable to
guarantee.
It must be admitted that there is apractical acknowledgment of such
inability, which, as much as a voluntary confession, justifies the offended
country in a course of action which would under other circumstances be
unlawful. There is a very important chapter, both in Grotius, and in
his commentator HIeineccius, entitled c de poenarum  communicatione,"
as to when the guilt of a malefactor, and its consequent punishment, is
communicated to others than himself: and the question is particularly
considered with reference to the responsibility of a State for the conduct
of its citizens.  The *test for discovering " Civitasue delinquerit
an cives?" are laid down with great precision and unanimity of 211
sentiment by all Publicists, and are generally reduced to two, as will be
seen from the following extract from Burlemaqui(h) (who repeats the
opinion of Grotius(i) and Heineccius.)  " In civil societies," (he says,)
<' when a particular member has done an injury to a stranger, the governor of the commonwealth is sometimes responsible for it, so that war
may be declared against him on that account. But to ground this kind
of imputation, we must necessarily suppose one of these two things sucfferance or reception,(kl) viz. either that the sovereign has suffered this
harm to be done to the stranger, or that he afforded a retreat to the
criminal.  In the former case, it must be laid down as a maxim, that a
sovereign who, knowing the crimes of his subject-as, for example, that
they pactise piracy on strangers, —and being also able and obliged to
(h) The Principles of Natural and Public Law, by J. J. Burlemaqui, Professor
at Geneva. I only possess the English translation, London, 1763. Sir J. Mackintosh calls him' an author of distinguished merit."
(i) See Grotius de J. B. & P. 1. ii. c. xxi.; De Pcenarum Communicatione; and
the admirable Prelectiones of Heineccius on this chapter.
Vattel, 1. ii. c. vi.: "Dc la part que la nation peut avoir aux actions de ses
citoyens."
(k) " Patientia aut receptu." —Grot. & Heiness.




192       PHILLIMORE  ON  INTERNATIONAL  LAW.
hinder it, does not hinder it, renders himself criminal, because he has
consented to the bad action, the commission of which he has permitted,
and consequently furnished a just reason of war.  The two conditions
above mentioned, I mean the knowledge and sufferance of the sovereign,
are abolutely necessary, the one not being sufficient without the other to
communicate  any share in the guilt.  Now  it is presumed  that a
sovereign knows what his subjects openly and frequently commit; and
as to his power of hindering the evil, this likewise is always presumed,
unless the want of it be clearly proved."   So Vattel:(l)   "Si un
souverain qui pourrait retenir ses *sujets dans les regles de la
[F3  ]3 justice et de la paix, souffre qu'ils maltraitent une nation, ou dans
son corps ou dans ses membres, il ne fait pas moins de tort a toute la
nation, que s'il la maltraitait lui-meme."(vz)
The act of an individual citizens, or of a small number of citizens,
is not to be imputed, without special proof, to the nation or Government
of which they are subjects.(n)  A different rule would of course apply to
the acts of large numbers(o) of persons, especially if they appeared in
the array and with the weapons of a military force, as in the case of the
invasion of Portugal which has been referred to above.
CCXIX. The consideration of the means by which  nations have
enabled themselves to perform this duty toward their neighbours and the
rest of the world, and of the very important and much-vexed question
of the lawfulness of allowing a friendly power to raise troops in a
neutral territory, *will be discussed when we enter upon the
E2331 ]Right of Jurisdiction, incident to a State, over all persons and
things within the territory, and also in a later part of this work upon the
Rights and Duties of Neutrals.  But this present is not an unfit place
for offering some general remarks upon the control exercised by the State
over strangers, whether domiciled and commorant (habitans,) or merely
travellers through the country (e'trangers yui passent.( p) )
It is a received maxim of International Law, that the Government of
(1) Book ii. c. vi. s. 72.
(mn) Letter to Lord Ashburton, by R. Phillimore, pp. 27, 183; London, 1842.
(n) " Cependant, comme ii est impossible a l'Etat le mieux regle, au souverain
le plus vigilant et le plus absolu, de mod6rer A sa volonte toutes les actions de
ses sujets, de les contenir en toute occasion dans la plus exact ob6issance, ii serait
injuste d'imputer h la nation ou au souverain toutes les fautes des citoyens. On
ne peut done dire, en general, que l'on a regu une injure d'une Nation, parce qu'on
laura reque de quelqu'uu de ses membres (on ne peut imputer X la nation les
actions des particuliers.")-Vattel t. i. 1. ii. c. vi. s. 73.
(o) Heffters, zweites Buch, Volkerrecht im Zustand des Unfriedens, s. 148, pp.
258-9: After saying that what the State may not lawfully do collectively it may
not do individually-" Sollte freilich die Theilnahme der Unterthanan eine massenhafte werden, dadurch die Aufmerksamkeit und Bedenklichkeit der Gegenpartei
erregen, demnach Repressalien derselben beffirchten lassen."
Zouch, De Judicio inter Gentes, pars ii. s. vi. p. 120 (ed Oxoniae, 1650): " An
repraesaliae sint lici'tae? Imperator Zeno muquitati naturali contrarium dicit ut,
pro alieno debito, alii molestentur; et in Novellt Justiniari prohibentur Piguorationes pro aliis; additt causa, Quod Rationemr non habet, alium esse debitorem,
alium exigi: Jure tamen Gentium introductum apparet, ut pro eo quod prostare
debet Civilis Societas, ant ejus caput, sive pur se primo, sive quod alieno debito
jus non reddendo se obstrinxerint obligata sint omznia bona subditorum."
(p) Vattel, 1. i. c. xix. s. 213, 1. ii. c. viii. passim.




sELF-PRE S ERVA TIO  N.                         193
a State may prohibit the entrance of strangers into the country, and
may therefore regulate the conditions under which they shall be allowed
to remain in it, or may require and compel their departure from it.
According to the Law of England, local allegiance is due from an alien
or stranger born, so long as he continues within the protection  and
dominion of the Crown; and it ceases the instant he transfers himself
from this kingdom  to another.  The allegiance and the protection of the
stranger, therefore, are both confined, in point of time, to the duration
of the residence; and in point of locality, to the dominion of the British
Empire.(q) During periods of revolutionary disturbances both on the
Continent and within this kingdom, it has been customary to pass Acts
of Parliament authorising certain high officers of the State to order the
departure of aliens from the realm within a specified time and their
imprisonment in case of refusal.  These acts have generally been limited
in their duration: the operation of the last was confined to the period of
one year.(r)
(q) Calvin's case, 7 Coke's Report's, 6 a.
Stephen's Blackstone, vol. ii. 6, iv. pt. i. c. 11.
1 Hale's Pleas of the Crown, 60.
(r) "This power," as Mr. Canning observed, "had undoubtedly been exercised
by the Crown, sometimes with, sometimes without, the consent of Parliament."
(5 Canning's Speeches, p. 255.) The 33 Geo. III. c. 4. A. D. 1793, was the first
Alien Act passed by the Parliament of this *kingdom, and was followed   23
up by Lord Grenvill's note, dismissing Monsieur Chauvelin.
Translation.
"Whitehall, Jan. 24th, 1793.
" I am charged to notify to you, Sir, that the character with which you had
been invested at this Court, and the functions of which have been so long suspended, being now entirely terminated by the fatal death of His late most Christian Majesty, you have no more any public character here.
" The King can no longer, after such an event, permit your residence here.
His Majesty has thought fit to order that you should retire from  this kingdom
within the term of eight days; and I herewith transmit to you a copy of the order
which His Majesty in his Privy Council, has given to this effect.
" I send you a passport for yourself and your suite; and I shall not fail to take
all the other necessary steps, in order that you may return to France with all the
attentions which are due to the character of Minister Plenipotentiary from His
Most Christian Majesty, which you have exercised at this Court.
I have the honour to be, &c.
" GRENVILLE."
(State Papers on the War, p. 245.)
This Act has been followed up by:38 Geo. III. c. 50, 77.                56 Geo. III. c. 86.
41 Geo. III. c. 24.                   58 Geo. III. c. 96.
42 Geo. III. c. 93.                     1 Geo. IV. c. 105.
43 Geo. III. c. 155.                    3 Geo. IV. c. 97.
54 Geo. III. c. 155.                   5 Geo. IV. c. 37.
55 Geo. III. c. 54.
The last Statute was passed on June 9th, 1848, 11 & 12 Vict. c. 20.; " An Act
to authorise for one Year and to the End of the then next Session of Parliament
the Removal of Aliens from the Realm."
Horner's MIemoirs, vol. ii. p. 522. Speech on the Alien Bill, 1816.




194      PIIILLIMORE  ON INTERNATIONAL  LAW.
[4235]                  *CIIAPTER  XI.
RIGHT TO A FREE DEVELOPMENT OF NATIONAL RESOURCES BY
COMMERCE.
CCXX. This Right(a) is little more than a consequence from  what
has been already stated with respect to the free navigation of the ocean,
and the exceptions which the International Law has sanctioned in the
case of particular portions of the ocean. The general law as to the perfect
liberty of commerce incident to every nation, is forcibly and truly stated
by Grotius:(b) c Quominus gens quseque cumi quavis gente seposita
commercium colat, impediendi nemini jus est: id enim permitti interest
societatis humanse; nec cuiquam damno id est: nam etiam si cui lucrum
speratum, sed non debitum decedat, id damni vice reputari non debet."
The extravagant pretentions of Spain and Portugal to exclusive commerce with the East and West Indies, and their practical abandonment,
have been discussed in a former chapter. It is, however, perfectly competent to any nation to make what regulations it pleases with respect to
[*236  its own commerce, to admit every nation equally to it, to exclude
-- -~ *nations from  it, to admit some under favourable, and others
under unfavourable conditions, unless, indeed, such original liberty be
curtailed by the express provisions of a Treaty.
A nation has the same power of restricting commerce with regard to
its distant provinces and colonies. Every colony almost has, at one time
or other, been confined to commercial intercourse with its mother country, or to some great privileged company of that country.  Every page
of the history of collonial dependencies shows with what rigour this
monopoly has been exerted by the mother country in time of peace, and
with what jealousy the forced relaxation of such monopoly in time of
war by one belligerent in favour of neutrals, has been regarded by the
other belligerent. England has steadily denied to the neutral the right
of carrying on that commerce with the colonies of the belligerent in time
of war from which it had been excluded in time of peace.  But this subject belongs to another part of this work.
cc The colonial monopoly, that fruitful source of wars" (Mr. Wheaton
writes in 1845), c" has nearly ceased; and with it the question as to the
right of neutrals to enjoy in war the commerce prohibited in time of
peace." (c)
The whole status of Consuls is considered in a later portion of this
Work.(d )
(a) " Commercium cum Turcis vetitum dicere lege omnes videntur. Et mihi
tamen non libet facile discedere h reguli certissimdn Juris Gentium, quod constituit
commercia, nee distinguit aliquid de Gentibus."-Albericus Gent., Advoc. Hispan.
cc. 25, 26.
Grotius, 1. ii. c 2, 5.
Martens, 1. iv. c. iii. s. 139.
K]lber, s. 69.
Mass6, Le Droit Commercial dans ses rapports avec le Droit des Gens et le Droit
Civil, t. i. 1. ii. p. 88.        (b) L. ii. c. 2, 13. 5.
(c) Hist. pp. 759-60.        (d) Et vide ante, Ch. ii. 1. xiii.




RIGHT  OF  ACQUISITION.                              195
*C IAPTER XII.                               [*237]
RIGHT OF ACQUISITION.
CCXXI. In the discussion upon the Rights of Territorial Inviolability,
the fact of rightful possession  has been assumed.(a)  "- Totum  auterm
jus," (the Roman lawyers say) cc consistit aut in adquirendo, aut in conservando, aut in minuendo.  Aut enim  hoc agitur, quemadmodum quid
cujusque fiat; aunt quemadmodum quis rem  vel jus suum  conservet: aut
quomodo alienet anut amittat."(b)
Before, however, we enter upon the consideration of the manner in
which Acquisitions are made by a State, it seems expedient to offer some
observations upon the nature of1. Possession (possessio); and of
2. Property (proprietas), or Dominion (domrnifum).
The Roman Law(c) is the repository from  which all *jurists, [*238
whether, writing on private or public law, have borrowed their
elementary learning  upon this point; and  it is with truth that a very
distinguished modern jurist observes, 4" Possessionis notio atque indoles,
ejus acquisitio vel omissio, accuratius a jurisconsultis Romanis definitre
sunt, ut ea jam non facti solum sed juris quoque esse dicatur."(d )
CCXXII. The generic term possession branches forth into various species.(e)
(a) " Les territoires de l'Europe ont e6t appropries k chaque nation h la suite de
revolutions successives, dans lesquelles la force, puis la marche lente et logique
des v6nenments, ont eu plus d'influence que le droit. L'invasion des peuples du
nord dans le monde remain: plus tard, la reunion des diffdrentes petites puissances
de la fdodalite en Etats plus forts et moins nombreux, sont, dans ce travail, les
deux faits principaux. Pendant ce long espace de temps, et depuis, des transformations diverses, des traites nombreux, se sont succede, et tout finit par constituer
le territoire des Etats actuels.
" I1 serait inutile de discuter sur la legitimite des premieres occupations qui se
rencontrent h l'origine de ces Etats." —Des Moyens d'acqu6rir le Domaine International, par Eugene Ortolan, s. lxi. p. 42.
(b) Dig. 1. i. t. iii. 41.
(c) Warnkoenig, Instit. Juris Roem. Privati, 1. ii. c. i. t. iii., c. ii. t. ii.
Puchta, Pandekten, kap. 2.
Mackeldey, Besond. TheiL. kap. 1. t. i.
Savigny, Besitzrecht.
Muhlenbruck, Doctrina Pandect. 1. ii. c. 2.
(d) Warnkcenig, Instit. Juris Romani Privati, s. 295.
In The Famna, 5 Robinson's Adm. Rep. pp. 114-16, Lord Stowell applies the rules
relating to Possession, &c., in the Institutes and Digests to decide a question of
International Law.
(e) Dig. xli. 2: " De acquirendk vel amittendh possessione."
Ib. xliii. 1l: " Uti possidetis."
Inst. ii. t. vi: " De usucapione."
"'Possessio appellata est, ut et Labeo ait, a sedibus, quasi positio, quia naturaliter tenetur ab eo, qui ei insistit; quam Greci KaroXriv dicunt."-Dig. xli. 2, 1.
" Qui jure familiaritatis amici fundum  ingreditur, non videtur possidere, quia
non eo animo ingressus est, ut possideat, licet corpore in fundo sit."-Ib. 41.
" Quod meo normine possideo possum, et alieno nomine possidere; nec enim
muto mihi causam possessionis, sed desino possidere, et alium possessorem ministerio meo facio. Nec idem est possidere, et alieno nomine possidere; nam is pos



196      PH ILLIMORE  ON  INTERNATIONAL  LAW.
That person is properZy said to possess a thing who both actually and
corporally retains it, and who desires and intends at the same time to
make it his own.
That person who, having no such desire or intention, by mere corporal act retains a thing, is, only in a gross and inaccurate sense, said to
possess it.
*That person who retains a thing in the conviction that he is
[     ]239] the rightful possessor of it, though he be mistaken, and be not
the rightful possessor, may acquire, by the operation of timze, a legal
title to it, and be protected by law in the possession of it (ad usucapionem
possicdet).
There are, therefore, three species of possession:
1. Natural possession, or the bare seizing and detaining a thing (naturalis possessio, sive nuda rei detentio).
2. Legal possession, by act and intention ( animzo.etfacto, de droit et
dce fait, possessio prolrie' sic dicta.(f) )
3. Possession by operation of time (civilispossessio).'CCXXIII. Dominion (dominium) is the fullest right which can be
exercised over a thing: the right of property, properly so called.
According to the ancient Roman Law, domeinium  could only be acquired by a Roman citizen, and through the medium of certain strict
formalities (,tin mancipio habere, exjure Quiritium  Domninz s.")  But
the Prmtor, following the dictates of natural equity (jus gentium), introduced a doctrine, which, without these formalities, secured to the stranger
(peregrinus) as well as the citizen, a dominion over the thing (in bonis,
bonitarium) which he had lawfully, and "jfure gentium"" acquired.
[*240]    *Justinian  abolished  altogether this distinction(g) between
[*240] the ancient and the Prietorian Equity, and established universally
the dominium jlure gentium.  The law, however, still recognised certain
sidet, cujus nomine possidetur. Procurator alienoe possessionis prMstat ministerium."-Ib. 18.
"Justa enim an injusta adversus ceteros possessio sit, in hoc interdicto nihil
refert; qualiscunque enim possessor hoc ipso, quod possessor est, plus juris habet,
quam ille, qui non possidet." —Ib. xliii. 17, 2.
"Creditores missos in possessionemr rei servandge causa interdicto uti possidetis
uti non posse; et merito, quia non possident. Idemque et in ceteris omnibus, qui
custodiie causa missi sunt in possessionem, dicendum est."-Ib. 17, 3, 8.
"Dejicitur is, qui possidet, sive civiliter, sive naturaliter possideat; nam  et
naturalis possessio ad hoc interdictum pertinet."-Ib. xliii. 16. 1. s. 9.
(f) "Si me in vacuam possessionem fundi Corneliani miseris, ego putarem me
in fundum Sempronianum missum, et in Cornelianum iero, non acquirem possesionem, nisi forte in nomine tantum erraverimus, in corpore consenserimus. Quoniam autem in corpore non consenserimus an a te tamen recedat possessio? quia
animo deponere et mutare nos possessionem posse et Celsus et Marcellus scribunt,
dubitari potest; et si animo acquiri possessio potest, numquid etiam acquisita est?
sed non puto errantem acquirere, ergo nec amittet possessionemr qui quodammodo
sub conditione recessit de possessione." —Dig. xli. 2, 34.
"Differentia inter dominium  et possessionem  hcc est, quod dominium nihilo
minus ejus manet, qui dominus esse non vult, possessio autem recedit ut quisque
constituit nolle possidere. Si quis igitur eS mente possessionem tradidit, ut postea
ei restituatur, desinit possidere."-Ib. 17, 1.
(g) Cod. vii. 25: De nudo jure Quiritium tollendo.
Warnkcenig, Instit. J. R. 1. ii. ch. i. t. 3.




RIGHT OF  ACQUISITION.                           197
modes of acquiri?,g property: these were either according to the jus gentizumn or the j/s civile.
The principal modes under the jus gentiznm  were:
1. Occupation (occupatio).
2. Natural increase (accessio).
3. Transfer (traclitio): either
c. inter vivos,
p. or by testament or succession.
The mode of acquisition under the jus civile was,
I. By the effect of a law (lege).
2. By a judicial sentence (adjuclicatione).
3. By the operation of time (vetuzstatis auctoritate, usucapione, prscriptione).:Dominion might suffer an interruption by the invasion of another
person (usur.patio).
1. By an overt act on the part of an individual (naturalis usurpatio);
2. By an adverse decision of a legal tribunal (civilis usur2atio).
As Dominion is acquired by the combination of the two elements of
fcct and intention, so, by the dissolution of these elements, or by the
contraryfcact and intention, it may be lost(h) or extinguished.(i)
The application of these principles of Roman jurisprudence to the system of International Law appears to have been readily made by Grotius
and other jurists; and without some acquaintance both with the language
and doctrine of the Roman *Law upon the subject of Possession [$241]
and Dominion, it is impossible correctly to understand and justly
to appreciate the writings of commentators upon International Law.
It will be well to recite, as a preface to the discussion upon the Rights
of Acquisition by a State, the doctrine and language of Bynkershoek:
"( Postquam Lex certos dominii acquirendi modos prxscripsit, hos sequemur."(lc)  From  Grotius(l) we learn that these modes of Acquisition
were:
1. By Occupation (occupatione derelicti).
2. By Treaty and Convention (pactionibus).
3. By Conquest (victorix jure).
And if Acquisition by Accession and by Prescription be considered as
corollaries to Occupation, and all cases of Transfer be held to fall under
the category of Treaty and Convention, the enumeration may be considered as sufficiently complete.(m)
(h) "' Quemadmodum nulla possessio acquiri nisi animo et corpore potest, ita nulla
omittitur nisi in qua utramquce in contrarium actum est."-Dig. xli. 2, 8.
(i) Vide post.             (k) Opera, iii. 254: De Dominio Maris.
(1) Lib. ii. c. ix. s. 11. p. 338.
(m) "Dominiumque rerum  ex naturali possessione ccepisse, Nerva filiUs ait,
ejusque rei vestigium remanere in his, qune terra, mari, cceloque capiuntur; nam
haec protinus eorum fieri, qui primi possessionem eorum apprehenderint. Item
bello capta, et insula in mari enata, et gemmse, lapilli, margaritoe in littoribus
invente ejus fiunt, qui primus eorum possessionem nactus est."-Dig. xli. 2. 1. i.
" Sed quemadmodum, cum Theatram commune sit, rectb tamen dici potest ejus
esse eum locum quem quisque occuparit: sic in urbe mundove communi non adversatur jus quo minus suum qaidque cujusque sit." -Cicero, De Fin. 1. iii. c. 20.
" Sunt autem privata nulla natura: sed aut veteri occupatione, ut qui quondam
in vacua venerunt: ant victoria, ut qui bello potiti sunt; ant lege, pactione, con



198      P HILLIMORE  ON  INTER N ATIONAL  LAW.
CCXXIV. But Acquisition itself is divided into two classes; Original
(acquisitio originaria) and Derivative (clerivativa, facto heoninis, velfacto
legis).
Under the former head may be classed Acquisition by Occupation,
Accession, and Prescription: under the latter, all Acquisitions by Treaty
[*242] or Convention, including Transfer *(traditio), Gift, Sale, Exchange, Inheritance by Testament or Succession, and Acquisitions by Conquest.(n)
CCXXV. With respect to Original Acquisition, we have first to consider under this head the title which a nation acquires by occupation.
Discovery, Use, and Settlement are all ingredients of that Occzpcation
which constitutes a valid title to national acquisitions.
CCXXVI. Discovery, according  to  the acknowledged  practice  of
nations, whether originally founded upon  Comity or Strict Right, furnishes an inchoate title to possession in the discoverer. But the discoverer
must either, in the first instance, be fortified by the public authority and
by a commission from the State of which he is a member, or his discovery
must be subsequently(o) adopted by that State, otherwise it does not fall,
with respect to the protection of the individual, under the cognizance of
International Law, except in a limited degree; that is to say, the indi[*243] vidual has a natural title to be undisturbed in the possession of
*the territory which he occupies, as against all third Powers. It
will be a question belonging to the Municipal Law of his own country,
whether such possessions do not belong to her, and whether he must not
hold them under her authority and by her permission. Such would be
the case with the possessions of an English subject. But, as far as International Law is concerned, Vattel, following the rules of natural equity
incorporated into Roman Jurisprudence, says justly: "Tous les hommes
ont un droit 6gal aux choses qui ne sent point encore tomb6es dans la
propriRt6 de quelqu'un; et ces choses-la appartiennent au premier occupant. Lors done qu'une nation trouve un pays inhabit6 et sans maitre,
elle peut le'gitimement s'en emparer; et apres qu'elle a suffisamment
ditione, sort, ex quo fit ut ager Arpinas Arpinatum dicatur: Tusculanus Tusculanorum: similisque est privatorum possessionum descriptio, ex quo quia suum
cujusque fit, eorum, qufe natura fuerunt communia, quod cuique obtigit, id quisque teneat: eo si qui sibi plus appetet; violabit jus humante societatis."-De Off.
1. i. c. 8.
(n) The effect of Christianity upon the doctrines of possession and property, or
dominion, was as beneficial as it was upon all other doctrines which are conservative of social order and productive of human happiness. Ascribing to God " the
world and all that is therein," it nevertheless consecrated the rights of Property;
and though for a season the first professors of Christianity had their goods in common, and no private property, yet this was an accidental arrangement, growing out of
the particular exigencies of a particular epoch, and ceasing when they ceased. The
arrangement moreover, while it lasted, was voluntary; and even during its continuance a respect for the strict rights of property was carefully inculcated and preserved.-See Troplong, De l'Influence du Chritianisme sur le Droit Civil des
Romains, p. 121.
(o) " Ratihabitio constituit tuum negotium, quod ab initio tuum non erat, sed tui
contemplatione gestum." —Dig. iii. 5. vi. 9. De Negotiis gestis.
" Sed etsi non vero procuratori solvam, ratum autem habet dominus, quod solutum est, liberatio contingit: rati enim habitio mandato comparatur."'-Dig. xlvi. 3.
xii. 4. de Solut.: cf. Dig. xliii. 16. i. 14. de vi et de vi arm.




RIGHT  OF ACQUISITION.                          199
marque sa volont a' cet 6gard, un autre ne pent l'en depouiller.  C'est
ainsi que des navigateurs, allant a la decouverte, munis d'une commission
de leur souverain, et rencontrant des iles, ou d'autres terres dclsertes, en
out pris possession au noIn de leur nation: et commun6ment ce titre a
6te respect6, pourvu q'une possession reelle Fait suivi de pres."(p)
CCXXVII. In the various discussions which took place between the
United States and Great Britain with respect to the right of the Oregon
Territory, the title resulting from discovery was attempted to be pushed
far beyond the limits of this doctrine, even to the extent of maintaining,
that the first discovery by an uncomrmissionecl merchant-ship gave priority
to the claims of America upon these regions.  But such a position appears opposed to all the authorities upon International Law, and it was
steadily denied by Great Britain.
CCXXVIII. The inchoate title, then, must in the first place be fortified by the previous commission or confirmed by the subsequent Ratification of the State to which the discoverer belongs.  So far, according to
the practice of nations, strengthened in some degree by the principles of
natural *Law and the reason of the thing, the fact of authorised [L244]
discovery may be said to found the right to occupy.
" It is to be observed, then," (Lord Stowell says,) " that all corporeal
property depends very much upon occupancy. With respect to the
origin of property, this is the sole foundation: quod  tullius est ratione
naturali occupanti conceditur.  So with regard to transfer also, it is
universally held, in all systems of jurisprudence, that to consummate the
right of property, a person must unite the right of the thing with possession. A question has indeed been made by some writers, whether this
necessity proceeds from what they call the natural law of nations, or from
that which is only conventional.  Grotius seems to consider it as proceeding only from civil institutions. Puffendorf and Pothier go farther. All
concur, however, in holding it to be a necessary principle of jurisprudence, that, to complete the right of property, the right to the thing and
the possession of the thing itself should be united; or, according to the
technical expression, borrowed either from the civil law, or, as Barbeyrac
explains it, from the commentators on the Canon Law, that there should
be both the juls in rem  and the jus i~n re.  This is the general law of
property, and applies, I conceive, no less to the right of territory than
to other rights. Even in newly discovered countries, where a title is
meant to be established for the first time, some act of possession is usually
done and proclaimed as a notification of the fact.
" In transfer, surely, where the former rights of others are to be super.
seded and extinguished, it cannot be less necessary that such a change
should be indicated by some public acts, that all who are deeply interested in the event, as the inhabitants of such settlements, may be informed under whose dominion and under what laws they are to live.
This I conceive to be the general propriety of principle on the subject,
and no less applicable to cases of territory, than to property of every
other description."(q)
(p) t" Comment une Nation s'approprie un Pays d6sert." —Vattel, tom. i. 1. i. c.
18. s. 207.
(q) The Fama, 5 Rob. Adm. Rep. pp. 114-116.




200    PHILLIMORE ON  INTERNATIONAL LAW.
245  CCXXIX. The next step is to consider what facts constitute
[2451 ]an Occupation; what are the signs and emblems of its having
taken place: for it is a clear principle of International Law, that the
title may not be concealed, that the intent to occupy must be manifested
by some overt or external acts. The language of the commentators is
clear and full upon this point.
c" Simul discimnus quomodo res in proprietatem  iverint: non anrinm
actu solo; neque enim scire alii poterant quid alii suum esse vellent, ut
eo abstinerent; et idemn velle plures poterant: sed pacto quodam  ant
expresso, ut per divisionem, ant tacito, ut per occupationem."(r)
Again:,, Requiritur autem corporalis qucedamn  possessio ad dominium  adipiscendum." (s)
And again:
cc Proeter animum possessionemr desidero, sed qualemcunque, quse probet, me nec corpore desiisse possidere."(t)
These acts, then, by the common consent of nations, must be use of
and settlement in the discovered territories.
CCXXX. By a Bull promulgated in 1454, Pope Nicholas V. gave to
the crown of Portugal the Empire of Guinea, and the power to subdue
all the barbarous nations therein, and prohibited the access of all other
nations thereto.(u) By a Bull promulgated in 1493, Pope Alexander VI.
granted to the crown of Spain all lands already, or hereafter discovered,
lying to the west and south of the Azores, drawing a line from one pole
to the other, a hundred leagues from the west of the Azores.  This pontifical decision was subsequently ratified by the Treaty of Tordesillas in
1494,(v) and confirmed by Pope Julius in 1506. These papal grants to,
[246]  and arbitrations between, Spain and Portugal, as well *as the
conventions on this subject between the lay powers themselves,
were always utterly disregarded by Great Britain, France, and Holland,
though not altogether abandoned by the grantees, till their futility had
been demonstrated by the result of many sanguinary wars.(w)  Vattel
is very clear upon this point: a BMais c'est une question de savoir si une
nation peut s'approprier ainsi, par une simple prise de possession, de.s
pays qu'elle n'occupe pas r6ellement, et s'en r-server de cette mani6re
beaucoup plus qu'elle n'est capable de peupler et de cultiver. II n'est
pas difficile de decider qu'une pareille pr6tention serait absolumnent contraire au droit naturel, et oppos6e aux vues de la nature, qui, destinant
toute la terre aux besoins des hommes en g6n6ral, ne donne a chaque
peuple le droit de s'approprier un pays, que pour les usages qu'elle en
tire, et non pour empecher que d'autres en profitent.  Le droit des gens
ne reconnaitra done la proprie'te et la souverainete d'une nation que sur
les payLs vides qu'elle aura occupes reellement et de fait, dans lesquels
(r) Grotius, 1. ii. c. ii. 2, s. 5.        (s) Grotius, 1. ii. c. viii. s. 3.
(t) Bynkershoek, De Dom. Maris, c. i.
(u) Gfinther, I Kap. 6, II Kap. 2, s. 10.   (v) Martens, Rec. t. i. p. 372.
(w) Even in modern times Spain has claimed the north-western coasts of America
upon the sole ground of having first discovered them.




RIGHT OF ACQUISITION.                               201
elle aura formei un etablissement, ou dont elle tirera un usage actuel.(x)
En effet, lorsque des navigateurs ont rencontr6 des pays descrts, dans
lesquels ceux des autres nations avaient dresse en passant quelque monument, pour marquer leur prise de possession, ils ne se sont pas plus mis
en peine de cette vaine c6remonie que de la disposition des papes, qui
partagerent une grand partie du monde entre les couronnes de Castille et
de Portugal."(y)  Indeed, writers on International Law agree that Use
and Settlement, or, in other words, continuous use, are indispensable elements of occupation properly so called.  The mere erection of crosses,
*landmarks, and inscriptions is ineffectual for acquiring or main- [*247]
taining an exclusive title to a country of which no real use is [27]
made. (z)
CCXXXI. But when occupation by Use and Settlement have followed
upon discovery, it is a clear proposition of Law, that there exists that
corporeal possession (corporalis quwdanm possessio,(a) detentio corporalis(b)) which confers an exclusive title upon the occupant, and the
Domi~nius emninens, as Jurists speak, upon the country whose agent
he is.
CCXXXII. Next arises the difficult question, as to how much territory is occupied by such a settlement? to what extent the corporal possession must go, in order to give a title to more than is actually inhabited?(c)-what, in fact, is the International doctrine of contiguity (ratio
vicinitatis)?
CCXXXIII. Vattel says, that when several nations possess and occupy
a desert(d) and unoccupied land, they should agree upon an equitable
partition between themselves; if they cannot do this, each nation  has
a right of empire and domain *in the parts where they first  *248]
made their settlements.  This remark, however, does not afford [248
much assistance towards a solution of the difficulty.(e)
In truth, it is impossible to do more than lay down a broad general
(x) "Quam est hic fortunatus putandus, cui soli ver6 licet omnia, non Quiritizm,
sed sapientitum jure, pro suis vindicare! nec civili nexo, sed communi lege naturce,
quaw vetat ullam rem esse cujusquam, nisi ejus qui tractare et uti sciat."-Cicero,
De Republica, 1. i. c. 17.
(y) L. i. c. xviii. s. 208.
(z) Klfiber, s. 126. Wheaton, Elem. i. c. 4.
(a) Grotius, 1. ii. c. viii. s. 3.
(b) "Cultura utique et cura agri possessionem quam  maxims indicat. Neque
enim desidero, vel desideravi unquam, ut tune demum videatur quis possidere, si
res mobiles, ad instar testudinum, dorso ferat suo, vel rebus immobilibus incubet
corpore, ut gallinte solent incubare ovis. Prseter animum possessionem desidero,
sed qualemcunque, quse probet, me nec corpore desiisse possidere.... Igitur
quicquid dicat Titius, quicquid Mmevius, ex possessione jure naturali et Gentium'
suspenditur dominium, nisi pacta do'minium, citra possessionem, defendant, ut defendit jus cujusque civitatis proprium."-Bynkershoek, Op. t. vi., De Dominio
Maris, pp. 360, 361.
(c) " Et adipiscimur possessionem corpore et animo, neque per se animo, anut
per se corpore. Quod autem diximus et corpore et animo acquirere nos debere
possessionem, non utique ita accipiendum est, ut qui fundumpossidere velit, omnes
glebas circumambulet, sed sufficit quamlibet partem ejus fundi introire, dum hac
mente et cogitatione sit, uti totam fundum usque ad terminum velit possidere." —
Dig. xli. 2. 3. 1.
(d) Ibid. 7. 5.                           (e) Vattel, 1. ii. s. 95..
AUGUST, 1854.-14




202      PHILLIMORE ON  INTE R NATIONAL LAW.
rule aided in some degree by the practice of nations, to be applied to
each case as it may arise, and modified in some degree by any particular
circumstance which may belong to it.
CCXXXIV. Some natural circumstances, however, seem  to distinguish the rule in its application to a continent or an island.
With respect to a continent.-The occupation of a portion of the
sea-coast gives a right to the usual protecting limit at sea, which is held
to exist in all old countries. The right of dominion would extend from
the portion of the coast actually and duly occupied inland, so far as the
country was uninhabited, and so far as it might fairly be considered to
have the occupied sea-board for its natural outlet to other nations.
CCXXXV. A remarkable instance of an International dispute, arising out of the doctrine of contiguity, is afforded by the discussion, which
arose upon the interpretation of the language of the Treaty of Utrecht
relating to the cessions of France and England.  The expressions were
as follows:
"Dominus Rex Christianissimus eodum quo pacis prsesentis Ratihabitiones commutabuntur die, DominTe Reginse Magnse Brittanise litteras,
tabulasve solennes et authenticas tradendas curabit, quarum vigore, insulam sancti Christophori, per subditos Britannicos sigillatim dehinc possidendam; Novam  Scotiam  quoque, sive Acadiam totam, imnitibus suis
antiquis conmprehtensam, ut et Portus Regii urbem, nune Annapolin regiamz dictanm, csteraque omnia in istis regionibus quwe ab iisdemn terris
et insulis 2pendent, unacum  earundum  insularum, terrarum, et locorum.*249  dlominio, proprietate, *possessione et quocunque jure sive per
Li    pacta, sive alio  modo qusesito, quod Rex  Christianissimus,
corona Gallie, aut ejusdem  subditi quicunque ad dictas insulas, terras et loca, eorumque incolas, hactenus habuerunt, ReginTe Magnse
Britannire ejusdemque coron.e in perpetuum cedi constabit et transferri, prout eadem omnia nune cedit ac transfert Rex Christianissimus;
idque tam amplis modo et forma ut regis Christianissimi subditis in dictis
maribus, sinubus, aliisque locis ad littora Novre Scotis, ea nempe quse
Eurum  respiciunt, intra triginta leucas, incipiendo ab insula, vulgo
Sable dicta, eaque inclusa et Africum versus pergendo, omni picatura in
posterium interdicatur.(f)
The words in Italics led to a variety of demands on the part of Great
Britain, with respect to the territories included under these words.  The
French replied: "Les mots de lirmitibus et de comprehensam  n'ont
jamais ete plac6s nullepart pour donner de l'extension. —La phrase (iut et)
que citent les Commissaires Anglois, ne donne aucune extension a la
cession, et ne peut pas operer sans le dire, et par une vertu secrete, que
ce qui n'etoit pas Acadie avant le trai't soit devenu Acadie apres le
traite; ni que les pays circonvoisins ou les confins de l'Acadie, en soient
devenus des d6pendances; ni que l'accessoire soit six eu huit fois plus
considerable que le principal.  Jamais on ne prouvera, que par les
acparte'nances et les dependences d'un pays, on doive entendre ceux qui
(f) Treaty of Utrecht, 1713:-Schmauss, Corpus Jur. Gent. Academ., vol. ii. p.
1332.




RIGHaT  O   ACQUISITION.                        203
en sont voisins.  Proximit6 et dependance sont deux ind6es diffdrentes,
distinctes; leur confusion entraineroit celle des limites de tous les
etats."(g) The dissentions on this subject were the principal cause of
the war which broke out in 1756. A similar quarrel arose with respect
to provinces claimed from Germany by the *Chambers of Re- [250]
union of France.  By the following words in the 12th article of [5]
the Peace of Munster (1648)-"- Supremum dominium, jura superioritatis aliagui omnia in Episcopatus Metensem, Tallensem et Viradunensem, urbesque cognomines eorumque Episcopatuum districtus," &c., it
was contended that the throne of France was exempted from various
feudal liabilities to the German Empire, to which these bishoprics had
been previously subject, but, as Giinther(h) remarks without any foundation in justice.
The United States of America, during the pendency of the negotiations with England, with respect to the Oregon boundary, asserted,
cc that a nation discovering a country, by entering the mouth of its principal river at the sea-coast, must necessarily be allowed to claim and
hold as great an extent of the interior country as was described by the
course of such principal river and its tributory streams."(i)
But this proposition was strenuously denied by Great Britain upon
various grounds:-1. That no such right accrued at all to mere discovery; 2. Not to discovery by a private individual.  Great Britain
"was yet to be informed (she said) under what principles or usage,
among the nations of Europe, his having first entered and discovered the
mouth of the River Columbia, admitting this to have been the fact, was to
carry after it such a portion of the interior country as was alleged.  Great
Britain entered her dissent from such a claim; and least of all did she
admit the circumstance of a merchant vessel of the United States having penetrated the coast of that continent at Columbia River, was to be
taken to extend a claim  in favour of the United States along the same
coast, both above and below, that river, over latitudes that had been previously discovered and explored by Great Britain herself, in expeditions
*fitted out under the authority and with the resources of the [*251]
nation."(k)
CCXXXVI. If the circumstances had been these, viz. that an actual
settlement had been grafted upon a discovery made by an authorised
public officer of a nation at the mouth of a river, the law would not have
been unreasonably applied.
There appears to be no variance in the opinions of writers upon International Law as to this point. They all agree that the Right of
Occupation incident to a settlement, such as has been described, extends
over all territory actually and bona fide occupied, over all that is
essential to the real use of the settlers, although the use be only inchoate,
and not fully developed; over all, in fact, that is necessary for the
(g) Mamoires des Commissaires de S. M. tres-Chr6tienne &c., tom. i. R. 1. pp.
54, 62, 183.
(A) Europ. V61lkerrechts, vol. ii. p. 180. See also Bolingbroke's Letters on the
Study and Use of History, 1. vii. p. 273. (ed. 1752).
(i) State Papers, vol. iii. p. 506.    (k) State Papers, vol. xiii. p. 509~




204     PIIILLI MORE  ON INTERNATIONAL LAW.
integrity and security of the possession, such necessity being measured
by the principle already applied to the parts of the sea adjacent to the
coasts, namely, "ibi finitur imperium, tbi finitur armorurn vis."  The
application of the principle to a territorial boundary is, of course, dependent in each case upon details of the particular topography.
Martens, dissussing " jusqu'oui s'etend l'Occupation," writes with as
much precision and clearness upon the point as the subject will admit
of. "' Une nation qui occupe un district doit etre censee avoir occupe
toutes les parties vacantes qui le composent; sa propriete s'6tend meme
sur les places qu'elle laisse incultes, et sur celles dont elle permet l'usage
a tous.  Les limites de son territoire sont ou naturelles (telles que la
mer, les rivieres, les eaux, les montagnes, les forets) ou artificielles (telles
que des barribres des bornes, des poteaux, etc.).  Les montagnes, les
forets, les bruyeres, etc., qui sdparent le territoire de deux nations, sont
censdes appartenir a chacune des deux jusqu'a la ligne qui forme le
milieu, a mtoins qu'on ne soit convenu de r'gler differemment les limites,
ou de les neutraliser.  A d6faut des limites certaines, le droit d'une
nation d'exclure des nations etrangeres des terres ou iles voisines ne
*252  *rs'6tend pas au-dela du district qu'elle cultive, ou duquel du
L-]  tmoins elle peut prouver l'occupation; a moins que, de part et
d'autre, l'on ne soit convenu de ne pas occuper certains districts, iles,
etc. en les declarant neutres."(l)
CCXXXVII. This middle distance mentioned by Martens appears,
in cases where there is no sea-coast boundary, to be recognised in
practice.
In the negotiations between Spain and the United States of America
repecting the western boundary of Louisiana, the latter country laid
down with accuracy and clearness certain propositions of law upon this
subject, and which fortify the opinion advanced in the foregoing paragraphs.  ", The principles" (America said on this occasion) "which are
applicable to the case, are such as are dictated by reason, and have been
adopted in practice by European Powers in the discoveries and acquisitions which they have respectively made in the New World.  They are
few, simple, intelligible, and, at the same time, founded in strict justice.
The first of these is, that when any European nation takes possession of
any extent of sea-coast, that possession is understood as extending into
the interior country, to the sources of the rivers emptying within that
coast, to all their branches, and the country they cover, and to give it a
right, in exclusion of all other nations, to the same.  (See MIemoire de
I'Amne'rique, p. 116.).  It is evident that some rule or principle must
govern the rights of European powers in regard to each other, in all
such cases: and it is certain that none can be adopted, in those to which
it applies, more reasonable or just than the present one.  Many weighty
considerations show the propriety of it.  Nature seems to have destined
a range of territory so described for the same society; to have connected
its several parts together by the ties of a common interest, and to have
(I) Martens, Droit des Gens, 1. ii. c. 1. s. 38.




RIG lIT OF ACQUISITION.                        205
detached them *from others.  If this principle is departed from, [253
it must be by attaching to such discovery and possession a more [53
enlarged or contracted scope of acquisition; but a slight attention to
the subject will demonstrate the absurdity of either.  The latter would
be to restrict the rights of an European power, who discovered and took
possession of a new country, to the spot on which its troops or settlements
rested; a doctrine which has been totally disclaimed by all the powers
who made discoveries and acquired possessions in America. The other
extreme would be equally improper; that is, that the nation who made
such discovery should, in all cases, be entitled to the whole of the
territory so discovered.  In the case of an island, whose extent was
seen, which might be soon sailed round and preserved by a few forts, it
may apply with justice; but in that of a continent it would be absolutely
absurd. Accordingly we find, that this opposite extreme has been
equally disclaimed and disavowed by the doctrine and practice of
European nations. The great continent of America, north and south,
was never claimed or held by any one European nation; nor was either
great section of it. Their pretensions have been already bounded by
more moderate and rational principles.  The one laid down has obtained
general assent.'" This principle was completely established in the controversy which
produced the war of 1755.  Great Britain contended that she had a
right, founded on the discovery and possession of such territory, to define
its boundaries by given latitudes in grants to individuals, retaining the
sovereignty to herself, from sea to sea.  This pretension on her part was
opposed by France and Spain, and it was finally abandoned by Great
Britain in the treaty of 1763, which established the Mississippi as the
western boundary of her possession.  It was opposed by France and
Spain, on the principle here insisted on, which of course gives it the
highest possible sanction in the present case.
"4 The second is, that whenever one European nation *makes
a discovery and takes possession of any portion of that contin- [*254]
ent,(m) and another afterwards does the same at some distance from it,
where the boundary between them is not determined by the principle
above mentioned, the middle distance becomes such of course. The
justice and propriety of this rule is too obvious to require illustration.
" A third rule is, that whenever any European nation has thus acquired
a right to any portion of territory on that continent, that right can never
be diminished or affected by any other power, by virtue of purchases
made, by grants or conquests of the natives within the limits thereof,
It is believed that this principle has been admitted and acted on
invariably since the discovery of America, in respect to their possessions
there, by all the European powers.  It is particularly illustrated by the
stipulations of their most important treaties concerning those possessions
and the practice under them, viz. the Treaty of Utrecht in 1713, and
that of Paris in 1763.  In conformity with the 10th Article of the first(m) As to the character of the early acquisitions made by the East India Company, see Speech on Motion relative to the Speech from the Throne; Burke's Works,
vol. iv. p. 161 and note.




206     PHILLItUORE ON INTERNATIONAL LAW.
mentioned Treaty, the boundary between Canada and Louisiana on the
one side, and the Hudson Bay and North-western Companies on the
other, was established by Commissaries, by a line to commence at a
Cape or Promontory on the Ocean in 58~ 30t north latitude, to run
thence south-westwardly to latitude 490 north from  the Equator, and
along that line indefinitely westward.  Since that time, no attempt has
been made to extend the limits of Louisiana or Canada to the north of
that line or of those Companies to the south of it, by purchase, conquest,
or grants from the Indians.  By the Treaty of Paris, 1763, the boundary
between the present United States and Florida and Louisiana was established by a line to run through the middle of the Mississippi from its
*255] source *to the river Iberville, and through that river to the
L]I25) Ocean.  Since that time, no attempts have been made, by those
states since their independence, or by Great Britain before it, to extend
their possessions westward of that line, or of Spain to extend hers eastward of it, by virtue of such acquisitions made of the Indians. These
facts prove incontestably that this principle is not only just in itself,
but that it has been invariably observed by all the powers holding
possessions in America, in all questions to which it applies relative to
those possessions."(n)
CCXXXVIII. Here it should be remarked that in those instances in
which(o) rivers form the boundary between two States, all nations appear to have acquiesced in the wisdom and justice of the rules laid down
in the Roman Law upon this subject.
CCXXXIX. The law  of property as incident to Neighbourhood
(vicinitas) or Contiguity was discussed under many and various heads(p)
in that system of jurisprudence. But it was especially treated of in the
following cases relating to fluvial Accessions.
Proceeding upon the principle that the river itself was "comnmunis
usus," but that the bed of it was so much land belonging to the proprietors of the banks, though the property was in abeyance while covered
with water, and that the mid-channel was the line of demarcation between
the neighbours, it decided1. That if an island emerged in the stream, the property of it accrued
to the owner of the nearest bank.
2. If it emerged in the middle of the stream, the property was
[*256] *divided between the arcifinii, as the opposite proprietors were
called.
3. If the channel of the river was left dry (alveus derelictus) it was
also equally apportioned between the owners of the banks.
4. If the river abandoned its new channel, a difference of opinion
existed whether that channel also accrued in equal moieties to the owners
of the banks, or whether it reverted to the dominion of the ancient pro(n) State Papers, vol. v. pp. 327-329.
(o) Vattel, i. c. xxii. s. 266: Des Fleuves, des Rivieres et des Lacs.
(p) Dig. xliii. t. xii. 1. i. s. 7. Fluminibus, &c.
Instit. 1. ii. t. i. ss. 20, 21. De Rerum divis. &c.
Cod. vii. 41. De Alluvionibus.
Dig. xli. t. 1. 7. 1. 29. 1. 30. 1. 56. 1. 65. De Adquir. rerum domin.




RIG HT OF ACQUISITION.                        207
prietor (cujus antea fuit).  The former opinion was given by Caius, the
latter by Pomponius, and both were incorporated in the Digest; though
the former only appeared in the Institutes with an intimation that it was
doubtful Law (sed vix, est ud id obtineat), as indeed it appears to be,
though much might depend upon the length of time during which the
new channel had been occupied.
5. All alluvial deposits belonged jure gentium, that is, by natural
law, to the owner of the bank to which they adhered.
6. If the violence of the stream (vis fluninis) had detached a portion
of the soil from one bank and carried it over to the other side, the Law
decided, that if it became firmly imbedded so as to be irremovable, it
belonged to the owner of that side, otherwise it might be vindicated by
its old proprietor.
CCXL. Modern times have furnished us with a very important practical commentary upon this ancient rule of Public Law.
In the case of the Anna, captured by a British privateer and brought
into the High Court of Admiralty for adjudication, Lord Stowell made
the following observations: —" When the ship was brought into this
country, a claim was given of a grave nature, alleging a violation of the
territory of the United States of America. This great leading fact has
very properly been made a matter of much discussion, and charts have
been laid before the Court to show the place of capture, though with
different representations from the adverse parties. The capture was
made, it seems, at the mouth of the River Mississippi, and, as it is contended in *the claim, within the boundaries of the United States. *257
We all know that the rule of Law on this subject is, terre domi-  25
nium finitur, ubi finitur armorum vis; and since the introduction of
fire-arms, that distance has usually been recognised to be about three
miles from shore.  But it so happens in this case, that a question arises
as to what is to be deemed the shore, since there are a number of little
mud-islands composed of earth and trees drifted down by the river, which
form a kind of portico to the main land.  It is contended that these are
not to be considered as any part of the territory of America, that they
are a sort of' n.o man's land,' not of consistency enough to support the
purposes of life, uninhabited, and resorted to only for shooting and
taking birds' nests.  It is argued that the line of territory is to be taken
from the Balise, which is a fort raised on made land by the former Spanish possessors.  I am of a different opinion; I think that the protection
of territory is to be reckoned from these islands; and that they are the
natural appendages of the coast on which they border, and from which,
indeed, they are formed. Their elements are derived immediately from
the territory, and on the principle of alluvium and increment, on which
so much is to be found in the books of Law, quod vis fluminis de tuo
predio detraxerit, et vicino predio attulerit, palam  tuumn remanet,(q)
even if it had been carried over to an adjoining territory. Consider
what the consequence would be if lands of this description were not considered as appendant to the main land, and as comprised within the
(q) Inst. 1. Ri. tit. i. S. 21.




208      PHILLIMORE  ON  INTERNATIONAL  LAW.
bounds of territory. If they do not belong to the United States of America, any other power might occupy them; they might be embanked and
fortified.  What a thorn would this be in the side of America I It is
physically possible, at least, that they might be so occupied by European
nations, and then the command of the river would be no longer in Ame[*258] rica, *but in such settlements.  The possibility of such a consequence is enough to expose the fallacy of any arguments that
are addressed to show that these islands are not to be considered as part
of the territory of America.  Whether they are composed of earth or
solid rock, will not vary the right of dominion; for the right of dominion
does not depend upon the texture of the soil.  I am of opinion that the
right of territory is to be reckoned from those islands."(Q)
It was not without reason that the ancients worshipped the God Terniznus on account of the fidelity with which he preserved the Rights of
Property between nations as well as individuals, and because they saw
that if his jurisdiction were to cease, quarrels would be endless.
" Tu populos urbesque et regna ingentia finis."(s)
The River and the Mountain are not necessary land-marks;(t) there
may be, and often are, artificial landmarks wholly irrespective of any
natural boundaries. In these cases, the change in the course of the
river has no effect upon the property.  But in countries which have no
other limit than a river, there is a distinction to be taken, according to
Grotius, between a change made in the course of a river by imperceptible
degrees, and a change made all at once.  In the "former case,
[*259] the river, being the same, continues to be the boundary; in the
latter, the river leaving its old channel all at once, it is no longer
reckoned the same: the old bed of the river continues to be the boundary.
CCXLI. The nature of Occupation is not confined to any one class or
description; it must be a beneficial use and occupation (le travail d'appropriation;(v) ) but it may be by a settlement for the purpose of prosecuting a particular trade, such as a fishery, or for working mines, or
pastoral occupations, as well as agriculture, though Bynkershoek is cor(r) The Anna, 5 Robinson's A. R. p. 373.
(s)       "Conveniunt celebrantque dapes vicinia simplex,
Et cantant laudes, Termine sancte, tuas.
Tu populos urbesque et regna ingentia finis;
Omnis erit sine te litigiosus ager.
Nulla tibi ambitio est: nullo corrumperis auro,
Legitim a servas credita rura fide."
Ovid. Fasti.
(t) Grotius, 1. ii. c. iii. ss. 16, 17.
Heffters, s. 66: Grenzen der Staatsgebiete.
Traite des Limites entre la Brasil et la iR6publique Orientale de l'Uruguay,
Annuaire des deux Mondes, 1851-2. Appendix, p. 985.
Kliiber, s. 133.
Gunther, II. Kap. 4.
Rutherforth, b. ii. c. ix. vii. p. 491. (ed Baltimore, 1832.)
(v) Eug. Ortolan, Dom. Intern. p. 37.




RIGHT  OF ACQUISITION.                          209
reet in saying, cc cultura utique et cura agri possessionem quam maxima
indicat." (x)
Vattel justly maintains that the pastoral occupation of the Arabs entitled them to the exclusive possession of the regions which they inhabit.
itSi les Arabes pasteurs voulaient cultiver soigneusement la terre, un
moindre espace pourrait leur suffire.  Cependant, aucune autre nation
n'est en droit de les resserrer, a moins qu'elle ne manquat absolumnent
de terre; car enfin ils posse'dent leur pays; ils s'en servent a leur maniere;
ils en tirent un usage convenable a leur genre de vie; sur lequel ils ne
regoivent la loi de personne.(y)
It has been truly observed that, ccagreeably to this rule, the North
American Indians would have been entitled to have excluded the British
fur-traders from their hunting grounds; and not having done so, the latter must be considered as having been admitted to a joint occupation of the
territory, and thus to have become invested with a similar right of excluding strangers from such portions of the country as their own industrial operations pervade."(z)
*CCXLII. A  similar settlement was founded by the British   260
and Russian Fur Companies in North America.                     [260
The chief portion of the Oregon Territory is valuable solely for the
fur-bearing animals which it produces. Various establishments in different parts of this territory organised a system for securing the preservation of these animals, and exercised for these purposes a control over
the native population. This was rightly contended to be the only exercise of proprietary right  of which these particular regions at that time
were susceptible; and to mark that a beneficial use was made of the whole
territory by the occupants.
CCXLIII. It should be mentioned that the practice of nations in both
hemispheres is to acknowledge, in favour of any civilized nation making
a settlement in an uncivilized country, a right of pre-emptiom, of the conti!guous territory from the native inhabitants as against any other civilized
nation.(a)  It is a right claimed by Great Britain with respect to her
Austrian settlements, especially New Zealand; and by the United States
of America with respect to the Indians in their back States.(b)
CCXLIV. The Bulls of Alexander VI. reserved from  the grant to
Spain all lands previously acquired by any Christian nation.  It is
much to be lamented, both for the influence of Christianity and the
honour of Europe, that the regard, which has been shown of late years,
for the rights of natives in those countries, into which the overflowings
of European population have been poured, was not exhibited at an earlier
period.
It may indeed be justly said, that the Earth was intended by God to
supply the wants of the general family of mankind, and that the cultivation of the soil is an obligation *imposed upon man: and it seems  261
a fair conclusion from  these premises, that when the population [261'of a country exceeds the means of support which that country can afford,
(x) De Dominio Maris, vol. vi. c. i. p. 360.  (y) Vattel, i. ii. s. 97.
(z) The Oregon Question, a pamphlet by Edward J. Wallace, 1846, p. 25.
(a) Wallace's Pamphlet, p. 28.      (b) Twiss, Oregon, p. 166.




210   PHILLIMORE ON INTERNATIONAL LAW.
they have a right, not only to occupy uninhabited districts (which, indeed, they would be entitled to do irrespectively of this emergency), but
also to make settlements in countries capable of supporting large numbers by cultivation, but at present wandered over by nomade or hunting
tribes.  Vattel goes further, and gives a right to expel by force the inhabitants of a country, who, refusing to cultivate the soil, live entirely
by rapine on their neighbours; and such people, like the modern Buccaneers in the Chinese Seas, may lawfully be treated as pirates.
CCXLV. To return, however, to the previous question. Vattel says:
cc Ceux qui retiennent encore cce genre de vie oisif, usurpent plus de terrain qu'ils n'en auraient besoin avec un travail honnete, et ils ne peuvent
se plaindre, si d'autres nations, plus laborieuses et trop resserr6es, viennent en occuper une partie.  Ainsi, tandis que la conquete des empires
polic6s du Pe'ron et de Mexique a ete une usurpation criante, I'6tablissement de plusieurs colonies dans le continent de l'Ame'rizue septentrioncale
pouvait, en se contenant dans de justes bornes, n'avoir rien que de tres16gitime.  Les peuples de ces vastes contr6es les parcouraient plutot
qu'ils ne les habitaient."(c)
And again: "c On ne s'ecarte done point des vues de la nature, en resserrant les sauvages dans des bornes plus 6troites. Cependant, on ne pent
que louer la moderation des Pzuritains Anglais, qui les premiers s'6tablirent clans la Nouvelle Angleterre. Quoique munis d'une charte de leur
souverain, ils acheterent des sauvages le terrain qu'ils voulaient occuper.
Ce louable exemple fuit suivi par * Guillaume Penn et la colonie
[V2621 de Quackers, qu'il conduisit dans la Pennsylvanie."(d)
Though it is to be hoped that this comparison in favour of Great Britain is, in great measure, founded in justice, it cannot be denied that
she is not without her share in the guilt of forcibly dispossessing and
exterminating unoffending inhabitants of countries with whom she had
no just cause of war.  c"The patent granted by King Henry VII. of
England to John Cabot and his sons authorised them   to seek out and
discover all islands, regions, and provinces whatsoever that may belong
to heathens and infidels,' and,'to subdue, occupy, and possess these territories, as his vassals and lieutenants.' In the same manner the grant
from Queen Elizabeth to Sir Humphrey Gilbert empowers him'to discover such remote heathen and barbarous lands, countries, and territories,
not actually possessed of any Christian prince or people, and to hold,
occupy, and enjoy the same, with all their commodities, jurisdictions,
and royalties.' "(e)  Most truly does Mr. Wheaton say, "*There was
one thing in which they" (i. e. the European nations) "rall agreed, that
(c) Vattel, t. i. 1. i. c. vii. s. 81.
(d) Vattel, t. i. 1. i. c. xviii. s. 209.
"'He that brings wealth home is seldom interrogated by what means it was
obtained. This, however, is one of those modes of corruption with which mankind ought always to struggle, and which they may in time hope to overcome.
There is reason to expect that as the world is more enlightened, policy and
morality will at last be reconciled, and that nations will learn not to do what
they would not suffer." —Thoughts on the Transactions relating to the Falkland
Islands, 1771, by Dr. Johnson; Works, vol. xii. pp. 123, 124.
(e) Wheaton's Elements (English ed.,) pp. 209, 210.




RIGHT OF ACQUISITION.                            211
of almost entirely disregarding the right of the native inhabitants of these
regions."(f)
CCXLVI. Nor can a better excuse for such conduct be alleged than
the detestable doctrine, which it is melancholy to find maintained by
some modern writers, viz. that International Law is confined in its application to European *territories. A denial of this doctrine formed
part of an earlier chapter of this work,(g) and need not be more [*263]
particularly referred to in this place.
It must be remembered that Penn, though formally commissioned by
his sovereign, acquired his territory by treaty and convention with the
aboriginal inhabitants.
CCXLVII. It may therefore be considered as a maxim of International
Law, that Discovery alone, though accompanied by the erection of some
symbol of sovereignty, if unaccompanied by acts of a de facto possession,
does not constitute a national acquisition.
A different opinion appears, indeed, to have been entertained by the
officers of Great Britain in 1774, at the period of her temporary abandonment of the Falkland Islands. But the doctrine in the text may now
be said to be very generally established.(h)
CCXLVIII. The practice of nations supports the doctrine of beneficial
use and occupation.(i)  In a dispute which arose between Great Britain
and Spain relative to the subject of Nootka Sound,(k) Spain claimed a
large portion of the northwestern *coast of America, upon the
ground of priority of discovery and of long possession, confirmed [*264]
by the 8th Article(l) of the Treaty of Utrecht (1713). The British
Government resisted their claim  upon the ground that the Earth was
the heritage of all mankind, and that it was competent to each State,
through the means of occupation and cultivation, to appropriate a portion
of it. The dispute was ended by a convention between the two powers,
in which it was agreed, that it was lawful for the respective subjects of
each to navigate freely the Pacific and the Southern Seas, to land upon
the coasts of these seas, to traffic with the natives, and to form settlements; subject to certain conditions specified in the convention.
(f) Wheaton's Elements (English ed.) pp. 209, 210.
(g) Part I. Chapter III.
(h) Eug. Ortolan, Dom. Intern. p. 49, n. 2; Moser's Versuch, Buch 5, p. 541.
Wenck. t. iii. p. 815.
Johnson's Works, vol. xii.: Thoughts on the Falkland Islands.
Martens, Rec. t. ii. p. 1.
Insclription que le Lieutenant Clayton,' commandant le fort Egmont, fit graver sur une
plaque de plomnb atiachebe au fort Eymont pour conserver les droits de la couronne d'Angleterre sur les Isles de Falckland lorsque les Anglais quitterent le dit fort le 22 Mai,
1774:
" Qu'il soit notoire. toutes les nations que les Isles de Falckland, ainsi que ce
Fort, les Magazins, Quais, Havres, Bayes et Criques qui en dependent, appartiennent de droit uniquement k Sa treis-sacree Majeste George III., Roi de la GrandBretagne, de France, et d'Irlande, D6fenseur de la Foi, &c. En foi de quoi cette
Plaque a 6te fix6e, et les Pavillons de S. M. Britannique d6ploye's et arbores,
comme une marque de possession, par Samuel Guillaume Clayton, Officier commandant aux Isles de Falckland, le 22 Mai, 1774."
(i) Eug. Ortolan, Dom. Int. p. 48.    (k) Wheaton, Elem. t. i. p. 162.
(1) Schmaus, ii. 1422. The words of the Article are very vague.




212    PH ILLIMORE  ON  INTERNATIONAL  LAW.
CCXLIX. The claims of the United States of North America upon
the Oregon Territory were, as has been shown, chiefly founded upon
priority of discovery, both by their own subjects, and by the Spaniards,
whose pretensions they had by the Treaty of 1819 inherited. The British
Government denied both the fact of prior discovery, and the enormous
inference sought to be drawn from it; and most clearly asserted at the
same time the right of other nations to occupy vacant portions of the
earth wheresoever they might be.  The  temporary  arrangements of
1818 and 1827 were merged in the definitive Treaty of Washington in
1846.(m)
[*265]                *CHAPTER  XIII.
PRESCRIPTION.
CCL. The second mode of Original Acquisition is effected by the operation of time, by what English and French jurists term Prescription.(a)
In order to arrive at any solution of this difficult question which may be
at all satisfactory, it is necessary to make some observations upon the
place which Prescription occupies in the systems both of Private and
Public Law, as introductory to the consideration of the place occupied
by the same doctrine in the system of International Jurisprudence.
First, as to Private Law.  In all systems of private jurisprudence,
the lapse of time has a considerable bearing upon the question of property.(b) There is, according to all such systems, a period when a de
facto become a de jure ownership, when possession becomes property.
The nature of man, the reason of the thing, the very existence of society,
demand that such should be the case. The iRoman Law does but give
expression to this paramount necessity in the maxim, *c, Vetustas
C"26[ ]quse semper pro lZee tenetur."(c) The doctrine of Usucapio exhibits the first trace of this mode of acquisition in Roman Jurisprudence.(d)  According to this doctrine, the possessorjusto titulo et bona6
(m) Wheaton, ElBm. t. i. pp. 167, 168.
(a) Grotius, 1. ii. c. iv.
Puffendorf, Jus Nat. et Gent. 1. iv. c. xii.
Wolff, Jus Nat. p. iii. c. vii.
Vattel, 1. i. c. xvi. s. 199., 1. ii. c. xi. ss. 140, 151.
(b) Grotius indeed says that usucclpio is the creature of the Civil Law, because
nothing is done by time, though everything is done in time; but this seems an
unworthy subtlety, and is inconsistent with other passages in his work.
"' Le Temps qui renferme en soi l'id'e de la duree, de la rdpetition, et de la succession des phenomenes, un des agents de modification, de destruction et de gBneration pour les choses physiques, restera-t-il sans influence sur la modification,
sur la destruction et sur la generation des droits.'1-Domaine Internat., par E.
Ortolan, p. 98.
(c) Dig., de aqua et acquie pluvime arcend;e, xxxix. 3. 2.: see also Dig. de loc.
et itin. publ. xliii. 7. 3.
Dig., de aqua quotidiana et restiva, 43. 20. 3. 4.: "Ductus aqun cujus origo
memoriam excessit, jure constituti loco habetur."
(d) Which the Germans call Ersitzung. In the XII Tables it bore the name of
ususauctoritas, i. e. usus et auctoritas.




PRESCRIPTION.                               213
fide, during two years of land, and during one year of movables, which
had not previously belonged to him, acquired a property in it or them.
This institution was originally confined to the prcedia Italica and to the
Roman citizen; but the Prietor extended it to the funcdi provinciales,
and to the peregrinus, under the appellation of prescriptio longi temnporis.
Justinian, who destroyed the distinction between civil and natural property, took also away the distinction between fundi Italici and provinciales, blended together the usucapio and the prwscriptio, and conferred
not only a right of possession but of property on the person who had possessed movables for three, and immovables for ten years inter _presentes,
or twenty inter absentes, provided that the subject-matter had been capable of usucapio or prwscriptio, and there had been justus titulus and
bona fides. (e) He also added another species of Prescriptive Acquisition,
the *Prwescriptio XXYXTvel XL annorum.  This longissimi tern-   267
poris possessio, as it was afterwards called, did not confer property [267
on the possessor or take it away from the proprietor, but furnished the
possessor with a defence against all claimants, and that though there had
been no justus titulus.  Besides these classes of Prescription measured
by a definite time, was the indefinite class, Immemorial Prescription
(i'mnmemoe iale temnpus, possessio vel prwscriptio immemorialis), which
was called  r adminiculum juris quo quis tuetur possessionem, quce memoriamn hominum excedit."(f)
This kind of Prescription was available when the origin of the possession was incapable of proof, —when nobody could recollect that it
had belonged to another person.  Such a Prescription  might have for
its object, things incapable of being otherwise acquired, though not such
things as were by nature res communes.  It is mentioned, however, with
reference to only three heads of what may be callled public law, namely,
1. With reference to public ways (viw publicwe, private, vicizales); 2.
To a right of protection from  the rain-water (aquewpluviw  arcendw);
3. The right relating to watercourses (ductlus aquw).(g)q
CCLI. The passages in the Romam Law(h) show that the doctrine of,Snmemorial Prescription was applicable only to those few  cases, in
Puchta, Instit. ii. s. 240.
Savigny, R. R. iv. s. 195.
Savigny, Recht des Besitzes, Abschnitt i. s. 2.
Instit. ii. 6., de usucapionibus et longi temporis proescriptionibus.
Dig. xli. 3., de usurpationibus et de usucapionibus. —Code 31., de usucapione
transformanda et de sublata differentia rerum mancipi et nec mancipi.-33, de
prusecriptione longi temporis decem vel viginti annorum.-34, in quibus causis
cessat longi temporis pramscriptio.-35, quibus non objicitur longi temporis praescriptio.-38, nerei dominice vel templorum  vindicatio temporis praescriptione
submoveatur. —39, de proescriptione xxx vel xl. annorum.
(e) " Par 1l cessent les diff6rences entre la propridte civile et la propri6te naturelle-entre l'usucapion, cette patronne de l'Italie, et laprcescription, cette patronne
du genre humain."-Troplong, p. 139.
Cod. C., De Usucapione transformanda.
(f) Dig., de aqua quotid. et est., xliii. 20. 3. 4. x. 1. v. t. 40. c. 26, de V. S.
Dig., de aqu. et aqu. pluv. are., xxxix. 3. 24.
(g) See note (c).
" Sctevola respondit solere eos, qui juri dicundi proesunt, tueri ductus aquTe
quibus auctoritatem vetustatis daret, tametsijus non probaretar." —Dig. xxxix. 3. 26.
(h) Savigny, R. R. iv. s. 198.




214   PIIILLIMORE ON INTERNATIONAL LAW.
which either a right of apublic character, or an exemption from the obligation of such a right, was to be acquired. It is not surprising, therefore,
that the doctrine should have occupied a very subordinate place in
Roman jurisprudence, or the reason of the thing being considered, that
it should during the Middle Ages have risen into an institute of continual
use and the highest importance.
26]   *In the first two of the three instances specified in the Digest,
Immemorial Prescription appears, on examination, to be unconnected with the actual possession, but in the last to be necessarily bound
up with it; and this condition is held indispensable in later jurisprudence.
CCLII. The Canon Law(i) contains two remarkable instances of the
application of Immemorial Prescription. In the year 1209 a Papal
Legate forbad the Count of Toulouse the exercise of certain regal privileges with respect to the imposition of taxes.  The Pope, at the request of the Count, declared that the prohibition extended only to the
taxes arbitrarily imposed, and not to those which were equitable; under
which class were to be reckoned, those which had been permitted by the
Emperor, the King, or the Lateran Council, and also those "; vel ex antiqu&t consuetudine, "c a tempore cujus non exstat memorica, introducta.(j)  The second passage relates to the case of a bishop, who claimed
a Prescriptive Right to the tithes and churches within the see of another bishop.  It has been seen that, according *to the Roman
] Law, a possession for three, ten, or twenty years, with, or for
thirty years without, a title, furnished the possessor with a defence on
the ground of prescriptio or usucapio against any private claimant.
Churches were, generally speaking, privileged against any Prescription
less than forty years; but that Prescription against the Church did not
require a title provided there were a bona fide. In the case of the
bishop, however, this Prescription of forty years, it was said, would not
avail, because it was contrary to the Common Law: cc ubi taumen est ei
jues commumne contrarium  vel habetur prweszmptio contra ipsum, bona
fides non sufficit: sed est necessarius titulus, qui possessori causam tri(i) Savigny, R. R. iv. s. 198.
Eichhorn, Kirchenrecht, b. vii. c. vii. iv.: " Verjihrung gegen die Kirche."
Suarez, De Le. 1. viii. c. xxxv. s. 21. More than 100 years, however, were
held necessary to establish a prescription against the Church of Rome: 1. ii. t.
xiii. c. ii., t. vi.
The distinction between t" Usucapio" and " Prnescriptio" is thus stated by one
of the most eminent of modern canonists, Schmalzgrueber (Jus Canonicum, vol.
ii. p. 321.) He says:
"Distinctio propria et primaria" is1. Usucapio is cause.
2. Prtescriptio is effect.' Distinctio ordinaria" is1. "Usucapio" concerns "res corporales" and requires actual possession,
" veram possessionem."
2. " Praescriptio" does not, but is content with quasipossessio.
The use of the phrase " prsescriptum est obligationi" implies opposition to a former proprietor.
" Prtescripta est servitus, prsescripsi rem" implies "no more than legitimate
acquisition."
(j) X. 1. v. t. 40, c. 26, de V. S.




PRESCRIPTION.                               215
buat proescribendi: nisi tanti temporis allegetur pracriptio, cljyus contracrii memoria non existat."(kc)
CCLIII. The tendency and spirit of modern legislation and jurisprudence has been to substitute, in Private Law, a short definite period of
time in lieu of Immemorial Prescription.
In England, the "c time of memory" was, at a very early period of her
history ascertained by the law to commence from the reign of a particular monarch; for though a custom was said to be good when it had
been used c" time out of mind," or " for a time when the memory of
man runneth not to the contrary," the phrase referred to a fixed epoch,
namely, that the custom was in use before the beginning of the reign of
Richard I.  Recent legislation has introduced a Prescription limited by
a specific number of years, which it has substituted for the doctrine of
immemorial usage.(1)
*In France(m) Immemorial Prescription has been abolished, [*270]
and a fixed period substituted; and in Austria, as well as in
Prussia also, though in this country very long periods of time are
required in certain cases.(n)
CCLIV. Secondly, as to Public Law.  The doctrine of Immemorial
Prescription is, from the very necessity of the case, indispensable(o) in
the sytem of Public Law. Accordingly, we find it mentioned more than
once in the Constitutions of the  German Empire, and as a mode of
acquiring Public Rights.(p)
(k) The whole passage in the sixth book of the Decretals is as follows: "Episcopum, qui ecclesias et decimas, quas ab eo repetis, proponit, licet in tuh sint
constitutse diewcesi, se legitime presecripsisse, adlegare opportet, cum jits commune
contra ipsumfaciat, hujusmodi pruescriptionis titulum et probare; nam licet ei qui
rem prescribit ecclesiasticam, si sibi non est contrarium jus commune, vel contra
eam prsesumtio non habeatur, sspciat bona fides; ubi tamen," &c.-L. ii. t. 13. cap.
1. De Prsescript in VIto.
(1) Blackstone's Commentaries on the Laws of England, b. 2. c. iii.
The rule was adopted when, by the Statute of Westminster (3 Edward I. c.
39), the reign of Richard I. was made the time of limitation in a writ of right.
Statute of 2 & 3 William  IV. c. lxxi., An Act "for shortening the time of prescription in certain cases." It was the intention of this Act to establish practically and generally a 30-years, and certainly and universally a 60-years prescription.-Stephen's Comment. b. 2. t. i. c. xxii.
(ms) Code Civil.
" 690. Les servitudes continu6s et apparentes s'acquierent par titre, ou par la
possession de trente ans."  (c. 688, 689. 706., s. 2177. 2232. 2281.)
"691. Les servitudes continues non apparentes, et les servitudes discontinues
apparentes, ou non apparentes, ne peuvent s'etablir que par titres.
" La possession m6me immemoriale ne suffit pas pour les 6tablir; sans cependant qu'on puisse attaquer aujourd'hui les servitudes de cette nature djc't acquises
par la possession, dans les pays oh elles peuvent s'acquerir de cette maniere."  (c.
688, 689.)
(n) Six, thirty, forty years in Austria.
Thirty, forty, forty-four, fifty years in Prussia.
Blume, Deutches Privatrecht, s. 179.
Savigny, R. R. iv. s. 198.
(o) " Im offentlichen Recht ist die unvordenkliche Zeit durchaus nicht zu entbehren, und es ist ganz gleichgfiltig, wie wir Juristen darfiber urtheilen, sie wird
sich unfehlbar Bahn brechen, so oft eine Veranlassung dazu erscheint."-Savigny, ib.
(p) Savigny, ib., citing Aurea Bulla, c. viii. s. 1: "A tempore cujus contrarii
hodie non existit memoria."  See too a Reichsabschied of 1548 and of 1576.




216     P HILLIMORE ON INTERNATIONAL LA W.
Savigny illustrates the use of Immemorial Prescription in matters of
Public Law, by reference to the condition of England from the Revolution of 1688 to the death of the last of the male Stuarts, the Cardinal
F*2711 of York, in 1806.  During *a considerable portion of this interL ]""1 val it might have been, and it actually was, a question of grave
conscientious doubt to many, whether the change of dynasty was the
effect of temperate equity and wise policy, or of mere violence and injustice: and if, during this interval, a'successful invasion had reseated the
Stewarts upon the British throne, their right, as having continued unbroken, though suspended by violence, would have obtained a very general
recognition. Who can point out, in this or in a similar instance, the exact
year when the doubt merged into certainty? and yet it is not difficult
to describe the general character of such a transition.  When the generation had passed away which had been alive during the former state of
things; when the convictions, feelings, and the interests of the succeeding generation had become identified with the new order of things; then
might not improperly be said to begin the Prescription of Public Law.
This is, in principle, very much the same as the Prescription of the Private Law; which, indeed, may be said to have been modelled upon the
usage of Public Law, and which usage grew out of the reason of the
thing.
CCLV. Having discussed the position of Prescription in the systems
of Private and Public Law,(q) we now approach the consideration of a
matter, held by the master mind of Grotius to be one of no mean difficulty, namely, International Prescription.  Does there arise between
nations, as between individuals, and as between the State and individuals,
a presumnption from long possession of a territory or of a right which
must be considered as a legitimate source of International Acquisition?
In seeking an answer to this important question, it is necessary to
keep clear of all subtle disquisitions with which this subject has been
[*272] perplexed; whether, for instance, it be the *creature of Natural
[*272] or Civil Law, or whether it must always be founded upon a presumption of voluntary abandonment or dereliction by the former owner.
Through these metaphysical labyrinths we cannot find a clue for questions of International Jurisprudence.  The effect of the lapse of time
upon the property and right of one nation relatively to another is the
real subject for our consideration.  And if this be borne steadily in mind
it will be found, on the one hand, in the highest degree irrational to deny
that Prescription is a legitimate means of International Acquisition; and
it will, on the other hand, be found both inexpedient and impracticable
to attempt to define the exact period(r) within which it can be said to
(q)'     A 1XXia eI, o0d EXEVO vansi X1XYEV, 0rt rag Kr4GfjOg Kat rdg iS ag, Kai rig Kotloag, h/
girtyv7rat 7roXigs p6vo0S, Kvpfa Kcau 7rarpcras ia7ravreg EtvatC vottovo't." Isocr., Orat. Archidam.
(r) Vattel, 1. ii. c. xii. s. 151, expresses a wish that such a period could be ascertained by the universal consent of nations: but the inexpediency is as great as
the impossibility of such a scheme.
Grotius refers to the analogy of custom: " Tempus vero, quo illa consuetudo
effectum juris accipit, non est definitum sed arbitrarium, quantum satis est ut concurrat ad significandum consensum."-L. ii. c. iv. 5, s. 2.




PRE SC RIPTION.                              217
have become established-or, in other words, to settle the precise limitation of time which gives validity to the title of national possessions.
And therefore to the question, what duration or lapse of time is required by the canons of International Jurisprudence in order to constitute a lawful possession? it is enough to reply-First, that the title of
nations in the actual enjoyment and peaceable possession of their territory, howsoever originally obtained, cannot be at any time questioned or
disputed: Secondly, that a forcible and unjust seizure of a country, which
the inhabitants, overpowered for the moment by the superiority of physical force, ineffectually resist, is a possession which, lacking an originally
just title, requires the aid of time to cure its original defect; and if the
nation so subjugated succeed, before that cure has been effected, in shaking off the yoke, it is legally and morally entitled to resume its former
position in the community of states.
*CCLVI,  This is called, in technical language, the doctrine of
Postlimninitm, which will be discussed hereafter.  It must, how- ['273]
ever, be remembered here, that the rights of Postliminiumrn can only attach to states which have been, previous to their subjugation, Independent Kingdoms.  It was therefore with justice that the Allied Powers,
in the adjustment of the relations between Belgium  and Holland after
the revolution of 1830, resisted certain Belgic claims founded upon an
alleged Postliminium, on the ground that Belgium  had never been an
Independent State, had never been  "sui juris," and could therefore
have no title to the application of this doctrine.
CCLVII. It is true that some late writers on the Law of Nations have
denied that the doctrine of Prescription has any place in the system of
International Law.(s)  But their opinion is overwhelmed by authority,
at variance with practice and usage, and inconsistent with the reason of
the thing.   Grotius, Heineccius, Wolff, Mably, Vattel, Rutherforth,
Wheaton, and Burke,(t) constitute a greatly preponderating *ar- [*274]
ray of authorities, both as to number and weight, upon the op-   274
posite side.
(s) Kliiber, s. 6. 125.
Martens, 1. ii. c. iv. s. 71.
(t) Grotius, 1. ii. c. iv. " De derelictione pruesumpta et eam secuta occupatione:
et quid ab usucapione et prmsscriptione differat;" and the commentary of Heineccius
thereupon in his Proelect. Acad. in Grot.
Burke, vide post.
Vattel, 1. ii. c. xi.
Wheaton, El6m. c. iv. s. 4. t. i. p. 159.
Bynkershoek may, I think, fairly be added to the list. Such it seems to me is
the inference from the following, among other passages, in which he combats the
possibility of the Dominion of the Sea being acquired by Prescription: Sed Hugo
Grotius (p. 386) et Vasquius Grotio reproesentatus cap. vII. Maris liberi, docuerunt,
longa possessione non quneri marium dominia. Et qul potest modus acquirendi,
qui duntaxat est a Jure Civili, diversos principes obligare? Utitur etiam ea ratione
Grotius, sed bene est, quod parcius, quia id ipsum rursus concessit (de Jure B. et
P. lib. ii. c. 4.) et ita nunc vulgo placet, si adsint, quas ille persequitur, tacitie concessiones, indicia, prsmsumtiones alique adminicula, per quse ipsa magis, quam per
longi temporis capionem extraneos excludi jus fasque esset. At vero, per me licet,
excute quicquid est earum proesumtionum, et si quid conjecturis dandum, reperies
gentium animos adversus prnoscriptionem maris omnimodo militare et nihil reliqui
facere, quominus voluntatem suam enix6 declarent; testantur id acta populorum
AuGusT, 1854.-15




218   PHILLIMORE ON INTERNATIONAL LAW.
The practice of nations, it is not denied, proceeds upon the presumption of Prescription, whenever there is scope for the admission of that
doctrine. The same reason of the thing which introduced this principle
into the civil jurisprudence of every country, in order to quiet possession,
give security to property, stop litigation,(x) and prevent a state of continued bad feeling and hostility between individuals, is equally powerful
to introduce it, for the same purposes, into the jurisprudence which regulates the intercourse of one society with another, more especially when it
is remembered that war represents between States litigation between Individuals.(y)  It is very strange that the fact, that most nations possess
in their own municipal codes a positive rule of law upon the subject, has
been used as an argument that the general doctrine has no foundation in
International Law.
It is admitted, indeed, that Immemorial Prescription constitutes a
good title to national possession; but this is a *perfectly nuga[*275] tory admission, if, as it is sometimes explained, it means only
that a State which has acquired originally by a bad title, may keep possession of its acquisition as against a State which has no better title.  If
it had been merely alleged that the exact number of years prescribed by
the Roman Law, or by the municipal institute of any particular nation,
as necessary to constitute ordinary prescriptions,(z) is not binding in the
affairs of nations, the position would be true.  It is, perhaps, the difficulty attending the application to nations of this technical part of the
publica, testatur quotidie suo quisque exemplo, dum, quod alius mare in dominium
suum transcribit, alius eo vel invito ingrediatur et alterius possessionem, si quam
praetendat, continua navigatione turbet."
And again he says: "' Coeterum ne plura addam, Grotius et Vasquius in causa
sunt, namque hi maris usucapionem submoverunt eis rationibus quas meas facere non
dubitem, si demas, quea ipsi aiunt de natura maris prescriptioni adversa, utpote re
communi ex legibus Naturee et Gentium, et qute nec in bonis esse possit, nec possideri, nec quasi possideri, nec alienari, et caetera, de quibus non nihil dicam cap.
ult."-De Dominio Maris Praescriptio, c. vi.
(x) " Vetustas quae semper pro lege habetur minuendorum scilicet litiumt causa."
-Dig. xxxix. 3. 2. De. Acq. Pluv.
(y) " Bono publico usucapio introducta est, ne scilicet quarundem rerum diu et
ferb semper incerta dominia essent." —Dig. xli. t. 3. 1.
(z) Puffendorf, under the title " De Usucapione," in the 12th chapter of his 4th
Book, discusses the application of the doctrine of Prescription to nations. His
remarks are perspicuous and wise. "Inter hasce (he says in his 9th section)
discrepantes sententias id quidem liquidum videtur: quemadmodum dominia rerum
pacis caust sunt introducta; ita et illud ex eodem fonte promanare, quod possessores bona fidei aliquando sint in tuto collocandi, neve ipsis in perpetuum super
sua possessione controversia queat moveri. Quantum autem sit illud spatium,
intra quod possessio bonne fidei in vim dominii evalescat, precis6 neque naturali
ratione, neque universali gentium consensu determinatum deprehenditur; sed arbitratu boni viri non citra aliquam latitudinem definiendum erit." He then refers
with some humour to the vague tests of prescriptive poetry proposed in Horace, lib.
2. ep. 1., and proceeds:-_" In designando autem hoc tempore ratio habebitur et
antiqui domini, et recentis possessoris. Illius quidem, ut ne mature nimis a persequenda et investigand& sua re excludatur." And he closes the section with saying:-" Adeoque curn dominia rerum introducerentur, id quoque pacis causa placuisse, ut qui aliquid neque vi, neque clam, neque precario, suo nomine possideret,
tantisper dominus preesumeretur, quoad ab altero contrarium probaretur; qui
autem per longissimum temporis spatium, per quod nemo mediocriter diligens rem
suam negligere creditur, quid bona fide possederit, serum petitorem plane posset
repellere, quia non citius rem suam vindicatum iverit."-De Jure Natures et Gentium.




PRES CeRIPTION.                               219
doctrine, which has induced certain writers to deny it altogether; but
incorrectly, for, whatever the necessary lapse of time may be, there unquestionably is a lapse of time after which one State is entitled to exclude
every other from  the property of which it is in actual possession.  In
other words, there is an International Prescription, whether it be called
Immemorial Possession, or by any other name.  The peace of the world,
*the highest and best interests of humanity, the fulfilment of
the ends for which States exist, require that this doctrine be  276
firmly incorporated in the Code of International Law.  It is with great
force of reason and language that Grotius, repelling the contrary proposition, observes:'" Atque id si admittimus, sequi videtur maximum  incommodum, ut controversive de regnis regnorumque finibus nullo unquam
tempore extinguantur:  quod non tantum  ad perturbandos multorum
animos et bella serenda pertinet, sed et communi gentium  sensui repugnat."(a)
CCLVIII. It is impossible to speak with greater accuracy upon this
very delicate subject; as the application of the general rule must of necessity be greatly modified by the special circumstances of each particular case.  Vattel's remarks upon this subject are clear and sensible:-,"La Prescription ne pouvant 6tre fondee que sur une presomption
absolue, ou sur une presomption legitime, elle n'a point lieu si le proprietaire n'a pas v6ritablement neglige son droit.  Cette condition importe trois choses: 1~. que le proprietaire n'ait point a alleguer une
ignorance invincible, soit de sa part, soit de celle de ses auteurs; 2~.
qu'il ne puisse justifier son silence par des raisons legitimes et solides;
3~. qu'on ait neglige son droit, ou gard6 le silence pendant un nombre
considerable d'annees; car une n6gligence de peu d'annees, incapable de
produire la confusion et de mettre dans l'incertitude les droits respectifs
des parties, ne suffit pas pour fonder ou autoriser une presomption d'abandonnement.  11 est impossible de determiner en droit *naturel
le nombre d'annees requis pour fonder la Prescription. Cela [*277]
depend de la nature de la chose dont la propri6t6, est disput6e, et des
circonstances.(b)
(a) L. ii. c. iv. s. 1.
See, too, Wolff.
And so Vattel: " Le droit de succession n'est pas toujours primitivement etabli
par la nation; ii peut avoir 6t6 introduit par la concession d'un autre souverain,
par l'usurpation meme. Mais lorsqu'il est appuy6 d'une longue possession, le peuple est cens6 y consentir, et ce consentement tacite le legitime, quoique sa source
soit vicieuse. II pose alors sur ie memefondement seul legitime et inebranlable, auquel
ilfaut totjours revenir." —Vattel, t. i. 1. i. c. v. s. 59.
(b) " De ce qui est requis pour fonder la Prescription ordinaire." Vattel, Le
Droit des Gens, t. i. 1. ii. c. xi. s. 142. And again: " Mais si la nation protedge ou
soumis A certaines conditions ne r6siste point aux entreprises de celle dont elle a
recherche l'appui, si elle n'y fait aucune opposition, si elle garde un profond silence
quand elle devrait et pourraitparler, sa patience, apr6s un temps considerable, forme
un consentement tacite qui 16gitime le droit de l'usurpateur. I1 n'y aurait rien de
stable parmi les hommes, et surtout entre les nations, si une longue possession, accompagn6e du silence des interesses, ne produisait un certain droit. Mais il faut
bien observer que le silence, pour marquer un consentement tacite, doit 6tre volontaire. Si la nation inf6rieure prouve que la violence et la crainte ont etouffe les




220      P H ILLIMORE  ON  INTERNATIONAL  LAW.
But that Prescription is the main pillar upon which the security of
national property and peace depends, is as incontrovertible a proposition
as that the property and peace of individuals rests upon the same doctrine.(c)
To these remarks should be added the observation of a living
jurist:-(d)
"c The general consent of mankind has established the principle, that
long and uninterrupted possession by one nation excludes the claim of
every other.  Whether this general consent be considered as an implied
contract or as positive law, all nations are equally bound by it, since all
are parties to it; since none can safely disregard it without impugning
its own title to its possessions; and since it is founded upon mutual
utility, and tends to promote the general welfare of mankind."
*In one of those treatises(e) which show how deeply the mind
[*278] of the writer was imbued with the principles of general jurisprudence, Mr. Burke uses the following admirable expressions:cc If it were permitted to argue with power, might one not ask one of
these gentlemen, whether it would not be more natural, instead of wantonly mooting these questions concerning their property, as if it were an
exercise in law, to found it on the solid rock of prescription; the soundest, the most general, the most recognised title between man and man
that is known in municipal or in public jurisprudence; a title in which
not arbitrary institutions but the eternal order of things gives judgment;
a title which is not the creature, but the master of positive law; a title
ewhich, though not fixed in its term, is rooted in its princ'iples in the Law
of Nature itself2 and is indeed the original ground of all known property; for all property in soil will always be traced back to that source,
and will rest there"-"cc these gentlemen, for they have lawyers amongst
them, know as well as I, that in England we have had always a prescription or limitation, as all nations have against each other" —   all titles
terminate in Prescription; in which (differently from  Time, in the fabulous instances) the son devours the father, and the last Prescription eats
up all the forner."(f)
t6moignages de son opposition, on ne pent rien conclure de son silence, et il ne
donne aucun droit h l'usurpateur."-Vattel, t. i. c. xvi. s. 199.
See list of authorities on the doctrine of International Prescription given by
Ompteda, 512. s. 213, Lit. des Volkerrechts.
(c) Vattel, 1. ii. c. xi. s. 142.    (d) Wheaton, vol. i. c. iv. s. 5. p. 207.
" Es liessen sich viele Beispiele, unter andern in Deutschland nachweisen, wo das
Recht der Staatgewalt nur auf langen Besitzstand gegriindet ist ohne erweislichen
Rechtstitel."-Heffters, s. 69. 1.
(e) Vol. ix. p. 449. Letter to R. Burke, Esq.
See, too, vol. ix. p. 97. Reform of Representation in the House of Commons.
" Prescription is the most solid of all titles, not only to property, but which is to
secure that property, to Government." And vol. v. p. 274: " With the National
Assembly of France possession is nothing, law and usage are nothing. I see the
National Assembly openly reprobate the doctrine of Prescription, which one of
the greatest of their own lawyers (Domat) tells us, with great truth, is part of the
Law of Nature. He tells us that the positive ascertainment of its limits and its
security from invasion were among the causes for which civil society itself was
instituted." -Reflections on the Revolution in France.
(f) The Abbe de Mably, speaking of the Treaty of the Pyrenees which followed




PRE S  RIPTION.                             221
*CCLIX. In the foregoing  observations, the foundation of [*279
International Prescription  has not been necessarily laid upon [279
the abandonmnent or dereliction of the State, to whom the possession formerly belonged. It has been placed upon the length of time during
which the possession has been held by the State which prescribes for it.
It is important to establish clearly that dereliction does not, in the case
of nations, necessarily precede prescriptive acquisition.  Much of the
uncertainty and confusion in the writings of International Jurists upon
this subject may be ascribed to the want of firm discrimination and clear
statement upon this point.
Dereliction or voluntcary abandonment by the original possessor may
be often incapable of proof between nations after the lapse of centuries
of adverse possession; whereas the proofs of prescriptive possession are
simple and few. They are, principally, publicity, continued occupation,
absence of interruption (usuqTpatio), aided no doubt generally, both
morally and legally speaking, by the employment of labour and capital
upon the possession by the new possessor during the period of the
silence, or the passiveness (inertia), or the absence of any attempt to
exercise proprietary rights, by the former possessor. The period of time,
as has been repeatedly *said, cannot be fixed by International.*280]
Law between nations as it may be by Private Law between indi- 
viduals: it must depend upon variable and varying circumstances; but
in all cases these proofs would be required.
Now it has been well observed by a recent writer,(g) that in cases
where the dereliction is capable of proof, the new possessor may found
his claim upon original Occupation alone, without calling in the aid of
Prescription.  The loss of the former, and the gain of the later possessor, are distinct and separate facts.  Whereas, in cases of Prescriptive
Acquisition, the facts are necessarily connected; the former possessor
loses, because the new one gains.
CCLX. There was a dispute of long standing between France and
England respecting Santa Lucia, one of the Antilles Islands. After the
Treaty of Aix-la-Chapelle (1748), the matter was referred to the decision
of certain Commissioners, and it was the subject of various State Papers(h)
in 1751 and 1754.  The French negotiators maintained, that though
the Treaty of Westphalia (1659), observes:-" Le Roi de France proteste contre
toute prescription et laps de temps, au sujet du Royaume de Navarre, et se reserve
la facult6 d'en faire la poursuite par voie amiable, de meme que tous les autres
droits qu'il pretend lui appartenir, et auxquels lui ou ses prdd6cesseurs n'ont pas
renonc6. (Traite de Vervin, rappelle par le Traitd des Pyr6n6es, art. 23. Traite
des Pyrenees, art. 89.)  Tous les auteurs qui ont ecrit sur le Droit des Gens, conviennent que la prescription rend le6gitimes les droits les plus 6quivoques dans
leur origine; et ce qui prouve la sagesse de ce principe, c'est qu'il est de
l'interedt de chaque nation en particulier de l'adopter. La difficulte consiste a
savoir, comment la prescription s'acquiert; pour moije croirois qu'elle ne peut Stre
etablie que par le silence de la partie le6se, quand elle traite avec le Prince qui
poss6de son bien, ou que celuici le vend, le cede et l'aliene en quelque autre maniere.
Le silence dans ces occasions 6quivaut'a un consentement."-Droit Public, t. i.
p. 31.
(g) Monsieur EugBne Ortolan. See his chapter on Prescription Acquisitive, in
his work Du Domaine International (Paris, 1851).
(h) Ib. p. 111.




222      PHILLIMO R E  ON  INTE R NATIONAL  LAW.
the English had established themselves in 1639, they had been driven
out or massacred by the Caribbees in 1640, and they had, animo et facto
and sine spe redeundi, abandoned the island; that Santa Lucia being
vacant, the French had seized it again in 1650, when it became immediately, and without the necessity of any prescriptive aid, their property.
The English negotiators contended that their dereliction had been the
result of violence, that they had not abandoned the island sine spe redeundi, and that it was not competent to France to profit by this act of
violence, and surreptitiously obtain the territory of another State; and
that by such a proceeding no dominitum  could accrue to them.  The
principal discussion turned, not upon the nature of the conditions of
*281] Prescriptive Acquisition, but *upon the nature of the conditions
~281J] of Voluntary Dereliction, by which the rights of property were
lost, and the possession returned to the class of vacant and unowned
(&fiavo-ro ) territories.(i)
[*282]                *CHAPTIER  XIV.
DERIVATIVE ACQUISITION.
CCLXI. We now enter upon the second kind of Acquisition, viz.,
that which in the system of Private Law is called Derivative.
Derivative Acquisition(a) is said to be that which takes place by the
act of another, or by the act of the law (acquisitio derivativa, vel facto
hominis, velfacto legis).  In this system, not only Individuals, but Corporations or legal persons, are enabled to acquire and to alienate rights
of property, through the medium of a representative, as minors and
lunatics are in all systems of jurisprudence enabled to act through their
guardian or tutor.
Who the representative of the corporation may be, depends upon the
constitution of this legal person. But, as a general rule, the will of a
corporation is expressed not only by the unanimous assent, but by the
assent of the major part of its members. The rule that the will of the
corporation may be collected from the agreement of a part of its members seems to be founded in Natural Law, as otherwise the body might
be prevented from acting at all.(b)  *The constructive whole,
therefore, is held, for certain purposes, to reside in a part only.
Turning from the system of Private to the system of International
Law, we find that it is competent to one State possessed of property to
(i) Vide post, Extinction of Acquisition.
(a) Eugene Ortolan, p. 23.
Heffters, s. 71.
(b) " -quod X mraore parte ordinis salubriter fuit constitutum."-Cod. x. t. xxii.
46. De Decur.
" Quod majorpars curice effecit, pro eo habetur, ac si omnes egerint." —Eig. i. 1. 19.
Savigny, R. R. s. 97.
But see Burke, vol. vi. p. 212; Appeal from the New to the Old Whigs.




DERIVATIVE ACQUISITION.                              223
alienate it, and to another to receive the alienated portion.  So far the
analogy is sound between the State and the Individual or the Corporation; the rights incident to a proprietor attach in both cases.  But, in
the case of the State, it may be a matter of theoretical and practical
difficulty to ascertain where and in whom  the power of acquiring and
alienating is lodged? In whom what has been happily called ", the contracting capacity"(c) of the nation is vested.(d)  Whether the general
procuration of the State(e) be placed in the hands of one man, or of a
few, or of a majority of representatives?   The solution of this grave
question belongs rather to the province of Public and Constitutional,
than to that of International Law.(/)   It has, indeed, been discussed
by writers on International Law, especially by Grotius(g) and Vattel:(h)
but both those writers dealt, on this as on other occasions, with subjects
which belonged to the sphere of the Publicist rather than of the International Jurists.(i)
*CCLXII. Grotius divides all kingdoms into Patrimonial and
Ulsufructuary; and he reckons among the latter all kingdoms [284
over which the people elected a Governor, and all that are acquired by
treaty or marriage. Patrimonial kingdoms, he seems to think, may be
alienated by their rulers without the sanction of the people; but
Usufructuary, not without their consent.  Whatever countenance this
doctrine might have derived from the practice and principles of the time
in which G0rotius lived, it can hardly be predicated of any Christian,
and certainly of no European State(kf) at present existing in the world.
Puffendorf, indeed, lays it down as law, that the general presumption is
against the power of the sovereign to alienate, without the consent of
his subjects, any portion of the public property or domain; and the
doctrine is distinctly and indignantly repudiated by Vattel;(I) neverthe(c) Burke, vol. ix. p. 384: Tracts on Popery Laws, c. 3. in fine.
(d) See below, the Act of Renunciation of the Grand Duchy of Tuscany by
Leopold IT., on his accession to the throne of Austria, in favour of his second son.Martens, Rec. de Traites, vol. iv. p. 476. (A. D. 1790.)
Eugene Ortolan, pp. 14, 35.
Rutherforth, Institutes of Natural Law, c. viii.
Savigny, R. R. s. 140. b. iii. p. 310.
(e) burke, vol. vi. p. 212: Appeal from the New to the Old Whigs.
(f) Grotius, 1. ii. c. vi.
Wheaton's Elements, pp. 102-3.
Giinther, pp. 11-77. 2 Buch, II. Kap.
(g) Grotius, 1. ii. c. vi.: De acquisitione derivativa facto hominis, ubi de alienatione
izmerii, et rerum imperii.
(h) Vattel, 1. i. c. xxi.: De l'Alienation des biens publics, et de celle d'unepartie de
I'Etat.                      (i) De Jure Belli, 1. i. c. iii. —teinec. Prelec.
(k) " Die Eigenschaft eines Patrimonial-Staates (das heist, dass der Regent noch.Eigenthumsrecht fiber der Staat verfiigen k6nne) ist in Europa durch Staatsgrundgesetze nirgend festgesetz." —Klfiber, s. 31.
" He will discover that when Grotius examines the subject in detail, he excludes
every case of patrimonial governments. The fair conclusion to be drawn from it
is therefore this, that there is no such thing as a patrimonial government."-Lord
Grenville, Debate on Blockade of Norway, May 10, 1814. Harnsard's Parl Deb.
(1) "' J'ai os6 cependant m'ecarter quelquefois de mon guide, et m'opposer h ses
sentiments; j'en donnerai ici quelques exemples. M. Wolf, entrain6 peut-6tre par
la foule des ecrivains, consacre plusieurs propositions h traiter de la nature des
royaumbs patrimoniaux, sans rejeter ou corriger cette indue injurieuse a l'humanit6.




224   PHILLIMORE ON INTERNATIONAL LAW.
less, *a miserable attempt was made in 1814, to palliate the
t Ug5]   guilt of the forcible annexation of Norway to Sweden by an
appeal to the authority of Grotius.
CCLXIII. So far, indeed, as respects the conduct of third parties in
transactions of this nature, International Law may claim to be heard.
How far the right of Self-preservation (which includes the right of preventing the undue aggrandizement of any particular power) justifies the
INTERVENTION of third Powers, will be hereafter considered.
The rule which, accordingly to the true principles of International
Law, ought to be binding upon all nations who are, as it were, bystanders
in such transactions, is, rigidly and punctiliously to abstain from  interfering to compel by force either part of the nation, whether it be that
which wishes to alienate or that which refuses to be alienated, to adopt
the one course or the other. To do otherwise, is directly to violate the
most sacred principle of the jurisprudence of which we are treating, to
trample in the most offensive way upon the independence of a nation, by
assuming the judicial office upon the nicest and most vital questions
of her constitutional law, and the executive office, in carrying this
unwarranted and illegal decision into effect.
CCLXIV. When in 1814 Norway refused, as she did, by the actual
and constructive voice of her people, to be annexed to Sweden, the
question should have been left, according to the spirit and letter of the
law, to the decision of arms between the two countries.  It is painful
and humiliating to an Englishman(n) to think that this abhorred union,
for such it was *at the time, was effected, partly, by the blockade
28] of a British fleet.  The plea that such a union formed part of
the provisions of a general treaty of peace, which had for its object the
re-establishment and pacification of Europe, after years of bloodshed and
misery, did not justify the grievous injustice, the intrinsic illegality of
this act.  The delivery of Genoa to Sardina, after that republic had
yielded to our arms on the faith of its national independence being preserved, was as wrongful an act, accompanied with the additional sin of
violating a faith specifically pledged. To both these cases the expressions
Je n'admets pas meme la denomination, que je trouve egalement choquante, impropre, et dangereuse dans ses effets, dans les impressions qu'elle peut donner aux
souverains; et je me flatte qu'en cela j'obtiendrai le suffrage de tout homme qui
aura de la raison et du sentiment de tout vrai citoyen." —Vattel, Preface.
And again, 1. i. c. v.: " Nous ne voyons point en Europe de grand etat qui soit
repute alienable."
In another part of his work he limits the power of alienating national property
as follows:-"Le corps de la nation de peut done abandonner une province, une
ville, ni m6me un particulier qui en fait partie  t moins que la n6cessit6 ne l'y contraigne, ou que les plus fortes raisons, prises du salut public, ne lui en fassent une
loi." -L. i. c. ii.
Puffendorf, De Jur. Nat. et Gent. 1. viii. c. xii. s. 1-3.
Vattel, 1. i. c. xxi. s. 260: " I1 ne peut aliener les biens publics."
(m) See the Debates in both Houses of Parliament on the blockade of Norway,
1814, Pansard's Parl. Deb., especially the speeches of Lord Grenville and Sir
James Mackintosh which contain an admirable exposition of the soundest principles of International Law. Lord Grenville condemns the act as subversive of
public morality, as opposed to the authority of all writers upon International Law,
as justifying in principle the aggressions of France for the preceding twenty years.




DERIVATIVE ACQUISITION.                              225
of Martens-no favourer of democracy —were fully applicable': cI1 en
est de m6mc de l'impossibilite' morale a l'6gard d6s dont/traites l'accomplissement blesserait les droits d'un tiers."(n)
CCLXV. Though such be the rule of law to which nations, being in
the condition of third parties and bystanders, should scrupulously adhere,
there can be no doubt that one nation may by its proper organ, whatever
that may be, alienate, and that another nation may receive, property.  It
is, moreover, of the last importance to remember, that a nation which
allows its ruler, either in his own person or through his minister, to
enter into negotiations respecting the alienation of property with other
nations, must be held to have consented to the act of the ruler; unless,.indeed, it can be clearly proved that the other contracting party was
aware, at the time, that the ruler in so doing was transgressing the
fundamental laws of his State.(o)
*C(CLXVI. This is the universally acknowledged distinction   287
between cases of internal transactions between the State and its [287
Subjects, and of international transactions between the State and other
Nations. The reasons which support this leading position of International
Law are perspicuously stated by Vattel:-," Il est n6cessaire que les nations puissent traiter et transiger validement entre elles, sans quoi elles n'auraient aucun moyen de terminer
leurs affaires, de so mettre dans un etat tranquille et assure.  D'oui il
suit que quande une nation a ced6 quelque partie de ses biens a une
autre, la cession doit etre tenue pour valide et irrevocable, comme elle
l'est in effet, en vertu de la notion de proprie'te.  Ce principe ne peut
etre 6branl6 par aucune loi fondamentale, au moyen de laquelle une nation
pr6tendrait s'oter a ellememe le pouvoir d'aliener ce qui lui appartient.
Car ce serait vouloir s'interdire tout contrat avec d'autres peuples, ou
pr6tendre les tromper.  Avec une pareille loi, une nation no devrait
jamais traiter de ses biens: si la nkcessit6 l'y oblige, ou si son propre
avantage l'y determine, des qu'elle entre en trait6, elle renonce a sa loi
fondamentale.  On no conteste guere ai la nation entiere le pouvoir
(n) Martens, Des Traites non obligatoires, 1. ii. c. ii. s. 53.
(o) "A l'occasion du meme traite de Madrid, dont nous venons de parler, les
notables du royaume de France, assembles a Cognac, apres le retour du roi, conclurent tous d'une voix,'que son autorit6 ne s'etendait poit jusqu'5 d6membrer la
couronne. Le trait6 fut declare nul, comme 6tant contraire h la loi fondamentale du royaume. Et veritablement il etait fait sans pouvoirs suffisants; la loi
refusait formellemement au roi le pouvoir de demembrer le royaume; le concours
de la nation y etait n6cessaire, et elle pouvait donner son consentement par l'organe
des ftats-generaux.  Charles V. ne devait point relacher son prisonnier avant que
ces memes etats-generaux eussent approuv6 le traite; ou plutot, usant de sa victoire
avec plus de ge6nrosit6, il devait imposer des conditions moins dures, qui eussent
ete au pouvoir de Frangois Ier et dont ce prince n'eut pu se dedire sans hont. Mlais
aujourd'hnui que les 6tats-generaux ne s'assemblent plus en France, le roi demeure
le seul organe de l'etat envers les autres puissances; elles sont en droit de prendre
sa volont6 pour celle de la France enti6re, et les cessions que le roi pourrait leur
faire demeureraint valides, en vertu du consentement tacite par lequel la nation a
remis tout pouvoir entre les mains de son roi, pour traiter avec elles.  S'il en etait
autrement, on ne pourrait contracter sufrement avec la courrone de France. Souvent, pour plus de precaution, les puissances ont demande que leurs traites fussent
enregistres au parlement de Paris; mais aujourd'hui cette formalite meme ne parait plus en usage."-Vattel, 1. i. c. xxi. s. 265.




026      PHILLIMORE ON  INTERNATIONAL  LAW.
d'aliener ce qui lui appartient; mais on demande si son conducteur, si
*le souverain a ce pouvoir.  La question peut etre decidee par
2   les lois fondamentales.  Les lois ne disent-elles rien directement
la-dessus?  Voici notre second principe.  20. Si la nation a defr6e la
pleine soverainete a son conducteur, si elle lui a commis le soin, et donne
sans reserve le droit de traiter et de contracter avec les autres etats, elle
est censee l'avoir revetu de tous les pouvoirs necessaires pour contracter
validement.  Le prince est alors l'organe de la nation; ce qu'il fait est
repute fait par elle-meme; et bien qu'il ne soit pas le proprietaire des
biens publics, ii les aliene validement comme etant diment autoris.'"(p)
CCLXVII. Upon the same principle it is held, as we have already
stated, that when foreign governments or their subjects obtain from the
de facto government of a country, by treaty or otherwise, a part of the
national domain of confiscated property, if the sovereign de jure be restored, he cannot annul this contract or cession.  Whatever power he
may possess to annul alienation made to his own subjects, the acts of the
de facto government, though it was that of a usurper, are binding upon
him as to all international transactions.(q)
There can be no doubt, then, that a State may make acquisitions by
the acceptance of property transferred to it from another State. This
transference may be effected in as great a variety of ways in the case of
the State, as in the case of the individual.
According to the principles of Private Law, the delivery (traditio) of
[*289] possession(r) effected a change of ownership *(dominii), the deLi-89 liverer transfers the rights which he had enjoyed to the receiver.(s)
The validity of the transaction depends upon considerations relating
toi. The person delivering or transferring the property.
2. The cause of the transference.
3. The form and manner in which it is transferred.
1. The person(t) must have the will and the power to alienate the
thing; and the alienee the will and power to receive it.
2. The cause(u) must be lawful and just, that is to say, it must be
(p) Vattel, 1. i. c. xxi. s. 262.
(q) Grotius, 1. ii. c. xvi. s. 16.
Wheaton, El. vol. i. p. 102.
Mably, Droit Pub. t. ii. p. 271.
(r) " Hee quoque res, quT traditione nostra fiunt, jure gentium nobis acquiruntur; nihil enim est tam  conveniens naturali oequitati, quam voluntatem domini
volentis rem suam in alium transferre ratam haberi."-Dig. xli. t. i. 9. 3;
" Traditionibus et usucapionibus dominia rerum, non nudis pactis transferuntur." —Cod. ii. 3. 20 (de Pactis.)
(s) "Quoties autem dominium transfertur, ad eum qui accipit, tale transfertur,
quale fuit apud eum qui tradit."-Dig. xli. t. i. 20, 1.
(t);" Traditio nihil amplits transferre debet vel potest ad eum qui accipit,
quam est apud eum qui tradit. Si igitur quis dominium in fundo habuit, id tradendo transfert'; si non habuit, ad eum qui accipit nihil transfert."-Ib.
"Nihil autem interest utrum ipse dominus tradat alicui rem, an voluntate ejus
alius cui ejus rei possessio permissa sit." —Inst. ii. t. i. 42.
(u) "Nunquam nuda traditio transfert dominium, sed ita, si venditio, ant aliqua
justa causa, prmecesserit propter quam traditio sequeretur."-Dig. xli. t. i. 31.




DERIVATIVE  ACQUISITION.                         227
such as warrants the transference, and must not relate to a class of
things which may not be alienated.
3. The form and manner(x) need not be such as to convey the thing
by corporal seisin: overt acts indicating the intention of the alienator, or
symbolical delivery, may suffice.
The Treaty of Partition in 1700, which parcelled out among various
European nations the dominions of the Spanish crown upon the demise
of the wearer of it, without the consent either of him or of the nation,
provided by its ninth article, that the kingdom of Spain should never be
held in joint possession *with that of France or Germany, how- [290
ever it might have accrued to either of these countries —" soit
par succession, testament, contrat de mariage, donation, echange, cession,
ajpel, revolte, ou quelque autre voie que ce soit."   And in that part of
the great Treaty of Utrecht, which in 1713 was concluded between France
and the States-General, it was provided: " On est aussi convenu qu'aucune
Province, Ville, Fort ou Place desdits Pais-Bas Espagnols, ni de ceux
qui sont cedez par Sa MajestO Tr6s-Chretienne soient jamais cedez,
transportez, ni donnez, ni puissent 6choir a la Couronne de France, ni a
aucun Prince ou Princesse de la Maison ou Ligne de France, soit en
vertu de quelque Don, Vente, Echange, Convention matrimoniale, Succession par testament, ou ab intestat, ou sous quelqu'autre Titre que ce
puisse etre, ni etre mis de quelque mani6re que ce soit ou pouvoir, ni
sous l'autorit6 du Rio Tr6s-Chretien, ni de quelque Prince ou Princesse
de la Maison ou Ligne de France."(y)
These provisions contain an enumeration of every conceivable mode of
acquisition, except that of original occupation, discussed in the foregoing
chapters.  Many historical examples may be cited of these International
titles to property.
CCLXVIII. The exchange of territories, and especially of portions of
territories, is familiar to all who are acquainted with European History,
and with the provisons of the principal treaties.  Thus, in the Treaty of
Nimdguen, it is provided by Article XIV., "rpour prevenir toutes les
difficultes que les enclaves ont causees dans l'execution du traite d' Aixla-Chapelle, et retablir pour toujours la bonne intelligence entre les deux
couronnes, il a 6t6 accord6 que les terres enclavees seront echangees
contre d'autres qui se trouveront plus proches et a la bienseance de
S. M. Catholique," &c.   The islands of Sardinia and Sicily(z) the
(x) Dig. xlvi. t. iii. 79. De Solut.; xli. t. ii. 18, 2; xxiii. t. iii. 43, 1. de j. dot.
"Interdum etiam sine traditione nuda voluntas domini sufficit ad rem transferendam; veluti si rem, quam commodavi aut locavi tibi aut apud te deposui,
vendidero tibi; licet enim ex ea, causk tibi eam non tradiderim, eo tamen quod
patior eam ex caus, emtionis apud te esse tuam efflcio." —xli. t. i. 9, 5.
(y) Guinther, vol. ii. p. 91.
Art. xiv. Schmauss, p. 1393.
(z) "Reference had been made indeed to other territories, the Germanic body,
the States of Italy; Sicily, &c., where cessions were frequent; but they were only
nominally independent; they were attached to larger kingdoms; they were the
infirm  and palsied limbs of Europe, and became invariably the first points of
attack in every war."-Hansard's Debates in Parliament on the Blockade of Norway, 1814, Speech of Sir James Mackintosh.




228   PHILLIMORE ON INTERNATIONAL LAW.'Duchies of Tuscany, Parma, and Placentia, were continually
t[291] exchanged with each other in the multiplicity of entangled negotiations which intervened between the Peace of Utrecht, in 1713, and
the Treaty of Aix-la-Chapelle, in 1748.  By the 6th Article(a) of the
Quadruple Alliance in 1720, Philip V. of Spain renounced the reversionary title on Sicily, conferred on him by the Treaty of Utrecht, and received in exchange a reversionary title to Sardinia; and by the first
article, the Duke of Savoy made a reciprocal renunciation of his rights
to Sicily. By the same Treaty, it was agreed that the reversion of Tuscany, Parma, and Placentia, about to be vacant by the extinction of the
male descendants of the Houses of Medici and Farnese, should be declared male fiefs of the Empire, and the investiture be conferred by the
Emperor on the eldest son of the second wife (Elizabeth Farnese) of
Philip V.(b)
By the Treaty of Vienna, in 1738, Tuscany was given in reversionary
exchange for the Duchy of Lorraine, to the Duke of that province;
Naples and Sicily to Don Carlos, the son of Philip V.; while Parma and
Placentia were ceded to the Emperor.
In 1790, Leopold II., succeeding to the Austrian Empire, renounced
by a formal act-in which his eldest son Francis (afterwards Emperor)
joined-his sovereignty over Tuscany, in favour of his second son, Ferdinand III., who confirmed the act, and accepted in due form  the sovereignty. These,n actes," the address of the Regius Advocatus, and the
reply of the Senate to the Grand Duke through their organ the princi-?*292] pal Senator, are all contained in what is called in *the Diplomatic
[     1 Code the "Acte de cession du Grand-Duch6, de Toscane a la
branche puisnee de la maison de l'Autriche."(c)
By the last Treaty of Vienna (1814-15,)(d) these Italian provinces
were again parcelled out among various Powers; and the Stati dei Presidi (a district belonging anciently to Sienna), the Island of Elba, the
Principality of Piombino (over which the Crown of Naples had exercised
feudal rights,)(e) were thrown into the portion of Tuscany, and given to
the Archduke Ferdinand of Austria.
CCLXIX. Cessions(f) of territory are generally consequent on war,
and the subjects of provisions in the Treaties which conclude it; but
instances are to be found of their taking place in the time of peace.  In
(a) Koch, Hist. des Tr. t. i. c. xiii. p. 236.
(b) Koch, t. i. c. xv. p. 256.
(c) Martens, Rec. de Traites, tom. iv. (1785-90), p. 476: c" Acte de renonciation
de S. M. I. et R. Leopold II., par rapport au Grand-Duche de Toscane, en faveur
de S. A. R. l'Archiduc Ferdinand, son second fils, et des decendans males de
celui-ci, ensemble avec lacte d'investiture du Grand-Duche et la cession pleniere
de ce pays, tant de la part de S. M. I. et R. A. Leopold II., que de S. A. R.
l'Archiduc Franqois (aujourd'hui Empereur,) a la Secundo-geniture, en date de
Vienne le 21 Juill. 1790, ainsi que l'acceptation de S. A. R. le Grand-Due Ferdinand III., de la confirmation, des loix, statuts, &c. du Grand-Duche en date du 22
Fevr. 1791, et de l'homage pret4 au Grand-Duc, le 16 Mars, 1791."
(d) Koch, vol. iii. c. xli. p. 493.
(e) I. e. la suzerainete, relating to le droit fdodal, distinguished from la suzerainete
which relates to droit politique.
(f) Giinther, vol. ii. p. 94 (Abtretung.)




DERIVATIVE  ACQUISITION.                          229
1777, Portugal ceded to Spain the islands of Annobon and Fernando del
Po, in order to facilitate the slave trade of Spain with the coast of
Africa.  In 1784, France ceded to Sweden the islands of St. Bartholomew in the West Indies, in return for the free use of the harbour of
Gottenburg, and certain other commercial advantages. The most recent
instance of cession is afforded by the convention in 1850, between Great
Britain and Denmark, whereby Denmark ceded to Great Britain, in consideration of the sum  of ten thousand pounds, all the *posses- [*293]
sions of the Danish Crown on the Gold Coast, or Coast of
Guinea, in Africa.(g7)
CCLXX. Gifts of territory were not uncommon in earlier times; for,
not to mention the handsome presents, already adverted to, of different
parts of the globe made by the Pope to Spain and Portugal, John
XVIII., in 1004, offered the island of Sardinia to whomsoever would
take it from  the Saracens; and Boniface VIII.,(h) in 1297, bestowed
the same island, together with Corsica, upon James II. of Arragon. In
1485, Queen Charlotte of Cyprus(i) gave that island to Duke Charles I.
of Savoy; and, in 1530, the Emperor Charles V.(k) gave Malta to the
Knights of St. John.  We may pass over the earlier alleged donations
of Pepin and Charlemagne to the Roman See, and the acquisitions of the
French Crown by gift, such as the province of Dauphin6 in 1349.
CCLXXI. The history of Louisiana furnishes a more recent and very
remarkable instance of the practical application of some of the foregoing
modes of acquisition by independent nations.
By a secret convention(l) (never, it is said, yet printed) between the
Courts of Versailles and Madrid, on the 2d of November, 1762, New
Orleans, together with that part of Louisiana which lies on the western
side of the Mississippi, was ceded to Spain.  The object of this cession
was to indemnify Spain for the loss of Florida, which, by the preliminaries of the memorable Treaty of Paris,(mn) she had given up to Great
Britain; and, in spite of the remonstrances of *the French inhab- [*294]
itants of Louisiana, Spain took complete possession of this province in 1769.
By a secret Treaty concluded between the French Republic and Spain,
at Saint Ildefonse, on the 1st of October, 1800, Spain engaged to retrocede to France,-six months after the fulfilment of certain conditions
relative to the Duchy of Parma, in favour of the daughter of the King
of Spain,-the province of Louisiana as at that time possessed by Spain.
As soon as this Treaty was made known, Great Britain and the United
States took alarm, and determined to oppose t6 the utmost its completion. Buonaparte, then First Consul, urged by the difficulty of his
position, and partly perhaps also by his need of pecuniary resources,
resolved upon the expedient of selling his new, or rather inchoate, ac(g) Annual Register, vol. xcii. p. 391. Art. i.
(h) Giinther, vol. i. p. 95; Schmauss, vol. i. p. 14.
(i) Schmauss, vol. i. p. 124.     (k)'Ginther, vol. i. p. 96.
(1) Koch, Hist. des Trait~s, c. xvii.; Trait6s de Paris et de Hubertsbourg, vol. i.
p. 362.
(7n) The secret convention was signed on the same day as the preliminaries of
the Treaty. The Treaty itself is not signed till 1763.




230   PHILLIMORE ON INTERNATIONAL LAW.
quisition to the United States.  To this bargain, however, he gave the
name of Cession, and it was effected by the Treaty of Paris, of 1803,
between France and the United States of North America. The words
of the Convention were remarkable:c" Attendu, y est.il dit, que par l'article 3 du Trait6 conclu a SaintIldefonse, le 9 vendemiaire, an Ix, entre le Premier Consul de la R6publique Frangaise et S. M. C., il a 6te convenu ce qui suit: [ici est insere
l'article;] et comme, par suite dudit trait6, et specialement dudit art. 3,
la Republique, Frangaise a un titre incontestable au domaine et a la
possession dudit territoire, le Premier Consul de la Republique, desirant
de donner un temoignage remarquable de son amitie aux dits Etats-Unis,
leur fait, au nom de la Republique Frangaise, cession, a toujours et en
pleine souverainet6, dudit territoire, avec tons ses droits et appartenances,
ainsi et de la maniere qu'ils ont e6t acquis par la R6publique Frangaise,
en vertu du traite susdit, conclu avec S. M. C."(n)
The peculiarity of this form arose from  the fact that the Treaty of
October, 1800, had never been formally executed *by either of
295] the contracting parties.  The ninth article of this Treaty provided that two particular conventions, to be signed the same day, should
be considered as inserted in the Treaty itself.  The first contained the
stipulation that sixty millions of francs should be paid to France; the
second, that all claims upon France by the United States for illegal captures or other matters should be considered as discharged.
It belongs to the province of the historian to record the ineffectual
regret of deceived and injured Spain, and the sagacity of the United
States in profiting by the troubles of Europe, both at this period and
subsequently by the acquisition of Western Florida.  But it should be
observed here that the instance illustrates national acquisition by gift,
sale, and exchange, and that the title of the United States to this acquisition has never been questioned.
CCLXXII. The Election of an individual to the sovereignty of a
State, though not strictly speaking a mode of acquiring territory, may
indirectly be the cause of it, when the elected person is already ruler
over an independent kingdom to which the new State becomes united.
Thus the Poles, by the election of the Duke Jagello in 1386, united
Litthauens to their own kingdom.  And this result may ensue not only
in the case of an elective sovereignty, but also in the instances, not infrequent in history, of the failure of the first line of sovereigns, and the
consequent necessity of choosing a collateral branch.(o)
Towards the close of the fourteenth century( p) (1375) the race of king
Svend Estrithson became extinct in the person of Waldemar IV.  His
grandchild Olaf, the son of his youngest daughter Margaret, wife of the
King of Norway and the asserted heir of Sweden, was chosen successor
to the throne, because he would eventually unite Norway with Denmark.(q)
(n) Koch, vol. ii. p. 322.       (o) Giinther, vol. ii. p. 97.
(p) Dahlman's Geschichte, von Danemark, 2 Band, pp. 46-75.
(q) The senators were first divided, some wishing for the acquisition to be
acquired by the Union; others objecting that Denmark, an elective monarchy




DERIVATIVE  ACQUISITION.                        231
*Olaf died in 1387; and his ambitious and energetic mother [*296]
having survived her mother and child, and seized upon the seeptre of Sweden in 1387, united the then Scandenavian kingdoms under
one monarchy by the famous union of Calmer in 1397.
The Election of the house of Brunswick to the throne of Great Britain
brought with it the union of Hanover, though happily for a certain time
only, to these kingdoms.
CCLXXIII.  Marriage (contrat de mariage) of the hereditary governor of that country has been frequently a mode of acquisition of new
territory to that country, sometimes by the incorporation of a province,
sometimes by the union of two distinct and independent kingdoms.
The wife of Charles II. of England brought with her Tangiers and
Bombay as a dowry, and the latter has proved no unimportant addition to
the Empire of Great Britain. Philip III. of France acquired to the
French throne the countries of Carcasonne and Bezier, the dowry of his
wife, Isabella of Arragon. Alphonso III. of Portugal acquired the province of Algarves to the throne of that country, as the dowry of his
wife, the natural daughter of Alphonso X. of Castille.(q')
Philip IV. of France acquired the independent kingdom of Navarre
by his marriage with Johanna, Queen of that territory; and though,
after a time Navarre again returned to the government of its own
monarchs, it was finally acquired to the throne of Spain by the marriage
of Blanche of Navarre to John II. of Arragon 1425. France acquired,
through the successive marriages of Charles VIII. and Louis XIII. with
Ann of Brittany, that great and formerly independent Duchy.
The House of Hapsburg owes its power and station, partly to the
imperial dignity which it obtained toward the *end of the thir- *297
teenth century, but still more to the marriages which the Empe- [*297
rors of Austria have contracted with heiresses.
Mary of Burgundy, the daughter and sole heiress of the last Duke of
that name, brought with her the magnificent dowry of the Low Countries, including the Franche-Comt6 Flanders, and Artois, to the Emperor
Maximilian.(s) The son of this marriage, Philip the Handsome, married
the sole heiress to the throne of Arragon and Castille, so that it has not
been untruly sung by the Poet of modern date,"Bella gerant alii, tu felix, Austria, nube;
Nam qum Mars aliis, dat tibi regna, Venus.'
Sometimes national rights and claims have been conferred by marriage. At the peace of Noyon, in 1516, Francis I. of France promised
to give with his daughter on her marriage with the then King Charles
of Castille, all his rights and title to the kingdom of Naples; and in
the abortive matrimonial negotiations between the two thrones, it was
stipulated that certain lands should be given in compensation for the
non-fulfilment of a contracted marriage by the party causing it.(t)
(ein freies Wahlreich), would thereby be subjected to Norway, an hereditary kingdom (Erbreich,) ib. 52.
(r) Giinther, vol. ii. p. 98 (Abtretung.)
(s) Koch, Tabl. des Rev. t. i. p. 316.  (t) Giinther, vol. ii. p. 99.




232   PHILLIMORE ON INTERNATIONAL LAW.
The marriage of sovereigns may or may not occasion a permanent
incorporation of territories, according to the laws of the respective kingdoms; by which will also be governed the rank of each sovereign and
their respective powers and authorities.  The instances of Philip and
Mary in England, Francis II. and Mary in Scotland, William and Mary
in the British dominions, will readily  occur as illustrations of this
remark. (n)
CCLXXIV. Successio ab intestato (Succession) is also among the
*298] means of national acquisition.  It is true that the *rules of
[LI ]1 Civil Law framed for individuals are not, strictly speaking applicable to nations.(x) The death of a nation would be the dissolution of
its social and political elements; and there would be no next of kin to
take succession to the property, which it had occupied, while its corporate character i'emained.  But as States, represented by monarchs, have
been allowed to acquire property through the marriage of their sovereign,
so have they been allowed to acquire property through his personal relation, as next of kin, to the sovereign of another territory in which the
government is hereditary, upon the decease of that sovereign without
any nearer relative.  The question has been much discussed by writers
on the Law of Nations and upon the general principles of Jurisprudence
— whether the succession of the next of kin to an intestate person be a
law of Nature, or merely an institute of Civil Law.(y)
It is certain, however, that the death of the ruler of the State, without making any testamentary provision for his succession, even in countries where the power to do so is ligitimately invested in him, can give
no right to any foreign nation to take possession of the territory; for in
that event, the power of disposition devolves upon the body corporate of
*the State.  James I. of England succeeded to the throne of
[299 ] this country, partly by the nomination of the dying Elizabeth,
and partly by right of his descent.  The whole question of successionwhether through Agnates, relations on the male side, or Cognates, relations on the female side-is properly and exclusively a matter to be settled by the constitutional law of the country itself.  How  far, at least,
any exceptions may exist to this rule in the right of INTERVENTION
which the legitimate apprehension of danger may confer on other nations,
will be discussed in the subsequent pages of this work. Nor can it be
denied that some of the bloodiest European wars have arisen out of dis(u) Giinther, vol. ii. pp. 100-103. Ib., and valuable notes.
(x) Grotius, 1. ii. c. ix.
(y) Grotius, 1. ii. c. vii. s. iii. p. 277. Grotius is among the supporters of the
former opinion, founded on the presumption that the deceased person could not
have intended his property to have been lost, but must have wished it to be given
to those who were dearest,-that is, according to all presumption,-those who
were nearest to him. His commentator, Cocceins, thinks that the rule of succession in Europe arises from the necessity of the case; viz., that all land being occupied by somebody, the relations of the deceased would be without support if they
did not succeed to his prospects. Sam. Cocceii Introd. ad Henr. Cocceii Grot.
illustr. diff. proem. x. ss. 12 et 13: " Cum rebus terrm in universum occupatis nihil
amplius supersit quod occupari possit, vel non quantum sufficit; homines occupatis
rebus nati; succedunt, in occupationem parentum."-Giinther adopts this reasoning, vol. ii. p. 103.
Puffendorf, 1. iv. C. xi. De Success. ab Intestato.




DERIVATIVE  ACQUISITION.                       233
puted succession to the government of kingdoms.  No educated person
is ignorant of the wars of England under the Edwards and Henries, for
the crown of France, or of those horrible thirty years of warfare, which
originated in the claim of the Elector Palatine of Bohemia, and which
desolated Germany till the Treaty of Westphalia,-or the general distraction and prolonged disturbance of the peace of Europe which arose
out of the disputed succession to the House of Spain, and was closed by
the Treaty of Utrecht.
The claim of the sovereign of another nation is rarely without the pretext of support from a party in the country which is the object of his
ambition. When Philip II. of Spain seized on Portugal, claiming
through a younger daughter of King Henry, with whom the male line
became extinct in 1580, to the exclusion of the House of Braganza,
allied to an elder daughter, he was supported by the alleged free choice
of the magnates of Portugal.  The unfortunate Elector Palatine was
supported in his pretensions to the kingdom of Bohemia by the choice
and approbation of the States of the realm.
A large party, both in Great Britain and Ireland, were favourable to
the claims of the Pretender during the reign of the first two Georges.
A similar remark is applicable to the Pretender to the thrones of France,
Spain, and Portugal in our own times.
*CCLXXV. Testamentary disposition  has  unquestionably   300
been a mode of territorial acquisition by nations, in the persons   00
of their governors. But it can only be so when the kingdom is proprietary-a state of things which it has been already observed(z) cannot be
said now to exist in Europe; not even, it is presumed, in Russia; though
it might happen that the nation adopted and ratified the will of the deceased sovereign.  The famous will of Charles II. of Spain, made (2d
October, 1700), under the superintendence of the Cardinal Portocarrero
his minister, and after receiving the advice of the Pope and of the most
learned theologians-that will by which he bequeathed dominions upon
which the sun never set, to the second son of the Dauphin of Franceis a remarkable instance of the exercise of this power, but one which is
not likely to be imitated.
In truth, the only sound rule upon the whole subject of these modes
of acquisition, either testarnento or ab intestato, which can find its place
in a work of International Jurisprudence, is this, that the voice of the
people of the country, concerning whose government the dispute arises,
should, through the legitimate channels of its own constitution, decide
the question for itself in such a manner as not to threaten the security
of other nations.
Conquest, fortified by subsequent treaty, gives a valid International
title to territory; but this subject belongs to a later part of this work.
The case of the acquisition of a portion of the dominion of Saxony by
Prussia,(a) in 1814, is so anomalous, that it is impossible to class it
(z) Vide ants, p. 284.
(a) See Talleyrand's admirable M6moire raisonn6 on this subject, Trait. de
Dipl., De Garden, t. iii. p. 146.
AuousT, 1854.-16




234    PIHILLIMORE ON INTERNATIONAL LAW.
under any known or legitimate category of International Acquisition.
[*301] If it belong to any, it is to *that of Conquest and Treaty just
mentioned; but, in truth, it belongs to the class of transactions
of which we must say,
"Non ragionam di loro, ma guarda e passa."(b)
with, however, a strong protest that no axiom of International Law is to
be deduced from an act, which seems, upon all the principles of that
science, indefensible.
[*202]                 "CHAPTER   XV.
ACQUISITION OF RIGIHTS.
CCLXXVI. The property of a State may not only be alienated, but
may also be subjected to obligations and services in favour of another State;
as the property of an individual may be burdened and encumbered in
favour of another individual.(a) This may, of course, happen in various
ways; but it most frequently occurs when a State, having contracted
pecuniary obligations towards another State, has mortgaged its revenues,
or pledged a portion of its territory, as a security for the payment of its
debts.  Thus, among other instances, the United Provinces of the Netherlands hypothecated Vlissingen, Rameken, and Briel to England, in
1585.  Denmark, in 1654, hypothecated the province of Holland to
Sweden, as a security for the peace then concluded.(b) Weimar appears
to have been pawned, so to speak, to Mecklenburg in 1803,(c) and Corsica by Genoa to France in 1768.
We are not speaking now, it will be observed, of debts contracted by
States to Individuals (a question to be dealt with hereafter), but to other
States.
[*303]    CCLXXVII. It sometimes happens that the debt between
x303] the Government of one country and the Government of another
is made the subject of a treaty.  Sometimes the Government of a third
Power guarantees the payment of the debt.(d) In 1776 Russia guaranteed
a loan of 500,000 ducats contracted by the Polish Government.
By the 97th article of the Treaty of Vienna (1815), the maintenance
(b) Dante, Inferno, III. 51.
(a) Giiunther, vol. ii. pp. 153-161. Vattel, 1. ii. c. ii. s. 80.
Heffters, p. 133. s. l1.
Kfiber, vol. i. s. 140.
(b) Giinther, vol. ii. p. 153.
Dumont, C. Dipl. t. v. s. i. p. 454.
(c) Martens, Rec. vol. viii. s. 54. Ib. p. 229.
See too, Schmauss, C. J. G. vol. ii. pp. 1140, 1150.
(d) Vattel, 1. ii. c. xvi. s. 235-261. Vide post, Chapter on TREATIES.
Kluiber, s. 155-157., n. d.
Giinther, vol. ii. pp. 243-254.




ACQUISITION  OF  RIGHTS.                            235
of the credit and solvency of the establishment called the lVront-Naipooe'onr
at Milan, was especially provided for.
CCLXXVIII. States are sometimes placed in such physical relations
to each other, that some limitations of the abstract rights of each necessarily flow from their natural relations, or from the reason of the thing.
Thus a State is bound to receive the waters which naturall/y flow within
its boundaries from  a conterminous State.  This obligation belongs to
the class of cr servitutes juris gentium natucraes," and here the provisions
of the Digest(e) and Institutes may be said to be identical with those of
International Law.(f)
CCLXXIX. A State may voluntarily subject herself to obligations in
favour of another State, both with respect to persons and things, which
would not naturally be binding upon her.  These are "servitutes juris
gentium voiuntarice." (g)
-In the language of Jurisprudence, when a thing is subject to
the exercise of a right by a person who is not the master or pro- [E34]
prietor, it is said to serve (res servit) or yield service to that other person.(7h)
CCLXXX. The doctrine of Servitus occupies an important place in
the Roman Law; and in some shape, and under some appellation or
other, exists of necessity in the jurisprudence of all nations.(i)  This
obligation to service constitutes a right in the obligee or the person to
whom it is due, and it ranks among the 1rjura in'e," while it operates
as a diminution and limitation of the right of the proprietor to the exclusive and full enjoyment (libertas rei) of his property.(k)
According to the Roman Law, the Servitus consisted either —. in not
doing something (in notn faciendo), and was negative (servitus negativa));
or 2. in suffering something to be done (in yLatiendo), and was affirmative
(e) a1 Semper hlec est servitus inferiorum  praediorum  ut naturda profluentum
acquam. excipiant." —Dig. xxxix. t. iii. 1. s. 22.
(f) Heffters, s. 43: "Worauf sich unbedenklich auch die Vorschriften des
Romischen Weltrechtes anwenden lassen."
(g) J. N. Hertius, in diss. de servitute naturaliter constitute cum inter diversos
populos, tunm inter ejusdem reipublicae cives, (Prolegom. s. 3. in ejusd. Comment.
et Opercul. v. ii. t. iii. p. 66.) defines servitus as "ijus in re alien5, alteri L natur5a
constitutum, cujus vi et potestate dominus istius rei ad alterius utilitatem, aliquid
pati aut non facere in sno tenetur." —De necessitate et nsu Juris Gentium, &c.,
Wieland et Foerster, Lipsiue, s. xvi. p. 37.
(h) Dig. viii. passim.
Instit. ii. 3.
Cod. iii. t. 34.
Domat, 1. i. t. 12. s. 1.
Savigny, Recht des Besitzes, Fdinfter Abschnitt, p. 575.
Mackeldey, Lehrbuch des R. R., s. 274. u. s. w.
Schilling, Pandekten Recht, s. 446. u. s. w.
Puchta, Instit. s. 252.
(i) " Aussi les servitudes ont-elles dte reconnues partout oh les hommes se sont
fixes d'une manitre permanente en formant des associations durables."-Ahrens,
Philosophie du Droit, p. 324.
" When a thing or property was free from all servitus, it was called res optima
maxima."-Dig. 1. t. 16. s. 90, 169.
Cicero, De Lege Agrar. iii. 2.
(k) " Cum quis jus suum deminuit, alterinus auxit, hoc est ei servitutem mdibus
suis imposuit." —Dig. xxxix. t. 1. s. 5, 9.




236      PHILLIMOORE  ON  INTERNATIONAL  LAW.
(servitus affrmativa): but it could not consist in the obligation to do
something (infaciendo).  Not that the owner of a thing might not be
obliged to do something in relation to that thing, for the benefit of an[*305] other person; but that this obligation *assumed a technically
different character, and was not a 4ijus in re."(l)
It is not, however, necessary to examine with greater minuteness the
provisions of the Roman Law upon this subject, though some mention of
the general doctrine was a necessary preface to the application of it to
the case of States; for some States, as well as individuals, have been and
are entitled to exercise rights of this description, and others therefore are
and have been subject to the obligations which correspond to them.
CCLXXXI. The servitutes juris gentiunm  must, however, be almost
always the result either of certain prescriptive customs, or of positive
convention.  The entire liberty which each State naturally possesses
over its own property cannot be curtailed upon presumption.  The jcs
in re aliena is a derogation from the general principle of law, and requires, as a special and extraordinary right, the strictest proof of its
existence.
CCLXXXII. History furnishes many examples of these servitutes
voluntarice, both as to persons and things.  As to persons, the stipulations of various Treaties between England and France provide that the
Stuart Pretender should not be permitted to reside in France.(m)  And
when Spain confirmed by Treaty the acquisition of Gibraltar to England,
she stipulated that neither Moors nor Jews should be allowed to reside
there.(n)
As to places, there are various instances of servitutes both negative
and affirmative, but chiefly of the latter description.  Of the negative
kind was the engagement of France, the subject once of so much anxiety
6  and so many *conventions, that the port and fortifications of
L[306] Dunkirk should be destroyed.(o)  British and Dutch Commissioners were empowered by Treaty to superintend the execution of these
demolitions, and though ejected in time of war, they returned with the
restoration of peace, and were only finally withdrawn, in compliance
with the provisions of the Treaty of Versailles, 1783.(p)
By the Treaty of Paris, 1814,(q) it was stipulated that Antwerp should
be an exclusively commercial port; and the stipulation wds renewed by
the Treaties of 1831-39, which erected Belgium  into a separate kingdom.(r)
By the same Treaty of 1831,(s) it was stipulated, negatively, that the
fortresses of Menin, Ath, Mons, Philippeville, and Marienburg should
(1) " Servitutum non ea natura est ut aliquid faciat quis (veluti viridaria tollat,
ant amceniorem prospectum prestet, ant in hoc ut in suo pingat:) sed ut aliquid
2patiatur, aut nonfaciat."'-Dig. viii. t. i. s. 15.
(m) Treaty of Utrecht (1713), between France and England, Art. 4.
(n) Treaty of Utrecht, between Spain and England, Art. 10.
(o) Trait6 d'Utrecht (1713), Art. 9.
Traite de la Haye (1717), Art. 4.
(p) Koch, Hist. des Tr. vol. i. pp. 333-4. See, too, the Treaties of Radstadt and
Baden between France and the Emperor of Germany, Arts. 5, 8, 9.
(q) Art. 15.              (r) Art. 14.               (s) Art. 1.




EXTINCTION OF DOMINION.                            237
be demolished before the 1st of December, 1833; and acfflrmzatively, that
the other Belgian fortresses should be kept in repair by the King of the
Belgians.
At one time Holland insisted that the Ostend East India Company,
founded in 1723, and abolished by the Treaty of Vienna in 1731, was
under a servitus non qavigandi.(t)
The Treaty of Vienna (1814), which reinstated the Pope in the possession of the Marches, Camerino, Beneventum, Ponte-corvo, and the
Legations of Ravenna, Bologna, and Ferrara, on the right bank of the
Po, subjected His Holiness at the same time to the servitus of suffering
Austrian garrisons e"dans lesplaces(u) de Ferrare et Commachio."
*CHAPTER  XVI.                            [+307]
EXTINCTION OF DOMINION.(a)
CCLXXXIII. As Dominion is acquired by the combination of the
two elements of fact and intention, so, by the dissolution of these
elements, or by the manifestations of a contrary fact and intention, it
may be extinguished or lost.(b)
In this case the dominion is lost, actually or by presumption, with the
consent of the State which loses it.
CCLXXXIV. The title of Prescription in another State is often,
though not necessarily, founded on the preszumed dereliction of the possession by the original owner.
It must be borne in mind that this presumption like all others, is
liable to be repelled by proof of sufficient strength,(c) that is, by
evidence of a state of facts wholly inconsistent with such presumption.
On the other hand, it should be observed that there is a' conduct, and
that there are acts on'the part of a State, which must be con- [*3081
strued as an abandonment of her previous rights.  For instance, a
State may make herself a party to some convention upon another matter,
but in which the possession or right originally belonging to her is
(t) Kfiber, s. 133. n. c.
Ompteda, tit. ii. 600.
(u) The real meaning of this term underwent much discussion during the recent
disturbances in Italy.
(a) Grotius, 1. ii. c. ix.-Quando imperia vel dominia desinunt, 1. iii. c. ix. 9.
Martens, t. ii. 1. ix. p. 340-4.
Giinther, vol. ii. p. 213.
Heffters, 72.
Muhlenbruck, 1. ii. c. iii. s. 270.
(b) "Fer6 quibuscunque modis obligamur, iisdem in contrarium actis liberamur;
qluum quibus modis acquirimus, iisdem in contrarium actis amittimus. Ut igitur
nulla possessio acquiri, nisi animo et corpore potest, ita nulla amittitur, nisi in
qua utrumnque in contrarium actum est."-Dig. L. 17, 153; xli. 2, 8.
(c) " Quia vero tempus memoriam excedens quasi infinitum est moraliter, ideo
ejus temporis silentium ad rei derelicte conjecturam semper sufficere videbitur,
nisi validissimce sint in contrarium rationes."-Grotius, De J. B. 1. ii. c. iv. s. 7.




238      P  I1 ILLIMORE  ON  INTERNATIONAL  LAW.
indirectly, though of necessity, treated as belonging to the claimant by
prescription; and such convention being concluded without any reservation on the part of the nation, would be very strong evidence of the
abandonment of her right.' Again, if a nation suffer other nations in their mutual arrangements
to deal with the right of possession in question as belonging to one of
them, and makes no protest in favour of her claims, she must be held to
have acquiesced in the transaction.  An individual may indicate his
acquiescence by his words or by his deeds.    "Recusari hboreditas non
tanturnm  erbis, sedl etiam  re protest, et alio quovis indicio voluntatis"(d)
is the doctrine of the Roman Law; and upon it Grotius(e) remarks,
c"Sic si is qui rei alicujus est dominus, sciens cum  altero  eam  rein
possidente tanquam  cum  domino contrahat, jus suum  remisisse merito
habebitur: quod cur non et inter reges louum  habeat, et populos liberos
nihil causma est."   And again: c( Venit enim hoc non ex jure civili sed
ex jure naturali, quo quisque suum  potest abdicare, et ex jure naturali
prmsumptione, qut voluisse quis creditur quod sufficienter significavit:
quo sensu recte accipi potest quod Ulpianus dixit, juris gentium  esse
acceptilationem."(f)
Heineccius, in his Commentary on Grotius, expresses concisely the
the same doctrine ",inter gentes loco signi est patientia scientia."(g)
It is indeed true that, according to Grotius, silence cannot be construed
as an assent, unless it be cc scientis et libere *volentis;" but he
[*309] adds that "temporis in utrumque magna vis est;" and in fact
these conditions are presumed after the lapse of time.(h)
CCLXXXV. The practice of nations confirms this theory: they have
frequently entered protests(i) in favour of their alleged rights upon the
conclusion of Treaties in which these rights were expressly, or by implication, negatived.  It is hardly necessary to add, that a nation, who is
herself a party to such a Treaty, without making any protest, has
unquestionably abandoned her rights. The Congress of Aix-la-Chapelle
(d) Dig. xxix. 2. s. 95.             (e) L. ii. c. iv. s. 4.
(f) Ib. Dig. xlvi. 4. s. 8.
(g) Prmlect. 1. ii. c. iv. s. 4. See, too, Mably, Droit Public, t. ii. p. 21, 22.
(h) Grotius (De Jure Belli, p. 227.) says: " Sed ut ad derelictionem praesumendam valeat silentium  duo requiruntur, ut silentium sit scientis, et ut sit libere
volentis, nam non agere nescientis, caret effectu; et alia causa cum apparet, cessat
conjectura voluntatis."
" Ut haec igitur duo adfuisse censeantur, valent et alim conjecturve: sed temporis
in utrumnue magna vis est. Nam primum fieri vix potest, ut multo tempore res ad
aliquem pertinens non aliqua via ad ejus notitiam perveniat, cum multas ejus occasiones subministret tempus. Inter prsosentes tamen minus temporis spatium ad
Lane conjecturam sufficit, quam inter absentes, etiam seposita lege civili. Sic et
incussus seDnel metus durare quidem  nonnihil creditur, sed non perpetuo, cum
tempus longuni multas occasiones adversus metum sibi consulendi, per se, vel per
alios suppeditet, etiam  exeundo fines ejus qui metuitur, saltem ut protestatio de
jure fiat, aut, quod potius est, ad judices aut arbitros provocetur."
I K(Troxov Kai /fiaLov r7v T 7LtV  rnreronIc6-rog roe Xppvov." —Dionys. Halicarn. c. ix. t.
ii. p. 155.
"Xp6vos yap E p t a p 7S Es,"
according to the remarkable expression of Sophocles ('HXiKrpa, 179.).
(i) Mably, Droit Public, t. i. pp. 104, 342.; t. ii. pp. 43, 193.
De Rayneval, Instit. du Droit de la Nature et des Gens, 1. ii. c. ix. s. 2.




EXTINCTION  OF DOMINION.                            239
(1748) was the last in the eighteenth century at which these protests
were made. Thus, the, Pope has perpetually protested, from the Treaty
of Westphalia to the Congress of Vienna, against all Treaties recognising
or confirming the confiscation of Church property effected at or since the
time of the Reformation.(k)
*In  1814(1) the King  of Saxony published  an admirable  *310
protest against the dismemberment of his kingdom.  And at the [*310
Congress of Vienna (1815) the  Pope and Gustavus IV., ex-king of
Sweden, delivered protests.(mn)
CCLXXXVI. This dereliction of property is, however, often not left,
and where it is possible never should be left, to the inferences of legal
presumption. The solemn renunciation of territory and of rights by a
State is one of the most important subjects, both of Public and International Jurisprudence.  Memorable instances of their importance are to
be found in the Treaties of Utrecht.  In these Treaties the renunciations
of the Emperor of Germany, the King of France, and the King of
Spain established the separation of the Crowns of France and Spain as a
fundamental rule of European International Law, and severed Belgium,
Milan, and Naples from the Spanish monarchy.
The States or State interested in the renunciation 1must take care that
it be ratified by the Constitutional Authorities of the renouncing kingdom.
WTe may close this subject with the remark of Mably: "c Tous les peuples
sentent la necessitd des renonciations pour etablir entre eux la sfrete,
l'ordre, et la paix; ne doit-ilpas etre absurde dedouterde leurvalidite?"(n)
CCLXXXVII. Another mode of extinguishing dominion is, as we
have seen, by voluntary transfer of the possession; but it is important
to observe, that if a part of a territory be alienated, it carries with it to
the new owner all the obligations and debts by which it was previously
bound; here, as in most cases, the principle of the Roman Law  being
applicable: —-  Id enim  bonorum  cujusque esse intelligitur quod  eri
alieno superest.(o)  When property has been granted *under a
condition which has not been fulfilled on the part of the grantee, L[311]
then redit dominium i2pso jure to the grantor. And in this case it
appears consonant to justice that the property should be restored to the
grantor with its intermediate fruits and revenues, and without the burdens or obligations imposed on it during its temporary ownership, there
being, as Jurists say, a dominii resolutio ex tunec.(p)
(k) Koch, Hist. des Tr. t. i. p. 316. (ed. Brux. 1837).
Mably, t. i. p. 143; t. ii. pp. 50, 130-9, prcesertim (for History of the Renunciation of France in the Treaties of Utrecht) p. 148.
Wheaton, Hist. p. 87.
(I) Garden, Tr. de Dipl. t. iii. p. 205, contains the Protest at length. See, too,
p. 146 —the M6moire raisonn6.
(m) Koch, t. iii. p. 500.           (n) Droit Public, t. ii. p. 140.
(o) D. de V. 8. 1. t. xvi. 125; xlix. t. xiv. s. s. 11, D. de Jure Fisc.
(p) " Amittimus etiam dominium, quod sub resolvente conditione acquisiveramus, si conditio impletur. Hoc autem duobas modis fieri potest. Aliquando enim
ita resolvitur jus nostrum, ut res nunquam inostra fuisse videatur, tum onera ei h
nobis imposita evanescunt, et res cum fructibus et omni cause restituenda est.
Hme rescissio accidit, quoties sub casuali conditione res nobis alienata fuerat, veluti
si ager sub lege commissori5a emptus, ob pretium non solutum inemptus sit. (Exempla extant in fr. iii. s. iii. D. 18,2 (de in diem addictio.); fr. 3 D. 20, 6 (quibus mod.




240   PHILLIMORE ON INTERNATIONAL LAW.
CCLXXXVIII. The doctrine of Postliminium,(q) in the case of States,
is borrowed from the Roman Law, and belongs to the time of Peace as
well as War, though properly and chiefly to the latter, where it will be
further discussed.
The jets postiimtinii, in the sense in which it is now about to be used,
means the right of being reinstated in property(r) *and rights
NM  ]" 1  which  have  been accidentally  lost or illegally taken  away.
They must, however, have been at one time actually, and not theoretically,(s) possessed,-as was rightly determined in the case of Belgium,
which has been already mentioned.(t)
CCLXXXIX. When property, or rights, have been so lost and taken
away, it should seem to be the better opinion of jurists, that even a bona
fide possessor and purchaser must restore them to the rightful owner(it)
-and, moreover, without compensation for the expenses which he (the
bona fide possessor) may have incurred in purchasing it.  He is not
even, according to many jurists, following the doctrines of the Civil Law,
entitled to the e'p ETPoD, the inventionis prcemia,(x) except, indeed, in cases
in which the rightful owner himself must have paid for the recovery of
the goods of a friend from the possession of an enemy.(y)  Salvage on
recapture is founded on this principle, and is a part of the Maritime Law,
not only of our own, but of all civilized nations.  Property recovered
from robbers by sea or land falls of course under the same principle.
CCXC. Upon the question, however, whether the bona fide possessor
pign. vel. hyp. solv.), c. iv. 0. 4, 54 (de pactis inter emnt. et venditor.)  Redit dominium ipso jure.)  Allis in causis revocatio dominii in pruteritum trahenda non
est; quo casu res sine fructibus, sed cum oneribus ei a nobis impositis restitui
debet. (Exempl. in fr. 3. in f. D. 20, 6. (tit. cit.), fr. 3. D. 18, 6 (de rescind. vend.),
c. 2. C. 4, 54 (tit. cit.), Dominium ipso jure non redit, sed tenemur ad rem veteri
domino tradendam.) Hodierni illam dominii resolutionem ex tunc: bane vero ex
nunc appellare consueverunt. Htec maxime turn obtinet, cum res sub potestativa
conditione nobis abalienata erat." —Warnkonig, Instit. Jur. Rom. Privati, 1. ii. c.
ii. tit. viii. s. 378.
(q) Grotius, 1. iii. c. ix., De Postliminio.
"Dictum  est autem postliminium h limine etpost; unde eum, qui ab hostibus
captus, in fines nostros postea pervenit, postliminio reversum recte dicimus. Nam
limina sicut in domibus finem quendam faciunt. Sic et imperii finem limen esse
veteres voluerunt. Hine et limes dictus est, quasi finis quidam et terminus; ab eo
posliminium dictum, quia eodem limine revertebatur, quo amissus fuerat."-Institut.
l. i. tit. xii.  Quibus modis jus patricepotestatis solvitur, s. 5.
Bynkershoek, Q. J. P. 1. i. c. xvi., De Jure Postliminii varia.
(r) Grotius, 1. ii. c. x., De obligatione quce ex dominio oritur; or, according to Barbeyrac's most correct translation, "De l'obligation que le droit de propriet6 impose
m autrti, par rapport an proprietaire."
(s) Grotius, 1. iii. c. ix., De Postliminio.  (t) Wheaton's tist. pp. 547-555.
(ui) Grotius, 1. ii. c. x. i. 5., De obligatione quce ex dominio oritur: "Nam  ad
dominii naturam nihil refert ex gentium  an ex civili jure oriatur: semper enim
secure habet qune sibi sunt naturalia, inter qua est obligatio cujusvis possessoris
ad rem domino restituendam.  Et hoe est quod ait Mlartianus jure #entium condici
posse res ab his qui non ex just' causa possident."
(x) Grotius, 1. ii. c. x. note (14): " Quid ergo, si eV'pepa (id est, inventionis proemia)
qua dicunt, petat?  Nec hie videtur furtum facere, etsi non probe petat aliquid."Dig. xlvii. t. ii. 44, 9, De Furtis.
(y) Heineccius indeed thinks this practice " ex regula honesti," but not " ex
regula justi;" because no owner ought "res suas bhis emere." —Heinec. in Grot. 1.
ii. c. x. 9.




EXTINCTION OF DOMINION.                            241
is bound to restore,(z) not only the possession, but "the inter-   313
mediate fruits and profits which he has derived from it, there is
some difference of opinion.   Grotius and Puffendorf(a) hold that he
must restore so much of the fruits of the property as have increased his
fortune, though not the value of that which has been consumed by him
upon his actual necessities.  They found this maxim upon a rule to be
found in the Digest: " Jure naturae oequum est neminem  curm  alterius
detrimento et injuria fieri locupletiorem."(b)  The rigid adoption of this
rule has led them both into considerable perplexity, and into the necessity of allowing many exceptions from it, chiefly founded on the doctrine
of obligations from implied contracts (ex quasi contractu.)(c)  It is difficult not to agree with Barbeyrac, that the rule cited is not necessarily
applicable to any cases of this description:(d) c" Mais," (he says) "' pour
ne pas l'etendre trop loin, il faut considerer, si celui qui profite, aux
ddpens d'un autre, n'a pas un droit de faire ce profit. Car s'il en a un
droit, alors on voit bien que c'est tant mieux pour lui, et tant pis pour
l'autre."(e)  The maxim cited from the Civil Law may indeed be opposed
by another derived from the same source: " Bona fides tantundem possidenti priestat, quantum  veritas, quoties lex," (that is, some particular
law) " impedimento non est,"(f) and that the true rule of International
Law is, that the peaceable enjoyment *of an honest possessor is
to be considered as a kind of interregnum which has interrupted [*314]
the power of the true proprietor, but insures to the putative proprietor
the fruits of his management while he was in full authority.(g)
CCXCI. Gunther seems to admit the position of Grotius, but asserts
that the honest possessor may set off the costs of the improvements which
he has effected, against the emoluments which he has received.(h) Heffters takes, in effect, the same view of the matter as Barbeyrac, but without referring to him.(i)  Heffters founds his opinion upon the position,
that the silence of the true proprietor, during the time the honest possessor was in authority, ought to secure to the latter his gains; and Barbeyrac acutely observes, what Thomasius, who followed in the wake of
(z) " Thou shalt not see thy brother's ox or his sheep go astray, and hide thyself from them; thou shalt in any case bring them again unto thy brother.
" And if thy brother be not nigh unto thee, or if thou know him not, then thou
shalt bring it unto thine own house, and it shall be with thee until thy brother
seek after it, and thou shalt restore it to him again."-Deuteronomy, c. xxii. v. 1, 2.
(a) Grotius, 1. ii. c. x.
Puffendorff, 1. iv. c. 13.
(b) De divers. Reg. Juris. Leg. ccvi. And so Cicero says: "Detrahere igitur
aliquid alteri, et hominem hominis incommode suum augere commodum, magis est
contra naturam, quhm mors, qunm paupertas," &c. —De Offic. I. iii. c. v.
(c) Grotius, ib., and Heineccii Pralect:-"-'Et que sunt alia hujus generis exempla. Innumera enim in jure universeo, maxime in materia de quasi contractibus
passim occurrunt."
(d) It is the doctrine, however, of English Law.
(e) Barbeyrac on Grotins, t. i. 1. ii. c. x. p. 391. (note 4.)
(f) Dig. 1. 50. 17. De Div. Reg. Jur Ant. 136.
(g) Barbeyrac on Puffendorf De Jure Nat. et Gent. 1. iv. c. xiii. s. 3 Ibid. on Grotius, de Jure B. et P. 1. ii. c. x. s. 2.
(h) Gunther, vol. ii. p. 214.         (i) Heffters, 73. n. 1.




242 -   PHILLIMORE ON  INTERN              ATIONAL  LAW'.
Grotius and Puffendorf, is obliged in his commentary on Huber's work(k)
(De Jure Civitatis) to admit, "( que, quand ii s'agit de voir si un possesseur de bonne foi s'est enrichi par la possession de la chose meme, ou par
la joui'ssance des revenus qui en proviennent, c'est un examen sujet a des
diffcultdes infinies, et dont on ne peut presque venir a bout."
CCXCII. From the practice of nations with respect to this matter in
time of peace but little aid is to be borrowed for either argument. The
13th Article, however, of the Peace of Ryswick, in 1697, though it may
be said more properly to refer to indemnification due from a wrong-doer
to a lawful owner, may be mentioned here: "t Et in quantum, per auctoritatem  Domini Regis Christianissimi Dominus Rex Magunm  Britannim
impeditus fuerit, quominus frueretur reditibus, juribus et commodis tam
principatufs sui Aransionensis quam  aliorum  suorum  ]Dominiorum, qure
post conclusum  Tractatum  *Neomagensem, usque ad declarationem proesentis belli sub dominatione predicti Regis Christianissimi fuerunt, prsedictus Dominus Rex Christianissimus Regi MRagnU
ZBritannice restituit et restitui efficiet realiter cum effectu et curm interesse
debito, omnes istos reditus, jura et commoda secundum  declarationes et
verificationes coram dictis Commissariis faciendas."(l)
CCXCIII. Property may be taken, without consent, from an individual
by an act of the law, and a valid title conveyed to another owner; so by
conquest jure victorice, followed by treaty, property may be taken from
one State and conveyed to another: but this will be discussed at greater
length in another part of this Work.
CCXCIV. Property may also become legally extinct by suffering a
change of character, by being placed among things extrac commercizcmn,
as will be explained in the next chapter.
["316]               *CHAPTER  XVII.
SLAVES AND THE SLAVE TRADE.
CCXCV. There is a kind of property which it is equally unlawful for
States as for Individuals to possess —property in men.
A being endowed with will, intellect, passion, and conscience, cannot
be acquired and alienated, bought and sold by his fellow beings, like an
inanimate or an unreflecting and irresponsible thing.(a)
CCXCVI. The Christian world has slowly but irrevocably arrived at
the attainment of this great truth; and its sound has at last gone out
into all lands, and its voice into the ends of the world.(b)
(k) Barbeyrac on Grotius, 1. ii. c. x. p. 391. (notis.)
(1) Schmauss, vol. ii. p. 1113.
(a) "Si vinxero hominem liberum ita ut enum possideam, an omnia que is possidebat, ego possideam per illum? Respondit si vinxeris hominem liberum eum te
possidere non puto; quod quum ita se habeat multo minus per illum res ejus'a te
possidebuntur; neque enim rerum natura recipit, ut per enum aliquid possidere
possim quem civiliter in me' potestate non habeo." —Dig. xli. 2. 23. 2.
(b) " J'ai dit que d'apres les principes de l'ancienne constitution Romaine la pro



SLAVES AND THE SLAVE TRADE.                            243
International Law has for some time forbidden the captive of war to
be sold into slavery.  Of late years it has made a further step; it now
holds that the colour of the man does not affect the application of the
principle.  The black man is no more capable of being a chattel than
the white man. The negro and the European have equal rights; neither
are'amnong the "res posite imn commnercio," in which it is lawful
for States or individuals to traffic.(c)                          [317]
Let us cast our eyes for a moment over the progress of International
Jurisprudence upon this subject, for upon none has its melioration been
more striking, or more advantageous to humanity. It may be considered,
first, with respect to the Slavery of the White Man; and, secondly, with
respect to the Dark or Coloured Man.
CCXCVII. First, with respect to the White Man.  Bynkershoek,(d)
in one of his last and ablest works, maintains, even in 1737, that as the
conqueror may lawfully do what he pleases with the conquered, he may
lawfully put him to death: but the right he admits has become obsolete.
A corollary to this absolute power of life and death over enemies is the
right, according to this author, of making them  Slaves.  A  German
potentate, he says, who served in the British Army in Ireland in 1690,
is said to have ordered prisoners to be transported to America, for the
purpose of being sold as Slaves, and to have been only deterred by a
threat of the Duke of Berwick, Commander of the French Army in Ireland, that, as a retaliatory measure, he would send all his prisoners to
the galleys in France.  This practice he also admits to have become
obsolete amongst Christians.(e)  But the Dutch, having *them- [318
selves no Slaves, except in Asia, Africa, and America, are, he [318
observes, in the habit of selling the Algerines, the Tunisians, and Tripolitans, whom they take in the Atlantic or Mediterranean, to the Spaniards
as Slaves.
Bynkershoek certainly did not, by his rather faint acquiescence in the
desuetude of the custom  of making slaves, advance the march of this
prie6t des objets les plus pr6cieux, c'est-h-dire des choses mancipi, 6tait censee provenir de l'6tat. Mais les Chretiens n'avaient jamais cru X cette hypothbse-dans
leurs principes la terre cappatelnait Xh Dieu avec tout ce qu'elle contient." —Troplong,
De'Infl. du Christ. sur le Droit Civil, p. 121.
(c) " Regula illa juris naturalis, cognationem inter homines quandam esse m naturf,
acpreoinde nzefas esse alterum ab altero ledi." —Grotius, 1. ii. c. xv. 5. i.
(d) The Quastiones Juris Publici appeared in 1737, when the author was sixtyfour years of age; he died in 1743. The doctrine referred to in the text is to be
found in the third chapter of the first book.
" Item ea quoa ex hostibus, jure gentium statim nostra fiunt: adeo quidem ut et
liberi homines in servitutenm nostram deducuntur: qui tamen, si evaserint nostram
potestatem, et ad suoes reversi fuerint, pristinum statum recipiunt."-Instit. 1. ii. t.
i. 17.
(e) "' Sed quia, ipsa servitus inter Christicanos fere exolevit e'a quoque non utimur
in hostes captos."-Ib.
" Sic enim jus gentium de servitute captivorum in bello justo, in ecclesi& mutatum est, et inter Christianos id non servatur." —Suarez, De Leg. ac. Deo Legisl. 1.
ii. C. xix.
It is remarkable that the very able dissertations of Suarez, on Natural, Public,
and International Law, are not noticed by Grotius.
See same reasoning for the enfranchisement of bondmen in England, Sir Thomas
Smith, Commonwealth of England, p. 137.




244   PHILLIMOLRE ON INTERNATIONAL LAW.
sound principle of International Law. Grotius had long ago declared(f)
that Christendom had abolished this pretended right, as directly at variance with the doctrine of the Founder of their Religion, and remarked
with pious and just exultation, that reverence for the law of Christ had
produced that effect for which the teaching of Socrates had laboured in
vain.  To this prohibition to make captives slaves, like the prohibition
to poison the enemy's wells, may be applied his emphatic language with
respect to another infamy,-the violation of women, —language which
should never be forgotten by those who aspire to render any contribution,
however humble, to the great fabric of International Law(g)-" Atque
id inter Christianos observari par est, non tantum ut disciplinm militaris
partem, sed et ut partem juris Gentiumn."
[*319]   *CCXCVIII. The successful efforts made by Christian Powers
[_'319] to emancipate the white Christian from the slavery, to which the
Infidel Powers of the Levant had too frequently consigned them, seem
to claim some notice in this place.
Till the beginning of the present century specific Treaties were constantly concluded between the European and Barbary Powers, binding
the latter to abstain from piratical depredations, to restore prisoners, and
to conform to the usages of the civilised world. But it was not till after
the pacification of the world in 1815(h) that Great Btitain bestirred
herself to the accomplishment of that glorious enterprise which must for
ever entitle her to the gratitude of Christendom. Early in the spring
of 1816, Lord Exmouth, the British Commander-in-Chief in the Mediterranean, received, amongst other instructions, the order to procure, if
possible, a general abolition of Christian slavery in Barbary.
Lord Exmouth, acting in obediance to these instructions, succeeded in
extracting a promise from the Beys of Tunis and Tripoli, that they would
not, for the future, make slaves of prisoners of war, but would conform
to the practice of European nations.(i)  The Dey of Algiers pretended
that he could not join in this promise without the permission of the
Sultan, whose subject he was. Shortly afterwards, outrages were committed at Algiers upon the British Consul, and at Bona. upon the British
flag, and abominable cruelties perpetrated upon divers crews of fishingboats from the ports of Italy. The consequence of these atrocities, and
of the Dey's refusal to acquiesce in the abolition of Christian slavery,
(f) It is a noble passage, worthy of its illustrious author:-" Sed et Christianis
in universum1placuit, bello inter ipsos orto, captos servos non fieri, ita ut vendi possint, ad operas urgeri, et alia pati quma servorum sunt: merito sane: quia ab omunis
caritatis commendatore rectius instituti erant, aut esse debebant quam ut a miseris homnibus interficiendis abduci nequirent, nisi minoris sayvitime concessione.
Atque hoc a majoribus ad posteros pridem transiisse inter eos, qui eandem religionem profiterentur, scripsit Gregoras, nec eorum fuisse proprium qui sub Romano imperio viverent, sed commune cum Thessalis, Illyriis, Triballis, et Bulgaris.
Atque ita hoc saltem, quanquam exiguum est, perfecit reverentia Cl~ristiance legis,
quod, cum Gruecis inter se servandum olim disceret Socrates, nihil impetraverat." —
L. iii. c. vii. s. 9.                    (g) Lib. iii. c. iv. s. 19.
(h) Annual Register (for 1816), vol. lxxxv. c. ix. p. 97; Appendix, p. 230, &c.
(i) De M. et De C. t. iii. p. 263: " Declaration Du Bey de Tripoli, en date du 29
Avril, 1816, portant que l'esclavage dis prisonniers de guerre est aboli. Dans les
memes termes par le Bey de Tripoli, 77 Avril, 1816."




SLAVES AND  THE  SLAVE  TRADE.                       245
was the ever-memorable bombardment of Algiers by the British fleet
under Lord Exmouth, gallantly assisted by *a Dutch squadron  *320
under Vice-Admiral Capellen, on the 27th of August, 1816.    [320
The destruction of nearly half Algiers, and of the whole Algerine
navy, acheived a great triumph for civilization and Christianity.
The Dey consented1. To the abolition for ever of Christian slavery.
2. To deliver to the British Admiral all slaves in his dominions, to
whatever nation they might belong, before the noon of the next day.
3. To deliver at the same time all money received for the redemption
of slavery since the beginning of 1816.
4. To make full reparation and a public apology to the British Consul,
as will be mentioned elsewhere.
In 1830 the French took possession of Algiers, and concluded with
Tunis and Tripoli treaties (9th and 11th August, 1830) for the abolition
of Christian slavery, and a conformity to the civilized usages of commerce
and war.
In January, 1846, the Bey of Tunis addressed a circular to the
Consuls of Christendom, announcing the abolition of slavery throughout
his kingdom-an act which surely shames the slaveholding states of
Christendom. (k)
C(XCIX. Secondly, with respect to the slavery of the Dark  or
Coloured Man.  Is there really any difference in principle between the
two cases?  Can it ever have been a sound position of International
Law, that a rule of immutable justice and eternal right was rendered
inapplicable by the complexion of the person, the region in which he
dwelt, or the religion which he professed? At all events, was this ever
a sound position of Christian International Law?  The question, it must
be admitted, has been answered in the affirmative by the decision of the
highest Court of Justice, both in England and North America.
*According to Lord Stowell, trading in Slaves was neither  *321
piracy nor legally(l) criminal.  It was sanctioned by ancient L   I
admitted practice, by the general tenor of the laws and ordinances, by
the formal transactions of civilized States, and by the doctrine of the
Courts of the Law of Nations.
All this was undoubtedly true: but might not all these reasons have
been urged at one time in favour of the practice of selling Christian
captives into Slavery?  Was there not a time when the practice of
nations sanctioned the slaughter of captives by sword or poison, and the
violation of women in time of war?(m)  Is not, pace tanti viri, the
(k) De M. et De C. t. v. p. 443.
(1) "The Le Louis," 2 Dodson's Adm. Rep. p. 249. It should be observed that
this judgment was delivered in 1817. It was in 1818 that the French law finally
rendered the Slave Trade illegal. —Koch, Hist. des Tr. t. iii. p. 517.
See, however, also the case of Madrazzo v. Willis, in the Court of Queen's
Bench, Barnewell and Alderson's Reports, vol. iii. p. 353. See also " The Antelope," Wheaton's Reports (American,) vol. x. p. 66.
(9n) " Stupra in feeminas in bellis possim legas et permissa et impermissa;
atque hoc posterius jus est gentium non omnium, sed meliorium."-L. iii. c. iv. 19.
"Nec tempore ullo excluditur potestas occidendi tales servos, id est bello captos,




246   PHILLIMORE ON INTERNATIONAL LAW.
real question whether if the Slave Trade be a crime, any usage, however
general, can alter its character?  Are not Natural and Revealed Law
the primary sources(n) of International Jurisprudence; and though it
be true that much which they in the abstract simply ermnit(o) is limited
or disallowed by the mutual practice of nations, could that practice sanction what the *Natural and Religious Law had absolhtelyforL        bd cbidden?(p)  Could  a Municipal Law  sanction  homicide or
adultery?  When Grotius treats of the liability which jure gentiutm the
goods of subjects incur of being seized by the enemy of their Sovereign,
he observes, that this liability is not imposed by a rule of Natural, but
of International Law, which latter cannot, in this respect, be said to be
at variance with, but rather additional to the former,(q) cc non autem hoe
nature repugnat, ut non more et tacito consensu induci potuerit."   Can
this be predicated of the Slave Trade? "cNo nation," Lord Stowell
says,(r) "can privilege itself to commit a crime against the Law  of
Nations by a mere municipal regulation  of its own."   Can nations
collectively privilege themselves to commit a crime against the law  of
nature, and of Nature's God? That it was a crime, Lord Stowell thought;
for in a yet later judgment,(s) the most questionable, perhaps, which he
ever delivered, he said, "it is in a peculiar manner the crime of this
country."
CCC. The judgment of Lord Stowell in the "; Le Louis" was delivered
in 1817.  Since that period International Law  has, on this subject,
advanced towards, if it have not yet reached the elevation of Natural
and Revealed Law.
The tide which had begun to flow when that eminent judge adorned
the seat of International Justice has ever since set steadily onwards;
and were he now alive, he must admit that the Slave Trade, tried by
some of his own criteria, measured by;" the legal standard of morality,"(t)
is now  a violation of International Law, if it be not, strictly speaking,
Piracy.
3 By general practice, by treaties, by the laws and ordinances
[*323] of civilized States, as well as by the immutable laws of eternal
quantum ad jus gentium pertinet; etsi legibus civitatum hic magis, illis minus
adstringitur." —L. iii. c. iv. s. x. 2.
"Jus gentium, si non omnium, certe meliorum, jam olim est, ne hostem veneno
interficere liceat."- L. iii. c. iv. s. 15.
It is true that Grotins says: "' Sicut autem jus gentiumn permittit multa, eo permittendi modo quem jam explicavimus, quce jure naturm sunt vetita, ita quadem
vetat permissa jure naturae."-L. iii. c. iv. s. xv.: cf. 1. iii. c. ii. 1: 1. ii. c. xvii. s.
xix.; 1. iii. c. i., s. i.; i. ii. c. iii. s. x.
(n) See Third Chapter of this Work.
(o) "Sed multa qune natura permittit, jus gentium ex communi quodam consensu potuit prohibere.1" —Grotius, 1. ii. c. iii. s. x. 3.
(p)  "Jedder Handel und Verkehr, welcher den algemeinen Menschenrechten
zuwiderlauft, ist getchtet. Niemand begeht ein Unrecht, wer ihn stort oder
vernichtet.-Dies ist ist das Gesetz des Sclavenhandels."'-Heffters, s. xxxii.
(q) L. iii. c. ii. s. ii. 2.
(r) "The Le Louis," 2 Dodson's Adm. Rep. p. 251.
(s) " The Slave Grace," 2 HIaggard's Adm. Rep. p. 128.
(t) "The Le Louis," p. 249.




SLAVES AND THIE SLAVE TRADE.                           247
justice, it is now indelibly branded as a legal as well as a natural
crime.(in)
CCCI. The eight powers who signed the Treaty of Paris (1814) engaged to exert themselves for the suppression of this grievous sin, and by
an additional article at the Congress of Vienna,(x) bound themselves to
take the most efficacious measures for securing the entire and definitive
abolition of ("a scourge which has so long desolated Africa, degraded
Europe, and afflicted humanity." (y)
CCCII. By the first additional article to the Treaty of Paris (1814)
France "eunreservedly participating in the sentiment of England, with
respect to a species of commerce opposed to the principles of natuZral
justice, and to the enlightened opinions (lunmie'res) of our time," engaged
to co-operate *heartily in putting down the Slave Trade.(z)  In [ 24]
1818 a royal ordinance carried this resolution into practical effect.
By treaties in 1831 and 1833, Great Britain and France mutually conceded to each other the right of search of suspected vessels within certain localities: by these treaties the captured vessel was to be brought in
and tried before the court of the country to which it belonged.  France
would not, however, consent that her subjects should be amenable to a
mixed Commission Court, such as, in the case of Sweden, the Netherlands, and Portugal, had been established by Treaty with Great Britain.
In May, 1845, a fresh convention was entered into between France and
Great Britain, by which each country engaged to keep twenty-two cruisers: but at a conference held in London, in May, 1849, the number was
diminished to twelve, with a condition that, if hereafter requisite, the
number should again be increased.(a)
CCCIII. With regard to Spain, it was not till June, 1835, that a
Treaty was concluded with Great Britain, which really made effectual
the engagements of a Treaty in 1817.  In 1853, a select committee of
the House of Commons reported:  ";The Brazilian Government have
rendered any such measure unnecessary, so far as regards Brazil; but as
regards Cuba, it is a matter of great surprise, that whilst Spain is at this
(u) Koch, Hist. des Tr. tom. iii. pp. 427, 432, 516, 533, 562, 570, contains a useful summary of the Slave Trade from its commencement in 1503 to 1815.
Colquhoun's Civil Law, p. 390, s. 413, p. 423, s. 476. History of the British
Slave Trade.
(x) De M. et De C. t. iii. p. 476.
Report of the House of Lords respecting the African Slave Trade, July 23, 1849.
Report of the Select Committee of the House of Commons on the Slave Trade
Treaties, August 12, 1853.
" Whereas that crimninal trcaqic is still carried on."  Treaty of Washington,
August, 1842, between Great Britain and the United States.
"Dont le traffic honteux a, durant des siecles, fait gemir l'humanit6."-AMartens,
s. 150, b.
"In voller und gerechter Anerkennung der Gesinnungen und Grundsaitze
christlicher Mlenschenliebe, zur ginzlichen Ausrottung dieses verbrecherischen Handels mitzuwirken solle der Neyerhandel gleich der Seerduberei bestraft," u. s. w.
Resolution of the German Confederation, June 19, 1845.
De 1M. et De C. t. v. p. 30.
(y) Koch, list. des Tr. t. iii. p. 428, mentions that Denmark, as early as 1794,
passed an ordinance for the abolition of Slavery in her Colonies after a lapse of
ten years; that it took effect in 1804, but was not notified to other States.
(z) De M. et De C. t. iii. p. 20.  (a) Hertslet's Treatise, vol. viii. p. 1061-4.




248     PHILLIMORE  ON INTERNATIONAL  LAW.
time indebted to England and France for their efforts to form a tripartite
convention with the United States, in order to protect Cuba from piratical attacks, the Government of Spain should not take warning from the
fact that one of the reasons alleged by the Government of the United
States for not joining that Convention, is the continuance of the Slave
Trade in that island."
Mr. Everett, in his letter, dated Washington, 1st December, 1852, to
325  Mr. Crampton, the British Minister at *Washington, writes: "J I
[*325] will but allude to an evil of the first magnitude, I mean the
African Slave Trade, in the suppression of which England and France
take a lively interest, an evil which still forms a great reproach upon the
civilization of Christendom, and perpetuates the barbarism  of Africa;
but for which, it is to be feared, there is no hope of a complete remedy,
while Cuba remains a Spanish colony."(b)
CCCIV. The treaties of Portugal with Great Britain of 1810, 1815,
1817 (which last conceded the right of reciprocal search), of 1825, followed by an official note from Portugal in 1826, acknowledged the obligation and necessity of suppressing the Slave Trade, but were nevertheless ineffectual for this purpose throughout the Portuguese Colonies.
In 1839, a British Act of Parliament was passed, authorizing British
cruisers to seize Portuguese vessels suspected to be Slavers.  This Act
has been vehemently attacked as a violation of International Law;(c) it
must of course be considered with reference to the previous Treaties.
But whatever may be the correct decision upon this point, by a Treaty in
July, 1842, followed by additional articles in October, a mutual right of
search and courts of mixed commission have been conceded.
Similar conventions exist between the Netherlands and Great Britain,
the last being in February, 1837.
CCCV. Great Britain has entered into various negotiations with the
United States of North America, having for their object the suppression
of the Slave Trade; but they have not been successful in inducing the
United States to join in a league with other Powers for this object: the
utmost that has been obtained is to be found in the Treaty of Washington, in August, 1842, by which each Power is to maintain a naval
force on the coast of Africa, and, if both Governments so order, to act
*326] *in concert with each other, and to use their efforts to induce
the African States, that allow Slave Markets, to close them.
The question of the Right of Visit has been a matter of sore contention
between Great Britain and the North American United States: the latter refuse to distinguish it from the Right of Search, which, they justly
say, is an exclusively belligerent Right. The British Government, on
the other hand, denies the identity of the two Rights, and claims merely
to ascertain the nationality of ships hoisting, under suspicious circumstances, the flag of the United States, alleging that when once that nationality is ascertained to be that of the United States, they immediately release, whatever be her cargo or destination, the vessel; and that it is
(b) Vide post, note.
(c) Wheaton's Hist. p. 605. De M. et. De C. t. v. p. 442.




SLAVES AND THE SJLAVE TRADE.                         249
manifest, that if the mere hoisting a particular ensign(d) is to supersede
all inquiry, the Slave Trade may be carried on with impunity.(e)
CCCVI. Upon this subject, perhaps, the stipulations in the Treaty of
May, 1845, between Great Britain and France, two Powers as jealous as
any that exist of national honour and national right, may be cited as
most fair, reasonable, and worthy of imitation.(f)  The Eighth Article
of that Treaty is as follows:"Whereas experience has shown that the traffic in Slaves, in those
parts of the world where it is habitually carried on, is often accompanied
by acts of piracy dangerous to the tranquillity of the seas and to the
safety of all flags: and considering at the same time that if the flag carried by a vessel be prima facie evidence of the national character of
*such vessel, this presumption cannot be considered as sufficient  *327
to forbid in all eases the proceeding to the verification thereof, ['3
since otherwise all flags might be exposed to abuse, by their serving to
cover piracy, the Slave Trade, or any other illegal traffic, it is agreed, in
order to prevent any difficulty in the execution of the present Convention, that instructions, founded on the Law  of Nations and on the constant usage of maritime powers, shall be addressed to the commanding
officers of the British and French squadrons and stations on the coast of
Africa. The two Governments have accordingly communicated to each
other their respective instructions, which are annexed to this Convention."
Among other instructions to the cruisers were the following upon the
delicate question of visit.
"4 You are not to capture, visit, or in any way interfere with vessels
of France, and you will give strict instructions to the commanding officers
of cruisers under your orders to abstain therefrom.  At the same time
you will remember that the King of the French is far from claiming that
the flag of France should give immunity to those who have no right to
bear it, and that Great Britain will not allow vessels of other nations to
escape visit and examination by merely hoisting a French flag, or the
flag of any other nation, with which Great Britain has not by existing
Treaty the right of search. Accordingly, when from intelligence which
the officer commanding Her Majesty's cruiser may have received, or
from the manceuvres of the vessel, or other sufficient cause, he may have
reason to believe that the vessel does not belong to the nation indicated
by her colours, he is, if the state of the weather will admit of it, to go
a-head of the suspected vessel, after communicating his intention by
hailing, and to drop a boat on board of her to ascertain her nationality,
without causing her detention, in the event of her really proving to be a
vessel of the nation, the colours of which she has displayed, and there(d) This fact appears to be fully admitted in the Treaty of Washington, 9th
article. "Whereas, notwithstanding all efforts which may be 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 theffraudulent use of flags, is so great," &c.
(e) Wheaton's Hist. s. 33, 34, pp. 585, 749. The subject is very elaborately
discussed.
(f) De M. et De C. t. v.
AUGUST, 1854. —17




250     PHILLIMORE  ON  INTERNATIONAL LAW.
3 fore one which he is not authorized to search; but should *the
328 trength of the wind or other circumstance render such mode of
visiting the stranger impracticable, he is to require the suspected vessel
to be brought to, in order that her nationality may be ascertained, and
he will be justified in enforcing it if necessary, understanding always
that he is not to resort to any coercive measure until every other shall
have failed; and the officer who boards the stranger, is to be instructed
merely in the first instance to satisfy himself, by the vessel's papers or
other proof, of her nationality, and if she prove really to be a vessel of
the nation designated by her colours, and one which he is not authorised
to search, he is to lose no time in quitting her, offering to note on the
papers of the vessel the cause of his having suspected her nationality, as
well as the number of minutes the vessel was detained (if detained at all)
for the object in question; such notation to be signed by the boarding
officer, specifying his rank and the name of Her Majesty's cruiser, and
whether the commander of the visited vessel consent to such notation on
the vessel's papers or not (and it is not to be done without his consent:)
all the said particulars are to be immediately inserted in the log-book of
Her Majesty's cruiser, and a full and complete statement of the circumstances is to be sent, addressed to the Secretary of the Admiralty, by the
first opportunity direct to England, and also a similar statement to you
as senior officer on the station, to be forwarded by you to our secretary,
accompanied by any remarks you may have reason to make thereon.
The commanding officers of Her Majesty's vessels must bear in mind
that the duty of executing the instruction immediately preceding, must
be discharged with great care and circumspection. -For if any injury be
occasioned by examination without sufficient cause, or by the examination being improperly conducted, compensation must be made to the
party aggrieved; and the officer who may cause an examination to be
made without sufficient cause, or who may conduct it improperly, will
incur the displeasure of Her Majesty's Government.   Of course, in
*329  ecases when the suspicion *of the commander turns out to be well
founded, and the vessel boarded proves, notwithstanding her
colours, not to belong to the nation designated by those colours, the
commander of Her Majesty's cruiser will deal with her as he would
have been authorised and required to do had she not hoisted a false
flag."
At the Congress of Vienna in 1815, of Aix-la-Chapelle in 1818, of
Verona in 1822, the abolition of the Slave Trade as a principle of Public Law was formally adopted.
Since these periods the principle has been carried into execution by
Special Treaties(g) between Great Britain and the different States of
Christendom, both in the new and the old world, and also with various
Eieat'hen potentates on the southern coast of Africa.  Many countries
have stamped the character of piracy upon this horrible traffic, so far as
the authority of their own Municipal Laws may extend.  When the
(g) " Ils (that is, these Congresses) ont, en principe, adopte son abolition; depuis
des traites particuliers sont venus donner la vie h la lettre morte du principe, et
fonder le droit international."-De M. et De. C. t. v. p. 437: Traite des Noirs.




SLAVES AND  THE SLAVE TRADE.                           251
Brazilian Empire became separated from Portugal, it acknowledged itself
bound by the Treaties of the latter kingdom; but the Treaties. favourable
to the abolition of the Slave Trade met with much opposition in the
new kingdom.  In November, 1826, the Brazils adopted the Portuguese
Treaty with Great Britain, of 1817: and in 1835 two articles were added
to it; but the trade continued nevertheless. In August, 1845, a British
Act of Parliament (8 & 9 Victoria, c. 122,) was passed, declaring Brazilian slavers justiciable in the British Courts of Admiralty. Against
this act the Brazilian Government formally protested, as a violation of
International Law.(h)
But whoever will read the correspondence between Lord Aberdeen,
the then English Foreign Minister, with the *Brazilian Govern-  *330
ment in 1845, will be satisfied that the charge is unfounded.(i) [33
A great and most beneficial change has since that period taken place in
the councils and policy of the Brazilian Empire, such as, if persisted in,
as there is every reason to suppose will be the case, leaves nothing to
desire on the part of the British Government.
In December, 1841, Austria, Prussia, and Russia, the only great
Powers who had not before that period entered into Conventions on this
subject, concluded a Treaty, which was ratified in February, 1842, which
placed the Slave Trade in the category of Piracy, and by which they
bound themselves to exert every effort for the repression of this abominable offence.
CCCVII. If Great Britain was deeply dyed by her assiento contract
and her colonial slavery in this accursed commerce, her worst enemies
must admit, that she has, since the beginning of this century, been indefatigable in her efforts to wipe away the stain.  She has made it ",her
own cause," to borrow the expression of the greatest foreign publicists
of our day.((k)  Nor can the disinterested character of her righteous
exertions be denied, since the statute of the 3d & 4th William IV. c. 73,
by which she has, at no small risk, and with no common amount of
pecuniary sacrifice, abandoned domestic slavery in her colonies.
To be cognizant of the Treaties(l) entered into between *Great
Britain and other States, is to be apprized of all that have been *331
concluded upon this subject; to know their contents is to be acquainted
with the international history of the abolition of the Slave Trade.
(h) Vide post, the case of the Crown v. Da Serva; the date of the last trial is
February, 1845.
(i) Report from the Select Committee of the House of Commons on the Slave
Trade Treaties, August, 12, 1853.
(k) De M. et De. C., " sa propre cause," t. v. p. 440, and elsewhere.
(1) " Depuis cette 6poque, les efforts du Cabinet de Saint-James ont 4te incessants; ils ont 6td (en point de droit du moins) couronnes par le succes: si la traite
n'a pas entierement disparu, le principe de son abolition, toutefois, a ete generalement adopte: il est inscrit desormais dans le code des nations chretiennes, qui,
toutes, ont fietri un trafic reprouve par l'humanite, la morale et la philanthropie,trafic exert6 trop souvent avec une cruaut6 inouie et avec un barbare mipris pour
la race humaine, —trafic auquel les progrds de la civilisation devaient fixer un
terme, duft sa suppression devenir, pendant quelque temps, une cause de souffrance pour les colonies dans leur culture et leur prosperite." —De M. et De C. t. v.
p. 436.




252      PlILLIMORE  ON  INTERNATIONAL LAW.
The Catalogue of them is as follows.(m)
1814. January 14      Treaty of Peace with Denmark.
-   March 30             "           "   France.
-   August 28            "       "       Spain.
1815. January 22                          Portugal.
-   February 8       Declaration signed at the Congress of Vienna.
1817. July 28         Treaty with Portugal.
-   September 23         "       Spain.
1818. May 4               "       Netherlands.
1822. November 28    Declaration signed at the Congress of Verona.
-   December 10    Treaty with Spain (supplementary article to the Treaty of
September, 23, 1817.)
-   December 31    Treaty with the Netherlands (additional article to the
Treaty of May 4, 1818.)
1823. January 25     Treaty with the Netherlands.
1824. November 6          "      Sweden.
1825. February            "      Buenos Ayres or Rio de la Plata.
-   April 18            "       Columbia (since divided into three Republics,
New Grenada, Equator and Venezuela.)
1826. October 2      Treaty with Portugal (engagement of Portugal by an
official Note sent to the English ambassador at Lisbon.)
-   November 23   Treaty with Brazil.
December 26         "      Mexico.
1831. November 30         "      France.
1833. March 22                   France.
1834. July 26             "      Denmark (her accession to the conventions of
1831 and 1833.)
August 4        Treaty with Sardinia (ditto.)
December 8          "      Ditto (additional article to the Treaty of
August 8.)
1835. June 28.       Treaty with Spain.
1837. February 7          4"     The Netherlands.
-   June 5               9"      The Confederation of Peru, Bolivia.
[*332] *     June 9  Treaty with the Hanseatic Towns (accession to the convention of 1831 and 1833.)
-   November 24    Treaty with Tuscany (ditto.)
1838. February 14        9"       Two Sicilies (ditto.)
1839. January 19          "-      Chili.
-   March 25             "       Venezuela.
-   May 24           "      Rio de la Plata.
-   July 13              "      Uruguay (ratified January 21, 1842.)
-   December 17    Treaty with the Imnum of Muscat.
-   December 23          "      Hayti (accession to the conventions of 1831
and 1833.)
1840. September 25   Treaty with Bolivia.
December 16         "       Texas.
1841. February 24         "  Mexico.
-   August 7             "9     Bolivia.
-   December 20        "      Austria, Prussia, and Russia (ratified February 19, 1842).
1842. February 19    (See December 20, 1841.)
-   July 3          Treaty with Portugal.
-   August 9            "       The United States.
1845. May 29             "       France.
1846.                    "       The King and the Chiefs of Cape Mount (in
Africa.)
1848. April 24       Treaty with Belgium.
-   September 4         "       Equator.
-   September 5          "      Muscat.
1849. August 1                  Arabs in the Persian Gulf.
1850. April 2            "       New Granada.
(m) De M. et De C. t. v. p. 440.




SLAVES  AND  THE  SLAVE  TRADE.                    253
The whole matter is thus summed up in the Report of the recent Committee of the house of Commons:(n)"c The attention of your Committee has been directed, by the instructions of the House, chiefly to the state of the Slave Trade in the Brazils and in Cuba; in the Colonial possessions of Portugal, Mozambique
on the east, and Loanda and Angola on the West Coast of Africa; and
they have also briefly inquired into the state of the other parts of the
West Coast of Africa, long the principal seats of the Slave Trade.
" The great interest which the people of this country have
*taken in the abolition of the Slave Trade, appears in the very [*3]
volumious details laid annually before Parliament since the year 1815;
and the Reports of both Houses of Parliament in the years 1849-50
have rendered it needless, in the opinion of your Committee, to pursue
the inquiry beyond the last three years.
"' By these Reports, it appers that there were, in 1849-50, twenty-four
treaties in force, between Great Britain and foreign civilized Powers, for
the suppression of the Slave Trade; ten of which give the right of
search and mixed courts; twelve give the right of search and national
tribunals; and two (with the United States and France) grant no right
of search, but do contain a mutual obligation to maintain squadrons on
the Coast of Africa.  There were also at that time forty-two treaties for
the suppression of the Slave Trade existing between Great Britain and
native chiefs on the Coast of Africa.
" Since May, 1850, two treaties have been concluded with civilized
Governments, under which captured vessels are to be adjudicated upon
by tribunals of their own countries; and twenty-three more treaties with
native chiefs of Africa for the suppression of the Slave Trade."(o)
CCCVIII. Nevertheless, the English Law does not yet hold Slavetrading to be juqre gentium Piracy, and the case which is about to be
cited, gave a very extraordinary proof of the jealousy with which it
regards any invasion of the strictest provisions, both of International and
Municipal Law, even when the lives not only of British subjects, but of
British officers and seamen, are concerned.
" On the 26th February, 1845, Felicidade(p) a Brizilian schooner,
fitted up as a slaver, surrendered to the armed boats of H. M. S. Wasp.
She had no slaves on board.  The *captain and all his crew  [*334
except llctjavel and three others, were taken out of her and put  334
on board the Wasp.  On the 27th February the three others were taken
out and put on board the Wasp also. Cerqueira, the captain, was sent
back to the Felicidade, which was then manned by sixteen British seamen, and placed under the command of Lieutenant Stupart.  The lieutenant was directed to steer in pursuit of a vessel seen from the Wasp,
which eventually turned out to be the Echo, a Brazilian brigantine, having slaves on board, and commanded by Serva, one of the prisoners.
After a chase of two days and nights, the Echo surrendered, and was
(n) Vide post, note.
o) Vide post, note.
P) The Queen v. Serva and others, Denison's Crown Cases Reserved, vol. i.
(1844-1850) p. 104.




254   PHILLIMO RE  ON  INTERNATIONAL  LAW.
then taken possession of by Mr. Palmer, a midshipman, who went on
board her, and sent Serva and eleven of the crew of the Echo to the
Felicidade. The next morning Lieutenant Stupart took command of
the Echo, and placed Mr. Palmer and nine British seamen on board the
Felicidade in charge of her and of the prisoners.
"T The prisoners shortly after rose on Mr. Palmer and his crew, killed
them all, and ran away with the vessel. She was recaptured by a British
vessel, and the prisoners brought to this country to take their trial for
murder. The Jury found them guilty." —A ease was reserved for the
opinion of the Judges as to the legality of the conviction.
The majority of the Judges who were present at the argument(g)
were of opinion that the conviction was wrong, on the ground of want of
jurisdiction in an English Court to try an offence committed on board
the Felicidade, and that if the lawful possession of that vessel by the
British Crown, through its officers, would be sufficient to give jurisdiction, there was no evidence brought before the Court at the trial to show
that the possession was lawful.
This decision must have been founded on the two propositions that,
*83/5] jure gentiurm, the Slave Trade was not Piracy, and *that unless
[*335] it were so, the British Courts had, under the circumstances, no
jurisdiction over an offence committed on board the Felicidade.  It is
impossible, however, to be much surprised after this trial, and the facts
revealed during its pendency, at the statute of the British Parliament in
August, 1845.(r)
CCCIX. The illegality of Slavery, however, according to the 3Municipal Law, has a very important effect upon the international relations of the
State in which such law prevails.  If the mnoveable propoert&y of the subjects of a State finds its way within the limits and jurisdiction of a
Foreign State, it may be claimed by and must be restored to the lawful
owners. In parts of the American Continent, slaves are unhappily by
Municipal Law considered as chattels or moveable property; a slave
escapes or arrives in this country where slavery is illegal; he is claimed
by his master; must he be restored? Unquestionably not; upon what
ground?  Upon the ground that the status of Slavery is contrary both
to good morals and to the fundamental policy. This has been the doctrine of English Law from the date of the famous case of Somersett
the negro, in 1771; and such it was declared to be in the recent case of
the Creole.  The doctrine is not affected by the judgment of Lord
Stowell, whether right or wrong, in the case of the Slave Grace; for
that was founded on the alleged principle that the freedom incident to
all who touch British soil might be obliterated in the case of a slave,
although a British subject or chattel, who returned to the place in which
Slavery was legal; his or her liberty had been (said that great judge)
placed "' into a sort of parenthesis."(s)
CCCX. The English cases on this subject(t) are few, but clear and
quite decisive on the point.
(q) Denison's Crown Cases Reserved, vol. i. p. 154.
(r) Vide ante, p. 329.          (s) Haggard's Admir. Rep. ii. p. 131,
(t) See the argument of Mr. Hargrave, before Lord Mansfield, Howell's State.




SLAVES  AND THE  SLAVE  TRADE.                       255
*The earliest case in:which the doctrine appears to have been
judicially laid down was that of Shanley v. Harvey, before Lord [ 336]
Chancellor Northington, in 1762.  In that case a bill was filed against
Harvey, a negro, and others for an account of the personal estate of a
deceased person; and the question turned upon whether Harvey to
whom had been given a sum of money by the deceased on her deathbed, was a free man: he had been brought to England before this event
happened.  Lord Northington dismissed the bill with costs, observing,
",as soon as a man sets foot on English ground he is free."(u)  The
case(v) next in date was that of Knight the negro, in 1770, tried before
the Scotch Court, in which the same principle of law was acted upon.
But the leading case is that of Somersett the negro, 1771.  In this case
a habeas corpus was granted against Captain Knowles to bring up the
body of Somersett, who was in his possession in irons, and the cause of
his detention.  It appeared that Somersett had been bought in Virginia,
brought to England: by his master, and on refusing to return, was sent
by his master on board Captain Knowles's ship to be carried to Jamaica
and sold as a slave.
"' The only question (Lord Mansfield said) before us, is whether the
cause on the return (to the writ of habeas corpus) is sufficient?  If it
is, the negro must be remanded; if it is not he must be discharged.
Accordingly the return states that the slaves departed and refused to
serve whereupon he was kept to be sold abroad-so high an act of domninion must be recognized by the law of the country where it is used.  The
power of a master over his slave has been extremely different in different
countries.  The state of slavery is of such a  Cnature that it is incapable
of being introduced on any reasons, noral or political, but only bypositive law, which preserves its force long after the reasons, occasion, and
time itself from  whence'it was ever created is erased from  [*337
memory.  It is so odious that nothing can suzp9ort it butpositive [   ]
law.  Whatever inconveniences therefore may follow from  the decision,
I cannot say this case is allowed or approved by the law of England, and
therefore the black must be discharged."(x)
In 1824,(y) this doctrine was upheld to its fullest extent by the Court
of Queen's Bench. A British merchant, of the name of Forbes) was proprietor of a cotton plantation near the river St. John, in the Spanish
province of East Florida, on which he employed one hundred Slaves,
whom  he had legally purchased.  In 1815, thirty-eight of these Slaves
escaped from their master, and took refuge on board a British man-ofwar, commanded by Sir George Cockburn, who, with Sir Alexander
Cochrane, was at that time in command of a squadron on the North
American station. Spain was in amity with Great Britain, and Mr.
Trials, vol. xx. p. 1.; and the judgment in the case of the Slave Grace. A pamphlet by the author on the Case of the Creole, which is mentioned below, contains a
summary of these cases.
(u) Eden's Chancery Reports, p. 126.
(v) Fergusson on Divorce, App. 396.
(x) The Negro case, Howell's State Trials, vol. xx. p. 82.
(y) Tha following remarks on the English and French Law on this subject are
taken from the pamphlet on the Creole already referred to.




256     PHILLIMO RE ON INTERNATIONAL LAW.
Forbes prayed Sir G. Cockburn "cto order the said thirty-eight slaves to
be forthwith delivered to him, their lawful proprietor."  The Spanish
Governor of East Florida made also an application to the same effect.
But the Admiral replied, that the Slaves having reached the deck of a
King's ship, were become free agents, and that he had no power or right
to exercise any control over them.  The proprietor, MIr. Forbes, afterwards brought an action against Sir Alexander Cochrane and Sir George
Cockburn, in the Court of Queen's Bench at Westminster.  The action
altogether failed.  Upon the trial) Mr. Justice Holroyd said: "Now, it
appears, from the facts of the case, that the plaintiff had no right in these
persons, except in their character of Slaves, for they were not serving
him under any contract; and, according to the principles of the English
law, such a right cannot be considered as warranted by the general law
[ o3] f ~nature. I do not mean to say *that particular circumstances
may not introduce a legal relation to that extent; but assuming that there may be such a relation, it can only have a local existence,
where it is tolerated by the particular law of the place, to which law all
persons there resident are bound to submit. Now, if the plaintiff cannot
maintain this action under the general Law of Nature, independently of
any positive institution, then his right of action can be founded only
upon some right which he has acquired by the law of. the country where
he is domiciled...         Here the plaintiff, a British subject was
resident in a Spanish colony, and perhaps it may be inferred, from what
is stated in the special case, that by the law of that colony Slavery was
tolerated.  I am  of opinion that, according to the principles of the English law, the right of Slaves, even in a country where such rights are
recognised by law, must be considered and founded not upon the Law of
Nature, but upon the particular law of that country.  And, supposing
that the law of England would give a remedy for the violation of such a
right by one British subject to another (both being resident in, and bound
to obey the laws of that country), still the right of these Slaves, being
founded upon the law of Spain as applicable to the Floridas, must be coextensive with the territories of that State.  I do not mean to say, that
if the plaintiff, having the right to possess these persons as his Slaves
there, had taken them into another place, where, by law, Slavery also
prevailed, his right would not have continued in such a place, the laws
of both countries allowing a property in slaves.  The law of Slavery is,
however, a law in invitum; and when a party gets out of the territory
where it prevails, and out of the power of his master, and gets under the
protection of another power, without any wrongful act done by the party
giving that protection, the right of the master, which is founded on the
Municipal Law of the particular place only, does not continue, and there
is no right of action against a party who merely receives the Slave in
that country, without doing any wrongful act."
[*339]   *And the sa-me learned judge further observed:-'"In this
[*3391  case the Slaves belonged to the subject of a foreign State.  The
plaintiff, therefore, must recover here upon what is called the comnitas
inter communitates; but it is a maxim that cannot prevail in any case




SLAVES  AND  THE  SLAVE  TRADE.                  257
where it violates the law of our own country, the Law of Nature, or the
Law of God."
Chief Justice Best expressed himself, during the trial of the same
cause, in the following emphatic language:"cSlavery is a local law, and therefore, if a man wishes to preserve
his Slaves, let him attach them  to him by affection, or make fast the
bars of their prison, or rivet well their chains, for the instant they get
beyond the limits where Slavery is recognised by the local law, they
have broken their chains, they have escaped from their prison, and are
free. These men, when on board an English ship, had all the rights
belonging to Englishmen, and were subject to all their liabilities.  If
they had committed any offence, they must have been tried according to
English laws. If any injury had been done to them they would have
bad a remedy by applying to the laws of this country for redress.  I
think that Sir G. Cockburn did all that he lawfully could do to assist
the plaintiff; he permitted him to endeavour to persuade the Slaves to
return, but he refused to apply force. I think that he might have gone
further, and have said that force should not be used by others; for if any
force had been used by the master or any person in his assistance, can it
be doubted that the Slaves might have brought an action of trespass
against the persons using that force?  Nay, if the Slave, acting upon his
newly-recovered right of freedom, had determined to vindicate that right,
originally the cgft of nature, and had resisted the force, and his death
had ensued in the course of such resistance, can there be any doubt that
every one who had contributed to that death would, according to our
laws, be guilty of murder? That is substantially decided by Somersett's
case, from which it is clear, that such would have been the consequence
had these Slaves been in England; and so far as this question is concerned, there is no difference *between an English ship and the [340
soil of England; for are not those on board an English ship as
much protected and governed by the English laws as if they stood upon
English land? If there be no difference in this respect, Somersett's case
has decided the present: he was held to be entitled to his discharge, and,
consequently, all persons attempting to force him back into Slavery
would have been trespassers, and if death had ensued in using that force,
would have b:en guilty of murder. It has been said that Sir. G. Cockburn might have sent them back. He certainly was not bound to receive
them ilnto ]his own ship in the first instance; but having done so, he could
no more have forced them back into Slavery than he could have comnqnitted them to the deep.  There may possibly be a distinction between
the situation of these persons and that of Slaves coming from our own
islands, for we have unfortunately recognised the existence of Slavery
there, although we have never recognised it in our own country. The
plaintiff does not found his action upon any violation of the English laws,
but he relies upon the comity of nations. I am of opinion, however,
that he cannot maintain any action in this country by the comity of
nations. Although the English law has recognised Slavery, it has done
so within certain limits only; and I deny that in any case an action has




258     PHILLIMORE ON  INTERNATIONAL  LAW.
been held to be maintainable in the municipal courts of this country,
founded upon a right arising out of Slavery.
"When they got out of the territory where they became Slaves to the
plaintiff, and out of his power and control, they were, by the general
Law of Nature, made free, unless they were Slaves by the particular
law of the place where the defendant received them. They were not
Slaves by the law which prevailed on board the British ship of war. I
am therefore of opinion, that the defendants are entitled to the judgment
of the Court."
CCCXI. This doctrine, it is right to say, however agreeable to the
genius, is not peculiar to the free constitution of Great Britain.
341 *In the year 1738, this generous maxim  of French jurispru-[34 11 dence was put to its severest test in the case of cc Jean Borcan t,"
a "Nebgre Creole," which will be found reported in the thirteenth volume
of the "c (auses Celebres,' the substance of which was as follows: —When
France became possessed of colonies in the West Indies, she shared the
guilt of Christian Europe in permitting Slavery in her colonies. The
first edict by which it was authorised was issued in 1615, but, nevertheless, till 1716 the slaves of French colonists became free when they
touched the soil of France. A royal ordonnance of that date, the provisions of which were explained and confirmed by one issued in 1738,
permitted, under certain provisions ensuring their good treatment and
restricting the time of their Slavery, Slaves from the French colonies to
be brought by their masters into France without acquiring their freedom.
One of the conditions, however, was, that the master should duly register
at the first port the arrival of the Slave, the probable time of his stay,
&c., &c., according to certain prescribed formalities; in any case where
these conditions had not been literally and strictly fulfilled, the ancient
law of France resumed its operation.  There had been some omission of
these prescribed formalities of registry in the case of the slave Jean Borcaut, who accordingly claimed, and after a trial before "l'Audience
d'Amiraute" obtained his liberty. In the report of the trial will be
found the pylaidoyers for the negro, for the crown, and for the master:
and in the speech of the advocate for the master there is this remarkable
passage:is On ne connoit point, il est vrai, d'esclave ez France, et guiconqzue a
mis le pied dans ce Royaumne, est gratfif  de lae liberte.
t Mais quelle est l'application, et quelle est la distinction du principe?
c'Le principe est vrai dans le cas o   ui tout autre esclave qu'un esclave
ne'gre arrivera dans ce Royaumze.
"Par exemple qu'u~n e'tranger, qu'utn ngociant francois arrive dans
[*342] ce Royaurne avec des sauvages qu'ilprtencldra ettre *ses esclaves;
qu'un EFspagnol, qu'un Anglois vienne en ce Roiyaume avec des
escldves negres dedpendans des colonies de sa nation; voild le cas dcans
lequel par la loi, par le privilege de la franchise de ce Royaume, la
chaine de l'esclavage se brisera, et la liberte sera acquise a de pareils
esclaves.
"Voila le cas dans lequel il faut appliquer Part 6. du Tit. 1. liv. 1.
des Instituts de Loysel.  Voila le cas oui il faut dire avee M. de Ren6




SLAVES AND THE SLAVE  TRADE.                         059
Chopin, que l'entrEe dans la ville de Paris assure le maintien, et devient
l'asile de la liberte6.
"(Lutetiam velut sacro-sanctam  civitatem  omnibus preehere libertatis
atrium quoddam asiliumque immunitatis."(z)
Another instance may be added of the jealousy with which France
regarded this partial abrogation of her general law in favour of liberty.
In 1758, "Francisque," a negro-slave bought by his master in Hindostan, was brought by him to France.  Francisque claimed his liberty:
his master contended that he had carefully fulfilled the formalities prescribed by the "Code Noir;" it was answered that this law only affected
African and American Slaves, and could not be extended to the East
Indies. The Slave obtained his liberty.(a) The force of these examples
is not weakened by the reflection that they are furnished by what was at
the time an undeniably despotic State.  Such was the law in favour of
liberty, passed even by an absolute monarchy during what would now
be designated the comparatively dark ages.
CCCXII. The same doctrine was maintained by Poland during the
period of her existence as an independent kingdom.
Wicquefort,(b) in that part of his treatise on the functions of ambassadors, in which he discusses the privileges of their residence, tells the
story of a certain Pole who, having left his country and gone into Muscovy, had there sold *himself into Slavery, but afterwards, being
in Holland, he fled to the house of the Polish Ambassador: ";Les [34]
Moscovites en firent tant de bruit, que les estats de Hollande, apres avoir
fait occuper toutes les avenues de la maison, y firent entrer quelques officiers et soldats pour faire la recherche du fugitif.  Ils n'y trouverent
personne, et cependant ils firent cet affront au ministre public du roy de
Pologne.  Le Polonois n'estoit point esclave ne du Czaar; et s'il l'estoit
devenu en allant demeurer en Moscovie, il recouvra sa librerter naturelle
en mettazt le pit dcans  n pais, qui ne nourrit point d'esclaves, et o'i on
ne devroit point sWavoir ce que c'est gue de servitude ou d'esclavage. Les
Jurisconsultes Frangois disent, gue l'air de France est si bon et si benin
que dces qu'iun esclave entre dans le Roiaume, mesme a la suite d'un ambassadeur, il ne respire que libert', et lace recouvre aussi-tost."
CCCXIII. The last occasion upon which an international question of
this kind was raised, happened in 1841.
A brig belonging to a subject of the United States, called the Creole,
of Richmond, in Virginia, sailed on the 27th of October, 1841, with a
cargo of merchandise, and one hundred and thirty-five slaves, from the
Hampton Roads, for New Orleans.  During the passage, the Slaves mentioned killed a slave-owner, who resisted their attempt to free themselves,
wounded the captain, and compelled the rest of the crew to take the vessel into the port of Nassau, in New Providence Island, in possession of
the British Crown.  On their arrival, the American Consul requested
that a guard might be placed to prevent the escape of persons charged
with a piratical act: the request was acceded to.  An investigation was
(z) Causes Cle'bres, tom. xiii. p. 562.
(a) Denisart, Decisions Nouvelles, tom. iii. p. 406, tit. Negre, n. 45.
(b) Ambassadeur et ses Fonctions, par M. de Wicquefort, 1. i. p. 418.




260   PHILLIMORE ON INTERNATIONAL LAW.
made into the circumstances by two British magistrates, the result of
which was, that nineteen persons were imprisoned as being connected
with the murder, the remainder being allowed to stay or depart as they
pleased.  The British authorities further refused to deliver up the nineteen until they should have received instructions to that effect from
England.
The claim  of the Government of the N. A. United States, that the
coloured persons, as the slaves were called, "should be restored
to their master, was not acceded to on the part of the British
Government.(c)  It would only have been necessary to cite, in answer
to such demands, the language of Mr. Justice Story: e So the state of.Slavery will not be recognised in any country whose institutions and
policy p2rohibit Slavery."(d)
Bodinus, in his first book, i De Republica,"(e) testifies that such had
been from early times the law and custom  of France.  He illustrates it
by two examples. The first was the case of a Spanish Ambassador who
brought with him a Slave in his retinue.  The Slave, in spite of all remonstrance, claimed and obtained his freedom  on entering the French
dominions. In the second instance, a Spanish merchant, happening to
touch at Toulon on his way to Genoa, with a domestic Slave among his
servants, when " hospes, re intellects, servo persuasit ut ad libertatum
provocaret;" the merchant complained that he had bona fide purchased
the slave, that he was not bound by the law of France, that he was not
resident there, but happened only to touch at a French port on his passage to Genoa, and that at least he ought to be remunerated for the purchase-money of the slave; but he found that his remonstrance was fruitless, and made a private bargain with his slave for the continuance of
his services.
CCCXIV. On the whole, it seems not unreasonable to hope, that before many more years have elapsed, both Municipal and International
Law will be brought into harmony with the Law of Nature; and that, to
the question of the abolition both of Slavery and the Slave Trade, the
emphatic language of Grotius may be applicable —  husmano generi
placuit."(f)
[*345]               *CHAPTER  XVIII.
RIGHT OF JURISDICTION OVER PERSONS.
CCCXV. We have now to consider the right incident to a State of
absolute and uncontrolled power of jurisdiction over all Persons, and
(c) See pamphlet on the case of The Creole, already referred to, and opinion of
the Law Lords in the House of Lords, February, 1842.
(d) Story's Conflict of Laws, p. 97. See also Mr. Wheaton's Treatise on International Law, vol. i. p. 146, exception 2.
(e) L. i. de Rep. p. 41. Bed. de Rep. liberi sex: Paris, 1586.
(f) L. ii. c. x. 2, 1.




RIGIT OF JURISDICTION OVER PERSONS.  261
over all Things, withiht her territorial limits, and, as will be seen in certain specific cases, without them.
CCCXVI. First, as to the Right of Territorial Jurisdiction over Persons: they are either
1. Subjects, or
2. Foreigners commorant in the land.
CCCXVII. 1. With regard to the jurisdiction and authority of States
over their own proper subjects, no doubt can be raised; under the term
subject may be included both native and naturalized citizens. With respect to native citizens, the right of which we are speaking is manifestly
essential to the independence of the State.  "Sanb (Grotius observes)
ex quo civiles societates institutre sunt, certum  est rectoribus cujusque
speciale quoddam in sous jus quwesitum."(a)
The native citizens of a State are those born within its dominions,(b)
even including, according to the law of England,(c) the children of alien
friends.  So are all those born on board the ships of the navy, or within
the lines of the *army, or in the house of the Ambassador, or   346
of the Sovereign,(d) if he should happen to be sojourning in a [346
foreign country.
Every State has an undoubted claim upon the services of all its citizens.  Every State has, strictly speaking, a right of prohibiting their
egress from their own country,(e) a right still exercised by some of the
continental powers of Europe.  These rights are subject to no control or
directions as to their exercise from any foreign State.
CCCXVIII. Every State has a right of recalling (jus avocandi) its
citizens from foreign countries,(f) especially for the purpose of performing military services to their own country.  Great difficulty, however,
necessarily arises in the enforcement of this right. No foreign nation is
bound to publish, much less enforce, such a decree of revocation. No
foreign State can legally be invaded for the purpose of forcibly taking
away subjects commorant there.  The high seas, however, are not subject to the jurisdiction of any State; and a question therefore arises
whether the State, seeking its recalled subjects, can search for them in
the vessels of other nations met with on the high seas? This question,
answered in the affirmative by Great Britain, and in the negative by the
United States of North America, has led to very serious and much to
be lamented quarrels between the two nations.(g)
(a) L. ii. c. xxv. 8.            (b) Giinther, vol. ii. p. 261.
(c) Stephen's (Blackstone's) Commentaries, vol. ii. p. 4.
Calvin's case, 7 Coke's Reports, 18 a.
(d) Vide post.
(e) " Solet hic illud quaeri, an civibus de civitate abscedere liceat, veni' non impetrath. Scimus populos esse ubi id non liceat, ut apud Moschos: nec negamus
talibus pactis iniri posse societatem civilem, et mores vim pacti accipere." —Grot.
1. ii. c. v. 24.
Wheaton, El6m. tom. i. p. 135.
(f) Gunther, vol. ii. p. 309.
Heifters, s. 59.
(g) See correspondence between Mr. Webster and Lord Ashburton. Wheaton's
Hist. p. 737, &c.
Vide post as to jurisdiction over ships of war, and merchant vessels in foreign
harbours.




262      P H I LLIMO R E  ON  INTE R NATIONAL LAW.
[*3 347  CCCXIX. 2. It has been said that these rules of law(h) *are
[ 734] applicable to naturalized as well as native citizens.  But there
is a class which cannot be, strictly speaking, included under either of
these denominations, namely, the class of those who have ceased to reside
in their native country, and have taken up a permanent abode (domicilium sine animo revertendi) in another.(i)  These are domiciled inhabitants; they have not put on a new citizenship through some formal mode
enjoined by the law of the new country.  They are de facto though not
dejure citizens of the country of their domicil.(l)
CCCXX. It was a great maxim of the constitutional policy of ancient
Rome not to allow  her citizenship to be shared with that of any other
State.(l)  A different custom  prevailed in Greece and in other States;
but the Roman citizen who accepted another citizenship became ipso
facto disfranchised of his former rights.
CCCXXI. It is sometimes said that a different rule prevails in modern
times, and that a man can be at one and the same time the citizen of two
States.(mn)  In truth, however, this must depend upon the civil policy
and domestic regulations of each State.  But it is true, as a general proposition, that a man can have only one allegiance.(n)  The State may,
as *Russia has done, forbid her subjects to be domiciled else[*348] where, or may permit it as England has done; but in either
case, if a collision between the two allegiances, so to speak, should arise,
the latter would be obliged to yield to the former.  For instance, if the
two countries were at war, the citizen who was taken in arms on behalf
of the country of his naturalization against the country of his birth
would, strictly speaking, be guilty of treason. In these times, probably,
most States would take into consideration the length  of time during
which the new domicil had been acquired, whether offences against the
original State were to be punished, or her protection invoked by her
long absent citizen.
CCCXXII. All strangers comrworant in a land, owe obedience, as
(h) Story, Conflict of Laws, s. 48. c. iii., ib. s. 540. c. xiv.
Fxelix, 1. i. t. i. s. 2. Du Changement de Nationalite.
Heffters, s. 58.
Colquhoun's Civil Law, s. 393. vol. i. p. 377., ib. s. 389. p. 373.
Guiinther, vol. ii. p. 267.
(i) Vide post. chapters on DOMICIL, under COMITY.
Vattel, 1. i. c. xix. s. 211, &c.
(k) See a later part of this work on CoMITY, for further remarks on Domicil.
(1) Vide Cicer. Orat. pro Balbo, passim, especially s. 12. See Zouche's remarks
thereupon, p. 2. s. ii. xiii. De Jure Feciali.
(m) Heffters (s. 59.) maintains this ground in opposition to Zouche, cited
above.
Giinther, vol. ii. p. 325. Einheimischen.
(n) The law is laid down with great perspicuity by Zouche. Speaking of a decision of the French tribunals on a question of Domicil, and vindicating it from
the charge of private partiality, he says " Fortassis vero id respexerunt, quod
quamvis incolatus et _Domicilium in externo regno sufficiunt ad constituendum aliquem subclitionjrisdictioni etprcestandis muneribus obnoxiumz non tamen sit satis ad
constituendum Civem, ut eorump7rivilegiorum civilium sit particeps qune in regno natis
competunt nisi specialis allectio supervenerit." —De Judicio inter Gentes, pars. II.
s. ii. 14.




RIGIIT OF JURISDICTION  OVER PERSONS.    263
subjects for the time being (subditi temporanei), to the laws of it.(o)
The limitation sometimes incident to this proposition will be stated in a
subsequent section, in which the right of protecting subjects in a foreign
land is discussed.
CCCXXIII. Naturalised foreigners are in a very different position
from merely comnzorant strangers.(p)  It has been the policy of wise
States, it was especially the policy of Rome, to open wide the door for
the reception and naturalisation of foreigners.(q)
*Naturalisation is usually called a change of nationality. [*349]
The naturalised person is supposed, for the purposes of protection and allegiance at least, to be incorporated with the naturalising
country.
This proposition is, generally speaking, sound; but it must,admit of
one qualification similar to that already mentioned with respect to the
domiciled subject, if the naturalised person should have been the original
subject of a country which did not allow him to shake off his allegiance
(exuere patriam).  In this event, if he should find himself placed in a
situation-the breaking out of war, for instance-in which his duties to
the country of his birth and of his adoption are at variance, the former
country would not regard him as a lawful enemy, but as a rebel; nor
could the jus avocandi already spoken of be legally denied to her by the
adopting or naturalising country, though the enforcement of the right
could not be claimed.  Banishment itself does not destroy the original
tie of allegiance.
The Letter of Sir L. Jenkins, from  Nimeguen, to Sir William Temple, at the Hague, contains the opinion of a most careful, learned, and
practical jurist upon this question.
"c My Lord,
r" To the question you were pleased to send me, about the three
Scotchmen, and the objection of the States to your memorial, that after
a sentence of banishment, the allegiance of a subject is extinguished; I
have this with submission to offer, that there are several things in the
Practice of Nations (which is the law in the question) that make it impossible for subjects, in my poor opinion, to renounce or divest themselves
of the allegiance they were born under.
"I For instance, no subject of our master's (we'll put the case at home)
can by the Law go out of his dominions without his leave; nor is this
(o) The Law is again very clearly and correctly stated by Zouche. " Quod
quamvis Incolatus et Domicilium in externo regno sufficiunt ad constituendum
aliquem subditum Jurisdictioni et proestandis muneribus obnoxium, non tamen sit
satis ad constituendum civem, ut eorum privilegiorum civilium sit particeps qum
in regno natis competunt, nisi specialis allectio supervenerit." —De Jur. Fee. p. 2.
S. ii. xiV.
(p) Giinther, vol. ii. pp. 266. 311. n. e.
(q)   Illud vero sine ullh dubitatione maxime nostrum fundavit imperium, et
populi Romani nomen auxit, quod principes ille, creator hujus urbis, Romulus
fcedere Sabino docuit, etiam hostibus recipiendis augeri hane rempublicam oportere: cujus auctoritate et exemplo nunquam est intermissa a majoribus nostris
largitio et communicatio civitatis." —Cic. pro. L. Corn. Balbo. " Malt qui peregrinos urbibus uti prohibent, eosque exterminant, ut Pennus apud patres nostros,
Papius nuper.' —De Off. 1. iii. c. xi.




264   PHILLIMOIRE ON INTERNATIONAL LAW.
leave, whether it be expressed or by implication (as in the case of merchants and sea-faring men), granted, but there is a time always supposed
for his return; I mean, when the king had need of his service; and in
the case of every man of quality it is always prefixed.  Besides there is
no doubt, and we see it is a frequent practice in England, France, &c.,
to call back the subjects from foreign services and residences within a
time prefixed, and that upon pain of death; in which case, if they return
not, the pain is well executed upon them, (provided they lie not under
[*350] any impediment,) if they afterwards fall *into the hands of their
master: and I think the Court of Constable and Marshal in
England would be the proper judicature in such a case.
" 2. Though my Prince should give his leave to settle myself for instance, in Sweden, and that I should purchase and have land given me
in Sweden, upon condition, and by the tenure of following the King in
his wars; if my king should afterwards have a war with Sweden, that
king cannot command me to follow him against my natural and original
master.  The reason of it is, he cannot command me to expose myself
more than his own natural-born subjects do; which yet would be my
case, if I should appear with him in the field against my Natural Liege
Lord; into whose hands, if I should happen to fall alive, he would have
a right to punish me as a traitor and a rebel, and put me to the torture
and ignominy of his laws at home, which he cannot pretend to do when
he takes those that are not his born subjects, nor inflict anything upon
them but what is agreeable to the permissions of war.
9" 3. Nay, which is more, in the case of Reprisals, if I live in Sweden,
a Burgher, Officer, or what you please, and a Dane, for instance, hath
Letters of Reprisals against the English nation, if my goods fall into the
Dane's hands, they are lawful prize, though I be never so much habituated in Sweden; unless it proves, that I am  so transplanted thither
curn poannis, that I have neither goods nor expect them in England, and
have resolved never to return thither; which is an exception that some
learned men allow of, but not all: these things show that the quality of
a natural-born subject is tied with such indissoluble bonds upon every
man, that he cannot untie all by any means.
"I am, &c.
"6 L. JENKINS."(r)
CCCXXIV. A change(s) of nationality is effected by the operation of
the law upon the acts of the individual.  The wife by her marriage acquires the nationality of her husband: the naturalisation of the husband
carries with it,'lpso facto, that of the wife.  "d C'est la consequence du
lien intime qui unit les epoux, consacre par toutes les legislations, et
passe ainsi en principe du droit international."(t)
(r) Life of Jenkins, vol. ii. p. 713.
(s) Vide post, chapters on DOMICIL under COMITY.
Fe.lix, 1. i. t. i. s. 2. My obligations to this work are very great, though in the
present instance there is a departure from the division of the subject adopted by
its erudite author; of whose untimely death, during the progress of this work, I
have heard with sincere regret.
(t) Fslix, ib. s. 40.




IG H T  OF J U RISDICTION  OV ER PERSONS.    2  5
*Upon the same principle, the naturalisation  of the father
carries with it that of his minor children; and MI. Foelix is of [351-]
opinion that the naturalisation of a widow has the same effect upon her
minor children.(u)  It is clear that in neither case are children, mncajors
by the law of the land of their birth, affected by the act of their parents.
CCCXXV. A collective naturalisation of all the inhabitants is effected
when a country or province becomes incorporated in another country by
conquest, cession, or free gift.(v)  Under the old law of France, the
Dutch and Swiss and other nations had, by virtue of Treaties, the rights
of natives (indigenatius;) and by the Bourbon  Family Compact of
1761, a similar privilege was conceded to Spanish subjects.
CCCXXVI. The laws of France since 1790 have contained a variety
of provisions upon the means of acquiring and losing naturalisation.(x)
By the law now.in force, a Frenchman loses his native character by
naturalisation, or by accepting office without the permission of the State,
in a foreign country, or by so establishing himself abroad as to evidence
an intention of never returning to his country.  I-He may, however, at
any time recover his native character by renouncing his foreign office
and domicil, and making due application to the State.(y)
*In the Austrian dominions the stranger acquires rights of
citizenship by being employed as a public functionary.   The [352
superior administrative authorities have the power of conferring these
rights upon an individual who has been previously authorised, after ten
years' residence within -the  empire, to  exercise a profession.  Mere
admission into the military service does not bring with it naturalisation.
Emigration is not permitted without the consent of the proper authorities; but the emigrant who has obtained permission, and who quits the
empire sine animno revertendi, forfeits the privileges of an Austrian citizen.
The wife of an Austrian citizen acquires citizenship by her marriage.
In  Prussia  the  stranger acquires the right of citizenship by  his
nomination to a public office; and by a recent law (1842) the superior
administrative authorities are empowered to naturalise any stranger who
satisfies them as to his good conduct and his means of existence. Certain exceptions are made with regard to Jews, to subjects of another
state belonging to the Germanic Confederation, to minors, and to persons
incapable of disposing of themselves.  The same rule as in Austria
applies to the emigrant. The wife of a Prussian citizen acquires citizenship by her marriage.(z)
(it) Fclix, 1. i. t. i. s. 41.     (v) Giiunther, vol. ii. p. 268, n. e.
(x) Foelix, 1. i. t. i. s. 2.
(y) Code Civil, 1. i. t. i. c. ii. (De la Privation des Droits civils.) s. 17. " La
qualit' de Francais se perdra:-1. Par la naturalisation acquise en pays ktranger;
2. Par l'acceptation non autorisee par le roi, de fonctions publiques conf6rees par
un gouvernement etranger; 3. Enfin, par tout ktablissement fait en pays stranger,
sans esprit de retour.
"Les 6tablissemens de commerce ne pourront jamais etre considerds comme
ayant dte faits sans esprit de retour.
18. " Le Franqais qui aura perdu sa qualite de Franqais, pourra toujours la
recouvrer en rentrant en France avec l'autorisation du roi, et en d6clarant qu'il
vent s'y fixer, et qu'il renonce Am toute distinction contraire a la loi frangaise."
(z) Fuelix, 1. i. t. i. s. 2.
AUGUST,  1854.-18




266     PHILLI SORE ON INTERNATIONAL  LAW.
In Bavaria, by the law of 1818, the jure indigenatuis are acquired in
three ways:1. By the marriage of a foreign woman with a native.
2. By a domicil taken up by a stranger in the kingdom, who at the
same time gives proof of his freedom from personal subjection to any
foreign state.
3. By royal decree.
The Bavarian citizenship is also lost in three ways:1. By the acquisition, without the special permission of the king, of
jure indigenatu's in another kingdom.
2. By emigration.
* 3. By the marriage of a Bavarian woman with a stranger.
[353 ]   In the kingdom of Wurtemberg, a stranger must belong to a
commune in order to acquire citizenship, unless he be nominated to a
public function.  The citizenship is lost by emigration authorized by
the Government, or by the acceptance of a public office in another State.
CCCXXVII. In the Kingdom of the Netherlands the power of conferring Naturalisation rests with the crown by the 9th and 10th article
of the Fundamental Law of 1815.
CCCXXVIII. In Russia, Naturalisation is effected by taking an oath
of allegiance to the Emperor; but naturalised strangers may, at any
time, renounce their naturalisation and return to their country.
In the United States of North America, the constitution confers on
Congress the power to establish a uniform Rule of Naturalisation;(a)
and it has been held by the tribunals of the highest authority in that
country, that the power so vested in Congress is exclusive, and that it
cannot be exercised by any one of the Federal States.
CCCXXIX. In Great Britian, till a very recent period, Naturalisation
could only be effected by an Act of Parliament. But by a recent
statute(b) this power is now vested in one of the Principal Secretaries of
State, who, upon receiving a petition from an alien meaning to reside in
the United Kingdom, and desirous of being naturalised, may issue a
certificate, to be enrolled in the High Court of Chancery, granting to
*354] the memorialist, upon his taking, within sixty *days from  the
[*354] date of the certificate a prescribed oath, all the rights and capacities of a natural-born British subject, except the capacity of being a
member of the Privy Council or a member of either House of Parliament.  The Secretary has the power of excepting other rights if he be
so minded, but these he must except.  This Statute also enacts that
every person born of a British mnother shall be capable of holding real
(a) Vide suprh, ch. v. cxix.
1 Kent, p. 422, Pt. 2. 1. xix. (5).
2 Dallas Rep. 370.
3 Washington Circuit Rep. 313.
2 Wheaton's Rep. 269.
5 Wheaton's Rep. 49.
2 Kent, 63.
(b) 7 & 8 Vict. c. lxvi. "c An act to amend the Law relating to Aliens," repealing 12 & 13 W. III. c. ii., 1 G. I. s. ii. c. iv., 14 G. III. c. lxxxiv., so far as they
may be inconsistent with this Act.




RIGHT  OF JURISDICTION  OVER  PERSONS.    267
or personal estate; that an alien friend may hold every species of personal property, except what are known to English Law as Chattels Real;
and that every subject of a friendly state, who may reside in any part
of the United Kingdom, may hold lands and tenements for the purposes
of residence or trade f6r the space of twenty-one years, in the same
manner as a natural-born subject.  This statute does not affect any rights
of aliens existing previously to it, and confers on all persons naturalised
before it passed, who have resided five successive years in the United
Kingdom, the same privileges as aliens who have availed themselves of
its provisions.
CCCXXX. A great difficulty has arisen with respect to the legal
status of liberated Africans, who reside and trade and acquire property
in the British territory at Sierra Leone; but who, not being naturalised
subjects, frequently commit with impunity the offence of buying and
selling slaves without the boundary of the territory. An ordinance
passed the legislature of Sierra Leone (June 8, 1852) rc to secure and
confer upon liberated Africans the civil and political rights of naturalborn British subjects;" but it was disallowed by the crown of England,
as it would appear, upon the ground that by the instrumentality of
Treaties more amply worded with the African chiefs, the provisions of
the stat. 6 & 7 Victoria, c. 98, might be made applicable to liberated
Africans, though not British subjects, within the Queen's territories.(c)
*CCCXXXI. The Right of Jurisdiction,(d) Civil and Crimi-  355
nal, over all Persons and Things within the territorial limits,
which is incident to a State relatively to its own subjects and their property, extends also, as a general rule, to foreigners commorant in the
land. This subject has been already touched upon under the title of
6 Right to Self-Preservation," and will be again considered in the chapter on cc Extradition."
CCCXXXII. With respect to the administration of Criminal Law, it
must be remembered that every individual, on entering a foreign territory, binds himself by a tacit contract to obey the laws enacted in it for
the maintenance of the good order and tranquillity of the realm,(e) and
(c) See Papers relative to the rights of liberated Africans, and the prevention
of Slave-dealing at Sierra Leone; laid before Parliament, August 12, 1853, p.
30, &c.
(d) " Ad gubernationem populi moraliter necessarium est, ut qui ei vel ad tempus
se admiscent, quod fit intrando territorium, ii conformes se reddant ejus populi
institutis."-Grotius, 1. ii. c. ii. s. v. p. 191.
"Pro subjectis imperii habendi snunt omnes qui intra terminos ejusdem reperiunter, sive in perpetuum sive in temps commorantur."-Huberus de Conflictu
Legum, 1. i. t. iv. s. ii.
" In regard to foreigners resident in a country, although some jurists deny the
right of a nation generally to legislate for them, it would seem clear upon general
principles that such a right did exist."-Story, Conflict of Laws, s. 541.
Wheaton, E16m. t. i. p. 2. c. ii. pp. 137-8.
See Correspondence between some of the Continental Powers and Great Britain
respecting the Foreign Refugees in London, presented to both Houses of Parliament by command of Her Majesty, 1852.
De delictis Peregrinorum, eaque puniendi ratione (Diss. Jurid. Inaug.): Homan,
Groning. 1823, p. 33, &c.
(e);" Quare etiamsi peregrinus cum cive paciscatur, tenebitur illis legibus, quia




268      PHILLIMORE   ON  INTERNATIONAL  LAW.
it is manifestly not only the right, but the duty of a State to protect
*36 the order and safety of the society entrusted to its charge,
equally against the offences of the foreigner as of the native.(f)
This proposition, it should be observed, must not be confounded with
another, namely, the alleged right or duty of a State to punish a citizen
for an offence committed without its territory,-this is a proposition of
Municipal, the other is one of International Law.  The strict rule of
Public Law undoubtedly is, that a State can only punish for offences
committed within the limits of its territory: this is, at least, the natural
and regular consequence of the territorial principle.
Nevertheless it is a pretty general maxim  of European Law, that
offences committed against their own country, by citizens in a foreign
country, are punishable by their own country when they return within
its confines.  It is, however, clearly within the competence of the State,
within whose territories the offence has been committed, to punish the
offender, and especially if the offence has not been of a public character
against the foreign State, but of a private character against a brother
citizen of the offender.  But in cases of a public character, a double
offence is committed; one against the State of which the offender is a
subject, another against the general law  of the land within which the
offence is devised and perpetrated.  There is a maleficiorwun concursus.
[*357] Whether *the State of the offender will punish him after he had
been punished by the State within whose limits he committed
the offence, is, as indeed the whole question is, a matter of Public rather
than of International Law.(g)
The French Law, as a general maxim, holds that penal justice is confined within territorial limits, but with the following exceptions:(h) —I.
qui in loco aliquo contrahit, tanquam subditus temporacrius legibus loci subjecitur."Grotius, 1. ii. c. xi. 5. 2.
" Quia actionis peregrinorum quamdiu in alieno territorio versantur, vel comnmorantur, subjacent legibus loci in quo sunt, si peregrini in territorio alieno delinquunt juxta leges loci puniendi sunt." —Wolff, Jus Gent. s. 301.
Vattel, 1. c. 8. 101.
Rocco, Dell' Uso delle Leggi delle Due Sicilie, p. 161.
Martens, s. 99.
Kliiber, s. 62.
Masse, Le Droit commerc., &c.; Devoir des 6trangers, t. ii. p. 53, &c.
(f) Martens, s. 97.
Tittman, Die Strafrechtspflege in Volkerrechtlicher Riicksicht, 11 (Dresden, 1817).
Feuerbach, Lehrbuch, 31.
Portalis: " Chaque etat a le droit de veiller a sa conservation, et c'est dans ce
droit que r6side la souverainet6.  Or comment un Btat pourraitil se conserver et
maintenir, s'il existait dans son sein des hommes, qui pussent impun6ment enfreindre sa police et troubler sa tranquillit6. Le pouvoir souverain ne pouvrait remplir ain fin, pour laquelle il est 6tabli, si des hommes strangers ou nationaux 6taient
independants de ce pouvoir. I1 ne peut 6tre limite, ni quant aux choses, ni quant
aux personnes. Ii n'est rien s'il n'est tout. La qualit6 d'etranger ne saurait etre
une exception l6gitime pour celui, qui s'en prevaut contre la puissance publique,
qui regit le pays dans lequel il reside. Habiter le territoire, c'est se soumettre h
la souverainet6." —Code Civ.: suivi de l'expos6 des Motifs, t. ii. p. 12.
(g) H. A. M. Van Asch Van Wijck, De delictis extra Regni territorium admissis.
Cf. presert. cap. i. s. 4., cap. ii. s. 3., cap. iii. s. 3. (Utrecht, 1839).
(h) " 5. Tout Frangais que se sera rendu coupable, hors du territoire de France,
d'un crime attentatoire k la surete de l'Etat, de contrefaction du sceau de l'Etat, de
monnaies nationales ayant cours, de papiers nationaux, de billets de banque auto



RIGHT  OF JtURISDICTION  OVER  PERSONS.    269
If the offence be against the welfare and safety of the State, whether it
has been committed by a Frenchman or a foreigner:-II. With respect
to private offences in cases where the following conditions are combined1. That the offence be of sufficient gravity to constitute a crime.
2. That it has been committed by a Frenchman against a Frenchman.
3. That the offender has returned to France.
4. That he has been indicted in France by the injured party.
In the United States of North America, and in the British dominions,
the rule of confining penal justice to the territory, in which the offence
has been committed,(i) has been most rigidly adhered to.  But the latter country has so far *relaxed the severity of her adherence to
this strict rule of International Law as to allow crimes of murder [358
and manslaughter committed out of England, when both the offender
and the offended are subjects of the British crown, and when this fact
has been averred in the indictment, to be tried in England. Whether
they must be British-born subjects appears to be a doubtful point; but,
in spite of one decision in the affirmative, the better construction of the
statutes affecting this matter would appear to be, that a foreigner, owing
allegiance in return for protection, would be within the scope of their
provisions.(k)
All indictable offences committed within the Admiralty Jurisdiction,
that is, on the hiUh seas, are offences of the same nature, and liable to
the same punishment, as if they had been committed on land (1)  These
rises par la loi, pourra 6tre poursuivi, jug6 et puni en France, d'apres les dispositions des lois Franqaises" (I. 7. 24.).
"6. Cette disposition pourra etre etandue aux ktrangers qui, auteurs ou complices des momes crimes, seraient arrteis en France, ou dont le gouvernement
obtiendrait l'extradition" (I. 24.).
1 7. Tout Francais qui se sera rendu coupable, hors du territoire du royaume,
d'un crime contre un Franqais, pourra, h son retour en France, y etre poursuivi et
jugS, s'il n'a pas 0t6 poursuivi et jug6 en pays etranger, et si le Frangais offens6
rend plainte contre lui" (I. 24.).
French Code, " Code d'Instruction Criminelle," p. 1.
(i) Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur."-Bartolus, ad & final. lex saccularii citat. ob. in 1. I., cunctos
populos; C. de summo trinit. in 1. questionem; and Henry on Foreign Law, p. 47.
(k) Statutes relating to offences committed by British subjects in foreign states:33 Hen. VIII. c. 23., repealed by 9 Geo. IV. c. 31. ss. 7, 8; latter section applies
to cases where the death, or the cause of the death only, happens in England.
Cases under 33 Hen. VIII. c. 23:
Governor Wall's case, 28 State Trials, p. 51, A. D. 1802.
Rex v. Lepardo, 1 Taunton's Rep. 26; Russell and Ryan's Crown Cases
Reserved, 134, A. D. 1807. Offender Lepardo discharged because he was a
foreigner.
Rex v. Sawyer, Russell and R. 294, A. D. 1815.
Cases under 9 Geo. IV. c. 31:
Rex v. Helsham, 4 Carrington and Payne's Rep. 294.
Rex v. M. A. de Mattos, 7 Carrington and Payne, 458.
See remarks of Solicitor-General as to preceding case, and Justice Vaughan's
charge to the jury.
(1) Statutes relating to offences on the high seas, or in slavers, &c.:15 Rich II. c. 3.
28 Hen. VIII. c. 15. s. 1.
46 Geo. III. c. 54.




270   PHILLIMORE ON INTERNATIONAL LAW.
[*359] Statutes were necessary *because, by the Common Law, the grand
Li[591   jury are sworn to inquire only for the body of the county, and cannot, without the help of an Act of Parliament, inquire of a fact done out
of that county for which they are sworn.(m)
CCCXXXIII. The exercise of Civil Jurisdiction over foreigners will
be chiefly considered under the subsequent title of COMITY.
It will be sufficient to remark here that the Right of Jurisdiction and
authority over a merely commorant foreigner, though he be subditus temporarius, does not extend to compelling him  to render civil or military
services; or to the power of trying or punishing a foreigner for an offence
committed in a foreign land. This rule applies even where the offence
has been against the State in which the foreign offender is now commorant; and much more forcibly against an extravagant pretension sometimes put forth, to the effect that the general powers of a State extend
to punish all wrongdoers wheresoever the wrong may have been done.(n)
So long as there are different States with different laws, no single State
can have a right to punish, by its own laws, citizens of another State,
for offences committed in places over which it has no jurisdiction; or to
punish according to what it may conceive to be the law of the place
where the offence was committed.
This assumed Jurisdiction is doubly reprehensible:-First, as being a
*360] usurpation of the Rights of another State; and *Secondly, as
Li ] being a violation of what Heffters justly calls a ruling maxim
(herschenlde Grunzdsatz) of all constitutional States,-that no man can be
withdrawn from the tribunal to which he is naturally and legally subject,
and compelled to plead before another.(o)
[*361]                 "CHAPTER  XIX.
EXCEPTIONS TO THE TERRITORIAL RIGHT OF JURISDICTION.
CCCXXXIV.  We have now to consider certain exceptions to the
sound and important rule laid down in the last chapter, which is built
upon the maxim  of the Roman Law, "pextra territoriurn jus cdiscenti
impunel non paretur." (a)
9 Geo. IV. c. 31. s. 32.
4 & 5 W. IV. c. 36. s. 22.
Statutes relating to offences committed out of England, in particular places —
10 & 11 W. II. c. 25.
59 Geo. III. c. 75.
(mn) Stephen's Blackstone, vol. iv. p. 370. (Bk. vi. ch. 18.)
Russell on Crimes, ed. Greaves (1843), vol. i. p. 549. &c. (Bk. iii. ch. 1. s. 6.)
(n) Lord Stowell, speaking of slavery, says that it has been suggested to the
Court "that this trade, if not the crime of Piracy, is nevertheless crime, and that
every nation, indeed every individual, has not only a right, but a duty, to prevent
in every place the commission of crime. It is a sphere of duty (he adds) sufficiently large that is thus opened out to communities and their members."-" The
Le Louis," 2 Dodson's Adm. Rep. p. 248.
(o) Heffters, s. 36. n. 4.
(a) Dig. ii. 1, 20.




TE R R IT OR  I AL  JURISDIOTION.                       2 71
The First class of exceptions to this rule is founded upon long usage
and the reason of the thing, and relates principally to the status of Christians in Infidel countries.
So early, indeed, as the sixth century, a derogation from the rule of
European International Law began to develope itself.
After the fall of the Eastern Empire, the Code of the Visigoths, not
the least remarkable monument of the Middle Ages, conceded to foreign
merchants the privilege of being tried by judges selected from  among
their own countrymen.(b)  But after the Ottoman power became established in Europe, Christian nations trading with the territories subject
to that power, obtained from it, at different periods, a concession of exclusive authority over their own subjects, nearly identical *with [*62
that which the Christians jus commnune(c) had conceded to foreign
ships of war in their ports.
The vital and ineradicable differences(d) which must always separate
the Christian from  the Mahometan or Infidel, the immiscible character
which their religion impresses upon their social habits, moral sentiments,
and political institutions, necessitated a departure from the strict rule of
Territorial Jurisdiction, in the case of Christians who founded commercial establishments in Ottoman or Infidel dominions.
France, as early as the beginning of the sixteenth century, stipulated
that her subjects throughout those districts, generally known as the
Echelles du Levant, should be exclusively justiciable in criminal and
civil matters before their own tribunals, and according to their own
laws;(e) and this privilege has been continued by a series of subsequent
capitulations or diplomas of concession.
CCCXXXV. The concessions by the Porte to the British Crown(f)
began in the reign of Queen Elizabeth.  A  Treaty in 1675, (art. 18,)
recited that British enjoyed the same privilege as French, Venetian, and
other subjects.  Orders of council(g) and Acts of Parliament(h) have,
at different times, prescribed the manner in which the Crown shall exercise this jurisdiction.  The latest and most important statute, which
being one passed in the sixth and seventh years of the present Queen,
enables her to exercise any power or jurisdiction which she now has, or
(b) Miltitz, Manuel des Consuls, I. 1. i. ch. iv. s. 2. p. 161., 1. ii. ch. i. s. 1. p. 4. n. 2.
l" Dum transmarini negotiatores inter se causam haberent nullus de sedibus nostris eos audire prmesumat, nisi tantummodo suis legibus audiantur apud telonarios
suos."  These Telonarii were in fact Praetores Peregrini.
Montesquieu, Esp. des Lois, 1. xxi. ch. 19.
Amasis (579 A. J. c.) is said to have permitted the Greeks established at Naucratis in Egypt to choose magistrates from their own nation for the decision of disputes among themselves (Herod. ii. 179).
(c) See this phrase frequently in the letters of Sir L. Jenkins which contain
responsc upon questions of Public and International Law.-Life, vol. ii. pp. 719-20.
(d) Vide ante, p. 82.
Vide post, CONSULs.
(e) Ortolan, Dipl. de la Mer, t. i. pp. 311-14.
(f) Miltitz, t. ii. 779. &c. (1. iii. c. 1. s. v. par. 29.)
(g) Hertslet's Treaties, vol. vi. Orders in 1830, 1839, 1843.
(h) 6 & 7 W. IV.
6 & 7 Vict. c. 94.




272      PHILLI0MORE  ON  INTERNATIONAL  LAW.
hereafter may have, within *any country out of her dominions,
LI ~3]   in the same manner as if her Majesty had acquired such power
and jurisdiction by the cession or conquest of territory.
Generally,(i) it may be said that the Consuls of Christian Powers
residing in Turkey, and the Mahometan countries of the Levant, exercise
an exclusive Criminal and Civil Jurisdiction over their fellow-countrymen. The Criminal Jurisdiction is usually limited to the infliction of a
pecuniary fine; in graver cases, the Consul exercises the functions of a
juge d'instruction, collecting evidences of the crimes, and transmitting
them to the tribunals of their own country.(k)
CCCXXXVI. With respect to British subjects in China,(l) an Order
in Council issued on the 13th of June, 1853, which recited "that by
treaty, grant, sufferance, or other lawful means Her Majesty hath power
and jurisdiction over British subjects within the dominions of the Emperor of China, and the same or certain parts thereof have heretofore been
exercised, on behalf of Her Majesty, by Her Majesty's Consular officers,
resident within the said dominions,"(n?) and proceeded to make regulations for the administration of civil and criminal justice over all subjects
c" being within the dominions of the Emperor of China, or being within
any ship or vessel at a distance of not more than one hundred miles
from the coast of China."(n)  By one of the regulations(o) of this Order
it is provided that the Supreme Court of Hong Kong may take cognizance of offences committed by "British subjects within the pen[364 ] insula of Macao, but may not issue any writ or warrant to be
served therein.(p)
CCCXXXVII. The whole question of the Consular Jurisdiction will
be discussed in a later part of this Work, under the title CONSULS.
CCCXXXVIII. The Second class of recognized exceptions, which
entitle foreigners who are the subjects of them to be considered as morally
wuithout, though physically within, the territorial limits, relate to Foreign
Sovereigns passing through, or temporarily residing in the territory of
another state; they are held not to be amenable to the jurisdiction, civil or
criminal, of its tribunals.  They represent the nation of which they are
sovereigns, and being permitted to enter a foreign State are entitled, by
International Law, to be considered, both as to their own person and
effects, and as to those of their attendants, as being still within their own
dominions. ()
(i) Wheaton's E16m. i. 136.
(k) The labourious and valuable work of Miltitz, cited above, contains a mine
of historical information upon this subject.
(I) See 3 & 4 W. IV. c. 93.
6 & 7 Vict. c. 80.
(n) See papers laid before Parliament, 1853.
(n) Regulations X. XI. XII. provide for the administration of civil justice in
cases where both parties to the suit are British subjects, or where one is a British
and one a Chinese subject.
(o) XLV.    (p) As to Persia, see Miltitz, i. tI7, &c. (1. iii. c. 1, s. v. par. 29.)
Hertslet's Treaties, i. 408.
De M. et De C. v. 153. Traite entre Gr. Bretagne et Perse, T6heran, 28 Oct.
1841.
(q) Vide post, Chapters on the subject of SOVEREIGNS and AMBASSADORS.




TERRITORIAL  JUR-ISDICTION.                            273
Thirdly. The same immunity is applicable to the Ambassador or duly
accreditecd Public Minister of a foreign State, as will be considered more
at length in a later part of this Work.
Fourthly. If a foreign army be permitted to pass through, or be stationed in, the territories of another State, the persons composing that
army, or being within its lines, are entitled to exterritorial privileges.
Fifthly. All ships, public or private, upon the high seas, are subject
only to the jurisdiction of the country to which they belong.(r)  This
last subject requires a fuller discussion.
*CCCXXXIX. The nature and extent of these exterritorial
privileges will be discussed at length hereafter; it is enough, [*365]
therefore, to have given a brief summary of them in this place.  Those
entitled to such privileges retain the domicil of their own country, with
all the incidental rights affecting their persons or property. (s)  This rule
may not in every conceivable case exclude the possibility of a domicil
in the country where the privileged person is residing-a domicil for certain purposes, at least.  For instance, it is possible that an ambassador
may be sent to the place of his native, or of a subsequently acguired(t)
domicil; but the general rule is as has been stated.(u)
When a person is admitted to exterritorial privileges, the things that
belong to him, and the persons that form part of his household or suite,
are, generally speaking, sheltered under the same immunities. These privileges' exempt them from liability to the civil or criminal tribunals.  It
is however possible, that even privileged persons, by mixing themselves
up with the trade or commerce of the country, or by becoming owners
of immovable property therein, might of necessity be in some measure
amenable to the civil tribunals.
The privilege does not extend to real or immovable property. This,
like the property of a native, is subject to the municipal law  of the
land.(v)  The privileged person is free *from  the payment of [*366
taxes or duties of any kind; but not from paying the tolls upon
the public ways over which he travels, or any public impost attached to
the use of a public institution or thing.
CCCXL. The important exception(x) to the rule of International Law
(r) Wheaton, Elm. i. 119, citing Casaregis Discurs. pp. 136-174: "Exceptis
tamen ducibus et generalibus alicujus exercitufs, vel classis maritimi, vel ductoribus
alicujus navis militaris nam isti in suos milites, gentem et naves, liber8 jurisdictionem sive voluntariam, sive contentiosam, sive civilem, sive criminalem, quod
occupant tanquam in suo roprio exercere possunt."
(s) Heffters, s. 42.
Vide post, Chapters on $OVEREIGNmS and AMBASSADORS.
(t) Heffters, s. 42, i. n. 3, citing Treaty of Westphalia, v. 28: " Nisi forte in quibusdam  locis ratione bonorum  et respectu territorii vel domicilii aliis statibus
reperiantur subjecti."'
(ai) Bynkershoek, De Foro Leg. c. xi. 5, c. xviii. 6.  (v) Heffters, s. 42, vi.
Wiquefort, L'Ambassadeur, i. 28. p. 422.
Bynkershoek, de Foro Leg. c. xv. 6., c. xvi.
Merlin, Rep. Ministre Public, s. 4, 5. Art. 6, 8.
It has been recently decided, that personal property situated in Great Britain,
of a person dying domiciled abroad, does not pay the usual duties to the crown.Vide post, DOnMICIL.
(x) Grotius.




274   PHILLIMORE ON INTERNATIONAL LAW.
respecting territorial jurisdiction afforded in the instance of Foreign Ships
lying in the harbours and ports of another State, requires a twofold consideration-as to
1. Foreign Ships of War.
2. Foreign Ships of Commerce.
CCCXLI. First, with respect to Foreign Ships of War.(y) —Long
F*3671 usage and universal custom  entitles every *such ship to be conLi371- sidered as a part of the State to which she belongs, and to be
exempt from any other jurisdiction; whether this privilege be founded
upon strict International Right, or upon an original concession of Comity, with respect to the State in its aggregate capacity,(z) which, by
inveterate practice, has assumed the position of a Right,(a) is a consideration of not mtuch practical importance.  But it is of sourme importance, for, if the better opinion be, as it would seem to be, that the privilege in question was originally a concession of Comity, it may, on due
notice being given, be revoked by a State, so ill advised as to adopt such
a course, which could not happen if it were a matter of Natural Right.
But, unquestionably, in the case of the Foreign Ship of War, as of the
Foreign Sovereign and Ambassador, every State which has not formally
notified its departure from this usage of the civilized world, is under a
tacit convention to accord this privilege to the Foreign Ship of War lying
in its harbours.(b)
CCCXLII. The authority of so great a jurist as Dr. Story, delivering
Vattel, 1. i. c. xix. s. 216.
Guinther, ii. 257-8, note.
Martens.
Ortolan, Diplomatic de la Mer, 1. ii. ch. 9, 10. 13.
The Schooner Exchange v. M'Fadden and Others, 7 Cranch's (American) Reports,
pp. 135-147.
Wheaton, E16m. pp. 124-134.
Kent's Commentaries, i. 157. note e, (ed. 1851.)
Heffters, s. 78.
(y) Kliiber, s. 55. (5): " Bei Kriegsschiffen in fremndem Seegebiet, welchen nach
allgemeinemI Herkommen die Austibung der Gerichtbarkeit nach den Gesetzen
ihres Staates iibdr ihre Gerichtpflichtigen zukommen."
" Si les enfants sont nes dans un vaisseau de la nation [ship of war], ils peuvent etre
reputes nes dans le territoire, car il est naturel de considerer les vaisseaux de la
nation comme des portions de son territoire, surtout quand ils voguent sur une
mer libre, puisque FlEtat conserve sa jurisdiction dans ces vaisseaux. Et comme
suivant l'usage communement requ, cette jurisdiction se conserve sur le vaisseau,
meme quand il se trouve dans les parties de la mer soumises a une domination
6trangere, tous les enfants nes dans les vaisseaux d'une nation, seront cens6s n6s
dans son territoire. Par la meme raison, ceux qui naissent sur un vaisseau etranger
seront reput6s nes en pays etranger, a moins que ce ne ffit dans le port meme de
la nation; car le port est plus particulierement dlu territoire, et la mnere, pour Otre
en ce moment dans le vasseaue etranger [this must mean merchant ship] n'est pas
hors du pays."-Vattel, 1. c. xix. s. 216.
In another place, speaking of what is contained under the word domaine d'une
nation,-he says, " et par ses possessions, il ne faut pas seulement entendre ses terres,
mais tous les ciroits dont elle jouit."-L. ii. ch. vii. s. 80.
It is remarkable that Vattel should not furnish more authority on this point,
than is to be found in the passages cited above.
(z) Vide ante, p. 160.            (a) Ib. 161.
(b) Vide post, AMBASSADORS.
Vattel, 1. iv. c. vii. s. 92.




TERRITORIAL JURISDIC TION.                        275
the sentence of the Supreme Court of the United States, is of great
weight in this matter. He expresses his opinion as follows:
" In the case of The Exchange,(c) the grounds of the exemption of
public ships were fully discussed and expounded.  *It was there  368
shown that it was not founded upon any notion that a foreign
Soverign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another Sovereign,
when it came within his territory; for that would be to give him sovereign power beyond the limits of his own empire. But it stands upon
principles of public comity and convenience, and arises from the presumed consent or license of nations, that foreign public ships coming
into their ports, and demeaning themselves according to law, and in a
friendly manner, shall be exempt from  the local jurisdiction.  But as
such consent and license is implied only from the general usage of
nations, it may be withdrawn upon notice at any time, without just
offence; and if, afterwards, such public ships come into our ports, they
are amenable to our laws in the same manner as other vessels.  To be
sure, a foreign Sovereign cannot be compelled to appear in our courts,
or be made liable to their judgment, so long as he remains in his own
dominions; for the sovereignty of each is bounded by the territorial
limits. If, however, he comes personally within our limits, although he
generally enjoy personal immunity, he may become liable to judicial
process in the same way, and under the same circumstances, as the
public ships of the \nation.  But there is nothing in the Law  of
Nations which forbids a foreign Soveireign, either on account of the
dignity of his station or the nature of his prerogative, voluntarily
becoming a party to a suit in the tribunals of another country, or from
asserting their personal, or proprietary, or sovereign rights, which may
be properly recognized and enforced by such tribunals.  It is a mere
matter of his own good will and pleasure; and if he happens to hold a
private domain within another territory, it may be that he cannot obtain
full redress for any injury to it except through the instrumentality of
its Courts of Justice.  It may therefore be justly laid down as a general proposition, that all persons and property within the territorial jurisdiction of a Sovereign, are amenable to the jurisdiction of himself or his
*Courts: and that the exceptions to this rule are such only as, [*369]
by common usage and public policy, have been allowed, in
order to preserve the peace and harmony of nations, and to regulate
their intercourse in a manner best suited to their dignity and rights.
It would, indeed, be strange, if a license, implied by law from the general practice of nations, for the purposes of peace, should be construed
as a license to do wrong to the nation itself, and justify the breach of
all those obligations which good faith and friendship, by the same implication, impose upon those who seek an asylum in our ports."'(d)
CCCXLIII. The privilege is extended, by the reason of the thing, to
boats, tenders, and all appurtenances, of a ship of war, but it does not
(c) The Schooner Exchange, 7 Cranch's (American) Reports, p. 1151.
(d) " The Santissima Trinidad," 7 Wheaton's (American) Reports, pp. 352-3-4.




276      P HILLIMORE  ON  INTERNATIONAL LAW.
cover effences against the territorial law committed upon shore, though
the commanders of vessels are entitled to be apprised of the circumstances attending and causes justifying the arrest of any of their crew, and to
secure to them, through the agency of diplomatic or consular ministers,
the administration of justice.(e)
CCCXLIV. Bynkershoek maintains that the property of a sovereign
cannot be distinguished from that of a private individual, and the tribunals of his country have laid down the law to that effect;(f) and by way
of confirmation of this doctrine, he cites a case in which certain Spanish
men-of-war *were seized in 1668 in the Port of Flushing, as a
Lr3iJ  reimbursement for certain debts of the Spanish Crown.  It appears that, on the remonstrance of the Spanish ambassador, they were setfree, with an intimation to the Spanish Crown that, if the debts of the.
Dutch subjects were not discharged, reprisals might not improbably be
granted to them.
Whether the proposition of Bynkershoek, wi:th respect to the debts of
Sovereigns, be a sound maxim of International Law, will be considered
in a later part of this Work; but even assuming for the present a premise which will be hereafter disputed, it is manifestly neither a logical
nor a moral consequence, that because the lrivaCte property of the sovereign may be seized, therefore the public ships of the nation over which
he rules may be also apprehended. The case cited appears to be a solitary instance of a national violation of the general International rule, as
to the immunity of foreign ships of war.
CCCXLV. In the case of the Prinz Fredericlk, brought into the British
High Court of Admiralty, the question was raised, whether a foreign
ship of war was liable to be sued for salvage.  Lord Stowell said: " I
have considered the evidence respecting the Dutch line of battle ship belonging to His Majesty the King of the Netherlands, arqnee enfiute, and
carrying a valuable cargo of spices, &c. from Batavia to the Texel, called
the Prinz Frederick, which was brought into Mount's Bay by the assistance of persons belonging to the British brig Howe, of the port of Penzauce. These persons have since arrested this ship and cargo, by a warrant issued from the High Court of Admiralty, in a cause of salvage, on
account of essential services rendered to them in a situation of imminent
danger.... I think that the first application for a recompense, in the
nature of salvage, ought, in the case of a ship of war belonging to a foreign State, to have been made to the representative of that State resident
in this country.  In the present case no doubt can be entertained, that
(e) Ortolan, Dipl. de la Mer, vol. i. pp. 291-2.
(f) Suepe cum injuria subditorum  ordines decreverunt, quod e re publicd esse
videretur. Quo refero hanc speciem: Anno 166.8, privati quidam Regis Hispanici
creditores tres ejus Regni naves bellicas, quee portum Flissingensem subiverant,
arresto detinuerant, ut inde ipsis satisfieret, Rege Hispan. ad certum diem per
epistolam in jus vocato ad Judices Flissingenses, sed ad legati Hispanici expostulationes Ordines Generales 12 Dec. 1668, decreverunt, Zelandin Ordines curare
vellent, naves illie continuo dimitterentur liberoe, admoneretur tamen per litteras
Hispaniue Regina, ipsa curare vellet, ut illis creditoribus, in causa justissima,
satisfieret, ne repressalias, quas imploraverant, largiri tenerentur." —Bynkershoek,
De Foro Legatorum, c. iv.




TERRITOR IAL JURISDICTION.                          277
just attention would have been paid to the application, and due care
taken, after wproper information obtained, to have answered the   371]
claim in such form or other, as substantial justice might appear
to require; for it is not reasonable to suppose, that private individuals
in this country should go unrewarded, for services performed to the ships
of foreign governments, when they would have been liberally rewarded
for similar services performed for such ships belonging to their own.
At the same time, the valuation of those services is proper to be obtained,
at least in the first instance, from those governments themselves; and it is
not till after their denial of justice, that recourse should be had elsewhere.  Instead of this, the application is made direct to the captain of
this ship, who treats it with undue disregard and defiance.  I say zuncle,
because at any rate some salvage was due; and if he personally was not
liable, he ought, at least, to have informed them where the demand was
to be made.  On his refusal, a warrant of detainer is sued out of the
Court of Admiralty, and this begets a delicate question of jurisdiction in
International Law, which the Court was disposed to treat with all necessary caution.  The vessel is said to have been detained, under the authority of this warrant for six months.
c" Why she was not released upon bail, on an application to the:Court,
I know not; the Court would certainly have decreed it, if any such application had been made, but without preju'dice to the depending question
of ijurisclictaion." (g)
The question was eventually settled by arrangement; but during the
course of the argument, the Queen's Advocate of that day insisted forcibly upon the general principle of International Law, which exempted
all foreign ships of war from all private claims.(h)
CCCXLVI. The privilege or right does not extend in time of war to
prize ships or prize goods captured by vessels *fitted out in a
neutral port in violation of its neutrality;(i) and it has been [372]
asserted on high authority, that, according to the law of the United
States of North America, a writ of habeas corpus may be lawfully
awarded to bring up a subject illegally detained on board a foreign ship
in American waters.(k) The same doctrine would probably be held by
the Courts of Great Britain.
CCCXLVII. It is important to observe that, if any question arise as
to the nationality of a ship of war, the commission is held to supply adequate proof.  In a part of the judgment already cited, Dr. Story observes: "In  general, the commission of a public ship, signed by the
(g) c" The Prinz Frederick," 2 Dodson's Adm. Rep. pp. 482. 484-5.
(h) lb. p. 457, &c.
(i) " The Exchange," 7 Cranch's Reports, 116.
"The Arrogante Barcelones," 7 Wheaton's Reports, 496.
" The Monte Allegro," ib. 520.
Vattel 1. i. c. xix. s. 216.
(k7) Opinions of the American Attorneys-General, vol. i. pp. 25. 55. 57.
Kent, Comment. 158, note.
See De M. et De 0. Tr., Index. xxxvi., tit. Nationalit6, for cataslogue of Treaties
on this subject.
Ortolan, i. 302, &c.




2768    IPHILLIMORE ON INTERNATIONAL LAW.
proper authorities of the nation to which she belongs, is complete proof
of her national character. A bill of sale is not necessary to be produced.
Nor will the courts of a foreign country inquire into the means by which
the title to the property has been acquired.  It would be to exert the
right of examining into the validity of the acts of the foreign sovereign,
and to sit in judgment upon them in cases where he has not conceded
the jurisdiction, and where it would be inconsistent with his own supremacy.  The commission, therefore, of a public ship, when duly authenticated, so far at least as foreign courts are concerned, imports absolute
verity, and the title is not examinable. The property must be taken to
be duly acquired, and cannot be controverted. This has been the settled
practice between nations; and it is a rule founded in public convenience
and policy, and cannot be broken in *upon, without endangering
[733] the peace and repose, as well of neutral as of belligerent sovereigns. The commission in the present case is not expressed in the
most unequivocal terms; but its fair purport and interpretation must be
deemed to apply to a public ship of the Government.  If we add to this
the corroborative testimony of our own, and the British Consul at Buenos
Ayres, as well as that of private citizens, to the notoriety of her claim of
a public character; and her admission into our own ports as a public
ship, with the immunities and privileges belonging to such a ship, with
the express approbation of our own Government, it does not seem too
much to assert, whatever may be the private suspicion of a lurking American interest, that she must be judicially held to be a public ship of the
country whose commission she bears."(z)
CCCXLVIII. Secondly, with respect to merchant or private vessels,
the general rule of Law is, that, except under the provisions of an express stipulation, such vessels have no exemption from  the territorial
jurisdiction of the harbour or port, or, so to speak, territorial waters
(mer littorale), in which they lie.(rn)
The doctrine is clearly expounded by the American Chief Justice
Marshall, as follows:"c When private individuals of one nation spread themselves through
another, as business or caprice may direct, mingling indiscriminately
with the inhabitants of that other, or when merchant vessels enter for
the purposes of trade, it would be obviously inconvenient and dangerous
to society, and would subject the laws lto continued infraction, and the
government to degradation, if such individuals or merchants did not owe
temporary and local allegiance, and were not amenable to the jurisdiction of the country.  *Nor can the foreign sovereign have any
motive for wishing such exemption.  His subjects thus passing
into foreign countries are not employed by him, nor are they engaged in
national pursuits.  Consequently, there are powerful motives for not
exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it.  The
(1) " The Santissima Trinidad," 7 Wheaton's (American) Reports, pp. 335-6-7.
(mn) Wheaton's Elam. t. i. pp. 119-20.
Wheaton, Hist., p. 739, Letter of Mr. Webster to Lord Ashburton.




TERRITORIAL  JURISDICTION.                          279
implied license, therefore, under which they enter, can never be construed to grant such exemption."(n)
CCCXLIX. The jurisprudence of France upon this subject requires
special notice.(o)
That jurisprudence recognises a distinction between —. On the one
hand, acts relating solely to the internal discipline of the ship, or even
to offences committed by one of the crew against another, but which does
not affect generally the peace and good order of the port.
2. On the other hand, offences and crimes (crinmes oml delits) committed by a stranger against one of the crew, or by one of the crew
against the other, in a manner to disturb the peace and good order of the
port.
Facts belonging to this latter class, as well as civil contracts between
the crew and persons who do not belong to the crew, are clearly cognizable by the territorial tribunals.
The following instances illustrate the practical application of these
principles of jurisprudence.
In 1806, The Newton, an American merchantman, being in the port
of Antwerp, a quarrel arose between two of the crew, who were in a boat
belonging to the vessel, and cognizance of the dispute was claimed by the
local authorities and by the American Consul. At the same time a
quarrel arose between certain of the crew of The Sally, an American
*merchantmian lying in the port of Marseilles.  In this case a *375]
severe wound had been inflicted by an officer of The Sally upon
one of the men for disobedience to orders.  In this case a similar conflict as to jurisdiction took place.  The superior tribunal (le Conseil
d'e'tat) decided in both cases in favour of the jurisdiction of the American Consul.(p)
In 1837, the Swedish vessel Forsattning was anchored in the Loire,
in the Paimbocuf roads, and on board this vessel the crime of poisoning
was committed. The Court at Rennes had some doubt as to the competence of the American authority on these three grounds:-(l.) that the
vessel was a merchantman; (2.) that she was anchored in French waters;
(3.) that there was no reciprocity between France and Sweden on the
subject; and consulted the Government, which sent an answer, drawn up
under the joint authority of the garde des sceaux and the ministre des
affaires e'trange'res, to the effect that the criminal was to be delivered up
to the proper authority on board of his own ship.(q)
These examples support the former of the two propositions of French
jurisprudence stated above. The latter, which sustains the territorial
jurisdiction, is illustrated by a case which happened in 1845.
In the winter of that year the Tribunal Correctionnel at Marseilles
(n) The Schooner Exchange v. M'Fadden and others, 7 Cranch's (American)
Rep. p. 144.
(o) Masse, Le Droit Commerc. t. i. p. 61-65.
Ortolan, Dipl. de la Mer, t. i. pp. 292-310.
(p) Ortolan, ubi suprh, and Append., annexe H, for judgment at length: and
see Appendix to this Work.
(q) Revue de LUgisl. et de Jurisprud. fhvrier 1843, tome xvii. p. 143.
Masse, Le Droit Comm. t. ii. p. 63.




280   PHILLIMORE ON INTERNATIONAL LAW.
declared itself competent to punish the captain of an English merchantman for an attack upon the master of a French vessel in the port.(r) In
harmony with these principles the French Law, though it gives power to
French Consuls to adjudicate on disputes arising on board French mer-:chantmen when lying in foreign ports, and when at anchor in a foreign
[*376] roadstead, gives this power over them to French *men-of-war, if
there be any present, and if not to French consuls; but it is with
an express reservation of the rights of the local authorities.  The power
given to their own officers they consider as belonging to the category of
droits de police, incident to every;State over its merchant vessels, the
power of the local authority as belonging to the distinct category of droits
de jurisdiction. (s)
CCCL. These droits de police et de jurisdiction over merchantmen in
foreign parts have been the subject of various Treaties, and though differing in various respects from  each other, make on the whole an approach to a pretty general adoption of the principles laid down in the
preceding paragraphs.
M. Ortolan(t) considers the eleventh article of the Treaty between
France and the United States of North America (November 14, 1788),
and the twenty-sixth article of the Treaty between Denmark and the
Republic of Genoa (July 30, 1789), as containing maxims of International Law on this subject worthy of general adoption.(u)
M. MIass6(v), no mean authority, thinks with M. Ortolan, that the
distinction between the two kinds of offences is rightly taken and ought
to be generally observed. He admits, however, that it is not generally
in force, but that the simpler distinction between men-of-war and merchantmen obtains;:offences on board the former being left to the jurisdiction of the ship, on board the latter to the local or territorial authority.(x)
CCCLI. Great Britain has made arrangements with certain foreign
powers for the recovery of seamen who desert *from  the ships
[377] of such powers in British ports, and for the recovery of seamen
deserting from  British ships when in the ports of such powers; and the
hands of the British Executive have been strengthened by an Act of Parliament for such purpose; and it is competent to the Queen to declare by:Order in Council that deserters from foreign ships may be apprehended:and given up. Upon the publication of this order, justices of the peace
must aid in the recovery of such deserters, and a penalty is imposed upon
persons who harbour them.(y)
CCCLII. In one event the difference between the mercantile and
military marine does not affect the question of jurisdiction; that is, when
the offence has been committed on board a vessel navigating the open
sea. In this case all authorities combine with the reason of the thing,
(r) Ortolan, ib. p. 297.     (s) Ortolan, t. i. p. 300.
(t) Ib. pp. 301-2.    (u) See Appendix to this Work; et post, CONSULS.
(v) Le Droit Comm. t. ii. pp. 63-4.  (x) Kliiber, s. 53.
Wheaton, El6m. t. i. p. 126.
Casaregis Disc. 136, n. 9.
(y) 15 Victoria, c. 26, passed June 17, 1852.




RIGHT  OF JURISDICTION.                             281
in declaring that the territory of the country to which the vessel belongs
is to be considered as the locality of the offence, and in pronouncing that
the offender must be tried before the tribunals of his country.(z)  It matters not whether the injured person or the offender belong to a country
other than that of the vessel. The rule is applicable to all on board.
The principle of this rule has been carefully preserved in the conventions between France and England, which have made the Slave Trade
illegal, so far as relates to their respective subjects.(a)
The English law provided originally for the trial of such offences by
the general jurisdiction of the High Court of Admiralty; but during and
subsequent to the reign of I*Henry VIII., various statutes have [*378]
been passed, appointing and regulating the tribunals which have
cognizance of this crime, the last of which was passed in the reign of the
late King William IV.(b)
TC HAPTER XX.                             [*379]
RIGHT OF JURISDICTION-PIRATES.
CC(CLII. To  whatever  country  the Pirate  may  have  originally
belonged, he isjusticiable everywhere;(c) his detestable occupation has
made him hostis humnani generis, and he cannot upon any ground claim
immunity from  the tribunal of his captor.'(With professed Pirates"
(Lord Stowell says) there is no state of peace.  They are the enemies of
every country, and at all times; and therefore are universally subject
to the extreme rights of war."(d)  The Pirate has, in fact, no national
character. No captures made by them affect ownership, the rule of law
being that c a' piratis capta dominium non mutant."  Piracy is an assault
upon vessels navigated on the high seas, committed aninto furandi,
whether the robbery or forcible depredation be effected or not, and
(z) Vattel, i. i. c. xix. s. 216.
Fa-lix, s. 506.
Ortolan, t. i. p. 282.
Wheaton, Elem. t. i. p. 134.
Kent, Comm. i.
See too, as affecting merchant vessels, The French Ordonnance, 29th October,
1833. Art. 15, cited by Ortolan, i. 283, n.
(c) Art. 7. of the Convention of 30th November, 1831.
(b) 4 & 5 William IV. c. 36, s. 22, the Central Criminal Court Act.
Russell on Crimes, vol. i. pp. 104. 552-5.
(c) Vide ante.
Grotius, 1. iii. c. iii. 1, 2, 3; 1. iii. c. ix. 16; 1. ii. c. xviii. 1, 2, 3; 1. ii. c. xxi. 5;
1. ii. c. 17. 19-29; 1. ii. c. xiii. 15; 1. ii. c. xvii. 20.
Bynkershoek, Quest. J. P., De Piraticd, &c., 1. i. c. xvii. xv. in fine.
Loccen, De Jure Marit. 1. ii. c. iii.
Ortolan, t. i. c. xii. p. 249. Des Pirates.
Dig. L. 16. 118, xlix. 15. 19. 2., 15. 21. 2.
Kent's Comm. i. 186.
Cicero, De Off. 1. iii. 29, in fine: " Nam Pirata non est in perduellionum numero
definitus, sed communis hostes omnnium, cum hoc nec fides debet, nee jusjurandum
esse commune."
(d) " The Le Louis," 2 Dodson's Adm. Rep. pp. 244. 246.
AUGUST, 1854. —19




282      PH-IILLIM ORE ON INTERNATIONAL LAW.
whether or not it be accompanied by murder or personal injury.  If a
*380] ship belonging to an independent nation, and *not a professed
buccanier, practises such conduct on the high seas, she is liable
to the pains and penalties of Piracy.  The law is very clearly stated by
Sir L. Jenkins in a letter of advice to Mr. Secretary Williamson (1675).
" His Majesty had, when I came from home, a controversy with France,
in a case not much unlike yours. A French merchantman had gone out
from Rochel to the West Indies, and had committed many robberies and
great cruelties upon those of his crew in the voyage.  He, in his return,
put in at Kingsale for refreshment; his company accuse him; he flies,
his ship and goods are confiscated as the goods of Pirates. This sentence
was opposed by the French Ambassador, M. Colbert, and the cause
desired to be remanded to the natural judge (as was pretended,) in
France.  This produced several memorials and several answers, in which
my little service was commanded; and the King and his Council were
pleased to adjudge, he was sufficiently founded in point of jurisdiction,
to confiscate that ship and goods, and to try capitally the person himself,
had he been in hold; the matter of Renvoy being a thing quite disused
among princes; and as every man, by the usage of our European nations,
is justiciable in the place where the crime is committed, so are Pirates,
being reputed out of the protection of all laws and privileges, and to be
tried in what ports soever they are taken."(c)
Dr. Story, in his judgment in the United States v. Smith, says:
cc There is scarcely a writer on the Law of Nations who does not allude
to Piracy as a crime of a settled and determined nature; and, whatever
may be the diversity of definitions in other respects, all writers concur
in holding that robbery or forcible depredations upon the sea, animzo
furandi, is Piracy." (d)
*The same very learned and able judge guards, however, careL[381] fully against the notion, that a mere excess of power by a lawfully
commissioned ship would place her in the category of a Pirate.  As to the
tribunal, the mode of trial, and the punishment, it is of course competent
to each country to make its own regulations.  Bythe laws of most States
Piracy is punishable by death.(e)
CCCLIV. It has been observed in a former Chapter that the municipal laws of a State, or of a number of States, cannot constitute that
offence to be Piracy, which is not so characterized by International
Law; and memorable instances of the scrupulous severity with which
this doctrine is upheld by Great Britain were adduced in the cases of
the Le Louis, and of the Queen v. Da Serva and others.(/)
(c) Life of Jenkins, vol. ii. p. 714.
d) 5 Wheaton's (American) Reports, p. 163: the note (a) to this page contains
a most learned and careful accumulation of all the authorities on the subject of
Piracy.
(e) See generally, 1 Kent Comm. p. 187, for N. American U. S. Law.
1 Russell on Crimes, ch. viii. p. 94. for English Law.
Ortolan, 1. ii. c. xii. for French Law; and Valin, ii. p. 236: " Quant' la peine
due aux pirates et fourbans, elle est cdu dernier supplice suivant topinion commune," &c.
(f) Vide ante.




I G  T OF JUR ISDICTION.                       283
Piracy has indeed become infrequent in its former haunts, and, both
in the Mediterranean and the West Indian Seas, appears to be nearly
extinct; but in the waters of China and the Eastern Archipelago(g) it
is continually carried on; and even if it were not, the law relating to it
would form an important chapter in International Jurisprudence, as will
be seen in the observations which follow upon the different kinds of
privateers.
CCCLV. That law has been laid down with great learning and care
by the Judges of the British Admiralty Courts, which are, it will be
remembered, also Courts of International Law.
In a charge given at a sessions of Admiralty within the Cinque Ports,
Sept. 2, 1668, Sir Leoline Jenkins expressed himself as follows:*" There are some sorts of felonies and offences, which cannot [*382
be committed any where else but upon the sea, within the juris- [38
diction of the Admiralty.  These I shall insist upon a little more particularly, and the chiefest in this kind is Piracy.
c You are therefore to inquire of all Pirates and sea-rovers; they are
in the eye of the law hostes humani generis; enemies not of one nation
or of one sort of people only, but of all mankind.  They are outlawed,
as I may say, by the laws of all nations, that is, out of the protection of
all princes and of all laws whatsoever.  Everybody is commissioned,
and is to be armed against them, as against rebels and traitors, to subdue
and to root them out.
" That which is called robbing upon the highway, the same being done
upon the water is called Piracy.  Now robbery, as'tis distinguished
from thieving or larceny, implies not only the actual taking away of my
goods, while I am, as we say, in peace, but also the putting me in fear,
by taking them  away by force and arms out of my hands, or in my
sight and presence; when this is done upon the sea,, without a lawful
commission of war or reprisals, it is downright Piracy.
c And such was the generosity of our ancient English, such the
abhorrence of our laws against Pirates and sea-rovers, that if any of
the King's subjects robbed or murdered a foreigner upon our seas or
within our ports, though the foreigner happened to be of a nation in
hostility against the King, yet if he had the King's passport, or the Lord
Admiral's, the offender was punished, not as a felon only, but this crime
was made high treason, in that great Prince Henry the Fifth's time;
and not only himself, but all his accomplices, were to. suffer as traitors
against the crown and dignity of the King."(h,)
*And in a subsequent charge given at the Admiralty Sessions
held at the Old Bailey, Sir Leoline Jenkins said: —            [     ],, The next sort of offence pointed at in the statute, are robberies;
and a robbery, when'tis committed upon the sea, is what we call Piracy.
A robbery, when'tis committed upon the land, does imply three things:
-1. That there be a violent assault.  2. That a man's goods be actually
(g) " The Serhassan," 2 W. Robinson's Adm. Reports, pp. 354-358.
(h) Life of Sir L. Jenkins, vol. i. p. lxxxvi.




2584    PI-ILLIMIORE  ON INTERNATIONAL LAW.
taken from  his person, or possession.  3. That he who is despoiled be
put in fear thereby.
"c When this is done upon the sea, when one or more persons enter
on board a ship with force and armes, and those in the ship have their
ship carried away by violence, or their goods taken away out of their
possession, and are put in a fright by the assault, this is Piracy;(i ) and
he that does so is a Pirate, or a robber, within the statute.
"Nor does it differ the case, though the party so assaulted and
despoiled should be a foreigner, not born within the king's allegiance; if
he be de acmicitiic Regis, he is eo nomzine under the king's protection;
and to rob such a one upon the sea is Piracy.
" Nor will it be any defence to a man, who takes away by force another's ship or goods at sea, that he hath a commission of war from some
foreign prince, unless the person he takes from be a lawful enemy to that
prince.'Tis a crime in an Englishman to take a commission from any
foreign prince, that is in open war with another prince or State.'Tis
felony in some cases,'tis always punishable as a great misprision, since
His Majesty hath forbid it by various proclamations. Yet if a man
do take such a commission, or serve under it, then'tis no robbery
to assault, subdue, despoil his lawful enemy, nor yet to seize and
carry away a friend supposed to be an enemy provided he do bring that
firiend, without pillaging or hurting him, or *taking any composition from him, to judgment, in some port of that prince, whose
commission he bears.'Tis not only Piracy, when a man robs without
any commission at all, but'tis Piracy, when a man, having a commission, despoils and robs those which his commission warrants him not to
fight or meddle with; such I mean as are de Ligeanti  vel Amicitid
Domini nostri Regis, and also de LJigeantid vel Amicitil of that prince or
State that hath given him  his commission.
"c You are therefore to inquire, if any persons have committed robbery
upon the sea, entering with force and arms into any ship or vessel belonging to the King's subjects, or to the subjects of any prince or State in
amity with the King, and not in war with any prince that hath given a
commission to such aggressor. Or if, after such entering and boarding
the ship or vessel, they have feloniously carried and sailed away with
the ship itself, or taken away any merchandises, or goods, tackle, apparel, or furniture out of it, thereby putting the master of such ship and
his company in fear.
"You are carefully to present such persons, their names, surnames,
and additions, their places of abode and occupation, the ships and the
goods they have spoil'd and robb'd; the persons they have so assaulted
and despoiled; the kinds, quantities, values of the goods they have taken
away; the names and burdens of the ships or vessels they committed
the Piracy in; and where those vessels, the goods, and the Pirates themselves now are; together with the time, place, manner and circumstances,
as distinctly as you can.
(i) Farinac, tom. vii., Qu. 166. de Furtis n. 7. Vid Novell. 134, cap. ult. Farin.
ib. n. 29., de Pcena, ib. c. 167. part i. n. 32., 3 Jac. c. iv.




RIG I-T  OF JURISDICTI ON.                       285
C4 You are to inquire of all such as have been accessaries to such robbers, in aiding, abetting, comforting, or receiving them.(k)  For there
may be aecessaries in this as well as in other felonies, and they are punishable here; Piracy being now made felony by tile Statute Law, and
when *any offence is felony, either at the Common Law or by
Statute, all accessaries, both before and after, are incidentally ["385]
included."(l)
In 1696 Sir Charles Hedges, Judge of the High Court of Admiralty,
during the course of his charge to the Grand Jury, made the following
observations:" The King of England hath not only an empire and sovereignty over
the British Seas, but also an undoubted jurisdiction and power, in concurrency with other princes and states, for the punishment of all piracies and robberies at sea, in the most remote parts of the world; so that
if any person whatsoever, native or foreigner, Christian or Infidel, Turk
or Pagan, with whose country we have no war, with whom we hold trade
and correspondence, and are in amity, shall be robbed or spoiled in the
Narrow Seas; the Mediterranean, Atlantic, Southern, or any other seas,
or the branches thereof, either on this or the other side of the line, it is
Piracy within the limits of your inquiry, and the cognizance of this
Court.(qn)..... Since foreigners look upon the decrees of our courts of
justice as the sense and judgment of the whole nation, our enemies will
be glad to find an occasion to say, that such miscreants as are out of the
protection of all laws and civil government, are abetted by those who
contend for the sovereignty of the seas. The barbarous nations will
reproach us as being a harbour, receptacle, and a nest of pirates; and
our friends will wonder to hear that the enemies of merchants and of
mankind should find a sanctuary in this ancient place of trade.  Nay,
we ourselves, cannot but confess that all kingdoms and countries
who have suffered by English pirates, may for want of redress in the
ordinary course, have the pretence of justice, and the colour of the laws
of nations to justify the making of reprisals upon our *mer-  386
chants, wheresoever they shall meet them, upon the seas.(n) [ 6]........It should be considered likewise, on the other side, that he
who brings a notorious pirate, or common malefactor, to justice, contributes to the safety and preservation of the lives of many, both bad and
good; of the good, by means of the assurance of protection; and of
the bad too, by the terror of justice.  It was upon this consideration
that the Roman Emperors in their edicts made this piece of service for
the public good as meritorious as any act of piety, or religious worship.
" Our own laws demonstrate how much our legislators, and particularly how highly that great prince King Henry the Fifth, and his par(k) Jac. Gothofred. de famosis Latronibus investigandis, p. 23.
(1) Life of Sir L. Jenkins, vol. i. p. xciv.
(m) "Trial of Joseph Dawson and others," Howell's State Trials (A. D. 1696),
vol. xiii. p. 455.
(a) "Trial of Joseph Dawson and others," Howell's State Trials (A. D. 1696),
vol. xiii. p. 456.




286      P   I I ILLIMORE  ON  INTERNATIONAL  LAW.
liament, thought this nation concerned in providing for the security of
traders, and scouring the seas of rovers and freebooters.   Certainly
there never was an age wherein our ancestors were not extraordinarily
zealous in that affair, looking upon it, as it is, and ever will be, the chief
support of navigation, trade, wealth, strength, reputation, and glory of
this nation."(o)
CCCLVI. In 1718, the Judge of the Vice-Admiralty Court Charles
Town, in South Carolina, laid down the law as to Piracy as follows:"e Now( p) as this is an offence that is destructive of all trade and conmerce between nation and nation, so it is the interest of all sovereign
princes to punish and suppress the same.
",And the King of England(q) hath not only an empire and sovereignty over the British sea, but also an undoubted jurisdiction and
power, in concurrency with other princes *and States, for the
[ 387] punishment of all piracies and robberies at sea, in the most
remote parts of the world.
("Now as to the nature of the offence: Piracy is a robbery committed
upon the sea, and a pirate is a sea-thief.
"~Indeed, the word  pirata,' as it is derived from  r'elppv,'transire, a
transeundo mare,' was anciently taken in a good and honourable sense,(r)
and signified a maritime knight, and an admiral or commander at sea;
as appears by the several testimonies and records cited to that purpose,
by that learned antiquary Sir Henry Spelman in his Glossarium.  And
out of him the same sense of the word is remarked by Dr. Cowel, in his
Interpreter;(s) and by Blount in his Law Dictionary.(t) But afterwards
the word was taken in an ill sense, and signified a sea rover or robber;
either from the Greek word -Epsrc, deception dolus, deceit;(it) or from.
the word:retpYv, transire, of their wandering up and down, and resting
in no place, but coasting hither and thither to do mischief: and from
this sense, o' 0Gd X cZ  Xo —o~pyot7  sea-malefactors, were called?r614yrac, pirates."
This learned Judge also cited various authorities from the Civil Law,
and from jurists, from the Statute and Common *Law, and com[ 388] mentators thereon, the most important of which will be found in
(o) Ib.
(p) " Trials of Major Bonnet and others for Piracy (A. D. 1718)," Howell's State
Trials, vol. xv. pp. 1234-37.
(q) See " Sir Charles Hedges's Charge at the Trial of Dawson, &c.," State Trials,
vol. xiii. p. 455.
(r) " Pirata pro milite maritime, dr TroS retpav, i. e. transire vel pervagari. Asser.
Menevens. Epist. in vit. _Elfredi. Rex 2Elfredus jussit cymbas et galeas, i. e. longas naves, fabricari per regnum, ut navali prTlio hostibus adventantibus obviaret.
Impositisque piratis in illis, vias maris custodiendas commisit. Hoc sensu archipiratem dici censeo pro nautarum prefecto, vel quem hodie admirallum nuncupamus. In quadam enim ChartS Regis Edgari Ccenobio Glastoniensi confectd, An.
Dom. 971, testium unus, Martusin archipiratem  se nominat. Annal. Gisburnenses,
in Will. Rufo, cap. 1. Robertus vero comes (Normaniae) attemtavit venire in Angliam cum magno exercitu; sed h piratis regis, qui curam maris b rege (Willielmo)
susceperant, repulsus est." —Spelman, Glossar. in voce Pirata, p. 460.
Vid. etiam Selden, Mare Claus. 1. ii. c. x. p. 257.
Engl. et Godolph. Admir. Jurisd. c. iii. p. 25.
(s) In the word " Pirata."                  (t) In the word " Pirate."
(u) See Ridley's View of the Civil Law, p. ii. c. i. s. 3. p. 127.




RIGHT  OF JURISDICTION.                             287
the note;(x) and he observed that Piracy remained a felony by the Civil
Law;(y) and therefore, though the Statute of 28 Hen. VIII. gave a trial
by the course of the Common Law, yet it altered not the nature of the
offence; and the indictment must mention the same to be done "super
altum mare," upon the high sea, and must have both the words c" felonice"
and c"piratice,"(z) and therefore that even a pardon of all felonies did
not extend to this offence, but ought to be specially named.
In 1802, Lord Stowell addressed the Grand Jury as follows:*cayou are called upon to discharge the office of grand jurors  *389
for the jurisdiction of the Admiralty of England-an office of [389
great extent in point of local authority, and of great importance in its
operation. It extends over all criminal acts done by the King's subjects
upon the sea, in every part of the globe. You have to inquire of such
acts committed, wherever the ocean rolls; and in the beneficial intercourse which now connects all the nations of the world, and of which
your own country enjoys so fair a portion, it is not needful that I should
enlarge upon the necessity of preventing, by a vigilant civil discipline,
all disorders whieh, by obstructin.g its peace and freedom, might endanger its existence."(a)
CCCLVII. The English High Court of Admiralty is held before a
judge who is the lieutenant of the Lord High Admiral, and it is a court,
as appears from  the foregoing extracts from  the charges of judges, of
criminal as well as civil jurisdiction.  The authority of this Court is
supported by various statutes, but the offences cognizable by it have been
(x) 3 Inst. c. xlix. p. 113. And on Littleton, f. 391. a.
And see Bridal's Jus. Criminis, pp. 70, 71.
Coke, 3 Inst. c. xlix. p. 113.
Molloy, de Jure Marit. 1. i. c. iv. s. 1. p. 51.
See Laws of Oleron, c. 47. in Godolph. in p. 211.
Molloy, ib. s. xii. p. 57.
" In odium Tiratarum, printer alias pcenas, statutum est ut eorum navigia cuivis
deripere licea,? —Zouch, De Jure Nautico, pt. i. s. x. p. 400.
"A piratis ant latronibus capti liberi permanent." —Dig. xlix. t. xv. xix. s. ii.
" Qui a latronibus captus est, servus latronum  non est; nec postliminium  illi
necessarium est."-Ib. 24.
" Et quT pirate aut latrones nobis eripuerunt non opus habent postliminio, quia
jus gentium illis non concessit ut jus Domini mutare possint. Itaque res ab illis
capten ubicunque reperiunter vindicari possunt." —Grot. de Jur. Bel. ac Pac. 1. iii.
C. ix. S. xvi. p. 561.
See 27 Edw. III. c. xiii. p. 128.
1 Croke, p. 685, Anonym.
Hobart, pp. 78, 79., Sir R. Bingley's Case, and Edmian and Smith's Case, 29
Car. II.
3 Keble, p. 744, pl. 11.
Hale, P1. Cr. p. 77.
Holloy p. 56.
Hawkins, P1. Cr. 1. i. c. xxxvii. s. ii. p. 98.
28 Hen. VIII. c. xv. s. 3, p. 487.
(y) Coke, p. 112.
Hale, p. 87.
Molloy, b. i. c. iv. s. xxv. xxvi. p. 62.
(z) Leach's Hawk. P1. Cr. b. i. c. 37, s. 15.
(a) "Trial of William Codling and others," Howell's State Trials (1802) vol.
xxviii. p. 178.




288   PHILLIMiORE ON INTERNATIONAL LAW.
by recent statutes(Z) made also triable by a Central Criminal Court in
London, of which the Judge of the Admiralty is made, with other judges,
a member, and also power has been given(c) to any judge of assize, oyer
and terminer, or gaol delivery, without the issuing of a special commission required by an earlier statute,(d) to inquire of and determine all
of'fences committed at sea or within the Admiralty jurisdiction.  The
jurisdiction of the High Court of Admiralty however still remains, fortified indeed in some respects by a very recent statute,(e) and it has been
*recently exercised in a most important case of piracy, called
[*390] " The Magellan Pirates."
Towards the latter end of 1851, there was an insurrection in some of
the dominions belonging to the state of Chili.  General Cruz was at the
head of this insurrection, failed, and retired into the country.  There
was a Chilian convict settlement, at a place called Punta Arenas, the
garrison of which consisted of 160 soldiers and 450 male convicts. An
officer in that garrison raised an insurrection, and murdered the governor.
In conjunction with those who conspired with him, he seized a British
vessel called The Eliza Cornish, and also an American vessel, called The
Florida. They murdered the master, and Mr. Deane, part owner of The
Eliza Cornish, and also the owner of the Florida.  These facts coming
to the knowledge of Admiral Moresby, the commander-in-chief of that
station, he despatched the Virago, a British steamer, under the command
of Captain Houlston Stewart, to the Straits of Magellan.  On January
28, 1852, a vessel which proved to be The Eliza Cornish, was descried
working out of the Straits; chase was made, and a shot fired across her
bow, which brought her to.  She was boarded, and seized by orders of
Captain Stewart. She was at that time in the possession of a large number of the persons who had raised the insurrection at Punta Arenas; there
were found on board her 128 men, 24 women, and 18 children.  The
guns were loaded, and the men were armed; they were under the command of a man named Bruno Brionis, who held a commission from Cambiaso, the leader of the insurrection. These men were aftewards delivered
up to the Chilian authorities at Valparaiso.  Captain Stewart proceeded
in search of Calmbiaso, and the other insurgents, and he secured 56 at
Wood's Bay. On February 15th, Captain Stewart discovered The
Florida in possession of a large number of insurgents; it was said that
these insurgents had, whilst at sea, risen against Cambiaso and five
others, and, with the aid of the American master and crew, brought the
vessel to the port where Captain Stewart had found her.  On board The
391*Florida was found treasure which had been plundered from
The Eliza Cornish.  All the persons on board The Florida, not
American, were given up to the Chilian authorities.  Upon this state of
facts, Captain Stewart and the officers and crew of HI. M. S. Virago, applied to the Court of Admiralty for a certificate, according to a provision
of a recent statute, in order that they might obtain the payment of bounty
(b) 4 & 5 William IV. c. 36.
7 & 8 Victoria, c. 2.
(c) 7 & 8 Victoria, c. 2.      (d) 28 Henry VIII. c. 15.
(e) 13 & 14 Victoria, c. 26, (15 June, 1850).




RIGtHT OF JURISDICTION.                           289
for capturing these pirates in the Straits of Magellan.  The present
learned Judge(/) of the High Court of Admiralty said: —'"As to the general character of these transactions, I really entertain
no doubt that they were piratical acts, in no degree connected either
with insurrection or rebellion. In one sense they were acts of wanton
cruelty in the murder of foreign subjects, and in the indiscriminate plunder of their property.  I am  of opinion that the persons who did these
acts were guilty of piracy, and were to be deemed pirates unless some of
the other objections which have been urged ought to prevail. It has
been said that these acts were not committed on the high seas, and therefore this murder and robbery not properly or legally piratical.  But in
this case the ships were carried away and navigated by the very same
persons who originally seized them. I consider the possession at sea to
have been a piratical possession, and the carrying away the ships on the
high seas to have been piratical acts."(g)
*With respect to the general character of piratical acts the [*392]
learned Judge observed:cc I apprehend that in the administration of our criminal law, generally
speaking, all persons are held to be pirates who are found guilty of
piratical acts, and piratical acts are robbery and murder upon the high
seas.  I do not believe that, even where human life was at stake, our
courts of common law ever thought it necessary to extend their inquiry
further.  If it was clearly proved against the accused that they had
committed robbery and murder upon the high seas, they were adjudged
to be pirates, and suffered accordingly. It was never deemed necessary
to inquire whether the parties so convicted had intended to rob or to
murder on the high seas indiscriminately. Though the municipal law
of different countries may and does differ in many respects as to its definition of piracy, yet I apprehend that all nations agree in this, that acts
such as robbery and murder on the high seas are piratical acts, and contrary to the law of nations. It does not follow that, because rebels and
insurgents may commit against the ruling powers of their own country
acts of violence, they may not commit piratical acts against the subjects
(f) Dr. Lushington.
(g) A question arose as to the construction of the 13 & 14 Vict. c. 26, (which
had repealed 6th Geo. IV. c. 49.)
16 Jurist, p. 1145. The Magellan Pirates; contains report of this preliminary
objection.  The second section of the Act enacts " That whenever any of Her
Majesty's ships or vessels of war, or hired armed vessels, or any of the ships or
vessels of war of the East India Company, or their boats, or any of the officers
and crews thereof, shall, after the said first day of June, attack or be engaged
with any persons alleged to be pirates afloat or ashore, it shall be lawful for the
High Court of Admiralty of England, and for all courts of Vice-Admiralty in any
dominions of Her Majesty beyond the seas, including those courts of Vice-Admiralty
within the territories under the government of the East India Company, to take
cognizance of and to determine whether the persons or any of them so attacked
or engaged were pirates, and to adjudge what was the total number of pirates so
engaged or attacked, specifying the number of pirates captured, and what were
the vessels and boats engaged."  At the hearing of the case the learned judge
said, " It appears to me that in affixing a construction to this statute, I am entitled to hold that the intention of the legislature was, that acts of piracy might
constitute pirates."




290   PIILLIMORE ON INTERNATIONAL LAW.
of other states, especially if such acts are in no degree connected with
the insurrection or rebellion.  Even an independent State may be guilty
of piratical acts. What are many of the African tribes at this moment?
Is it not notorious that tribes now inhabiting the African coast of the
Mediterranean will send out their boats and catch any ships becalmed
upon their coasts?  Are they not pirates because, *perhaps,
*3931] their sole livelihood may not depend upon piratical acts? I am
aware that it has been said that a State cannot be piratical, but I am
not disposed to assent to such dictum as a universal proposition."(h)
CCCLVIII. We now approach the delicate subject of privateers or
commissioned private ships.  The right of making war being inherent
in the government of every independent state, it follows as a necessary
consequence that it is competent to such government to commission such
national vessels as it may think proper, to assist in carrying on the war,
to issue Letters of Marque(i) according to the legal phrase.
So long as these vessels sail under a national commission, and within
the terms of that commission, it is quite clear that they are not and
never have been considered as pirates by International Law.(k)  And
even if they exceed the limits of their commission and commit unwarrantable acts of violence, if no 2iratical intention can be proved against
them, they are responsible to and punishable by the State alone from
[*394] which their commission has issued.(/)  A  vessel which *takes
commissions from  both belligerents is guilty of piracy, for the
one authority conflicts with the other.  But a nicer question has arisen
with respect to a vessel which sails under two or more commissions
granted by allied powers against a comnmomn enemy.  The better opinion
seems to be that such practice is irregular and inexpedient, but does not
carry with it the substance or the name of Piracy.
"c The law" (Sir Leoline Jenkins says in the letter already cited) " distinguishes between a pirate who is a highwayman and sets up for robbing, either having no commission at all, or else hath two or three, and
a lawful nman-of-war that exceeds his commission."
The question remains, what is the character affixed by the law to the
(h) The Shipping and Mercantile Gazette of Wednesday, 27th July, 1853.
See also report of this case, which was decided in 1853, in the Common Law
and Equity Reports, vol. i. pt. viii. p. 81, at the end of the volume.
(i) Navis preedatoria (Bynk. Q. J. P. 1. i. c. 18.):Privateer. Ship commissioned; furnished with letters of marque (muni de commission; lettres de marque.)
Croiseur, Armateur, (and sometimes,) Corsaire.
Caper, Kreuzer.
Armatore. Nave armata per corseggiare corsacle; nave armata in corso.
(k) Vattel, 1. iii. c. xv. s. 229.
Kliiber, s. 260.
(1) Wheaton, E16m. i. 141.
Bynkershoek, Q. J. P. i. c. xvii.: A" Qui autum nullius principis auctoritate sive
mari sive terra rapiunt piratorum proedonumque vocabulo intelliguntur.  Unde
ut pirates puniuntur, qui ad hostem  deprxdandum enavigant sine mandato praefecti maris et non praestitis quoe porro priestari desiderant.... Sed Pirata quis
sit, nec ne, inde pendet an mandatum priedandi habuerit, si habuerit et arguatur
id excessisse non continuo eum habuerim pro Pirata."




RIGHT  O F J U R I SDICTION.                          291
vessel of a neutral State armed as a privateer, with a commission from
the belligerent?  That such a vessel is guilty of a gross infraction  of
International Law,(l) that she is not entitled to the liberal treatment of
a vanquished enemy, is wholly unquestionable; but it would be difficult
to maintain that the character of piracy has been stamped upon such a
vessel by the decision of International Law.  M. Ortolan  admits that
this position  cannot be, though  he desires that it should be, maintained.(mn)  At the same *time States have covenanted that they [395
will prevent their subjects, under heavy penalties, from  accepting  35]
such commissions, as is seen in the Treaty of 1786 (26th  September)
between Great Britain and France;(n) and have even covenanted that it
shall be considered by their municipal law  as Piracy.  Among the articles of the French Ordonnance de la Marine, collected by Valin, is the
following:"Dffendons a tous nos sujets de prendre commissions d'aucuns Rois,
Princes ou Etats 6trangers, pour armer des vaisseaux en guerre, et courir
la mer sous leur banniere, si cc n'est par notre permission, a peine d'etre
traites comme pirates."(o)  Treaties between France and Holland, in
1662, and between France and the United States of North America, in
1775, declare such privateering carried on by the subjects of either nation
(1) See the law laid down to this effect in the following American cases, viz: —
"Trial of Gideon Henfield, for illegally enlisting in a French Privateer." In
the Circuit Court of the United States for the Pennsylvanian District. Philadelphia, 1793, p. 49.
"Trial of John Etienne Guinet, et al. for fitting out and arming a French armed
vessel." In the Circuit Court of the United States for the Pennsylvanian District.
Philadelphia, 1795, p. 93.
" Trial of Francis Villato, for entering on board a French Privateer."  In the
Circuit Court of the United States for the Pennsylvanian District. Philadelphia,
1797, p. 185.
" Trial of Isaac Williams, for accepting a Commission in a French armed vessel,
and serving in same against Great Britain." In the Circuit Court of-the United
States for the Connecticut District. Hartford, 1799, p. 652. —State Trials of the
United States (by Wharton), published at Philadelphia, 1849.
(m) Ortolan, pp. 260-1: Mais qu'il y ait la an veritable crime de piraterie de
droit des gens, c'est qui n'est pas encore universellement reconnu."
(n) Art. III.: " On est aussi convenu, et il ete arr6t6, que les sujets et habitans
des royaumes, provinces et etats de leurs Majest6s, n'exerceront a l'avenir aucuns
actes d'hostilit6 ni violences les uns contre les autres, tant sur mer que sur terre,
fleuves, rivieres, ports et rades, sous quelque nom et pretexte que ce soit; ensorte
que les sujets, de part et d'autre, ne pourront prendre aucune patente, commission,
ou instruction pour armemens particuliers, et faire la course en mer, ni lettres
vulgairement appell6es de repr6sailles, de quelques princes ou etats, ennemis de
l'un oul de l'autre, ni troubler, molester, empecher ou endommager, en quelque
maniere que ce soit, en vertu ou sous pretexte de telles patentes, commissions ou
lettres de represailles, les sujets et habitans susdits du roi de la Grande-Bretagne,
ou du Roi Tres-Chretien, ni faire ces sortes d'armemens, ou s'en servir pour aller
en mer. Et seront a cette fin toutes et quantes fois, qu'il sera requis de part et
d'autre, dans toutes les terres, pays, et domaines quels qu'ils soient, tant de part
que d'autre, renouvellees et publi6es, des defenses etroites et expresses d'user, en
aucune maniere, de telles commissions ou lettres de represailles, sous les plus
grandes peines qui puissent etre ordonnees contra les infracteurs, outre la restitution et la satisfaction entiere, dont ils seront tenus envers ceux auxquels ils
auron caus6 quelque dommage."-Martens, Rec. de Tr. vol. iv. pp. 156-7.
(o) L. iii. t. ix. art. iii. t. ii. p. 235.




29 2     PHILLIMORE  ON  INTERNATIONAL  LAW.
*396] to be Piracy.(p)  A *similar Treaty was entered into between
the North American United States and Prussia(g) in 1785.  A
Treaty between Denmark and the Republic of Genoa, concluded on the
30th July, 1789, contained a similar provision.(r) And all the Treaties
contracted by France with the American Republics contain a provision,
of which the 16th article of the Treaty with Venezuela, (25th March,
1843,) may serve as a sample:397  16. S'il arrive que l'une des deux parties contractantes soit
en guerre avec quelque autre pays tiers, l'autre partie no pourra,
dans aucun cas, autoriser ses nationaux a prendre ni accepter des commissions ou lettres de marque, pour agir hostilement contre la premiere,
ou pour inquieter le commerce et les propri6t6s de ses sujects ou citoyens." (s)
On the 3rd of July, 1819, the British Legislature provided, among
other things, by a statute commonly called  t The Foreign Enlistment
Act,"(t) that if any person within any part of the United Kingdom, or
in any part of His Majesty's dominions beyond the seas, shall, without
the leave and licence of His Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm, or attempt or ecndea(p) "Aucun sujet du Roi Tres-Chretien ne prendra de commission de lettres de
marque pour armer quelque vaisseau ou vaisseaux, t I'effet d'agir comme corsaire
contre los dits Etats-Unis ou quelques-uns d'entr'eux, ou contre les sujets, peuples
ou habitans d'iceux, ou contre leur propriet6, ou celle des habitans d'aucun d'entr'eux, de quelque prince que ce soit, avec lesquels les dits Etats-Unis seront en
guerre. De m8me, aucun citoyen, sujet ou habitant des susdits Etats-Unis et de
quelqu'un d'entr'eux, ne demandera ni n'acceptera ancun commission ou lettre de
marque pour armer quelque vaisseau ou vaisseaux, pour courre-sus aux sujets de
S. M. T. C., ou quelqu'un d'entr'eux, ou leur proprie6t, de quelque prince on etats'que ce soit, avec qui sa dite Majeste se trouvera en guerre; et si quelqu'nn de
I'une ou de l'autre nation prenoit de pareilles commissions ou lettres de marque,
ii sera puni comme pirate."-Martens, Rec. de Tr. (1778,) vol. ii. p. 597. (Art. xxi.)
(g) Art. XX. " Aucun citoyen ou sujet de l'une des deux parties contractantes
n'acceptera d'une puissance avec la quelle l'autre pourrait etre en guerre, ni commission ni lettre de marque pour armer en course contre cette derni6re, sous peine
d'etre puni comme pirate. Et ni l'un ni l'autre des deux etats ne louera, prStera
ou donnera une partie de ses forces navales ou militaires a l'ennemi de l'autre
pour l'aider a agir offensivement ou defensivement contre l'etat qui est en
guerre."-(10 Sept., 1785.)  Martens, Rec. de Tr. iv. p. 45.
(r) " Les sujets de part et d'autre ne pourront prendre ni recevoir patentes, instructions, ni commissions pour armemens particuliers, et pour faire la course en
mer, ni letters patentes appellees vulgairement lettres de represailles d'aucun
prince, ou 6tat ennemi de l'une ou de l'autre partie contractante. Ils ne devront
jamais en quelque maniere que ce puisse 6tre, faire valoir des semblables patentes,
commissions, ou lettres de represailles d'une puissance tierce, pour troubler,
molester, empecher, ou endomager les sujests respectifs, ni faire de tels armemens
et courser, sous peine d'etre regardes et traites comme pirates.
"A  cette fin les hautes parties contractantes promettent reciproquement de
faire publier, le cas avenant, des defenses I leurs sujets, sous les plus rigoureuses
peines, d'exercer de pareilles pirateries, et si an mepris de ces mremes defenses
quelqu'un n'en commit pas moins de semblables contraventions, il sera puni des
peines prescrites suivant l'ordonnance dmanee, et il indemnisera et dedommagera
entierement celui on ceux, sur lesquels il aurait fait des prises."-Martens, Rec.
de Tr. (1789,) vol. iv. pp. 447-8. (Art xii.)
(s) Martens, Rec. de Tr. (1843), vol. xxxiv. p. 170.
See Manning's Law of Nations, for other Treaties on this subject, p. 111.
(t) This statute will be again considered in that part of this work which will
treat of thejtus belli, and of the Rights and Duties of Neutrals.




RIGHT OF JU RTSDI T ION.                       293
your to equip, furnish, fit out, or arm, or procure to be equipped, furnished,
fitted out, or armed, or shall knowingly aid, assist, or be concerned in
the equipping, furnishing, fitting out, or arming of any ship or vessel,
with intent or in order that such ship or vessel shall be employed in the
service of any foreign prince, state, or potentate, or of any foreign colony,
province, or part of any province or people, or of any person or persons
exercising or assuming to exercise any powers of government in or over
any foreign state, colony, province, or part of any province or people, as
a transport or store ship, or with intent to cruise or commit hostilities
against any prince, state, or potentate, or against the subjects or citizens
of any prince, state, or potentate, or against the persons exercising or
assunming to exercise the powers of government in any colony, province,
or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with whom
His Majesty *shall not then be at war,(Z) such person shall be   398]
punishable by fine and imprisonment, and such ship or vessel [ 98]
forfeited.
In 1818, the year before the passing of this Act, the United States
revised and re-enacted a law passed in 1794, of which the provisions are
pretty much the same as those of the English statute.  The North
American United States may perhaps claim  to be the first country
which has systematically endeavoured to put an end to the practice of
privateering. (x)
CCCLIX. Soon after the abdication of James II. an International question of very great importance arose, namely, what character should be
ascribed to Privateers commissioned by the monarch, who had abdicated,
to make war against the adherents of William III., or rather against the
English while under his rule? The question in fact involved a discussion of the general principle, whether a deposed sovereign, claiming to be
sovereign dcejure, might lawfully commission privateers against the subjects and adherents of the sovereign de facto on the throne; or whether
such privateers were not to be considered as Pirates, inasmuch as they
were sailing anirnofurandi et deprwdandi, without any national character.  The question, it should be observed, did not arise in its full breadth
and importance until James II. had been expelled from Ireland as well
as England, until, in fact, he was a sovereign, claiming to be such de
jutce, but confessedly without territory.  It appears that James, after he
was in this condition, continued to issue letters of marque to his followers.
The Privy Council of William III. desired to hear civilians upon the point
of the piratical character of such privateers. The arguments on both
sides are contained in a curious and rather rare pamphlet, published by *one(y) of the counsel (Dr. Tindal) for King William, in [*399 ]
the vears 1693-4.(z) The principal arguments for the piratical character
of the privateers appear to have been(u) 59 Geo. III. c. 69. sec. vii.
(x) 1 Kent Comment. p. 122.
Vide Morning Post and Times of March 92 1854, and General Watson Webb's
letter in the latter journal.       (y) The other was Dr. Littleton.
(z) An edition was printed in 1734, at London,' for the proprietors," after his




294    P H IL LI  ORE ON INTERNATIONAL LAW.
1. That International Law is chiefly built upon the general good of all
the societies which are members of the universal community.
2. That long custom, in things indifferent, is not binding upon nations
after they have publicly declared that they intend no longer to be bound
by them,-instanced in the case of resident ambassadors, whom a nation
might without violation of Law, refuse to receive.
3. That nothing can more diminish from the sacredness of the Law of
Nations than to allow it no other foundation than the practice of the
generality of sovereigns, who often sacrifice the happiness of their own
nation to the gratification of their passions.
4. That the Laws of Nations relate to their mutual commerce and correspondence, which cannot be maintained but by having recourse to those
who have the power of making Peace and War, and all Contracts for the
nations which they represent, whose acts are the acts of the whole body,
and bind the members as much as if each particular person had assented.
That, o0n account of this power, the governors of each society are allowed
certain prerogatives by other nations over whom they have no authority
and who are no otherwise concerned with them, but as they have the
power of making contracts for the nation which they govern; that therefore de facto Governors are recognized, as Cromwell had recently been,
by other States.
5. That the leagues which princes make with one another do not oblige
them to one another longer than they are in'possession of their
Government, because they are made on account of the power
which each nation has to afford mutual assistance and benefit to another,
and this reason still continues, though the person who was entrusted with
authority to make them be different, the former person being then no
further concerned therein than according to the Civil Law a proctor would
be with a cause after the revocation of his proxy.
6. That though the sovereign of a country in which a deposed prince
took refuge, might accord to him what national privileges he pleased,
yet that he could not accord to him international privileges, which belong
to those who have sumnumn imnperiunm, and not to a titular prince who
in the eye of International Law is regarded as a private person.  That
such titular prince was in fact a subject-subditus teml2orarius-of the
sovereign.  What right could he claim by the Law of Nations, when no
nations were in any way concerned with his actions?  Because, as to
foreign natious, they had only recognised him as having power to make
national contracts, which power and the consequent privileges he had
ceased to have.  As to his own nation, that had entrusted its affairs to
other hands, and was no more concerned with him than a foreign State.
7. That a necessary consequence of his being reduced to the status of
a private person, and of not having any of the privileges which belong
to those who possess surnmum im2perium, was an incapacity of granting commissions to private men of war to disturb the trade of any
nation.
death, to which I referred.-" An Essay concerning the Laws of Nations and the
Rights of Sovereigns, by Matthew Tyndal, LL. D."




RIGHT OF JURISDICTION.                         295
8. That therefore they who acted under such commission may be dealt
with as if they had acted under their own authority or the authority of
any private person, and therefore might be treated as pirates.
9. That if such a titular prince might grant commissions to seize the
ships and goods of all or most trading nations, he might derive a considerable revenue as a chief of such freebooters, and that it would be
madness in nations not to use the utmost rigour of the law against such
vessels.
*10. That if he could grant a commission to take the ships of
a single nation, it would in effect be a general licence to plunder, 401
because those who were so commissioned would be their own judges of
whatever they took, whether it were lawful prize or not, because, in
another prince's territories whither the pretended prize must be brought,
the titular and ousted prince could erect no court of judicature to judge
according to Maritime and International Law concerning the property so
taken.  He could neither enforce the attendance of witnesses, nor the
restitution of ships unjustly taken, nor provide any of the essential
requisitions of justice.  His own residence in the country is precarious,
and at any moment he might be banished from it.
11. The sovereign into whose ports the pretended prizes would be
taken, would have no legal right to adjudicate upon them, and assuming
that he had the right-what if he refused to exercise it?
12. That the reason of the thing which pronounced that Robbers and
Pirates, when they formed themselves into a civil society, became just
enemies, pronounced also that a king without territory, without power of protecting the innocent or punishing the guilty, or in any way of administering
justice, dwindled into a Pirate if he issued commissions to seize the
goods and ships of nations; and that they who took commissions from
him  must be held by legal inference to have associated sceleris causa,
and could not be considered as members of a civil society.
13. Lastly, that besides all these reasons the persons being English~
men were morally incapable to take, from any king whatever, a commission to attack, in a hostile manner, the goods and ships of their fellowsubjects.  The argument on the other side is thus stated by the
author:",The occasion of sending for the civilians, after some of them that
were consulted had given their opinions in writing, was, as the Lords
told Sir Thomas Pinford and Dr. Oldys (who had declared that they
were not pyrates, without offering to show the least reason why they
were of that *mind) to hear what reason they had to offer for [*402]
their opinion.
"'Then Sir Thomas -Pinfold said, it was impossible they should be
pyrates, for a pyrate was hostis humanigeneris, but they were not enemies
to all mankind; therefore they could not be pyrates.  Upon which all
smiled, and one of the Lords asked him, Whether there ever was any
such thing as a pyrate, if none could be a _pyrate but he that was
actually in war with all mankindc?  To which he did not reply, but
only repeated what he had said before.  Iostis humani generis is neither
a definition, nor so much as a description of a pyrate, but a rhetorical




296     PIHILLIMORE ON INTERNATIONAL LAW.
invective to show the odiousness of that crime.  As a man, who, tho'
he receives protection from a government, and has sworn to be true to
it, yet acts against it as much as he dares, may be said to be an enemy
to all governments, because he destroyeth, as far as in him lieth, all
government and all order, by breaking all those ties and bonds that unite
people in a civil society under any government; so a man that breaks
the common rules of honesty and justice, which are essential to the wellbeing of mankind, by robbing but one nation, may justly be termed
hostis Ahmmani generis; and that nation has the same right to punish him,
as if he had actually robbed all nations.
"a Dr. Oldys said, that the late king, being once a king, had, by the
Laws of Nations, a right to grant commissions; and that, tho' he had
lost his kingdoms, he still retained a right to the privileges that belong
to Sovereign Princes. It was asked him by one of the Lords, whether
he could produce an author of any credit, that did affirm, that he who
had no kingdom, nor right to any, could grant commissions; or had a
right to any of those privileges, that belong to Sovereign Princes?
And that no king would suffer those privileges to be paid to Christina,
when she ceased to be Queen of Sweedland; and that it was the judgment of all the lawyers that ever mentioned that point, that she had no
right to them; and he did hope, that those *who had sworn to
their present majesties, did not believe the late king had still a
right: and that that point was already determined, and would not be
suffered to be debated there.  To which he answered, that King James
was allowed very lately the rights of a King, and that those who acted
by his commission in Ireland were treated as enemies; and people that
followed his fortune, might still suppose he had a right, which was
enought o excuse them from being guilty of pyracy.
c"One of the Lords then demanded of him, If any of their majesties
subjects, by virtue of a commission from the late king, should by force
seize the goods of their fellow-subjects by land, whether that would
excuse them  from being guilty at least of robbery?  If it would not
fiom robbery, why should it more excuse them from pyracy? To
which he made no reply.  Then the Lords asked Sir Thomas Pinfold
and Dr. Oldys, Whether it were not treason in their majesties subjects,
to accept a commission from  the late king to act in a hostile manner
against their own nation? Which they both owned it was (and Sir
Thomas Pinfold has since, as I am informed, given it under his hand,
that they are traytors.)  The Lords farther asked them, If the seizing
the ships and goods of their majesties subjects were treason, why they
would not allow it to be pyracy? Because pyracy was nothing else but
seizing of ships and goods by no commission; or what was all one, by a
void or null one, and said, that there could be no commission to commit
treason, but what must be so: to which they had nothing to reply, only
IDr. Oldys pretended to quote a precedent, which he said came up to the
present case, about Antonio king of Portugal, who, as he said, after he
had lost his kingdom, gave commissions to privateers to seize upon all
Spanish vessels, whom, as the Spaniards met with, they hanged as pyrates;
(so far his precedent is against him;) but an author (without naming




RIGHT  OF JURISDICTION.                       29 7
him) was of opinion, as he said, That if Antonio had ever been a rightful
king, that then the Spaniards ought not to have treated those who acted
*by his commission, as pyrates.  This was all that was said by [0]
the Doctor in behalf of the late king's privateers; upon which I
must beg leave to make a few reflections.
"i As to those privileges which were allowed the late King in Ireland,
they were not allowed him upon the account of any right, nor was it an
owning that he had any right to that kingdom, but barely as he was in
possession; for then he had Remnublicamn Curiamn, &c., and consequently
a right to be treated as an enemy; and not only he, but whoever had
been in possession would have a right to have been used after the same
manner; and is no more than what is practised in all civil wars, where
there are just forces on either side. These privileges being allowed him
when he was a public person, and in possession of a kingdom, could be
no just reason to induce any to imagine, that they would be permitted
him when he was reduced to a private condition; much less is it such a
presumption as is sufficient to excuse them, who acted by his commission,
from suffering as pyrates. The very accepting a commission from him,
after he was reduced to a private condition, to act against their own
nation, was a demonstration that the government was no longer in his,
but other hands, who could not reasonably be presumed would allow that
he had still any right, or they that acted by his commission should be
dealt with, as if he still had a right; but that they should be used, as
if they acted by no commission, or what is all one, a null or invalid one.
Their pretending to believe he has still a right, is no more an-excuse in
the case of pyracy, than of treason, which every traytor may pretend to.'"As to the story of Antonio, the Doctor is (to suppose no worse)
abominably mistaken in the very foundation; for they that suffered by
the Spaniards as pyrates, were French, who had not their commissions
from Antonio, but from their own king, as Albericus Gentilis, who
mentions this story, Lib. I. cap. 4, says, At ipsa listoria vincat eos non
fisse Piratas, per literas guas Regis sui *ostendebant, cui Rei e 405]
serviebant, non Antonio, etsi maxirne pro Antonio, quod illos non [40
tangebat. And Conestaggius, who is the historian he refers to, and who
has given an excellent account of that war, says it was the royal navy of
France (which is very improbable did act by any authority but that of
the French king's) set out, as he words it, Regiis sub Auspiciis, with
which the Spanish fleet engaged, and had the good fortune, after a long
and bloody fight, to rout it, and took about five hundred prisoners, of
which almost the fifth part were persons of quality, whom the Spanish
admiral was resolved to sacrifice as pyrates, because the French king,
without declaring war, had sent them to the assistance of Antonio:
against which proceedings the officers of the Spanish fleet murmured,
and represented to their admiral, that they were not pyrates, because
they had the French king's commission; but what they chiefly insisted
on, was the ill consequence it would be to themselves, who, if they fell
into the hands of the French, must expect the same usage. As to the
French king's assisting Antonio without declaring war, they supposed,
that before the sea fight, the two Crowns might be said to be in a state
AuGvsT, 1855. —20




29 8    P  I LLIMO RE  ON INTERNATIONAL LAW.
of war, by reason of frequent enagagements they had in the Low
Countries. This is the account Conestaggius gives of it, which, how
little it is to the purpose the Doctor quoted it for, is so visible, that there
is no need of any words to show it. But granting (as the Doctor supposeth) that Antonio never had any right, or, at least, the Spaniards
would never allow he had any, yet it is evident from the historian, that
they allowed him, during possession, the same privileges as the late King
had during the war in Ireland: and if the Spaniards, by the law of
nations, after Antonio was driven from his kingdom, might treat those
that acted by his commission as pyrates, why may not the English deal
after the same manner, with those that act by the late King's commission,
since they look on him to be in the same condition as the Spaniards did
[*406] on Antonio, without a kingdom, or right *to one? What difference can this make, that one had never a right, and the other
tho' he had once a right, has lost it?
4 "These two civilians, I believe, are the only persons, pretending to be
lawyers, who are of opinion, that a king without a kingdom, or right to
one, has, by the Law of Nations, a right to grant commissions to privateers, especially if they are subjects (as they have acknowledged it) to
that king, against whom they, by their commissions, are to act."(a)
This account is certainly tinged by the reporter's hatred of Jacobites,
and very probably the arguments of Pinfold and Oldys are not fully reported; but after every deduction has been made in their favour, the
reason of the thing must be allowed to preponderate greatly towards the
position of Tindal, that these Privateers were jure gentium Pirates.
[*407]               *CHA PTER XXI.
RENVO-I.EXTRADITION.
CCCLX. The subject of this Chapter seems to require a three-fold
division; for we have to consider:
1. The Right of a State to dismiss foreigners commorant in her territories-sometimes called the right of Renvoi.
2. The Obligation of a State, under the general law, to surrender
foreign subjects —or the Law of E'xtradilion.
3. The Obligation of a State to surrender foreign subjects, in compliance with the provisions of Treaties of Extradition.
CCCLXI. Every State is held to lie under an obligation to take
charge of its natural subjects; it cannot therefore refuse to receive back
citizens who have migrated in quest of food or employment into foreign
countries.  Correspondent with this obligation on the part of the State
of the citizen, is the right of the State, into which he has migrated, to
send the foreign citizen back to his own home.
(a) Tindal's Essay, pp. 43. 8.




EXTRADITION.                                299
This right is usually known in Law by the term Droit du Renvoi.(a)
At the same time it must be observed, that it ceases, where the citizen
has been naturalized by express law, *in the foreign country. [*408]
And the right can hardly be held to exist where the naturalization has been effected by tacit permission.  Martens thinks it would be
desirable to define, by the terms of a positive treaty negotiated with
every country, the case, in which, the tie between the citizen and his
native Government shall be held to be so severed, as to destroy the obligation of receiving him again; and he observes, that the Law does not
consider the character of the native subject, in this sense and for this
purpose, as indelible.
This suggestion of Martens is founded upon the practice of many of
the German States, who appear also to have considered the question with
respect to the transmission, through intermediate States, of persons from
the country in which they have been sojourning to the country of their
birth.(b)
CCCLXII. The right of a State to dismiss foreigners from  its territories having been discussed, the obligation, of a State to deliver up or
surrender the subject of a foreign State on the demand of that State, is
next to be considered.(c)
With respect to citizens, not being fugitives from justice, but who are
needed for the exigences of their original country, *it has been [*409]
already stated that International Law affords no pretext for their
delivery.
With respect to fugitives from justice, the doctrine of the Roman Law
was explicit on this point, ordering that every criminal should be remitted
to his forum, criminis: but the reason is given by Paul Voet:"Jure tamen civili notandum, remissionibus locum fuisse de necessitate, ut reus ad locum  ubi deliquit, sic petente judice, fuerit mittendus,
quod omnes judices uni subessent imperatori.  Et omnes provinciae
(a) Kent's Comment. vol. i. p. 36, and note.
Sir L. Jenkins, speaking of the demand made by the French crown on behalf of
a French subject, charged in an English port with having committed piracy on the
high seas, says, " The matter of Renvoy being a thing quite disused among princes,
and as every man by the usage of our European nations is justiciable in the place
where the crime is committed, so are pyrates, being reputed out of the protection
of all laws and privileges, and to be tried in what ports soever they are taken."'Vol. ii. p. 714.
Martens, 1. iii. c. iii. s. 91.
(b) Martens, 1. iii. c. iii. s. 91.
"En effet, le gouvernement de chaque 6tat a toujours le droit de contraindre les
6trangers qui se trouvent sur son territoire h en sortir, en les faisant conduire jusqu'aux frontieres. Ce droit est fond6 sur cc que l'Ptranger ne faisant pas partie
de la nation, sa reception individuelle sur le territoire est de pure facult6, de simple
tolerance, et nullement d'obligation. L'exercice de cc droit pent etre soumis, sans
doute, h certaines formes par les lois interieures de chaque pays; mais le droit n'en
existe pas moins, universellement reconnu et pratique. En France, aucune forme
speciale n'est prescrite aujourd'hui en cette matidre; l'exercice de ce droit d'expulsion est totalement abandonn6 au pouvoir ex6cutif."-Ortolan, Diplom. de la
Mer, 1. ii. c. xiv. p. 323.
(c) Dissertatio de Deditioue Profugorum: Henricus prov6 Kluit, Utrecht, 1829.
The Law of Extradition, by Charles Egan; London, 1846.
1 Kent's Comment, 36, note.
Ortolan, Dipl. de la Mer, 1. i. c. xiv.




300   PHILLIMORE ON INTERNATIONAL LAW.
Romanse unitto essent accessori6, non principaliter."(d)...
"Moribus nihilominus (non tamen Saxonices) totiusfere Christianismi,
nisi ex humnc itate, non sunt admissm  remissiones, quo casu, remittenti
magistratui cavendum per litteras reversoriales, no actus jurisdictioni remittentis ullum pariat praejudicium. Id quod etiam in nostris Provinciis
Unitis est receptum.  Neque enim  Provincie Foederatse uni supremo
parent."(e)
CCCLXIII. Though the reason for this remission of criminals arose
from the peculiar condition of universality incident to the Roman Empire,
there is not wanting the authority of great jurists(f) to support as maxims
of *International Law, both the following propositions upon this
question of Extradition:1. That States are under an obligation to refuse an asylum to fugitive
criminals;
2. That they are bound, if satisfied by examination of the prima facie
guilt of the fugitive, to surrender him for trial to the country in which
he committed the crime.
CCCLXIV. Nevertheless, the usage of nations has not accepted these
propositions; nor is the opposite view without the support of eminent
jurists, such as Puffendorf,(g) John Voet,(h) Martens,(i) and others.(k)
(d) P. Voet, De Stat. s. xi. c. i. p. 297 (ed. 1715).
Id. p. 358.
(e) lb. s. xi. c. i. n. 6. p. 297 (ed 1715).
Id. p. 358 (ed. 1661).
(f) Grotins, 1. II. c. xxi. s. 3, 4, 5: " Veniamus ad qunestionem alteram de receptu
adversus pcenas. Pcenas ut, ante diximus, naturaliter cuivis cui nihil simile objici
potest exigere licet. Institutis civitatibus id quidem convenit, ut singulorum delicta,
qune ipsorum catunm proprie spectant, ipsis ipsarumque rectoribus pro arbitrio punienda ant dissimulanda relinquerentur.' At non etiam jus tam plenum illis concessum est in delictis, quce ad societatem
humanam aliquo modo pertinent, que persequi ita civitatibus aliis earumve rectoribus jus est, quomodo in civitatibus singulis de quibusdam delictis actio datur
popularis: multoque minus illud plenum arbitrium habent in delictis, quibus alia
civitas anut ejus rector peculiariter lesus est et quo proinde nomine ille illave ob
dignitatem anut securitatem suam jus habent pcenue exigendce, secundum ea quze
ante diximus. Hoc ergo jus civitas, apud quam nocens degit, ejusve rector impedire non debet.
"' Cum vero non soleant civitates permittere ut civitas altera armata intra fines
snos pcense expetendne nomine veniat, neque id expediat, sequitur ut civitas, apud
quam degit qui culpse est compertus, alterumn facere debeat, anut ut ipsa interpellata
pro merito puniat nocentem, anut ut eum permittat arbitrio interpellantis; hoc enim
illud est dedere, quod in historiis suepissime occurrit....  Neque obstant
illa adeo pruedicata supplicum jura et asylorum exempla. HIec enim illis prosunt
qui immerito odio laborant, non qui commiserunt quod societati humane anut hominibus aliis sit injuriosum."
Rutherforth follows Grotius's opinion, 1. iI. c. ix. s. 12. So also Heineccius in his
Prselectiones.
Vattel, 1. ii. c. vii. pp. 75-6-7.
Burlamaqui, pt. Iv. c. iii. s. 23-29.
(g) Puffendorf, 1. viii. c. iii. s. 23-4.
h) Voet, De Statutis, 297. So too Kliiber, t. i. c. ii. s. 66.
(i) Martens, 1. iii. ch. iii. s. 101. De l'Extradition d'un Criminel.
Story, Conflict of Laws, ss. 626, 627, 628. pp. 878-9-80.
As to the opinion of American lawyers, most of the reasoning on each side will
be found very fully collected in the case of The matter of Washburn, 4 John. Ch.
(k) See note (k) on next page.




EXTRADITION.                                301
France, Russia, England and the North American United States, have
constantly, either by diplomatic acts or decisions *of their tribunals, expressed their opinion, that upon principles of Inter- [411
national Law, irrespective of Treaty, the surrender of a foreign criminal
cannot be demanded.(l)
Mr. Chancellor Kent, however, expresses himself very strongly upon
this subject; and, according to him, c"It is the duty of government to
surrender up fugitives on demand, after the civil magistrate shall have
ascertained the existence of reasonable ground for the charge, and sufficient to put the accused on his trial.  For the guilty party cannot be
tried and punished by any other jurisdiction than the one whose laws
have been violated; therefore the duty of surrendering him applies as
well to the case of the subjects of the State surrendering, as to the case
of the subjects of the power demanding the fugitive;"(mn) and it must be
admitted that the English courts, even before the Treaties and Statutes
hereinafter mentioned, appear to have held the doctrine that International
Comity was sufficiently stringent to compel the surrender of the criminal.
In the 29th year, of Charles II., we find the following decision in the
King v. Hutchinson: "On Habeas Corpus it appeared the defendant
was committed to *Newgate on suspicion of murder in Portugal, [*412
which by Mr. Attorney, being a fact out of the King's dominions,          ]
is not triable by commission, upon 35 Hen. VIII. c. 2, ~ 1. n. 2, but
by a Constable and Marshal; and the Court refused to bail him," &c.(n)
In 1749, the Barons of the Exchequer said: ",The Government may
send persons to answer for a crime wherever committed, that he may not
involve his country; and to prevent reprisals."(o)
In 1811, Mr. Justice Heath, sitting in the Common Pleas, observed,
<'It has generally been understood, that wheresoever a crime has been
R. 106; that of Commonwealth v. Deacon, 10 Serg. & Rawl. 123; Holmes v. Jennison, 14 Peters's R. 540 —598; and that of Rex v. Ball, 1 Amer. Jurist, 297. The
latter case is the decision of Mr. Chief-Justice Reid of Canada. See also 1 Amer.
State Papers, 175; Commonwealth v. De Longchamps, 1 Dall. 111, 115; U. States
v. Davis, 2 Sumner R. 482. 486.
1 Kent, Comment. pp. 35-38.
Merlin, Questions du Droit, tit. ETRANGER; Repert. du Droit, tit. SOUVERAINETE.
(k) "Profecto populum  cogere ut hune illumve prehendat nobisque remittat,
nihil aliud est, nisi ilium cogere, ut faciat aliquid, ad quod jure obstringi non potest.
" Si quneritur, quid peragatur a civitate, que consentit in deditionem profugi,
respondemus eam tantum alteri auxilium ferre in exercitio juris, quod in profugum
habet. Auxilium ferre est actus benevolentina et comitatis, ad quem proestandum
nemo perfecte est obligatus."-Kluit, de Deditione Profugorum, c. i. s. 1.
Tittman, in Strafrechtspf. p. 27: "Wenn dass dieser Person schuldgegebene
Verbrechen mehr aus einer Verletzung des politischen Systemes, als des Rechtes
jenes Staates besteht, denn in solchen Fdllen ist das Strafrecht an sich selbst noch
zweifelhaft."lIb. c. ii. s. 10. p. 81, note.
(1) Kluit, de Deditione Profugorum, c. iv. ss. 1 & 3.
Heffters, 1. i. lxiii. p. 119. PRecht der Auslieferungen.
Felix, 1. ii. t. ix. c. 7.
Coke's Institutes, iii. 180.
(m) 1 Kent's Commentaries, p. 37. But see Story on the Constitution of the United
States, s. 1808, and note 2 thereon; Story on the Conflict of Laws, s. 628, and
Coke's 3d Inst. 380.
(n) 3 Keble's Rep. 785.
(o) East India Company v. Campbell, 1 Vezey's (Sen.) Rep. 241.




302   PHILLIMORE ON INTERNATIONAL LAW.
committed; the criminal is punishable according to the lex loci of the
country, against the law of which the crime was committed; and by the
comity of nations, the country in which the criminal has been found,
has aided the police of the country, against which the crime was committed, in bringing the criminal to punishment. In Lord Loughborough's
time, the crew of a Dutch ship mastered the vessel, and ran away with
her, and brought her into Deal, and it was a question whether we could
seize them, and send them to Holland; and it was held we might."(p)
When the Scotch demanded the Extradition of Bothwell, Queen Elizabeth promised either to surrender him or send him out of her kingdom.
It is well known that Charles II. pursued the murderers of his father
with unrelenting severity.  He entered into a Treaty with Denmark
[*413] (February 13, 1660), by the 5th *article of which the Extradition of any of the regicides, who might take shelter in that country, was stipulated for, and three of the regicides, who had fled to Holland,
were surrendered to him. by De Witt, at that time Grand Pensioner.
Napper Tandy, and some of his comrades concerned in the Irish rebellion
of 1795-8, were arrested in Hatmburg, and delivered up to the English
authorities, an act which was greatly resented by Buonaparte.(q)
There are two circumstances to be observed, which occur in these and
in all other cases of Extradition:
1. That the country demanding the criminal must be the country in
which the crime is committed;
2. That the act done, on account of which his Extradition is demanded,
must be considered as a crime by both States.
It may be further remarked,(r) that the obligation to deliver up native
subjects would now be denied by all States, even by those which carry
the general doctrine of Extradition as to criminals to the farthest limit;
and that it is generally admitted that Extradition should not be granted
in the case of political offenders, but only in the case of individuals who
have committed crimes against the Laws of Nature, the laws which all
nations regard as the foundation of public and private security.(s)
The result of the whole consideration of this subject is, that the Ex(p) Mure v. Kaye, 4 Taunton's Rep. 43.
As to the power of transmitting criminals from England, in which country they
were apprehended, to Ireland, in which country they had committed the offence,
see case of Lundy, 2 Ventris's Rep. p. 314, Case in the 2d year of Will. and Mary;
and King v. Kimberley, 2 Strange's Rep. 848, Case in the 3d year of Geo. II.
(q) Martens's Erzaihlungen merkwiirdiger Falle des neueren Europ. Volkerrechts,
ii. 282.
Case of James Napper Tandy and another, Howell's State Trials, Vol. xxvii. p.
1191.
(r.) Many states are by the positive laws of their own constitution prevented froim
delivering up citizens to foreign powers, e. g. Prussia, Bavaria, Wurtemburg, Baden,
Hesse, Oldenburgh, Brunswick, and Altenburg.
Vide Heffters, ubi supra.
PFolix.
Saalfeld, s. 40.
Kliiber, t. i. c. ii. s. 63.
(s) Vattel, 1. i. s. 2330
Feelix, ubi supra.




EXTRADITION.                                803
tradition of criminals is a matter of Comity, not of Ricght, except in cases
of special convention.
*CCCLXV. It may happen that two nations make a request [414]
(re'clamation) for the delivery of the same offender.  The only [141
course which the State harbouring the offender is obliged to pursue, in
such a case, is, not to show  partiality to either requesting State.  According to Martens, the request of the State which  claims the offender
as attached to her service, e. g. as an officer, or a public functionary, is
preferable to the request of the country against which, or more especially
in which, the crime has been committed; while, on the other hand, the
request of the latter State is preferable to that of the State which claims
the offender merely as an individual subject. It is hardly necessary to
discuss this nice point of International casuistry, as it is clear that the
wisest conduct which a State can adopt is to refuse the request of both
applicants.(t)
CCCLXVI. The right of a State to demand that rebellious subjects
*shall not be allowed to plot against it in the territory of another
State, has been already discussed;(u) it cannot, when stretched ['415]
to its utmost limit, be extended beyond the point of requiring the foreign
State to send the fugitive in safety elsewhere; and this demand can only
be legally made, when the State has confessed or demonstrated its inability to restrain the fugitive, from carrying on plots against the country,
from which he has fled.
This very important subject recently underwent a memorable discussion in the House of Peers.  In a debate which arose upon the question
of foreign refugees, most of the Lords, who were either then discharging,
or who had discharged judicial functions in the highest tribunals of the
realm, delivered their opinions upon this nice question of International
Law.
(t) Edinburgh Review, No. lxxxiii. pp. 129. 139. 141.
In the case of the Creole, all the judicial authorities in the House of Lords expressed the same opinion. February, 1842, Hans. Parl. Deb.
Cases in the American courts:In the matter of Washburn, 4 Johnson's Chancery Reports, 106.
Commonwealth v. Deacon, 10 Serg. & Rawl. 123.
Rex v. Ball, American Jurist, 297.
United States v. Davis, 2 Sumner's Rep. 486. Judge Story's decision.
Holmes v. Jenison, 14 Peters's Reports, 540.
Ex parte Holmes, 12 Vermont's Rep. 630.
Case of Jose Ferreire Jos Santos, 2 Brockenbrough's Reports, 492.
The result of these cases (for a reference to which I am indebted to a note in
Mr. Chancellor Kent's Commentaries, vol. i. pp. 36, 37,) seems to be, that the constitution of the United States confers no authority on their public officers or courts
to deliver up a fugitive criminal.
See too, Opinions of the (American) Attorneys-General, vol. i. pp. 384, 392, affirming the same proposition, and correcting a former opinion (vol. i. p. 46.); Story's
Comment. on the Constitution, vol. iii. pp. 675, 676; On the Conflict of Laws, s.
626, 627; also Commonwealth v. De Longchamps, 1 Dallas, 111, 115.
" Differend survenu en 1747, entre la Cour de Suede et celle de la Grande Bretagne au sujet de l'extradition d'un n6gociant nomm6 Springer, accus6 de haute
trahison et refugi6 dans l'hbtel du ministre d'Angleterre."-Martens, Causes C61ebres, Dixieme Cause. Vide post, AMBASSADORS.
(u) See Chapter X. pp. 227-233.




3 0 -   PHILLIMORE  ON  INTERNATIONAL  LAW.
Lord Lyndhurst introduced the subject by referring to the great irritation which prevailed at Vienna, and throughout the Austrian dominions,
with respect to the alleged conduct, in London, of certain refugees from
the Lombardic dominions of Austria.  It will be very difficult to abridge
without injuring the clear exposition both of our National and International Law laid down by that eminent and learned nobleman. HIe stated
that Law, with respect both to British subjects and to foreign refugees,
in these wdrds:'c I will first take the case of a British subject. If a number of British
subjects were to combine and conspire together to excite revolt among
the inhabitants of a friendly State-of a State united in alliance with us
-and these persons, in pursuance of that conspiracy, were to issue manifestoes and proclamations for the purpose of carrying that object into
effect; above all, if they were to subscribe money for the purpose of
purchasing arms to give effect to that intended enterprise, I conceive, and
I state with confidence, that such persons would be guilty of a misdemeanor, and liable to suffer punishment by the laws of this country,
[416] inasmuch as their conduct would tend to embroil *the two countries together, to lead to remonstrances by the one with the other
and ultimately, it might be, to war.  I think my noble and learned
friends who are now assembled here, and who perform so important a
part in the deliberation of this House, will not dissent from the opinion
I state with respect to British subjects. Now with respect to foreigners.
Foreigners residing in this country, as long as they reside here under
the protection of this country, are considered in the light of British subjects, or rather subjects of Her Majesty, and are punishable by the cririnal law precisely in the same manner, to the same extent, and under the
same conditions, as natural-born subjects of Her Majesty.  In cases of
this kind, persons coming as refugees from a foreign State, in consequence
of political acts which they have committed, are bound by every principle of gratitude to conduct themselves with propriety.  This circumstance
tends greatly to aggravate their offence, and no one can doubt that they
are liable to severe punishment.  I will put the case in another shape.
The offence of endeavouring to excite revolt against a neighbouring State
is an offence against the Law of Nations.  No writer on the Law of
Nations states otherwise. But the Law of Nations, according to the decisions of our greatest judges, is part of the Law of England.  I need
say no more with reference to the nature of the offence imputed to those
individuals-I need say no more than that they are subject to be punished
by the laws of this country for offences of this description. But there
is a question connected with this subject of considerable difficulty, and
that relates to the evidence by which a party can be convicted.  Here,
I admit, there is a very serious difficulty. It is not sufficient that the
offence should be notorious to the world. You must have such evidence to support the particular charge as shall be admissible before our
tribunals."(x)
(x) Vide The Times, 5th March, 1853.
Hansard's Parl. Deb. vol. cxxiv. p. 1046.




EX TADITION.                             305
*In the Course of the debate, the Prime Minister stated that
the Government had resolved, if any event occurred which gave [417]
just grounds of complaint to a foreign government against a refugee in
this country, to take upon themselves the prosecution of such an individual, and not to throw the burden of it upon the foreign minister. The
principal occasions upon which such a course has been pursued are the
two following:
In 1799, certain English subjects were prosecuted for publishing a
libel upon Paul I., Emperor of Russia. The Attorney-General in that
case said that he had been commanded to file an information in order to
vindicate the character of the Emperor of Russia-a prince in amity
with this country, defamed in a libel, contrary to the laws aud usual
policy of nations, which protect not only the magistracies, but the individuals of each other, from insult and reproach. Lord Kenyon tried
the case, and, though Erskine defended the prisoners, the jury found
them guilty.  They were punished by fine and imprisonment.(y)
In 1803, Jean Peltier, a French refugee, was prosecuted for a libel on
Napoleon Bonaparte, then First Consul of the French Republic: Lord
Elleuborough tried the case, and, in spite of an extraordinary speech
delivered by Mackintosh, the jury found Peltier, his client, guilty; but
as war, soon after this trial, was renewed between Great Britain and
France, the defendant was never called upon to receive judgment.(z)
CCCLXVII. The delicate question of the protection afforded to native
offenders, by the residence of persons entitled to the privilege of exterritoriality, will be considered hereafter.
CCCLXVIII. We have now  to consider(a) the principal Treaties
upon the subject of extradition, which form an important part of Positive International Law  between the %Contracting  parties, and
cannot but have, from  their number, and from  the variety of   418
States which entered into them, an important general bearing upon this
question of International Jurisprudence.
CCCLXIX. In France,(b) the matter of Extradition has been frequently the subject of domestic legislation and of treaty with other
Powers.
With regard to the former, some doubt seems to exist as to the present legal effect of enactments and provisions made before the year
1831.(c)
The first Treaty, by which France promised and stipulated for Extradition, was concluded between that country and Spain, in 1765.(d)
The second was entered into with the Duchy of Wurtemberg, in the
same year.(e) According to the terms of the latter Treaty, the subjects
of Extradition are to be c" brigands, malfaiteurs, voleurs, incendiaires,
meurtriers, assassins, vagabonds."
In 1783,(/) France became a third party to a treaty concluded be(y) State Trials (Howell), vol. xxvii. pp. 627-630.
(z) Ib. vol. xxviii. pp.530-619.
(a) De M. et De C. Tr. Index. tit. EXTRADITION.
(b) Fuelix, 1. ii. t. ix. c. 7.  (c) Ib. pp. 586, 592, s. 612 and note.
(d) It does not appear in the general collections.
(e) Martens, Rec. de Trait6s, t. i. p. 310.  (f) Ib. t. ii. p. 612.




306   PHILLIMORE ON INTERNATIONAL LAW.
tween Spain and Portugal in 1778;(g) the sixth Article which stipulates for the mutual Extradition of natives accused of counterfeiting
coin, contrabandists, and deserters.  The stipulations with respect to
deserters were renewed by the sixteenth Article of a Treaty between
France and Spain, made in 1786.(h)
By a Treaty concluded between France and Switzerland in August
1798 (fourteenth Article), and renewed in September, 1803 (eighteenth
Article), it is stipulated,(i)-" Si les indciviclus qui seroient declar6s
juridiquenent *coupables de crimes d'etat, assassinats, empoisonnemens, faux sur des actes publics, fabrication de fausse
monnoye, vols avec violence ou effraction, ou qui seroient poursuivis
comme tels en vertu de mandats dlcernes par autorite legale, se rdfugioient d'un pays dans, l'autre, leur extradition' sera accordee a la proemiere r6quisition.  Les choses volees dans l'un des deux pays, et d6posees dans l'autre, seront fidlement restitu6es, et chaque etat supportera,
jusqu'aux frontieres de son territoire, les frais d'extradition et de transport.  Dans le cas de delits moins graves, mais qui peuvent emporter
peine afflictive, chacun des deux etats s'engage, ind6pendamument des restitutions'a operer a punir lui-meme le d6linquant; et la sentence sera
communiqu6e i Ia lagation frangoise en Suisse, si c'est un citoyen franVois, et r6ciproquement h l'envoy6 helvetique a Paris, ou a son defaut,
au land-amman de la Suissee, si la punition pesoit sur un citoyen de la
Suisse."  And also the Extradition of public functionaries or receivers
of public moneys pursued for carrying away the property of the State.
Stipulations to the'same effect were inserted in the Treaty of Amiens
in 1802 (Article Twenty), between England and France;(k) and also in
a treaty between the same parties in February, 1843.(/)
Treaties between France and England, in August 1787 and 3March
1815 (Articles Eight and Nine), contain reciprocal stipulations for the
surrender of persons accused of offences cognizable in courts of law
within their respective possessions in the East Indies.(m)
In November, 1834, France entered into a Treaty of Extradition with
Belgium, containing similar stipulations; but each Government reserved to
itself the right of excepting *from  the operation of the Treaty
special and extraordinary cases.(n)  By this Treaty Belgium is
not bound to surrender a French subject for an offence committed by
him in Belgium; and the same rule applies to France.(o)
By a Treaty between France and Sardinia, in May, 1838, it is stipulated that persons "c mis en accusation ou condamn6s" in their respective
(g) lb. p. 625.                   (h) lb. t. iv. p. 187.
(i) Ib. t. vi. p. 466; t. viii. p. 132; Art. xviii. Renewed on the 18th of July,
1828, according to F1elix, 585,
(k) Martens, ib. t. vii. p. 412.          (1) Vide post.
(m) Martens, Rec. de Traites, t. iv. pp. 280-285.
(n) Martens, ib. t. xx. (Nouv. Rec. t. xii.) Art. ii. p. 733: " Chacun des deux
gouvernemens entend cependant se reserver le droit de ne pas consentir a l'extradition dans quelques cas sp6ciaux et extraordinaires rentrant dans la categorie des
faits pr~vus par l'article precedent.
"' I1 sera donn  connaissance, an gouvernement qui reclame 1'extradition, des
motifs de refus."
(o) Revue Etrangeire, t. ix. p. 1032.




EXTRADITION.                              307
countries, for any of the offences specified in the Treaty with Belgium
which has been just mentioned, shall be subject to Extradition.  The
operation of the Treaty is limited to French subjects in Sardinia, and to
Sardinian subjects in France or Corsica.(p)  But this Treaty does not
contain the reservation specified in the Treaty with Belgium.
France has also Treaties of Extradition with Sweden and Norway, of
December, 1843;(q) with the United States of North America, of November, 1843, promulgated April, 1844;(r) with the Grand Duchy of Baden,
of June, 1844;(s) with Luxembourg, of September, 1844;(t) and with
Bavaria, of March, 1846.(u)
France has particular Treaties upon the subject of Extradition of
deserters, with Wurtemberg, of December, 1765; *with the ['421]
North American United States, of November, 1788,(v) and of
June, 1823(x) (Article Ninth); with Sardinia, of June, 1782, and of
August, 1820;(y) with the Netherlands, of October, 1821;(z) with
Bavaria, of May, 1827;(a) and with Prussia, of July, 1828.
CCCLXX. It appears to be the usage of the kingdom  of the Two
Sicilies(b) to concede Extradition; but they have a positive Treaty, of
July, 1818, on the subject, with the Pope, for the surrender of all delinquents, with power for an armed force of the one country to make
arrests within the territory of the other.(c)
The kingdom  of the Two Sicilies has a Treaty, of May, 1819, with
Sardinia,(d) for the delivery of individuals condemned to the gallies,
or to temporary or perpetual labour.
The Papal States have the Treaty above mentioned with Sardinia.
CCCLXXI. Holland has treaties, of April, 1718, and of December,
1756, with Austria and France;(e) with Hanover, of 1815;(f) and express Treaties for the surrender of deserters, with France, of October,
1821; with Sweden and Norway, of May, 1827; and with Nassau, of
August, 1828.(g)
CCCLXXII. Sardinia provides, by the eleventh Article of her Penal
Code, that no Extradition shall take place except under the authority of
the king.  She has Treaties -for Extradition of malefactors with   422]
France, Austria, Tuscany, Modena, Parma, Placentia, Morocco,
Massa, Carrona.(h)
(p) See M. Fuelix, 1. ii. tit. ix. ch. vii. p. 588, who has the following note: " Bulletin des Lois, 1838, ix. Bull. Dcxvi. No. 7716: Collection de AI. Duvergier, 1838,
p. 734; V. un cas d'application de ce Traite dans la Gazette des Tribunaux du 21
Janvier, 1843."
This reference and the three next are from M. Fielix:
(q) Collection de M. Duvergier, 1843, p. 69.  (/r) Ibid. 1844, p. 436.
(s) Ibid. 1844, p. 640.  (t) Ibid. 1846.    (u) Martens, t. iv. p. 417.
This reference and the six next are from AM. Felix:
(v) Bull des Lois, Bull. 614, No. 15,077.
(x Ib. Bull. 425, 1820, No. 9971.
Martens, Nouv. Supplement, t. ii. p. 42.
(y) Bull. des Lois, 1821, Bull. 486, No. 11,576.
(z) lb. 1827, Bull. 162, No. 6054.
Martens, t. vii. p. 132.
(a) Bull. des Lois, 1828.             (b) Faelix, p. 592.
(c) Martens, Nouv. Rec. t. v. p. 281.        (d) Ib. p. 398.
(e) Martens, Guide Diplomatique, pp. 133. 138. and 771.
(f) Fselix, s. 619. p. 593 (notis).   (g) Martens, Nouv. Rec. t. vii. p. 682.
(h) Martens, Nouv. Rec. t. vii. p, 214.




308   PHILLIMORE ON INTERNATIONAL LAW.
CCCLXXIII. Austria,(i) which incorporates into its own code the
power and obligation of Extradition, has Treaties for the surrender of
individuals accused of crimes or misdemeanors (crimes on dcltits communs)
with Sardilia, (April, 1792; June, 1838);(k) with Parma, Placentia,
Guarlotten (July, 1818); with Modena (October, 1818; 1834); with the
Swiss Cantons, excepting Glaris, Zug, Bale, Appenzell, the Grisons,
Geneva (1828);(g) and with Tuscany (October, 1829).(n)
CCCLXXIV. The Extradition of persons accused of high treason is
stipulated for in Treaties with Russia and Prussia as to Polish subjects
(January, 18.4); with all the States of the Germanic Confederation
(August, 1836); and with the two Sicilies.(n)
CCCLXXV. For the Extradition of deserters, Austria has Treaties with
Russia (April, 1808; May, 1815; July, 1822);(o) with the minor Italian
States; with the Pope (June, 1821); with Sardinia (February, 1826;
with the Germanic Confederation (February, 1831; May, 1832).
CCCLXXVI. Prussia punishes offences committed by her subjects in
foreign lands against her own laws only;(p) but has incorporated in her
criminal code the obligation of *the proper magistrate to enforce
[423 ] the Extradition which has been the subject of Treaties with
other nations; certain precautions being taken, such as taking security
for obtaining a return for the Act of Comity granted by her (reversalia
de observando reciproco).(q)  She has Treaties of Extradition for persons
charged with crimes or misdemeanors with Mecklenbourg-Schwerin, of
February, 1811, and 1831;(r) with Russia, of May, 1816, and March,
1830;(s) and with Belgium, of July, 1836.(t)
In 1832, 1834, and 1836, Prussia entered into Treaties for the surrender of political offenders with the Germanic Confederation, Austria,
and Russia;(u) in 1833 and 1837,(v) into Treaties with the Germanic
Confederation for the surrender of contrabandists, provided that they were
not subjects of the State in which they were arrested.
Prussia has stipulated for the Extradition of deserters with Denmark,
Brazil, France, Luxembourg, and the Germanic Confederation (x)
Bavaria, Oldenburg, Saxe-Altenbourg, Brunswick, Hanover, and The
Elector of Hesse, have the same principles, generally speaking, inserted
in their domestic Codes and foreign Treaties.
CCCLXXVII. Switzerland has concluded Treaties with France,(y)
Austria,(z) and Baden,(a) for the Extradition of persons accused of crimes
(i) Feelix, pp. 592, 593, 594.
De Puttlingen, Die gesetzliche Behandlung der Auslander in Oesterreich.
Klfiber, Oeffentliches Recht des deutschen Bundes und der Bundesstaatena, s.
197. 347.
(lc) Martens, Nouv. Rec. Suppl6ment, t. ii. p. 81.
Fselix, p. 621. s. 594.
(1) Martens, Nouv. Rec. t. vii. p. 646.  (m) Martens, t. xv. p. 44.
(n) Fsslix, s. 621. p. 594.
) Martens, Nouv. Recueil, t. iv. p. 282; t. vi. p. 120.
Fwelix, s. 621. p. 595.
(p) Ib. s. 560, p. 547.                 (q) Feelix, s. 622. p. 595.
(r) Martens, Nouv. Rec. t. ix. p. 216.
(s) Ib. t. iv. p. 293; t. viii. p. 244.   (t) Ib. t. xv. p. 98.   (u) Ib. t. xv. p. 44.
(v) Faelix, s. 622. p. 596.   (x) Ib. s. 622. pp. 596, 597.   (y) Vide supra.
(a) Vide supra.                   (a) Vide supra.




EXTRADITION.                             309
or misdemeanors; but in none of these Treaties is any mention made of
the surrender of Swiss citizens; and it is expressly refused in the third
Article of the Treaty with Austria.,*Spain and Portugal(b) recognise the Extradition of persons [424]
charged with crimes or misdemeanors, as a principle of International Law; but have no other Treaties on the subject than that
already mentioned, with France, of 1778 and 1783.(c)
CCCLXXVIII. Denmark has Treaties for the Extradition of malefactors with Brunswick, of May, 1732; July, 1744; February, 1759; and.
November, 1767;(d) with Sweden, of December, 1809,(e) in the Ninth
and separate Article of which it is stipulated: —" Les devoirs du bon
voisinage imposant aux hautes parties contractantes l'obligation reciproquement salutaire de contribuer, en autant qu'il est en leur pouvoir, au
maintien des loix criminelles des deux pays,-elles sont convenues d'un
article separe qui sera. regarder commne s'il etoit insere mot a mot dans
le present traite, et par lequel l'extradition reciproque des malfaiteurs et
dtserteurs sera stipulee et regl6e."
Denmark has a similar Treaty with Norway, of March, 1823,(f) which
contains provisions similar to those in the Treaty with Sweden.  Denmark has Treaties, for the Extradition of deserters, with Spain, of July,
1767;(g) with Sweden, in the Treaty already mentioned; with Mecklenbourg Strelitz and Schwerin, of February and April, 1823;(A) with Hambourg, of May, 1832.(i)
CCCLXXIX. Sweden appears to have only two Treaties on this subject: —1. The Treaty already mentioned, with *Denmark; 2. A
Treaty with Russia, of November, 1810;(k7) by the seventh Ar- [*425]
ticle of which it is stipulated: —_ La tranquillit6 et la surete des paisibles habitans de ces fiontieres, Itant trop expos'es par la grande facilite
aux malfaiteurs de se soustraire a. leurs justes punitions, en passant sur
le territoire de l'autre puissance, il est convenu que tout meurtrier, incendiaire, brigand ou voleur qui, aprts avoir commis un crime dans une
des paroisses limitrophes, s'6vadera sur le territoire etranger, sera saisi et
livre6  son gouvernement aussitot que requisition en aura 6t6 faite; mais
en cas que l'accuse soit sujet de l'dtat oui il se sera refugi6 apres avoir
commis le crime sur le territoire etranger, il sera jug6 et puni par son
propre gouvernement, avec la meme rigueur que s'il s'6toit rendu coupable envers celui-ci." In both these Treaties, the surrender of deserters
is conceded.
Norway appears to have only the Treaty already mentioned, with Denmark. (I)
CCCLXXX. Russia has the Treaties already mentioned,(mn) for the
(b) Martens, Nouv. Rec. t. vii. p. 646; t. ix. p. 22.
Felix, p. 605, and note.
(c) Vide supra.
(d) M. Kluit, passim.
Fnlix, s. 635. p. 606.
(e) Martens, Nouv. Rocueil, t. i. p. 223.  (f) lb. t. vii. p. 14.
(g) Ib. t. i. p. 459  (h) Ib. t. vii. pp. 5, 16.  (i) Ib. t. vi. p. 259.
(k) Martens, Nouv. Rec. t. i. p. 313. t. iv. p. 33.  (1) Vide supra.
(m) Ubi supra.




310       PHI LLIMORE  ON  INTERNATIONAL LAW.
Extradition of malefactors and deserters, with Austria, Prussia, and
Sweden; for the Extradition of deserters, with the kingdom  of the Two
Sicilies, of January, 1787;(n) with Portugal, of December, 1787,(o) and
December, 1798;(2) with Saxony, of October, 1806.(q)
CCCLXXXI. The Sublime Porte is accustomed to surrender malefactors who are aot subjects;(r) but has, only a short time before these
pages were written, refused to surrender political criminals. She appears
to have no Treaty on the subject of Extradition.
[*426]    *CCCLXXXII. Greece allows by her domestic law the Extra426] cdition of Turkish subjects for crimes or misdemeanors committed
in her territory, but does not allow Greek subjects to be surrendered to
Turkish authority for offences committed in the Turkish dominions.(s)
CCCLXXXIII. England holds, and has always held, as a general
principle, the doctrine of refusing to surrender any persons who may
have taken refuge in her dominions.(t) The recent deviations from this
principle are bounded by the letter of the Treaty which constitutes the
particular case of exception; and by no Treaty has she departed from
her rule of refusing the Extradition of political refugees.(U)
By the Treaty of Amiens, England, for the first time, covenanted with
France for the Extradition of fugitives charged with forgery, fraudulent
bankruptcy, or murder, committed in their respective territories;(v) but
this Treaty was for a limited period.
England has also had at various times Treaties for the Extradition of
deserters, with the German principalities,-Hesse Cassel(x) (January,
1776, September, 1787,(y) and April, 1793;)(z) Baden (September,
1793;)(a) Hesse Darmstadt(b) (September and October, 1793); Brunswick (November, 1794;)(c) The Elector Palatin (March, 1800;)(d)
Duchy of Wurtemburg (April, 1800;)(e) Archbishopric of *May[427 ] ence (April, 1800.)(f)  But at present she has only two Treaties
of Extradition with foreign States, one with France and another with
America, both confirmed by Acts of Parliament.(g)
The Treaty with France, on 13th February, 1843, provides, that the
high contracting parties should, on requisition made in their name
through the medium of their respective diplomatic agents, deliver up to
(n) Martens, Recueil, t. iv. p. 229.
(o) Ib. t. iv. p. 315 (Art. xix.).  (p) Ib. t. vi. p. 537 (Art. xix.).
(q) Martens, Nouv. Recueil, t. i. p. 153.  (r) Fselix, s. 639. p. 607, and note.
(s) Fnlix, s. 640. p. 607.
Revenue Etrangere, t. i. p. 417.
(t) Vide M. Fselix, s. 641. p. 607, and note,
(u) Debate in the House of Lords, 4th February, 1842. Speech of Lord Brougham.
(v) Martens, Recueil, t. vii. p. 404 (Art. xx.).   (x) lb. t. ii. p. 422.
(y) Ib. t. iv. p. 306.     (z) Ib. t. v. p. 449.   (a) Ib. t. v. p. 506.
(b) lb. t. v. pp. 492 and 524.   (c) lb. t. v. p. 620.   (d) lb. t. vi. p. 707.
(e) Ib. t. vii. p. 47 (Art. viii.).   (f) Ib. t. vii. p. 54, (Art. viii.).
(g) Hertslet's Treaties, vol. vi. pp. 448-9.  " An Act of the British Parliament
for giving effect to a Convention between Her Majesty and the King of the French
for the apprehension of certain offenders," 6 & 7 Vict. c. lxxv. s. 1.
Further provisions for facilitating the execution of this act were given by 8 & 9
Vict. c. 120.
7 Hertslet's Tr. 356.
Martens, Rec. de Tr. t. xxxiv. p. 20.
Ann. Reg. vol. 1xxxv. p. 470 (1843).




EXT R A DI T ION.                        11
justice persons who, being accused of the crimes of murder (comprehending the crimes designated in the French penal code by the terms assassination, parricide, infanticide, and poisoning), or of an attempt to commit
murder, or of forgery, or of fraudulent bankruptcy, committed within
the jurisdiction of the requiring party, should seek an asylum or should
be found within the territories of the other; provided that this should be
done only when the commission of the crime should be so established,
as that the laws of the country, where the fugitive or person so accused
should be found, would justify his apprehension and commitment for
trial, if the crime had been there committed; and also provides, that on
the part of the British Government the surrender should be made only
on the report of a judge or magistrate duly authorised to take cognizance
of the acts charged against the fugitive in the warrant of arrest, or other
equivalent judicial document issued by a judge or competent magistrate
in France, and likewise clearly setting forth the said Acts; and also provides, that the expenses of *any detention and surrender made [*428]
in virtue of the stipulations hereinbefore recited should be borne
and defrayed by the Government in whose name the requisition should
have been made; and also provides, that the provisions of the said Convention should not apply in any manner to crimes of murder, forgery, or
fraudulent bankruptcy committed antecedently to the date thereof; and
also provides, that the said Convention should be in force until after the
First day of January, in the year one thousand eight hundred and fortyfour, after which date either of the high contracting parties should be at
liberty to give notice to the other of its intention to put an end to it,
and it should altogether cease and determine at the expiration of six
months from the date of such notice.
This Treaty was confirmed by the Act 6 & 7 Vict. c. 75, passed on
22d August, 1843.
The Treaty of Great Britain with the United States of North America,
on 9th August, 1842, provides, by the tenth Article, that the two countries should, upon mutual requisitions by them or their ministers, officers,
or authorities respectively made, deliver up to justice all persons who,
being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance
of forged paper, committed within the jurisdiction of either of the high
contracting parties, should seek an asylum  or should be found within
the territories of the other: provided that this should only be done upon
such evidence of criminality as, according to the laws of the place where
the fugitive or person so charged should be found, would justify his apprehension and commitment for trial if the crime or offence had been
there committed, and that the respective judges and other magistrates of
the two governments should have power, jurisdiction, and authority, upon
complaint made under oath, to issue a warrant for the apprehension of
the fugitive or person so charged, so that he might be brought before
such judges or other magistrates respectively, to the end that the evidence
of criminality might be *heard and considered; and if on such  *429
hearing the evidence should be deemed sufficient to sustain the [ 4  ]
charge, it should be the duty of the examining judge or magistrate to




312      PEl ILLIMORE  ON  INTERNATIONAL LAW.
certify the same to the proper executive authority, that a warrant might
issue for the surrender of such fugitive, and that the expense of such
apprehension and delivery should be borne and defrayed by the party
making the requisition and receiving the fugitive; and the eleventh
Article provides that the said tenth Article shall continue in force until
one or other of the high contracting parties shall signify its wish to terminate it, and no longer.(h)
This Treaty was confirmed by the Act 6 & 7 Vict. c. 76, passed on
22d August, 1843; and both the Treaties with France and the United
States were further confirmed by the 8 & 9 Vict. c. 120, which facilitated
their execution.
A former Treaty on the same subject had been signed between the
North American United States and Great Britain, in 1794; and under
the twenty-seventh Article of that Treaty, a citizen of the North American United States, who had committed murder within-the jurisdiction of
England, that is, upon board a British ship on the high seas, was delivered
up to the British by the American authorities, although it was strongly
contended that the article of the Treaty was contrary to the Constitution
of the United States; that the Treaty could only relate to foreigners;
that, the crime having been committed on the high seas, the Courts of
the United States had competent jurisdiction; and that a grand jury
ought to make inquest, before a party was sent away for trial. All these
objections were overruled, and the prisoner delivered up to the British
Consul.(i)
s CCCLXXXIV. The United States of North America have
[:f430] the aforesaid Treaty of Extradition with England, and also one
with France.
In 1853, the Treaty with England was enforced in the case of Thomas
Kaine, an Irish criminal claimed by the British Consul, at the port of
New York, for the crime of an assault with an intent to commit murder
within the British dominions; and a formal and careful decision upon
the effect of the Treaty was delivered by the American Commissio~ner,
who said that it was his duty to inquire, whether the evidence of the
guilt of the person charged would justify his commitment for trial, according to the laws in force in the State of New York, if charged with
the crime there, and the requisitions of those laws would be fully complied with by the production of evidence from which the magistrate or
Commissioner might conclude that the offence had been committed, and
that there was probable cause to believe that the prisoner had been guilty
of it.  In this case the criminal was surrendered under the provisions
of the Treaty.(k)
(h) Hertslet's Treaties, vol. vi. pp. 862-3. "An Act of the British Parliament
for giving effect to a Treaty between Her Majesty and the United States of America.
for the apprehension of certain offenders," 6 & 7 Vict. c. 76.
Martens, Rec. de Tr. t. xxxiv. p. 507.
(i) Robbins's Case, Sentence by Judge Bee, State Trials of the United States,
published at Philadelphia (1849), p. 393.
United States v. Nash, Bee's (American) Admiralty Reports, 266.
(k) The reciprocal Extradition of criminals among the States which constitute




EX TRADITIO N.                          313
CCCLXXXV. It appears that, with respect to proceedings had in
virtue of these Treaties and Acts, that the Applications of the British
Government to France and the United States have been generally successful, but that the reverse may be predicated of the applications by
France and America to Great Britain.(l)
It has been decided in England that no retrospective effect can be
given to these Acts or Treaties.
The only important decision given in England on these Statutes was
that in ", The Queen v. Clinton," in which Mr. Baron Platt observed:
"t The object of the Act was to give effect to a Treaty for reciprocally
rendering up persons *'being charged' with forgery, &c., crom- [*431]
mnitted' within the jurisdiction of either party, &c. Now,'being
charged,' in his opinion, clearly meant,'being then charged;' but the
word'committed' might stand for'which have theretofore been committed,' or'which were then committed,' or'which should be committed
after the passing of the Act.'  Looking into the Treaty, for the purpose
of giving effect to which this Act was passed, he found the terms were,
such person as'having committed,' &c., and'being fugitive from justice,' &c. On this he would remark that it appeared to him very doubtful whether, under this Treaty, a merchant committing forgery of a bill
of exchange in the United States with the intention of providing for it
at maturity, and coming over here anirno revertendi, and therefore not
a fugitive from justice, could be taken and given up to the American
government.  tBeing fugitive' meant being so at the time when the law
was to be put in force. If so, then it would appear that the word'conmmitted' meant committed after the Treaty.  According to the common
course of reasoning and of justice, it must be considered that the Treaty
was meant to attach only on those whose crimes as well as flight had
taken place since the making of the Treaty. That must be the construction of the Treaty, and the construction of the Act of Parliament must
correspond; for he considered that they were bound to advert to the
Treaty to discover the meaning and intention of the Act of Parliament;
and therefore he thought that the word' committed' could not be referred
to transactions before the date of the Treaty.  The word could have no
Ather application. That was his opinion; and he thought he was bound
to act upon it, because it seemed to him that, in this country, laws to tax
)r restrain liberty must be clear; and if this was defective in expressing,he intention of the Legislature, it was for them to alter it. His opinion
vas founded on the Treaty; and, taking that ground, he thought that the
G'ct of Parliament could only apply to those who had committed the
rime after the *passing of it.(m)  It seemed to him, therefore,
hat he could only order that this man be discharged.  The pri- [432
oner was then accordingly discharged."
ie union is expressly provided for by the constitution. Story on the Constitution,
3. 1807-8-9.
(1) Egan on the Law of Extradition, p. 57.
(n) The Law Times, Nov. 1, 1845.
Egan on the Law of Extradition, pp. 54, 55.
The Act 1 W. IV. c. 66, which applies to the forging or uttering in England
vcuments purporting to be made out of England.
AUGUST, 1854.-21




PART THE  FOUR T H.
[*433]                   *CHAPTER  I.
INTERVENTION.
CCCLXXXVI. In all systems of Private Jurisprudence, provision is
made for placing upon the abstracting Right of Individual Property
such restrictions as the general safety may require.  The maxim
" expedit enim  reipublice, ne  tuis sua' re male utatur," belongs to the
law of all countries.(a)
The Pretorian  Interdict(b) of the Roman, the Injunction  of the
English Law, give effect to this principle by preventing the mischief
from being done, instead of endeavouring to remedy it when done.
CCCLXXXVII. Some analogous right or power must exist in the
system  of International Jurisprudence; " Neither," says Lord Bacon,
"c is the opinion of some of the schoolmen to be received, that a war
cannot justly be made but upon a precedent injury or provocation; for
there is no question but a just fear of an imminent danger, though there
be no blow given, is a lawful cause of a war."(c) The Right of Self4,34]']Defence incident to every State may in certain circumstances
carry with it the necessity of intervening in the relations, and,
to a certain extent, of controling the conduct of other States; and this
where the interest of the intervener is not immediately and directly, but
mediately and indirectly, affected.  This remark brings us to the consideration of the doctrine of INTERVENTION.(d)
(a) Inst. I. viii. 2.-"Chaque droit a ses limites: ii est limite par les droits
analogues de tons les membres d'une socie6t."-Ahrens, Cours de Droit naturel
ou de Philosophie, du Droit, p. 296. (Brux. 1844.)
(b) Among the principal instances in which individual property is subjected tc
restriction on account of the general good are the following:
Cautio damni infecti, Dig. xxxix. t. 2.
Actio de tigno juncto, Dig. xlvii. t. 3.
Interdictum de glande legendh, Dig. xliii. t. 28.
Actio acquse pluvima arcendme, Dig. xxxix. t. 3,
Interdictum de arboribus cemdendis, Dig. xliii. t. 27.
(c) Essay on Empire.
(d) Gfinther, i. 287. s. 8-12.
Heffters, 90.
Wheaton, Droit Intern. t. i. pp. 77. 92.
Manning, Law of Nations, p. 97.




IN TE RV ENTION.                        315
The reason of the thing and the practice of nations appear to have
sanctioned this Intervention in the following cases,I. Sometimes, but rarely, in the domestic concerns and internal
rights of Self-Government, incident, as we have seen, to every
State.
II. More frequently, and upon far surer grounds, with respect to the
territorial acquisitions or foreign relations of other States, when
such acquisitions or relations threaten the peace and safety of
other States.
In the former case the just grounds of Intervention are1. Self-Defence, when the Domestic Institutions of a State are inconsistent with the peace and safety of other States.
2. The Rights and Duties of a guarantee.
3. The Invitation of the Belligerent Parties in a civil war.
4. The Protection of Reversionary Right or Interest.
In the latter case the just grounds of Intervention are5. To preserve the Balance of Power; that is, to prevent the dangerous aggrandizement of any one State by external acquisitions.
6. To protect Persons, subjects of another State, from persecution on
account of professing a Religion not recognised by that State,
but indentical with the Religion of the Intervening State.
These grounds, either separately or in conjunction, will be found in
the following pages to have been deliberately and 4solemnly pro- [*435]
claimed as justifying causes of Foreign Intervention.
CCCLXXXVIII. The First Limitation of the general right, incident
to every State, of adopting whatever form of government, whatever
political and civil institutions, and whatever rules she may please, is
this:
No State has a right to establish a form of government which is built
upon professed principles of hostility to the government of other
nations.(e)
CCCLXXXIX. It may be admitted that Venice in 1298, Great
Britian in 1649, France both in 1789 and after the accession of the
Cavaignac Administration in 1848, and after the last revolution in 1851,
were entitled, upon the principles of National Independence, and without
the Intervention of Foreign States, to make the great changes in their
respective constitutions which were effected at those periods, because such
changes concerned themselves alone.
CCCXC. Why, then, cannot the same remark be applied to the French
Revolution in the year 1792?  The answer is to be found in the Decree
promulgated by the Convention on the 19th of November, 1792.
The Moniteur of that day records it in these words:  epeaux propose
et la Convention adopte la redaction suivante:
" La convention nationale declare qu'elle accordera secours a tous les
peuples qui voudront recouvrer leur libert6, et elle charge le pouvoir
ex6cutif de donner des ordres aux ge6neraux des armies Frangaises pour
(e) Kent's Comment. i. 21. &ce




316      PHILLI1BIORE ON  INTERNATIONAL  LAW.
secourir les citoyens qui auraient &t6, ou qui seraient vexe6s  pour la
cause de la liberte.
" La convention nationale ordonne aux generaux des arm6es Frangaises
de faire imprimer et afficher le present d6cret dans tous les lieux ou ils
porteront les armes de la republique.
[*436] da Seryint.  Je demande que ce d6cret soit traduit et *imprine
dans toutes les langues.-Cette proposition est adopt6e."
This decree was treated by Great Britain,(f) which, up to the period
of its promulgation, had remained strictly neutral, as a declaration of
war, of the worst and most hateful'kind, against all nations; nor indeed
is it possible to conceive a grosser violation of the particular principle
of International Law(g) which we are discussing, than is to be found in
this barbarous and  unprecedented  proclamation-the herald  of that
long, bloody, terrible, and universal war, which shook not only, Europe,
but the world to its centre, and of which the wounds are not yet healed.
4CCCXCI. It is impossible to deny that the proclamation put
437] forward, after the expulsion of Louis Philippe, by the De Lamartine Administration, partook of the same character, though in a mitigated degree.
According to that proclamation, " Les Traites de 1815 n'existent plus
en droit aux yeux de la RWpublique Frangaise: toutefois les circonscriptions territoriales de ces traites sont un fait qu'elle admet conrume base et
comme point de depart dans les rapports avec les autres nations."(h)
CCCXCII. In cases like the foregoing, the Right of Self-Defence justifies other nations in intervening and demanding, and if necessary by
force of arms compelling, the abolition of a government, avowing alrincipie of hostility to the existing governments of all other nations.
(f) " The decisive proof upon the subject was to be found, not in loose recollection or in vague reports, but in the Journals of the House.-The speeches with
which the King had opened and concluded each session of parliament afforded
an authentic record of the language of Government respecting the origin, grounds,
and progress of the war. There were, besides, upon the Journals, many declarations which this House had made at different periods, and sometimes at the express suggestion of Ministers themselves, and with the avowed intention of
obviating misrepresentations.
*      X       *      *       X       *      *
"This then was his defence of Parliament against the imputation of having
varied its language or disguised its objects —of having engaged in the war for the
restoration of monarchy in France, or of having pursued it, at any period, with
any other view than that of obtaining a secure and honourable peace for this
country." —Speech of Lord Grenville in the House of Peers, on the motion of the
Duke of Bedford for the dismissal of Ministers, 22nd March, 1798. Pub. by J.
Wright, 169. Piccadilly.
(g) Vattel justifies by anticipation the conduct of Great Britain in declaring
war after the promulgation of this decree. " Done toutes les nations sont en
droit de reprimer par la force celle qui viole ouvertement les lois de la soci6t6 que
la nature a etablies entre elles, ou qui attaque directement la bien et le saint de
cette societd." —Prelim. s. 22. " Les nations ont le plus grand inte6rt a faire
universellement respecter le droit des gens, qui est la base de leur tranquillite. Si
quelqu'un le foule ouvertement aux pieds, toutes peuvent et doivent s'6lever contre
Iui; et r6unissant leurs forces pour chatier cet ennemi commun, elles s'acquitteront de leurs devoirs envers elles-m6mes et envers la soci6te humaine, dont elles
sont membres." —L. i. c. 23, s. 283.
(h) "Manifeste aux Puissances, 4 mars:" Trois Mois au Pouvoir de M. De
Lamartine, p. 75.




INTERVENTION.                               317
But this, like the other grounds of Intervention, is very liable to be
abused. The most flagrant instances of such abuse are to be found in
the Partitions of Poland.(i) The detailed history of these public crimes
is without the province of this Work.  Bat no treatise on International
Law may pass over, wholly without comment, these grievous acts of
national wickedness.
The first spoliation was effected in September, 1772, by *Cathe- [438]
rine II., Empress of Russia, lMarie Therese, Empress of Austria, [    ]
and Frederick II., King of Prussia.
In the manifesto of the two latter may be read the miserable pretexts
under which this crime was sought to be veiled, or rather which it was
thought decent to allege.  Austria claimed territory, alienated from her
to Poland several centuries ago, her first date being 1324 A.D., because,
among other reasons, by the Canon Law alienations of territory by a
crowned head were as invalid as the acts of a minor. Prussia took up
her history not earlier than 1107 A.D., and recited various subsequent
losses of property by the Margraves of Brandenburgh, which Poland had
acquired at a time when the Margraves were too feeble to resist, but to
which property it was alleged that the Margraves had never formally
renounced their claim.
It is manifest that the original sin of the spoliation was greatly enhanced by these pretended reasons for it; every one of them aimed a
deadly blow at some sound principle of that faith which ought to bind
together the nations of the globe.  Russia, by far the boldest, and, if
the expression were allowable, the honestest criminal, seized upon her
prey at once, scorning all subterfuges, and making openly her might her
right.
These three spoliators, however, were not the only offenders against
International Law.  France and England beheld with silence and indifference this violation of all the safeguards of national liberty and independence: they cannot be acquitted of all blame; they contracted, in
some degree, the guilt of the by-stander who tamely and silently suffers
a deed of wrong to be perpetrated in his presence.
In 1790, Poland, availing herself of the occupation afforded by a
Turkish war to Catherine II. (who had never ceased to treat her as a
province of Russia), contracted an alliance with Prussia, whereby that
(i) Mackintosh's Works, vol. ii. p. 330; and Edinburgh Review, vol. xxxvi.
p. 463.
Ferrand, Histoire des trois Demembrements de la Pologne.
Rulhiere, Histoire de I'Anarchie de Pologne.
Flassan, Histoire de la Diplomatie Francaise, t. vi.
Dohm, Denkwurdigkeiten meiner Zeit.
Von Raumer, Polens Untergang: Histor. Taschenbuch, t. iii.
Koch, Histoire abregee de Traites de Paix, continure par Schoell (ed. Bruxelles),
t. iv. pp. 266-284, c. 60, ib. pp. 296, 304, 307-13, c. 62.
Koch, Tableau des Revolutions de l'Europe, t. ii. pp. 168. 224. 284.
Gentz, Fragmente aus der neuesten Geschichte des politischen Gleichgewichts
in Europa, Schriften, Band iv. ss. 51-59.
Wheaton's Hist. pp. 267 —281.
Allge. Gesch. B. 23. c. 11.




318     PHILLIMIORE ON INTERNATIONAL  LAW.
power undertook to aid Poland against the attempt of any foreign nation
to interfere with her internal government or affairs.(fk)
["439]   *Under cover of this alliance, in 1791 Poland gave herself a
new constitution, rendering her crown hereditary in the Electoral
House of Saxony, abolishing that source of her misery the liberum veto,
and effecting a reformation, of which Mr. Burke said: " so far as it has
gone, it probably is the most pure and defecated public good which ever
has been conferred on mankind."(Z)
But the French Revolution broke out, and Prussia not only forgot her
pledge, but joined with Russia and Austria in plundering, for the second
time, the country which had relied upon her honour.  The second spoliation of Poland took place in 1793; the third, after the insurrection of
the illustrious Kosciusko in 1795.
The fate of Poland was again discussed at the Treaty of Vienna
(1815); but after some remonstrance on the part of the British and
French plenipotentiaries,(mn) and the delivery of a remarkable state paper
by the latter, Russia retained that part of ancient Poland erected by
Napoleon into the Duchy of Warsaw, and by this Treaty the Partition of
Poland was ultimately confirmed.
This Treaty, however, declared Cracow to be a free, independent, and
neutral city, under the protection of Russia, Austria, and Prussia, with
so many square miles on the left bank of the Vistula, and a certain
amount of population.  This small remnant of their original prey has
been subsequently devoured by the three protecting Powers.  In 1832
the Emperor Nicholas annexed the kingdom  of Poland to the Russian
empire, and destroyed every vestige of its separate nationality. In 1836
Cracow was occupied by Russian and Austrian forces, upon the allegation that it had become the centre of revolutionary plots. In 1846
(November 6), Cracow, in spite of the protests of Great Britain, France,
and Sweden, was annexed to Austria.
440  emorable lessons are written for the ensample of nations in
[*440] the history of these great crimes and their consequences.
First, the folly and short-sightedness of vulgar politicians who hold
the doctrine that a State has no concern with the acts of her neighbour,
and that if wrong be done to others, and not to herself, she cannot afford
to interfere.
Secondly, the certainty of that Nemnesis which sooner or later overtakes the countries which have been, or have suffered their rulers to be,
the doers of wrong.
It requires only a moderate acquaintance with history subsequent to
those first spoliations of Poland, to know that the interference of England
and France to prevent these atrocious acts, and to defend betimes the
liberties of Europe, would have been no less wise, if regarded in an economical point of view, than just, if considered upon higher principles;
and the hearts of the Rulers of Austria, Prussia, and Russia, must have
(k) Martens, Rec. de Traites, t. iv. p. 472.
1) Appeal from the New to the Old Whigs.
(m) Kliber, Acten des Wiener Congr. Band. ix. 40-51.
Wheaton's Hist. pp. 425-435.




INTERVENTION.                              319
been more hardened than that of Pharaoh, if they did not acknowledge
during the wars of the French Revolution, and in the day of their bitter
suffering and humiliation, the imrpolicy of injustice, and the danger of
creating a precedent of rapine and wrong.
Great jurists of all countries have passed sentence upon the partitions
of Poland.  M. de Talleyrand(n) described it as the prelude, as partly
the cause, and perhaps the excuse of the convulsions of Europe during
the French Revolution.  "4 The partition of Poland in 1772,"' says M.
Koch,(o) appeared to sanction all subsequent usurpations."  It was the
most flagrant violation, according to Mr. Wheaton,(p) of natural justice
e'Ad International Law, since Europe had emerged from barbarism.  No
less a publicist than Von Gentz(q) observes that the partition of Poland
was a crime *fraught with peculiar mischief to the best interests *441]
of Europe-it showed to the astonished world a league of mo- [44
narchs in favour of injustice;-those who ought to be the protectors,
acting as the oppressors of national independence; while the doctrine of
the Balance of Power, cited as a justification of their conduct by those
who were destroying it, mournfully illustrated the adage, corrptio
optimi pessimn.
CCCXCIII. The Second Limitation arises in the instance of a Guarantee given by a Foreign Nation, either generally to secure the inviolability of the provisions of a particular Treaty, or specially to support a
particular Constitution or form of government(r) established in another
country, or to secure some particular possession or other individual object
appertaining to it. The question of a Federal Guarantee, mutually given
by United States, has been already discussed: the very constitution of
such a body politic implies the existence of a mutual guarantee for the
independence of each member of it. This is the case of a guarantee from
within, a question rather of Public than International Law, and very
different from a guarantee from without, which rests upon a distinct principle, and is one of the most difficult and delicate questions which fall
under the cognisance of International Law.  The consideration of the
duties and rights of guarantees belongs to that branch of the subject in
which the nature of TREATIES is discussed.
CCCXCIV. Another Limitation of the general principle under discussion may possibly arise from the necessity of Intervention by Foreign
Powers in order to stay the effztsion of blood caused by a protracted and
desolating civil war in the bosom of another State.(s)  This ground of
(n) Note to the Congress of Vienna.
(o) Introd. p. 30.         (p) Hist. p. 332.
(q) Fragmente aus der neuesten Geschichte des politischen Gleichgewichts in
Europa, Schriften, t. iv. ss. 54-59.
(r) Vide post.
(s) " Sciendum quoque est, Reges, et qui par Regibus jus obtinent, jus habere
pcenas poscendi non tantum ob injurias in se aut subditos suos commissas, sed et
ob eas que ipsos peculiariter non tangunt, seda in quibusvispersonis jus naturce aut
gentiurn immaniter violantibus. Nam libertas humanm societati per pehuas consulendi, qune initio ut diximus penes singulos fuerat civitatibus ac judiciis institutis
penes summas potestates resedit; non proprie qua allis imperant, sed qua nemini
parent. Nam subjectio aliis id jus abstulit. Imo tanto honestils est alienas injurias quam suas vindicare, quanto in suis magis metuendum est ne quis doloris




320,   PHILLIMIORE ON INTERNATIONAL LAW.
Intervention, *urged on behalf of the general interests of huimanity, has been frequently put forward, and especially in our
own times, but rarely, if ever, without others of greater and more legitimate weight to support it; such, for instance, as the danger accruing to
other States from the continuance of such a state of things, or the right
to accede to an application from one of the contending parties.
As an accessory to others, this ground may be defensible; but as a
substantive and solitary justification of Intervention in the affairs of another country, it can scarcely be admitted into the code of International
Law, since it is manifestly open to abuses, tending to the violation and
destruction of the vital principles of that system of jurisprudence, —such
abuses as generated the several partitions of Poland, the great precedent so
often quoted, and so often imitated by the violators of International Law.
The necessity of staying the effusion of blood occupied a very prominent
place among the various reasons alleged for the Intervention in the affairs of
Turkey and her then Greek subjects in 1827; but it was by no means,
as will be presently seen, the only justification advanced for that Intervention, though, perhaps, if it had been the long continuance, as well as
the horrible nature of the massacres committed, would alone, if ever such
reasons could, have justified the interference of Christendom.(a)
CCC(XCV. A Third Limitation arises when both contending parties
in a civil war invite the Intervention of a third power: in this case the
right to accede to the request is perfectly clear. This was in fact the
foundation of the Intervention in the case of Belgium.  Whether, when
the Intervention has been once undertaken, either or both of the contending *parties can resile from  their engagement, and whether
E*443] the Intervener be obliged to desist re infectS, is a matter of some
nicety, and must in some measure receive its decision according to the
particular(u) circumstances of each case.(x) The Intervener might of
course stipulate, before he undertook the Intervention, that both parties
should abide by his decision. Although the right of intervening admits
of no doubt where both parties invoke the Intervention, it is less clear
when the application is made by one party alone.  It can however hardly
be asserted, that even this kind of Intervention, so solicited, is at variance with any abstract principle of International Law, while it must be
admitted to have received continual sanction from the practice of nations
from the time, to go back no later, when England under Queen Elizabeth
aided the revolted Netherlands against Spain, to the recent occasion when
Russia assisted Austria in the subjugation of the insurgents in Hungary.
It will be remembered that at present we have no concern with the wissui sensu anut modum excedat, ant certe animum inficiat." —Grotius de J. B. lib.
ii. cap. xx. sec. xl. p. 535.
(a) Papers relative to the affairs of Greece, p. 98.-London, 1835. (Printed by
the Foreign Office.)
(u) France and England were the only two of the five Intervening Powers, in
the case of Belgium, who seem to have entertained no scruples upon this kind.Papers, &c., relative to Belgium. —Les Plenipotentiares, &c., p. 35; and in the
case of Portugal, and in the case of Greece, vide infra, Wheaton, Hist. 541.
(x) Heffters maintains stoutly the obligation of withdrawing at the request of
the party who invoked the aid (p. 95. end of s. 46.)-Martens, t. i. 80-1-2.




INTER VE N TI ON.                         321
dom or policy of such an Intervention; that is a National, not an International question.  There is, however, one proposition with respect to
this kind of Intervention which cannot be too broadly or emphatically
stated.
In order to justify such Intervention, the kingdom in which it is to
take place must be really divided against itself; there must be therein
two parties in the bonta fide condition of waging actual war upon each
other.
No mere temporary outbreak, no isolated resistance to authority, no
successful skirmish is sufficient for this purpose; there should be such a
contest as exhibits some "n equality of force, and of which, if the combatants were *left to themselves, the issue would be, in some degree, [*444]
doubtful."(y)                                                   [
In most cases, therefore, some time must elapse before an internal
commotion can be clothed with the character of a revolution, and before
the rebellious subjects can become the allies of a Foreign State.
The interference of Great Britain, France, and Russia in the affairs of
Greece was vindicated upon three grounds, viz., 1st, of complying with
the request of one party; 2ndly, of staying the effusion of blood; 3rdly,
and principally, of affording protection to the subjects of other Powers
who navigated the Levant, in which for many years, atrocious Piracy had
been exercised, while neither Turkey nor revolted Greece were de facto
either able or willing to prevent the excesses springing out of this state
of anarchy. The third ground unquestionably justifies such an interference as might redress the evil complained of, and secure the subjects
of third Powers against a repetition of it. But the interference took
place at the request of only one of the contending parties, and that the
party of revolted subjects; and it is edifying to observe with what scrupulous care the British Minister for Foreign Affairs, of that time, justifies, as an exception to general rules, the adoption of coercive measures
against Turkey.
", To accomplish a great good," says this admirable State Paper,(z)
"' to put an end to a great evil, pressing seriously upon the interests of
His Majesty's own subjects, after several previous attempts by advice
and remonstrance, separate or combined, had failed, and at the solicitation
of one of the contending parties, His Majesty acceded to a more direct
and concerted interference in the affairs of Greece. The Treaty of London was signed; and when proposals, made under it to both sides, and
accepted by the Greeks, had been rejected by the Turks, his Majesty
proceeded, *along with his Allies, to adopt measures of a coercive [*445]
nature, calculated to give effect to those proposals. But, in this L 3
departure from the general rule which forbids other Powers to interfere
in contests betwixt Sovereign and Subject, His Majesty strictly limited
himself to what he deemed the necessity of the case; and in pursusuing an object of policy, endeavoured to adhere, as much as possible, to
the principles of National Law.
(y) Sir J. Mackintosh's Speech on the Recognition of the Spanish American
States, vol. iii. p. 462, of his Works.
(z) State Papers-Greece, 1826-1832, pp. 54, 55. Lond. 1835.




322     PHILLIMOlRE ON INTERNATIONAL LAW.
",The design of the Treaty was the pacification of the Levant; but it
is evident, both from the provisions of that Treaty, and from the language of the Protocol which preceded it, as well as from the tone of
every communication relating to the Greek question, which has been
made by H-Is Majesty's commands since the Congress of Verona, that it
was equally our design to accomplish this end by pacific means.  It was
but late, slowly and unwillingly, that we entertained the idea of any
species of coercion; and then only with such caution, and with such a
reservation of our right to look narrowly at each successive stage in that
career, as were in themselves sufficiently indicative of the spirit in which
we interposed. The conduct of the Allies is inexplicable upon any other
ground than that which is here stated to have been its foundation.  If
the intention of three of the greatest Powers in Europe, to put an end
to a manifest grievance, had not been controlled and modified by many
weighty considerations of justice and policy, they would have pursued a
far different course.  They would not have waited six years before they
carried their interposition beyond the limit of amicable remonstrance;
nor, having at length satisfied themselves that they must advance somewhat further for the execution of their design, would they have stipulated
beforehand to pause upon every successive step, in order to give time for
reflection and concession on the part of a power whom they did not design to crush, or even to humble, but, if possible, to lead into the path
of safety and repose.
[*446]   cc If they had not been restrained by such considerations, -they
I 446]  would at once have put forth a strength irresistible by far greater
empires; they would have substituted dictation, backed by force, for advice and remonstrance; and they would not have asked the consent of
those to whom it was in their power to give law. But they felt, as we
still feel, that this was a case surrounded with difficulties, of which the
mere physical resistance of the contumacious party was the least. They
knew that hasty and violent measures might draw along with them evils
worse than those which they meant to remedy. They knew too that the
long continuance of extraordinary evils might justify an extraordinary
interposition. Still they felt that they were bound to take care that the
interposition should not be more than commensurate with the evil; that
it was neither politic nor just to risk the overthrow of an empire, for the
chance of improving the condition of a part of its subjects; and that the
cessation of Piracy in the Levant would be dearly purchased by a general
war in Europe."
The pacification of Greece and the Levant was the object of the Treaty
of 1827, contracted between Russia, England, and France; the object of
it was not "cto construct a State capable of balancing the Turkish power
in Europe, and of carrying on the relations of peace and war upon a
footing of equality with the Porte;" this object, nevertheless, might,
after the rejection by Turkey of the compromise proposed in that Treaty,
have been partly intended and effected by the subsequent Treaty of the
7th of May, 1822.(r)  The distinction between Intervention and Media(a) Papers p. 155.




INTERVE N T ION.                             33
tion is pointed out in the happiest manner by Mr. Canning, in a passage
of his state paper upon the Pacification of Greece at the close of the year
1824.  "If" (he wrote) "the sovereignty of the Turks were not to be
absolutely restored, nor the independence of the Greek to be absolutely
acknowledged (to propose either of which extremes would have been not
to mediate, but to take a decided part in the contest), there was necessarily no other choice than to qualify in some mode *and degree [47]
the sovereignty of the one, and the independence of the other, [ *"44j
and the mode and degree of that qualification seemed to constitute the
question for inquiry and deliberation."(b)
CCCXCVI. This observation brings us to the consideration of the
Fourth Limitation of the general principle which founds the Right of
Intervention,-which is, the right of third powers to watch over the
preservation of the balance of power among existing States, whether by
preventing the aggressions and conquests of any one power, or by taking
care that, out of the new order of things produced by internal revolutions, no existing power acquires an aggrandisement that may menace
the liberties of the rest of the world.(c)
This right, indeed, is the right of the State to do that which Cicero,(d)
with so much eloquent reason, truly maintained was the innate right of
every individual: it is the ~Right of Self Defence, which is law- [448
fully exercised in preventing as well as repelling attack.(e)
How anxiously this right,'"founded so much on common sense and
obvious reasoning," was asserted and cherished by the Greeks, is well
known to all readers of Thucydides and Xenophon, and above all of
(b) Reply of Mr. Secretary Canning to a letter of M. Radios, relative to the
"Russian Memoir on the Pacification of Greece."-Vol. xii. of State Papers
(1824-25), p. 900.
(c) Gfinther, i. 345.
Martens, s. 121, a. b.
Ancillon fiber den Geist der Staatsverf., 320, u. s. w.
Klinkhammuer's Disp. Hist. Pol. de Belli propter success. Regni Hispan., &c. (1829,
Amstelodami), pp. 52-66.
De Garden's Trait6 Complet de Dipl. t. i. p. 257.
Foreign Quarterly Review, vol. viii. (1831), vol. xiii. 1834.
Mackintosh's second Review of Burke's Letter on a Regicide Peace.
2 Ortolan, Du Domaine International (tit. iii. De l'Equilibre Politique), contains, among other passages worthy of attentive perusal, an elaborate review of
the projects of Henry IV. and Sully to found a R6publique tres Chrestienne, and
thereby maintain a perpetual European equilibrium-an idea which M. Ortolan
thinks pervaded the minds of the framers of the Treaty of Westphalia.-Gentz,
Ausgewithlte Shriften, iv. i. Fragmente aus derneuesten Geschichte des politischen
Gleichgeweichts.
F6en6lon, (CEvres de, t. iii. p. 361, ed. 1835: Examen de la Conscience sur les
Deveirs'de laRoyaute, in which work, written forthe instruction of the Duke of Burgundy, Mir. Wheaton remarks (Hist. p. 82) that the principles of Intervention to
maintain the balance of power are laid down with accuracy and moderation.
Mably, vol. ii. pp. 88, 107, 212.
(d) Pro Milone.
(e);" Ainsi quand un 6tat voisin est injustement attaqu6 par un ennemi puissant,
qui menace de lopprimer, il n'est pas douteux que vous ne deviez le faire. N'objectez point qu'il n'est pas permis h un souverain d'exposer la vie de ses soldats
pour le salut d'un etranger, avec qui il n'aura contract6 aucune alliance defensive,
ii pent lui-m6me se trouver dans le cas d'avoir besoin de secours; et, par cons6quent, mettre en vigueur cet esprit d'assistance mutuelle, c'est travailler an salut
de sa propre nation."-Vattel, 1. ii. c. 1-4.




824   PHILLIMORE ON INTERNATIONAL LAW.
Demosthenes, whose eloquence was never more " resistless"(f) than
when exerted for the purpose of rousing his countrymen to adopt and
act upon this principle.(g)
In the History of Rome the opportunities for the development of this
principle were fewer; but the pages of Livy and Polybius have recorded
some remarkable instances of its operation.  The reflection of the latter
historian upon the conduct of Hiero, King of Syracuse, who, though an
ally of Rome, sent aid to Carthage, during the war of the Auxiliaries,
may claim  a place even in a modern work upon International Law.
Hiero esteemed it necessary, Polybius tells us, "-both in order to retain
his dominions in Sicily, and to preserve the Roman friendship, that Carthage should be safe; lest by its fall the remaining power should be able,
without let or hindrance, to execute every purpose and undertaking.
[*449] *And here he acted with great wisdom  and prudence; for that
is never, on any account, to be overlooked; nor ought such a
force ever to be thrown into one hand, as to incapacitate the neighbouring States from defending their rights against it."
Most justly does Mr. Hume remark upon this passage, " Here is the
aim of modern politics pointed out in express terms."(h)
It was the natural tendency of the Feudal System  introduced into
Europe, after the fall of Rome, to restrain each State within its own
boundaries;(i) and it may be said, that from the reign of Charlemagne,
to the invasion of Italy by Charles VIII. of France, towards the close
of the fifteenth century, the state of the civilised world was not such as
to call into any general operation this principle of International Law.(k)
To repel this invasion, the ingenious and refined Italians strove to induce
the European powers to adopt that policy of preventing the undue
aggrandisement of any one power, by which they had, for some time,
maintined the equilibrium of the petty States of their own Peninsula.
During the century which followed,(l) and from the time that the liberties of the German Protestants were secured, under the guarantee of
France and Sweden, by the Peace of Westphalia in 1648, this principle
of International Law has been rooted in the usage and practice of the
whole civilized world. The preservation of the Balance of Power has
been the professed subject of all, and the real end of most of what may
be called the Cardinal Treaties. The recital and analysis of the events
(f)                            " That resistless eloquence,
Which shook the Arsenal and fulmined over Greece
Fromt Macedon to Artaxerxes' throne."
Milton, Par. Reg. iv. 2 70.
(g) Among the passages, see K a r ad  c X. r.  e " TO)S iXXovg Vt 7rapaKatX6'lAe, KaL TO70
ravra tla5cvraf o rE'KrIolrev c)  7rptElsg'rrau7aXo?, Ei5 lIeXoar6vvnov, Sei'P6oov, eis Xiov O'S
/laatlXa  tyco —o tvi yatp r-lMv  es o eo vaCvpep6o-orv dk0Er7E  rOS    77 t   0 V r ro V
~ a a tL r   v     K a  raarp b     aa 0 a a — v' sav luav re stars, Ko vEovoqS';JTE ka7-at K'iv
KrIVOEvw, Kat r7Tv dvaXo#Sdare, )" K.r.X.
(h) Polybius, 1. i. c. 83, "r6r pe Kai a  XXov d0tXorriATEro 7rstloAyE'o5 avAgbpsLV avrs KOai
ipdg ri7-v El KCXVia dvvao-resav Kai 7rspg riv'Ppyaowv sOtiav to' o-6'sOat K(apxseoviovo. tva pn
Vavrrao't-r  it - ro npoirsOE  dSKOVIri ovvre-EastOa rolTgE ixreovrtrv  -rsv6l ]potw  sal a ovorvxis
Xoyt61eOog,Io" I.T.X. —Hume's Essays, vol. ii. p. 323, Essay vii., On the Balance of
Power.
(i) See Koch, Tableau des R6volutions, t. i. pp. 314-15, &c.
(h) Koch, as to English Conquests in France, t. i. p. 314.
(1) Wheaton's Hist. p. 81.




INTERVENTIO N.                           325
which led to them, *belongs to the history of the progress, [*450
rather than a treatise on the principles, of International Jurisprudence.  It will be sufficient for our present purpose to notice briefly
those Treaties in which this feature is most conspicuous.
CCCXCVII. In the year 1519,(m) enormous territorial possessions
rendered the Emperor Charles V. more powerful than any sovereign
who had existed in  Christendom  since the reign of Charlemagne;
a natural apprehension was felt by the other States of Europe, which
the personal character of Charles was well calculated to foment.(n) No
better occasion could arise for the practical application of that refined
and sagacious policy, which had so lately crossed the Alps.  France
took upon herself the task of adjusting the equilibrium of power in
Europe: Francis I. actually concluded for this object, a Treaty of Alliance with the Turks, the first Treaty contracted by an European Sovereign, and by which the Porte may be said to have been introduced into
the political sytem of the West, and to have become a consenting party
to a branch of positive International Law.  The next step taken by
France, was to constitute herself protectress of the minor German States;
and in the intensity of her zeal to effect her object, she availed herself
of the tremendous weapon which the Religious war of the Reformation
offered to her grasp.  The all-important succour which Queen Elizabeth
of England afforded to the revolted Netherlands, was a natural consequence both of the political and religious condition of her kingdom.(o)
But the effects, which this maxim  of preserving the liberty of all
States by preventing the undue aggrandisement of one, produced upon
the policy of France, are such as must have baffled all previous calculation.  Then was unfolded that remarkable page of history, in which
Roman Catholic France was seen, under the governments of Richelieu
and Mazarin, *repressing with one hand, and that a hand of,
iron, the Calvinistic subjects of her own land; while with the  *451
other she supported the Protestants of Germany in their long and successful opposition to the aggressions of the Imperial power.
The triumph of this principle, of preserving the Balance of Power,
was the real object of the terrible and desolating war of the Thirty
Years.  The creation of the Federal System of the Germanic Empire,.
and the recognition of the two new independent States-the United
Netherlands, and the Swiss Cantons-guaranteed by France and Sweden
in the Treaties of Westphalia (1648) and the Pyrenees (1659), were
intended and supposed to form an effectual barrier to the undue preponderance of Austria, and to have secured the equilibrium, and thereby
the peace of Europe.
The independence and liberties thus secured to the States of Southern
Europe were, about the same time guaranteed, by the Treaties of Copenhagen (1658) and Oliva (1660), to the States "of Northern Europe,(p)
which composed, in some sort, a distinct system.
(in) Koch, i. 317.             (n) Ib. i. 318.
(o) Sully's memorable proposition to Queen Elizabeth, koch, i. 519.
(p) Bynkershoek considers this forcible pacification of the North to have been
an infringement of Internaitonal Law: " Ut iniqlaur est (he says) principem invitum




326   PHILtLIMORE ON INTERNATIONAL LAW.
The equilibrum of power in the North, which had been endangered
by the ambition of Sweden, was adjusted by the Treaties between Sweden, Denmark, Poland, and the Electorate of Brandenburgh, under the
guaranteeship of Austria, France, England, and the United Provinces.
&[452]  * Before the close of the century in which these Treaties were
[    ]4521 made, the aggrandizement and the ambition of France united
against her the same powers which had formerly, for like causes existing
elsewhere, leagued themselves with her; and to those powers were now
added Great Britain and the United Provinces.
The principal object of the Treaty of Utrecht (1713), Rastadt and
Baden (1714), was to secure Europe against the universal dominion of
France.
By the fundamental articles of this Treaty, the second great landmark
of modern history, it was declared that the kingdoms of France and
Spain should never be united under one sceptre; and that the Spanish
Netherlands should be transferred to the House of Austria, to which
Milan and Naples, with less reason, were also assigned.(g)
The avowed object of the memorable wars which preceded this Treaty,
and of the convention itself, was the restoration of the Balance of Power
in Europe.(r)  This Treaty may in some degree be said to have " called
in the New World to balance the Old;"(s) the balance being partly
adjusted by the cession and transference, from one European power to
another, of colonial possessions in other parts of the globe;(t) in other
words, positive International Law was carried beyond the limits of Europe.
This Treaty was made, to borrow its own language,(u) "4 ad conservandum  in Europa equilibrium;" indeed the recognition of the system of
balance may be dated from  this epoch: and-if we except a partial
deviation from  it by the Treaty of Vienna in 1738, which seated a
younger branch of the Spanish monarchy upon the throne of the Two
Sicilies-it *continued to govern the territorial arrangements of
[*453] the South of Europe, till the first French Revolution, and is
mentioned in every treaty of peace till that of Luneville, in 1800.
So late as 1846-7(v) the Treaty of Utrecht was invoked by England,
ad bellum cogere, ita et ad pacem. Curm tamen Ordines Generales sibi a Francis
metuerent, et Francis quoque magnitudo liminibus Anglicis videretur officere,
Anglide et Suecise reges, itemque Ordines Generales 23 Jan. 1668, iniverunt foedus,
quo inter alia cautum est, ut Hispani, quos inter et Francos bellum erat, quasdam
conditiones, illo fcedere prsascriptas, tenerentur accipere et, iis acceptis, si Francime
Rex pergeret regi Hispanise bellum facere, se armis intercessuros, coactis sic ad
pacem Francihe et Hispanice regibus. Rursus, cum publice non expediret, Sueciae
regem etiam Daniam habere, Suecive regem cum Dano pacem facere cOegerunt
Franci, Angli et Ordines Generales 21 May, 1659, erepto sic Danie rege mediis ex
faucibus Orci, in quas se preecipitaverat, vicino potentiore in se concitato. His
injuriis prsetexitur studium conservandne pacis" &c.-Quvest. Jur. Pub. 1. i. c. xxv.
s. 10.
(q) Koch, ii. 7. 27.            (r) Wheaton, Hist. p. 125.
(s) Mr. Canning's Speech on sending the troops to Portugal.-Speeches, vol. vi.
p. 61.        (t) Wheaton, Hist. p. 87.         (u) Koch, ii. 92.
(v) Mackintosh's Works (Speech, Feb. 19, 1816), who thinks that the Treaty of
Utrecht is not now in force; but see a pamphlet on the Montpensier Marriage,
written, it is believed, by Lord William Hervey, secretary to the English embassy




INTERVENTION.                           327
when protesting against the ill-omened marriage of the the Due de Montpensier; and though the doctrine of non-revival, by express mention in
subsequent Treaties, may be held to have annulled the binding force of
its specific provisions, the principle of European policy, namely, that the
Crowns of France and Spain shall never rest upon the same head, is put
on record for ever by a Treaty of this description.
CCCXCVIII. From the date of the Treaty of Utrecht to the present
day, the progress and fate of this principle of International Law have
undergone great vicissitudes.  The most convenient way of drawing
attention to them is to divide the period which has elapsed between 1713
and 1854 into three Historical Epochs, namely,
1. The interval between the Treaty of Utrecht and the breaking out
of the first French Revolution (1713-1789).
2. The interval between the first French Revolution and the Treaty
of Vienna (1789-1815).
3. The interval between the Treaty of Vienna and the present time
(1815-1854).
1. In the first interval various causes, natural and moral, conspired to
disturb the equilibrium established at Utrecht.  The rapid and immense
aggrandisement of Russia,(w) emerging from Asia into Europe after the
victories of Peter the Great-the depression of Sweden-the creation of
the essentially military kingdom of Prussia, intervening between the
Northern *and Southern systems of European States, rivalling [*454]
the power of Austria, and causing the strange phenomenon of a
union between the Houses of Hapsburgh and Bourbon, dividing as it
were Germany into two parts, and preparing in the opinion of many the
dissolution of the Germanic Confederation-the increasing maritime preponderance of Great Britain:-these were natural causes which deranged
the Balance of Power established at Utrecht, while they inflicted no open
violence upon the principles of International Law.  But the wars of the
Austrian and Bavarian successions, and above all the first spoliation of
Poland,-all these transactions in which
"Oppression, violence, and sword law,
Usurped the plain,"(x)shook to its very centre the system  of International Justice.  They introduced the worst of all periods which, since the introduction of Christianity, this system has experienced, viz.2. The period from 1789 to 1815. The aggressions of Revolutionary
France during this epoch were repeatedly justified by reference to the
rapine committed by Russia, Austria, and Prussia, upon Poland.(y)  The
bitter and degrading humiliations which the two latter powers underwent
before, by the heroic exertions of their people, they shook off the yoke
of Napoleon, the bloody fields of Eylau and Smolensko, and the terrible
necessity which destroyed the second capital of Russia-these were the
at Paris, 1846-47: and see this subject discussed in a later part of this work under
TREATIES.
(w) Koch, ii. 92-95.       (x) Milton, Par. Lost, b. xi. 1. 673.
(y) G(entz, vol. iv. p. 50, &c.




328      P II ILLIMORE  ON  INTERNATIONAL  LAW.
legitimate fruits of the evil doctrine promulgated by those powers, when
they invaded and partitioned the kingdom of Poland.
The Treaty of Paris and the Congress of Vienna (1814-15) concluded
the war for the independence of Europe; and again the attempt of one
nation to exercise universal dominion over others,-an attempt of a far
more formidable character than any which had occurred during the preceding periods,-was defeated. *The main object of this Treaty(z)
[ 455] was to restore the equilibrium of Europe; but many of the means
by which this end was sought or was said to be effected, appear indefensible upon the true and sound principles of International Law.  A terror
of the consequences of the French Revolution, and of the dominion of
Buonaparte, seems to have generated in the great powers of Europe the
baneful notion that the creation of large kingdoms, by the absorption
of small independent States, was the best security against a recurrence
of the evils, which Europe had endured for nearly a quarter of a century.(a)
To effect this purpose, States were, in several instances, treated simply
as containing so many square miles and so many inhabitants, little or no
regard being paid to national feelings, habits, wishes, or prejudices.  The
annexation of Norway to Sweden, of Genoa to Sardinia, of Venice to
Austria, and the diminution of the territory of Saxony, were among the
instances of grievous violations of International Justice afforded by this
Treaty, and for which the preservation of the Balance of Power was the
pretext and excuse;(b) but the true and legitimate application of that
principle would have been a league of protection of the greater with the
smaller States.  The policy which seeks to establish one principle of
International Law upon the ruin of others, has been, and always must
*456] be, a policy as fatal to the lasting peace of the *world, as the
Ik  attempt to promote one moral duty, at the expense and by the
sacrifice of others, is and must be fatal to the peace of an individual:
tc populus jura naturte gentiumque violans, sue quoque tranquillitatis in
posterum rescindit munimenta."(c)
(z) " Les puissances allieeS rdunies dans 11intention de mettre un terme aux malheurs de l'Europe, et de fonder son repos sur une juste repartition des forces entre
les dtats qui la composent."-Convention signee k Paris, le 23 Avril, 1814, De M.
et De C. t. iii. p. 8.
(a) Gentz, ubi supra.
(b) " His inj uriis (says Bynkershoek, speaking of what he conceived to be infringements of International Law on the pretext of preserving the general safety of
states) prntexitur studium conservandee pacis, quod et ipsum przetexitur injuriis,
longe adhuc majoribus, qua, potissimum ab aliquot retro annis invaluerunt, quum
nempe principes mutuis pactis, de aliorum principum regnis et ditionibus ex animi
sententia statuunt, atque si de re sun statuerent. Has injurias peperit, et adhuc
parit Ratio, quam vocant, Status."-Quaest. Jur. Pub. lib. i. c. xxv. s. 10.
(c) " Male autem h Carneade stultitize nomine justitia traducitur. Nam sicut
ipso fatente, stultus non est civis qui in civitate jus civile sequitur, etiamsi ob ejus
juris reverentiam qumdam sibi utilia omittere debeat: ita nec stultus est populus,
qui non tanti facit suas utilitates, et propterea communia populorum jura negligat;
par enim in utroque est ratio. Nam sicut civis qui jus civile perrumpit utilitatis
presentis cause, id convellit quo ipsius posteritatisque sue perpetuea utilatis continentur: sic etpopulus jura naturge gentiumque violans, suce quoque tranquillitatis in
posterurn rescindit mnunimenta."-Grotius, Prolegomena, 18.




INTERV ENTION.                             329
CCCXCIX. 3. During the remaining interval, from  the Treaty of
Vienna to the present time (1815-1854), the principle of the Balance
of Power has been, upon several occasions of great importance, most formally and distinctly recognized as an essential part of the system of
International Law.
In the earlier part of this period the abuse of the principle which
tainted so injuriously the Treaty of Vienna, continued in full operation.
An alliance was formed between Great Britain, Russia, Austria, anld
Prussia, to which, at the Congress of Aix-la-Chapelle, in 1818,. France
became also a party; the object of this alliance was never perhaps very
clearly defined; but some of the contracting parties, at least, considered
it to be a system of Intervention, not merely to guard against the unlawful aggrandisement of any one State, but also to prevent the happening
of such internal changes in any existing State, as these powers might consider to be of a revolutionary character, and therefore as eventually unsafe to neighbouring States.  Great Britain, however, appears never to
have put this construction on the object of the coalition; at all events,
she expressed her emphatic dissent from it, upon the first occasion of its
practical application in the resolutions *of Austria, Russia, and [57]
Prussia, at the Congresses of Troppau and Laybach.   Great [,,     571
Britain protested then, while her foreign affairs were under the administration of Lord Castlereagh, against the measures adoped by those powers
with respect to the revolution at Naples in 1820, and still more against
the principles upon which they were said to be founded.  She protested
also, under the same administration, against the proceedings of the Congress of Vienna in 1822, at which the armed Intervention of France in
the internal affairs of Spain was sanctioned by Russia, Austria, and Prussia.  Subsequently, under the wise and vigorous administration of MIr.
Canning, Great Britain protested against any Intervention of the European
Powers in the contest between Spain and her American Colonies, declaring that she would consider any such Intervention by force or menace as
a reason for recognizing the latter without delay; and at the same time
the United States of America announced, that they would consider any
such Intervention as an unfriendly manifestation towards themselves.
A few years later Mr. Canning, in the House of Commons, defended
the Government for not having resisted, by war, the entrance of the
French army in Spain, which he admitted that the disturbance of the
balance of power caused by this event would have justified; and alluding
to the recognition of the American Colonies, which had then taken place,
made his proud and legitimate boasts,'I called the New  World into
existence, to redress the balance of the Old."
It is true that the military Intervention of Great Britain in the affairs
of Portugal in 1826 took place in order to discharge the obligations
of Treaties, and at the request of Portugal herself, to protect her against
the hostile aggressions of Spain; and not in order, directly at least, to
restore the Balance of Power.  But in the Intervention of Great Britain,
See Mably's opinion that Treaties of Partition are contrary to International Law
t. ii. pp. 64-5, 149-150.
(d) Vide post.
AuGUST, 1854.-22




330      P  I LLIMORE  ON  INTERNATIONAL  LAW.
458  -Austria, Russia, Prussia, and France in the Belgian(e) RIevolu[    ]~~S  tion of 1830, had, as has been already seen, for one of its avowed
objects, the establishment of a just Balance of Power, and the security
of the general peace.
On the 19th of February, 1831, the intervening powers signed a
Protocol, in which the enunciation of this principle occupied a very
conspicuous place.
"'Les Plenipotentiaries des Cours d'Autriche, de France, de la Grande
Bretagne, de Prusse, et de Russie, s'etant assembles, ont porte toute
leur attention sur les interpretations diverses donnees au Protocole de la
Conflrence de Londres, en date du 20 DWcembre, 1830, et aux principaux
Actes dont il a e6t  suivi.  Les d6lib6rations des Plenipotentiaires les
ont conduits a reconnaitre unanimement, qu'ils doivent a la position des
cinq Cours, comme a la cause de la paix g6n6rale, qui est leur propre
cause, et celle de la civilisation, Eurolpeenne, de rap2peler ici le graccd
pprincipe de droit publtic, dont des Actes de la Conf6rence de Londres
n'ont fait qu'offrir une application salutaire et constante.
" D'apr6s ce 2principe d'un orcire sdpe'rieur, les Trait6s ne perdent pas
leur puissance, quels que soient les changemens qui interviennent dans
l'organisation int6rieure des peuples. Pour juger de l'application que
les cinq Cours ont faite de ce meme principe, pour appr6cier les determinations qu'elles ont prises relativement a la Belgique, il suffit de se
reporter k l'6poque de l'ann6e 1814.
c A cette epoque les Provinces Belges etaient occupees militairement
par l'Autriche, la Grande Bretagne, la Prusse, et la lRussie; et les
droits que ces Puissances exergaient sur elles, furent compl6tes par la
renonciation de la France a la possession de ces memes Provinces.  MIais
la renonciation de la France n'eut pas lieu au profit des Puissances
occupantes. Elle tint a une pensee d'un ordre plus l1eve. Les Puis~*d59] sances, et la France elle-mfeme, egalement desinteress6es *alors
comme aujourd'hui, dans leurs vues sur la Belgique, en garderent
la disposition et non la souverainete, dans la seule intention de faire
concourir les Provinces Belges a l'etablissement d'cunjuste e'quilibre en
EIurgole, et au maintien de la paix ge6nrale.  Ce fut cette intention que
pr6sida a leurs stipulations ult6rieures; ce fut elle qui unit la Belgique
a la Hollande; ce fut elle qui porta les Puissances h assurer des lors
aux Belges le double bienfait d'institutions libres, et d'un commerce
f6cond pour eux en richesse et en d6veloppement d'industrie.
"; L'union de la Belgique avec la iHollande se brisa.  Des communications officielles ne tardclerent pas a convaincre les cinq Cours, que les
moyens primitivement destines a la maintenir ne pourraient plus ni la
r6tablir pour le moment, ni la conserver par la suite; et que d6sormais,
au lieu de confondre les affections et le bonheur des deux Peuples, elle
ne mettrait en presence que les passions et les haines, elle ne ferait
jaillir de leur choc que la guerre avec tons ses desastres.  II n'appartenait
pas aux Puissances de juger des causes qui venaient de rompre les liens
(e) Hansard, Par. Deb. vol. xxviii. pp. 1133-1163.
Martens, Nouv. Rec. t. i. p. 70.




INTE R V E NTION.                        331
qu'elles avaient formes.  Mais quand elles voyaient ces liens rompus, il
leur appartenait d'atteindre encore l'objet qu'elles s'ftaient propose en
les formant.  II leur appartenait d'assurer, a la faveur de combinaisons
nouvelles, cette tranquillit6 de l'Europe, dont l'union de la Belgique
avec la Hollande avait constitue une des bases.  Les Puissances y
etaient impdrieusement appelees.  Elles avaient le droit, et les eve'nemens
leur'innposaient le devoir, d'empdcher que les Provinces Belges, levenues
incldpendantes, ne portassent atteinte d la se'curite' gene'rale, et a l'equilibre Eyurope2en."(f)
The Intervention of France, Great Britain, and Russia in the Greek
[Revolution of 1828, as has been already observed, was not originally
founded upon the plea of preserving the Balance of Power, but was
placed upon other grounds.
*In April, 1834, a Quadruple Alliance was formed between [460
France, England, Portugal, and Spain, by which the two former [460
undertook to assist the two latter powers in fulfilling a mutual agreement
to expel Don Miguel, the Pretender to the throne of Portugal, and Don
Carlos, the Pretender to the throne of Spain, from the territories of the
two kingdoms.
e In consequence of this agreement" (it is said in the preamble of
this Treaty of the Quadruple Alliance,) l their Majesties the Regents
have addressed themselves to their Majesties the King of the United
Kingdom of Great Britain and Ireland, and the King of the French;
and their said Majesties, considering the interest they must always take
in the security of the Spanish monarchy, and being further animated by
the most anxious desire to assist in the establishment of peace in the
Peninsula, as well as in every other part of Europe; and His Britannic
Majesty considering, moreover, the special obligations arising out of his
ancient alliance with Portugal; their Majesties have consented to become
parties to the proposed engagement."
In  August, 1834, a Treaty of additional articles was concluded,
whereby France undertook to prevent the importation of supplies and
ammunition to the party of Don Carlos in Spain; and Great Britain
undertook to supply arms to the Spanish Government, and assist it with
naval forces. Great Britain permitted, by an Order in Council, her
subjects to engage in the service of the Spanish Government, and a corps
of volunteers was raised and commanded by a British officer.( g)
The independent existence of the Turkish Empire at Constantinople
has become, in the opinion of all the principal European powers, necessary to the preservation of the Balance of Power:-so great, and so
little to be foretold, have been the vicissitudes of the kingdoms of the
world, and especially of Europe, since the sixteenth century.
*It is not indeed true that Christian Europe requires, as a condition of her security, the existence of a Mahometan power within [461
her boundaries; but that the preservation and maintenance of the general
peace demands that the Ottoman dominions should not be absorbed into
(f) Protocols of Conferences in London relative to the affairs of Belgium, art.
i. 1830-31, pp. 59-60; and State Papers, vol. xviii. p. 779, &c.
(g) Wheaton's Hist. pp. 556, 572, 579, 583.




330     P HILLI MO RE ON  INTElRNATIONAL LAW.
the territories of any of the existing European communities.(h)  It is
conceivable that Constantinople may again become the seat of a Christian Greek Government, capable of maintaining the position and supporting the character of an independent kingdom; and were such an event
to occur, the balance of power might be at least as well secured as by
the present state of things.  The same remark applies to the Pachalic of
Egypt, held under the suzerainet6 of the Porte,(i) which could scarcely
become the possession of any other European Sovereign without imminent danger to the security of the rest.
During the epoch now under discussion, there have have been several
Interventions by the European powers in the affairs of Turkey.
After the battle of Navarino, and the recognition of the independence
of Greece, war still continued between Russia and Turkey, and was not
altogether concluded until the framing of the Treaty of Adrinople in
1829.
Before the Porte had recovered from  her losses and disasters, she was
threatened with a more alarming danger, from the ambitious rebellion of
Mehemet Ali, Pacha of Egypt.  After the battle of Koniah in 1833, in
which the Turkish were utterly defeated by the Egyptian forces, under
Ibrahim  Pacha, Constantinople itself was in imminent peril, and the
Porte requested the Intervention of Austria, France, and *Eng[ 462] land.  While these powers undertook a negotiation to prevent
the further advance of Ibrahim, Russia landed an army on the Asiatic
side of the Bosphorus, between Ibrahim and the capitol. A treaty of
peace between the Sultan and the Pacha was concluded at Keelayah,
under the mediation of France and England, in 1833, and a separate
Treaty entered into between Russia and the Porte at Unkiar-Skellessi
in the same year, by which, among other things, it was covenanted that
Russia should assiste the Porte with a naval and military force, when
requested to do so, and that the Porte should, by way of reciprocity,
close the Dardanelles against foreign ships at the request of Russia.
France protested against this Treaty as producing a change in the relations between the Ottoman Empire and Russia, which affected the
interests of the other European States.  The duration of this Treaty
was limited to eight years; before that period had elapsed, war again
broke out between the Sultan and the Pacha of Egypt, who gained a
decisive victory over the Turkish troops at Nezib.  Shortly afterwards
the whole Turkish fleet deserted to the Pacha. These events, disturbing
the security of the Levant, and endangering the general peace, the alarm
engendered by the spirit of the Treaty of Unkiar-Skellessi, and the exclusive interference of Russia, determined the Western Powers to intervene in this war of the two great divisions of the Ottoman Empire.
Their Intervention was expressly and carefully founded upon the
(h) The Porte concluded, on the 21st January, 1790, a treaty against Austria
and Russia with Prussia, in which that power "      cause du pr6judice que les
ennemis, en passant la Danube, ont apport6 a la balance da pouvoir d6sire et necessaire, prornet de declarer la guerre de toutes ses forces aux Russes et aux
Autrichiens," &c.-Koch, Hist. des Tr. t. iv. p. 419.
(i) Vide ant6, p. 117.




INT ER VENTIO N.                         333
grounds, that the present state of things disturbed the Balance of Power,
and thereby the peace of Europe, and that the Sultan had requested
their Intervention.  A Convention was ultimately concluded at London
on the 14th of July, 1840, between the great European Powers, exclusive of France. By this Convention the Sultan conferred on Mehemet
Ali and his descendants in the direct line, the Pachalic of Egypt for life,
with the title of Pacha of Acre, and the command of the fortress of St.
Jean d'Acre.  It was further stipulated that Mehemet Ali and his descendants should pay a certain annual tribute to the Sultan;-  [*463]
*that the Turkish fleet should be immediately restored; —that L    J
the Treaties and Laws of the Ottoman Empire should be applicable to
Egypt in the same manner as to every other part of the Ottoman Empire;-that the military and naval forces of the Pacha should be considered as part of the forces of the Ottoman Empire, and maintained for
the service of the State.
The foregoing observations were written nearly three years ago, with
no anticipation that, before the work was concluded, it would be necessary to add such an additional instance, as is unhappily furnished by the
present year (1854), of a defensive war undertaken to preserve the equilibrium of European power, and to prevent the aggrandisement of a particular State by the absorption of European Turkey into its domains.
Such are the motives alleged, while these pages are being written, for
the war about to be waged for the defence of European Turkey(j) by
England and France against Russia.  It would be indecent in a work of
this character to offer any opinion on the merits of this contemporary
question of International Law: it must be judged of by the principles
already laid down.
The subject however, must be again referred to as we pass rapidly
over the examples of Intervention which have happened during a very
recent period.
In 1847, England, France, and Spain intervened in the internal affairs
of Portugal, at the request of the Queen of that country, and put down
by force the rebellion that harassed her subjects; but at the same time
guaranteed to the insurgents, under certain conditions, an amnesty for
political offences, and certain improvements in the Constitutional Government. In this mediation England took the leading part.(7c)
*In 1848, France and England endeavoured jointly to mediate
in the disturbances which agitated every kingdom in the Italian  46
peninsula; and in 1849, the Government of England asserted her right
of intervening, by the expression of opinion at least, in the civil contest
between Austria and Hungary.(l)
In 1851, the Governments of France and England addressed notes,
the former to the Powers who had signed the Treaty of Vienna, the latter to the Germanic Confederation, protesting against the suggested in(j) Correspondence respecting the Rights and Privileges of the Latin and Greek
Churches in Turkey, presented to both Houses of Parliament, by command of Her
Mlajesty, 1854; and Le Question de l'Orient, published at Paris, 1853.
(k Annual Register for 1849, vol. lxxxix. p. 346, June 12 & 13.
(1) Annual Register for 1848-9, vol. xc. p. 171; vol. xci. chap. vi.




334   PHILLIMORE ON INTERNATIONAL LAW.
corporation of Austrian provinces, not being German, into the Germanic
Confederation.  Such an event, it was urged, though unconnected with
any acquisition of new territory, would clearly affect the Balance of
Power.(m)
Upon the same principle, on the 2d of August, 1850, Austria, France,
England, Prussia, Russia, and Sweden, put forth a Protocol, respecting
the succession to the Danish monarchy, in which'"the maintenance of
the integrity" of that monarchy was said "to be connected with the
general interests of the balance of Europe, and of high importance to the
preservation of peace;" and therefore, at the request of the King of Denmark, they put forth a declaration to the above effect.(n)
The same Powers, on the 8th of May, 1852, concluded a Treaty, binding themselves to recognise Prince Christian of Sleswig-Holstein and his
heirs male as the lawful successors to the throne of Denmark.(o)
In 1851, the doctrine of Intervention was vigorously enforced on the
South American Continent, in a manner well deserving attentive consideration.(p)
[*465]   *That portion of South America which is politically and geo11465] graphically designated as the States of De La Plata, on account
of the position they occupy in the great basin of this river, consists of
the Argentine Confederation (till lately under the dominion of General
Rosas), the Oriental Republic of Uruguay, and Paraguay.  Paraguay
and Uruguay(q) touch the confines of the empire of Brazil.  Rosas had
for some time threatened directly the independence of Paraquay (formerly
a province of the Vice-Royalty of Buenos Ayres), which he claimed as a
province of the Argentine Confederation, while at the same time he manifested an intention of indirectly domineering over Uruguay, the capital
of which, Monte Video, had been for a long time assailed by General
Oribe, his ally. The Emperor of Brazil, greatly preferring Paraguay
and Uruguay, as at present governed, for his neighbours, to those countries under the domination of Rosas, suddenly, and without any concert
with the European Powers, intervened with an armed force in the quarrel between Monte Video and the Argentine Republic, and destroyed in
a moment the power of Rosas, which had for many years embarrassed the
diplomacy of England and France.(r)  Brazil has entered into five Treaties with the Oriental Republic of Uruguay, forming, in fact, a code or
system of general relations between the two States, but especially regulating the mode of Intervention accorded to Brazil in the affairs of Uruguay.(s)
Lastly, in 1852-3,(t) this doctrine of Intervention to prevent the un(mn) See these notes in extenso, Ann. des Deux Mondes (1851-2,) French memorandum, p. 953; English note (Lord Cowley), p. 959, "qu'il pr6voit en mame
temps qu'un pareil changement derangerait l'quilibre gene'ral," &c.
(n) Annual Register for 1852, p. 440.
(o) Ann. des Deux Mondes (1851-2), pp. 960-1.
(p) Ib. (1851-2,) pp. 27, 865, 881, 978.   (q) Vide ant;, p. 144.
(r) Ann. des Deux Mondes (1850,) p. 1052, Question de la Plate, ib. (1851,) pp.
27. 865, &c.
(s) See these treaties in extenso, Ann. des Deux Mondes (1851-2,) pp. 979-986.
(t) See Correspondence between the United States, Spain, France, and England




INTERVE NT ION.                           335
due aggrandisement of any one State by the absorption of the territories
of another, has been applied upon a very recent and important occasion
by England and France to ithe American Continent and the
West Indies.  These two Governments invited the North Ameri- L46
can United States to accede to a tripartite Treaty, the object of which
was, to bind the three Governments to renounce both and hereafter all
intention of appropriating the Island of Cuba, or, in orther words, to express their determination to abide by the status guo in the WVest Indies.(u)
The North American United States refused to be parties to this Treaty;
but the right of Intervention, on the part of England and France, was
steadily proclaimed, both on account of their own interests, and on account of those of friendly States in South America, as to the "c present
distribution of power"(v) in the American seas.
CCCC. There remains one other ground of Intervention(x) in the internal affairs of another kingdom-namely, when the alterations and
changes made in the constitution of that kingdom affect the Reversionary
Rights of the Interventing Power; for instance, when a recognized feudal
relation, or the contingent and eventual Right of Succession, secured by
Treaty to the Intervening kingdom, is cut off by the alterations and
changes so made.(y)
In the year 1849, Austria is supposed to have meditated an Intervention in the affairs of Tuscany upon this ground.(z)
By the Treaty of Vienna, in 1735, it was provided that the Duke of
Lorraine should succeed to the last male heir of the Medici, the childless
Gaston.  This was a part of the negotiations, by which Charles VI. sought
to secure the undisputed recognition of Maria Theresa, as successor to
his dominions.  The arrangement guaranteed by almost all the European
Powers was as follows: —'  Le Grand-Duqhe de Toscane, apres la mort
du present possesseur, appartiendra a lac *caison cle Lorraine,  *467]
pour l'indemniser des Duchez, qu'elle possede aujourd'huy.         467
" Toutes les Puissances, qui prendront part'a la pacification, luy en
garantiront la succession 6ventuelle."(a)
The,emaison de Lorraine" was despoiled of its Tuscan possessions by
the Treaty of Luneville in 1801; but they were restored to it by the
Treaty of Vienna in 1815. By the 100th Article of the final Act of the
Congress, it is provided that "c S. A. I. et R. l'Archiduc Ferlinand
d'Autriche est retabli taut pour lui que pour ses h6ritiers et successeurs
dans tous les droits de souverainete et proprikte sur le grand-duche de
Toscane et ses dependances ainsi que S. A. I. les a possedes antdrieurement au Traite de Luneville.-Les stipulations de l'article 11 du Trait6
de Vienne du 3 Octobre, 1735, entre l'Empereur Charles VI. et le Roi
de France, auxquelles ace~dbrent les autres Puissances, sont plTnement
retablies en faveur de S. A. I. et ses descendants ainsi que les garanties
resultantes de ces stipulations."(b)
concerning alleged projects of Conquest and Annexation of the Island of Cuba,
presented to the House of Commons, April 11, 1853,
(a) Lord Cowley's despatch to Lord John Russell, January 24, 1853.
(v) Letter of Lord John Russell to Mr. Campbell, February, 16, 1853.
(x) Heffters, pp. 92-95.     (y) Martens, 190, cases cited in note.
(z) See an article in the Globe, April 4, 1849.
(a) Wenck. Jur. Gent. t. i. p. 3.  (b) Martens Rec. de Tr. t. x. p. 424.




coG3      P   ILLII O RE  ON  INTERNATIONAL  LAW.
In this latter Treaty of Vienna the name of the reigning Grand Duke
is substituted for that of his House, and the House, as distinguished from
the issue of Ferdinand, is nowhere mentioned.
A presumption unfavourable to the claim  of Austria arises from  this
marked difference in the language of the two Treaties; and the presumption is certainly much strengthened by the language of the 98th and 99th
Articles of the Treaty of 1815,(c) which  renewed and confirmed in ex4G8  press *terms the Rights of Reversion (les droits de succession et
r[eversiorw) of Austria to the Duchies of Modena, Reggio, and B1irandola, and to the Principalities of Massa and Carrara, and the Rights
of Reversion of Austria and Sardinia to the Duchies of Parma, Placentia,
and Guastala.
It may well have been forseen, that the addition of Tuscany to Austria
would  cause a very material alteration  in the Balance of Power, and
would threaten the security of other States, while the absorption of the
minor principalities into the kingdoms of Austria and Sardinia would
produce no such effect.
It is evident that any question with respect to the Reversionary Rights
of Foreign Princes over a State which has long occupied an independent
position in the society of nations, may be fraught with the greatest difficulties both in speculation and practice.(d)
Take the case of Tuscany for an example, on the supposition that
the claim  of Austria was well founded on  the letter of the Treaty.(e)
(c) "Art. XCVIII.-S. A. R. l'Archidnclue Franqois d'Est, ses hl6ritiers et successeurs, poss6deront en toute propriet6 et souverainete les duches de Moddne, de
Reggio, et de Mirandole dans la m6me etendue qu'ils etaient'a l'epoque du traite
de Campo-Formio.
1" S. A. R. l'Archiduchesse Marie B6atrix d'Est, ses hdritiers et successeurs,
poss6deront en toute souverainete et propriet6, le duche de Massa et la principaute
de Carrara, ainsi que les fiefs imp6riaux dans la Lunigiana.  Ces derniers pourront servir'a des 6changes ou autres arrangements de gre6  gre avec S. A. I. le
Grand-Due de Toscane, selon la convenance reciproque.
"Les droits de succession et reversion 4tablis dans les branches des archiducs
d'Autriche, relativement aux duches de Modene, de Reggio, et Mirandole, ainsi
que des principautes de Massa et Carrara, scat conserves.
" Art. XCIX.-Sa Majeste l'Imperatrice Marie-Louise possedera en toute propri6t6 et souverainet6, les duch6s de Parme, de Plaisance, et de Guastalla,'a l'exception des districts enclav6s dans les dtats de S. M. I. et R. Apost. sur la rive gauche
du P6.
"La reversibilite de ces pays sera d6termin6 de commun accord entre les cours
d'Autriche, de Russie, de France, d'Espagne, d'Angleterre, et de Prusse, toutefois
ayant egard aux droits de reversion de la maison d'Autriche et de S. M. le Roi de
Sardaigne sur les dits pays."-Martens, Rec. de Tr. t. x. p. 423.
(d) " C'est incontestable qu'une nation change a son gr6 ses lois fondamentales." —
MIably, t. ii. p. 138.
(e) " La nation peut, par la mnme raison, faire renoncer une branche qui s'etablit
ailleurs, une fille qui epouse un prince dtranger.  Ces renonciations, exig6es on
approuvees par 1'6tat, sont trds-valides, puisqu'elles sont 6quivalentes l une loi
que l'6tat ferait pour exclure ces m6mes personnes qui ont renonce, et leur posterite. Ainsi la loi d'Angleterre a rej6t6 pour toujours tout h6ritier catholique
romain.'Ainsi la loi le Russie, fait au commencement de regne d'EnIzAnET,
exclut-elle tres prudemment tout heritier qui poss6derait une autre monarchiec
ainsi la Ioi de Portugal rejette-t-elle tout etranger qui serait appelle6 a la couronne
par le droit du sang. —(Esprit des Lois, 1. xxvi. c. xxiii. oii l'on pent voir de tresbonnes raisons politiques de ces dispositions.)  Des auteurs celebres tres-savants
d'ailleurs et tres-judicieux, ont done manqul  les vrais principes en traitant des




INTERVENTION.                                337
Suppose that a State, having occupied for *a long period the
position of a free and independent nation in the society of other [46
States, thinks fit to secure its constitution, and to pass a fundamental law,
similar to that by which Great Britain excluded James II. and his descendants from  her throne, that no Prince of a certain race shall be
henceforth their ruler; or a fundamental law similar to that which was
established by Russia in the reign of her Elizabeth, that the crown of
their country shall never be worn by the Sovereign of another country;
can it be denied that the exercise of such a power is inherent in the nature
of an independent State? Third Powers, indeed, must recollect that
the obligation of Treaties is as important a maxim  of International Law
as the free agency of independent States; but with respect to the nation
itself, it remains certainly very difficult to reconcile her character of independence with the impossibility of exercising one of the most important attributes belonging to it.
It is to be hoped that the notion, and the term  of "4 Patrimonial *States," are banished for ever from the theory and prac- [*470]
tice of International Law,(f) and that the attempt will never again be
made to give to the Sovereign of one independant State the Reversionary Right of succeeding to the throne of another.
CCCCI. There yet remains(y) to be discussed the question of Intearvelntioni on the ground of Religion, —a question which has assumed, from
the events which are now  happening, the character of importance and
magnitude which, the possible consequences duly considered, it will be
difficult to exaggerate.
c" So familiar, and as it were so natural, to man, is the practice of violence, that our indulgence allows the slightest provocation, the most disputable right, as a sufficient ground of national hostility.  But the name
and nature of a holy wa-r demands a more vigorous scrutiny; nor can
we hastily believe, that the servant of the Prince of Peace would unsheath
the sword of destruction, unless the motive were pure, the quarrel legitimate, and the necessity inevitable."(h)
renonciations. Ils ont beaucoup parl6 des droits des enfans nts on' naltre, de la
transmission de ces droits, etc. I1 fallait consid6rer la succession, moins comme
une propri6t6 do la famille regnante que comme une loi de l'dtat. De ce principe
lumineux et incontestable d6coule avec facilite toute la doctrine des renonciations.
Celles que l'6tat a exigees ou approurves soent valides et sacrees; ce sent des lois
fondamentales: celles qui ne sont point autorisees par 1'etat, ne peuvent etre obligatoires que pour le prince qui les a faites; elles ne sauraient nuire h sa posterite;
et lui-meme pent en revenir, au cas que l'ttat alt besoin de lui et l'appelle, car il
se doit I un peuple qui lui avait commis le soin de son salut. Par la m6me raison,
le prince ne pent 16gitimement renoncer a contre-temps au dommage de l'etat, et
abandclonner dans le danger une nation qui s'etait remise entre ses mains."-Vattel,
1. i. c. 5, s. 62.
(f) Rotteck, Staats-Lexicon, " Garantie" (vol. vi. p. 264,) mentions the Bourbon family compact of 1761 as a proof of imperfect acquaintance with the true
principles of International Law, inasmuch as by it the people were treated, " als
das blosse Pertinenzstiick cles regierenden HEauses."
See, too Ompteda, vii. n. a.
( g) MIost of the remarks in the text which follow on this subject will be found
in a pamphlet (1853), entitled Russia and Turkey, &c., by the author of this
work.
(h) Gibbon's Decline and Fall of the Roman Empire, vol. ii. c. Ix.




338    PHILLIMORE ON INTERNATIONAL LAW.
This opinion of the celebrated historian of Christian Constantinople
whatever may have been the spirit in which it was uttered-appears to
rest upon a foundation of truth.
It was intended, we need not stop to inquire with what justice,(i) to
[471] censure the earliest European invasion of the *dominions of the
Turk, the first Religious war waged by Christian Princes against
the disciples of Mahomet.
The Emperor of Russia proclaims that the present war between Russia and the Porte is a Religious war.(k)
If there be any truth in the doctrines laid down in the preceding
pages of this work, there certainly are principles of International Law
by which the claim of Russia upon Turkey must be tried, and which
are not perhaps either difficult to discover, or hard to apply.
We have seen upon what principles other kinds of Intervention have
been justified.  The question of Religious Intervention naturally divides
itself into two parts.
First, whether identity of religious faith, with a* certain number of
the subjects of another State, whose rulers profess a different faith, has
ever been held, or ought in principle to be held as warranting the Intervention of a Foreign State on behalf of those subjects with whom it
has the impalpable, but stringent bond of a common religion. Secondly,
if Intervention be justifiable on this ground, what kind of intervention?
— that of remonstrance, carried, if necessary, to the length of a refusal
to maintain an intercourse with the oppressor of your brethren in the
faith? or the ultimza ratio, the commencement of actual hostilities against
the State which denies your title to interfere with her jurisdiction over
her citizens?
With respect to any right of Intervention on the ground of similarity of
religious faith, there is, in limine, a distinction, perhaps not unimportant to be taken.  Intervention may be, and has been, claimed by one
Christian State, in the affairs of another on behalf of a particular
body of Christians, professing a form of Chrstianity identical with
that of the Intervening State, but different from that of the State of
[*472] which *they are subjects.  Again, Intervention may be claimed
in the affairs of an Infidel State on behalf either of Christians
generally, or of a particular body of Christians.  This latter is the kind
of Intervention now claimed by Russia in the jurisdiction of the Porte
over the Christian subjects in her dominions; and it is a species of
Intervention which, according to her present claim, Russia by virtue of
her Protectorate of the Greek Church, has been accustomed to exercise,
(i) Fleury, Hist. Eccles. t. xii. Sixiieme Discours, 111. "Je ne vois point que
l'on ait mis alors en question, si cette guerre 6toit juste: tous les Chr6tiens d'orient
et d'occident le supposoient 6galement. Toutefois la diff6rence de religion n'ept
pas une cause suffisante de guerre," &c. "'Les princes Chretiens ont cru de toult
tems 6tre en droit de prot6ger les Chr6tiens dtrangers opprimens par leurs souverains." On this ground, he says Theodosius the younger refused to deliver up a
Persian Christian to the King of Persia; and the Patriarch of Jerusalem  sent
through Peter the Hermit letters of entreaty for aid to Pope Urban.
(k) Correspondence respecting the Rights and Privileges of the Latin and Greek
Churches in Turkey, presented to both Houses of Parliament by command of Her
Majesty, 1854.




INTERVENTION.                           339
and which is now sought to be exercised merely for the purpose' of
securing to the Greek Church rights conceded to her ab anCtiuo by the
Porte.
CCCCII. It would seem that three propositions are, by implication,
maintained in this claim.
1. That the demand is sanctioned by the analogy derivable from the
precedents of Christian Intervention in other Christian States on behalf
of particular bodies of Christians.
2. That the right of Christian Intervention on religious grounds in a
Mahometan State, rests upon an obviously stronger foundation.
3. That the rights which the Russian Intervention is intended to
secure are rights granted by the Porte, ab antiquo, to the Greek
Church.
CCCCIII. As to the first of these propositions:-The practice (if it
can be called such) of Intervention by one Christian State on behalf of
the subjects of another Christian State upon the ground of Religion,
dates from  the period of the Reformation.  It could scarcely, indeed,
have had an earlier origin. The abstract principle of this kind of Intervention has derived positive force from being embodied in various important Treaties.
The Treaties having for their objects to secure the peaceable profession
of religion are of two kinds:-first those which concern the exercise of
religion (devotio domnestica) of native subjects of the Intervening State
commorant in a foreign land; secondly, those which concern the religion
of foreigners not its subjects.
The great Treaty of Westphalia, in its general language respecting
Germany, established, as a maxim of public law, *that there
should be an equality of rights between the Roman Catholic ['473]
and Protestant religions; a maxim renewed and fortified by the Germanic Confederation of 1815. In these instances, it is true, the several
states to which this stipulation related were all members of one Confederation, though individully independent of each other. But the precedent does not stop here; for, passing by the Interventions of Elizabeth,
Cromwell, and even Charles II., on behalf of foreign Protestants, and
going back no later than 1690, we find'in that year Great Britain and
Holland intervening in the affairs of Savoy, and obtaining from  that
kingdom a permission that a portion of the Sardinian subjects might
freely exercise their religion.(k)
In the negotiations which preceded the Treaty of Utrecht (1714,) our
Queen Anne stipulated with France that in return for the permission
accorded to French subjects to sell their immovable property in the
North American Colonies recently conquered by Great Britain, his Most
Gracious Majesty should release from the galleys the French Protestants,
who had been confined there solely on account of their religion.  Further than this, we learn from  Lord Bolingbroke's letters,(l) foreign
interference could not be extended;-he suggests, indeed, that France
(k) Schmauss, vol. i. p. 1093.
(1) Bolingbroke's Letters, vol. iv. pp. 121, 171-2, 459.




340   PHILLIMORE ON INTERNATIONAL LAW.
might be tempted to retort, and require some mitigation of the heavy
penalties under which the Irish Roman Catholic subjects of Queen Anne
were then suffering.
Sweden interfered in 1707 on behalf of the Protestants of Poland.
The Treaties of Velau,(m) 1657, of Oliva,(?n) 1660, of Nimeguen,(o)
1679, of Ryswick,(p) 1698, of Utrecht,(q) 1714, of Breslau,(i') 1742,
may all be enumerated as instances *of Roman Catholic Inter[1'7-  vention on behalf of Roman Catholic subjects, in countries ceded
to Protestant sovereigns-an Intervention which, it should be remembered, was almost invariably invoked by the inhabitants within the
country.
It appears, therefore, that Intervention by one Christian State on
behalf of the subjects of another upon the ground of Religion, has,
under certain circumstances, been practised, and cannot be said, in the
abstract, to be a violation of International Law.  But what kind of
Intervention?  By remonstrance, by stipulation, by a condition in a
Treaty concluding a war waged upon other grounds.
It may, perhaps, be justly contended that the principle might be
pushed further; and that in the event of a persecution of large bodies
of men, on account of their religious belief, an armed Intervention on
their behalf might be as warrantable by International Law, as an armed
Intervention to prevent the effusion of blood and protracted internal
hostilities.
It is, however, manifestly unsafe to contemplate these extreme cases
of exception from the sound general rule of non-interference in the
domestic legislation of Foreign States.  The duty of such non-interference is clear; it should not be turned into a doubt. Therefore it is,
that no writer of authority upon International Law sanctions such an
Intervention, except in the extreme case of a positive persecution inflicted
avowedly upon the ground of religious belief. Vattel, himself a Protestant, was not at all disposed to underrate the right of Intervention of
Foreign Powers on behalf of their co-religionists in other countries:
his opinion, therefore, which is in accordance with that which has been
here expressed, deserves the most respectful consideration.(s)
I47 t would be difficult to find any writer upon International
*475] Law  who has ever expressed a different opinion; though not
uncommonly they close their remarks on this subject by observing on
the manner in which the exceptional use of Intervention upon religious
grounds has been abused in practice.
Thus the accurate and careful Martens observes:
" Toutes les guerres auxquelles la religion a servi de motif ou de
pretexte ont fait voir, 10 que jamais la religion n'a ete le seul motif
pour lequel les puissances etrangeres sont entrees en guerre; 20 que
lorsque la politique s'accorde avec les interets de leur religion, elles ont
effectivementr soutenu la cause de celle-ci; 30 mais que toujours le z6le
(mn) Art. xvi.     (n) Art. ii.      (o) Art. ix.      (p) Art. iv.
(q) Art. xxiii.                    (r) Art. vi.
(s)'" Du Droit de suirete', et des effets de la souverainet6 et de l'indclpendace des
Nations," Vattel, Droit des Gens, t. i. p. 311, s. 57, 59, 62.




INTERVENTION.                              341
religieux a c6d6 aux motifs de politique; 40 et que plus cl'une fois
meme celle-ci a entrain  a' des d6marches directement opposees aux
int6rets de leur religion.'"(t)
So much for the doctrine of Intervention in matters of religion
between Christian States.
CCCCIV. With respect to the second proposition:
We now arrive at the consideration of Christian Intervention upon
the same subject with Mahometan States.  The converse of this, viz.,
MIahometan Intervention with Christian States, has, it is believed, never
yet arisen in practice, but it would be subject on principle to the same
law.(qt)
Is the rule of law altered by the fact that the persons in whose behalf
the right of Intervention is claimed, are the subjects of a Mahometan
or Infidel State?
The true answer seems to be that the rule is not changed, but that
there is a much wider field forthe application of the exceptional principle of interference.
For some time after the conquest of Constantinople (1453) grave
*doubts were entertained by the nations of Christendom  as to   76
the lawfulness of any specific intercourse with the Sultan.  It   47]
was not till after the Treaty of Constantinople in 1720 that the Russian
minister was permitted to reside at Constantinople; and directly relations
between the Roman Catholic Sovereigns and the Porte can scarcely be
said to have an earlier date than the end of the eighteenth century.(x)
Even after the lapse of nearly four centuries, at the Congress of Vienna,
1815, the Ottoman Empire was not represented, nor was it concluded in
the provisions of positive public law contained in the Treaty which was
the result of the Congress.
CCCCV. With respect to the third proposition:
From the period of the permanent settlement of the Turk in Europe,
all the Christian Powers have endeavoured to obtain, and have by
degrees succeded in obtaining, a jurisdiction over their own subjects in
Turkey through the medium of Consuls. Moreover, Roman Catholic
Powers have obtained certain privileges, both with respect to the access
of their own subjects to the Holy Places of Palestine, and with respect
to the Latin Church there.  At first these privileges were granted to
some favoured European Powers, and especially to France, under whose
flag other Christian Powers sought protection.(y) The Treaty recently
referred to by French authorities, between Sultan Achmet and Henry
IV. of France, concluded in 1604,(z) is the model Treaty, so to speak,
upon this subject.(a)
(t) Martens, Precis du Droit des Gens, t. i. p. 261.
(ut) There is an article in the Treaty of Constantinople, between Russia and the
Porte in 1779, in which Russia stipulates that the Porte shall perform certain religious ceremonies on behalf of the Khan of Tartary.
(x) Miltitz, Manuel des Consuls, t. ii. p. 1571.
(y) In 1534, Francis I. made an alliance with the Sultan Soliman against Charles
V., and from that time a close intercourse has subsisted between France and the
Porte. Vide post, COMITY.
(z) Schmauss, t. i. p. 430.
(a) " Art. IV.-Que de Venetiens en Anglois en l1 les Espagnols, Portugais, Cat



342      P I I ILLIMOREM   ON  INTERNATIONAL  LAW.
477  To this Treaty succeeded one in 1673; but the last and *most
important Treaty was in 1704.  It related to the two subjects:
1. The Holy Places.  2. The general protection of the Christian Religion.
With respect to the Holy Places there are various specific provisions.(b)
With respect to the general question of the Christian worship and
religion, the provisions are as follow:", Les deux Ordres de Religieux Frangois qui sont a Galata, savoir les
Jesuites et les Capucins, y ayant deux Eglises, qu'ils ont entre leurs
mains ab antiquo, restorent encore entre leurs mains, et ils en auront la
possession et jouissance: Et comme l'une de ces Eglises a  t&6 bruflee elle
sera rebatie avec permission de la justice, et elle restera comme par cidevant entre les mains des Capucins, sans qu'ils puissent etre inquietes
a cet egard.  On n'inquietera pas non plus les Eglises que la Nation
Frangoise a a Smyrne, a Syde, a Alexandrie, et dans les autres a
[478]  Echelles; et l'on n'exigera d'eux aucun argent sous ce pretexte."(c)
"4 On n'inqui6tera pas les Frangois quand dans les bornes de leur ktat,
ils liront l'Evangile dans leur H&pital de Galata."(d)
An unquestionable authority upon the nature and character of the
French Protectorate in the East, appears to be furnished by the Diplomatic Memoirs of Monsieur de Saint-Priest.' He was ambassador from
the court of France at Constantinople from 1768 to 1785; he describes
the Protectorate exercised by the monarchs of France over the Roman
Catholics of the Levant, in these words:
"4 On a decore le zdle de nos Rois de 1'expression de protection de
la Religion Catholique en Levant; mais elle est illusoire, et sert a 6garer
ceux qui n'approfondissent pas la chose.  Jamais les Sultans n'ont eu
seulement l'id(e  que les Monarques Frangais se crussent autoris6s a
telans, Ragusois, Genevois, Anconitains, Florentins et gdndralement toutes autres
nations quelles qu'elles soient, puissent librement venir trafiquer par nos Pais, sous
l'aveu et seuret6 de la Banniere de France, laquelle ils porteront comme leur sauvegarde, et de cette faqon ils pourront aller et venir trafiquer par les lieux. de notre Empire comme ils y sont venus d'Anciennete, obeissant aux Consuls Franqois, qui resident et demeurent par nos Havres et Echelles; voulons et entendons qu'en usant
ainsi ils puissent trafiquer avec leurs vaisseaux et gallions sans 8tre inqui6tes, et
ce seulement tant que ledit Empereur de France conservera notre amitie et ne
contreviendra a celle qu'il nous h promise. Voulons et commandons aussi que les
sujets dudit Empereur de France, et ceux des Princes ses amis Alli6s et Confoederes,
puissent sous son aveu et protection venir librement visiter les Saints Lieux de
J6rusalem, sans qu'il leur soit fait ou donne aucun emp6chement. De plus pour
l'honneur et amiti6 d'icelui Empereur nous voulons que les Religieux qui demeurent en Jerusalem et servent l'Eglise de Coumame (c'est a dire le saint sepulcre
de Notre Seigneur Jesus Christ) y puissent demeurer aller et venir seurement et
sans aucun trouble et detourbier, et y soient bien requs, proteg6s, aid6s et secourus
en la consideration susdite."-Traite entre Henri IV. Roy de France et le Sultan
Achmet, de l'An. 1604, Schmauss, t. i. p. 430.
(b) Capitulations ou Trait6s Anciens et Nouveaux, entre la Cour de France et
la Porte Ottonlane, renouvelles et augment6s l'An de J. C. 1740, et de l'Egire 1153,
art. i. xxxii. xxxiii. xxxiv. lxxxii.-Wenck. Cod. Jur. Gent, t. i. p. 538.
(c) Wenck. Cod. Jur. Gent. t. i. p. 555: Capitulations, &c., art. xxxv.
(d) Ib. art. xxxvi. p. 556.




INTERVENTION.                              343
s'immiscer de la Religion des sujets de la Porte. — I1 n'y a point de
Prince, dit fort sagement un de nos predecesscurs, M. le Marquis de
Bonnat, dans un Memoire sur cette matiere, quelque etroite union qu'il
ait avec un autre Souverain, qui lui permette de se meler de la Religion
de ses sujets.  Les Turcs sont aussi delicats que d'autres la-dessus.',' II est aise de comprendre que la France n'ayant jamais traite avec
]a Porte qu'~a titre d'amitie, n'a pu lui imposer des obligations odieuses
de leur nature.  Aussi le premier point de mes instructions me prescrivait d'eviter tout ce qui pourrait causer de l'ombrage a la Porte en donnant trop d'extension aux capitulations en mati6re de la Religion."(e)
*The true doctrine of International Law upon this subject, [*479
could not be more fairly or more correctly expressed, than in the      ]
important citation which has just been made.  And it must be remembered, that no single Treaty can be pointed out between the Porte and
France, any more than between the Porte and Russia, in which'that doctrine has ever been, in the slightest degree, violated.
The Russian Protectorate of the Greek Church, which is now claimed,
must be of comparatively recent date.  It was not till about the year
1677, that the Russians and the Turks were brought into actual contact
with each other.  Count Nesselrode refers to the Treaty of Kaynardgi
(1774) as containing the record of the Right of Intervention now claimed
by Russia, and also by the Treaty of Adrinople (1829) as confirmatory
of the stipulations.  Here, then, we have tangible, accessible references,
and not shadowy allusions to undefined, unrecorded concessions.  The
earlier Treaty of Belgrade (1739) might have also been referred to. It
is of great importance to study the ipsissima verba of these Treaties, and
see whether their letter or their spirit sustain the Russian demand.
The eleventh Article of the Treaty of Belgrade, concluded between the
Empress Anne of Russia and the Sultan Mahmud,(f) relates to the free
access of Russia to the Holy Places.  Austria concluded at Belgrade, at
the same time, a Treaty containing similar provisions.
The Treaty of Kaynardgi (or Chiusciuc Cainargi), to which the Emperor of Russia has especially referred as the foundation of his claim,
was concluded in the year 1774, between Russia and the Porte. The
articles of it which refer to the present subject are here given at length.
*ART VII.(g)                          ART. VII.       [*480]
"L a FulgidaPorta promette unaferma    " La Sublime Porte promet de prot6ger
protezione alla Religione Christiana e constamment la religion Chretienne et
(e) Moniteur, 3rd June, 1853.-L'Univers, 4th June, 1853. It is also referred to
by M. Drouyn de Lhuys in his second circular.
Vide ante, papers referred to, note (k), p. 471.
France has subsequently explained with distinctness that she only claims a protectorate over French Roman Catholic subjects.
(f) Acta Pacis Belgradi inter Annam Russiae Imperatricem et Sultanum Ottom.
Mahmud. Traduction. du Traite de Paix de Belgrade entre la Russie et la Porte,
art. xi.
(g) Articoli della perpetua Pace tra l'Impero di tutte le Russie e la Porta-Ottomana, conchiusa nel Campo presso la Citta di Chiusciuc Cainargi, distante 4 leghe
della citta di Silistria. Traite de Paix perp6etuelle et d'amiti6, entre l'Empire de
Russie et le Porte Ottomane, conclu le 10 Juillet dans la tente du Commandant en




3-14  iHILLIMORE ON INTERNATIONAL LAW.
alle Chiese di quella; permette ancora I  ses eglises; et aussi elle permet aux
Ministri dell' Imperial Corte di Russia di Ministres de la cour Imp6riale de Russie
fare in ogni occorrenza varie rappresen-  de faire dans toutes les occasions des
tanze alla Porta a favore della sotto men-  representations, tant en faveur de 1a
tovata eretta Chiesa in Constantinopoli, nouvelle eglise i Constantinople dont il
accennata nell' Art. XIV. non meno che  sera mention h l'Article XIV. que pour
di quei che la servono, e promette rice-  ceux qui la desservent, promettant de les
vere queste rimostranze con attenzione,  prendre en consideration, comme faites
come fatte da persona considerata d'una  par une personne de confiance d'une Puvicina e sinceramente mica Potenza."   issance voisine et sincerement amie."(h)
ART. XIV.                                ART. XIV.
" L'altissima Corte di Russia potrlI a:"A l'exemple des autres Puissanuces on
nurama' delle altre Potenze, a riserva della  permet h la haute Cour de Russie, outre
Chiesa Domestica, edificarne una nelle  la Chapelle batie dans la maison du
parte di Galata nella strada Detta Bey-  Ministre, de construire dans un quartier
Uglh, la qual Chiesa sarh pubblica, chia-  de Galata dans la rue nommee Bey Oglu,
mata Russo-Greca, e questa sempre si une dglise publique du rit Grec, laquelle
manterra' sotto la protezione del Ministro  sera toujours sous la protection des
di questo Impero, e anderh illesa da ogni Ministres de cet Empire et I l'abri de
molestia, ed oltraggio."                toute gene et de toute avanie."(i)
ART. VIII.                               ART. VIII.
" Si permitterh liberamente a' Sudditi    " I1 sera libre et permis aux sujets de
dell' Impero Russo, tanto Ecclesiastici,  l'Empire de Russie, tant sdculiers qu'ecquanto secolari, il visitare la S. Citta di clesiastiques, de visiter la sainte ville de
Gerusalemme, ed altri luoghi degni di Jerusalem et autres lieux dignes d'attenesser visitati, e non si dimanderh mai da  tion. II ne sera exig6 de ces pelerins et
tali viandanti, e viaggiatori, ne in Geru-  voyageurs par qui que ce puisse etre, ni
salemme, ne in altri luoghi, ne anche  a Jerusalem, ni ailleurs, ni sur la route,
nelle vie da chicchesia, nessun Caraccio,  aucun Charatsch, contribution, droit ou
taglia, o tributo, o qualche altra tassa.  autre imposition; mais ils seront munis
Ma oltre a cio saranno muniti co, conve-  de passeports et firmans, tels qu'on en
nienti passaporti, o Firmani, i quali si donne aux sujets des autres Puissances
danno ai sudditi delle altre Potenze. E  amies. Pendant leur sejour dans l'Emnel tempo ch' essi saranno nell' Impero  pire Ottoman, il ne leur sera fait le
Ottomanno, non si faraloro nesssun torto, moindre tort ni offense, mais au conan alcun oltraggio, ma saranno difesi con  traire ils seront sous la protection la plus
tutto il rigore delle leggi."           rigide des loix."
[*481]'The Treaty of Adrinople, (1829,) is referred to by Russia as
[i481  confirming the rights conceded by this Treaty of Kaynardgi.
That Treaty contains no new provision whatever on the subject of religion. There are special provisions relating to Moldavia and Wallachia,
both in the body of the Treaty and in an annexed Treaty; but the only
religious stipulation is for the free enjoyment and exercise of their religion.(k)
The substance of the provisions of the Treaties just cited appears to
be1. That Pilgrims, Ecclesiastics, and Travellers may visit, safely and
untaxed, Jerusalem and the Holy Places.
2. That certain new Chapels may be built in a particular quarter of
Chef le Feld-Marechal Comte de Roumanzow, pres du village de Kutschouc Kaynardgi sur la rive droite du Danube. —Martens, Rec. de Tr. t. ii. (1771-1779)
pp. 286-7.
(h) lb. pp. 296-7.     (i) Martens, Rec. de Tr. t. ii. (1771-1779) pp. 300, 301.
(k) Art. V.-" Elles jouiront du libre exercice de leuir culte," &c.




INTrE RV ENTION.                         345
Constantinople —  l'exemnple des autres puissances-besides the Ambassadorial Chapel, then existing: there is similar provision in the French
Treaty of 1740.
3. That the Sublime Porte, not the Emperor of Russia, shall continue
to protect the "C(hristian Religion:"-the interference of the Emperor
being, in the same clause, implicitly limited to the making representations in favour of a particular church and its clergy, to which the Porte,
on the ground of friendship alone, engages to listen.
CCCCVI. Not only the language of the Treaties which have been
concluded on this subject between Russia *and the Porte, must [482
be considered-but also the absence both of such Treaties them- L    J
selves, and the absence of such provisions in Treaties, when the circumstances might well seem to call for them. In other words, the present
demand of Russia must be negatively, as well as affirmatively, examined.
Let the cases of Servia and of Greece be considered.
The Christian Servians, who had made common cause with Russia in
her wars with the Porte, and had been included in the Treaty of Bucharest in 1812, applied in vain, though after suffering atrocious cruelties,
to the Congress of Vienna, even to mediate on their behalf, and yet in
that Congress Russia was pre-eminently powerful.
The Intervention of the great Christian Powers, among whom was
Russia, for the pacification of Greece, (1826,) was placed, as we have
seen,(l) with careful precision upon the necessity of putting an end to a
contest which injured the commerce and disturbed the repose of Europe,
and upon the request of the Greeks for the mediation of the European
Powers. In that Treaty, no allusion to the Russian Protectorate of the
Greek Church is to be found.
If these premises be correct the conclusion seems inevitable; but it
must be left to the impartial jurist of every nation to decide whether the
evidence, both negative and affirmative, is favourable to or conclusive
against the demand of Russia, whether it have a foundation in precedent
or whether it be altogether new.
CCCCVII. The general subject of the Balance of Power should not
be altogether dismissed without the remark, that the maintenance of this
doctrine does not require that all existing Powers should retain exactly
their present territorial possessions, but rather that no single Power
should be allowed to increase them in a manner which threatens the
liberties of other States.(m) The doctrine properly understood does not
*imply a pedantic adherence to the particular system of equili-  483
brium  maintained by existing arrangements, but to such an  483
alteration of it as the Right of Self-defence, acting by way of prevention, would authorise other Powers in opposing.(n)
(1) Vide ante, p. 105.       (m) Bolingbroke's Works, vol. ii. p. 439.
(n) "Sunt perfecto eruntque semper hujus libra lances impares: verum  est
politicorum  curare ne aliqua ex parte nimitm invergat discrimen. Quod ubi
recte providetur, etsi eveniant rerum conversiones salva manet doctrina equilibrii,
nomen ergo hoc sensu melihs interpretaberis prout Ancillon System der Gegenkrafte und der Wechselwirkung, quam cum alis System des Gleichgewichts."Klinkhammer, ubi supra, p. 61.
Lord Bacon says: "' Kings have to deal with their neighbours.-First, for their
SEPTEMBER, 1854.-23




346      PHILLIMORE  ON  INTERNATIONAL LAW.
neighbours there can no general rule be given (the occasions are so variable,)
save one which ever holdeth: which is, that princes do keep due sentinel, that
none of their neighbours do overgrow so (by increase of territory, by embracing
of trade, by approaches, or the like) as they become more able to annoy them
than they were; and this is generally the work of standing counsels to foresee
and to hinder it. During that triumvirate of kings, King Henry VIII. of England,
Francis I., King of France, and Charles V., Emperor, there was such a watch
kept that none of the three 6ould win a palm of ground, but the other two would
straightways balance it, either by confederation, or, if need were, by a war; and
would not in any wise take up peace at interest: and the like was done by that
league (which Guicciardini saith was the security of Italy) made between Ferdinando, King of Naples, Florenzius Medicea, and Ludovicus Sforza, potentates, the
one of Florence, the other of Milan. Neither is the opinion of some of the schoolmen to be received, that a war cannot justly be made but upon a precedent injury
or provocation; for there is no question but a just fear of an imminent danger,
though there be no blow given, is a lawful cause of war."-Bacon, Essay on
Empire,




CON.TENTS OF APIP ENDIX.
The pages referred to are those within brackets [  ].
APPENDIX I. Page 17.
International Jurisprudence of Ancient Rome.... 489
APPENDIX  II. Page 30.
Sources of International Law.-Extracts from Suarez, Domat, Merlin,
Vattel........         494
APPENDIX  III.  Page45.
Extract from the Speech of Lord Grenville, upon the Motion for an address to the Crown, approving of the Convention with Russia, 1801, as
to Effect of embodying a Principle of General Law in a Treaty  - 496
APPENDIX  IV. Page49.
Catalogue of Treaties relating to the Opening of Ports usually closed to
Foreigners. —Relache Force.....        498
APPENDIX V. Page87.
Recognition of European International Law by Turkey, April, 1854. 500
APPENDIX VI. Page 108.
Catalogue of principle Treaties and Manifestos between Christian Powers,
Morocco, Tripoli, Tunis...... 501
APPENDIX VII. Page263.
Prescription.-Extract from Donellus... 502




348    PH ILLIMORE ON  INTERN ATIONAL LAW.
APPENDIX  VIII. Page397.
16 & 17 Vict. c. 107, s. 150, as to Prohibition to export or carry coastwise Arms..... 503
59 Geo. 3, c. 69, Foreign Enlistment Act... 504
APPENDI X  I X. Pages 375, 376.
Case as to Jurisdiction of Masters of Foreign Merchantmen over their
Crew in French Ports.-Articles in certain Treaties relating to such
Jurisdiction....                      513
APPENDIX  X. Page430.
Extradition.-Case of Thomas Kaine, tried in the United States of North
America... 516
APPENDIX   XI. Page435.
Balance of Power. —Extract from F6nelon.-Convention between England, France, and the Ottoman Porte, against Russia, 1854. - 520




APPEND IX.
APPENDIX  I.  PAGE 17.
*INTERNATIONAL JURISPRUDENCE OF ANCIENT ROME.  [*489]
I. GROTIUS is literally inaccurate, as Orpteda, remarks, in citing
Cicero for a direct assertion that the science of International Jurisprudence was, in the abstract, an excellent thing.  But unquestionably, in
the passage upon which Grotius relies for this assertion, International
Jurisprudence is recognised as a science, and acquaintance with it as the
accomplishment of a statesman.  Cicero,(a) speaking of Pompey, says
that he possessed c proestabilem scientiam in frederibus, pactionibus, conditionibus populorum, regum, exterarum  nationurn in universo denique
belli jure et pacis," and it would not be easy to give a juster, better,
more complete recognition, or a fuller description of the science of which
we are treating.  In Sallust, the expression jus gentium  is certainly to
be found used in the sense of International Law, and also in some passages of Livy. For instance, when Sallust tells us that Marius, in putting
to death the Numidians who had surrendered (in deditionem acceptos)
acted contra jus belli, he speaks of it as a violation of a recognised rule
of International Law, applicable now, as then, to a state of war.  And
Bocchus is made by the same author to claim the part of Numidia conquered from Jugurtha as "jure belli suam facturnm."  Again, Jugurtha
Adherbal, who had attempted his (Jugurtha's) life " Populum Romaintains that the Senate had no right to prevent him from attacking
manumn neque recte, neque pro bono facturum, si ab jure yentium sese
prohibuerit."(b) In the most barbarous times, ambassadors are said to
be,"jure gentium sancti."(c) In both these instances the meaning would
be correctly rendered by the words Law of Nations. There is another
passage in the   Boellum Jugurthinum" in which the Law of Nations,
with respect to the privilege of the ambassador's suite, is clearly distinguished from the Law of Nature: c Fit reus magis ex vequo bonoque,
quam  ex jure gentium  Bomilcar, comes ejus qui Romam  fide publica
(a) Orat. pro Lege Manil.         (b) Sail. Bell. Jugurth. 225.
(c) Liv. xxxix. 25.




350     PHILLI IMORE ON INTERNATIONAL LAW.
venerat."  The expression of Lucan, as to the violation of the Laws of
Embassy by the Egyptians, is very strong:
" Sed neque jus mundi valuit, rneque ftedera sancta
Gentibus."-Lib. x. 471-472.
With respect to the use of this expression jus gentivum, in the compilations of Justinian, it appears generally to be used to signify, someF*4901 times *what is called in modern times the Law of Nature, sometimes a positive Law universally instituted by all civilised nations.
So, in the Digest,(d) acceptilatio, or the release of a debt, is said to be
juris gentiuzn; and in modern times English Judges have said that questions relating to marriage are juris gentium.
Gaius and other Roman jurists made a twofold partition of Jus: into
1. Jus Gentium vel Naturve; 2. Jus Civile.  Ulpian and others made a
threefold partition: 1. Jus Gentium; 2. Jus Civile; 3. Jus Naturalemeaning by this to include the interests common both to man and
beast. Savigny rightly rejects this last partition, and adheres to the
first.(e)
There are, however, passages in which jus gentiunm clearly does mean
International Law.  Thus, in the Digest, we read: "Si quis legatum
hostium  pulsasset, contra jus gentium  id commissum  esse existimatur,
quia sancti habentur legati. Et ideo, quum legati apud nos essent gentis
alicujus, quum  bellum  eis indictum  sit, responsum  est, liberos eos
manere; id enim  juri gentium conveniens esse.  Itaque eum, qui legatum pulsasset, Quintus Mucius dedi hostibus, quorum erant legati, solitus est respondere; quem hostes si non recepissent, quaesitum est, an
civis Romanus maneret quibusdam  existimantibus manere, aliis contra,
quia quem semel populus jussisset dedi, ex civitate expulisse videretur,
sicut faceret, quum aqua et igne interdiceret.  In qua sententia videtur
Publius Mucius fuisse.  Id autem  maxime queesitum est in H-ostilio
Mancino, quem Numantini sibi deditum  non acceperunt, de quo tamen
lex postea lata est, ut esset civis Romanus, et Praeturam quoque gessisse
dicitur."(f)
In the Institutes it is said: " Sed naturalia quidem  jura, qute apud
omnes gentes peraeque servantur, divina quadam  providentia constituta,
semper firma atque immutabilia permanent; ea vero quee ipsa sibi quveque civitas semper constituit, saepe mutari solent, vel tacito consensu
populi, vel alia lege poster lath."(g)
Here jus gentium and jus naturate, as the Law of Nature, are clearly
synonymous.  But in Gaius we find this remarkable passage: after
having said that only Roman citizens were competent to enter into a
contract in the form spondes? spondeo, he continues, "Unde dicitur,
uno casu hoc verbo peregrinum quoque obligari posse, velut si Imperator
noster Principem alicujus peregrini populi de pace ita interroget, Pacem
futuram  spondes? vel ipse eodem  modo interrogetur.  Quod nimium
(d) Lib. xlvi. t. iv.
(e) System des R. R., i. (Beylage I.) See, too, Cic. de Off. i. 3-5.
(f) Dig. lib. 1. t. vii. s. 17.
(y) Inst. de Jur. Nat. Gent. et Civ. 1. i. t. ii, s. 11.




APPENDIX I.                              351
subtiZter dictum est; quia si quic aCdversus pactionem fiat, non ex stipulatu agitur, sedjure belli res vindicatur."(h)
*The reader who is anxious to prosecute his inquiries further [*491]
into this not uninteresting subject, would do well to consult the [491
following, among other treatises:
1. Warnkoenig, " Vorschule der Institutionema  und Pandekten," 83.
2. Savigny, c System des Rimischen Recht," i. 112; and Beylage I.
to that volume.
IT. —1. Observations upon the "c (ollegium Fecialium" and the Jus
Feciale."  2. The institution of the c Recuperatores," and the doctrine
of the'" Recuperatio."
1. Varro gives the following definition of the term: "o Feciales, quod
fidei publicoe inter populos proeerant; nam per hos fiebat ut justum conciperetur bellum, et inde desitum ut foedere fides pacis constitueretur.
Ex his mittebantur antequam conciperetur, qui res repeterent, et per hos
etiam nune fit foedus, quodfidus Ennius scribit dictum."(i)
The Roman institution of the Feciales was probably derived originally
from the Egyptians, but directly from  the Greeks through the medium
of their colonies settled in Italy; but it is a memorable characteristic of
the Romans, that the founding of an institution having for its object the
establishment and maintainance of fixed relations both in war and peace
with neighbouring states, should have been almost coeval with the origin
of their empire.  The Feciales, occupying a middle station between
priests and ministers of state, regulated, with as much precision as the
heralds of the middle ages, and according to a certain ritual, the forms
and usages relating to the treatment of ambassadors, the concluding of
treaties, the promulgation and conduct of war.(k)  In these, as in all
important concerns, the sanctions of religion were invoked to strengthen
the obligations of morality.  Cicero says: " Belli quidem vequitas sanctissimin feciali populi jure proescripta est:"(z) and the facts recorded in
history appear to warrant this description.  If a dispute arose between
Rome and another independent State, Feciales were sent to demand repaparation.  If the attempt failed, war was declared according to minute
and particular formalities.
It is not within the scope of this work to show how the decay and decline of this remarkable institution accompanied the corruption and overthrow of the republic.(n)
2. We know from other sources, besides the certain testimony of etymology, that in the very earliest ages both of Greece and Rome, the
stranger and the enemy were synonymous terms (XpOp6s, h7ostis.)(n)
*To the necessity which dawning civilisation soon produced, of   492]
maintaining a friendly intercourse with the inhabitants of neigh- [4]
(h) The passage is cited by Savigny, System des Romischen Recht, vol. iii. (note
c), p. 310,
(i) Varro, De Lingua Latina, 1. v. s. 86, p. 34 (Leipsic, 1833).
(k) Sell, pp. 23-74.
Grotius, De J. B. et P. 1. ii. c. i. s. 22, p. 168.
(1) Cic. De Off. 1. i.
(mn) Ompteda, Vl1kerrechts, s. 341, p. 146.
(n) Sell, pp. 2-3, and notes.




352      P H ILLIM O R E  ON  INT ERNATIONAL  LAW.
bouring states, as well as to some peculiarities in the condition of the
founders of Rome, we owe the institution of the Recluperatores, and the
doctrine of the Recmtperatio.(o)
For in order to satisfy this necessity, treaties were entered upon, in
which the administration of justice to the individual subjects of the contracting parties within the dominions of either was mutually guaranteed.
Therefore Grotius correctly observes: c" Tenetur (i. e. rex aut populus)
etiam dare operam  ut damna resarciantur: quod oficium  Romae erat
recuperatorunm.  Gallus 2Elius apud Festum, Reciperatio cumn inter est
populumn et reges, nationesque ac civitates peregrinas, lex convenit, quomodo per reciperatorem  redcdantur res reciperenturque, resque privatus
inter se prosequantur."
Sell, to whose very learned work I have already referred, cites the
passage from  Festus, but makes no mention of Grotius —at least, I can
find none.
The Recuperatores(p) were judges chosen for the purpose of deciding
questions at issue between the native and the alien ally.  Such a treaty,
indeed, implied that the parties to it were free and independent States.
For as soon as the one became actually subject to the other, the existence
of such a treaty was useless, as the conquered might, and generally was
compelled to, adopt the laws of the conqueror.  Equally useless would
such a treaty be in the case of two nations subsisting in so intimate an
union as to be, as it were, citizens of one state. And if we bear in mind
that in either of these contingencies a Recuperatio could have no place,
and remember how rapidly the march of the Roman empire reduced
foreign countries within one or other of them, we shall not be surprised
that the traces of the proper and primary application of this peculiar
branch of jurisprudence became fainter as we advance in the history of
Rome, and at last disappear altogether from her records.(q)
But when the Recuperatio was no longer strictly applicable, according to the letter of its original institution, because the subject, namely,
two independent States, was wanting, the principle of this jurisprudence
was transferred by the practical wisdom of Rome, to the arbitration of
disputes arising between Romans and the inhabitants of their colonies,
and also of the provinces which it pleased them to leave with the appearances of independent States.  Livy records a very striking instance of
its application, at the request of the legate from  Spain to the Senate of
Rome.
493  Hispanie deinde utriusque legati, aliquot populorum in sena[C493] tumrn introducti. Ii, de magistratuum Romanorum avaritia superbiaque conquesti, nisi genibus ab senatu petierunt, ne se socios foediuts
spoliari vexarique, quamn hostes, patiantur. Quumn et alia indigna quererentur, manifestumn autem esset, pecunias captas, L. Canuleio proetori,
qui Hispaniam sortitus erat, negotium datum est, ut in singulos a quibus
Hispani pecunias peterent, quinos recupera.tores ex ordine senatorio daret,
(o) Sell, 339.
(p) " 0 Rem proeclaram vobisque ab hoc retinendam Recuperatores," &c.-Cic.
Orat. pro Cuecina, ss. 22. 24-25.
(q) Sell, 339-40.




APPENDIX  II.                            353
patronosque quos vellent, sumendi potestatem faceret. Vocatis in curiam
legatis recitatum est senatfis consultum, jussique nominare patronos;
quatuor nominaverunt, M. Porcium  Catonem, P. Cornelium, Cn. T.
Scipionem, L. ZEmilium, L. F. Paullum, C. Sulpicium  Gallum, Cum.
M. Titinio primum  qui praetor, A. Manlio, M. Junio consulibus, in
citeriore Hispania fuerat, recuperatores, sumserunt.  Bis ampliatus,
tertio  absolutus est reus.Ad recuperatores adducti a
citerioribus populis P. Furius Philus, ab ulterioribus M. Matienus.
Ille, Sp. Postumio, Q. Muc io consulibus triennio ante, hic biennio prius,
L. Postumio, M. Popilio consulibus, praetor fuerat.  Gravissimis criminibus accusati ambo ampliatique: quum dicenda de integro caussa esset,
excusati exilii causa vertisse."(r)
While the Recuperatio existed in its primitive state, it presented a
perfect picture of international arbitration upon the claims of individuals
the subjects of different States, that is, upon questions of Private International Law. The better opinion seems to be, that it took no cognizance
directly of questions of Public International Law, which belonged to the
province of the Feciales.
The reader is referred to the following works for fuller information on
this subject:
i. Alexandri ab Alexandro Geniales Dies, vol. ii. 1. v. c. 3, I Quonam
modo per Feciales inirentur foedera, aut bella indicerentur, et quib ab
exteris servatum est," ed. Lugd. Bat. 1673.
2. Sell, Die Recuperatio der TRmer, ed Braunschweig, 1837.(s)
APPENDIX  II.  PAGE 30.
SOURCES OF INTERNATIONAL LAW.
(Extract from  Suarez, De Legibus ei Deo Legislatore, lib. ii. c. xxix.
n. 9.)
HAVING distinguished jus gentium  from jus naturce, he proceeds to
say of the former: ", Ratio hujus juris est, quia humanum *genus, [.494]
quamvis in varios populos et regna divisum, semper habeat aliquam  unitatem, non solum  specificam, sed etiam  quasi politicam  et
moralem, quam indicat naturale preeceptum mutui amoris et misericordie,
quod ad omnes extenditur, etiaim extraneos et cujuscunque nationis.
Quapropter licet unaquveque civitas perfecta, respublica aut regnum sit
in se communitas perfecta, et suis membris constans; nihilo minus
qurelibet illarum est etiam membrumn  aliquo modo hujus universi, prout
(r) Liv. xlii. 2. Sell, 365-6.
(s) " Das die in Privatsachen richtenden Recuperatores jemals in irgend einer
rein offentlichen Sache entschieden hatten, gleichwiel ob die betreffenden Staaten
unabhangig, einem Bunde angehorig, oder einem dritten untergeben waren, lasst
sic durch keine Zeugnisse der alten belegen; wohl aber sind dergleichen aufzufinden, aus deren das Gegentheil hervorgeht."-Sell, 57. See, too, 84




354      PHILLIMORE ON  INTERNATIONAL  LAW.
genus humanum spectat. Nunquam enim illse communitates adeo sunt
sibi sufficientes sigillatim, quin indigeant aliquo mutuo juvamine et
soeietate ac communicatione, interdumn ad melius esse majoremque utilitatem, interdum  vero et ob moralem  necessitatem.  Hice ergo ratione
indigent aliquo jure, quo dirigantur et rect6 ordinentur in hoe genere
communicationis et societatis.  Et quamvis magnda ex parte hoe fiat per
rationem naturalem, non tamen sufficienter et immediate quoad omnia;
ideoque specialia jura potuerunt usu earundem gentiumr introduci."
(Extract froom the Traite des Loix, by Domat, chap. xi. s. 39.)
cc COMME tout le genre humain compose une socie'te universelle, divis6e
en diverses nations, qui ont leurs gouvernemens separez, et que les
nations ont entr'elles de diffirentes communications, il a et6 necessaire
qu'il y eit des loix qui reglassent l'ordre de ces communications, et pour
les princes entr'eux et pour leurs sujets, cee qui renferme l'usage des
ambassades, des negociations, des Traites de Paix, et toutes les manieres
dont les princes et leurs sujets entretiennent les commerces, et les autres
liaisons avec leurs voisins.  Et dans les guerres meme il y a des loix
qui reglent les manieres de declarer la guerre, qui moderent les actes
d'hostilit6, qui maintiennent l'usage des mediations, des treves, des suspensions d'armes, des compositions, de la suret6 des Otages, et d'autres
semblables.
"Toutes ces choses n'ont puQ etre r6glees que par quelques loix: et
comme les nations n'ont aucune autorite pour s'en imposer les unes aux
autres, il y a deux sortes de loix, qui leur servent de regles. L'une des
loix naturelles de l'humanite, de l'hospitalite, de la fidelite, et toutes
celles qui dependent de ces premieres, et qui r6glent les manieres dont
les peuples de difffrentes nations doivent user entr'eux en paix, et en
guerre.  Et ]'autre est celle des r6glemens dclont les nations conviennent
par des Traites, ou par des usages, qu'elles etablissent et qu'elles observent reciproquement.'Et les infractions de ces loix, de ces
L0, traites, et de ces usages sont reprimees par des guerres ouvertes,
et par des represailles, et par d'autres voyes proportionndes aux ruptures,
et aux entreprises.
" Ce sont ces loix communes entre les nations qu'on pent appeller et
quo nous appellons communement le droit des gens; quoique ce mot soit
pris en un autre sens dans le droit Romain, ou l'on comprend sous le
droit des gens les contrats meme; comme les ventes, les louages, la
soci6te, le depo5t, et autres, par cette raison qu'ils sont en usage dans
toutes les nations."
(Extract from Merina, Repertoire de Jurisprudence, vol. v. p. 291.)
" Le droit prizitif des gens est aussi ancien que les hommes, et il est par
essence aussi invariable que le droit naturel; les devoirs des enfans envers
leurs peires et leurs meres, l'attachement des citoyens pour leur patrie,
la bonne foi dans les conventions, n'ont jamais dfi souffrir aucun change



APPENDIX  I.                             355
ment; et ces devoirs, s'ils n'ont pas 6t6 toujours remplis, ont toujours duf
l'8tre.
c( Quant au droit des gens secondaire, il s'est forme, comme on l'a dej'a
dit, par succession de temps.  Ainsi, les devoirs reciproques des citoyens
out commence lorsque les hommes out bati des villes pour vivre en
societ6; les devoirs des sujets envers l'6tat ont commence lorsque les
hommes de chaque pays qui ne composaient entre eux qu'une meme
famille soumise au seul governement paternel, out etabli au-dessus d'eux
une puissance publique qu'ils ont defer6ee i un ou I plusieurs d'entre
eux.
4L'ambition, l'int6ret, et les autres sujets de discorde entre les puissances voisines, ont donne lieu aux guerres et aux servitudes personnelles; telles sont les sources funestes d'une partie de ce second droit
des gens.
4"Les diff6rentes nations, quoique la plupart divisees d'interets, sont
convenues entre elles tacitement d'observer, tant en paix qu'en guerre,
certaines regles de biensdance, d'humanite et de justice, comme de ne
point attenter h la personne des ambassadeurs ou autres personnes envoy6es pour faire des propositions de paix ou de treve; de ne point
empoisonner les fontaines; de respecter les temples; d'epargner les
femmes, les vieillards, et les enfans; ces usages et plusieurs autres
semblables, qui par succession des temps ont acquis force de loi, ont
form6 ce qu'on appelle le dr~oit des gens on le droit commun aux divers
peuples."
(Extract from  Vattel, Pre'lim. s. 6.)
"cIl faut done appliquer aux nations les regles du droit naturel, pour
d6couvrir quelles sont leurs obligations, et quels sont leurs droits; par
consequent le droit des gens n'est originairement autre chose que le droit
de la nature acpplique' aux nations.  Mais comme l'application d'une
regle ne peut etre juste et raisonnable, si elle *ne se fait d'une [*496]
maniere convenable au sujet, ii ne faut pas croire que le droit [       ]1
des gens soit pr6cis6ment et partout le meme que le droit naturel, aux
sujets pres, en sorte que l'on n'ait qu'i substituer les nations aus particuliers.  Une societe civile, un ktat, est un sujet bien diff6rent d'un
individu humain; d'ou resultent, en vertu des lois naturelles meme, des
obligations et des droits bien diffdrents en beaucoup de cas; la menme
regle gen6rale, appliquee I deux sujets, ne pouvant operer des ddeisions
semblables, quand les sujets diffbrent; ou une regle particuliere, tres
juste pour un sujet, n'etant point applicable'a un second sujet de toute
autre nature.  II est done bien des cas, dans lesquels la loi naturelle ne
decide point d'etat'a etat, comme elle deciderait de particulier'a particulier.  I1 faut savoir en faire une application accommod6e aux sujets; et
c'est l'art de l'appliquer ainsi, avec une justesse fond6e sur la droite
raison, qui fait du droit des gens une science particuliere."




356     PI I LLIMORE  ON INTEr NATIONAL LAW.
APPENDIX  III.  PAGE 45.
(Extract froom  the Speech of Lorcl Grenville uqpon the Motion for an
Address to the Crown, approving of the Convention with Russia in
1801, as to the Effect of embodying a Principle of General Law in a
Treaty.)
" BUT, among the numerous instances in which such a revisal of the
present Treaty appears to be essential to the public interests, there is
none of such extensive importance as that to which I must next intreat
the particular attention of the House.
"c On comparing together the different sections of the third article of
this convention, one great distinction between them cannot fail to be remarked, even by the most superficial observer.  The two first sections
and the fifth, those which relate to the coasting and colonial trade, and
to the proceedings of our maritime tribunals, are in their frame and operation manifestly prospective. They provide only for the future arrangement of the objects which they embrace; and they profess to extend no
further than to the reciprocal conduct of Great Britain and Russia
towards each other.
" The third and fourth sections, on the contrary, those which treat of
contraband of war and of blockaded ports, do each of them expressly contain, not the concession of any special privilege henceforth to be enjoyed
by the contracting parties only, but the recognition of a universal and
pre-existing right, which, as such, cannot justly be refused to any other
independent State.
"4This third section, which relates to contraband of war, is in all its
4{97] parts strictly declaratory.  It is introduced by a separate preLi ] atumble, announcing that its object is to prevent' all ambiguity
or misunderstanding as to what ought to be considered as contraband of
war.'
" Conformably with this intention, the contracting parties declare in
the body of the clause, what are the only commodities which they'acknowledge as such.' And this declaration is followed by a special reserve,
that it  shall not prejudice their particular' Treaties with other powers.'
"If the parties had intended to treat of this question only as it related
to their own conduct towards each other, and to leave it in that respect
on the same footing on which it stood before the formation of the hostile
league of 1800, all mention of contraband in this part of the present convention would evidently have been superfluous, nothing more could in
that case be necessary than simply to renew the former treaties, which
had specified what articles of commerce the subjects of the respective
powers might carry to the enemies of each other; and as we find that
renewal expressly stipulated in another article of this same convention,
we must, in common justice to its authors, consider this third section as
introduced for some distinct and separate purpose.  It must, therefore,
unquestionably be understood in that larger sense which is announced in




APPENDIX  III.                          357
its preamble, and which is expressed in the words of the declaration
which it contains.  It must be taken as laying down a general rule for
all our future discussions with any power whatever, on the subject of
military or naval stores, and as establishing a principle of law which is
to decide universally on the just interpretation of this technical term of
contraband of war.
c"Nor indeed, does it less plainly appear from the conclusion, than it
does from  the preamble, and from  the body of this section, that it is
meant to bear the general and comprehensive sense which I have here
stated. The reservation which is there made of our special treaties with
other powers, is manifestly inconsistent with any other more limited construction.
"For if the article had really no other object in its view, than to
renew or to prolong our former engagements with the Northern Crowns,
what imaginable purpose can be answered by this concluding sentence?
Was it necessary to declare that a stipulation extending only to Russia,
to Denmark and to Sweden, should not prejudice our treaties with other
powers?  How should it possibly have any such effect?  How can our
treaties with Portugal or with America be affected by the renewal of
those engagements which had long ago declared what articles might be
carried in Russian or Danish ships? But the case would indeed be
widely different under the more enlarged construction which evidently
belongs to this stipulation. The reserve was not only prudent, but
necessary, when we undertook to lay down a universal principle, applying alike to our transactions with every independent State.  In recognising a claim of *pre-existing right, and in establishing a new  *498
interpretation of the law of nations, it was unquestionably of [498
extreme importance expressly to reserve the more favourable practice
which our subsisting treaties had established with some other powers.
" And that which was before incongruous and useless would therefore,
under such circumstances, become, as far as it extends, an act of wise and
commendable forethought.
"a On the whole, therefore, I have no doubt that neutral nations will
be well warranted in construing this section as declaratory of a universal
principle, and applicable to every case where contraband of war is not
defined by special treaty.  Nor could we, in my opinion, as this treaty
now stands, contend in future wars with any shadow of reason, much
less with any hope of success, against this interpretation, however destructive it must be of all our dearest interests.  Least of all can we
resist it, when we are reminded, that in a succeeding article of this very
convention we have bound ourselves by the most distinct engagement, to
regard all its principles and stipulations as permanent, and to observe
them as our constant rule in matters of commerce and navigation; expressions exactly corresponding with those by which the parties to the
two neutral leagues asserted both the permanence and the universality of
the principles which were first asserted by those confederacies, and which
the present convention so frequently recognises and adopts.
"It is, therefore, highly necessary that your lordships should carefully examine what is this general interpretation which the contracting




358    PHILLIMORE  ON INTERNATIONAL LAW.
parties have thus solemnly declared; what sense it is that they have
thus permanently affixed to a term so frequently recurring in the practice and law of every civilised nation, and so intimately connected with
the exercise of our naval rights as that of contraband of war."
APPENDIX IV. PAGE 49.
CATALOGUE OF TREATIES RELATING TO THE OPENING OF PORTS USUALLY
CLOSED TO FOREIGNERS.
(See Relc7we Force'e, Index Expifcatif De Martens et De Cussy,
Recueil de Traite's, &c, t. i. p. 42.)
AUSTRIA and Spain, 1725.
9,   and France, 1841.
cc   and Russia, 1785.
9   *Columbia and the North American United States, 17240
[*499] Denmark the Two Sicilies, 1748,
"    and Spain, 1741.
"    and France, 1663 and 1742.
44   and Great Britain, 1669.
c"   and Holland, 1701.
"a   and the Ottoman Porte, 1756.
"    and Prussia, 1818.
cc   and Russia, 1780, 1782.
and Sweden, 1645.,, and Tunis, 1751.
Two Sicilies and Holland, 1753.
and Russia, 1787.
and Sweden, 1742.
Spain and Great Britain, 1665, 1667, and 1670.
Id and Holland, 1648, 1650, 1714.
and Morocco, 1789 and 1799.
"  and the Ottoman Porte, 1782 and 1827.
" and Portugal, 1715.
and Tripoli, 1784.
and Tunis, 1791.
" and Hanseatic Towns, 1648.
United States of North America and Central America, 1825.
aC            ic      and Great Britain, 1794 and 1806.
cc           Ad       and Holland, 1782.
and Morocco, 1788.
and Prussia, 1785, 1799, and 1828.
rc  rc  and Sweden, 1783 and 1816.
d(           (z       and Tripoli, 1796 and 1805.
s'cs     and Tunis, 1797.




APPENDIX  Vo                         359
France and Spain, 1768 and 1786.
"c  and The United States, 1606 and 1800.
and Great Britain, 1606, 1686, 1713, 1786, and 1826.
and Morocco, 1767, 1824, and 1825.
"   and Holland, 1662, 1678, 1697, 1713, 1789, 1829, and 1840.
"   and the Ottoman Porte, 1535,1569, 1581,1604, 1673, and 1740.
a   and Portugal, 1835.
c   and Russia, 1787.
cc  and Sardinia, 1838 and 1843.
"   and Sweden, 1829.
Great Britain and Russia, 1843.
Morocco and Holland, 1663 and 1752.
H-olland and Sweden, 1679.
cc and Tunis, 1662 and 1713.
*APPENDIX  V. PAGE 87.                  [*500]
RECOGNITION OF EUROPEAN INTERNATIONAL LAW BY TURKEY.
(Extract,from  cc The lorning Cihronicle," April 20th, 1854.)
THE Journal de Constantinople, of the 5th, publishes two interesting
documents.  The first is a reply from Reschid Pacha, dated the 1st, to a
note of M. Metaxa, the Greek Ambassador.  It is as follows:
c I have read the note of the 26th ult, in which you communicated to
me your intention to quit this city.  As the Government of the Sublime Porte has not obtained from that of Greece a sufficient satisfaction
for its just claims, and as the charge d'afaires of the Porte must have
quitted Athens according to his instructions, it is natural that you should
quit this capital. I send your passports, therefore, as you request.  As
from this day the diplomatic and commercial relations between the two
Governments have ceased, it has been decided that the persons connected
with the Greek Embassy residing here, and also the Greek Consuls in
the different provinces of the empire, shall immediately return to their
own country.  The merchants and other subjects of the Greek Government established in Turkey are also to leave Constantinople; but in
order that their interests may not suffer, a delay of fifteen days from the
present day is accorded to them. As to those who reside in the provinces
of the empire, the delay of fifteen days will reckon from the day on which
they receive notice to leave. It results from positive proofs that it is
not in consequence of negligence, but through the toleration of the Greek
Government, that the Turkish provinces bordering on Greece have been
invaded. Although the Imperial Government has incontestably the
right to stop and confiscate all the Greek vessels in its ports, as a guarantee for the repayment of the expense to which it has been put, his
Imperial Majesty the Sultan, my august sovereign, does not think it will
be consistent with his feelings of justice and moderation to make the




360     P HILLIMORE  ON  INTERNATIONAL  LAW.
owners of these vessels suffer for a question which regards the Greek
Government.  When the latter shall have returned to more just sentiments, and have taken into consideration international rights and the
law of nations, the claims for these expenses will be examined.  All
Greek vessels therefore may, without hindrance, leave for Greece, within
the delay specified. Orders have been given to all functionaries to facili*501]r tate the departure of those *Greek subjects who are poor and desLi ]*1 titute, and as much as possible to exercise indulgence towards
those who are sick and infirm.  I think it my duty to repeat once more,
that it is the Greek Government alone which has given rise to this decision, and that the entire responsibility of it must fall upon Greece.  In
making this communication by order of His Majesty the Sultan, I take
the opportunity of renewing to you the assurance of my distinguished
consideration.
R RESCHID."
APPENDIX VI. PAGE 108.
CATALOGUE OF PRINCIPAL TREATIES AND MANIFESTOS BETWEEN- CHRISTIAN POWERS AND MOROCCO, TRIPOLI) TUNIS (Regences Barbaresques).
SINCE 1830, Algiers has become a French colony, and Consuls of foreign
nations are resident there. The principal Treaties before this epoch range
themselves between 1760 and 1830.
Morocco.
Great Britain and Morocco, 28th July, 1760.  24th May, 1783.
Treaty between Holland and Morocco, concerns all Christian nations,
especially England and Spain, 15th May, 1786. 8th April, 1791. 14th
June, 1801. Explained and renewed by, 19th January, 1824.
France and Morocco, 28th May, 1767. Additional articles by Treaty
of, 27th May, 1824. 16th September, 1836. 10th September, 1844.
Denmark and Morocco, 25th July, 1767.
Holland and Morocco, 29th June, 1777. 15th May, 1786 (vide supra).
2nd December, 1791.
Tuscany and Morocco, 6th February, 1778.
North American United States and Morocco, 1st January, 1787.  16th
September, 1836.
Spain and Morocco, 20th October, 1789. 1st March, 1799. 6th May,
1848.
Tripoli.
Tripoli with Great Britain, 22nd July, 1762.  10th May, 1812.  17th
April, 1816.  29th April, 1816, as to the Ionian Islands.  8th March,
1818, declaration of the Bey.




APPEND IX  VII.                         361
5Tripoli with France, 12th December, 1774. 29th June, 1793. [502]
19th June, 1801.  11th August, 1830.
Tripoli with Spain, 10th September, 1784.
with North American United States, 4th November, 1796.'   with Portugal, 14th May, 1799.
" with Sweden, 2nd October, 1802.
"   with Prussia, Firman of the Ottoman Porte, September, 1803.
"   with Kingdom of Two Sicilies, 29th April, 1816.
"   with Sardinia, 29th April, 1816.
Tunis.
Tunis with Great Britain, 22nd June, 1762.  2nd May, 1812. 16th
October, 1813, as to the Ionian Islands. 17th April, 1816, Declaration
of the Bey.  19th October, 1816, the same.  28th May, 1822, as to the
right of a certain tax on imported rice.  1st January, 1824, Declaration
of Bey.  7th January, 1824, same.  9th September, 1825.  13th April,
1824, Declaration of Bey.
Tunis with France, 21st Miay, 1765.  13th September, 1770.  3rd
June, 1774.  25th May, 1795.  23rd September, 1802.  15th November, 1824.  9th August, 1830.  24th October, 1832, as to Coral
Fishery.
Tunis with Spain, 19th July, 1791.
"  with North American United States, August, 1797.   24th
February, 1824, modifying, 1797.
c  with Sweden, 1764, renewing Treaty of 1736.
c  with Prussia, Firman of the Ottoman Porte, 1803.
c  with Kingdom of Two Sicilies, 17th April, 1816.
"4 with Sardinia, 17th April, 1816.  22nd February, 1832.
c'  with Belgium, 14th October, 1839.
APPENDIX  VII.  PAGE 263.
PRESCRIPTION.
(Extract from  the Comnmentaries of Donellus.  (lib. iv. c. iv. p. 334.)
De usucap2ionibus longi- tenmporis prcescr2ptionibus, &c.)
" POSTREMO etiam privata traditione res alienee invitis dominis ad nos
transeunt jure civili, si usus et justa possessio diuturnior accesserit.  Sic
enim res qumru-ntur jure civili per usum et possessionem.  Hianc acquisitionem nune referimus *inter eos modos quibus invito dominio
acquisitio contingit: et recte.  Nam et res ita habet, ut quamvis [*503 
dominus, nolit rem suam usucapi ab eo, qui earn bona fide possidet, tamen
per statutum  tempus possessa, possessori acquiratur, ut postea dicetur.
Juris quidem interpretatione usucapio alienationis species habetur; quasi
existimetur alienare, qui patitur usucapi (1. alienationis.  D. de verb.
SEPTEMBER7 1854. —24




362     PHILLIMORE ON INTERNATIONAL LAW.
significat.). Quh ratione et inter genera alienationis usucapio recenseri
solet in ratione dominii amittendi, de quo sou loco, sed ductumn hoc est
ex eo, quod videtur, et quod ut plurimium  accidit: quando quidemn existimatur unusquisque scire res suas, et a quo possideantur, et cum sciet,
posse interrumpere usucapionem rein suam repetendo.  Verium hoe non
semper ita fit.  Quid eniEn, si heres ignoret res aliquas hereditarias, qua
ab alio possidentur?  Quid si sciat dominus rem  suam  ab aliquo possideri, sed non audeat cume eo contendere judicio, quia ejus potentiam
metuat? Quid, si ideo non interpellet possessorem, quia in jure errans
putet nihilominus sibi jus suum semper salvum  mnanere?  In quibus
omnibus nemo dicet, si res usucapitur aliter qu~am invito domino, possessofi acquiri.  Constat tamen acquiri.  Hoc ergo sentio, etsi ita res possideatur invito domino, tamen si possideatur per legitimum temnpus, impleri usucapionem proinde et acquisitionem invito domino: quse ideo ad
hunc locum pertinet."(t)
APPENDIX  VIII.  PAGE 397.
RIGHT OF JURISDICTION OVER PERSONS AND THINGS.
cc 16 & 17 Vict. c. 107.-An Act to amend and consolclate the Laws
relating to the Customs of the United Kingdom and of the Isle of Man,
and certain Laws relating to Trade and Navigation and the British
Possessions.                              [20th August, 1853.]
" SEC. 150. —The following good smay, by Proclamation or Order in
Council, be prohibited either to be exported or carried coastwise: —arms,
ammunition, and gunpowder, military and naval stores, and any articles
which her Majesty shall judge capable of being converted into or made
useful in increasing the quantity of military or naval stores, provisions,
or any sort of victual which may be used as food by man, and if any
*504] *goods so prohibited shall be exported from  the United King1   dom, or carried coastwise or be water-borne to be so exported or
carried, they shall be forfeited."
In accordance with the provisions of this Statute, soon after the breaking out of the present war with Russia (Saturday, February 18, 1854),
the Queen issued the following Proclamation:"BY THE QUEEN-A PROCLAMATION.
" VITCTORIA R.
c'Whereas, by the Customs Consolidation Act, 1853, certain goods
may be prohibited either to be exported or carried coastwise; and whereas
We, by and with the advice of our Privy Council, deem it expedient and
necessary to prohibit the goods hereinafter-mentioned either to be exported or carried coastwise; We, by and with the advice aforesaid, do
(t)-Hugonis Donelli Comment. de Jure Civili (Franco. 1589), lib. iv. c. iv. p. 334.




APPENDIX  VIII.                           363
hereby order and direct that, from and after the date hereof, all ARMs,
AMMUNITION, and GUNPOWDER, {MILITARY and NAVAL STORES, and
the following articles-being articles which we have judged capable of
being converted into, or made useful in increasing the quantity of military or naval stores-that is to say, marine engines, screw propellers,
paddle wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler
plates, fire bars, and every article or any other component part of an
engine or boiler, or any article whatsoever which is, or can, or may become applicable for the manufacture of marine machinery, shall be and
the same are hereby prohibited either to be exported from the United
Kingdom or carried coastwise.
"c Given at our Court at Buckingham Palace, this eighteenth day of
February, in the year of our Lord One thousand eight hundred
and fifty-four, and in the seventeenth year of Our Reign.
" GOD SAVE THE QUEEN."
The Foreign Enlistment Act (59 Geo. III. cap. 69) referred to in the
text is as follows: —(u)
An Act to prevent the Enlisting or Engagement of his Majesty's Subjects
to serve in Foreign Service, and the fitting out or eguipping, in his
_Majesty's Domninions,   Vessels for Warlike Purposes, without his MIajesty's License.                                [3rd July, 1819.]
WHEREAS the enlistment or engagement of His Majesty's subjects to
serve in war in foreign service, without His Majesty's license, [505]
*and the fitting out and equipping and arming of vessels by His
Majesty's subjects, without His Majesty's license, for warlike operations
in or against the dominions or territories of any foreign prince, state,
potentate, 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 against the ships, goods, or merchandise of any foreign
prince, state, potentate, or persons as aforesaid, or their subjects, may
be prejudicial to and tend to endanger the peace and welfare of this
kingdom: And whereas the laws in force are not sufficiently effectual for
preventing the same: Be it therefore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual
and temporal, and commons, in this present Parliament assembled, and
by the authority of the same, that from and after the passing of this
Act, an Act passed in the ninth year of the reign of his late Majesty
king George the Second, intituled " An Act to prevent the listing His
Majesty's Subjects to serve as Soldiers without His Majesty's License:"
and also an Act passed in the twenty-ninth year of the reign of his said
late Majesty, king George the Second, intituled "6 An Act to prevent
His Majesty's Subjects from serving as Officers under the French King;
and for better enforcing an Act passed in the Ninth Year of His pre(u) " Non est singulis concedendum quod per magistratum fieri potest." —Dig.
4.-6. De Reg. Jur.




364  P HILLIMORE ON INTERNATIONAL LAW.
sent Majesty's Reign, to prevent the enlisting His Majesty's Subjects to
serve as Soldiers without His Majesty's License; and for obliging such
of his Majesty's Subjects as shall accept Commissions in the Scotch Brigade in the service of the States General of the United Provinces, to
take the Oaths of Allegiance and Abjuration;" and also an Act passed
in Ireland in the eleventh year of the reign of his said late Majesty king
George the Second, intituled " An Act for the more effectual preventing the enlisting of His Majesty's Subjects to serve as Soldiers in
Foreign Service without his Majesty's License;" and also an Act passed
in Ireland in the nineteenth year of the reign of his said late Majesty
king George the Second, intituled "9 An Act for the more effectual preventing His Majesty's Subjects from entering into Foreign Service, and
for publishing an Act of the Seventh year of King William the Third,
intituled' An Act to prevent Foreign Education;'" and all and every
the clauses and provisions in the said several acts contained, shall be
and the same are hereby repealed.
II. And be it further declared and enacted, That if any natural-born
subject of His Majesty, his heirs and successors, without the leave or
license of His Majesty, his heirs or successors, for that purpose first had
and obtained, under the sign manual of His Majesty, his heirs or successors, or signified by Order in Council, or by proclamation of His
Majesty, his heirs or successors, shall take or accept, or shall agree to
take or accept, any military commission, or shall otherwise enter into the
military service as a commissioned or non-commissioned officer, or shall
[*506] "enlist or enter himself to *enlist, or shall agree to enlist or to
506  enter himself to serve as a soldier, or to be employed or shall
serve in any warlike or military operation, in the service of or for or
under or in aid of any foreign prince, state, potentate, colony, province, or part of any province or people, or of any person or persons
exercising or asuming to exercise the powers of government in or over
any foreign country, colony, province, or part of any province or people,
either as an officer or soldier, or in any other military capacity; or if
any natural-born subject of his majesty shall, without such leave or
license as aforesaid, accept, or agree to take or accept any commission,
warrant, or appointment, as an officer, or shall enlist or enter himself, or
shall agree to enlist or enter himself, to serve as a sailor or marine, or
to be employed or engaged, or shall serve in and on board any ship or
vessel of war, or in and on board any ship or vessel used or fitted out,
or equipped or intended to be used for any warlike purpose, in the service
of or for or under or in aid of any foreign power, prince, state, potentate,
colony, province, or part of any province or people, or of 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; or if any natural-born subject of His Majesty shall, without
such leave and license as aforesaid, engage, contract, or agree to go, or
shall go to any foreign state, country, colony, province, or part of any
province, or to any place beyond the seas, with an intent or in order to
enlist or enter himself to serve, or with intent to serve in any warlike
or military operation whatever, whether by land or by sea, in the service




APPENDIX  VIII.                            365
of or for or under or in aid of any foreign prince, state, potentate,
colony, province, or part of any province or people, or in the service of
or for or under or in aid of any person or persons exercising or assuming
to exercise the powers of government in or over any foreign country,
colony, province, or any part of any province or people, either as an officer
or a soldier or in any other military capacity, or as an officer, or sailor,
or marine, in any such ship or vessel as aforesaid, although no enlisting
money or pay or reward shall have been or shall be in any or either of
the cases aforesaid actually paid to or received by him, or by any person
to or for his use or benefit; or if any person whatever within the United
Kingdom of Great Britain and Ireland, or in any part of His Majesty's
dominions elsewhere, or in any country, colony, settlement, island, or place
belonging to or subject to His Majesty, shall hire, retain, engage, or procure, or shall attempt or endeavour to hire, retain, engage, or procure, any
person or persons whatever to enlist, or to enter or engage to enlist, or
to serve or to be employed in any such service or employment as aforesaid, as an officer, soldier, sailor, or marine, either in land or sea service,
for or under or in aid of any foreign prince, state, potentate, colony, province, or part of any province or people, or for or under or in aid of any
person or persons exercising or assuming to exercise'any powers [507
of government as aforesaid, or to go or to agree to go or embark 50 7
from  any part of His MIajesty's dominions, for the purpose or with
intent to be enlisted, entered, engaged or employed as aforesaid, whether
any enlisting money, pay, or reward shall have been or shall be actually
given or received, or not; in any or either of such cases every person so
offending shall be deemed guilty of a misdemeanor, and upon being convicted thereof, upon any information or indictment, shall be punishable
by fine and imprisonment, or either of them, at the discretion of the
Court before which such offender shall be convicted.
III. Provided always and be it enacted, That nothing in this Act contained shall extend or be construed to extend to render any person or persons liable to any punishment or penalty under this Act who at any time
before the first day of August One thousand eight hundred and nineteen,
within any part of United Kingdom or of the Islands of Jersey, Guernsey, Alderney, or Sark, or at any time before the first day of November
One thousand eight hundred and nineteen in any part or place out of
the United Kingdom or of the said Islands, shall have taken or accepted,
or agree to take or accept, any military commission, or shall have otherwise enlisted into any military service as a commissioned or non-commissioned officer, or shall have enlisted, or entered himself to enlist, or
shall have agreed to enlist or to enter himself to serve as a soldier, or shall
have served, or having so served shall, after the said first day of August
One thousand eight hundred and nineteen, continue to serve in any warlike or military operation, either as an officer or soldier or in any other
military capacity, or shall have accepted or agreed to take or accept, any
commission, warrant, or appointment as an officer, or shall have enlisted
or entered himself to serve, or shall have served, or having so served
shall continue to serve as a sailor or marine, or shall have been employed
or engaged or shall have served, or having so served shall after the said




366     PHILLIMORE  ON  INTERNATIONAL LAW.
first day of August continue to serve in and on board any ship or vessel
of war used or fitted out or equipped or intended for any warlike purpose, or shall have engaged, or contracted or agreed to go, or shall have
gone to, or having so gone to shall after the said first day of August
continue in any foreign state, country, colony, province, or part of a
province or to or in any place beyond the seas, unless such person or
persons shall embark at or proceed from some port or place within the
United Kingdom, or the islands of Jersey, Guernsey, Alderney, or Sark,
with intent to serve as an officer, soldier, sailor, or marine, contrary to
the provisions of this Act, after the said first day of August, or shall
embark or proceed from some port or place out of the United Kingdom,
or the islands of Jersey, Guernsey, Alderney, or Sark, with such intent
as aforesaid, after the said first day of November, or who shall before
the passing of this Act, and within the said United Kingdom  or the
[*508] said islands, or before the first of *November One thousand eight
hundred and nineteen, in any port or place out of the said
United Kingdom  or the said islands, have hired, retained, engaged, or
procured, attempted or endeavoured to hire, retain, engage, or procure,
any person or persons whatever to enlist or to enter, or to engage to
enlist or to serve or be employed in any such service or employment as
aforesaid, as an officer, soldier, sailor, or marine, either in land or sea
service, or to go or agree to go or embark for the purpose or with the
intent to be so enlisted, entered, or engaged or employed, contrary to the
prohibitions respectively in this Act contained, anything in this act contained to the contrary in anywise notwithstanding, but that all and every
such persons and person shall be in such state and condition, and no
other, and shall be liable to such fines, penalties, forfeitures, and disabilities, and none other, as such person or persons was or were liable and
subject to before the passing of this Act, and as such person or persons
would have been in and been liable and subject to in case this Act and
the said recited Acts by this Act repealed had not been passed or made.
IV. And be it further enacted, That it shall and may be lawful for
any justice of the peace residing at or near to any port or place within
the United Kingdom of Great Britain and Ireland, where any offence
made punishable by this act as a misdemeanor shall be committed, on
information on oath of any such offence, to issue his warrant for the
apprehension of the offender, and to cause him to be brought before such
justice or any justice of the peace; and it shall be lawful for the justice
of the peace before whom such offender shall be brought to examine into
the nature of the offence upon oath, and to commit such person to gaol,
there to remain until delivered by due course of law, unless such offender shall give bail, to the satisfaction of the said justice, to appear and
answer to any information or indictment to be preferred against him
according to law for the said offence; and that all such offences which
shall be committed within that part of the United Kingdom called England shall and may be proceeded and tried in His Majesty's Court of
King's Bench at Westminster, and the venue in such case laid at Westminster, at the assizes or session of oyer and terminer and gaol delivery,
or at any quarter or general sessions of the peace in and for the county




APPEN) IX  VIII.                          367
or place where such offence was committed; and that all such offences
which shall be committed within that part of the United Kingdom called
Ireland shall and may be prosecuted in His Majesty's Court of King's
Bench at Dublin, and the venue be laid at Dublin, or at any assizes and
session of oyer and terminer and gaol delivery, or at any quarter or general sessions of the peace in and for the county or place where such
offence was committed; and all such offences as shall be committed in
Scotland shall and may be prosecuted in the Court of Justiciary in Scotland, or any other competent Court to try criminal offences committed
within the county, shire, or stewartry *within which such offence
was committed; and where any offence made punishable by this [*509]
Act as a misdemeanor shall be committed out of the said United Kingdom, it shall be lawful for any justice of the peace residing near to the
port or place where such offence shall be committed on information
on oath of any such offence, to issue his warrant for the apprehension of
the offender, and to cause him to be brought before such justice, or any
other justice of the peace for such place; and it shall be lawful for the
justice of the peace before whom such offender shall be brought, to examine into the nature of the offence upon oath, and commit such person
to gaol there to remain till delivered by due course of law, or otherwise
to hold such offender to bail to answer for such offence in the superior
court competent to try and having jurisdiction to try criminal offences
committed in such port or place; and all such offences committed at any
place out of the said United Kingdom shall and may be prosecuted and
tried in any superior court of His Majesty's dominions competent to try
and having jurisdiction to try criminal offences committed at the place
where such offence shall be committed.
V. And be it further enacted, That in case any ship or vessel in any port
or place within His M1ajesty's dominions shall have on board any such person
or persons who shall have been enlisted or entered to serve, or shall have
engaged or agreed or been procured to enlist or enter or serve, or who
shall be departing from his Majesty's dominions for the purpose and with
the intent of entering to serve or to be employed, or of serving or being
engaged or employed in the service of any foreign prince, state, or potentate, colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise the powers of government in or over any foreign colony, province, or part of any province or
people, either as an officer, soldier, sailor, or marine, contrary to the provisions of this Act, it shall be lawful for any of the principal officers of
His Majesty's customs where any such officers of the customs shall
be, and in any part of His Majesty's dominions in which there are
no officers of His Majesty's customs for any governor or persons having the chief civil command, upon information on oath given before
them  respectively, which oath they are hereby respectively authorized
and empowered to administer, that such person or persons as aforesaid is
or are on board such ship or vessel, to detain and prevent any such ship
or vessel or to cause such ship or vessel to be detained and prevented from
proceeding to sea on her voyage with such persons as aforsaid on board:
Provided nevertheless, That no principal officer, governor, or person shall
act as aforesaid, upon such information upon oath as aforesaid, unless




368     PIILLIMIORE  ON  INTERNATIONAL LAW.
the party so informing shall not only have deposed in such information
that the person or persons on board such ship or vessel bath or have been
enlisted or entered to serve, or hath or have engaged or agreed or been
procured to *enlist or enter or serve, or is or are departing as
Ur5401   aforesaid, for the purpose and with the intent of enlisting or entering to serve or to be employed, or of serving or being engaged or employed, in such service as aforesaid, but shall also have set forth in
such information upon oath the facts or circumstances upon which he
forms his knowledge or belief enabling him  to give such information
upon oath; and that all and every person and persons convicted of wilfully
false swearing in any such information upon oath shall be deemed guilty of
and suffer the penalties on persons convicted of wilful and corrupt perjury.
VI. And be it further enacted, That if any master or other person
having or taking the charge or command of any ship or vessel, in any
part of the United Kingdom of Great Britain and Ireland or in any part
of His M ajesty's dominions beyond the seas, shall knowingly and willingly take on board, or if such master or other person having the commland of any such shtip or vessel, or any owner or owners of any such
ship or vessel, shall knowingly engage to take on board any person or
persons who shall have been enlisted or entered to serve, or shall have
engaged or agreed or been procured to enlist or enter or serve, or who
shall be departing from  His Majesty's dominions for the purpose and
with the intent of enlisting or entering to serve, or to be employed, or of
serving or being engaged or employed, in any naval or military service
contrary to the provisions of this Act, such master or owner or other
person as aforesaid shall forfeit and pay the sum of Fifty pounds for
each and every such person so taken or engaged to be taken on board;
and moreover every such ship or vessel, so having on board, conveying,
carrying, or transporting any such person or persons, shall and may be
seized and detained by the collector, comptroller, surveyor, or otherofficer
of the customs, until such penalty or penalties shall be satisfied and paid,
or until such master or person, or the owner or owners of such ship or
vessel, shall give good and sufficient bail, by recognizance before one
of His Majesty's justices of the peace, for the payment of such penalty
or penalties.
VII. And be it further enacted, That if any person, within any part
of the United Kingdom or in any part of His Majesty's dominions beyond
the seas, shall, without the leave and license of His Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm,
or attempt or endeavour to equip, furnish, fit out, or arm, or procure to
be equipped, furnished, fitted out, or armed, or shall knowingly aid,
assist, or be concerned in the equipping, furnishing, fitting out, or arming
of any ship or vessel, with intent or in order that such ship or vessel shall
be employed in the service of any foreign prince, state, or potentate,
or of any foreign colony, province, or part of any province or people, or
of any person or persons exercising or assuming to exercise any powers
of government in or over any foreign state, colony, province, or part of
* *any province or people, as a transport or store ship, or with in*C511] tent to cruise or commit hostilities against any prince, state, or




APPENDIX  VIII.                            369
potentate, or against the subjects or citizens of any prince, state, or potentate, or against the persons exercising or assuming to exercise the powers of
government in any colony, province or part of any province or country, or
against the inhabitants of any foreign colony, province, or part of any province or country, with whom His Majesty shall not then be at war; or
shall, withinfthe United Kingdom, or any of His Majesty's dominions, orin
any settlement, colony, territory, island, or place belonging or subject to
His Majesty, issue or deliver any commission for any ship or vessel, to
the intent that such ship or vessel shall be employed as aforesaid, every
such person so offending shall be deemed guilty of a misdemeanor and
shall, upon conviction thereof, upon any information or indictment, be
punished by fine and imprisonment, or either of them, at the discretion
of the Court in which such offender shall be convicted; and every such
ship or vessel, with the tackle, apparel, and furniture, together with all
the materials arms, ammunition, and stores which may belong to or be
on board of any such ship or vessel, shall be forfeited; and it shall be
lawful for any officer of His Majesty's customs or excise, or any officer
of His Mlajesty's navy who is by law empowered to make seizures for
any forfeiture incurred under any of the laws of customs or excise, or the
laws of trade and navigation, to seize such ships and vessels as aforesaid,
and in such places and in such manner in which the officers of His Majesty's customs or excise and the officers of His Majesty's navy are
empowered respectively to make seizures under the laws of customs
and excise, or under the laws of trade and navigation; and that every
such ship and vessel, with the tackle, apparel, and furniture, together
with all the materials, arms ammunition, and stores, which may belong
to or be on board of such ship or vessel, may be prosecuted and condemned in the like manner and in such courts as ships or vessels may
be prosecuted and condemned for any breach of the laws made for the
protection of the revenues of customs and excise, or of the laws of trade
and navigation.
VIII. And be it further enacted, That if any person, in any part of
the United Kingdom of Great Britain and Ireland or in any part of His
Majesty's dominions beyond the seas, without the leave and license of
His Majesty for that purpose first had and obtained as aforesaid, shall,
by adding to the number of the, guns of such vessel, or by changing
those on board for other guns, or by the addition of any equipment
for war, increase or augment, or procure to be increased or augmented,
or shall be knowingly concerned in increasing or augmenting, the warlike force of any ship or vessel of war, or cruiser, or other armed
vessel, which at the time of her arrival in any part of the United Kingdom  or any of His Majesty's dominions was a ship of war, cruizer,
or armed vessel in the service *of any foreign prince, state, or'512
potentate, or of any person or persons exercising or assuming to [    ]
exercise any powers of government in or over any colony province, or
part of any province or people belonging to the subjects of any such
prince, state, or potentate, or to the inhabitants of any colony, province,
or part of any province or country under the control of any person oi'
persons so exercising or assuming to exercise the powers of government,




370      PHILLIIMORE  ON  INTERNATIONAL  LAW.
every such person so offending shall be deemed guilty of a misdemeanor,
and shall, upon being convicted thereof upon any information or indictment, be punished by fine and imprisonment, or either of them, at the
discretion of the Court before which such offender shall be convicted.
IX. And be it further enacted, That offences made punishable by the
provisions of this Act, committed out of the United Kingdom, may be
prosecuted and tried in His Majesty's Court of King's Bench at Westminster, and the venue in such case laid at Westminster in the county
of Middlesex.
X. And be it further enacted, That any penalty or forfeiture inflicted
by this Act may be prosecuted, sued for and recovered by action of debt,
bill, plaint, or information, in any of His Majesty's Courts of Record at
Westminster or Dublin, or in the Court of Exchequer, or in the Court of
Session in Scotland, in the name of His Majesty's Attorney-General for
England or Ireland, or His MIajesty's Advocate for Scotland respectively
or in the name of any person or persons whatsoever, wherein no essoign,
protection, privilege, wager of law, nor more than one imparlance, shall
be allowed; and in every action or suit the person against whom judgment be given for any penalty or forfeiture under this Act shall pay
double costs of suit; and every such action or suit shall and may be
brought at any time within twelve months after the offence committed,
and not afterwards; and one moiety of every penalty to be recovered by
virtue of this Act shall go and be applied to His Majesty, his heirs or
successors, and the other moiety to the use of such person or persons as
shall first sue for the same, after deducting the charges of prosecution
from the whole.
XI. And be it further enacted, That if any action or suit shall be commenced, either in Great Britain or elsewhere, against any person or persons, for anything done in pursuance of this Act, all rules and regulations,
privileges and protections, as to maintaining or defending any suit or
action, and pleading therein, or any costs thereon in relation to any acts
matters, or things done, or that may be done by any officer of customs or
excise, or by any officer of His Majesty's navy, under any Act of Parliament in force or immediately before the passing of this Act, for the protection of the revenues of customs and excise, or prevention of smuggling
shall apply and be in full force in any such action or suit as shall be
brought for anything done in pursuance of this Act, in as full
and ample a manner to all intents and purposes as if the same
privileges and protections were repeated and re-enacted in this Act.
XIT. Provided always, and be it further enacted, That nothing in this
Act contained shall extend or be construed to extend to subject to any
penalty any person who shall enter into the military service of any
prince, state, or potentate in Asia, with leave or license, signified in the
usual manner, from the Governor-General in Council, or Vice-President
in Council, of Fort William in Bengal, or in conformity with any orders
or regulations issued or sanctioned by such Governor-General or VicePresident in Council.




APPENDIX  IX.                              371
APPENDIX  IX.  PAGES 375, 376.
(Extract from  Ortolan, Diplomatie de la 1 Mer, t. ii. p. 441.)
"Avis du Conseil d'Etat sur la Com2ptence en matiere de De'lits cornmis a bord des Vaisseaux neutres, dans les Ports et Rades de France.
[20 Novembre, 1806.]
"4 LE Conseil d'Etat qui, d'apres le renvoi a lui fait par Sa Majeste, a
entendue le rapport de la section de 16gislation sur celui de grand-juge
ministre de la justice, tendant a r6gler les limites de la jurisdiction que
leos Consuls des Etats-Unis d'Amerique, aux ports de Marseille et d'Anvers, reclament, par rapport aux delits commis h bord dcles vaisseaux de
leur nation, etant dans les ports et rades de France;-Considerant qu'un
vaisseau neutre no peut etre indefiniment considere comme lieu neutre,
et que la protection qui lui est accord6e dans leos ports Frangais ne
saurait dessaisir a la juridiction territoriale, pour tout ce qui touche aux
interets de l'etat;-Qu'ainsi, le vaisseau neutre admis dans un port de
l'etat, est de plein droit soumis aux lois de police qui regissent le lieu
oui il est regu;-Que les gens de son 6quipage sont dgalement justiciables
des tribunaux du pays pour les delits qu'ils y commettraient, meime a
bord, envers des personnes etrangeres! l'equipage, ainsi que pour les
Conventions civiles qu'ils pourraient faire avec elles; —Mais, quo si
jusque-l, la juridiction territoriale est heors de doute, il n'en est pas
ainsi a l'geard des delits qui se commettent a bord du vaisseau neutre,
de la part d'un homme de l'6quipage; —Qu'en ce cas, les droits de la
puissance neutre doivent etre respectes, comnAe s'agissant de la discipline
interieure du vaisseaun, dans laquelle l'autorite locale ne doit pas s'ingerer,
toutes les fois que son secours n'est pas reclamin, *ou que la [*514]
tranquillite du port n'est pas compromise;-Est d'avis que cette
distinction, indiquee par le rapport du grand-juge et conforme i l'usage,
est la seule regle qu'il convienne de suivre en cette nmatiere; —Et appliquant cette doctrine aux deux especes particulieres pour lesquelles ont
reclame les Consuls des Etats-Unis;-Considerant que dans l'une de ces
affaires, il s'agit d'une rixe passee dans le canot du navire Amdricain La
Newton, entre deux matelots du memne navire, et dans l'autre d'une
blessure grave faite par le capitaine en second du navire La Sally,   l'Fun
de ses matelots, pour avoir dispose du canot sans son ordre;
c Est d'avis qu'il y lieu d'aceueillir la rdclamation, et d'interdire aux
tribunaux frangais la connaissance des deux affaires pr6citees."
(Extractfrom Jlhartens, Recuceil de Traites, t. iv. p. 423.)
cc Convention entre e Roi Tre's- Clre'tien et ies Etats- Unis dte /'Ame'rique,
a 1'effet de de'terminer et fixer les Fonctions et Pre'rogatives des Consuls et Vice-Consuls respectifs.             [14 Novembro, 1788.]
4 Art. XI. Lorsque les dits coupables seront partie de l'6equipage de




372   PHILLIMORE ON INTERNATIONAL LAW.
Funl des batimens de leur nation, et se seront retires a bord des dits
navires, ils pourront y etre saisis et arreit6s par l'ordre des juges territoriaux: ceux-ci en previendront le Consul ou le Vice-Consul, lequel
pourra se rendre a bord s'il le juge a propos: mais cette prevenance ne
pourra en aucun cas retarder l'execution de l'ordre dont il est question.
Les personnes arret6es ne pourront ensuite etre raises en liberte qu'apres
que le Consul ou Vice-Consul en aura e6t  prevenu, et elles lui seront
rdmises, s'il le requiert, pour etre reconduites sur les batimens oA elles
auront et6 arrt6ees ou autres de leur nation, et etre renvoyees hors du
pays."
(Estract fron, Martens, Fec. de Tr. t. iv. p. 455.)
Tcite'?d e petzuel cd'Amitie et de Comnnzerce conclu en 1756, entre Sac
Miaj. le Roi de Danemare   et de Norve'ge etc. etc., et lca Sdre'nissime
e2'pbligue de Gednes, covfirmne et rectfie  e  1789,  dacls lequel a  te
inse're''Accord pour 1' Extradition re'ciproque des la 4/fcaitemrs et Deserteurs.                                        [30 Juillet, 1789.]
a Art. XXVI. I1 est aussi express6ment stipule, qu'aucun capitaine
et patron d'un batiment marchand ne doit recevoir, ni rec6ler *a
L515] son bord, aucun sujet fugitif de la puissance, dans le port doe
laquelle il se trouve.  Si le cas en arrivait, le capitaine lui-meme doit
etre tenu a denoncer, remettre et consigner de bonne foi au Gouvernemen't le criminel, le deserteur, ou le sujet vagabond, qui se serait refugi6
i son bord; et dans le cas d'un soupgon que le capitaine d'un batiment
marchand rece6lt quelque fugitif, et qu'il eat refus6 de le delivrer sur
la premiere sommation qui lui en aurait e6t fait6, le Gouvernement sera
autoris6 a faire a son bord les recherches qu'il jugera a propos pour s'en
delaircir, et d'en tirer de force le fugitif, s'il s'y trouvait; bien entendu
que le Consul ou Vice-Consul du capitaine marchand aura 6t6 prevenu
prealablement de la part du Gouvernement de la perquisition qu'il est
intentionne de faire a bord du vaisseau, afin qu'il puisse y assister et
veiller au bon ordre; aussi cette recherche s'executera-t-elle par des
soldats, et non pas par les gens ordinaires de la police, ou les sbirres.
"G De mnme aussi le Gouvernement du port ou se trouve un batiment
marehand d'une des parties contractantes, pretera mnainforte pour la saisie
d'un criminuel fugitif d la premiere requisition du Consul ou Vice-Consul
de la nation qui aurait commnis quelque d6lit a bord de ce vaisseau, et
qui se serait sauv6 a terre.  Le Gouvernement se pretera a faire garder
dans les prisons ordinaires et convenables les criminels, dont le Consul
euft a faire assurer les personnes, soit pour les traduire aux tribunaux
territoriaux qui doivent connaitre du d6lit, soit en punition de quelque
desordre commis a bord des vaisseaux de sa nation, moyennant la bonification des fraix, qui seront a la charge du Consul, ainsi que ces derniers
prisonniers resteront a sa disposition.
"sLes deux parties contractantes ne souffriront pas non plus, qu'on




APPENDIX  X.                            733
d6bauche, s6duise, ou enrolle personne des equipages des vaisseaux d'une
d'elles, qui se trouvent dans les ports de la domination de l'autre; en
pareil cas les magistrats et officiers, auxquels recourra le Consul, ou le
capitaine lui-rnme, ou son recommandataire, donneront prompte et
efficace assistance pour retrouver et remettre au bord le marinier qui s'y
serait soustrait.
4"Les soldats deserteurs ayant et6 nommrnzent compris parmi les
fugitifs qui doivent etre rendus dans les territoires par les vaisseaux de
guerre et des batimens marchands, oui ils se seraient rdfugi6s, il a 6t6
expressement stipule aussi que les armes, vdtemens et effets, qu'ils
auraient apport6s, seront rendus avec leurs personnes.  De mdme, si un
voleur en se sauvant efit portd dans la retraite d'oit il sera ddlivre, quelque partie des effets vols, ils seront fidelement rendus et restitu6s."
*APPENDIX  X.  PAGE 430.                     [*316]
EXTRADITION.-IU. S. NORTH AMERICA.
(Extractfromn " The Times," /July 13th, 1852.)
IN the case of Thomas Kaine, an Irish criminal, claimed by the
British Government,  Mr. Commissioner Bringham  gave the following
decision:
"' The prisoner, Thomas Kaine, has been arrested by virtue of a wars
rant issued on the requisition and complaint of Mr. Anthony Barclay,
Her Britannic Majesty's Consul at the port of New York, for the crime
of an assault, with intent to commit murder, within the dominions of
the Queen of Great Britain and Ireland.  This warrant was issued in
conformity with the stipulations of the Treaty between the United
States and Great Britain, of August 9th, 1842, the 10th article of which
Treaty is as follows: —'It is agreed that the United States and Her
Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities respectively made, deliver up to justice all
persons who, being charged with the crime of murder, or assault with
intent to commit murder, or piracy, or arson, or robbery, or forgery, or
the utterance of forged paper, committed within the jurisdiction of either,
shall seek an asylum, or shall be found within the territories of the other;
provided that this shall only be done upon such evidence of criminality
as, according to the laws of the place where the fugitive or person so
charged shall be found, would justify his apprehension and commitment
for trial, if the crime or offence had there been committed; and the respective judges and other magistrates of the two Governments shall have
power, jurisdiction, and authority, upon complaint made under oath, to
issue a warrant for the apprehension of the fugitive or person so charged,
that he may be brought before such judges, or other magistrates respectively, to the end that the evidence of criminality may be heard and
considered; and if, on such hearing, the evidence be deemed sufficient




837-    PHILLIM ORE ON INTERNATIONAL  LAW.
to sustain the charge, it shall be the duty of the examining judge or
magistrate to certify the same to the proper executive authority, that a
warrant may issue for the surrender of such fugitive. The expense of such
apprehension and delivery shall be borne and defrayed by the party
who makes the requisition and receives the fugitive.'  The original
warrant in this case was issued by Mr. James Featherstonhaugh, a justice of the peace of the county of Westmeath, Ireland, in which county
the alleged crime was committed.  The warrant was produced before me,
*together with a copy of the information or affidavit upon which
[517 ] said warrant was issued, said copy being certified according to
the act of Congress, by the justice of the peace who issued the warrant,
and attested by the oath of the witness to be a true copy. James Balfe,
the witness who made the information or affidavit, states, among other
things, that on the 5th day of April, 1851, he was ploughing some land
in the county of Westmeath, when Thomas Kaine came up to him, armed
with a case of pistols, and after some conversation respecting some land,
of which a man named Stone had lately been dispossessed, and respecting which the witness had been threatened, said that he came to warn
the witness Balfe about it, and asked if he (witness) had a prayer-book.
Witness said that he had not. Kaine then said he had one himself, and
threw it on the ground before the witness, who stooped to pick it up;
that while stooping Kaine fired one of the pistols at him, and that on
examining his person he found marks of a bullet and 27 shots in his
side, just under his left arm; that he then fled, and that IKaine pursued
him some distance, but finally turned back, and witness saw no more of
him.  Upon this information, the said Featherstonhaugh, justice of the
peace for the county of Westmeath, granted his warrant for the apprehension of Thomas Kaine, the prisoner, upon complaint on oath made
before him that the prisoner had feloniously and maliciously fired a pistol,
loaded with powder and lead, at the said James Balfe, with intent to
murder him. This warrant, dated April 5, 1851, was immediately put
into the hands of one Martin Meagher, constable of Westmeath, who
made search. for the prisoner, and was unable to find him or to execute
the warrant.  The said Meagher was produced before me as a witness,
and testified, among other things, that he was acting constable of the
Irish constabulary of the county of Westmeath, in Ireland, and had
been such constable for several years; that he knew Thomas Kaine, the
prisoner, and had known him for three years and upwards; that he had
received as such constable, the warrant before mentioned, to execute
against the prisoner; that it was the original warrant; that he saw James
Featherstonhaugh, the magistrate, execute it; that he knew the said
Featherstonhaugh to be a justice of the peace of the county of Westmeath, in Ireland. He also testified that on the same day he saw James
Balfe; that Balfe's coat seemed to be burnt with powder; that there
were shot marks on his left side; that the witness accompanied Balfe to
the magistrate where he made the information, and that on the same day
the witness received the warrant against the prisoner.  Meagher further
testified that the order for his coming here on this duty came from the
Under Secretary of State, upon the application of the Crown solicitor of




APPENDIX  X.                           375
the county of Westmeath, and that there was a reward of 601. offered on
the 7th of April, 1851, for the apprehension of the prisoner.  The duty
*of the commissioner in such cases is to inquire whether the evidence of the guilt of the person charged would justify his com- [*518]
mitment for trial according to the laws in force in the State of New
York, if charged with the crime here.  The examination and commitment of persons here charged with such offences as are enumerated in
the Treaty, is provided for by the law of New York (2 Rev. St. 793,
chap. 2), and would be complied with to all intents and purposes by testimony from which the commissioner or magistrate should conclude that
the offence had been committed, and that there was probable cause to
believe the prisoner to have been guilty thereof.  Probable cause is deduced from a state of facts and circumstances which afford reasonable
grounds of suspicion of guilt. (1 Burr's Trial, 11, 14, 16; 4 Cranch,
R. 129; Barbour's Criminal Law, 455, 492, 496; 4 Chitty's Blackstone, 235.) There is no question in my mind as to the identity of the
prisoner, nor that the offence charged comes within the specification of
the Treaty, nor as to probable cause of guilt. Technical objections, however, are taken to the evidence on the part of the counsel for the prisoner,
principally-1. That the official character of the person signing the warrant is not sufficiently made out.  From  an inspection of the original
warrant itself it appears by an indorsement thereon, that proof upon oath
was made on the 11th of April, 1851, before one of the justices of the
peace for the borough of Liverpool, that the name subscribed to the warrant was of the handwriting of the justice who signed it, and therefore
authority was given for the execution of the warrant within the said
borough.  But as to this point the testimony of the witness Meagher is
clear. He swears that James Featherstonhaugh is a justice of the peace
of the county of Westmeath, in Ireland; that he saw him sign the original warrant produced in this case; and that the information was made
before him in that character.
"cIt cannot be necessary to produce or prove the commission under
which the justice of the peace held office. Proof that he publicly discharged the duties of magistrate, and acted as such, is prima facie evidence of his official character.  (Greenleaf on Evidence, vol. i. 109,
119.)
"c The legal presumption is, that a man acting in a public office has
been rightfully appointed.  (Cow. and Hill's Notes to Phillips on Evidence, p. 297, 12; 12 Wheaton 70;'Rex v. Verelst,' 3 Camp. 432;
c Bishop v. Cone,' N. H. R., 513; and'People v. Gilbert Anthons,' N.
P. Rep. 191.)
"c Lord Ellenborough says, in'Rex v. Verelst,' 3 Camp. 433, that it
is a general presumption of law that a person acting in a public capacity
is duly authorized to do so; and in   Rex v. Jones,' 2 Camp. R. 131,
where the objection was taken to a letter offered in evidence, purporting
to be signed by Mr. Pitt and others, Lord Commissioners of the Treasury, that it was necessary to *prove those persons were Lord
Commissioners of the Treasury, and had authority to write the [E519]
letter, by producing their commission, it was held unnecessary, and the




376     PHILLIIORE     ON INTERNATIONAL LAW.
letter was admitted on proof of the handwriting of the three persons who
had signed it as Lord Commissioners of the Treasury.
"4 2. That there is no evidence that the warrant is the original warrant.
"' The witness Meagher swears, however, that it is the original warrant;
that he saw it signed by the magistrate, and that it was delivered to
him (Meagher) to be executed. The provisions of the second volume
Revised Statutes, pp. 492-3, relied on by the counsel for the prisoner,
are not applicable in this case; because the 28th section provides that
the preceding sections of that article shall not prevent the proof of any
record or judicial proceeding of the Courts of any foreign country,
according to the rules of the common law, in any other manner than that
therein directed.  Those sections, therefore, which are relied upon by
the counsel for the prisoner, do not exclude any mode of proof which
would be valid according to the rules of the Common Law. No particular mode of proof of the existence or genuineness of the warrant is
required by the Act of Congress. Section 2, of the Act of Congress of
August 12th, 1848, giving effect to certain Treaty stipulations, provides
that in every case of complaint as aforesaid, and of a hearing upon the
return of the warrant of arrest, copies of the deposition upon which an
original warrant in any such foreign country may have been granted,
certified under the hand of the person or persons issuing such warrant,
and attested upon the oath of the party producing them to be true copies
of the depositions, may be received in evidence."
" I have considered these, as well as the other objections taken, and
not necessary here to be recapitulated, with careful deliberation and with
an anxious desire, on the one side, to do everything required by the
interests of justice and a discharge in good faith of the sacred obligations of our treaty stipulations; and, on the other, to do nothing inconsistent with a proper regard to the security of personal liberty."
"; On the whole, I am of the opinion that the papers offered in proof
in the cause are properly authenticated; and as the evidence itself, in
my view, is sufficient to commit the prisoner, had the offence been committed here, I feel it my duty to certify the proceedings had before me
tot he Secretary of State of the United States, in whom is vested the
power by the Treaty to issue a warrant for the extradition of the
prisoner."
There appeared to be much excitement in New York among a portion of
the Irish population, and a strong feeling was exhibited adverse to Kaine
being surrendered under the Treaty. Large gatherings took place in the
neighbourhood of the city prison and of the United States offices, in
52001 consequence of which the prisoner *was not brought to Court;
the decision being merely to certify, under the Treaty, to the
Secretary of State at Washington, it was not deemed necessary.  On
the 29th Kaine's counsel sued for a writ of habeas corpus, returnable on
the following day.




APPENDIX  XI.                              377
APPENDIX  XI.  PAGE 435.
(Extract front WTuvres de Fe'nelon, t. xxii. p. 306, a l''xamen d(e C(onscience.  Su2l2  me ent.  Sur la Necessite de former des Alliances,
tant offensives que dcfensives, contre une Puissance etrange're qui
aspire nmanifestement (c la Mionarchie universelle.)
" LES Etats voisins les uns des autres ne sont pas seulement oblig6s a
se traiter mutuellement selon les regles de justice et de bonne foi; ils
doivent encore, pour leur sUret6 particuliere, autant que pour l'interet
commun, faire une espece de soci6t6 et de republique g6n6rale.
cc I1 faut compter qu'a la longue la plus grande puissance prevaut
toujours, et renverse les autres, si les autres ne se rdunissent pour faire
le contrepoids.  I1 n'est pas permis d'esp6rer parmi les hommes, qu'une
puissance sup6rieure de6meure dans les bornes d'une exacte modelration,
et qu'elle ne veuille dans sa force, que ce qu'elle pourroit obtenir dans
la plus grande foiblesse.  Quand meme un prince seroit assez parfait
pour faire un usage si merveilleux de sa prospri6t6, cette merveille finiroit
avec son regne.  L'ambition naturelle des souverains, les fiatteries de
leurs conseillers, et la pr6vention des nations entieres, ne permettent pas
de croire qu'une nation qui peut subjuguer les autres, s'en abstienne
pendant des siecles entiers.  Un  regne oui  eclateroit une justice si
extraordinaire, seroit l'ornement de l'histoire, et un prodige qu'on no
peut plus revoir.'" I1 faut done compter sur ce qui est reel et journalier, qui est que
chaque nation cherche a prevaloir sur toutes les autres qui l'environnent.
Chaque nation  est done obligee! veiller sans cesse, pour prevenir
l'excessif agrandissement de chaque voisin pour sa sufrete propre.  Empecher le voisin d'etre trop puissant, ce n'est point faire un mal; c'est se
garantir de la servitude et en garantir ses autres voisins; en un mot,
c'est travailler & la liberte, & la tranquillite, au salut public; car l'agrandissement d'une nation au-dela d'une certaine borne, change le systenme
gen6ral de toutes les nations qui ont rapport a celle-l.  Par exemple,
toutes les successions qui sont entrees dans la maison de Bourgogne, puis
celles qui ont eleve la maison d'Autriche, ont change la face de toute
1'Europe.  Toute l'Europe a dcu craindre la monarchie universelle sous
*Charles-Quint, surtout apres que Frangois ler out ete ddfait et [521]
pris a Pavie.  II est certain qu'une nation qui n'avoit rien & [!521]
d6meler directement avec 1'Espagne, ne lassoit pas alors d'etre en droit,
pour la liberte publique, de prevenir cette puissance rapide qui sembloit
prete a tout engloutir.
" Les particuliers ne sont pas en droit de s'opposer de meme a l'accroissement des richesses de leurs voisins, parce qu'on doit supposer que
cet accroissement d'autrui ne peut etre leur ruine. II y a des lois 6crites
et des mnagistrats pour reprimer les injustices et les violences entre les
families inegales en biens; mais, pour les etats, ils ne sont pas de memoe.
Le trop grand accroissement d'un seul peut etre la ruine et la servitude
de tous les autres qui sont ses voisins: il n'y a ni lois dcrites, ni juges
SEPTEMBER, 1854.-25




378      P H ILLIMORE ON  INTERNATIONAL  LAW.
etablis pour servir de barriere contre les invasions du plus puissant.  On
est toujours en droit de supposer que le plus puissant, a la longue, se
prevaudra de sa force, quand il n'y aura plus d'autre force i peu pros
egale qui puisse l'arreter.  Ainsi, chaque prince est en droit et en obligation de prevenir dans son voisin cet accroissement de puissance, qui
jetteroit son peuple, et tous les autres peuples voisins, dans un danger
prochain de servitude sans ressource.
", Par exemple, Philippe II., roi d'Espagne, apres avoir conquis le
Portugal, veut se rendre le maitre de l'Angleterre.  Je sais bien que
son droit etoit mal fond6, car il n'en avoit que par la reine Marie sa
femme, morte sans enfans. Elizabeth, illegitime, ne devoit point regner.
La couronne appartenoit a Marie Stuart et h son fils.  IMais enfin, suppos6 que le droit de Philippe II. efit ete incontestable, l'Europe entiere
auroit eu raison neanmoins de s'opposer! son etablissement en Angleterre; car ce royaume si puissant ajoute a' ses tats d'Espagne, d'Italie,
de Flandre, des Indes orientales et occidentales, le mettoit en etat de
faire la loi, surtout par ses forces maritimes, d toutes les autres puissances
de la chrgtient6.  Alors, sumnmun  jus, summa injuria.  Un droit particulier de succession ou de donation devoit ceder a la loi naturelle de la
sfrete de tant de nations.  En un mot, tout ce qui renverse l'6quilibre,
et qui donne le coup decisif pour la monarchie universelle, ne penut tre
juste, quand, meme il seroit fondee sur des lois ecrites dans un pays particulier.  La raison en est que ces lois 6crites chez un peuple, ne peuvent pr6valoir sur la loi naturelle de la liberte et de la sfirete commune,
gravee dans les coeurs de tous les autres peuples du monde.  Quand une
puissance monte a un point, que toutes les autres puissances voisines
ensemble ne peuvent plus lui resister, toutes ces autres sont en droit de
se liguer pour prevenir cet accroissement, apres lequel il ne seroit plus
temps de d(fendre la libert6 commune.  lMais, pour faire l6gitimement
ces sortes de ligues, qui tendent a prevenir un trop grand accroissement
d'un etat, il faut que le cas soit veritable et pressant; il faut se contenter d'une ligue defensive,  *ou du moins no la faire offensive,
[*522] qu'autant que la juste et necessaire defense se trouvera renfermee
dans les desseins d'une aggression; encore meme faut-il toujours, dans
les trait6s de ligues offensives, poser des bornes precises, pour ne detruire
jamais une puissance sous pretexte de la moderer.
Cette attention a maintenir une espece  d'egalite et d'equilibre entre
les nations voisines, est ce qui en assure le repos commun.  A cet egard,
toutes les nations voisines et liees par le commerce font un grand corps
et une espece de communaut6.  Par exemple, la chretient6 fait une
espece  de republique generale, qui a ses interSts, ses craintes, ses precautions a observer; tous les umembres qui composent ce grand corps, se
doivent les uns aux autres pour le bien commun, et se doivent encore a
eux-mgmes, pour la sufret6 de la patrie, de prevenir tout progres de
quelqu'un des membres qui renverseroit l'equilibre, et qui se tourneroit
i la ruine inevitable de tous les autres membres du menme corps.  Tout
ce qui change ou altere ce systenme gn6real de l'Europe est trop dangereux, et traine apres soi des maux infinis.
"9 Toutes les nations voisines sont tellement liees par leurs interets les




A PP E N  I X.                       379
unes aux autres, et au gros de l'Europe, que les moindres progres particuliers peuvent alterer ce systeme gen6ral qui fait l'equilibre, et qui
peut seul faire la sfrete publique.  Otez une pierre d'une voute, tout
l'6difice tombe, parce que toutes les pierres se soutiennent en se contrepoussant.
cc L'humanite met done un devoir mutuel de defense du salut commun,
entre les nations voisines, contre un etat voisin qui devient trop puissant;
comme il y a des devoirs mutuels entre les concitoyens pour la libert6
de la patrie. Si le citoyen doit beaucoup a sa patrie, dont il est membre,
chaque nation doit a plus forte raison bien davantage au repos et au
salut de la republique universelle dont elle est membre, et dans laquelle
sont renferm6es toutes les patries des particuliers.
"' Les ligues defensives sont done justes et necessaires, quand il s'agit
v6ritablement de pr6venir une trop grand puissance qui seroit en 6tat de
tout envahir.  Cette puissance superieure n'est done pas en droit de
rompre la paix avec les anutres etats inf6rieurs, precisement a cause de
leur ligue defensive; car ils sont en droit et en obligation de la faire.
s Pour une ligue offensive, elle dcpend des circonstances; il faut qu'elle
soit fondeo sur des infractions de paix, ou sur la detention de quelques
pays des allies, ou sur la certitude de quelque autre fondement semblable.
Encore meme faut-il toujours, comme je l'ai deja dit, borner de tels
traitds a des conditions qui empechent ce qu'on voit souvent; c'est qu'une
nation se sert de la n6cessite d'en rabattre une autre qui aspire a la tyrannie universelle, pour y aspirer elle-medme A son tour.  L'habilete, aussi
bien que la justice et la bonne foi, en faisant des traites d'alliance, est de
les faire tres-precis, tres-6loignes de 1toutes equivoques, et exact- [*523
ment bornes a  un certain bien que vous en voulez tirer prochainement.  Si vous n'y prenez garde, les engagements que vous prenez se
tourneront contre vous, en abattant trop vos ennemis, et en elevant trop
votre allie; il vous faudra, ou souffrir ce que vous detruit, ou manquer A
votre parole; choses presque 6galement funestes.  Continuous a raisonner
sur ces principes, en prenant l'exemple particulier de la chrstiente, qui
est la plus sensible pour nous.'"I1 n'y a que quatre sortes de systemes.  Le premier est d'etre absolument superieur a toutes les autres puissances, meme reunies: c'est
l'etat des Romains et celui de Charlemagne.  Le second est d'etre dans
la chretiente la puissance superieure aux autres, qui font neanmoins a
peu prbs le contre-poids en se rEunissant. Le troisieme est d'etre une
puissance infdrieure a une autre, mais qui se soutient, par son union. avec
tous ses voisins, contre cette puissance predominante.  Enfin, le quatrieme est d'une puissance a peu pres egale a une autre, qui tient tout
en paix par cette espece d'equilibre qu'elle garde sans ambition. et de
bonne foi.
" L'6tat des Romains et de Charlemagne n'est point un etat qu'il vous
soit permis de desirer: 1~. Parce que, pour y arriver, il faut commettre
toutes sortes d'injustices et de violences; ii faut prendre ce qui n'est
point a vous, et le faire par des guerres abominables dans leur dur6e et
dans leur etendue.  2~. Ce dessein est trbs-dangereux; souvent les etats
porissent par ces folles ambitions.  3~. Ces empires inmmenses; qui on




380      PH ILLI MO RE  ON  INTERNATION AL LAW.
fait tant de umaux en se formant, en font, bient6t apr6s, d'autres encore
plus effroyables, en tombant par terre.  La premi6re minorit6, ou le premier regne foible, ebranle les trop grandes masses, et separe des peuples
qui ne sont encore accoutum6s ni au joug ni a l'union mutuelle. Alors,
quelles divisions, quelles confusions, quelles anarchies irrem6diables!
On n'a qu'a se souvenir des maux qu'ont fait en Occident la chute si
prompte de l'empire de Charlemagne, et en Orient le renversement de
celui d'Alexandre, dont les capitaines firent encore plus de maux pour
partager ses d6pouilies, qu'il n'en avoit fait lui-meme en ravageant l'Asie.
Voila done le syst6me le plus 6blouissant, le plus funeste pour ceux
memes que viennent a bout de l'exdcuter.
"6 Le second syst6me est d'une puissance superieure a toutes les autres,
qui font contre elle i peu pr6s l'6quilibre.  Cette puissance superieure a
l'avantage, contre les autres, d'etre toute reunie, toute simple, toute
absolue dans ses ordres, toute certaine dans ses mesures.  Mais, a la
longue, si elle ne cesse de reunir contre elle les autres en excitant la
jealousie, il faut qu'elle succombe.  Elle s'6puise; elle est exposee a
beaucoup d'accidens internes et imprevus, ou les attaques du dehors peuvent la renverser soudainement.  De plus, elle s'use pour rien, et fait
des efforts ruineux pour une sunpriorite qui ne lui donne rien d'effectif,
et qui l'expose a toutes sortes de deshonneurs et de dangers.  *De
[ 524] tous les Etats, c'est certainement le plus mauvais; d'autant plus
qu'il ne pout jamais aboutir, dans sa plus etonnante prosperit6, qu'a
passer dans le premier systmem que nous avons deja reconnu injuste et
pernicieux.
" Le troisieme systeme est d'une puissance inf6rieure h une autre,
mais en sorte que l'inf6rieure, unie au reste de l'Europe, fait l'dquilibre
contre la superieure, et la sfAret6 de tous les autres moindres Etats.  Ce
systeme a ses incommodites et ses ineonveniens; mais il risque moins
que le precedent, parce qu'on est sur la defensive, qu'on s'epuise moins,
qu'on a des alli6s; et qu'on n'est point d'ordinaire, en cet etat d'inf6riorite, dans l'aveuglement et dans la presomption insensde  qui menace de
ruine ceux qui pr6valent.  On voit presque toujours, qu'avec un peu
de temps, ceux qui avoient pr6valu s'usent et commencent'[ d6choir.
Pourvu que cet Etat inf6rieur soit sage, moder6, ferme dans ses alliances,
precautionne pour ne leur donner ancun ombrage, et pour ne rien faire
que par leur avis pour l'inte6rt commun, il occupe cette puissance superieure jusqu'I ce qu'elle baisse.
cc Le quatri6me systeme est d'une puissance'a peu pros egale i' une
autre, avec laquelle elle fait l'6quilibre pour la surete publique.  Etre
dans cet etat, et n'en vouloir point sortir par ambition, c'est l'6tat le plus
sage et le plus heureux. Vous etes l'arbitre commun; tous vos voisins
soent vos amis; du moins, ceux qui ne le sont pas se rendent par 1la suspects a tous les autres.  Vous ne faites rien qui ne paroisse fait pour vos
voisins aussi bien que pour vos peuples.  Vous vous fortifiez tous les
jours; et si vous parvenez, colnrme cela est presque infaillible'a la longue,
par un sage gouvernement, i avoir plus de forces interieures et plus
d'alliances au dehors, que la puissance jalouse de la vStre, alors il faut
s'affermir de plus en plus dans cette sage moderation qui vous borne a




APPENDIX  XI.                             381
entretenir l'6quilibre et la sftrete commune.  II faut toujours se souvenir
des maux que coitent au dedans et au dehors de son Etat les grandes
conquRtes; qu'elles sont sans fruit; et du risque qu'il y a i les entreprendre; enfin, de la vanit6, de l'inutilit6, du peu de duree des grands
empires, et des ravages qu'ils causent en tombant.
Mais, comme il n'est pas permis d'esperer qu'une puissance superieure
a toutes les autres demeure long-temps sans abuser de cette superiorite,
un prince bien sage et bien juste ne doit jamais souhaiter de laisser a
ses successeurs, qui seront, sielon toutes leos apparences, moins mod6res
que lui, cette continuelle et violente tentation d'une superiorit6 trop declar6e.  Pour le bien meme de ses successeurs et de ses peuples, il doit
se borner ai une espee  d'egalite.  II est vrai qu'il y a deux sortes de
superiorites; l'une exterieure, qui consiste en etendue de terres, en places
fortifices, en passages pour entrer dans les terres de ses voisins, etc.
Celle-]'h ne fait que causer des tentations aussi funestes a soimeme qu'a
ses voisins, qu'exciter la haine, la jalousie et les ligues.  *L'autre  *525
est interieure et solide: elle consiste dans un peuple plus nom- [525]
breux, mieux disciplin6, plus applique't la culture des terres et aux arts
necessaires.  Cette superiorite, d'ordinaire, est facile a acquerir, stire, a
i'abri de l'envie et des ligues, plus propre mrme, que les conquetes et
que les places,`I rendre un peuple invincible.  On ne sauroit done trop
chercher cette seconde superiorit, ni trop eviter la premiere, qui n'a
qu'un faux 6clat."
(Extract fromo  c The Times," Monday, A4pril 10th, 1854.)
The following is the text of the convention concluded between England, France, and the Porte, signed March 13th, 1854:c" As Her Majesty the Queen of Great Britain and Ireland, and His
Majesty the Emperor of the French, have been requested by His Highness the Sultan to assist him in repelling the attack which has been made
by His Majesty the Emperor of All the Russias on the territory of the
Sublime Porte-an attack by which the integrity of the Ottoman Empire
and the independence of the Sultan's throne are endangered-and as
Their Majesties are perfectly convinced that the existence of the Ottoman
Empire in its present extent, is of essential importance to the 6alance of
power among the States of Europe, and as they have in consequence
agreed to afford His Highness the Sultan the assistance which he has requested to this end,-their aforesaid Majesties and His Highness the
Sultan have deemed it proper to conclude a Treaty, so as to attest their
intentions in conformity with the above, and to settle the manner in
which their aforesaid Majesties shall lend their assistance to His High.
ness.
c To this end their aforesaid Majesties and His Highness the Sultan
have nominated as their Plenipotentaries [here follow the names of the
English and French Ambassadors, and the Turkish Minister for Foreign
Affairs, who, after duly exhibiting their powers and authorities, which
were found in due form, have agreed to the following articles:-]' c Article 1.-Her Majesty the Queen of Great Britain and Ireland,




.382    PHILLIMORE ON INTERNATIONAL LAW.
and His Majesty the Emperor of the French, after having, at the request
of His Highness the Sultan, ordered strong detachments of their naval
forces to repair to Constantinople to afford to the territory and the flag
of the Sublime Ottoman Porte such protection as the circumstances
should admit of, undertake, in the present Treaty, to co-operate to a still
greater extent with His Highness the Sultan for the protection of the
Ottoman territory in Europe and Asia against the attack of Russia, by
the employment of such an amount of their land troops as shall appear
necessary to the attainment of their end.  Their aforesaid Majesties will,
at an early date, send these land troops to any such point or points of the
Ottoman *territory as shall appear suitable, and His Highness
[ 526] the Sultan undertakes that the British and French land troops
that may thus be sent for the protection of the Ottoman territory, shall
meet with the same friendly reception and be treated with the same consideration as the British and French naval forces which for some time
past have been employed in the Turkish waters.,"' Article 2.-The high contracting parties bind themselves each and
every to communicate to each other, without loss of time, every and any
proposition which either of them may receive, directly or indirectly, from
the Emperor of Russia with reference to a cessation of hostilities, a truce,
or a peace; and His Highness the Sultan binds himself further to conclude no truce and to enter on no negotiations for peace (a n'entamer
aucune ne'gociation pour la paix), nor to settle any preliminaries of peace
with the Emperor of Russia, without the knowledge and consent of the
other high contracting parties.
c"'Article 3.-As soon as the object of the present Treaty shall have
been attained by the conclusion of a treaty of peace, Her Majesty the
Queen of Great Britain and Ireland, and His Majesty the Emperor of
the French, shall immediately take measures to withdraw their military
and naval forces which shall have been employed for the purpose of attaining the object of the present treaty, and all the fortresses or positions
on Ottoman territory which shall have been temporarily occupied by the
forces of England and France shall be delivered' back to the authorities
of the Sublime Ottoman Porte in the space of -- days, dating from the
exchange of the ratification of the Treaty by which the present war shall
have been ended.
"' Article 4.-The present Treaty shall be ratified and the ratifications
exchanged as soon as possible within a period of -- weeks, counted from
the date of signing.'..."
The Treaty is so drawn up and concluded that the accession of other
Powers that may also take part in the stipulated co-operation can easily
be effected. The reforms to be introduced into the internal administration of Turkey are not mentioned in the Treaty, but form the subject of
a separate protocol.




INDEX.
The pages referred to are those between brackets L      ].
A.                    Annual Register.  See Register.
Abdication, Act of the Emperor Fran-  Aristotle,  9. (z), 14. (b), 15. (f), 16.
cis in 1806, 122.                      (h. 1. in), 29. (b), 76. (e).
Accessions, Fluvial, 255.              Attorneys-General of the United States,
Ackermrann, Treaty of, 114:().
Acquisition, Right of, 237-244. Orig-al Tribunal 125.
inal, 245. Original and derivative,          
241. Derivative 282.                Authors referred to in this Work.  See
Act, Federal, of 1815, 125.              Alphabetical List of.
Admiralty, High Court of, 20. Seal Ayala, 59.
of, 56. 213. Jurisdiction of, 358,                    B.
377. Account of, 389.
Adrinople, Treaty of, 113. 117.        Bacon, Lord, 12. 433. 482, 483.
Advocationes Hispanicoe.  See Alberi-  Balta Liman, Treaty of, 113.
cus Gentilis.                        Barbary States, 107.
2AEschines, 50. (s).                   Bareyrac, 11. (a), 188. (t), 313. (e),
Africa, Mahometan States in, 20.          314. (g).
Aguesseau, D', 1. (a), 73. (c), 74. (g).  Barbosa, 24.
151.                                 Bartolus, 24. (1), 357. (i).
Ahrens, Philosophie du Droit, 304. (i),  Belgium,100-105. 158. Adjustment
433. (a).                              of Relations with Holland, 273. 442.
Aix-la-Chapelle, Congress of, 309.        457-459.
Albericus.  See Gentilis.              Blackstone, 73. (d), 223. (q), 269. 345.
Algiers, half destroyed, Christian Sla-    (c), 359. (m).
very abolished, 320. Taken by the  Blount, on Sense of Word " Pirata," in
French in 1830, with Tunis and Trip-    his Law Dictionary, 387.
oli, concluded a Treaty with France  Blume, Deutsches Privatrecht, 2. (c).
for the Abolition of Christian Slavery,  Bodinus, De Republica, 344.
320.                                 Bolingbroke, Lord, Letters of, 473.
Aliens,  British Acts relating to, 233.    Works, 482.
(r).                                 Bond v. Hopkins, 36. (t).
Ambassadors, 10. 21.                   Borcaut, Jean, Case of, 341.
America, Central and South, Republics  Bothwell, Extradition of, 412.
of, 144, 145.                        Bowyer, Readings, 36. (t).
Amphictyonic League, 17.               Bremen, 99.
Ancillon, 447. (c).                    Brougham, Lord, 426. (u).
Andorra, 100.                          Bucharest, Treaty of, 114. 176.
Annuaire des Deux Mondes, 144 (r),  Burke,Speech on Impeachment of War258. (t). 464. (mn op), 465. (r s).    ren Hastings, 23. (k.)  Treatise on
Annuaire Historique, 90. (b), 133. (u),    Popery Laws, 26. (q), 283.  Letters
137. (e).                              on a Regicide Peace, 32. (1), 33. (o),




384       P I ILLIMORE  ON  INTERNATIONAL  LAW.
44. (d), 46. (I). Speech on America,    De Rep. 246. (x). De Lege Agrar
108. Thoughts on French Revolu-    304. (i). De Off. 313. (b). Orat. pro
tion, 26. (q), 149. (e). Reform  of    Balbo, 347. (1). 348. (q). De Off. 379.
Representation, 150. (h), 278. (e).    447. Orat. pro Coecina, 63. 492.
Speech on E. I. Company, 254. (m).    Orat. pro Lege Manil. 489.
On the Doctrine of Prescription, 278. Clarendon, Earl of; Speech of, in 1853,
Appeal from the New to Old Whigs,    on Relations between the Porte and
282, 283. 439.                         Montenegro, 87. (g)
Burlamatqui, 133. (x), 231. 410. (f).    Clarendon, Lord Chancellor, Account
Butler, Bishop, 73. (c).                 of the Privateers of Ostend, 79. (p).
Bynkershoek, Questiones Juris Publici,  Clement. See Canon Law.
30, 31. 35. 37, 38. (d), 39. 42. (r. s),  Code, Civil Franqais (De la Privation
44. (e), 45. 80. 154. (z), 186. 393. (1),    des Droits Civil), 351. (y). D'Instruc451. (p), 4-55. (b). De Piratica, 379.    tion Criminelle, 357. (h).
(a). Navis prtedatoria, 393. (i). De  Codex.  See Roman Law.
Domino Maris, 197, 198, 199. 210.  Codling, William, Trial of, 389.
215. (o), 241. 247. (b), 259. (x), 273.  Coke, Lord, 81. (x)
(t), 311. (q), 317. 365. (u. v). De  Coke's Institutes, 411. (1)
Foro Leg. 369. (f), 370.             Collegium Fecialiumn, 17.
Colquhoun's Civil Law. History of the
C.                      British Slave Trade, 323. (ztu) 347.
(h).
Cabinet of Scarce  and  Celebrated  Comity, 11. 160, 161. Held to be suffiTracts, 14. (d).                       ciently stringent to compel the SurCalais, Pas de, 195.                     render of the Criminal, 411.
Camden, 187.                           Commentators on International Law,
Canning, Mr., 228. (f), 233. (r), 446,    their Authority, 58.
447. 452.                            Commorant Strangers, 348.
Cannon Law (Passages referred to:      Companies, British and Russian Fur,
Page of vol.    260.
Clement.            1. ii. t. xi. 24.  Company, E. I. British, not a State,
Decret. Prima Pars, dist. i. c. ix  24.    145. E. I. C. v. Campbell, 412. (o).
44"    "                    159.  Confederation, German, 122. 125-132.
"      Tom. vi. 1. ii.t. 13. c. i. 269.  Conquest, 300.
X. 1. v. t. 40. c. 26. de V. S. 268.  Consolato del Mare, 51.
Capellen, Vice-Admiral, assist Lord   Constantinople, Treaty of, 82.
Exi-mouth at the Bombardment of  Consuls, 10.
Algiers, 320.                        Contiguity, Doctrine of 255.
Capua, 7.                              Convention of July, 1840, 117. SepaCaroline, The, 228.                      rate Act of. 118. At St. Petersburg
Cases referred to in this Work.  See  respecting Navigation of the Pacific,
Alphabetical List of.                  192. Fisheries, 207. Secret, between
Chambers, the King's, 213.               Versailles and Madrid, of 30th NoCharleston, Judge of Vice-Admiralty       vember, 1831, 377.
Court at, lays down the Law as to  Copenhagen, Court of Admiralty of.
Piracy, 386.                           205, 206.
Charlemagne, 76. 450.                  Correspondence with the Russian GoCharles I., 195.                         vernment respecting Obstruction to
Charles II. of Spain, his Will, 300.     the Navigation of the Sulina Channel
Charles II. of England (the King v.    of the Danube, 177. Between ConHutchinson), 411, 412.                 tinental Powers and Great Britain
Charles V., 76. 450.                     respecting foreign Refugees, 355.(d).
Charles VIII. of France, 449.             See State Papers.
China, Emperor of, 212.  Concedes  Cowel, Dr., on Sense of Word "Pirata,"
Jurisdiction to England over British    in his Interpreter, 387.
Subjects in China, 363.              Cranch, American Reports, 158. (n),
Christianity, Influence of, on Interna-    211. (e).
i tional Law, 22, 23, 24. 39. 317, 318.  Creole, The Case of, 335. 337, 338, 339.
Cicero, 5. (i), 12. (c). De Rep. 16. (ik),    343. 414. (t)
18, 19. 26. (p), 78. 152. 155. (b).  Cuba, Correspondence relating to, 144.
De Fin. 241. (m). De Off. 241. 491.    (q), 465, 466.




IND EX.                                385
D.                    Extradition, Law and Obligation of,
407.
Dahlman, Geschichte von Danemark,    Circumstances occurring in Cases
295.                                     of, 413.
Dallas, 353.                              List of Treaties relating thereto,
Dante, 301.                                 407-432.
Danube, 176, 177.
Davis, Sir John, 69.                                     F.
Davis's Straits, 204. 207.
Decretals, 159. (a).  See Canon Law.   Felix, 346. (h), 350. (s), 351. (it.  ),
Demosthenes, 12. 187. 448.               352. (z), 377. (z), 411. (1), 413. (r),
Denisart, Decisions Nouvelles, 342.    418. (b), 420. (p), 421. (b.f), 422,
(a).                                   (i. k. n. o), 423, (q. v. x), 424, (b. d),
Denison's Crown Cases Reserved, 333.    425, (r), 426. (s. t).
(p), 334. (q).                       Farrinacius, 35. 383. (i).
Denmark, 193. 201. 203. 205. 412. For  Fenelon, 447. (c), and Appendix.
Intervention in Affairs of, see Chap.  Fergusson on Divorce, 336. (v).
on Intervention.                     Ferrand, 437. (i).
De Rayneval, Inst. du Droit de la Na-  Ferreira, Pinheiro, 5.
ture et des Gens, 309. (i).          Feuerbach, Lehrbuch, 356. (f).
Dereliction, 279.                      Fisheries, 203-210.
Deserters, Recovery of foreign in Bri-  Flassan, 437. (i).
tish Ports, and of British in foreign  Fleury, 470. (i).
Ports, 377.                          Foreigner, Right of Jurisdiction over,
Deuteronomy, chap. xxii. v. 1, 2, 313.    355-360.
(z).                                 Forsattning, the Swedish Vessel, 375.
Digest.  See Roman Law.                Foster, 21. (f).
Divorce.  See Fergusson.               Francis I., 450.
Dodson's Adm. Rep. 38. (e).  See Re-  Frankfort-on-the-Maine, 100.
ports.                               Frankfort, Diet at, 1832, 130.
Dohmr, 437. (i).
Domat, 1. (a), 9. (a), 304. (h).
Dominion, 239. Extinction of, 307.                       G.
Duck, Arthur, 59.                      Gail, 35.
Dumont, C. Dipl. 302. (b).             Galliani, xiv. (Praef.)
Duvergier, Collection de M., 420. (q).   Garden, De, Traite de Diplomatie, 166.
(d), 196. (c), 216, (q), 310. (1), 447.
E.                      (c).
Gazette, The Shipping and Mercantile
Echelles du Levant, 362.                  (of July 27th, 1853), 393.
Eden's Chancery Reports, 336. (u).     Gazeteer of the World, 99. (x).
Egan, Charles, 408. (c), 430. (1).     Genoa, Delivery of; to Sardinia, 286.
Egypt, its Status, 117.                Gentilis, Albericus, 31 (j). 43. (a), 59.
Election, sometimes an indirect Mode      80.(t), 81.(x), 186.(n), 195. 235. (a).
of acquiring Territory, 295.         Gentz, Von, 437. (i), 440. 447. (c), 454,
Elizabeth, Queen, 187. (o), 195. 202.    (y), 455. (a).
412. 443. 450.                       Gibbon, 76. (c), 470.
Ellenborough, Lord, 417.               Globe, The (Newspaper), 466.
Elliot's American  Diplomatic Code,  Godolphin, Admir. Jurisdiction, 387.
144. (r).                              (v).
Emerigon, 67.                          Gothofred, Jac., de famosis Latronibus
Erbreich, 296.                            investigandis, 384. (k).
Euripides, 17. (q).                    Grant, Sir William, 70.
Everett, Mr., Letter about Slave Trade,  Greece, 17. Intervention in Affairs
324.                                   of; 442, 444 —447.
Exchange of Territories, 290.          Greeks, 16. Constitution and TerriExchange, Case of The, 367. 372. (i).    tory, 105.
Eximouth, Lord, ordered to procure a  Greenland, 204. 206.
general Abolition of Christian Sla-  Grenville, Lord, 45.  Speech upon the
very in Barbary, bombards Algiers,    Motion for an Address to the Throne
319.                                   approving of the Convention with




386    PHILLI MOlRE ON INTERNATIONAL LAW.
Russia in  1801-190.  Answer to            Lib.  II. c. xiii. 15.             379.
M. Chauvelin, 226.  Dismissal of             "   II. C. c. iv.                 71.
M. Chauvelin, 234. Debate on Block-          "   II. c. xiv. 11. s. 2.        151.
ade of Norway, 284. (k), 436. (f).           "   II. c. xv. 5. s. 1.          317.
Grotius, de Jure Belli et Pacis.               "   II. c. xv. 7. s. 1.            91
(Prolegomena.)                               "   II. c. xv. 8-12.              81.
Sect. 1 page of this Vol.   37.         "   II. c. xvi. 16.         153. 288.
4 17      "     "      1. 3. 7.      "   II. c. xvii.                  69.
"  18     "      A        456.       "    II. c. xvii. 19.            321.'"  19-25        It  i. (Proef.)          II. c. xvii. 19-29.         379.
I  23     "     "    1. 3. 58.       "   II. c. xvii. 20.             379.
"  2-5    "      C'        12.       "   II. c. xviii. 4. s. 2.         20.
"  32     "     "            9.      "   II. c. xviii. 2.               77.
"  40     "     "           30.      "   II. c. xviii. 4. s. 5.         39.
"  41     "      "4        160.      4   II. c. xviii. 7. s. 1.         44.
A' 46     "     "          43.      d"  II. c. xviii. 1, 2, 3.        379.
Lib.  I. c. i. 1.                  13.       "   II. c. xx. 28.                 7.
I". c. i. 14.                78.       "   II. c. xx. 40.            8. 442.
"     I. c. iii. 6.               77.       "   II. C. xxi.                  231.
I. c. iii. 7.               78.       "   II. c. xxi. 5.              379.
"     I. c. iii. 7. s. 2.         91.            I. c. xxi. 3, 4, 5.        409.
I. c. iii. 21. ss. 10, 11. 89. 92.        II c. xxii. 16.             161.
I. c. iii. 21. s. 3.        91.       "   II. c. xxv. 8.              345.
I. c. iii. 21, 22.               92.       "  III. c. i. 1                 321.
"    II. c. i. 22.              491.        "  III. c. ii. 1.                321.
"   II. c. ii. 2. s. 5.         245.        "  III. c. ii. 2. s. 2.          322.
"    I. c. ii. 5.          235. 355.        "  III. c. iii. 1, 2, 3.  792 80. 379.
II. c. ii. 11.                   168.       "   III. c. iv. 10. s. 2.        321.
II. c. ii. 12.              168.       "  III. c. iv. 15.               321.
"   II. c. ii. 12. 14.     167. 175.'"  III. c. iv. 19.         318. 321.
"    II. c. ii. 13. s. 5.       235.        "  III. c. v. 2.                  27.
"   II. c. ii. 14. ss. 1, 2.     175.       "  III. c. vi. 3.                 39.
II. c. iii. 6.               26.       "  III. c. vii. 5. s. 2.          39.
II. c. iii. 7. 12.          167.."  III. c. vii. 9.       27. 39. 318.
II. c. iii. 8.                 212.        "  III. c. ix.             311, 312.
II. c. iii. 10. s. 3.      321.        "  III. c. ix. 1, 4. s. 2.        34.
II. c. iii. 13. s. 2.    201. 215.     "  III. c. ix. 9.                307.
187.. c. iii. 15.          187.           III. c ix. 16.         379. 388.
II. c. iii. 16, 17.         258.       "  XI. c. viii. 2.                 2.
II. c. iv.            265. 273.  -    Mare Liberum, 186. 195.
IIC. c. iv. 1.               276.    -   Epistole, Ep. 546, p. 920., xii.
"   II. c. iv. 5. s. 2.         272.            (Praef.)
II. c. iv. 4.                   308.  Guizot, De la D6mocratie en France,
II. c. iv. 7.         307. 309.      156. (e).
II. c. v. 24. s. 1.     38. 345.  Gulhann, Hatti Sheriff of, 117.
II. c. v. 24. s. 2.          29.  Gunther, 164. (a), 186. (n), 210. (a),
I. c. vi.                  283.      212. 245. (tu), 250. 258. (t), 283. (e),
II c. vi. 6.                28.      290. (y), 292, (f), 293. (h. k), 295,
"   II. c. vii. 3.              298.      (o), 296, (r), 297. (t. it), 302, (a. b),
II. c. viii. 36.      245. 247.      303. 307. (a), 314. 345, (b), 346, (f),
II. c. viii. 26.              3.     347, (h. i), 348. (p), 351. (v), 366,
II. c. ix.            298. 307.      (x), 434. (d), 447, (c).
II. c. ix. 3. s. 1.         148.
II. c. ix. 8.           76. 153.                      H.
II. c. ix. 9.                89.'   II. c. ix. 10.          158.  Haggard's Admiralty Reports, 335. (s).
II. c. ix. 11.                   241.  Hale, Pleas of the Crown, 233. (q).
II. c. x.          76. 311. 313.  Hambourg, 99.
II. C. X. 1. s. 5.          312.  Hannibal, 7.
II. c. x. 2. s. 1.          344.  Hansard's Parliamentary Debates, 414.
"   II. c. xi. 5. s. 2.         355.      (t), 416. (x), 457. (d).




INDEX.                                  387
Hanseatic League, 99. Towns, 204.   James II., Power after Abdication of
Heath, Mr. Justice, 412.                  commissioning  Privateers  denied,
Hedges, Sir Charles, Judge  of the        398-406.
High Court of Admiralty in 1696,  Jenkins, Sir Leoline, 81. (iu), 196.198.
Charge on Trial of Joseph Dawson,    213. Letter to Sir William Temple
385, 386.                               on  Naturalization, 349. 362. (c).
Heffters, 89. (a), 94. (n), 145, (t), 146.    Law relating to Piracy; Letter to Mr.
(s), 157. (i), 165. (a), 189. (v), 210.    Secretary Williamson, 380. Charge
(a), 215. (o), 217. 277. (d), 282. (a),    within the Cinque Ports relating to
302, (a), 303. 307. (a), 314. 346, 347.    ditto, 381; at Old Bailey, ditto, 383.
(a), 360. 365. (s. t. v), 366. 411. (7),    394. 407. (a).
413. (r), 434. (d).                   Jenkinson, Mr., afterwards Lord LiverHeineccius, 23. (k), 34. (q), 230. 283.    pool, 20. (b).
(i), 308. 312. (y).                  Johnson, Dr., Thoughts on TransacHenry VII., Patent to John Cabot,   tions relating the Falkland Isles,
262.                                    262. (d), 263. (h).
Heredotus, 361. (b).                    Johnson's American Reports, 158. (m).
Hertius, xv. (Pref.)                    Jurisdiction, Territorial, over Persons,
Hertslet's Treaties, 86. 96. (r), 99, (s),    either Subjects or Foreigners, 354100. (y), 105. (b), 119. (z), 144. (r),    360.  Civil, over Foreigners, See
173. (t), 232. (o), 258. (t), 324, (a),    Comity.  Exceptions to the Terri362. (g).  For Treaties on Extradi-    torial Right of, 361-378. Right
tion.                                   of, 379.
Hindostan, 35. (s).                     Jurist, 391. (f).
Hobbes, 2. (b).                         Jus Feciale, 17. Jus Gentium and Jus
Holland, 205, 206.                        Civile, 240.
Holstein, Duchy of.  See Schleswig.    Justice, Principles of International,
Homan, de Delictis Peregrinorum, &c.,    when binding, 23.
355. (d).                             Justinian, 240. 266.
Homer, 79.
Honduras, British Settlement in, 223.                    K.
Hooker, 2. (d), 3. (g), 4-19, (a), 150.
(g).                                 Kaine, Case of, 430.
Howell's State Trials, the Negro Case,  Kaltenborn, V6lkerrcht, 5. (m), 9. (a),
337, 385, (m), 386, (n. o. p. q), 389,    73. (b), 74. (g), 104. (a).
(a). Case of Napper Tandy, 413. (q),  Kant, 72. (a).
417. (y. z).                          Kent, Mr. Chancellor, 54. 60. (g), 155.
Hubertsburg and Paris, Peace of, 181.    158. (1), 210. (a), 213. 353.  Comm.
Huberus, de Confiictu Legum, 35. 355.    377. (z), 379. (a), 381. (e), 407. (a),
H-ume's History, 197. Essays, 449.        408. (c), 410. (i), 411. 435. (e).
Hyder Ali, 23. (k).                     Kenyon, Lord, 417.
Klinkhammer, 447. (c).
I.                    Kliiber, 39. (h), 89. (a), 94. (q), 146. (u),
Iceland, 204.                             210. (b), 235. (a), 247. (z) 258. (t),
India, 23.                                302. (a), 306. (d), 306. () 355. (e)
Injunctio366. (y), 376. (x), 393. (k), 413. (r),
Injunction, 433.                          4 22 (i).
Institutes.  See Roman Law.               422      () 41        
International Jurisprudence in Eng-  Koch, 47. (m.), 48. (n), 107. (d) 112.
land, Hist. of, Pref. xv. to end.    Koch, 34 (), 172. (), 207. (d), 284.
Intervention justified on the ground of    (k), 291. (a. b), 292, 293, 294. (n),
Self-Preservation,  285.   Chapter    306. (p. (), 3102 (2), 323 (u)
Interdict, 433. (octrine)f,437. (i), 449. (i), 450. (m. n), 452. (q),
Interdict, 433.                           453. (v), 461. (y).
Inviolability, Territorial, 165.
Isocrates, Orat. Archidam. 271. (q).
J.                    Lamartine, M. de, 152. 437.
James I. succeeds to the Throne, partly  Lamberty, Mdmoires, x. (Pref.)
by the Nomination of Elizabeth, and  Lampredi, xiv. (Praef.)
partly by Right of Descent, 299.      Lapse of Time, effect of, 272.




3 88      P HILLIMORE  ON  INTE RNATIONAL  LAW.
Law, International, Private and public    C6lebres, 173. (s), 205. (f. g), 206,
distinguished, 2, 3. 10, 11, 12, 13.    (h), 207. (i), 342. (z), 414. (t). MerkLegal Means of two Kinds, vid arnica-    wirdiger Fitlle, 413. (q).
bili, via facti, 12.  Of War, 13.    Mass6, Le Droit Commercial, 235. Le
Leibnitz, 33.                             Devoir des Etrangers, 355. (e), 374.
Limburg, Duchy of, 133.                   (o), 375, (q), 376.
Livy, 7. (q), 9. (y), 17. (s), 18.      Mayence, Treaty of, 180.
Loccennius, 35. De Jure Marit. 375.  Merlin, Rep. de Jurispr., 15. (g), 136.
(a).                                   (b), 365. (v).  Questions du Droit,
Lorenzo el Real, Treaty of, 170.          410. (i).
Louis XIV., 197.                        Michaelis,  Mosaisches,  Recht. vii.,
Louis, The, 38.                           (Prfef.)
Louisiana, 293.                         Miltitz, 82. (z), 99. (x), Manuel des
Lubeck, 99. 204.                          Consuls, 361, (b), 362. (f), 364. (p),
Lucan, 490.                               476. (x).
Lushington, Dr., 391, 392.              Milton, 448. (f), 454.
Luxelnburg, Duchy of, 133.              Mirehouse v. Rennell, 36. (t).
Lyndhurst, Lord, 415.                   Miruss, vi. (Prief.)
Mississippi, 33, 34. 181.
M.                    ZMoldavia, 112.
Molloy; 80.
Mably, Droit Public, 51. (y), 84. (b),  Moniteur, cited, 435. 478. (e).
107. (e), 151. 157. (h7), 229. (g), 279.  Montenegro, 110.
(f), 288. (q), 308, 309. (k), 447. (c),  Montesquieu, 14. 21. 151. 361. (b), 468.
456. (c).                               (c).
Mackeldey, 237. (c), 304. (h).          Morality, International, 25.
Maclkintosh Sir James, 28, 62. Speech   Morocco, 22. (i), 109.
on Blockade of Norway, 291, (z), 417.  Moser, xiv. (Praef.)
437. 443, 444. 447. (c), 453. (u).    Miihlenbruck, 237. (c), 307. (a).
Manning, Law of Nations, 434. (d).    Munster, Peace of, 170. 250.
Mansfield, Lord, 61.
Marine Ordinance, Effect of on Inter-                    N.
national Law 50.
national Leatter, 50.                 Nationality, Change effected in, 350.
Marriage, frequently a mode of acquir-  Naturalization, 350-354.  Laws of
ing Territory, 296, 297.                Fra-nce relating thereto, 351.
Marseilles, Tribunal Correctionnel at,  Netherlands, United Provinces of; 134.
375.                                  Neufchatel, Principalities of, 136.
Marshall, Chief Justice, Judgment of  Newfoundland Fisheries, 207.
(in Case of Antelope), 77. (y), 375.   Newton, The, Case of 374.
Martens, De, and De Cussy, 115,  6.  Neyron, 11. ().
(r. s), 124, (f), 125, (k), 126. (1),  Nimeguen, Treaty of, Art. XIV., re134. (z), 169. (1), 1 76. (a), 193. (a),    ferring to Exchange of Territory, 290.
207. (n), 211. (d), 217. (r), 319. (i)   Nootka  ound, 190.  Convention, 192.
320. (k), 323. (x), 325, (c), 326. (f).    263.
Traite des Noirs, 329, (g), 330, (e, I),  North Sea, 193.
331. Traite entre Gr. Bretagne et  Norway, Forcible Annexation of; to
Perse, 364. (p), 372. (k), 417. (a).    Sweden, 285.
Martens, De, Droit des Gens, 94. (o), 
186. (n). Des Mers Adjacentes, 201.
212. 226. 235. (a), 251. 407. 408.  Occupation, 259.
De l'Extradition dcl'un Criminel, 410.  Ompteda (Von), Litteratur der V6ker414. 447. (c), 466. (y), 475.  Traitds  recht, 3. (j), 277. (b), 306. (t), 492.
84. (c), 96. (r), 99. (t), 111. (m), 125,  Oppenheim, 51. (u), 89. (ca).
(h), 130. (m), 134. (z), 176. (z), 224.  Oregon Territory, Maxims of America
(e), 245. (v), 263. (h), 283. (d), 286.    upon, 243.  Question, 259. (z).
292.(c), 302.(c), 307. (a), 355, (e), 356.  Ortolan, Eugene, 168. (j).  Des Moy(f), 418. (e), 419. (k. nz). Nouveau    ens d'acquerir le Domain InternaRecueil, 420. (n), 438. (k), 457. 467.    tional, 237. (a), 259. (o), 263. (h. i),
(b),480. (g.h.i). For Treaties on Ex-    265. (b), 282. (a), 447. (c).  Diplotradition, See Extradition.  Causes    matie de la Mer, 58. (a), 210. (a),




INDEX.                                 389
216. (q), 362. (e), 366. (x), 369. (c),  Possession, 237. Three species of, 239.
372. (k), 374, 375. (o.p. r), 376. The  Postliminium, Doctrine of, 273. 3117
French Ordonnnace cited by, 377.    312.
Des Pirates, 379. (a), 381. (c), 394. Pothier, 63, 68.
(nm), 408. (c).                     Power, Balance of.  See Intervention.
Ottoman Empire.  See Turkey.           Prescription, 265-281. Immemorial.
268. Abolished in France and AusP.                      tria in Private Law, 270. Indispensable in Public Law, 270. InterPapers relative to the Rights of Libe-    national, 271. List of Authors in
rated Africans, &c., 354. (C). See    favour of placing it in the System of
State Papers.                          International Law, 273.
Paraguay, States of, 186. River Pa-  Pretender, The) 229.
rana, States of, 186.                Privateer, 393.  Law  laid down in
Pardessus, 51.                           America, Cases relating thereto, List
Paris, Treaty of, 25. (o), 177. 207. 293,    of; 394. (1).  See James II.
294. In 1814, 323.                   Prize Courts, Decisions of, their Effects
Pascal, Pensees, 25. (o).                upon International Law, 51.
Paul I., Emperor of Russia, Libel upon,  Proclamations, Effect of, on Interna417.                                  tional Law, 50.
Peltier (Jean), Case of, 417.          Property, 237. May be taken by an
Phillimore (Dr.), 58. Preface to Sir    Act of Law, by Conquest, may beG. Lee's Reports.                      come extinct, 315.
Phillimore (R.), Pamphlet on Armed  Prussia, 39. Acquisition of Part of
Intervention on the ground of Reli-    Saxony by, 300.
gion, 113. (p), 470, &c. Letter to  Puchta, 2, 37 (g), 4. (1) 18. (x), 237. (c)
Lord Ashburton, 232. (min), 470. (g).  394. (h).
Piracy, Authorities from  Civil Law,  Puffendorf, 2. (b), 156. 169. 186. 200.
from Jurists, from Statute and Coln-    Jus Nat. et Gent. 265. (a). De Usumon Law, and Commentators there-    capione, 275. 284. De Success. ab
on, cited~ by Judge of the Vice-Ad-    Intestato, 298. 313. 410.
miralty Court, Charleston, List of,  Punishment, Mistake respecting the
388. (x).                              Liability of Nations to, 5.
Pirates, 379. Case of Magellan Pirates,  Puttlingen (De), 422.
390. 401-405.
Plato, 17. (p).                                          Q.
Plutarch, 17, 787.                     Queen Te, v. Clinton 430.
Poland, Condition of, under the Treaty
of Vienna, 89, 90. Election of Duke                   R
Jagello and Acquisition of Litthaueins
295.  Maintains the Freedomn  of  Recuperatio, 18.
Slaves, 343. Partitions of, 39, 437-   Recuperatores, 18.
441.                                 Reiffenstuel, 24. (1)
Polybius, 133. (x) 448, 449.           Register, Annual,  21, (d),  22. (g)
Pompey, 18.                              131. (p), 169. (mn), 208, (n), 209. (o),
Pope, the Grants of, 245. 260.268. Pro-    223, (b), 224. (e), 293. (y), 319. (h),
testing against all Treaties recognis-    427. (g), 463. (k), 464. (1. n).
ing the Confiscation of Church Pro-  Renvoi, Right of, 407.
pertyatorsincethe Reformation, 309.  Reports.  See List of; at the beginning
Portalis, Code Civ. 356. (f).            of this Volume.
Porte, Ottoman, 22. (i).  Concessions  Review, Foreign Quarterly, 447. (c).
by, to the British Crown, 362. For  Review, Edinburgh, 414, 437.
Intervention in the Affairs of, See  Revue Etrang6re, 420. (o), 426. (s).
Intervention.                        Rhine, its free Navigation, 177.
Portugal:  Portuguese Rebels, 228.  Ridley, View of Civil Law, 387. (u)
Cedes to Spain Annobon and Fer-  Rights, 3.  International Public, 10.
nando Po, 292. Treaties with Great    International Private, 11, 12.  Of
Britain, acknowledging the Neces-    Neutrals, 12.  Of Belligerents, 12.
sity of suppressing the Slave Trade,    Of Independence and Equality, 162.
325. For Intervention in Affairs of;    To a free Choice of Government, 194.
KSee Intervention.                   Rivers.  Chap. V., 167.




390       PHIILLIMORE  ON  INTER NATION AL  LAW.
Robbins, Case of, 429.                      Digest,  XLIII. t. xvii. 2.     238.
Robinson's Admiralty Reports.  See            "       XLIII. t. xvii. 3. s. 8. 238.
Reports.                                    "      XLIII. t. xvii.        238.
Rocco, Dell' Uso delle Leggi delle Due        "       XLIII. t. xx.3.s.4. 266,267.
Sicilie, 355 (e).                           "      XLIII. t. xxvii.      433.
Rodenburghius, xv. (Praef.)                   "       XLIII. t. xxviii.     433.
"      XLVI. t. i.            308.
Roman Law.                       Page.        "       XLVI. t. i. 22.         2.
Digest.  Lib. I. t. i. 2.         2.        "      XLVI. t. iii. 12. s. 4. 242.
i"          I. t. i. 5.         3.       "       XLVI. t. iii. 79.     289.
I. t. i. 9.         4.       "       XLVI. t. iv.          490.
I. t. iii. 12.     36.       "       XLVI. t. vi. 9.       165.
I. t. iii. 14.    47.        "      XLVII. t. ii. 44. 9.   312.
I. t. iii. 27.     36.       "      XLVII. t. ii. 51.        68.
I. t. iii. 32.     36.       "      XLVII. t. iii.         433.
t"         I. t. iii. 41.     237.       "       XLIX. t. iv. 7.         92.
I. t. viii. 5.   167.        "       XLIX. t. xiv. 11.    310.
c          II. t. i. 20.      361.       "       XLIX. t. xv. 19. s. 2.
6         TIII. t. iv. 1. ss. 17 2.   2.                          379. 388.'         XIII. t. v. 6. s. 9.   242.    "       XLIX. t. xv. 21.      379.'"        III. t. xxxv.        68.       "       XLIX. t. xv. 24.      388.
"(          V. t. i. 76. 1.148, 149.     "            L. t. xvi. 49.    165.
r"         VII. t. i. 56.       1.                   L. t. xvi. 90.169. 304.
"c      VIII. t. i. 15.      305.                    L. t. xvi. 118.   379.
"'       VIII. t. iv. 13.     189.                   L.t. xvi. 125.   310.
c"        IX. t. ii. 23.       68.                   L. t. xvii. 17.    490.
c'       XIII. t. i. 8. s. 1.    68.                 L. t. xvi. 178. 208.
"c       XIII. t. iii. 1.      66.                             222.    165.
"c      XVII. t. ii. 23.       31.       "           L. t. xvii. 136.   313.
XVIII. t. vi.           67.       "            L. t. xvii. 153.   307.
"t     XXIII. t. iii. 43. s. 1. 289.                  L. t. xvii. 162.    47.
"      XXIX. t. ii.           308.
XXXIX. t. i. 5..     304.       Codex,   Lib. I. t. iv.          59.
XXXIX. t. ii.          433.                     I. t. xvii. 2. 18.  36.
"    XXXIX. t. iii.           433.. t. iii.
XXXIX. t. iii. 1. s. 22. 303.                   II. t. xxix.         2.
XXXIX. t. iii. 2. 266. 274. 2I. t xxxiv.                          3043.
"    XXXIX. t. iii. 24. 26. 267.                     IV. t. i. 2.        74
III. t. xxxiv.    304.
"      XXXIX. t. iii.     2    3. 26V. 2t7. 
XLI. t. i. 9. s. 3.   288.t.  iii.                             67.
XLI. t. i. 20. s. 1.  289.                VII. t. xxv. 1.     240.
XLI. t. i. 20. s. 5.  289.                VII. t. xxxi.       266.
XLI. t. i. 31.      289.                  VII. t. xxxiii.     266.
XLI. t. i. 9. s29 30.                       II. t. xxxiv.     26286.
"7 ~        r "       VII. t. xxxiii.     266.
rr    ~YXLI. t. i. 31.        289.
XL. t i 56. 65.   255.                   VII. t. xxxviii.    266.
vs     XLItii. 1. s. 1.  241.. t. i.      2
XLI. t. ii. 1       238                   VII. t. xxxi.     25566.' XLI. t.    3. s. 1.  247                VII. t. xxxviii.    266.
XLI. t. ii. 8.  240. 307.                  IX. t. iii.         59.
Xr LI. t. it. 1. s. 1. 241.
XL  t. ii. 1. s.. 29.                   VII. t. xxxii 46.  28266.
XLI. t. ii. 1       238.
XLI t. ii. 18.      238.    stitio        VII. t. vixli. 2     55. 433.
it     NiXLI. t. ii. 3. s. 2. 243.                     I. t. xii. 6.   311.
"49      XLI. t.ii. 34.       239.                   II. t. iii.        59 2.  167.
XLI. t. ii.  24.    238.                    II. t. i. 1. 5. 34.0167.
" C      XLI. t. iii.         266.                    II. t. i. 1      317.
XLI. t. iii. 1.     274..t.i. 2021. 23955.257.
XLII. t. vii. 138. s.    266.. t. i. 42.     289.
"   XLI. t. ii. 23. s. 2. 25316.                 I I. t. xii.  30411.
"        XLI. t. xvi. 1. s. 9. 238.                  II. t. vi.    238. 2166.
"   XLIII. t. xvi. 1. s. 14. 242.      "    III. (de Legit. Aguat.) 26.
"      XLIII. t. xvi. 4.        7.         "  IV. t. iii. (de Lege Aqui.) 68




INDEX.                                391
Romans, Epistle to the, 16.              formally adopted at the Congress of
Rome, 17.                                Vienna in 1815, Aix-la-Chapelle in
Rotteck, Staats-Lexicon, 470.            1818, Verona in 1822, 329. Placed
Russell on Crimes, 359. (in), 378. (b),    in the Category of Piracy in 1842,
381.                                   330. Catalogue of Treaties relating
Russia, 21. Manifesto of Great Bri-   thereto between Great Britian and
tainto, 45. Claims Sovereignty over    other States, 331. Report of ComPacific Ocean, 215.                    mittee of House of Commons upon
Rutherforth, 147. (a), 258. (1), 283.    332.  Illegality of, according  to
410. (f).                              Municipal Law, 335. English Cases
Rymer's Foedera, 193. 204.               upon, 336-340. French, 341, 342.
Ryswick, Peace of, in 1697, 314.         Polish, 343.
Smith (Sir Thomas), Commonwealth
S.                     of England, 318. (e).
Somersett (The Negro), 335.
Saalfeld, 413. (r).                    Sophocles, Antigone, 16. (i).
Sallust, 18. 93. (i).                  Sovereigns, 10.
Sally, The, Case of, 374.             Spain, 33.  Negociations with  the
San Lorenzo el Real, Treaty of, 182.     United States respecting Louisiana,
San Marino, 100.                         252. Its Dominions parcelled out
Santa Lucia, dispute between France    in 1700, 288.  Treaty with Great
and England respecting, 280.           Britain relative to the Continuance
Savigny, 2, 3. (f), 5, (n), 6. (o. p.),    of the Slave Trade, 324. For Quad25. (p), 36. (t), 42. (r), 150. 237. (c),    ruple Alliance in 1834, see Interven267, (h), 268. (i), 270. 282, (b), 283.    tion.
304. (h), 491.                      Spelman (Sir Henry) on the Use of the
Saxony, 39. King of, publishes a Pro-    Word " Pirata"  in his Glossarium,
test against the Dismemberment of    387.
his Kingdom, 310.                    State Papers, 226. 234. 250, (i), 251.
Scheldt, closed to the Belgian Pro-    (k), 255. (n).
vinces, 173.                        States, Different Kinds of, Chap. II.,
Schilling, Pandekten Recht, 304. (h).    88. Feudal, 107.  Under Federal
Schlegel, 193. Staatsrecht Danemark,    Union, Chap. III., 120. Retaining
201.                                  individually the Management of their
Schleswig, Duchy of, 132.                externalRelations, 122. 133. Whose
Schmalzgrueber, 24. (1), 268. (i).       external relations are managed by
Schmauss, 136. (c), 249. (f), 264. (1),   the Supreme Federal Power, 133.
290. (y), 293. (i), 302. (c), 315. (1)    145. Extinction of, 147. Changes
473. (k), 476. (z. a.).               in, 148.  Its Property capable of
Scott, Sir William, 56.                  being alienated; and of being subSea, North, 193. Narrow, 194. Por-    jected to Obligations and Servieces in
tions of; 210. Near the Coasts, 211.    favour of another State, 302. May
Landlocked, 216, 217. Caspian and    voluntarily subject herself to the
Black Sea, 216. The Baltic, 216.      same, 303. Renunciation of TerriSearch, Right of, 324.                  tory by, 310. List of, forbidden to
Selden, Mare Clausum, 186. 195. 387.    deliver up  citizens  to  Foreign
(r).                                  Powers, 413. (r)
Self-Preservation, 225-235.            States, United, of North America, 33,
Sell die Recuperatio der R6mer, 491,    34. The greatest Example of Fe492, 493, 494.                        deral Government, 138.  Fishing
Seneca, 19. (z).                         Disputes, 207.  Negociations with
Servia, 114.                             England respecting Oregon BounServitus, Doctrine of, 304. (as to    dary, 250.  Claims upon Oregon
Places.) Negative and affirmative,    Territory, 264. Negociations with
305. Exemplified by Treaties, 306.    Great Britain relating to Suppression
Shakspere, Richard II., 149.(d).         of Slave Trade, 325.  Contentions
Ships, Foreign Ships of War, 366.    with Ditto on Right of Visit, 326.
Foreign Ships of Commerce, 366.       Foreign Enlistment Act, 398. UnitSierra Leone, 354.                      ed States v. Nash, Case of, 429.
Slaves and Slave Trade, 316. Aboli-  Statutes, List of, relating to Offences
tion of; as a Principle of Public Law,    by British Subjects in foreign States,




392      PHILLIMI O RE  ON  INTERNATIONAL  LAW.
358. On the High Seas, 358.  Out  St. Ildefonse, Treaty concluded  at,
of England, 358. Foreign Enlist-    illustrating national Acquisition by
ment Act, 397.                         Gift, Sale, and Exchange, 294.
St. Lawrence, 181, 182.
Suarez, 24. (it), 25. (p), 28. 63. (n),
27 Edw. III. c. 13.       388.    157. (g), 268. (i), 317. vi. Praef.
15 Rich. II. c. 3.        358  Straits.  Chap. VII., 200.
28 Hen. VIII. c. 15.   358, 388.  Subject, Right of Jurisdiction over,
389.    345-348.
33 Hen. VIII. c. 23.        358.  Succession, a Means of national Ac10 & 11 Will. III. c. 25.       358.    quisition, 297.
9 Geo. III. c. 35.       211.  Sulina Channel, 177.
33 Geo. III. c. 4.        233.  Sully, 450. (o).
38 Geo. III. c. 50. 77.    234.  Sweden.  See Norway.
41 Geo. III. c. 24.       234.  Swiss Cantons, Confederation of; 134.
42 Geo. III. c. 93.       234.
43 Geo. III. c. 155.      234.                    T.
46 Geo. III. c. 54.       358.
54 Geo. III. c. 155,.     234.  Talbot, Lord, 62.
55 Geo. III. c. 54.       234.  Talleyrandl, Prince, 39. Mdmoire Rai56 Geo. III. c. 86.       234.    sonne6 on Testamentary Disposition,
58 Geo. III. c. 96.       234.    300. (a).
59 Geo. III. c. 69.   397, 398.  Tandy, Napper, arrested in Hamburg,
59 Geo. III. c. 75.       358.    413.
1 Geo. IV. c. 105.       234.  Tanzimat, 117.
3 Geo. IV. c. 97.        234.  Tasso, 80. (r).
5 Geo. IV. c. 37.        234.  Taunton's Reports, 67. (e).
6 Geo. IV. c. 49.        391.  Taylor, 3. (f), 13. (f), 18. (y).
9 Geo. IV. c. 31.        358.  Temple, Sir William, 196.
2 & 3 Will. IV. c. 71.       270.  Territory, national, consists of WVater
3 & 4 Will. IV. c. 93.       363.    as well as of Land, 166. Exchange
4 & 5 Will. IV. c. 36.   358. 378.    of, 290. Cessions of, 292. Gifts of
389.    293.
6 & 7 Vict. c. 75.       427.  Testamentary Disposition, a Mode of
6 & 7 Vict. c. 76.       429.    territorial Acquisition, 300.
6 & 7 Vict. c. 80.       363.  Themistocles, 17.
7 & 8 Vict. c. 2.        389.  Things, and Rights, 165.
7 & 8 Vict. c. 66.       353.  Thucydides, 16. 79.
8 & 9 Vict. c. 120.      427.  Times, The, 416.
8 & 9 Vict. c. 122.      329.  Tindall, Matthew, Essay concerning
13 & 14 Vict. c. 26.   389. 391.    the Laws of Nations and Rights of
15 Vict. c. 26.       377.    Sovereigns, 153. (q), 398. 406.
Tittman, Die Strafrechtspflege in V61Story (Dr.), 56. Commentaries on the     kerrechtlicher Rilcksicht, 356. (f),
Constitution of the United States,    411. (k).
138. 158. Conflict of Laws, 344.  Tordesillas, Treaty of, 245.
346 (h), 355. (d), 367. 372. Judg-  Treaties.  (See beginning of this Voment in United States v. Smith, 380.    Iume for list of.) General Divisions
410. (i).  On the Constitution, 430.    of, and Remarks upon, 48-9. Effect
(kc).                                  of, upon General International Law,
Stowell, Lord, 14. 20. 22. 32. 38, 39.    44-7. 49. Between Russia and the
41, 42. 46. 52.  His Judgments.    Porte, 83-87.  Relating  to  the
The Place they are entitled to hold    Germanic Confederation, 123. Reamong the Sources of International    lating to the Isthmus of Central
Law, 54. 60, 61. 69. 81, 82, (y), 153.    America, 218. Treaty of Partition,
160. (b), 170. 194. 199. 210. 238. (d),    289.   Relating  to  Exchange  of
244. 321, 322. 335. 359. (ni). The     Territories, 290, 291.  Secret, bePrintz Frederick, 370. Addressing      tween  the French  Republic  and
Grand Jury, on Jurisdiction of the     Spain, 294. Between England and
Admiralty of England, 389.  Trial    France in 1845, Article in relation
of William Codling, 389.               to Right of Visit, 326. Relating to




I NDE  o                               393
commissioning Privateers, 1786, be-     82. Annexe, 125. 173. Articles of,
tween France and Holland, 1662.    relating to Navigation of Rivers,
France and United States of North       176. Treaty of, in 1815, 303. ConAmerica, 1778. 395. Between North       gress of, in 1815, 310. Talleyrand's
American United States and Prussia,    Note to, 440.
1785, between Denmark and Genoa,  Visigoths, Code of the, 361.
1789, 396. Particular Provision in  Voet, John, 28. 66, 67. 410.
Treaties between France and Amer-   -   Paul, 409.
ica, 396. With Denmark in 1660,
relating to Extradition of Rbgicides,
412. Relating to Balance of Power,                    W.
451. &c. To Intervention on religious Grounds, 473, &c.              Wachtor, xv. (Proef.)
Troplong, 19. (z), 242. (n), 266. (e).  Wacksmuth, Jus Gentium quale obtiDe l'Infl. du Christ. sur le Droit    nuit apud Graecos, vii. (Prnef.)
Civil, 316. (b).                     Waites, American State Papers, 34.
Turkey, not represented at the Con-    (p).
gress of Vienna, 82. Consuls of  Wallace, 260.
Christian Powers residing in, 363.  Wallachia.  See Moldavia.
See Porte.                           Waltershausen, 99. (x).
Twiss, Relations of the Duchies of  Ward, 21. (f)  Law of Nations, 81.
Schleswig and Holstein, 130. (m),    (x).
132. (s) Oregon Boundary, 260. (b)  Warnkcenig, 9. (a), 59. (c), 72. (a), 237.
(c), 238. (d), 240. (g), 311. 491.
U.                    Warsaw, Duchy of, 89.
Ulpian, 31. (i), 189.                   Washington, Treaty of, 264.
~Trpian  3. T ) S             --           Circuit Rep. 353.
Univers, L', (Newspaper), 478. (e).     Webster, Mr  53  209
Univers7tas, 165.                    Wenck, Cod. J. G., 263. (h), 467. (ca),
Use and Settlement, 247-48.               477. (b), 478. ( 2).
Usucapio, 266.  Distinction between,   (estminster, Treaty of 196.
and Prsescriptio (Schmalzgrueber),  Westphalia, Treaty of, 241 (o).
268. (i)                             Wheaton's Elem. de Dr. Inter., 44. (e),
Utrecht, Treaty of, 25. (o), 207. Inter-    51. (t), 58. (a), 89. (a), 90. (b) 94.
pretation of the Language of, 248       (p)7 346. (e), 363. (i), 364. (r), 366.
290. Between France and England         (x),373 (n), 376, (x), 377. (z), 393.
in 1713, 305. Between Spain and         (1), 434. (,).
England, 305. Instances of Renun-  Wheaton's Hist., 34, (p), 39. (h), 49.
ciations of Territory in, 310.          (p), 51. (y), 53. 86. (f), 107. (e),
(130. (nm. n), 138. (a), 143. (q), 156.
V.                       (c), 158. (n), 168. (d), 169. 176, (b),
182. (i. j), 186. (n), 189. (v), 190.
Valin, Commentaries, 41, 51. 198. (i).    195. (b), 197, 198. 201. 215. (o), 237.
210. (b). OnPiracy, 381.(e). Ordon-    247. (z), 262, 263. (k), 264. (n), 277.
nance de la Marine, 395.                (d), 283. (f), 288. (q), 309. (k), 325.
Varro, De Lingunt Latinh, 491.            (c), 326. (e), 353. 373. Letter of Mr.
Vattel, 5. (n), 3. (h), 8. 11. (b), 13.    Webster to Lord Ashburton, 434. (d),
(f), 22. 23. (k) 29, 30. (f), 32. 38.    437. (i), 439. (n), 449. (1), 452. (r. s)
(d), 59:(e), 75. (a), 6, (c), 7. (f),    460. (f).
78. (h), 89. (a), 147. (a), 153. 168,  Wheaton's Rep., 353. (a), 380. (d). The
(f. g. i), 169. 186. (n), 189. (v). 190.    Santissina Trinidad, 369. 373.  The
202. 213. 225. 227. 231, 232. (n),    Arrogante  Barcelones, 372.  The
233. (p), 243. (p), 246, 247, 248.    Monte Allegro, 372.
(e), 255, (o), 259. (y), 261. 265. 272.  Wicquefort, M. de, Ambassadeur et ses
(r), 276. 283, 284. 286, 287. 302.(a),    Fonctions, 342. 365.
303. (d ), 366. 377. (z), 393. (k),  William III., 198.
410. (f), 413. (r), 436. (g), 448.  Wiseman, Excellency of the Civil Law,
(e), 469.                               32. (b), 33. (o).
Versailles, Treaty of, 25. (o).         Witt, De, Grand Pensioner, 413.
Vienna, Treaty of, 25. (o). Congress  Wolff, 2. (b), 26, 28, 29. Js. Nat.,
of, 39.  Turkey not represented at,    265. (a).   Jus. Gent. 355. (e)
SEPTEMBER, 1854. —26




39-      P EHILLIMORE  ON  INTERNATIONAL  LAW.
Writers.  See Commentators on Inter-    desrecht, 120. (a. b), 122. (a. c), 130.
national Law.                          (n), 131. (o), 132. (q. r), 133. (t).
Wynford, Lord, 35. (s).                Zollverein, The, 146.
Zouch, 3. (j), 17. (u), 232. (o) De Judicio inter Gentes, 347, (n), 348. (o).
Zacharia, Deutsches Staats und Bun



COMMENTARIES
UPON
INTERNATIONAL LAW 
BY
ROBERT PHILLIMORE, M.P.,
ADVOCATE TO HER MAJESTY IN HER OFFICE OF ADMIRALTY, AUTHOR OF " THE
LAW OF DOMICIL."
"'Legum denique ideirco omnnes servi sumus, ut liberi esse possumus."
CICEMO pro A. Cluent. e   53.
" The various Transactions and Concordats between Sovereigns and the See of Rovme; —a
succinct and impartial history of them is wanting: the papal arrangements with B3onaparte would not be the least curions part of such a work."-lHore Juridiece Sabsecivca.
By CHARMLES BUTLER (1804), p. 118.
VOL. IL.
PH IL A D EL P HIA:
T. & J. W. JOHNSON, LAW BOOKSELLERS,
NO. 197 CHESTNUT STREET.
1 8 5 5.




KITE & WALTON.




CONTENTS.
The pages referred to are those between brackets [    ].
PART V.
CHAPTER  I.
RIGHTS INCIDENT TO THE EQUALITY OF STATES. Pp. 1, 2.
CHAPTER II.
RIGHTS OF PROTECTING CITIZENS IN FOREIGN COUNTRIES. Pp. 3-7.
CHAPTER III.
SUBJECT CONTINUED. Pp. 8-14.
Debts of the State. Lord Palmerston's Letter in 1848. Debts guaranteed by
Treaty. Depreciation of Money by Debtor State. Property of the Subject
liable to the Debts of the State.
CHAPTER IV.
RECOGNITION. Pp. 15-32.
A kind of Moral Intervention. Different kinds of Recognition. Virtual and
formal Recognition. Historical Instances:-United Netherlands; Portugal;
Commonwealth of England; Pretender; North American United States;
Governments in France since 1792. Decisions of Municipal Tribunals.
Recognition of Titles of Dignity.
CHAPTER V.
RIGHT TO EXTERNAL MARIKS OF HONOUR AND RESPECT. Pp. 33-54.
MaritimeHonours. Insignia of the State. Precedence at Congresses. Royal
Honours. Rank of States. Language of International Communication.




iv        PHIILLIMORE ON INTERNATIONAL LAW.
CHAPTER  VI.
TREATIES. Pp. 55-69.
Their Place in the System  of International Law. Different Modes of considering them. Who may contract. Reciprocal Consent. What may be the
Subject of. Modes of confirming.
CHAPTER  VII.
TREATIES. Pp. 70 —78.
Guarantees, different kinds of.
CHAPTER VIII.
TREATIES. Pp. 79-110.
Interpretation of.
(A.) Literal Interpreta.ion.
(B.) Logical Interpretation.
(1.) Uncertainty.
(2.) Impropriety of Language.
General Rules respecting. Uncertainty of Expression, arising from(1.) Incompleteness.
(2.) Ambiguity of Language.
(a.) Ambiguity of single Expressions.
(b.) Of General Construction.
Two general Rules relating to. Impropriety of Expression. Rectified by(1.) Restrictive.
(2.) Extensive Interpretation.
Case of Russo-Dutch Loan. Eadem ratio idemjuts. Things favourable; odious.
CHAPTER IX.
COLLISION OF TREATIES. Pp. 111-116.
Rules respecting. Decisions of British and American Courts.
PART VI.
CHAPTER I.
RIGHTS OF SOVEREIGNS. Pp. 117-133.
Historical Instances. Decisions of Dutch, French and English Tribtunals.
CHAPTER  I I.
EMBASSY. Pp. 134-146.
General Arrangement of the Subject. Who may send Embassy,




CONTENTS.                               v
CHAPTER  III.
EMBASSY, RIGHT TO RECEIVE. Pp. 147 —155.
Right to refuse. Resident Embassy.
CHAPTER IV.
EMBASSY. Pp. 156-163.
General Rights of. Injuries to-Feciales.
CHAPTER V.
EMBASSY, ROMAN LAW RESPECTING. Pp. 164 —169.
Inviolability of. Christian Church. Middle Ages.
CHAPTER VI.
EMBASSY, EXTENT OF INVIOLABILITY. Pp. 170 —172.
CHAPTER VII.
EMBASSY, INVIOLABILITY OF. CRIMINAL LAW. Pp. 173 —189.
Whether, and how far, Ambassador amenable to. Cases respecting.
CHAPTER  VIII.
EMBASSY. EXTERRITORIALITY. CIVIL JURISDICTION. Pp. 190 —215.
How far Ambassador amenable to. Cases respecting. His Suite; Taxes;
Duties i; his Hotel; Chapel.
CHAPTER IX.
EMBASSY. DIFFERENT CLASSES OF PUBLIC MINISTERS. Pp. 216-224.
CHAPTER X.
EMBASSY. INSTRUCTIONS OF AMBASSADORS. CREDENTIALS. Pp. 225-228.
CHAPTER XI.
EMBASSY. ARRIVAL OF AMBASSADOR. Pp. 229-234.
Audience. Alteration and Close of Mission.




i.       PHILLIMORE  ON INTERNATIONAL  LAW.
P ART VII.
CHAPTER  I.
CONSULS. HISTORICAL INTRODUCTION. Pp. 235-239.
CHAPTER II.
CONSULATE IN CHRISTIAN COUNTRIES. Pp. 240-251.
Consuls-General. Vice-Consuls. Treaties respecting..
CHAPTER III.
CONSULS. DUTIES AND POWERS OF. Pp. 252-259.
CHAPTER IV.
CONSULS. DECISIONS OF MUNICIPAL TRIBUNALS RESPECTING. Pp. 260-270.
CHAPTER V.
CONSULS IN THE LEVANT-IN CHINA. Pp. 271-275.
PART VIII.
INTERNATIONAL STATUS OF FOREIGN SPIRITUAL POWERS, ESPECIALLY
OF THE POPE.
CHAPTER  I.
RELIGION AND THE STATE. Pp. 277-280.
Division of the Subject, and Order of Treatment in the following Chapters.
CHAPTER  II.
GENERAL OBSERVATIONS AS TO THE RIGHT OF THE STATE TO SUPERINTEND,
WITHIN ITS TERRITORIAL LIMITS) ALL RELIGIOUS DOCTRINES TAUGHT; AND THE
TEACHERS OF THEM. THE EARLY CONNECTION OF THE CHRISTIAN CHURCH
WITH THE STATE. Pp. 281-297.
Influence of Religion.-Church. —Collegium licitum. —Church under Constantine,-Pepin le Bref. —Identity of Church and State.
CHAPTER  III.
THE GROWTH OF THE AUTHORITY AND PRETENSIONS OF THE POPE.
P. 298-306.
Collision between Church and State after the time of Charlemagne.-Jura
Majestatis circa sacra. CorpTs Juris Canonici.




CONTENTS.                            vii
CHAPTER IV.
THE CORPUS JURIS CANONICI, AND THE PRINCIPLES CONTAINED THEREIN, AND IN
SUBSEQUENT BULLS, AT VARIANCE WITH INTERNATIONAL LAW. Pp. 307 —333.
Venerabilemn. Solitce. Ad Apostolicce. Clericis Laicos. Quod Ohim. Unam
Sanctam and 2lernit. Romani Principes. Pastoralis. Si Fratrum. De
Consuetudine. The Bull, In Ccendz Domini.
CHAPTER V.
THE INTERNATIONAL STATUS OF THE PAPACY BETWEEN THE PERIOD OF THE PROMULGATION OF THE CANON LAW AND THE COUNCIL OF TRENT. Pp. 334-347.
Height of Papal Power. Pragmatic Sanctions. Concordata. French Church.
German Concordata.
CHAPTER VI.
THE PERIOD OF THE COUNCIL OF TRENT, AND ITS EFFECT UPON INTERNATIONAL
RELATIONS. Pp. 348-357.
Treaty of Westphalia.
CHAPTER VII.
THE INTERNATIONAL RELATIONS OF THE PAPACY WITH FOREIGN STATES IN
WHICH THE ROMAN CATHOLIC CHURCH IS ESTABLISHED7 DURING THE PERIOD
BETWEEN THE REFORMATION AND THE PRESENT TIME. THE HISTORY OF CONCORDATA. Pp. 358-396.
Relations of Rome with France. Monitorio di Pcrma. Napoleon and Rome.
Subsequent Relations between France and Rome. Papal Relations with
Austria-with Hungary —with Spain-with Portugal —with The Two Sicilies
-with Sardinia-with Tuscany —with Bavaria.
CHAPTER VIII.
THE INTERNATIONAL RELATIONS OF THE PAPACY WITH FOREIGN STATES IN
WHICH A PROTESTANT CHURCH IS ESTABLISHED. BULLJE CIRCUMSCRIPTIONUM.
Pp. 397-409.
Papal Relations with Prussia —with Hanover —with smaller German Protestant
States-with Saxony-with Switzerland.
CHAPTER IX.
THE INTERNATIONAL RELATIONS OF THE PAPACY WITH STATES IN WHICH A
BRANCH OF THE CATHOLIC CHURCH, NOT IN COMMUNICATION WITH ROME, IS
ESTABLISHED. Pp. 41 0-427.
Papal Relations with Russia —with the Ottoman Porte-with England.
CHAPTER X.
THE ELECTORS, MINISTERS, AND COURTS OF THE POPE CONSIDERED IN THEIR
RELATIONS TO FOREIGN STATES. Pp. 428 —448.




viii     PHILLIMORE  ON  INTERNATIONAL  LAW.
CHAPTER XI.
INTERNATIONAL STATUS OF THE PATRIARCHATE OF CONSTANTINOPLE.
Pp. 449- 454.
Relations of the Greek Church with Russia.  Concordat between Patriarch
and Kingdom of Greece. Aggression of Rome upon Greek Church. Protest
of Greek Church.
For Contents of Appendix, see Chapter of Contents preceding Appendix.




EXPLANATION OF REFERENCE TO THE CORPUS
JURIS CIVILIS.
THROUGHOUT this Work the Roman Law is cited according to what d priori
might seem the natural manner, namely, a reference is made to the Institutes,
Digest, the Code, or the Novells, by an abbreviation of the first syllable of each
of these members of the Corpus Jiuris Civilis, then to the number of the book,
then to the number of the title, then to the number of the law, and then to the
number of the section or paragraoph, as Inst. 1. ii. t. i. s. 1, meaning book i.
title i., and sec. 1, of the Institutes of Justinian; Dig. xxvii. 1, 13, 2, meaning
Digest, book xxvii. title i. law 13, sec. 2; Cod. iii. 39, 5, meaning The Code,
book iii. title 39, law 5. The Novellce, or _Novells, are cited according to the
number of the Novell, which is subdivided into capita or sections, as Nov. xxi. 2,
meaning Novel xxi. cap. 2.
The Corpus Jiris Civilis is usually cited by Continental writers as followsThe Institutes, by the letters Inst., Instit., or I  The number of the paragraph,
followed by the rubric or heading of the title, thusQ 3. inst. De Aruptiis.
Sometimes the reference is made by the numbers of the paragraph, book,
or title, thus —
3. Inst. i. 10.
The letters pninc., pr., or princip., indicate the commencing paragraph of a
title, as the numbering commences with the second.
The Digest, or Pandects, are usually indicated by the older Continental writers
by the letters if.
The letter L. means Law, and the mark ~ means section of the law. The
words after the letters f. give the rubric or heading of the title or chapter.
Thus, for instance, L. 49, ~ 1, If. De Act Enmpt., signifies Law 49, parag. 1, in
the Pandects, title De Actione iEmpti.
Sometimes the first words of the law are cited.
Sometimes the reference is in this manner, the letters Pcand. (used instead
of if.,) D., or Dig., all of which signify Justinian's Pcandects.
Sometimes the letter or letters indicating the Pandects are placed last thusL. profectitia, ~ si pater D. De Jure Dot.
Or, the numbers of the law and paragraph are given, instead of their initial
words, thusL. 5, ~ 6,, De Jure Dotium.
The law cited is sometimes indicated by the letters Fr., instead of L.
The Code.
The Code of Justinian is cited in the same way as the Pandects, and indicated by the letters Cod. or C.; and some writers use the letters Constit.
(Constitutio) instead of L.
The Novells, or later Constitutions in the Corpus Juris., are indicated by the
words Nov. or Novel.
OCTOBER, 1855.-2




AN EXPLANATION OF THE REFERENCES TO THE
BOOKS OF THE CANON LAW.
X. i. 9. 6. 4.-That is to say, book the first, title the ninth, chapter the sixth,
and paragraph the fourth of the Decretals of Pope Gregory the
Ninth. The letter X. denoting the Decretals of that Pope.
VI. 3. 4. 23.-Book the third, title the fourth, and chapter the twenty-third, of
the sixth book of the Decretals by Pope Boniface the Eighth.
Clement. 2. 5. 2. —Book the second, title the fifth, and chapter the second of the
Clementines.
Extra. 14. 3.-That is to say, title the fourteenth, and chapter the third of the
Extravagants of Pope Joan the Twenty-second.
Comm. 3. 2.-That is to say, book the third, and chapter the second of the Communes.
Dist. 76. c. 2.-Distinction the seventy-sixth and chapter the second of the first
part of the Decrees. And if a V. consonant, or this note be
added, viz. ~, it denotes the verse or paragraph of that chapter,
as Dist. 16, c. 2, v. 3, or ~ 3.
16. Q. 7. 3.-That is to say, cause the sixteenth, question the seventh, and chapter the third, of the second part of the Decrees.
Con. 1. 2. —Distinction the first and chapter the second of the third part of the
Decrees.
All these books of the Canon Law are likewise sometimes quoted by the initial
words of the law or chapter itself, and by the words of the title; as thus, Ex
specialis, extra de Judceis, that is to say, cap. 17. tit. 6. of the fifth book of Gre.
gory's Decretals; for the word Extra imports these Decretals, as well as the -Extravagants.




LIST OF AUTHORITIES
REFERRED TO IN THIS VOLUME,
BEING ADDITIONAL TO THOSE REFERRED TO IN THE FORMER VOLUME.
A.
Abbott, on Merchant Ships and Seamen.
Allgemeines Landrecht ffir die Preussichen Staaten.
Ariosto.
Artaud, Histoire de Pie VIIL
B.
Bacon (Lord,) Maxims of the Law, Regula, iii.
Bacon's (Matthew) Abridgment.
Baldwin's (American) Reports.
Barbosa, De Officio et Potestate Episcopi.
"6    De Jure Ecclesiastico.
Baronius (Card.,) Annales Ecclesiastici, cum Pagi Critica, necnon Raynaldi
Continuatio, Tornielli Annales Sacri, Apparatus et Index. Lucce: 1738-56.
Bay's (American) Reports.
Bee's (American) Reports.
Bingham's Antiquities of the Christian Church.
Bosanquet and Puller's Reports.
Bossuet, Declaratio Cleri Gallicani.
"   Sur l'Unit8 de l'Eglise.
Bougeant (Pere) L'Histoire du TraitR de Westphalie.
Bramnhall (Archbishop,) A Just Vindication of the Church of England.
Broom's Legal Maxims.
Bullarii Romani Continuatio, S. Pontificum  Clementis XIII., Clementis XIV.,
Pii VI., &c., collegit And. Adv. Barberi, tom. 1-10, in 7 vols. folio. Rom.:
1835-45. Tom. 1, 22 3. Clemens XIII.; tom. 4. Clemens XIV.; tom. 5-10.
Pius VI.
Bullarium Magnum Romanuma  a B. Leone Magni, usque ad S. D. N. Benedicturn XIII., cura et studio L. et A. M. Cherubini, editio novissima, juxta exemplar Romnce, 19 tom. in 16, folio. Luxemb.: 1727-58.
Burleigh's (Lord) State Papers, by Murden.
Butler's Historical Memoirs of the Roman Catholics.
Bynkershoek, Opusculum De Cultu Religionis Peregrinse apud veteres Romanos.




xii    PHILLIMORE ON INTERNATIONAL LAW.
C,
Csesar, de Bello Civili.
Campbell's Reports.
Cases in Equity under Lord Talbot.
Chalmers's Collection of Opinions.
Cicero, De Inventione Rhetoric,.
" De Divinatione.
"   Epistolke ad Familiares.
"   Orationes Philippicm.
Clarke and Finnelly's Reports.
Clerg6 (M. du.)
Colletta, Storia del Reame di Napoli.
Collier's Ecclesiastical History of Great Britain.
Coppi, Annali d'Italia.
Cotton's (Sir R.) Remains.
Cujacius, Jacobus.
Cziriky, Conspectus Juris Publici Regni Hungarise.
D.
De Pradt, Quatre Concordats.
"    Suite des Quatre Concordats.
"    Concordat de l'Am6rique avec Rome.
IDe Torcy, M6moires.
Deutsch oder Russisch. (Pamphlet.)
Devereux's (American) Equity Reports.
Devoti, Institutionum Canonicarum Libri.
lDictionnaire de l'Academie Franqoise.
Dirksen, Manuale Lat. Fonlium Jur. Civ. Romanorum.
Dod's Roman Catholic History.
Donellus, de Jurn Civili.
Douglas's Reports.
Dow and Clarke's Reports.
Dowling's Reports.
Ducange, Gloss.
Duck, de Usu et Auctoritate Juris Civilis.
Dupin, De Ant. Eccles. Disciplin% Diss. IHistorim.
Dupuis (Jacques,) Commentaries on Pithou.
Durande De Maillang, Diet. du Jur. Canonique.
Durnford and East's Reports.
E.
Ebenders, Was ist ein Bischof?
Evans's Translation of Pothier on Obligations.
Eybel, Was ist der Papst?
F.
Farini, Lo Stato Romano.
Febronius (Justinus,) De Statu Ecclesize et legitimal Potestate Ronmana.
Fleury, Hist. Eccelesiastique.
Freeman's Chancery (American) Reports.
Fynn's British Consul Abroad.
G.
Gaius, Institutiones.
Gallison's (American) Reports.




LIST  OF AUTHORITIES.                           xiii
Giannone, Istoria del Regno di Napoli.
Gibbon, Decline and Fall of the Roman Empire.
Giesler Lehrbuch der Kirchengeschichte,
Gregorii Magni Opera.
Grotius, De Imperio summarum Potestatum circa sacra.
H.
Hegel, Naturrecht und Staatswissenschaft.
Hilliger ad Donellum.
Hill's (American) Reports.
Hoffman, Lexicon Universale.
Huc, Voyage dans le Thibet.
Junius, Letters of.
K.
Koch, Sanctio Pragmatica Germanorum Illustrata.
Lamberty, Memoires.
Landon's Manual of Councils.
Laurent, Hist. du Droit des Gens.
Law Journal Reports.
Leber, Pieces relatives a l'Histoire de France.
Lequeux, Manuale Compendium Juris Canonici.
Livius.
Lorieux, Traite de la Pr6rogative Royale.
Maillane's (Durand de) Dictionnaire de Droit Canonique.
Maistre (Comte Joseph de,) Du Pape.
Marca (Petrus de,) De Concordanti, Sacerdotii et Imperii sui de Libertatibus
Ecclesike Gallicanae.
Martin's (American) Reports.
Martin (H.,) Histoire de France.
Mason, Vindiciae Ecclesie Anglicanee.
Massachusetts (American) Reports.
Maule and Selwyn's Reports.
Miles' (American) Reports.
Milman, History of Latin Christianity.
Modern Reports.
Moser, De Pactis et Privilegiis circa Religionem.
Milller's Fiirstenbund.
"    Reichstagstheatrum unter Friedrich III.
Muratori, Annali.
N.
Noodt (Ger.,) Dissertatio de Relig. ab Imperio, Jure Gentium.
P.
Pacca (Cardinale,) Memorie del.
Packman, Lehrbuch des Kirchenrechts.
Paine's (American) Reports.




xiv    PHILLIMORE ON INTERNATIONAL LAW.
Pamiers (De) Trait6 de la Regale.
Peray (M. Michael de,) Observations sur le Concordat fait entre LMon X. et
Franqais Premier.
Phillimore's (Burn's) Ecclesiastical Law.
Phillips, Kirchenrecht.
Planck, Geschichte der Christlich-kirchlichen Gesellschaftsverfassung.
Portalis (J. E.,) Discours, Rapports, et Travaux inedits sur le Concordat de
1801, les Articles Organiques, &c. &c.
Prendergast, The Law relating to officers of the Navy.
Putter, Beitrige zur Vollkerrechts Geschicht.
Q.
Quintilianus, de Institutione Oratoria.
R.
Ranke, Die Rimischen Papste.
Real (De,) Science du Gouvernement.
Rechberger, Enchiridion Juris Ecclesiastici Austriaci.
Riegger (Pauli Jos. de,) Institutiones Jurisprudentic Ecclesiasticc.
Robertson's Ecclesiastical Reports.
Rousset, Supplement. See Dumont, in Vol. I.
Raynaldus. See Baronius.
S.
Sauter, Fundam. Jur. Eccl. Catholicce.
Savigny, Obligationenrecht.
Schoell, Archives Historiques et Politiques.
Schram, Institutiones Juris Ecclesiastici Publici et Privati.
Schr6ckh, Christliche Kirchengeschichte.
Simon's Reports.
Spittler, Geschichte des Papstthums.
Strype's Annals of the Church.
St. Simon, M(moires de.
T.
Taparelli, Saggio Teoretico di Dritto Naturale, &co
Taunton's Reports.
Taylor's (American) Reports.
Taylor's Law of Evidence.
Theodosius, Codex.
Thomassinus, Vetus et Nova Ecclesios Disciplina.
Thuanus, Historia sui Temporis.
Thurloe's State Papers.
Tindal (Continuation of Rapin.)
Twiss, Letters Apostolic.
V.
Van Espen, Tractatus de Promulgatione legum Ecclesiasticorum ac speciatim
Bullarum et Rescriptorum Curike Romanre.
"     Jus Ecclesiasticurn universum hodiernme discipline.
Vernon's Cases.
Vesey's Reports.
Virgilius.
Voltaire, Essai sur les Mceurs et l'Esprit des Nations.




LIST  OF AUTHORITIES.                              xv
W.
Walker's (American) Chancery Reports.
Walters' JKirchenrecht.
Washington's C. C. (American) Reports.
Wildman's International Law.
Wilson's Reports.
Y.
Yerger's (American) Reports.
Z.
Zonch, Solutio Qusestionis Veteris et Nove, sive de Legati Delinquentis Judice
Competente Dissertatio.




LIST OF REPORTS.
ENGLISH.
B.                                   Mo
Barnwell and Cresswell's.            Maule and Selwyn.s.
Bingham's.                           Modern.
Bosanquet and Puller's~
Burrows'.                                             R.
c.                  Robinson's (Christopher) Admiralty.
ampbell  Robertson's Ecclesiastical.
Campbell's.
Clarke and Finnelly's.
Consistory (Haggard's.)                               S.
Simons's.
D.                   Strange's.
Dodson's (Admiralty.)
Douglas'.                                             T.
Dow and Clarke's.
Dowling's.                           Taunton's Reports.
Durnford and East's.
E.                                   V.
E.
Edwards' (Admiralty.)                Vernon's Cases.
Vesey's.
H.                   Vesey and Beame's (Chancery.)
Haggard's (Admiralty.)
"    (Consistory.)                               W.
K.                   Wilson's.
Knapp's Privy Council. 
L.                   Young and Collier's.
Law Journal.




LIST  OF REPORTS.                              xvii
AMERICAN.
B.                                     J.
Baldwin's.                             Johnson's.
Bay's.
Bee's.                                                  M.
Martin's.
C.                   Massachusetts.
Miles'.
Cranch's.
D.Th~~~ P.
Peters'.
Devereux's Equity. 
T.
F.                    Taylor's.
Freeman's Chancery.
G.                   Walker's Chancery.
Gallison'  Washington's C. C.
Gallison's.
Wheaton's.
~H ~.                         Y.
Hill's,                                Yerger's.
FRENCH.
Gazette des Tribunaux.




LIST OF CASES
CITED IN THIS VOLUME.
The pages referred to are those between brackets [  ].
A.                 Duke de Montellano v. Christina
133.
Albrecht v. Sussman, 270.
~~~B.     ~E.
Barbuit's Case in Chancery, 263.   Eliza Ann, The, 115.
Bass    de) French Minister, Case  Elphinstone v. Bedrecchund, 115.
of, 10(M.     r,      Emperor of Brazil v. Robinson and
others, 133.
C.                 England (Ambassador of, at Constantinople,) Case of, 180.
Charlotte, The, 115.             Evans v. Higgs, 199.
Christiansberg, The, 100.
City of Berne in Switzerland, The,              F.
v. The Bank of England, 25.    Falcon, The, 270.
Clarke v. Crecow, 267.           Faa The 115
Fama The 115o
Colebrook v. Jones, 269.
Columbian Government v. Rothschild, 132.
Cross v. Talbot, 199.            Gratidudine, The, 100.
Gyllenburg (Swedish Ambassador,)
D.                   Case of, 181.
Dalrymple v. Dalrymple, 348.                    H
Darling v. Atkins, 200.
De Haber v. Queen of Portugal, Heathfield v. Chilton, 198, 266.
125.                           Hoey (M. Van,) Case of, 182.
Diana, The, 115.                 Holdernesse (English Ambassador
Dolder v. The Bank of England, 25.    at Venice,) Case of, 181.
Duke of Brunswick v. King of Hope and others, The, 270.
Hanover, 125.                  Hopkins v. De Robeck, 200.




ASE   CIT ED.                       xix
Hotham  v. East India Company, Pilkington v. Stanhope, 201.
115.                           President, The, 270.
I.                               Q.
Indian Chief, The, 269.          Queen, The, in her Office of AdmiInoyosa and Colonna (Spanish Am-    ralty, v. James N. Forbes, 43.
bassadors,) Case of, 179.
R.
Richardson  v. Anderson,  114,
Josephine, The, 270.                115.
Ringende Jacob, The, 112, 115.
K.                 Rothschild v. Queen of Portugal,
King, The, in his Office of Admi-    132.
ralty, v. Miller, 43.
King, The, v. Benson, 43, 44.
King of Spain v. Hullett and Wid- Sa (Don Pantalcon,) Case of, 182.
der, 132.                      Swift v. Kelly, 348.
L.                               T.
Le Louis, The, 61.               Taylor v. Barclay, 26.
Lindo v. Rodney, 115.                    v. Best and others, 193,
Lockwood v. Coysgarne, 199.        200, 202.
Thompson v. Powles, 26.
M.                 Triquet and others v. Bath, 199,
Maltass v. Maltass, 79, 115.       266.
Manilla. The, 26.
Marryat v. Wilson, 115.
Masters v. Manby, 199.           Viveash  v. Becker, 199, 260,
Minerva, The, 43.                   268.
Molly, The, 115.
W.
N.
Wadsworth v. Queen of Spain,
Novello v. Toogood, 198.           125.
Widinore v. Alvarez, 199.
O.
Oldknow v. 5Wainwright, 308.                    Y.
Yrisarri v. Clement, 26.
P.
Pilkington v. Commissioners, &c.,
14.                            Zachemnan, The, 115.




xx       PHILLIMORE  ON INTERNATIONAL LAW.
AMERICAN.
A.                Miller v. The Resolution, 116.
MNair v. Ragland, 116.
Amiable Isabella, The, 116.,
Anderson v. Lewis, 116.
Arnold v. United Insurance Company, 270.                    Orser v. Hoag, 116.
B. 
Blight v. Rochester, 115.
Bolchos v. The Three Negro Slaves, Pizarro, The, 115.
116.
British Consul v. Ship Mermaid,                R.
116.                          Respublica v. De Longehamps,
C.                  186, 197.
Rose v. Himeley, 27.
Cabrera, Elx parte, 186, 197.
~~~~D.   ~S.
Dupont v. Piehon, 206.           Santissima Trinidad, The, 116.
Society v. New Haven, 115.
F.                Society (the) for the Propagation
of the Gospel, &c. v. Wheeler,
Foster v. Neilson, 115.            104.
St. I. Indiano, The, 115.
G.                Stockton v. Williams, 116.
Garcia v. Lee, 116.
Gelston v. Hoyt, 27.                           T.
Gordon v. Kerr, 115.
Graham v. Pennsylvania Insurance  Torlade v. Barazzo, 185.
Company, 116.
Griswold v. Washington, 270.                   U.
United States, The, v. Palmer, 27.
-     v. Percheman, 115.
Hamiltons v. Eaton, 79, 116.          V-. Benner, 158, 185.
Henderson v. Poindexter, 116.                v. Little, 185.
Hutchinson v. Brock, 115.                    v. Ortega, 185.
Hylton v. Brown, 116.                     -- v. Hand, 206.
J..
W.
Jackson v. Porter; 116.09.
-  v. Highton, 116.
M.                \ Whitaker v. English, 115.
Miller v. Gordon, 116.           Wilson v. Smith, 116.




CASES CITED.                           xxi
F R E N C I.
A.                                 H1.
Affaire de la Maison Balguerie, de  Ilermann, Delong, Case of 262.
Bordeaux, contre le Gouvernement Espagnol, 126.
Affaire de  MM. Ternaux, Gandolphe, et Compagnie, contre la Soller M., Case of, 262.
Repubiique d'laiti, 126. 
Solon, M., against Mehemet Ali,
C.                   127.
Sully (Duc de,) Case of one of the
Cellamare, Case of, 184.             Retinue of, 178.








COMMENTARIES
UPON
INTERNATIONAL LAW.
PART THE FIFTH.
CHAPTER I.
RIGHTS INCIDENT TO THE EQUALITY OF STATES.
I. IT has been said(a) that the Rights incident to EQUALITY seem to
flow, more especially, from the second of the two propositions, upon
which the science of International Law is mainly built; namely, the
proposition that each State is a member of an Universal Community;
and it has been observed that the principal Rights incident to this doctrine of the EQUALITY Of States, are the following:I. The Right of a State to afford protection to her subjects wheresoever commorant:(b) and under this category must be considered the important question of Debts due by the Government of one State to the
Subjects of another.
*II. The Right to the Recognition of the Government of one [*2
State by the Government of other States.
III. The Right of each State to external Marks of Honour and Respect
from other States.
Iv. The Right of each State to enter into International Covenants
and Treaties with other States.
It is proposed to consider these subjects in the following Chapters.
(a) Vide ante, vol. i. part i. c. 2, p. 9; part iii. c. 2, p. 162.
(b) Grotius, 1. iii. c. ii. Quomodo jure gentium bona subditorum pro debito
imperantium obligentur: ubi de repressaliis.
Vattel, 1. ii. c. xiv. sec. 216.
Heffters, 134.
Martens, 1. iii. c. 3, sec. 110.




24    PHILLIMORE ON INTERNATIONAL LAW.
[*3]                      *CHAPTER II.
RIGHT OF PROTECTING CITIZENS IN FOREIGN COUNTRIES.
II. THE limitation which this Right of Protection prescribes to the
foregoing Right of Jurisdiction, may be in a great measure inferred
from what has been stated with respect to the extent of the latter Right.
"' Prima autem maximBque necessaria cura pro subditis, sive qui familiari, sive qui civili subsunt imperio; sunt enim quasi pars rectoris;"
is the language of Grotius;(a) and Vattel,(b) following in the same
track, observes: —" Quiconque maltraite un citoyen, offense indirectement(c) l'Etat qui doit proteger ce citoyen."(d)
It has been said that every individual who enters a foreign territory,
binds himself, by a tacit contract, to obey the laws enacted in it for the
maintenance of the good order and tranquillity of the realm.  The converse of the proposition is equally true.
Foreigners, whom a State has once admitted unconditionally into its
territories, are entitled not only to freedom from injury,(e) but to the
execution of justice(f) in respect *to their transactions with the
] subjects of that State.  No country has a right to set, as it were,
a snare for foreigners; therefore conditions hostile to their interests, or
different from general usage, must be specified beforehand (g)  Foreigners are not, as will be seen hereafter, strictly speaking, entitled to demand
as a right the execution of justice in civil matters relating to affairs either
between themselves, or between themselves and the citizens of a third
State.  How far the COMITY of nations extends to these last two cases
will be considered hereafter.(h)  It is only necessary to remark here,
that the refusal on the part of a State to do justice between commorant
foreigners, with respect to disputes which have arisen from transactions
in that State, is, to say the least of it, a very gross violation of that
Jomity.(i)
III. The State, to which the foreigner belongs, may interfere for his
protection when he has received positive maltreatment, or when he has
been denied ordinary justice in the foreign country.  The State of the
(a) Grotius, 1. ii. c. xxv. De causis belli pro aliis suscipiendi.
(b) Heffters, ss. 6, 59, 60.
Vattel, 1. ii. vi. De la part que la nation peut avoir aux actions de ses citoyens.
(c) Vide ante, vol. i. p. 355.
(d) Grotius, ubi supra. Vattel, ubi supra.
(e) Correspondence r'especting the Arrest of. r. Ilarwood (the Vienna Correspondent
of "The Morning Chronicle") by the Austrian Authorities at VJienna, 1852-3. Laid
before Parliament, 1853.
(f) Debates in both Houses of Parliament on the Affairs of Greece and the Claims
qf Don Pacifico.-Hansard's Parl. Deb. June, 1850.
(g) " Des qu'il les reaoit, il s'engage a les proteger comme ses propres sujets,'a
les faire jouir, autant qu'il depend de lui, d'une entieire suret6."-Vattel, 1. ii. c.
viii. s. 104.
(h) Vattel, 1. ii. c. viii. RIlgles d l'egard des etrangers.
(i) Vattel, 1. ii. c. viii. sec. 103. " Les diff6rends qui peuvent s'elever entre les
6trangers, ou entre un 6tranger et un citoyen, doivent 6tre termines par le juge du
lieu, et suivant les lois du lieu."




PROTECTING CITIZENS IN FOREIGN COUNTRIES. 25
foreigner may insist upon reparation immediately in the former case. In
the latter the interference is of a more delicate character.  The State
must be satisfied that its citizen has exhausted the means of legal redress
afforded by the tribunals of the country in which he has been injured.
If those tribunals are unable or unwilling to entertain and adjudicate
upon his grievance, the ground for interference is fairly laid.  But it
behoves the interfering State to take the utmost care, first, that the commission of the wrong be clearly established; secondly, that the denial of
the local tribunals to decide the question at issue be no less clearly established.
It is only after these propositions have been irrefragably   *5
-proved, that the State of a foreigner can demand reparation at [   ]
the hands of the Government of his country; and it is not till after the
Executive as well as the Judicial Authorities have refused redress, that
recourse can be had to Reprisals,(k) much less to War.
As a general rule, no objection to the forms of procedure, or the mode
of administering justice in the courts of the country, can found any
such demand; the foreigner should have considered this matter before
he entered into transactions in the country. Nevertheless, a plain violation of the substance of natural justice, e. g. refusing to hear the party
or to allow him to call witnesses, would amount to the same thing as an
absolute denial of justice.'" Jus repressalium (says Grotius) fieri intelligitur non tantum  si in
sontem aut debitorem judicium intra tempus idoneum obtineri nequeat,
verum etiam si in re minime' dubia (nam in dubia re prmesumptio est pro
his qui ad judicia publice electi sunt) plane contra jus judicatum sit; nam
auctoritas judicantis non idem  in exteros quod in subditos valet.
exteri autem jus habent cogendi, sed quo uti non liceat quamdiui per judicium suum possint obtineri."(l)
It is impossible to state the law more ably or more clearly than it is
laid down in the reply of Great Britain, 1753, to the King of Prussia.(m)
According to that statement, c The law of nations, founded upon justice,
equity, convenience, and the reason of the thing, and confirmed by long
usage, does not allow of reprisals, except in cases of violent injuries
directed or supported by the State; and justice absolutely denied in re
miniine' dubid by all the tribunals, and afterwards by the Prince."(n)
*IV. The distinction between domiciled persons and visitors in [ *6
or passengers through a foreign country is never to be lost sight of;
because it must affect the application of the rule of law which empowers
a nation to enforce the claims of its subjects in a foreign State.  The
foreign domicil does not indeed take away this power but it renders the
invocation of it less reasonable, and the execution of it more difficult.
A subject who has deliberately domiciled himself in another State, can
have no ground of complaint, if he be subjected to many taxes and impo(k) Vide post.
(1) Grotius, 1. iii. c. ii. s. 5.
(m) 2 Martens' Causes C61lbres, part i.
P. 57 of Memorial.-Cabinet Library of Scarce and Celebrated Tracts, vol. i.
(n) Treaty between England and Holland, July 31, 1667. Reprisals not to be
granted till justice has been demanded according to the ordinary course of law.
OCTOBER, 1855.-3




26       PIIILLIMORE  ON INTERNATIONAL  LAW.
sitions from which the simple stranger would, by the usage of nations,
be exempt.  Moreover he must be held to have considered the habits of
the people, the laws of the country, and their mode of administration, before
he established therein his household gods, and made it the principal seat
of his fortunes. He cannot therefore expect, that every complaint, which
he may be disposed to urge upon his native Government, with respect to
these matters, will of necessity be considered as requiring national interposition. More especially, if, being permitted by the law of his domicil,
he have purchased land, and thus incorporated himself, as it were, into
the territory of a foreign country, he cannot require his native Government to interfere on the subject of the operation of municipal laws, or
the judgment of municipal tribunals upon his rights of immovable property in this foreign land.
The case must be one of flagrant violation of Justice, which would lay
the foundation of an International remonstrance in such a matter; unless,
indeed, the provisions of some particular treaty,(o) or some public proclamation of the foreign Government, take the case out of the application of
the general law.
Grotius takes this distinction very strongly between the actually domiciled and the merely comnmorat foreigner, in his discussion on the im7   portant question upon which we are now *about to enter, viz., as
L *7  to the liability of the nation at large for the obligations incurred
by their Government. —g Jure gentiumn subjacent pignorationi omnes
subditi injuriam facientis, Tui tales sunt ex canusa permzanente, sive indigenre, sive adcvenwa: non gui transeundi aut norte exigusa causa alicubi
sunt."(p)
[ *8]                   CHAPTER   III.
RIGHT OF PROTECTING CITIZENS IN FOREIGN COUNTRIES.-DEBTS OF
THE STATE.
V. THE right of interference on the part of a State, for the purpose of
enforcing the performance of justice to its citizens from a foreign State,
stands upon an unquestionable foundation, when the foreign state has
become itself the debtor of these citizens.
It must, of course, be assumed that such State has, through the medium
of its proper and legitimate organs, contracted such debt; whether that
organ be the Sovereign alone, according to the constitution of Russia, or
the Sovereign and Parliament, according to the constitution of England,
the debt so contracted with foreign citizens, whether in an individual
or a corporate capacity, constitutes an obligation of which the country of
the lenders has a right to require and enforce the fulfilment.  Whether
it will exercise that right or not is a matter for the consideration of its
private domestic policy: " Les emprunts," Vattel says, with great pre(o) See next Chapter.              (p) Grotius, 1. iii. c. ii. sec. vii,




DEBTS OF THE STATE.                             27
cision,(a) " faits pour le service de l'Etat, les dettes cre'ees dans l'administration des affaires publiques, sont des contrats de droit dtro'it, obligatoires pour l'Etat et la nation entiere.  IRien ne peut la dispenser d'acquitter ces dettes-la.  Des qu'elles ont ete contractees par une puissance
l6gitime, le droit du creancier est inebranlable."
And he adds, anticipating a revolutionary argument of later times:
(v Que l'argent emprunt6 ait tourne au profit de 1'Etat, ou qu'il ait 6te
dissipe en folles depenses, ce n'est pas *l'affaire de celui qui prate.
I1 a confie son biena  la nation; elle doit le lui rendre.  Tant pis [9 ]
pour elle, si elle a remis le soin de ses affaires en mauvaises mains."
It seems to have been in accordance with this important rule of International Law, that the following circular was addressed, in 1848, by
Viscount Palmerston, the Secretary of State for Foreign Affairs, to the
British representatives in foreign States:"' Foreign Office, January, 1848.:c Her Majesty's Government have frequently had occasion to instruct
her Majesty's representatives in various foreign States to make earnest
and friendly, but not authoritative representations, in support of the
unsatisfied claims of British subjects who are holders of public bonds
and money securities of those States.
c"As some misconception appears to exist in some of those States
with regard to the just right of Her Majesty's Government to interfere
authoritatively, if it should think fit to do so, in support of those claims,
I have to inform you, as the representative of Her Majesty in one of the
States against which British subjects have such claims, that it is for the
British Government entirely a question of discretion, and by no means
a question of International Right, whether they should or should not
make this matter the subject of diplomatic negotiation. If the question
is to be considered simply in its bearing upon International Right, there
can be no doubt whatever of the perfect right which the Government
of every country possesses to take up, as a matter of diplomatic negotiation, any well-founded complaint which any of its subjects may
prefer against the Government of another country, or any wrong which
from such foreign Government those subjects may have sustained; and
if the Government of one country is entitled to demand redress for any
one individual among its subjects who may have a just but unsatisfied
pecuniary claim upon the Government of another country, the right so
to require redress cannot *be diminished merely because the extent
of the wrong is increased, and because instead of there being [10
one individual claiming a comparatively small sum, there are a great
number of individuals to whom a very large amount is due.
"It is therefore simply a question of discretion  with the British
Government whether this matter should or should not be taken up by
diplomatic negotiation, and the decision of that question of discretion
turns entirely upon British and domestic considerations.
"v It has hitherto been thought by the successive Governments of Great
(a) Vattel, 1. ii. c. xiv. s. 216.
Cod. 1. xi. t. 29, de jure Reipublica3.




28      PHILLIMORE  ON INTERNATIONAL LAW.
Britain undesirable that British subjects should invest their capital in
loans to foreign Governments instead of employing it in profitable
undertakings at home; and with a view to discourage hazardous loans
to foreign Governments, who may be either unable or unwilling to pay
the stipulated interest thereupon, the British Government has hitherto
thought it the best policy to abstain from taking up as International
Questions the complaints made by British subjects against foreign Govenments which have failed to make good their engagements in regard to
such pecuniary transactions.
c For the British Government has considered that the losses of
imprudent men, who have placed mistaken confidence in the good faith
of foreign Governments, would prove a salutary warning to others, and
would prevent any other foreign loans from being raised in Great Britain,
except by Governments of known good faith and of ascertained solvency.
But nevertheless, it might happen that the loss occasioned to British
subjects by the non-payment of interest upon loans made by them to
foreign Governments might become so great that it would be too high a
price for the nation to pay for such a warning as to the future, and in
such a state of things it might become the duty of the British Government to make these matters the subject of diplomatic negotiation.
c" In any conversation which you may hereafter hold with the —
Ministers upon this subject, you will not fail to *communicate
['11 ] to them the views which Her MIajesty's Government entertain
thereupon, as set forth in this despatch.     "t I am, &c.,
C, PALMERSTON."(b)
In June, 1847, Lord George Bentiuck brought forward a motion in
the House of Commons, "- That an Address be presented to Her Majesty,
humbly praying that Her Majesty may be graciously pleased to take
such steps as may be deemed advisable to secure for the British holders
of unpaid foreign bonds redress from the respective Governments."
In replying to Lord G. Bentinek, Lord Palmerston said: "c Although
I entreat the House, upon grounds of public policy, not to impose at
present upon Her Majesty's Government the obligation which the proposed Address would throw upon them, yet I would take this opportunity of warning foreign Governments who are debtors to British
subjects, that the time may come when this House will no longer sit
patient under the wrongs and injustice inflicted upon the subjects of this
country.  I would warn them that the time may come when the British
nation will not see with tranquillity the sum of 150,000,0001. due to
British subjects and the interest not paid; and I would warn them that,
if they do not make proper efforts adequately to fulfil their engagements,
the Government of this country, whatever men may be in office, may be
compelled by the force of public opinion and by the votes of Parliament
to depart from that which has hitherto been the established practice of
England, and to insist upon the payment of debts due to British subjects.
That we have the means of enforcing the rights of British subjects I am
not prepared to dispute.  It is not because we are afraid of those States,
(b) The Times, April 21, 1849.




DEBTS OF THE  STATE.                         29
or all of them put together, that we have refrained from taking the
steps to which my noble friend (Lord G. Bentinck) would urge  *12
*us. England, I trust, will always have the means of obtaining [12 ]
justice for its subjects from  any country upon the face of the earth.
But this is a question of expediency, and not a question of power;
therefore, let no foreign country who has done wrong to British subjects
deceive itself by a false impression, either that the British nation or the
British Parliament will for ever remain patient acquiescents in the
wrong, or that, if called upon to enforce the rights of the people of
England, the Government of England will not have ample means at its
command to obtain justice for them."(c)
VI. The obligation of the State debtor is, if possible, yet stronger
when the debt has been guaranteed by Treaty.(d) For in that case, the
foreign may be entitled to a preference over the domestic creditor.
As a general rule, the proposition of Martens seems correct, that the
foreigner can only claim to be put on the same footing as the native
creditor of the State.
VII. It may indeed happen, as the same author most justly observes,
that the debtor State may adopt measures of domestic finances, so
fraudulent and iniquitous, so evidently repugnant to the first principles
of justice, with so manifest an intention of defeating the claims of its
creditors, as to authorize the Government of the creditor in having
recourse to measures of retaliation, reprisals, or to open war, —such
measures, for instance, as the permanzent depreciation of coin or paper
money, or the absolute repudiation of debts contracted on the public
faith of the country.
The epithet permanent is used, because it could scarcely be denied
that, in case of extraordinary necessity,(e) a nation might adopt temporary measures of finance with regard to its paper money, of which the
foreign creditor could not justly complain.
*But then he has a right to the observance of two conditions: —
1. That the real value of the loan be eventually paid.  2. That [ 13]
he be placed during the interim  on the same footing as the domestic
creditor.
VIII. The French Government, during the last war between England
and France, confiscated a debt due from a French to a British subject;
subsequently, an indemnity was stipulated for on the part of the French
Government.  When the matter was brought before the Commissioners
appointed to adjust claims of this description, a question of great importance arose, namely, whether the debt was to be calculated according
to the value of the currency at the time when the confiscation took place;
or, there having been subsequently to the time of this confiscation a
great depreciation in the French currency, whether the value should be
calculated in the depreciated currency.  The Commissioners held that
the debt ought to be calculated according to the value at the time of the
(c) Hansard, Parl. Deb. 1847.
(d) E. g. as in the case of Greece. See Convention of 30th April, 1833, art.
xii. De M. et De C. t. iv. p. 340.
(e) See also case mentioned by Vattel, 1. ii. c. xii. s. 170.




30       PIHILLIMORE  ON INTERNATIONAL  LAW.
confiscation. The Privy Council, on appeal, confirmed their decree.(f)
Sir William Grant, one of the greatest judges ever known in England,
in delivering his judgment, observed, that this case bore no analogy to
the case between a debtor and creditor, whatever might be the law(g)
in a case, where a depreciation of currency happened between the time
when the debt was contracted, and when it was paid; for he said:
" There is a wrong act done by the French Government: then they are
to undo that wrong act, and to put the party in the same situation as if
they had never done it..... It is not merely the case of a debtor paying a debt at the day it falls due; but it is the case of a wrongdoer who
must undo, and completely undo the wrongful act he has done; and if
he received the assignats at the value of 50d., he does not make compensation by returning an assignat which is only worth 20d.:*he must make up the difference between the value of the
-I  assignat at different periods."(h)
In fact, the creditor is entitled to a restitutio in integrum.
IX. It is a clear maxim of International Law that the property of
the subject is liable for the debts contracted by the State of which he is
a member.  This proposition is discussed with learning and excellent
sense by Grotius.   After saying that —c Mero naturta jure ex facto
alieno nemo tenetur nisi qui bonorum successor est;" and citing some
remarkable passages from  Seneca,  s i g uis patrite mew  pecuniam
credat, non dicanm me illius debitorenz, nec hoc res alienum profitebor;
ad exsolvendum tamen, hoc portionemn  meam dabo; unus e popjulo non
tanguam pro me solvannm, sed tanguamn pro patrid conferamn.  Singuli
debebunt non tangquam propriuZn  sed tanquam publici partem;" (i) and
after observing that by the Roman Law the debts of the "zuniversitas,"
or corporate body, were, on failure of the funds of the universitas, binding upon individuals, "'non (qua) I"singuli, sed quan pars sunt universorum;" and that the whole tenor of the later provisions of that law
were adverse to the principle of hypothecating one man's property for
another's debts, even for public debts; he adds in admirable language:H uvc quanquam vera sunt, tamen jure gentium voluntario induci potuit,
et inductum apparet, ut pro eo quod debet praestare civilis aliqua societas,
aut ejus caput, sive per se primeo, sive quod alieno debito jus non reddendo se quoque obstrinxerit, pro eo teneantur et obligata sint bona
omnia corporalia et incorporalia eorum qui tali societati aut capiti subsunt.  Expressit autem hoc quedam  necessitas, quod alioqui magna
daretur injuriis faciendis licentia, cum bona imperantium svepe non tam
facile possint in manus venire, quam  privatorum qui plures sunt.  Est
igitur hoc inter jura illa quwe Justinianus ait, usu exigente, et humanis
necessitatibus a gentibus humanis constituta."
(f) See the authorities on this subject collected. Story on Conflict of Laws, ss.
308-313; et vide post, Comity.
(g) Vide ante, vol. i. chap. viii.
(h) Pilkington v. Commissioners, &c., 2 Knapp's Privy Council Reports, pp.
17-21.
(i) De J. B. et P. 1. iii. c. ii. ss. 1, 2.




RECO GNIT ION.                            31
*-CHAPTER  IV.                           [*15]
RECOGNITION.
X. CLOSELY connected with the subject of Intervention, discussed at
the.end of the former volume of this work, is the subject of Recognition, which is a kind of moral intervention by one State in the affairs of
another.(a)
Such is the usual meaning of this term of International Jurisprudence;
but it may also signify the act of acknowledgment by the State itself,
from which the Province claiming its independence has revolted, of the
independence of that Province.
Such, for example, were the formal Recognitions by the German Empire, in 1648 and 1654, of the Independence of Switzerland; of Holland
by Spain; of Holland in 1649, and of Portugal in 1668; by Great Britain
of the United States of America in 1782; by France when, in the Treaty
of Paris in 1815, she recognized the independence of the kingdoms
which had been seized upon and retained by her since 1790.
This Recognition is, of course, infinitely more material to the recognized State, than any act of the kind by a third power can be. But it
is the latter species of Recognition that claims discussion in this place.
XI. In modern times, at least, the occasions for the application of this
part of International Law can only arise.
*1. When a nation acquires by conquest a new territory, which
she claims to have recognized as an integral part of her kingdom. [16 ]
2. When a portion of a nation separates itself from the remainder,
and claims admission as an independent community into the society of
States. The principle affecting such a claim is the same, whether this
portion occupy a territory on the same Continent with, and contiguous
to the country from which it has revolted, or a distant colony of that
country; whether it be the case of Holland and Portugal in the reign of
Philip II., of Belgium in our own times, of the North American Colonies in the reign of George III., or of the South American Colonies in
that of Ferdinand VII.
3. There is also the case of the Governor of an Independent State
assuming a new  title, of which he clainis the recognition by other
States.(b)
(a) Martens, t. i. 1. 3, c. 2, s. 82, n. 6. De la Reconnaissance politique.
Klfiber, s. 23.
Oppenheim, p. 202, kap 8, s. 9, in part very good and clear.
Saalfeld, s. 30, pp. 63, 64.
Wheaton, Elem. 33, 37, 42.
Heffters, ss. 23, 29, 92.
Martens, Nouvelles Causes Celebres, tom. i. p. 370. Cause Quatrieme:-"Differends survenues en 1778, entre la Grande Bretagne et la France, au sujet de la
reconnaissance de l'independance des Colonies Anglo-Americaines."
Vattel, 1. iv. c. v. s. 68.
(b) "It is perfectly true, as has been mentioned, that the term'recognition' has
been much abused; and, unfortunately, that abuse has, perhaps, been supported




82    PHILLIMORE ON INTERNATIONAL LAW.
*XII. 1. The first instance belongs more properly to the part
[ 17] of this treatise which relates to the Rights of Belligerents, the
Duties of Neutrals, and the Effects of War.
2. As to the second instance, the Recognition of a revolted Province
or Colony by a State, other than that from which it has revolted, is of
two kinds, Virtual and Formal.
The mere observance by a Third Power of a strict neutrality in the
war between an old and a new State, especially when called upon by the
former for intervention and aid, has some beneficial effect with respect to
the nation which is struggling for independence. It allows impartially
to both an equal rank and character as belligerents. The question of the
right of Third Powers to assist either party has been already considered.(k)
XIII. If the contest be protracted, and there be any appearance of
equality between the contending forces, the subsequent conduct of Third
Powers, intending to remain neutral, cannot be blamed, if they proceed
to a virtual Recognition of the revolted State; that is to say, if they
recognise its commercial flag, and if they sanction the appointment of consuls to the ports of the new State.  So far, there is a Recognition of its
defacto existence, fully justified, perhaps indeed imperatively enjoined, by
the duties of the Third Power towards its own subjects, and in no way
inconsistent, according to the practice of nations, with the continued
observance of neutrality between the contending parties.(l)
It was not, however, till after the struggle between Spain and her
South American colonies had lasted for many, about twelve, years, that
Great Britain accorded this virtual Recognition to the latter-righteously,
perhaps even too scrupulously, observing the rule, of not injuring, even
indirectly, *the interests of a country with which she was on terms'C18 ] of amity.
XIV. There is no proposition of law upon which there exists a more
by some authority: it has clearly two senses, in which it is to be differently
understood. If the colonies say to the mother country,'We assert our independence,' and the mother country answers,'I admit it,' that is recognition in one
sense. If the colonies say to another State,'We are independent,' and that other
State replies,'I allow that you are so,' that is recognition in another sense of the
term. That other State simply acknowledges the fact, or rather its opinion of the
fact; but she confers nothing, unless, under particular circumstances, she may be
considered as conferring a favour. Therefore, it is one question, whether the recognition of the independence of the colonies shall take place, Spain being a party
to such recognition; and another question, whether Spain, withholding what no
power on earth can necessarily extort, by fire, sword, or conquest, if she maintain
silence without a positive refusal, other countries should acknowledge that independence. I am sure that my honourable and learned friend will agree with me
in thinking, that his exposition of the different senses of the word'recognition' is
the clearest argument in favour of the course we originally took, namely, that of
wishing that the recognition in the minor sense should carry with it recognition
by the mother country in the major sense. The recognition by a neutral power
alone cannot, in the very nature of things, carry with it the same degree of authority as if it were accompanied by the recognition by the mother country also."Speeches of Mr. Canning, vol. v. pp. 299, 300.
(k) Vide ante, vol. i. p. 442.
Mr. Canning's Speech on the Independence of South America, vol. v. p. 295.
(1) See Petition of London Merchants, presented to the House of Commons by
Sir J. Mackintosh.
Canning's Speeches, vol. v. p. 293.




RECOGNITION.                               33
universal agreement of all jurists than upon this, viz., that this virtual and
defacto Recognition of a new State gives no just cause of offence to the old
State,(mn) inasmuch as it decides nothing concerning the asserted rights of
the latter. For, if they be eventually sustained and made triumphant,
they cannot be questioned by the Third Power, which pending the conflict, has virtually recognised the revolted State.
XV. And here it is desirable to explain the conduct of Great Britain
at a particular period, which at first sight, and to superficial readers of
history, may appear inconsistent with the law just laid down.
Pending the conflict between Great Britain and her North American
colonies, she complained more than once of the unneutral behaviour of
France; and the declaration of the Marquis de Noailles, in 1778, to the
cabinet of St. James, that France had signed "un traite d'amitid et de
commerce" with cc Les Etats-unis de l'Am6rique septentrionale, qui sont
en pleine possession de l'ind6pendence prononc6e par leur acte du 4 Juillet,
1776,"(2) was immediately followed by a declaration of war on the part
of Great Britain against France; and, as far as that country was concerned, never was a war declared upon juster grounds.
It was declared, not on account of the mere establishment of diplomatic relations between France and the North American colonies, but,
on account of the long tissue of dark and treacherous machinations which
France had begun to weave, under the veil of the strongest professions
of amity and goodwill, against the peace, honour, and interest of Great
Britain, on the first appearance of discontent in America in 1765, and
*which were brought to light by the act which has been mentioned; the fact rests upon the unquestionable authority of the ['19 ]
memoires, since published, of the agents employed by the French Government to excite the rebellion in North America.(o)
XVI. To the Virtual must succeed, in course of time, a Formal Recognition, evidenced by the sending of ambassadors, and the entering into
treaties on the part of Foreign Powers, with the new State.(p)
Speaking generally, two facts should occur before this grave step be
taken, whereby the Neutral Power becomes the ally of one of the hitherto
Belligerent parties.
1. The practical cessation of hostilities on the part of the old State,
(in) President MIonroe's Message, 2nd Dec. 1823; and see Speeches of Canning
and Mackintosh, referred to above.
(n) Martens, Nouvelles Causes C6elbres, t. i. pp. 466-7 —Cause Quatrieime.
(o) " To those who say there is something mean and paltry in negotiating a
treaty as the mode of recognition, and who would, if they were ministers, rather
resign than so disgrace themselves, I will only observe, that this has been always
the mode. The Minister of the United States was not admitted to the court of
France till after the signature of a treaty. That was the mode of recognition in
that case; but there were other circumstances attending the act, widely different
from our recognition of the late Spanish colonies. France not only recognised the
United States before her territory was free, and without giving the mother country
any offer of precedency, but, though in amity with us at the moment, mixed up
with the act of recognition a treaty of alliance with the United States to enable
them to achieve their independence."- Mr. Canning's Speech on the Address on the
King's Speech on the opening of the Session, Feb. 15, 1822, Canning's Speeches,
vol. v. p. 322.
(p) Sir J. Mackintosh's Speech, vol. iii. p. 448 of his Miscellaneous Works.




34    PHILLIMORE ON INTERNATIONAL LAW.
which may long precede the theoretical renunciation of her rights over
the revolted member of her former dominions.
2. There should occur the consolidation of the new State, so far at
least as to be in a condition of maintaining International relations with
other countries; an absolute bona fide possession of independence, as a
separate kingdom, not the enjoyment of perfect and undisturbed internal
tranquillity, —a test too severe for many of the oldest kingdoms,-but
there should be the existence of a Government, acknowledged by the
people over whom it is set, and ready and able to acknowledge
[ *20s] *and to prove its responsibility for their conduct when they come
in contact with foreign nations; —where such a Government as this exists,
the question of Formal Recognition is rather one which concerns the
internal policy of other kingdoms, than a question of an International
character.
XVII. But the refusal or the withholding of the consent of the old
State, after the semblance of a present contest has ceased, upon the bare
chance that she may one day or other recover her authority, is no legitimate bar to the complete and Formal Recognition of the new State by
the other communities of the world; though it is most desirable that this
Recognition should follow, and not precede that of the old State.  Upon
this point, both the reason of the thing, and the ancient and modern
practice of nations, are quite decisive.
XVIII. It was not till nearly eighty years after the revolt of the
United Netherlands, and nearly seventy years after their Declaration of
Independence, that the Crown of Spain, by the Treaty of Munster, recognised (30th January, 1648) that Republic.  But during that long interval every State in Europe, with the exception of Austria, recognised
virtually and formally the new State of the United Provinces.(q)
The revolt of Portugal from  Spain on the 1st of December, 1640,
seated the Duke of Braganza on the throne of that country.  It was not
till twenty-six years afterwards that Spain acknowledged, by the Treaty
of Lisbon, concluded on the 23rd of February, 1688, under the mediation of England, the independence of Portugal.(r)
Within a year of the proclamation by the Cortes of the Duke of Braganza, a treaty of peace and alliance was entered into between Charles I.
of England and John IV. of Portugal, wherein John is mentioned, as a
lawful sovereign *and the King of Castile, as a dispossessed ruler,
[21 ] while the King of England alleges that he is moved to conclude
the Treaty "s by his solicitude to preserve the tranquillity of his kingdoms,
and to secure the liberty of trade of his beloved subjects."(s)
All the European Powers recognised the Commonwealth and Protectorate of England; and in the same manner they recognised Charles II.,
(q) Dumont, vol. vi. p. 429, vol. v. p. 507.
Sir James Mackintosh's Speech on the Recognition of the Spanish American
States, vol. iii. pp. 444-5. Miscell. Works.
Schmauss, Corp. J. G. num. cxxv-vi-vii. pp. 614-30.
(2) Dumont, vol. vii. p. 238.
(s) Dumont, vol. vi. p. 238.
Sir J. Mackintosh, vol. iii. pp. 446-7.




RECOGNITION.                           35
who acknowledged the binding force of all the treaties concluded during
the time of the Republic in England.
On the other hand, the Recognition of the son of James II. of England, after the death of that exiled monarch, was justly resented by
Great Britain as a gross insult and flagrant violation of the Law of Nations. The Father of the Prince so recognised had not been acknowledged or obeyed in England, but had been declared by the solemn resolution of the nation to have abdicated the throne of that country. This
Recognition therefore led immediately to the formation of the Grand
Offensive and Defensive Alliance between England, Holland, and the
Emperor of Germany against France and Spain.(t)
The Recognition of the North American States by France in 1778,
and the peculiar circumstances attending it, which induced Great Britain
to consider such an act as a casus belli against France, has been already
adverted to.
XIX. It has been stated in the foregoing pages(u) that the refusal of
Great Britain to recognise the Republic of 1792, was expressly grounded
upon the monstrous proclamation which the French authorities promulgated at that time. Great Britain recognised, in common with the other
European Powers, the Consulate in France, at the Peace of Amiens
*(1801,) and was the only Power which did not recognise the [*22 ]
Empire.
On March 25th, 1825, Mr. Canning replied to the remonstrance of
the Spanish minister with respect to the Recognition (at that time only
virtual) by Great Britain, of the South American Republics, in the following remarkable words:t The example of the late revolution in France, and of the ultimate
happy restoration of His Majesty Louis XVIII., is pleaded by M. Zea
in illustration of the principle of unextinguishable right in a legitimate
Sovereign; and of the respect to which that right is entitled from all
Foreign Powers; and he calls upon Great Britain, in justice to her own
consistency, to act with the same reserve towards the New States of
Spanish America, which she employed, so much to her honour, towards
revolutionary France.
" But can M. Zea need to be reminded that every Power in Europe,
and specifically Spain amongst the foremost, not only acknowledged the
several successive Governments, de facto, by which the House of Bourbon was first expelled from the throne of France, and afterwards kept
for near a quarter of a century out of possession of it, but contracted
intimate alliances with them all; and above all, with that which M. Zea
justly describes as the strongest of de facto Governments-the Government of Bonaparte; against whom not any principle of respect for the
rights of Legitimate Monarchy, but his own ungovernable ambition,
finally brought combined Europe into the field?
"c There is no use in endeavouring to give a sp3cious colouring to facts,
which are now the property of history.
(t) Sir J. Mackintosh, vol. iii. pp. 446-7.
Memoires de St. Simon, t. iii. p. 228.
(u) Vol. i. p. 435.




36    PHILLIMORE ON INTERNATIONAL LAW.
"The undersigned is, therefore, compelled to add, that Great Britain
herself cannot justly accept the praise which M. Zea is willing to ascribe
to her in this respect, nor can she claim to be altogether exempted from
the general charge of having treated with the Powers of the French
Revolution."
"It is true, indeed, that, up to the year 1796, she abstained from
*23  treating with revolutionary France, long after other *Powers of
[    ] Europe had set her the example.  But the reasons alleged in
Parliament, and in State Papers, for that abstinence, was the unsettled
state of the French Government. And it cannot be denied that, both
in 1796 and 1797, Great Britain opened a negotiation for peace with the
Directory of France-a negotiation, the favourable conclusion of which
would have implied a recognition of that form of Government; that in
1801 she made peace with the Consulate; that if, in 1806, she did not
conclude a treaty with Bonaparte, Emperor of France, the negotiation
was broken off merely on a question of terms; and that if, from 1808
to 1814, she steadily refused to listen to any overtures from France, she
did so, declaredly and notoriously, on account of Spain alone, whom
Bonaparte pertinaciously refused to admit as party to the negotiation.
"Nay, further, it cannot be denied that, even in 1814, the year in
which the Bourbon dynasty was eventually restored, peace would have
been made by Great Britain with Bonaparte, if he had not been unreasonable in his demands; and Spain cannot be ignorant that, even after
Bonaparte was set aside, there was question among the allies, of the
possible expediency of placing some other than a Bourbon on the throne
of France.
"The appeal, therefore, to the conduct of the Powers of Europe, and
even to that of Great Britain herself, with respect to the French Revolution, does but recall abundant instances of the recognition of de facto
Governments; by Great Britain, perhaps later, and more reluctantly,
than by others, but by Great Britain herself, however reluctant, after
the example set to her by the other Powers of Europe, and specifically
by Spain."(x)
XX. The Revolution which seated Louis-Philippe upon the throne of
France in 1830, and the Revolution which ejected him in 1848 and set
up a Republic, and the Revolution *which committed the Go[ *24] vernment of that kingdom to the present Emperor, were equally
recognised by England and by other European Powers.
The formal Recognition of the South American Republics by Great
Britain took place in 1825, and under the negotiation of a treaty of
commerce, while they were yet unacknowledged by the mother country.(y)
(x) State Papers, vol. xii. pp. 913-14.
(y) See Mr. Canning's Speeches, vol. v. p. 323.
" Extensive commercial intercourse having been established for a series of years
between the dominions of his Britannic Majesty and the territories of the United
Provinces of Rio de la Plata, it seems good, for the security as well as encouragement of such commercial intercourse, and for the maintenance of good understanding between his said Britannic Majesty and the said United Provinces, that
the relations now subsisting between them should be regularly acknowledged and
confirmed by the signature of a treaty of amity, commerce, and navigation.




RE CGNITIO N.                            37
The formal Recognition of Greece as an absolutely independent Power,
may be said not to have definitively taken place till May, 1832.  But on
the 6th of July, 1827, France, Great Britain, and Russia interposed, in
order to guarantee a quasi independence to Greece, and covenanted by
a secret and additional article to send consular agents, and enter into
commercial relations within a month from the date of the treaty, whether
the Porte consented to or refused its conditions.(z)
The formal Recognition of Belgium, as has been already stated, took
place without the consent of Holland.," Placuit gentibus,"(a) then, both in theory and practice, to recognise
after the lapse of a reasonable period of time new States that have, de
facto, achieved an independent existence, whether the original mother
countries have or have not acquiesced in this order of things.(b)
*It has been said that to refuse Recognition, while the issue
is at all doubtful, or the conflict not wholly abandoned, is not [    325 
an offence against the Law of Nations;(c) at the same time it may often
border upon an injury, as may the recalling of an ambassador, which is
yet by itself no casus belli.
XXI. It is well remarked by Hegel, that when Napoleon, before the
Peace of Campoformio, said, "4 The French Republic no more needs
recognition than the sun requires to be recognised," he expressed in
these words nothing more than the strength of the existing fact, which
carried with it a practical recognition, whether expressed in language or
not.(d)
Nevertheless, Recognition is a right which other States are under an
obligation to render, in such a case, for various reasons; and amongst
others this reason should be mentioned, namely, that the effect of nonRecognition places the subjects of the revolted province in a very
disadvantageous position, with respect to the municipal tribunals of other
countries.  It is a firmly established doctrine of British and North
American, and indeed of all jurisprudence, that it belongs exclusively to
Governments to recognize new States; and that until such recognition,
either by the Government of the country in whose tribunals a suit is
brought, or by the Government to which the new State belonged, Courts
of Justice are bound to consider the ancient state of things as remaining
unaltered.
XXII. Thus, in The City of Berne in Switzerland v. The Bank of
England, it was decided that a Judicial Court cannot take notice of a
foreign Government not acknowledged by the Government of the country
in which that Court sits, and that the fact of acknowledgment is matter
of public notoriety.(e)
" For this purpose they have named their respective plenipotentiaries, that is to
say," &c. —Treaty of Amity, Commerce, and Navigation, between His Majesty and the
United Provinces of Rio de la Plata. Signed at Buenos Ayres, February 2, 1825
(Presented to Parliament, May 16, 1825.)
(z) De M. et De C. t. iv. pp. 104, 339.      (a) See vol. i. p. 39.
(b) Papers relative to the Affairs of Greece: Published in London. 1835.
(c) Oppenheim. p. 213.
(d) Hegel, Naturrecht und Staatswissenschaft; Werke, b. viii. s. 331. (Ed.
Berlin, 1840.)
(e) 9 Vesey, Rep. p. 347.




38    PHILLIMORE ON INTERNATIONAL LAW.
*26     And in Dolder v. The Bank of England, the Court refused
I['2  ] *to order dividends, received before the bill filed, of stock purchased by the old Government of Switzerland, to be paid into Court by
the trustees, on the application of the present Government, without
having the Attorney-General a party.(f)
In the case of Thompson v. Powles, it appeared that a revolted colony
of Spain, not recognized as an independent State by Great Britain,
executed bonds at six per cent. interest, as securities for a loan.  P.,
acting in collusion with B., a holder of the bonds in England, by falsely
representing that he had purchased some of them, induced the plaintiff
to become a purchaser; and it was held, on demurrer, that the bonds
were not usurious, as it did not appear, by the bill, that the contract for
the loan was made, or the amount of it to be paid in this country; that
P. and B. would have been answerable to the plaintiff for losses sustained
upon his purchase; but that, as the original contract was made with a
Government not acknowledged by Great Britain, the Court could not
relieve him.(g)
In Taylor v. Barclay,(h) it also appeared that, to prevent a demurrer
to a bill, it was falsely alleged in it that a revolted colony of Spain had
been recognized by Great Britain as an independent State: the Court
held itself bound to know, judicially, that the allegation is false, and
not to give it the intended effect.
So in the case of The Manilla, ports and places of St. Domingo, not
in possession of the French, were excepted out of the general character
of the island as an enemy's colony, since the Orders in Council had
recognized them as open to British trade.(i)
In the United States of North America a similar doctrine has been
*27] held.  It has been laid down by their Courts that *it is the
[ 27] exclusive right of Governments to acknowledge new States arising
in the revolutions of the world; and until such Recognition by their
Government, or by that to which the new State previously belonged, the
judicial presumption must be that the ancient order of things remains
unchanged.(k)
The same Government has held that when a civil war rages in a
foreign nation, one part of which separates itself from the old established
Government, and erects itself into a distinct Government, the Courts of
the Union must view such newly constituted Government as it is viewed
by the legislative and executive departments of the Government of the
United States.(l)
(f) lo Vesey, 352; 11 Vesey, 283.
(g) 2 Simon's Rep. 194.                                   (h) Ib. 213.
(i) The Manilla, 1 Edwards' Admir. Rep. 1.
The Manilla, 2 Dodson, 363.
Yrisarri v. Clement, 3 Bing. 432.
(k) Gelston v. Hoyt, 3 Wheaton's (Americ.) Rep. p. 324.
(1) The United States v. Palmer, ib. p. 634.
Rose v. Himely, 4 Cranch's (Americ.) Rep. 241.
Oppenheim, pp. 212-13.
Wheaton's Elem, pp. 98-99.
See also Debate on Foreign Enlistment Bill, June 10th, 1819.-Hansard, Parl.
Deb. vol. xii., especially Speeches of Sir J. Mackintosh and Mr. Canning.




RECO0GNITION.                              39
XXIII. 3. The third instance, viz. the case of the Governor of an
independent State assuming a new title, and claiming the Recognition
of it, remains to be considered.
It is unquestionably competent to every sovereign ruler to assume any
title of dignity or authority, which it may please him to adopt, or the
nation to confer upon him.  Formerly, indeed, the German Emperors
claimed to be considered, in their alleged capacity of successors of the
Roman Emperors, as universal sovereigns and chiefs of the Christian
world, and to enjoy exclusively the title of " Majesty."(m)
*Even towards the end of the fifteenth century, after this
extravagant pretension had ceased, they still, for some time,[    ]
claimed to be considered as the first among the crowned heads, then
admitted to be their equals. But Napoleon attempted in vain to clothe
the title of Emperor with the character of a higher class of sovereignty
than that of simple monarchy. All the European kingdoms have long
ago determined that the Crown is Imperial in every country where the
ruler is a king.
The Emperors of Germany were not without a rival to their pretensions when these were at the highest; for till the beginning of the sixteenth
century the Popes arrogated to themselves the right of conferring all distinctions of title and rank upon the rulers of all the kingdoms of the
earth.(n)
XXIV. But although rulers may assume what titles they please,
there lies no obligation upon other States to recognize any changes in
the accustomed forms and appellations, which usage and convenience
have hitherto sanctioned.(o) Nevertheless comity and the reason of the
thing would induce other rulers to grant such Recognition,(p) except
in the following instances:1. Where the new title assumed is in opposition to or derogation from
existing rights or pretensions of the rulers of other States.(q)
2. Where it introduces new  obligations by way of concession, or
otherwise, with respect to other States.
3. Where it tends to lower the dignity and degrade the character of
the title already borne by the rulers of other States.(r)
*These objections, and especially the last, apply only to the
novel assumption of a title: for if its assumption has been sanc- [        ]
(m) Duck, de Usu et Auctoritate Juris Civilis, who wrote in the time of Charles
I., combats this pretension.
Vattel, 1. ii. c. iii. s. 34.
Schmalz, c. 36, s. 18.
Saalfeld, p. 182.
Heffters, p. 53, c. vi. s. 29.
Mably, t. i. p. 213.
KCliber, ss. 107-112.
(n) Saalfeld, p. 37, s. 18.
Vattel, 1. ii. c. iii. s. 45.
Ileffters, 1 B. 29, n. 4.
(o) Martens, s. 128.
Saalfeld, 37.
(p) Schmalz, p. 183.                (q) Mably, i. 213, ii. 157.
(r) Vattel, 1. ii. c. iii. s. 44.
Heffters, 1 B. 29.




40    PHILLIMORE ON INTERNATIONAL LAW.
tioned by time and usage, however inapt and ridiculous, it cannot be lawfully refused by other nations.(s)
XXV. As the object for which a ruler or a nation assumes a new
title would be practically defeated, unless it obtained the sanction of
other Powers, it has been the usual practice to obtain the promise of
their Recognition beforehand, either by private Recognition or public
Treaty.
Frederic I., King of Prussia, obtained the consent of the Emperor of
Germany before he assumed the royal title in 1700-a title afterwards
formally recognised by every European State,(t) though not by the Pope
till 1786.(u)
The Czar, Peter the Great, obtained the Recognition of his title as
Emperor, first by private negotiation and then by solemn provisions of
treaty; as, for instance, by treaty with the Porte in 1739, with Great
Britain in 1742;(x) the latter Power, however, expressly stipulating that
[30 ] by *such Recognition, it intended to convey no pre-eminence
whatsoever over herself.
But Great Britain had already recognised the title de facto, and Prussia never made any difficulty about doing so; Sweden recognised it in
1723, Venice in 1726, Denmark in 1732, Charles VII., Emperor of
Germany, in 1744; Francis I., in 1748, and also the Russian Eempire.
Poland did not recognise it till 1764, and then under conditions that the
Empress Catherine II. should lay no claim to Red Russia.
In 1745 this matter assumed a shape which afterwards led to a curious
diplomatic negotiation, for France and Spain in that year refused to
recognise the title, without obtaining a pledge, in the shape of litterce
reversales (re'versales) that the Recognition should not carry with it any
change in the accustomed ceremonials of the Courts. Spain obtained
the revelesale; but France had not succeeded in obtaining it as late as
1762, when she in consequence refused Peter III. the title of Emperor:
it was at last obtained by her, but again questioned, at the succession of
Catherine II. a few months afterwards; but the matter was finally
adjusted.(y)
(s) Vattel, 1. ii. c. iii. s. 44.
(t) Martens, 1. iv. c. 2, s. 128. De la Reconnaissance des Titres et Dignitds,
n. b.
(u) Kfliber, 107, n. c.
(x) Martens, ib. Ompteda, t. ii. p. 508.
"Weilen Ihro Britannische Majest. Ihro Kayserlichen Maj. von allen Reussen
einen distinguirten Beweiss Ihrer Freundschaft und Hochachtung zu geben wfunschen, so wollen dieselben hiermit, durch den gegenwartigen separirten Artikel,
Sr. Kayserl. Majest. von alien Reussen mehrmahls geaussertem Verlangen gemass,
Ihro und Ihrer Nachfolger auf dem Kayserlichen Russischen Thron Kayserwiirde
erkennen, und denenselben den Titel davon zugestehen; jedoch mit dieser ausdrucklichen Bedingung, dass Ihro Kayserl. Majest. aller Reussen und Dero Nachfolger niemahlen, wegen dieser Wiirde und dieses Titels, einigen Vorzug oder
Vorrang, auf welche Art es seyn mag, fordern sollen, und dass diese Anerkennung
weder jetzt noch kiinftig die geringste Veranderung in dem Ceremoniel, das bisher
in Ansehung des Rangs unter den Ministris besagter Ihrer Kayserl. ind Britannischen Majest. oder sonst auf irgend eine Art, sowohl an Ihren eigenen Hofen, als
an andern, wo Sie, respective, Ministros haben, beobachtet worden ist, nach sich
ziehen soll." —Fcedus inter Russiam et Magnam Britanniam, a. 1742 (Separirter Artikel;) Wenck. Cod. Jur. Gent. tom. i. pp. 670-1.
(y) Martens, Causes C6elb. t. ii. p. 89-Cause DeuxiBme.




RECOGNITION.                                 41
XXVI. The title of Emperor of the French, adopted by Napoleon in
1804, was recognised by every State in Europe except Great Britain.
At the dissolution of the German Empire, in 1806, the title of Emperor of Austria was universally recognised. One of the consequences
of the Confederation of the Rhine was the assumption of new titles by
old Potentates. The ancient Electors of Bavaria, Saxony, and Wirtemberg, became Kings; the ancient Elector of Baden, and the Landgrave
of Hesse-Darmstadt, became Grand Dukes; and the Prince of Nassau a
Duke; all which titles were recognised by the Treaties of Paris (1814)
and of Vienna (1815.) Among the Recognitions of new titles at the
Congress of Vienna were, —the ancient Elector was recognised as King
of lHanover,(z) and *the Dukes of Mecklenburgh, Weimar, and
Oldenburgh(a) as Grand Dukes; the Emperor of Russia as King [ 31]
of Poland.(b)
On the other hand, the five great Powers, assembled at the Congress
of Aix-la-Chapelle in 1818, unanimously resolved to refuse the Recognition of a new title of King, which the Elector of Hesse at that time
had indicated his intention to adopt; grounding such refusal, among
other reasons, upon the consideration, that the title adopted by a ruler
was not a question of mere etiquette, but was a fact connected with important political relations.(c)
*In making this refusal, they were justified by the express r32
authority of Vattel,(d) who observes, " Comme il serait ridicule [32
a un petit prince de prendre le nom de roi et de se faire donner de la
mnajeste' les nations etrangeres, en se refusant h cette fantaisie, ne feront
rien que de conforme ia la raison et a leurs devoirs."
(z) Art. xxvi.        (a) Art. xxvii. xxxiv. —xxxvi.        (b) Art. i.
(c) "' Protocole s6par6. Sdance du 11 Octobre, 1818, entre les cinq puissances.
"La conference aiant 6t6e informee de l'intention de Son Alt. Roiale, Electeur
de Hesse, de prendre le titre de Roi, et aiant pris connaissance des lettres adressees par ce prince aux souverains pour obtenir leur consentement k cette d6marche:
" Les Ministres des cinq Cabinets reunis N Aix 1. Ch., prenant en consideration
que le but de leur reunion est celui de consolider l'ordre actuel des choses, et non
pas de cr6er de nouvelles combinaisons, consid6rant de plus que le titre port6 par
un souverain n'est pas un objet de simple 6tiquette mais un fait tenant a des rapports essentiels et A d'importantes questions politiques, sont d'avis, qu'en leur
qualit6e collective ils ne sauraient prononcer sur cette demande; pris separement
les Cabinets d6clarent, qu'attendu que la demande de S. A. R. Electeur de Hesse
n'est justifie6 par aucun motif satisfaisant, il n'y a rien qui puisse les engager a y
acceder.
" Les Cabinets prennent en meme tems l'engagement de ne reconnaitre. lPavenir aucun changement ni dans les titres des souverains ni dans ceux de princes de
leurs maisons sans en 6tre prealablement convenus entre eux.
" Ils maintiennent ce qui a 6te statue a cet 6gard jusqu9ici par des actes formels.
Les cinq Cabinets appliquent explicitement cette derniere reserve au titre d'Altesse
RoYale, qu'ils n'admettront desormais que pour les chefs des maisons Granducales,
l'Electeur de Hesse y compris, et pour leurs heritiers presomtifs.
"Sign.  METTERNICH, RICHELIEU, CASTLEREAGH, WELLINGTON, HARDENBERG,  BERNSTORFF, NESSELRODE,
CAPO D'ISTRIA."
-Traite de Diplomatie, t. i. p. 357. Comte de Garden; Meisel, Cours de Stile
Diplomat.: Dresd. 1824, t. ii. p. 593; referred to by Heffters, 1 B. s. 29, p. 54.
(d) L. ii. c. iii. s. 44.
OCTOBER, 1855.-4




42    PHILLIMORE ON INTERNATIONAL LAW.
[*33]                      *CIIAPTER  V.
RIGHT TO EXTERNAL MARKS OF HONOUR AND RESPECT.
XXVII. THERE is a natural Equality among States as among Individuals; and it is as repugnant to the nature of a State as of a Person to
be in a condition of servitude to the will of another.(a)
This natural Equality of States is the necessary companion of their
Independence-that primitive cardinal right, upon which the science of
International Law is mainly built.
States, considered absolutely and apart from their condition as a member of the great society of nations, are entitled to the full enjoyment of
a free moral individual personality-when considered practically and with
relation to that society, they are entitled, in their intercourse with other
States, to all the rights incident to a natural Equality.(b)
[*34 ]   No other State is entitled to encroach upon this Equality *by
['34 ] arrogating to itself peculiar privileges or prerogatives, as to the
manner of their mutual intercourse.
The relation of natural Equality is, in its character, essential, and incapable of being affected by any accidental attributes of another State,
such as its greater extent of territory, the larger number of its inhabitants
the superiority of its resources, the form of its constitution, the title of
its executive, or the remoter antiquity of its origin. All privileges claimed
upon these or similar pretexts, are, for so much, derogations from the
natural Equality of other States.
It is impossible to foresee how soon any departure from this rule may
injuriously affect the liberty and independence of the State which submits
to it. Hence the real value of those external marks of honour and respect
so carefully embodied in the ceremonies and etiquette of nations, but
which have been, it must be confessed, often carried to an extent in which
a sober regard for the true end was lost in an idle unreflecting attachment
to the means, or under pretence of which the unlawful object of fostering
ambition has been substituted for the lawful object of securing independence.
Nevertheless, it has been said with equal truth and beauty,-"- The
(a) Martens, t. i. s. 125. c. 2.
Vattel, 1. ii. c. iii., De la Dignit6 et de l'Egalit6 des Nations, de leurs Titres et
autres Marques d'Honneur.
Ib. 1. i. c. xxv. s. 191., De la Gloire d'une Nation.
Wheaton's Elem. i. c. 3.
Kliiber, Recht der Gleichheit, Erster Theil, Drittes Capitel.
Giinther, i. 266.
Heffters, ss. 34, 103, 31.
Mackintosh, Miscellaneous Works, vol. iii. p. 468.
(b) Martens expresses the principle upon which this right is founded clearly and
forcibly:-" Une nation, quelque puissante qu'elle puisse etre, n'est pas en droit
d'exiger de l'autre des ddmonstrations positives d'honneur, moins encore des pr6fdrences, quoique toutes soient autorisdes a considerer commne lIsion des demonstrations positives de mepris et des actes contraires d leur honneur. — Dr. des Gens,
s. 125.




EXTERNAL MARKS OF HONOUR.                           43
king's honour is that of his people.  Their real honour and interest are
the same.  A clear, unblemished character, comprehends not only the
integrity that will not offer, but the spirit that will not submit to, an
injury; and whether it belongs to an individual, or to a community, it
is the foundation of peace, of independence, and of safety.  Private credit
is wealth; public honour is security. The feather that adorns the royal
bird, supports his flight; strip him of his plumage, and you fix him to
the earth."(c)  " A wrong done" (said the high authority of Sir James
Mackintosh) " to the humblest British subject, an insult offered to the
British flag flying on the slightest skiff, is, if unrepaired, a dishonour to
the British nation."(d)  And *in the sober language of Vattel:
Puisque la gloire d'une nation est un bien tres-reel, elle est en [    ]
droit de la defendre, tout comme ses autres avantages.  Celui qui attaque sa gloire lui fait injure; elle est fondee ia exiger de lui-meme, par
la force des armes, une juste reparation.  On ne peut done condamner
les mesures que prennent quelquefois les souverains, pour maintenir ou
pour venger la dignite de leurs couronnes.  Elles sont egalement justes
et necessaires. Lorsqu'elles ne precedent point de pretentions trop hautes,
les attribuer a un vain orgueil, c'est ignorer grossierement l'art de regner,
et mnpriser l'un des plus fermes appuis de la grandeur et de la suret6
d'un etat."(e)
This end, therefore, is always to be kept in view-namely, that the
honour of a nation is an outwork of the citadel of its independence.  Independently, however, of this consideration, every State, like every individual, has a substantive right to maintain and preserve its reputation.
XXVIII. Perhaps this right will obtain its best general exposition
from a consideration of the acts which have been treated as an invasion
of it-of wrongs done with respect to it. They seem to admit of the following classification: —1. Insults offered to the Head or Executive Power
of a State, through the official organs of another State. 2. Through the
acts of a subject of another State.
XXIX. Among the first class are to be reckoned injurious and insulting
proclamations put forth by the Government of a country, or by its representative abroad. Among the second, libels published by private subjects
upon the Executive Power of another State.  Insults offered by individual
subjects of another State, not recognised by, or, if need be from any
peculiarity in the circumstances, disavowed by the State of which he is a
member, can, generally speaking, be scarcely held to justify an International complaint; but in our own country, and at no very distant period,
as has been already stated, the Crown has prosecuted subjects guilty of
libelling *Sovereigns with whom it was in amity;(f) and it is  36
the bounden duty of every State to make reparation for injuries [    ]
inflicted upon the ambassador of any Foreign Power residing at its Court.
International Law forbids a libel upon a State, for the same reason
that Municipal Law forbids a libel upon an Individual.  The Individual
(c) Letters of Junius, xlii.
(d) Speech on the Recognition of the Spanish American States, vol. iii. p. 468.
(e) Vattel, t. i. 1. i. ch. xv. s. 191.
(f). Vide ante, vol. i. p. 417. —Prosecutions for libelling the Emperors of Russia
and France.




44    PHILLIMORE ON INTERNATIONAL LAW.
is injured thereby in his social rights, in his relation to other individuals:
the State, which has been recognised as a member of the society of societies, is also injured thereby in its relation to other societies.
But in the latter, as well as the former case, this right is not invaded
by a free discussion of, and criticism upon, the external acts of the State
or the Individual. A state has no cause of complaint if she has the same
protection as an Individual. The Courts of Justice are open in both
cases for the vindication of the offended party, and the reparation of the
injury, but in neither case can the acts of the wrong-doer be exempted
from the free censure of an independent judgment, and it is nobly said
by Heffters,," When shall Falsehood cease, if it be allowed to usurp the
place of Truth among those who carry on the History of the world?"(g)
Here, as in other instances, the doctrine of the Roman Law(h) is perfectly applicable to States: "c Eum, qui nocentem  infamavit, non esse
bonum et vequum ob eam rem condemnari; peccata enim nocentium nota
esse, et oportere, et expedire;"(i) and again, cc si non convicii consilio te
aliquid injuriosum  dixisse probare potes, fides veri a calumnia te defendit."(k)
XXX. A  State may confer on its Governors any title of dignity it
3    pleases,(l) and when this title has been used and *recognised, it
[ 37] will not allow another State to communicate with it by any other
mode of address.(mn) The general remarks of Vattel on this point, and
the particular instance of Prussia by which he supports them, are well
deserving of attention. —  Les titres, les honneurs ne d6cident de rein, il
est vrai; vains noms, vaines cer6monies, quand ils sent mal places; mais
qui ne sait combien ils influent dans les pensees des hommes?   C'est
done ici une affaire plus serieuse qu'elle ne le parait au premier coup
d'ceil.  La nation doit prendre garde de ne point s'abaisser elle-meme
devant les autres peuples, de ne point avilir son condupteur par un titre
trop bas: elle doit se garder plus encore de lui enfler le coeur par un vain
nom, par des honneurs demesures, de lui faire naitre la pens6e de s'arroger
sur elle un pouvoir qui y reponde; ou d'acquerir, par d'injustes conquetes,
une puissance proportionn6e.  D'un autre cate, un titre releve peut engager le conducteur a soutenir avec plus de fermet6 la dignit6 de la
nation.  Les conjonctures d6terminent la prudence, et elle garde en toutes
choses une juste mesure.  La royaute', dit un auteur respectable, et qui
peut en etre cru sur la matiere, la royaute' tira la maison de Brandebourg de ce joug de servitude oi la nmaison d'Autriche tenait alors tous
les princes d'Allemagne.  C'e'tait une amorce que Fre'deric Ier jetait d
toute sa posterite', et par laquelle il semblait lui dire:' Je vous ai acquis
un titre, rendezvous en digne; j'aijete' les fondements de votre grandeur,
c'est ca vous d'achever l'ouvrage.' "(n)
XXXI. This matter has already undergone some discusson in the
preceding Chapter.
(g) Heffters, ss. 31, 111; and see authorities cited at the beginning of this
Chapter.
(h) Inst. iv. 4. Cod. ix. 35. Dig. xlvii. 10. De injuriis et famosis libellis.
(i) Dig. xlvii. 10, 18.                 -(k) God. ix. 35, 5.
(1) Vattel, 1. i. c. iii. ss. 41, 42, 43, and note.
(m) Martens, Droit des Gens, s. 125.     (n) Vattel, t. i.. chii. iii. s. 41.




EXTERNAL MARKS OF HONOUR.                            45
Any injury done or insult offered to the outward insignica of a State's
personality are violations of the Right of which we are treating; for
instance, counterfeiting the coin, debasing its value by alloy,(o) usurping
the heraldic arms, as Mary Queen of Scots did those of the
Queen of England; assuming the title, as the British kings, [#38]
long after all pretext for it had ceased, injuriously continued to assume
the title of King of France.(p)  Last, though by no means least,
insults offered to the nautical flag, the emblem of the national life, are
all invasions of the Right to Honour and Respect for which satisfaction
may be demanded and reparation ought to be made. The sensitiveness
of all nations to any insult offered to their flag has always been very
tender; such an indignity has been always held to call for speedy atonement and full reparation.
In 1784, the Emperor of Austria attempted, in violation of the existing law, to open the navigation of the Scheldt; and sent a brig, bearing
the Imperial Flag, from Ostend to Antwerp, with orders to ascend that
river. The ship refusing to go back to sea when ordered to do so by
the commander of a Dutch ship of war, was fired upon and compelled to
anchor.  The Emperor withdrew his ambassador from Holland, "cc evant
considerer l'insulte faite a son pavilion commrnre une declaration  de
yuerre,"(g) and demanded " une satisfaction eclatante."   The Dutch
made an ample apology for this alleged insult,(r) though it does not
seem that under the circumstances any apology was fairly due.
When in 1849(s) Austria stated the grievances which had induced
her to withdraw  her ambassador from  Rome, she enumerated among
them that " the Austrian flag and the arms of the empire, on the palace
of our ambassador at Rome, were insulted and torn down; and although
the Holy Father himself condescended to express to the ambassador his
deep concern at this gross violation of International *Rights,
yet his government was overawed by the licentiousness of faction, [*39]
and unable to make reparation for the injury which was done."
The flag and the arms were, on the restoration of the Pope, put up
again with due honours on the part of the Roman authorities.
XXXII. "'Ut belli occasio evitetur tractandum  quoque, quando et
quorum navibus prmestanda sit reverentia,"(t) is the language with which
the great Dutch jurist opens the once much-vexed subject of Maritime
Ceremonials: his reason for discussing a subject, upon which his
authority is perhaps the greatest, being, that war may be prevented, into
(o) Ibid. t. i. 1. i. ch. x. s. 108. "Des principes que nous venons d'etablir, il
est aise de conclure, que si une Nation contrefait la monnaie d'une autre, ou si
elle souffre et prot6ge les faux monnayeurs qui osent l'entreprendre, elle lui fait
injure."
(p) George III. first discontinued it.
(q) Martens, Causes Celelbres, t. ii. p. 242.   (r) Ib. 270, 271.
(s) Ann. Register, vol. xci. p. 296, A. D. 1849.
(t) Bynkershoek, De Dominio Maris, cc. ii. iv. Quuest. Jur. Publ. 1. ii. c. sxi,
This is the leading authority upon this subject.
Vattel, 1. ii. ch. iv. 38.
Martens, ss. 158, 163.
Klhiber, ss. 117-122.
Wheaton, Elem. i. ch. iii. 7, p. 155.




46    PHILLIMORE ON INTERNATIONAL LAW.
the horrors of which his own country had more than once been plunged
by disputes upon this point of International honour.
Maritime ceremonials, in time of peace, are either-i. Recognition
of sovereignty; or 2. Marks of conventional courtesy or comity.  These
acts of comity, like all others (as has been already observed,) sometimes
assuming, through the force of treaty or long usage, the character of
positive law.
They are paid to ships of war; to ports, fortifications, harbours; to
Sovereigns, or the Representatives of Sovereigns; independent States,
monarchical or republican.
They consist in striking the flag (s2tpparunm  et summi ajolustris
submissio-salut du pavillon-der Flaggenstreichen;) lowering top-sails
and striking flag; lowering the sails (velorum  demissio-salut des voiles
-das Segelstreichen, die Lksung;) firing a certain number(x) of guns
(salut du cannon-L6sung der Canonen.)
*40 ]   *XXXIII. 1. Maritime ceremonials can only be claimed as
[ *40] Recognition of Sovereignty where the sea is subject to the sovereign who claims them, that is to say, within cannon-shot of the shore,
and within those parts of the sea already treated of in a former
Chapter.(y)
To these should be added, that portion of the sea which is actually
occupied by a fleet; that portion is, during the actual period of the
occupation, under the dominion of the State represented by the fleet;
as the temporary occupation of foreign territory by an army places it
for the time under the occupation of the State which the army represents.
In the twenty-first chapter of his second book, Qu&estiones Juris
Publici, Bynkershoek, referring to his former work, De Dominio l3iaris,
and the thesis, -" nullurn mare exterum nunc esse in cujusquam Principis
dominio, cum nulluin a quoquam Principe possideatur," therein successfully maintained, observes, "'his omnino consequens est, qui imperat
mari proximo recte etiam  imperare, uet et guemadmodumn ibi salutetur."
Thus the Dutch States (A. D. 1690,) "' oltimzojure," decreed that the
King of Denmark's demand with respect to the salutation of the fortress
of Cronenburg in the Baltic should be complied with; and, "c nec minus
recte," in 1671 decreed that their naval commanders should salute, when
they came within cannon-shot of a State, according to the manner prescribed by that State, whether their salute was or was not returned;
c" quemque enim esse dominium in suo imperio et quemquam advenam ibi
subditum."(z)
(x) The number is generally equal; Sweden, it is said, alone firing an unequal
number.-Martens, s. 158, n. The exact number has been often the subject of
dispute, and has generally been settled by the express provisions of Treaty with
the Barbary States: e. g., Spain and Tripoli (1784,) Great Britain and Tripoli
(1694 and 1746,) United States of North America and Tripoli (1805,) Great
Britain and Tunis (1746-1751,) Holland and Tripoli (1728,) France and Tripoli
(1793,) France and Morocco (1767.)
(y) Vide ante, vol. i. cc. 4, 6, 7, 8.
(z) S. 23, t. i. Legumrn Nauticarum, cited by Bynkershoek, ib.
Mlartens, 1. iv. ch. iv. s. 159, note b. " Les instructions des puissances pour
leurs armees navales jettent le plus grand jour sur leurs pr6tentions a l'dgard de
ce c6remonial. Sur l'Espagne, voyez les ordonnances de Philippe IV. de 1563, dans




EXTERNAL MARKS OF HONOUR.                              47
*The order of Philip II. (A.D. 1563), that the flag bearing [*41
the Imperial arms should not be lowered in any foreign port,
and the act of the French ship which passed the Genoese citadel in 1691,
without saluting, were both, according to Bynkershoek, violations of International Law.
XXXIV. 2. Maritime ceremonials in the open sea, or in any other
places than those subject to the dominion of a State, must depend upon
Comity, or mutual agreement. Zouch,(a) with that correct opinion upon
the principles of International Law which distinguished him, applauds
the decision of the superior French Court which reversed the sentence
of an inferior court for condemning a Hamburg vessel which had refused
to salute a French ship in the Spanish seas. Bynkershoek of course
sanctions this opinion. According to usage,(b) however, merchant vessels are obliged to salute a vessel of war generally by cannon-shot, and
also by lowering flag and sails; —the salute by sails is the most usual.(c)
Ships of war of equal rank are not constrained by custom  to salute at
all: those of inferior ought to salute those of superior rank.  A single
ship of war salutes a fleet or squadron; and an auxiliary squadron salutes
the principal fleet.:XXXV. By an Ordonnance of the King of the French,
1831, (lst July), the following rules of Maritime Salute are [*42 ]
prescribed for French ships of war:"c Art. II. Toutes les fois qu'un batiment Frangais sera salue par un
batiment de guerre 6tranger, le salut sera rendu coup pour coup audit
batiment etranger, quels que soient les grades des officiers commandants,
et soit qu'il ait e6t trait6 on non de salut, pourvu toutefois que ce salut
n'excede pas 21 coups de canon.
" Art. III. Les commandants des batiments de guerre  Frangais
arrivant sur une rade etrangere, se conformerout, quant aux visites, aux
usages gen6ralement regus dans le pays oui ils se trouveront."(d)
XXXVI. The following orders are issued by the British Crown to
her ships of war, with respect to saluting the flags of other Powers at
sea.
"'All salutes from ships of war of other nations, either to Her MIajesty's forts or ships, are to be returned gun for gun.
s A British ship or vessel of war meeting at sea a foreign ship of war
bearing the flag of a flag-officer, or the broad pendant of a commodore
commanding a station or squadron, and superior in rank to the officer of
Abreu y Bertodano, Collection; de Philippe IV. de 1664, ibid. p. vii. p. 642; de
Carl. II. de 1671, ibid p. i. p. 549; sur l'Angleterre, Laws of the Admiralty, t. ii.
p. 303; sur la France, ordonnance de Louis XIV. pour les arm6es navales, 1689,
liv. iii. tit. i.; ordonnance de 1766; lettre circulaire du ministre de la Marine aux
prefets maritimes sur le salut du canon, du 9 frimaire, an X, Dufriche-Fontaine,
t. ii. p. 1034; sur le Danemarck, ordonnance de 1748, dans le Merc. hist. et pol.
1748, p. ii. p, 171; sur les Provinces Unies des Pays-Bays, ordonnances de 1671,
de 1750, Recueil de Van Placaaten, t. vi. p. 367."
(a) De Jure Feciali, pt. 2, s. 8, 14, p. 132, (ed. Oxon. 1650.) " Utrum quod
nautce, Principis alterius navi bellica vela non submittent, navis pro prcedd cai possit?"
(b) Kliiber s. 122.
Martens, s. 159.
(c) De M. et De C. Index Explicatif, Salut de Mer.
(d) De M. et De C. t. iv. p. 322.




48    PHILLIMORE ON INTERNATIONAL LAW.
the British ship or vessel, shall salute such foreign flag-officer or commodore with the number of guns to which a British officer of corresponding rank is entitled, upon being assured of receiving in return gun for
gun: and in the event of the British ship meeting with such foreign flagofficer or commodore in a foreign port, similar complimentary salutes
with such foreign flag-ship should be observed, if the regulations of the
place shall admit thereof."(e)
XXXVII. The regulations with respect to salutes from British ships
to British men-of-war, are not strictly of an International *cha[     i43-  racter; but these regulations, and those relating to Colours, may
perhaps be usefully mentioned in this place.(f) By the laws of the sea,
the ancient constitution of the Admiralty, and the usage of the realm, it
is an offence against the King's prerogative to usurp or wear on board
any private ship the flags, ensigns, jacks, or pendants worn by the ships
of the Royal Navy.(g)
In consequence of the Union with Ireland, which commenced on the 1st
of January, 1801, King George III. issued a proclamation of that date, appointing a certain ensign, drawn in the margin, to be carried by all merchantmen of the United Kingdom, and prohibiting the use of any other
ensign in such ships; and also prohibiting them from wearing the Union
Jack, or any pendants or colours usually worn by the King's ships, without a special warrant from the Crown or the Admiralty. Under this
proclamation, the hoisting or wearing of such colours is a contempt of the
Crown, and punishable as such by the Court of Admiralty.(h)
In 1833, William Benson, master of the merchant steamship Lord of
the Isles0  was found guilty of contempt in wearing illegal colours; he
having in or near the river Douro hoisted at the main peak a red pendant,
which Captain Belcher of His Majesty's ship 2Etna, came on board and
seized.  For this offence of wearing colours used by His Majesty's ships,
the penalty of 501. was inflicted, the Court having no power to mitigate
the fine.(i)
*44 ]    *A penalty not exceeding 5001. is now annexed to this offence
[    *44   by the statute 17 & 18 Vict. c. 104, s. 105.
(e) Extract from Regulations relating to Salutes.
(f) The following remarks are extracted from The Law relating to Officers of
the Navy (by Prendergast), Part II. p. 449.
(g) Life of Sir Leoline Jenkins, i. 97.
(h) The Minerva, 3 Robinson's Adm. Rep. p. 34.
(i) The King, in his Office of Admiralty v. Miller, 1 Haggard's Adm. Rep. p. 197.
The King v. Benson, 3 ib. 96.
The last case was The Queen, in her Office of Admiralty v. James N. Forbes,
master of merchant vessel Lightning, for wearing illegal colours (7th March, 1855).
It usually happens that the offending party, on being served with the warrant of
arrest, memorialises the Board of Admiralty, expressing contrition for the offence,
and that on payment of the costs incurred, the fine is remitted. Ireland, as to all
matters of Instance jurisdiction, is governed by its own Court of Admiralty; but
neither Ireland nor Scotland have any Admiralty Prize jurisdiction. As to former
provisions on this subject, see3 Geo. IV. c. 110, s. 2, (smuggling, 5001.)
6 lb. c. 108, s. 15, (smuggling, 501.)
3 & 4 Will. IV. c. 50, c. 53, s. 9, (smuggling, 501.)
4 lb. c. 13, s. 11, (smuggling, not above 5001.)
8 & 9 Vict. c. 87, s. 10.




EXTERNAL MARKS OF HONOUR.                            49
It is also a contempt of the Crown, if a British merchant-vessel pass
a ship of the [Royal Navy without striking topsail: and the Court of Admiralty, on complaint of the offence, will arrest the master of the merchantman to answer for the contempt.   An instance of this nature
occurred on the 4th of November, 1829, when the Court of Admiralty
issued a warrant of arrest against the master of the schooner Native for
contempt in passing His Majesty's ship Semiramis, in Cork harbour,
without striking or lowering her royal, being the uppermost sail she was
then carrying."(j)
XXXVIII. 3. Maritime ceremonials in particular seas, as distinguished from the open sea, and from the sea within cannon-shot distance
from the shore, remain to be considered; such were, in former days, the
claims of maritime honours of Venice in the Adriatic, of Genoa in the
Ligurian, of France in another portion of the Mediterranean, and such
are, at this day, the claims of Denmark with respect to ships entering
the Baltic, and of Great Britain with respect to ships in the narrow seas,
which surround her coast.
Bynkershoek,(k) it has been already observed, denies their claims.
He does not object to their being conceded as matters of Comity (comniter
observari); but he denies that they can be demanded of right (juris).
The claims of Denmark have been the subject of various treaties, the
last of which was made on the 15th of January, 1829, with Russia.
The last article of this Treaty refers to a protocol signed at Aix-lavhapelle on the 21st November, 1818, which recommended a general convention upon the subject of maritime ceremonials between all the maritime *powers.  This has never been executed; but the Treaty
between Denmark and Russia provides that the salute of vessels [*45]
of war, " denue d'utilite reelle est generalement tomb6 en desu6tude parmi
les nations europe6ennes," shall undergo such modifications as to take
away most of the previously existing formalities between these two
powers on this subject.
The Treaties between Great Britain and Holland upon the subject of
the particular claims of the former to maritime honours in the narrow
seas, are those of 1662, 1674,(I) 1784.(m)
XXXIX. In the above enumeration are omitted that class of injuries
which relate to the refusal of that Precedence, which custom has established among the representatives of nations; the consideration of this
class of injuries seems to belong more properly to the Chapter on Ambassadors;(n) as it rarely happens, that the Governors of a State meet
together in person, as well as by representatives.  Such Congresses,
(j) The King v. Benson, 3 Haggard's Adm. Rep. 97, note.
(k) Qu.Tst. Jur. Publ. 1. ii. ch. xxi.
(1) See Sir L. Jenkins's Letters, vol. ii pp. 699, 700, 702, 708, &c., (some before,
some after A. D. 1674,) relating to striking the flag.
Vide ante, vol. i. pp. 196-7.
(m) By the second article of the Treaty of 1784, it is provided, "A l'6gard des
hommes du pavilion et du salut en mer par les vaisseaux de la Republique vis-hvis de ceux de S. M. Britannique, il en sera us6 respectivement de la meme maniere
qui a ete pratiqu6e avant le commencement de la guerre qui vient de finir."
De M. et De C. i. 323.
(n) Vide post.




50    PHILLIMORE ON INTERNATIONAL LAW.
however, have taken place.  Not to go further back than 1814, there
have been no less than five Congresses since that time, at which European Potentates have met together in person.
1. The Congress of Vienna, closed in the month of June, 1815.
2. The Congress of Aix-la-Chapelle, in 1818.
3. The Congress of Troppau, in 1820.
4. The Congress of Laibach, in 1821.
The motives assigned for these two last were the alleged revolutionary
*46] movements in Naples and Piedmont, rendering  *the state of
L[~4J  Europe insecure. Upon a similar allegation with respect to the
disturbed state of Spain, a fifth Congress was held at Verona, in 1820.
XL. It is of course competent to States to renounce, either tacitly by
usage which they have long acquiesced in and recognized, or openly by
treaty, any portion of the Rights incident to their primitive equality.
As in all conferences some persons must precede others, a sense of
necessity and a regard for order, and perhaps also a voluntary homage
to the real position and consequence of different States, have introduced,
into Europe at least, a certain rule and custom, which it is the duty and
interest of all States to adhere to.(o)  At the period when the system of
ceremonial honours and distinctions began to grow up in Europe, the
most powerful States were governed by an emperor,(p) or by a king
upon whose head the crown had been placed, with all the solemnity and
sanctity which religious rites could impart.  These circumstances conspired with the vast actual superiority of their wealth, influence, power,
to procure for emperors and kings those privileges and prerogatives over
other States which are universally designated as Royal Honours (Honores
Regii, Honneurs Royaux, Klfnigliche Ehlren).
*47      *Vattel, though strongly indisposed(q) to allow the existence
[ ~47] of any prerogative as incident to a monarchical form of govern(o) Martens, 1. iv. ch. ii. s. 25.
(p) The idea of the paramount superiority of the Emperors of Germany long
prevailed in Europe, and is actually combated by our great English civilian, Arthur
Duck, who wrote in the seventeenth century. It was derived from the notion of
their being successors, through Charlemagne, of the Roman, as distinguished from
the Greek, Emperor. At the time of Charlemagne, Vattel remarks, there was
"une id6e r6cente de la majeste du veritable empire Romain."-L. ii. ch. iii. s. 40.
le cites from Bodinus, De Republica, 1. i. ch. ix. p. m. 139. The observation of
Bartolus was, that they were heretics who denied that the Emperor was the sovereign paramount of the world. Bartolus died in 1356. The notion of the real
importance attached to the title of Emperor caused maniy States, in the middle
ages, to be careful in designating their realms as an "Empire'," and their crown
as "Imperial."  Great Britain has long spoken of her 1"Imperial Crown" in all
her public acts.
Blackstone's Commentaries, vol. i. p. 242.
Martens, s. 127, note 6.
(q) L. ii. ch. iii. s. 38. —"La forme du gouvernement est naturellement etrangere
X cette question. La dignite, la majest6, reside originairement dans le corps de
l'Etat; celle du souverain lui vient de ce qu'il represente sa Nation. L'Etat aurait-il
plus ou moins de dignite, selon qu'il sera gouvern6 par un seul ou par plusieurs?
Aujourd'hui les rois s'attribuent une sup6riorit6 de rang sur les r6publiques; mais
cette pretention n'a d'autre appui que la supdriorit6 de leurs forces. Autrefois la
republique Romaine regardait tons les rois comme bien loin au-dessous d'elle.
Les monarques de l'Europe ne trouvant en leur chemin que de faibles republiques,
ont dedaigne de les admettre X le'galite. La republique de Venise et celle des




EXTERNAL MARKS OF HONOUR.                             51
ment, nevertheless observes: "c Si les traites, ou un usage constant, fond6
sur un consentement tacite, out marqu6 les rangs, il faut s'y conformer.
Disputer a un prince le rang qui lui est acquis de cette maniere, c'est lui
faire injure, puisque c'est lui donner une marque de mepris, ou violer
des engagements qui lui assurent un droit."(r)
And in another place (under the head of l"Des egards mutuels que
les souverains se doivent") he says: ",Le plus grand rmonarque doit respecter dans tout souverain le caractere eminent doent il est revetu.
L'ind6pendence, l'egalite6  des Nations, les  devoirs reciproques  de
l'humanit6, tout l'invite a marquer au conducteur mSme d'un  petit
peuple, les egards qui soent dus a la qualite.  Le plus faible Etat est
compose d'hommes, aussi bien que le plus puissant, et nos devoirs sent
les memes envers tous ceux qui ne d6pendent point de nous.
"'Mais cc precepte de la loi naturelle no s'etend point audela de ce
qui est essentiel aux egards que les Nations independantes se doivent les
unes aux antres; en un mot, de ce qui marque que l'on reconnalt un
Etat, ou son souverain, pour etre veritablement independant et souverain,
digne par consequent de tout ce qui est du a cette qualite. *Du
reste, un grand monarque 6etant, comme nous l'avons de6j  fait [*48]
observer, uu personnage tres-important dans la societ6 humaine, il est
naturel qu'on lui rende, en tout ce qui n'est que pur ceremonial, sans
blesser en aucune maniere l'egalite des droits des Nations, qu'on lui
rende, dis-je, des honneurs auxquels un petit prince ne saurait pretendre,
et celui-ci ne peut refuser au monarque toutes les deBfrences qui n'interessent point son independance et sa souverainet6."(s)
XLI. A State, once possessed of certain International privileges, retains them, whatever change her internal constitution may have undergone: Cromwell would not allow the slightest mark of honour which had
been paid to the representatives of the Monarchy to be omitted towards
those of the Republic of England.
In the Treaties between the French Republic(t) and the other European Powers, it was expressly stipulated that the same ceremonials as to
rank and etiquette which had been observed before the Revolution should
be continued between them; and the same rule was observed towards the
recent Republic of France.
The Republics of Venice and the United Netherlands were always admitted to Royal Honours; though their Ambassadors yielded precedence
to those of Crowned Heads.
The Republic of Genoa and the Order of Malta were never indisputably possessed of this privilege, though the former claimed equality
with Venice, and precedence over Switzerland.
In later times, Switzerland collectively, not in its individual cantons,
the United States of North America, the German Confederation (Deutsche
Provinces-Unies ont obtenu les honneurs des tetes couronnees; mais leurs ambassadeurs cedent le pas a ceux des rois."
(r) Vattel, 1. ii. ch. iii. s. 40; vide also s. 46.
(s) Vattel, 1. ii. ch. iii. s. 47.
(t) Treaty A. D. 1797. Campo Formio, art. 23.-M-artens.




52    PHILLIMOR1E ON INTERNATIONAL LAW.
*49 ]Bund)(u); and it is presumed, *the Empire of Brazil, have been
I['9 ] considered entitled to this privilege.
The Sovereign States of Europe are,(x) with respect to this matter of
etiquette, classified into1. Those who are entitled to Royal Honours.
2. Those who are not.
1. It seems to be now an established principle of International etiquette, that the Crowned Heads of Europe are entitled to an equal rank,
one having no precedence (Proedria, Protostas;a, Prece'dence, Pre'se'ance) over the other.
XLII. At different periods of history, France, Spain, and Russia have
laid claim to precedence over other States; but the claim appears never
to have been allowed.  At the Peace of Passarowitz(y) (1718,) and in
subsequent Treaties, that of Belgrade for example in 1738, Austria has
covenanted with the Ottoman Porte for a perfect equality of rank. "t He
nugae seria ducunt in mala."  But as various modes have been adopted
to avoid the evils growing out of squabbles for precedence, sometimes it
has been resolved that at Congresses and meetings each place shall be
considered as the first; at other times, ambassadors have signed their
names in the order of the alphabet. But the easiest expedient seems to
be the use of the alternat, or alternative.  By the alternat,(z) the rank
and place of different States from time to time undergoes a change, which
is determined by a regular order or by lot,-the same State occupying
different places in the same ceremonial.
XLIII. In the signing of Treaties, the usage of the alternat is generally adopted, it being contrived that each State *shall write its
signature in the first place in the copy of the treaty destined for
it. This usage was adopted by the Quadruple Alliance at London in
1718, and at the Peace of Aix-la-Chapelle in 1748.
At the same time, even this sensible arrangement has occasionally
been demurred to, protested against, or altogether rejected.(a)
Sometimes, as at Utrecht in 1713 and Aix-la-Chapelle in 1748, each
of the contracting parties has delivered to the other a copy of the Treaty
signed by itself only.(b)
Roman Catholic Sovereigns(c) have yielded precedence to the Pope as
an acknowledgment of his character as Vicar of Christ and Sovereign
Pontiff of the Roman Catholic Church; with a reservation of their own
Right of Sovereignty.
(u) Martens, 1. iv. c. ii. s. 133.-"1 I ne serait pas extraordinaire que la Conf6d6ration Germanique, reconnue pour 6tre puissance europeenne, ne se cruit pas
tenue de ceder, dans des occasions, le pas h une des tetes couronnees, ou meme
ne se crit autoris6e a prdtendre le pas sur ceux de ses membres qui ne portent
point de couronne dans une autre qualit6; cependant jusqu'A pr6sent il n'y a pas
encore eu d'occasion de contester sur ce point."
(x) Kliber, ss. 91-2.      (y) Giinther, Band i. pp. 2202 233, 244. Bynkershoek, Qumst. Jur. Pub. 1. ii. ch. ix.
Spain's dispute as to the "pas" with France was settled by the 27th article of
the Bourbon Family Compact.
(z) Kfidber, s. 104.
(a) Schmauss, i. 1743.
Ginther, b. i. pp. 229, 234, 238, 247, 274. Portugal in 1763; Treaty of Sardinia in 1748; Treaty of Aix-la-Chapelle; France; Hungary; Bohemia.
(b) Giinther, i. 275.                  (c) Ib. 221.




EXTERNAL MARKS OF HONOUR.                             53
The kingdoms whose Churches are subject to the Patriarch of the
East, as Russia and Greece; and Great Britain, whose Catholic Church
has no longer any relations with the Bishop of Rome as Patriarch of the
West, accord no precedence on such ground.  Nor does Prussia, nor the
minor Protestant Powers of Germany, nor the Ottoman Empire, ever
concede such precedence.  But, as Sovereign of the Roman States, the
Pope is entitled to the Royal Hlonours mentioned above.(d)
Neither the European States, nor States generally, have ever bound
themselves by agreement or pact to any fixed or certain rule with respect
to this question of precedence; though attempts have been made to enact
a binding regulation upon the subject.
*The great ecclesiastical councils, at which sovereigns were   *
often present in person or by representative, furnished a ground [ 51 ]
for the interference of the Pope in this matter.(e)
In 1504, Julius II. promulgated a table of precedence for the European
States, founded upon a variety of reasons now generally acknowledged
to be trifling and insufficient. This regulation,(f) it is said, was never
followed, not even in the Councils or in the Pope's chapel, and, it need
scarcely be said, is wholly without weight or influence upon modern International Law.  The next attempt(g) was made by the eight European
Powers who signed the Treaty of Paris in 1814. They nominated a
commission for the purpose of considering and reporting "c des principes:a etablir pour r6gler le rang entre les couronnes, et de tout ce qui en est
une consequence."  The commission did suggest a uniform  rule,(h)
whereby all public ministers should be divided into three classes of-.
1. Ambassadors or Nuncios.
2. Envoyes.
3. Charge's d'Atffaires.
But great differences and doubts arose respecting this classification at
the time, principally with respect to the rank which should be assigned
to the Great Republics. And at the Congress of Aix-la-Chapelle, 21st
November, 1818, at which Austria, Russia, France, Spain, and Great
Britain were represented, a certain rule of precedence was agreed to by
a protocol.(i)
*Though the regulation of etiquette was thus confined to the  *52
representatives of the five crowned heads, it appears to have been [    ]
generally adopted as a rule of positive International Law.(k)  Regulations, adjusting the ceremonials for the reception of foreign ministers,
were instituted by the United States of North America on the commencement of their career as an independent State in 1783.(/) These will be
mentioned hereafter when the subject of embassies is considered.
(d) Giinther, ib. s. 94.      (e) Guinther, t. i. p. 219.
(f) Kiiber, s. 94. Martens, s. 131.
(g) Kliiber, s. 94, n. c.
Martens, s. 131, n. 6.
(h) De M. et De C. t. iii. p. 190, 1.
(i) Acte final du Congrbs de Vienne, art. 118, et son Annexe.
Kfiber's Acten des Wiener Congress, Band viii. 3-98, 102, n. 108, f.; Band vi.
s. 93, n. 204, f.
Martens, Man. Dipl. c. iv. s. 38.
(k) Wheaton's Elem. vol. i. p. 262.      (1) De M1. et De C. t. i. p. 264.




54    PHILLIMORE ON INTERNATIONAL LAW.
XLIII. (a) The Right we are treating of, flowing as it does from the
essential equality of nations, extends to the subject of the language to
be employed in International communications.(m) No nation has a right
to insist that a particular language, whether it be its own or that of
another country, shall be exclusively employed in all communications
with it.
Until the middle of the eighteenth century the Latin language-the
medium through which Christianity and Civilization have been conveyed
to the West-continued to be employed as the channel of formal diplomatic intercourse.(n) In this universal tongue, which has many recommendations as the bond of a common civilization, are written, among
others, the Treaties of Nimeguen; of Ryswick; of Utrecht, 1713; of
Baden, 1714; of the Quadruple Alliance of 1718; of Vienna, 1725 and
1738.(o)
The Pope continues to use the Latin language in his International
acts.
The aggrandisement of the Spanish monarchy towards the end of the
fifteenth century appears to have introduced *for a short time the
[ *53] use of the Castilian tongue as a pretty general instrument of International intercourse.  Since the reign of Louis XIV. the French language has been generally used as the diplomatic language of Europe, but
under a protest preserving the dignity of other nations.(p)  So late as
the year 1790, the Emperor of Austria, Leopold II., in his correspondence with Louis XVI. respecting the invasion of the right of the German
princes in Alsatia, and the infringement thereby of the Treaty of Westphalia, complained that the correspondence of the French king was in
the French language, contrary to the former usage, which required communications between Austria and France to be made in the Latin language; the letter of the Emperor was written in that language.(g)
By the 120th article of the final act of the Congress of Vienna of
1815(r) it is stipulated —c La langue Frangaise ayant et6 exclusivement
employ6e dans toutes les copies du present Trait6, il est reconnu par les
Puissances qui ont concouru a cet acte, que l'emploi de cette langue ne
tirera point a cons6quence pour l'avenir; de sorte que chaque Puissance
se reserve d'adopter dans les negociations et conventions futures la langue
(m) Kfiber, ss. 113-114.
Wheaton's Elem. pp. 197-198.
"Language, the leading principle which unites or separates the tribes of mankind."-Gibbon, vol. viii. c. xlvii. p. 338.
(n) Duck, de authoritate et usu Juris Civilis, p. 150, &c.
J. L. E. Putman, De usu linguse latinae in vita civili causisque maxime publicis,
cited by Kliiber, n. s. 114. See note below, as to Quadruple Alliance.
(o) Schmauss, Corp. Jur. Gent. p. 1555, ccliv.
(p) Schmauss, 1734.
Peace of Radstadt (A. D. 1714,) art. 33.
"  of Aix-la-Chapelle (1748,) sep. art. 2.
Wenck, C. Jur. Gent. ii. 360.
Alliance between France and Austria, sep. art. 2.
Treaty between Poland and Prussia, 1773, art. 14.
(q) Koch, ch. xxvi.
Wheaton's Hist. p. 347, note.
(r) Martens, Recueil, &c., t. x. p. 430.




TREATIES.                                 55
dont elle s'est servie jusqu'ici dans ses relations diplomatiques, sans que
le Traite actuel puisse etre cite comme exemple contraire aux usages
etablis."
In later times, however, and more especially since Mr. Canning's brilliant administration of the foreign affairs of Great Britain, States have
used their national language in *their instruments of diplomatic
intercourse, accompanying them, if necessary, with a translation [*54
in the language of the State with which they are in correspondence.
It appears to have been a maxim  of the Ottoman Porte to regard no
treaty as of perfect obligation, unless couched in its own language. The
European States have avoided what might be thought a derogatory concession to this whim, by taking care that the Treaties with this Power
should be written in divers languages.
*CHAPTER VI.                              [X55]
TREATIES.(a)
XLV. THE International obligations arising out of Natural or Customary Law may receive additions or restraints from specific Conventions
or Treaties.(b)
It has been already observed, that the consent of Nations is in some
degree evidenced by the contents of Treaties, and that they constitute an
important part of International Law.(c)
Treaties (traites, Vilkeervertrdge, Tractate) are the written
*portion of that Law which binds together the Society of States, [*56]
and occupy a place in that system, which, in some degree, corresponds
(a) Grotius, 1. ii. c. xi. de promissis; c. xii. de contractibus; c. xiii. de jurejurando; c. xiv. de eorum qui summum imperium habent promissis et contractibus
et juramentis; c. xv. de fcederibus et sponsionibus; c. xvi. de interpretatione.
Vattel, 1. ii. ch. xii.-xvii.
Martens, 1. ii. c. ii. 46.
Kliiber, s. 141., u. s. w.
Wheaton, Elem. vol. i. p. 38, &c.
Heffters, ss. 144, 175.
F6n6lon, tom. xxii. pp. 293-4. (ed. 1824.)
(b) " At nobis accuratius instituenda partitio est, ut primurm dicamus foedera
alia idem constituere, quod juris est naturalis, alia aliquid ei adjicere."-Grot. 1.
ii. c. xv. s. 5.
"I can scarcely think that Ministers mean to contend that cession by Treaty
does not give a right to possession. Where are we to look, therefore, to ascertain
the right of a country to any place or territory, but to the last Treaty? To what
would the opposite doctrine lead? France might claim Canada, ceded in 1763, or
we Tobago, ceded in 1783. It might be urged that they took advantage of our
dispute with our own Colonies, and that the Treaty gave no right. Canada,
Jamaica. everything might be questioned.  Where would be the power of Europe if
these doctrines were to be acted on?  Every country must continue in a state of endless
perplexity, armament, and preparation. But, happily for mankind, a different principle prevails in the Law of Nations.  There the last Treaty gives the right."-CIIARLES
JAMEs Fox, Speech on the Russian Armament, 1792.
(c) Vide ante, vol. i. p. 44.




56    PHILLIMORE ON INTERNATIONAL LAW.
to the place occupied by statutes, in the system  of the Municipal and
Public Law of independent States.(d)
Moreover, the Right to enter into lawful Conventions or Treaties with
other States is as unquestionably inherent in every independent State,
as the right to make lawful covenants is inherent in every individual.
The contract of the individual, therefore, and the statute of the independent State, both furnish analogies for the elucidation of this branch
of our subject. It would be foreign to the object of this work to dwell
upon the necessity of the study of International Treaties to the iistorian, the Statesman, and the Philosopher; but it is proper to observe in
this place, first, that existing Treaties contain the present Positive Law
of Nations between the contracting parties; secondly, that abrogated
Treaties often furnish a necessary means of construing those which are
in force; while —if due and judicial regard be had to the occasion which
produced them, the subject-matter of their stipulations, the object for
which, and the epoch during which they were contracted, and the number
and character of the nations which were parties to them-they are also
of value as repositories of certain maxims of International Law, as
records of the consent of nations to certain principles as regulating International Intercourse, and of the instrumental forms by which International consent is expressed and ratified.(e)  Upon a scrupulous fidelity
in the observation of Treaties, not merely in their letter but in their
spirit, obviously depends, under God, the peace of the world. Pacta
sunt servanda is the pervading maxim  of International, as it was of
Roman jurisprudence.(f)
E*57]   The treaty-breaking State is the great enemy of Nations, *the
[ 57] disturber of their peace, the destroyer of their happiness, the
obstacle to their progress, the cause-to sum up all charges-of the terrible but necessary evil of War.(g)
"ccFundamentum justitive est fides, i. e. dietorum conventorumque constantia et veritas."(h)   To this remark of Cicero may be added the
maxim which Ulpian puts in the form of a question: "' Quid tam congruum fidei humanre quam qum inter eos placuerunt servare?"
Many a Christian State might be edified by the preamble to the Treaty
between Nadir Shah the Emperor of Persia, and the Sultan Mahmoud,
Emperor of the Turks, in 1747.  "c Glory be to God" (it begins,) "; who
among other things has rooted out all hatred and enmity from the bosoms
of these nations, and has commanded them to keep their Treaties
inviolable, as the ever-glorious Book saith: O ye who believe, keep your
covenants." (;i)
XLV. Different writers have adopted different arrangements of this
(d) Warnkonig, Rechtsphilosophie, s. 218.
(e) Vide ante, vol. i. pp. 44, 50, 64.         (f) Dig. ii. 14, 1 pr.
(g) Vattel, 1. ii. c. xv. passim, s. 220. "La foi des traites, cette volont6 ferme et
sincere, cette constance invariable A remplir ces engagements, dont on fait la declaration dans un traite7 est done sainte et sacare entre les nations, dont elle assure
le salut et le repos: et si les peuples ne veulent pas se manquer a eux-m6mnes,
l'infamie doit etre le partage de quiconque viole sa foi."
Klfiber, s. 145.
(h) Cic. De Offic.                           (i) Wenck, pp. 305-6.




TREATIES.                              57
part of International Jurisprudence, and it would be difficult to pronounce
upon the decided superiority of any. Perhaps the following preliminary
considerations may contribute to a clear conception of the subject.
Treaties may be consideredFirst, as to their subject, e. g. whether they relate to a matter of
Natural Right, which, like a declaratory enactment, only adds another
sanction to existing Law; or whether they contain some obligation as to
what was previously optional or indifferent, as the abandonment of a
right, the concession of a privilege, or the imposition of a servitus.(k)
*Secondly, with respect to their object, whether it be of a
permanent or transitory charactor, whether it relate exclusively [ 58 3
to the contracting parties, or have for its object to guarantee the safety
of possessions of a Third Power.   Treaties of guarantee deserve a
special consideration.(l)
Thirdly, with respect to the contracting parties, e. g. whether they be
both Christian, or whether they be Christian on the one side and Heathen
or Infidel on the other, or whether they be Christian on the one side and
on the other Mahometan, and whether within or without Europe.(mn)
Fourthly, with respect to the period of time in which they were
contracted.
1. Whether they were contracted before or after the Treaty of Westphalia, 1648.(n)  The first fundamental pact of Europe which struck at
the root of the foreign temporal authority of the Pope,-the last relics
of which disappeared from the code of International Law when this
great statute was engrafted on it,-introduced, within certain limitations,
the principle of intervention on the ground of religion.  This Treaty
recognized as its foundation that the Balance of Power was necessary
for the safety of nations, and though the equilibrium effected by it
related chiefly, if not exclusively, to the German nations of Europe, it
gave stability to many principles of International Law, and a consistent
form to that great ingredient of the liberties of Europe, the confederation of the German States; and lastly, this Treaty formed the basis of
many succeeding Conventions, which, without a reference to it, would
be unintelligible.(o)
*2. Whether before or after the Treaty of Utrecht (1713,) 1 *59
which again affirmed the principle of the Balance of Power as [
a necessary safeguard for the liberties of nations, and which laid down
as an inevitable consequence the two propositions, that the Crown of
Spain should not be worn by the sovereign of another European territory,
and that the Low Countries should not be added to the compact and
magnificent domain of France.
(k) Vide ante, vol. i. p. 302-6.             (1) Vide post.
(in) Vide Hertslet's Commercial Treaties for a variety of Treaties between
Christian Powers and African Princes.
(n) Koch, Hist. des Tr. Introd., p. 30.
(o) " Denique per hanc pacem (Westphalicam) suscitatum est Jus illudc Gentium,
quod recentiori ietate enatum, hodieque etiam bello ac pace magna auctoritate
floret, recte agentibus aliorum amicitiam ac societatem conciliat, legum violatoribus communem gentium indignationem ac bella parit." —Klinkhamer, De bello
propter successionem Regni Hispanici gesto Pace Rheno-Trajectina composito,
1829: Amstelodami.
OCTOBERo 1855.-5




58        PHILLIMORE ON INTERNATIONAL LAW.
3. Whether before or after the period intervening between the Treaty
of Utrecht (1713) and the breaking out of the French Revolution (1791,)
during which Prussia and Russia had entered as new elements into the
European system, and a new power in another hemisphere, the United
States of North America, had taken its place in the community of
States, and not a little affected their International relations for all time
to come.
4. Whether it be during the twenty-five years' war of the French
Revolution, and before the last great adjustment of the European system,
the Treaty of Vienna (1815.)
5. Whether it be between that period and the present time,-that
long period of International peace, now, unhappily, interrupted by a
war, the end and the consequences of which no political sagacity can
clearly foresee.  During this latter period, many Republics in Central
and Southern America, as well as Belgium and Greece in Europe, have
become members of the great community of States; during this period
European Turkey has been recognized as being, and has claimed to be
entitled to the rights and bound by the obligations incident to members
not only of the general, but of the European conmunity of nations;(p)
during this period the barrier which shut out China from the commerce
of the western hemisphere has been broken down.(g)
XLVI. There are, moreover, certain International engagements which
*60] are not, strictly speaking, Treaties,-which *cannot be consi[60   dered as pacta publica.(r)   Such are contracts between the
State and private individuals of another country, contracts relating to
the private affairs of the Sovereign; even, generally speaking, marriages
of the royal family belong to the jusprivatum,(s) and do not rise to
the dignity of foedera.(t)
XLVII. Treaties are also to be considered with reference to their
occasion and object. They may, it is obvious, contemplate a perpetual
duration and a permanent object, or be contracted for a definite period
and a transitory purpose (accords, conventions, factions); they may have
reference to the contracting parties only, or they may concern a third
party, on whose behalf or with respect to whom, other parties are to
enter into obligations.  This class of cases belongs to the difficult category of guaranteeship which must receive hereafter a closer examination
and fuller discussion.
XLVIII. The first point to be considered is, who are competent to
(p) Vide ante, vol. i. p. 84, and Appendix, p. 500.
(q) Vide ante, vol. i. pp. 212-363.
(r) " Conventionum  autem tres sunt species; aut enim ex publica causfa siunt,
aut ex privata, privata aut legitima, aut juris gentium. Publica conventio est,
que fit per pacem, quoties inter se duces belli qusedam paciscuntur." —Dig. ii. t.
xiv. 5.
(s) Grotius, ii. c. 15, s. 1. " Publicas ergo conventiones eos intelligit, quue nisi
jure imperii majoris ant minoris fieri nequeunt, qua nota differunt non tantum a
contractibus privatorum, sed et a contractibus regum circa negotia private."
(t) Vattel, 1. ii. c. xii. s. 152. " Un trait6, en latinfoedzus, est un pacte fait en
rue du bien public par des puissances superieures, soit a perpetuit6, soit pour un
temps considerable."
Kliiber, s. 141.




T R E A T I ES.                           59
contract a Treaty?   This competence is possessed by all independent
kingdoms.
A protected State may, if it has retained its sovereignty, make
Treaties and Alliances, unless the power has been expressly renounced,
or cannot be exercised consistently with the conditions of its protection. (U)
We have seen that States under a Federal Union mnay or may not,
according to the Sterms of their confederation, be competent [  61
to enter into Treaties with foreign nations.(x)                     [    ]
The question as to the proper organ for transacting negotiations and
concluding Treaties between States, will be considered at length in a subsequent Chapter upon Embassies.  It is sufficient to mention in this
place, that the valid execution of Treaties requires the agency of a representative of a State,-they must be contracted either immediately with
the Sovereign Power of another State, or with a Plenipotentiary duly
commissioned, according as the constitutional forms of the State may
prescribe.(y)
It was once a matter of serious doubt and discussion whether one
nation could enter into Treaties with another which professed a different
religion. Not only the earlier writers upon International Law, but Grotins himself debates this question at considerable length; and even the
further question, whether a League and a War of Christian nations
against the Infidels be not a matter of Christian duty.(z)  There was a
period when the state of religious feeling and party,(a) and still more
when the actual and continued enmity between the Christian and the
Mahometan, rendered this discussion neither unnecessary nor unprofitable.(b) The conclusion of Grotius is in favour of the lawfulness of such
Treaties.(c)
*No subordinate corporations in a State can be contracting par-  *62
ties to a Treaty with a Foreign State.(d)  A Sovereign may in [    ]
his private capacity enter into contracts with Foreign Powers; but these
are not Treaties properly so called.
XLIX. Secondly, the free reciprocal consent of both contracting parties, which is indispensable to the validity of a contract between individuals, is equally requisite for a Treaty between States.(e)  Mere negotia(u) Vide ante, vol. i. pp. 91-94.
Vattel, 1. ii. c. xii. s. 155.
Klfiber, s. 141.
(x) Vide ante, vol. i. pp. 120-1.
(y) Vattel, 1. ii. c. xii. s. 156. Kliiber, s. 142.
(z) L. ii. c. xv. 8, 9, 10, 11, 12; c. xx. 48.
(a) A great attempt has been made in Russia and Greece, to rekindle this Spirit
during the existing war between Russia and Turkey.
(b) The Le Louis, 2 Dodson's Ad. Rep. p. 244.
(c) "De fcederibus frequens est qusestio, licitene ineantur cum his qui A serf
religione alieni sunt: quae res in jure natura dubitationem non habet. Nam id
jus ita omnibus hominibus commune est, ut Religionis discrimen non admittat." —
L. ii. c. xv. 8.
Vide ante, vol. i. pp. 15, 64.
" La loi naturelle seule regit les traite6s des nations; la diff6rence de Religion y
est absolument etrangere."-Vattel, 1. ii. c. xii. s. 162.
Vide ante, vol. i. pp. 81, 82, 22.
(d) Vide ante, vol. i. pp. 145-6.
(e) Vattel, 1. ii. c. xii. ss. 157-8-9. Klilber, s. 143.




60    PHILLIMORE ON INTERNATIONAL LAW.
tions, preparatory communications, are in their nature not of a binding
character. Consent must not have been given in error or produced by
deceit, either by misrepresentation (szggestiofalsi) or by concealment of
important facts (sutp2ressio veri.)
The analogy, however, between the Private Contract and the Public
Treaty must not be pushed beyond what the reason of the thing may
warrant.  For instance, all contracts which have been the result of force
or menace may be set aside; but the same observation cannot, without
great limitations, be applied to Treaties.  All Treaties which terminate
a war frequently are, or may be, in a great measure, the effect of the
force exerted by the victor over the vanquished-or may be the result of
a menace of the more powerful to the weaker State.  But Treaties concluded in consequence of these circumstances cannot be held null and
invalid.(f)  If there be any analogy in this respect to the Private Contract, it is rather to that maxim of equity, which considers a contract
entered into to avoid or to stop litigation binding upon the party who
entered into it, though induced to do so by apprehension of the delay,
expense, and uncertain event of a law suit. War, it must be remembered, is the terrible litigation of nations.(g) Moreover, all civilized
countries admit into their systems of private jurisprudence the axiom
" expedit reipublicm ut sit finis litium:"(h) the axiom is equally applicable
*63 - to the *great Republic of Nations; and it is manifest that, if the
['63 ] obligations of Treaties could be avoided upon the plea, that one
of the contracting parties had consented through motives of fear, or
under the influence of superior force, the faith of Treaties —the great
moral tie which binds together the extremities of the globe-would be
rent asunder.  This observation of course does not apply to a case, which
now rarely happens, of personal fear or actual violence operating upon
the representative of the State who signed the Treaty.  Both the rule
and the exception, however, may be illustrated by events of recent history. The resignation of his crown and kingdom, extorted by Napoleon
from Ferdinand VII. at Bayonne, whither he had decoyed that monarch
and his family, was clearly-the duress and condition of the party abdicating being considered-invalid; but the resignation of Napoleon at
Fontainebleau was not extorted by treachery or duress, but was the consequence of defeat in open legitimate war.(i)
Private contracts may be set aside on the ground of, what is technically called by English Law, the want of consideration, the inferences of
fraud and unfair dealing arising from the manifest injustice and want of
mutual advantage.  But no inequality of advantage, no lesion, can
irnvalidate a Treaty. It is truly said by Vattel, " Si l'on pouvait revenir
d'un Trait6, parce qu'on s'y trouverait 16s6, il n'y aurait rien de stable
dans les contrats des nations."(k)
The consent must be reciprocal; therefore the engagement of one party
must be accepted by the other, though the particular epoch and the precise form, unless they happen to be matter of express covenant in the
(f) Grotius, 1. ii. c. xvii. ss. 18-19.
(g) Schmalz, Europ. Vl6kerrecht, 54.   (h) Vide ante, vol. i. p. 274.
(i) Schmalz, pp. 53-4.                 (k) L. ii. c. xii. s. 158.




TREATIE S.                               61
Treaty itself, are unimportant.  The acceptance of one party may precede or follow the engagement of the other, though in the interval it is
competent to the former to retract its consent.
L. The consent may be signified in various ways.(l)  *Some    64
jurists have asserted that the declaration of consent must be spe- [64 ]
cified in writing;(m) but, though this be the usual and most convenient
mode, it cannot be said to be indispensable to the validity of the Treaty.
But the declaration, whether written or oral, must be positive and
clear. 3Mere suppositions and conjectures raise, at the utmost, a probability, but can institute no certain fact between nations.  The consensus
fictus of Civil Law is unknown to International Jurisprudence.
But the consent may be expressed in an instrument either drawn up
in common by the parties to it, or signed separately by them, by an
edict, an order, an ordinance, or letters patent addressed, in virtue of the
Convention, to the subjects of either State.(n)
LI. What may be the lawful subject of a Treaty, is best shown by the
negative statement of what is excluded from this category.(o)
First, it is obvious that a Treaty cannot contain engagements inconsistent with those already entered into with other States.(p)
Secondly, a Treaty may not contain an engagement to do or allow that
which is contrary to morality and justice:(q) it contains a morally impossible condition, which Governments, the "representatives of
the justice, the morality, and the religion of their people, are ['   ]
not entitled to contract for-it is beyond the sphere of their agency.(r)
Thirdly, it may be invalid upon the ground of physical impossibility
existing at the time, or supervening from later circumstances.(s)
LII. Various means have been resorted to, at various times, by various
nations, to secure the sanctity and inviolability of International covenants;
before we consider them, it should be observed, that though it is now
usual to reserve the final settlement of a Treaty negotiating by ambassadors for the Ratification of the Governments whom  they represent,(t)
yet that if the negotiator be a Plenipotentiary, such Ratification cannot
(I) Klfiber, ss. 141-143.
(m) P. J. Neyron, De vi fceederum (Gott. 1798,) iv. s. 23.
Schmalz, Europ. Volkerrecht, s. 52. "Es scheint mir nicht mit Unrecht behauptet, das unter den europdischen Machten nur schriftliche Vertrdige und schriftliche
Genehmigungen als verbindend wfirden."
(n) See Treaty of Commerce between Austria and Russia, 1785.
De Martens, 620-632.
(o) Vattel, 1. ii. c. xii. ss. 160, &c.
(p) Hoffman, ubi supr.
(g) " Par la mdme raison, par le ddifaut de pouvoir, un trait6 fait pour cause injuste ou d6shonnete est absolument nul, personne ne pouvant s'engager i faire des
choses contraires  lah loi naturelle." —Vattel, ib. s. 161.
" Nie kann ein volkerrechtlicher Vertrag Staaten oder Souverane als die Reprasentanten und Trager,des Rechts und der Sittlichkeit, worin auch die religibsen
Interessen eingeschlossen sind, verpflichten."
(r) Heffters, 94.
Vide ante, vol. i. pp. 26-7.
(s) Ib. p. 42.
(t) A Treaty is not usually laid before the British Parliament until it be ratified.
-See Lord Clarendon's remarks in the House of Lords as to the Treaty between
Austria and the Porte, July 24, 1853.




62    PHILLIMORE ON INTERNATIONAL LAW.
be held essential to the validity of the Treaty,(u) unless the necessity for
it has been expressly reserved in the powers given to the ambassador, or
unless, as usually happens, it be the subject of stipulation in the Treaty
itself.(v)
LIII. Sometimes Treaties have received Confirmation (confirmnation,
Bestitigung) when, for some reason or other, doubts have arisen as to
their validity or as to their duration.  The clause so common in Treaties,
*661  c that the former Treaty *shall be considered as if it were part
L     I66] and parcel of the present Treaty, and as if it had been inserted(x)
word for word," does not, according to the opinion of Kliiber,(y) necessarily imply that the whole of the former is incorporated in the present
Treaty; that is to say, it does not necessarily, according to this author,
bind the Guarantees of the new Treaty to the fulfilment of the provision
of the old Treaty; though it does so bind the original contracting parties
to the first as well as to the second Treaty.  Thus, if this author's opinion
be correct, the Guaranteeship(z) of Russia did not extend to the Treaty
of Westphalia, when, in 1799, she became a Guarantee for the Treaty of
Teschen, which referred among others to the Treaty of Westphalia;
though the reference bound other powers who had been contracting parties
to both Treaties.
Sovereigns have sometimes, on their accession to the throne, formally
announced their adhesion to existing Treaties, but by this act, they have
in reality conferred no additional validity upon engagements which were
binding upon them before, and which they were compellable to execute.(a)
Treaties receive sometimes a renewal(b) ( renovatiopactorum, 2renouvellewment, Erneueruny) or prorogation after the term for which they have been
contracted has expired, and sometimes a complete re-establishment (restitutio, re'tablissement, Wi'ecerherstellung) when they have altogether ceased
to be in force from the intervention of War-a cause which will be considered hereafter-or from some other cause. These cases, however, are
rather cases of restoration than of confirmation.
LIV. Among the means which have been resorted to for securing the
performance of Treaties are to be enumerated,
[Xv67]'1. Oaths.(c)
2. Hostages.
(u) Klfiber, s. 142.
(v) " Sed et per hominem alterum obligamur, si constet de voluntate nostra qua
illum elegerimus, ut instrumentum  nostrum  ad hoc speciatim, aut sub generali
notione," &c. —Grot. 1. ii. c. xi. 12.
" Les souverains traitent ensemble par le ministere de leurs procureurs ou mandataires, rev6tus de pouvoirs suffisants, que l'on appelle communement plenipotentiaires. On peut appliquer ici toutes les regles du droit naturel sur les choses qui
se font par commission, &c., tout ce qu'il promet dans les termes de sa commission,
et suivant 1'6tendue de ses pouvoirs, lie son constituant. Aujourd'hui, pour eviter
tout danger et toute difficult6, les princes se reservent de Tatifier ce qui a 6t6 conclu en nom par leurs ministres," &c.-Vattel, 1. ii. c. xii. s. 156.
(x) E. g. The Treaty of Teschen, 1779, so incorporated the Treaties of Westphalia, Breslau, Berlin, Dresden, Paris and Hubertsbourg.
(y) Klfiber, s. 153.              (z) Vide post, "GUARANTEE." 
(a) Vide ante, vol. i. p. 151.
(b) E. g. Treaties of Subsidy. See Vattel, 1. ii. c. xiii. s. 199.
(c) " Apud omnes populos et ab omni avo circa pollicitationes promissa et contractus maxima semper vis fuit jurisjurandi.'"-Grot. 1. ii. c. xiii. 1.




TR EAT I ES.                             63
3. Pledges.
4. Guarantees.
C. Consisting of offering persons as sureties.
I. Choosing Third Powers as Guardians of the Treaty.
The confirmation by oath of the contracting parties was adopted in the
Treaty of Madrid in 1526, between Francis I. and Charles V.; at the
Peace of Cambria, 1529;(d) of Chateau Cambresis, 1559;(e) at the
famous Peace of Munster between Spain and her revolted Dutch colonies
in 1648; at the peace of the Pyrenees in 1659;(f) at the peace of Aix
la-Chapelle between France and Spain in 1668; at the peace of Ryswick
in 1697.(g)  The most modern example is the alliance formed between
France and Switzerland in 1777, and solemnly confirmed by the oath of
the contracting parties in the Cathedral of Soleure.
The oath, now discontinued in practice, was not always a very binding
confirmation, for there are various instances of Roman Catholic Princes
being absolved by the Pope from the obligations of it.  Ferdinand, called
par excellesnce the Catlzol'ic, was so released by Pope Julius II.;(h)
Francis I. by Leo X. and Clement VII.; Henry II. of France by the
Papal Legate Caraffa.(i)  This abuse gave rise to a clause not unusual
in Treaties and other public documents, to the *effect that the contracting party would not attempt to obtain a release from his oath [# 68]
either personally or through the agency of any other person, and that he
would not accept such dispensation if offered to him.(k)
LV. (1)Ilostages (obsides, otages, Geissel) were formerly required and
given as pledges for the performance of the conditions of a Treaty. As
late as the peace of Aix-la-Chapelle in 1748, Hostages were stipulated
for. ()  It is a clear proposition of International Law that any proceeding of rigour against a Hostage, even if he be forcibly seized in time of
war, beyond what may be necessary for the security of his person, is
illegal.
If the giver of the Hostage fail in fulfilling his pledge, it is lawful for
the receiver to retain the hostage; but wholly unlawful, as once the practice was, to put him to death.(n) If the hostage die, the giver is not,
except in the case of an express stipulation, bound to replace him.  The
(d) Article 46.                         (e) Article 24.
(f) Article 124. Schmauss, 709. —" Solemniter tacta cruce, sanctis Evangeliis,
cononibus Miss,', et per honorema suum jurabunt observaturum, se et impleturum
plene realiter, et bona fide omnia in articulis praesentis Tractatus contenta."
(g) Article 38.                 (h) Rousset, Supplement, T. iii. P. i. p. 17.
(i) Vattel, 1. ii. c. xv. s. 223.
(kI) E. g. "Diploma cessionis monarchien Hispanicme," A. D. 1703, in Schmauss,
1163.-" Jureque jurando corporaliter prsestito fidem, nostram quam solemniter
adstrinximus, nullo unquam tempore ant modo a nobis aut allis infringendam omni
quorumlibet qualiumque contradictione, exceptione generali ac speciali restitutione,
dispensatione ac absolutione, etiam Pontificia, aliisque beneficiis Legis seu Consuetudinis aut nominis perpetuo exclusis."
(1) Klfiber, s. 156.
(m) " Sa Majeste Britannique s'engage aussi de son c6t6 h faire passer aupr's du
Roy tres-Chr6tien, aussitot apres les ratifications du present Trait6, deux personnes
de rang et de consideration, qui y demeureront en otage jusques & ce qu'on y ait
appris d'une fagon certaine et autentique, la restitution de l'isle Royale," &c.Wenck, ii. 352-3.
(n) Vattel, 1. ii. c. xvi. ss. 245-61.




64    PHILLIMORE ON INTERNATIONAL LAW.
receiver has been contented with the surety, of the nature of which he
was aware(o) at the time of accepting it.
A more common and as it should seem a better pledge, is the retention
of a place or fort until such time as the condition of the Treaty be fulfilled.
This pledge or pawned thing may be what is legally called moveable
69   property (donner des gages.)  *Poland once placed her Crown
Jewels in the hands of Prussia.  Or the pledge may consist of
immoveable property (donner en engagement:) they may not be actually
placed in the possession of the creditor State, but assigned over by some
instrument without actual delivery, which hypothecates them; but this is
an unusual transaction between States.
The State which holds the pledge is bound to preserve it in good
condition, but may, if the stipulated time elapse without the payment of
the debt or the fulfilment of the condition, appropriate it.  The House
of Savoy hypothecated the Pays de Voaud to the Cantons of Berne and
Freybourg, and on non-payment of the debt they forciby seized and
retained the territory.(p)
Having disposed of that species of guarantee which relates to
hostages, pledges, and hypothecations, we have now to consider that
kind of security which is more usually comprised under the term
Guarantee.
[*70]                  *CHAPTER VII.
TREATIES-GUARANTEE.
LVI. (a)TREATIES may concern not only the contracting parties,(b)
but third parties who may or may not be literally contracting parties in
the first instance, but the protection of whose interest, or the maintenance
of whose(c) status, may be the object of the Treaty.  The consideration
of such Treaties brings us to the very delicate question of Guaranteeship.
The following heads appear to comprise the principal classes of Guarantee:(d)1. A Guarantee that a nation shall maintain a particular status towards
(o) Vattel, 1. ii. c. xvi. s. 255.
(p) Giinther, ii. 154.
Vattel, 1. ii. c. xvi. ss. 241-244.
Kliiber, s. 156.
(a) Deutsches Staats-und Bundesrecht von Zacharia, i. 129-137, should be
consulted for the Guarantee of the German Confederation, both from within and
without. See, too, Schmauss, Corp. Jur. Publ. 1079.
(b) By the Treaty of Aix-la-Chapelle (1748,) the eight contracting parties
mutually guaranteed each other's dominion.
(c) Vide ante, vol. i. p. 132-3.-Intervention as to incorporation of Italian
States of Austria in the German Confederation without consent of the Powers
who signed the Treaty of Vienna.
(d) See the remarkable modern instances of Belgium and Greece, vol. i. pp. 100,
105.




TREATIES.                               65
all other powers, e. g. of neutrality, which is a condition of the newly
erected kingdom of Belgium.(e)
*2. A Guarantee that a particular State shall do a particular
act, e. g. discharge a debt, or resign a territory.               1
3. A Guarantee to defend the particular constitution or territory, or
particular rights, of a country, contra quoscungue.(f)
4. A  Guarantee to defend the particular constitution of a State
generally against all attacks which may assail it, whether Foreign and
External or Domestic and Internal.
Such a Guarantee, being an engagement which binds a foreign power
to take part in the civil quarrels of an Independent State, appears to be
in theory not consistent with the perfect and uncontrolled freedom which
is of the essence of such a State, and in practice to have proved too often
fatal to her liberties and to her very existence.
Having regard, however, to the Treaties of Guarantee relating to the
Protestant Succession in England, which will be presently mentioned,
it seems impossible to deny, that such a Right of Intervention(g) has
been, and may be conceded by one nation to another, without entailing
the loss of legal personality in the nation which concedes it,-without
reducing that nation to the status already discussed,(Jh) of a State so
protected as to be dependent.
This is a construction of Guaranteeship opposed certainly to every
presumption of public law, and one which can only be created-if,
according to modern practice and usage, it can be created at all-by
express words.   Such a Treaty is fraught with mischief to the best
interests both of Public and International Law.
The constitutions of the greatest as well as of the smallest States,
have been at different periods of history the subject of *Gua-    2
rantees, especially against any invasion from  Third(i) Powers,   72 ]
and perhaps in some cases the terms have not extended the principle of
intervention beyond this limit.
The British, the Austrian, the Spanish Empires, as well as the States
of Poland, Geneva, and of minor German principalities, have been all
examples of the application of this principle.
LVII. At the Peace of Westphalia, 1648, France and Sweden, as
well as the various principalities which composed the Germian Empire,
(e) Vide ante, vol. i. p. 104.
Vattel and other writers make a distinction between caution (Surety) and garaznt
(Guarantee.) In the former case, the surety must make good the default of the
principal; in the latter the guarantee is only bound to do his utmost to obtain
the performance of the principal. It would manifestly require an express provision to constitute the Guarantee of a Treaty a Surety in this sense for the performance of its conditions. The distinction, therefore, is not taken in the text of
this work.
(f) Vide post, construction of this term.
(g) It is, perhaps, partly to be inferred from the careful and express renunciation of any such right on the part of the Powers who guaranteed the kingdom of
Belgium. Vide post, p. 78.
(h) Vide ante, vol. i. pp. 91-4.
(i) Vattel, 1. ii. c. xvi. ss. 235-239.
Klidber, ss. 157-8.
Wheaton, pt. iii. c. ii. 12.




66    PIILLIMORE ON INTERNATIONAL LAW.
became Guarantees for that first great settlement of Europe, from  which
a considerable portion of Modern International Law  derives its origin.
Guaranteeship of this kind was then a device of comparatively recent
date for securing fidelity to International engagements, having succeeded
to the more feudal and coarser expedient of appointing Neutral Princes
and Free Towns Conservatores of Treaties.
The Guarantee undertaken by France and Sweden, at this Treaty,
would seem to have necessitated their intervention in the internal affairs
of another nation; for the obligation imposed upon all the "e contractans
et garans," as they were called, is set forth in the 116th Article of the part
of the Treaty signed at Munster, and in the 17th Article of the part signed
Osnaburgh is thus expressed: "Que tous ceux qui out part a cette
transaction soient obliges de defendre et proteger, tous et chacun, les
[*173   lois ou conditions de cette paix,(k) contre gui *que cc soit, sans
[  3    distinction de religion; et s'il arrive que quelque point en soit
viol6, l'offens6 tichera premierement de d6tourner l'offensant de la voie
de fait, en soumettant la cause'a une composition amiable, ou aux proc6dures ordinaires de la justice; et si, dans l'espace de trois ans, le diff6rend ne pent etre termine par l'un ou l'autre de ces moyens, que tous
et chacun des int6ress's en cette transaction soient tenus de se joindre a
la partie les6e, et de l'aider de leurs conseils et de leurs forces a' repousser
l'injure, apres que l'offense leur aura fait entendre que les voies de douceur et de justice n'ont servi de rien; sans prejudice toutefois au reste
de la jurisdiction d'un chacun, et de l'administration comp6tente de la
justice, suivant les lois et constitutions de chaque prince et 6tat."(l)
In the Treaty of Hanover, concluded in 1725 between Great Britain
and Prussia, this Guarantee is expressly recited and confirmed;(m) and
in 1792, the first intervention of Austria and Prussia,(n) in the war of
the French Revolution, was founded upon the obligations contracted by
these States in 1618, at the time when France obtained the sovereignty
of Alsatia; the German sovereigns were invoked in 1792, as the guarantees of the Treaty of WTestphalia; to protect the private property and
rights of jurisdiction of the minor German princes in Alsatia.  Upon
(k) This is a clause usually termed ",contra quoscunque."  Dr. Twiss (Duchies
of Schleswig and Holstein, pp. 124-5,) observes: " No rule of International Law
is more clear than that the convention of guaranty does not apply to the case of
political changes. If, for instance, Denmark had guaranteed to the Princess Anne
of England the undisturbed possession of the British throne upon the death of
William III. contra quoscunque, no casusfcederis would have arisen if the Highlanders
of Scotland had attempted to restore the Crown to the son of James II.; but if
Louis XIV. or Philip V., as Foreign Powers, had sent an army to co-operate with
the insurgents in depriving the Princess Anne of the succession, there would have
been at once an undeniable casus fcaderis. Even an expression so indefinite as
contra quoscunque is limited by the nature of the subject-matter; it may apply to
the slightest international interruption, from whatever quarter it may be threatened; but even a Civil War will not extend its operation to political troubles."'Sed vide post, pp. 75-6-7; and see Vattel, 1. ii. c. xiii. s. 197. "On doit sans
doute defendre son allie contre toute invasion, contre toute violence dtrangere, et
meme contre des sujets rebelles."
(1) Dumont, Rec. des Tr. vol. iii. p. 562.
((m) Schmauss, 2014.
(n) De Martens, 2, 1. viii. s. 338, and note (a).




TREATIES.                                67
this Treaty also, Russia has more than once rested her claim to interfere
in the arrangement of the German constitution.(o)
*LVIII. The Treaty of Teschen in 1779 closed the war which
had broken out in 1777, with respect to the succession to the [    374 
kingdom of Bavaria, and renewed by its 12th Article the Treaty of
Westphalia.  This Treaty of Teschen was concluded under the mediation, specially invoked by the contending parties, of France and Russia,
and by the 16th Article of it these mediatorial Powers were constituted
Guarantees of its provisions; one of which, as has been stated, was the
renewal of the Treaty of Westphalia.
LIX. By the 12th Article of the Treaty of Vienna, concluded between
Austria and Spain in 1725, the latter country bound herself to guarantee
the order of succession in Austria commonly called the Pragmatic Sanction, guarantigitare quoque spondet eum  succeclendl orcdilem, quemn sua
Jaiestas Ccesarea, &c., declaravit et stabilivit.(p)  France bound herself to the same Guarantee by the 10th Article of the Treaty of Vienna,
1738. Austria, on the other hand, reciprocally guaranteed the Order
of Succession to the throne of Spain, in the same Article of the same
Treaty of Vienna, 1725.  Prussia also, under Frederick William  I.,
guaranteed her Pragmatic Sanction.  The result tends to justify the
remark of Frederic the Great, that Guarantees were like filigree work,
better to look at than *to use.(q)  Scarcely had the Emperor
Charles VI. closed his eyes in death, before the vanity of his [i 75
elaborate attempts to engage all nations to secure to his daughter, MIaria
Theresa, the undivided inheritance of her father, was fully manifested~
Every one of these nations, upon the most frivolous pretexts, disowned
the obligations of the solemn Treaty by which they had bound themselves. (r)
The character of the Guaranteeships undertaken by the great European Powers with reference to the Duchies which form an integral
part of the Crown of Denmark,(s) underwent much discussion at a very
recent period.  These Treaties were1. The Treaty containing the British Guarantee, 1720.
2. The Treaty containing the French Guarantee, 1720.
(o) Wheaton's Hist. 346, and 350.
(p) " Suna Majestas COesarea adpromittit, ordinem succedendi in regno Hispanik
receptum, atque per tractatum Trajectensem, per ren-unciationes, item vi quadruplicis fcederis subsecutas, nec non per proesens pacis instrumentum confirmatum,
tueri se, guarantiamque desuper prsestare, et quoties opus, manutenere velle; vicissim Rex Hispanica tueri, et guarantigiare quoque spondet, eum succedendi ordinem, quem sua Majestas Csesarea ad mentem majorum suorum in serenissima sun
domo ex pactis ejusdem antiquis, in forma perpetui, indivisibilis, ac inseparabilis
fidei commissi primogenitura affecti pro universis sune Majestatis utriusque sexus
HIeredibus, et successoribus declaravit et stabilivit, quique subinde ab ordinibus,
et statibus universoerum Regnorum, Archiducatuum, Ducatuum, Principatuum,
Provinciarum, ac ditionum, ad serenissimam domum Austriacam jure hoereditario
spectantium, communi omnium voto susceptus, ac grato, submissoque animo agnitus, atque in vim legis sanctionisque pragmaticae perpetuo valiturwe in publica
monumenta relatus fuit."-Schmauss, t. i. 1986-7.
(q) " Toutes les garanties de mon temps sent comme l'ouvrage de filigrane, plus
propre a satisfaire les yeux qu'a 6tre de quelque utilit6." —Histoire de mon Temps
((Euvres Posthumes,) t. i. c. ix. p. 229, cited by De Martens, 1. ii. c. ii. s. 63, n. (bj)
(r) Wheaton, EIist. pp. 166-170.        (s) Vide note ante, vol. i. p. 464.




68    PHILLIMORE ON INTERNATIONAL LAW.
3. The Treaty of Copenhagen, 1727.
4. The Treaty containing the German and Russian Guarantee, 1732.(t)
LX. When the Parliament of the British Empire had settled the succession to the throne, after the death of Queen Anne, upon the Princess
Sophia, Electress and Duchess Dowager of Hanover (the granddaughter
of James I.,) and upon her issue, with the condition that they should be
members of the Church of England, the Government were unhappily
not content with this domestic pledge for the security of the liberties of
their country, but insisted on its receiving the Guarantee of the Powers,
who became contracting parties to many of the Treaties which were
entered into from the year 1713 to the Peace of Aix-la-Chapelle in
1748; and such a Guarantee was accordingly rendered by France, Austria, Spain, and especially by Holland, in the Treaty of 1713, called the
*76 ] Treaty "tof the Guarantee of the *Protestant Succession and,76[ ] of the Dutch Barrier," in the second article of which the statute
of William III. is recited.(u)
LXI. It may be well to cite in this place the opinions of two eminent
persons, both with no mean pretensions to be heard upon any question
of International Jurisprudence, upon the conduct of Great Britain in
this respect.
The Abbe de Mably remarks:(v)
cIi est surprenant que dans le moment que les Anglois changent leurs
Loix de succession, qu'ils excluent les Stuarts du trone, et qu'ils sentent
F'avantage de soumettre le Prince a la nation, ils se lient eux-mnmes les
mains, en voulant que toute l'Europe s'engage i maintenir et'a defendre
les actes que leur Parlement a pass6s en faveur de la Maison de Hanover.  Cette conduite ne sembla pas prudente aux personnes qui sont
instruites des loix, des principes, et des int6rets des Anglois.  Ils devoient se borner a exiger de leurs voisins qu'ils ne se mdleroient en aucune
fagon de leur gouvernement; et qu'ils ne favoriseroient en aucune mani6re
les personnes qui seroient des entreprises contraires aux actes du Parlement."  Quite in accordance with this opinion is that of Mr. Jenkinson,
afterwards Earl of Liverpool, expressed in his celebrated defence of the
conduct of Great Britain, in 1758:(x)-" The second species of defensive alliance, which subsists between Great Britain and Holland, is that
which was first agreed to, in the Treaty of Barrier and Succession of
October 29, 1709; and again more particularly stipulated in another
treaty, to the same purpose, of January 29, 1713.  The design of this
treaty is the guaranty of the Dutch barrier on the one part, and the
*877I guaranty of the firmest barrier of British liberty-the Protestant
L['7] *succession —on the other.  The stipulations are,' that in case
either should be attacked, the other should furnish, at the requisition of
the party injured, but at his own expense, certain succours there
(t) Twiss, Duchies of Schleswig and Holstein, pp. 120-151.
(u) St. 12 & 13 Winm. III. c. 2.
Schmauss, 1288.
(v) Droit Public, t. ii. p. 156.
(z) Remarks of the Earl of Liverpool, in Discourse on the Conduct of the Government of Great Britain in respect to Neutral Nations, pp. 75-6.-Cabinet of
Scarce and Celebrated Tracts, published at Edinburgh.




TREATIE S.                             69
expressed; and if the danger should be such as to require a greater
force, that he shall be obliged to augment his succours, and ultimately
to act with all his power in open war against the aggressor.'  I pretend
not to make any use of this Treaty in the present case, and only mention
it to give a fuller view of the alliances which subsist between us. Here,
however, I will indulge a wish, that the case of this guaranty, as far as
it relates to the rights of the Crown of Great Britain, may never again
exist.  1 always read with sorrow that there ever was a time when the'Unfortunate dissensions of our people, in a point where the whole of their
hayppiness was concerned, should have made it necessary to add any other
sanction to our laws, or any other security to our constitutional rights,
than such as our own power can afford them.; these days, however, of
shame now, I hope, are passed."
LXII. The doctrine and practice of Guaranteeship, in its proper sense,
i. e. against third powers, has not expired with the last Treaty of
Vienna; our own times furnish us with two instances, as memorable as
any that preceded them, in the newly-created kingdoms of Greece(y)
and Belgium.
By the 4th article of the Treaty concluded at London in 1832 between
France, Great Britain, Russia and Bavaria, it is provided'" that Greece,
under the Sovereignty of Prince Otho and the Guarantee of the three
Courts, shall form  a monarchical, independent State."  The other conditions of the Treaty, especially the limitations which follow with respect
to the future succession to the throne, and the condition that the crown
of Greece shall never be worn by the Sovereign of any other country,
are of course equally under the Guarantee of these Powers.(z)
*LXIII. By the Treaties between Austria, France, Great
Britian, Prussia, Russia, Holland and Belgium, signed at London [ *78]
on the 19th of April, 1839, it is declared that "cLa Belgique formera
urn etat inddpendcant et perpetuellevnent neutre. Elle sera tenue d'observer
cette neutralite envers tous les autres etats."  From the period of the
breaking out of the Revolution at Brussels in 1830 till this concluding
Treaty, a variety of negotiations and a vast number of protocols passed
between the Powers just mentioned, relative to the separation of Holland
and Belgium; and on the 15th of November, 1831, a Treaty was concluded which was in all its essential parts literally the same as that of
1839.  All these negotiations and protocols, as well as the Treaties of
1839, show that the peculiar constitution of Belgium, as an independent
but perpetually neutral state, is under the Guarantee of the Five great
Powers, and the arrangements with respect to the Duchy of Luxemburg
are also under the Guarantee of the Germanic Confederation.
It should be observed that during the progress df the negotiations
respecting Belgium, the intention of future interference with the internal
and domestic affairs of that kingdom was distinctly disclaimed by the Guarantees.(a)
(y) Vide ante, vol. i. p. 105.
(z) lb. p. l00.
(a) See Letters of Austria, Russia, Prussia, and England, to France.-Belgium
Papers, p. 69.




70    PHILLIMORE ON INTERNATIONAL LAW.
[*79]                     *CIIAPTER  VIII.
INTERPRETATION  OF TREATIES.(a)
LXIV. (b)ALL International Treaties are covenants bonxfidei, and
are, therefore, to be equitably and not technically construed.(c)
LXV. The imperfection of language as an instrument of expressing
intention must occasionally, if there were no other reason, render interpretation necessary.(d)
*i80 ]   *But in truth there are other reasons; in all laws and in all
conventions the language of the rule must be general, and the
application of it particular.  Moreover, cases arise which have, perhaps,
not been foreseen, which may fall under the principle, but which are
not provided for by the letter of the law or contract.  Circumstances
may give rise to real or apparent contradictions in the different dispositions of the same instrument, or of another instrument, in  pari materid,
which may require to be reconciled. These are difficulties which may
arise between contracting parties disposed to act honestly towards each
(a). The authorities principally relied upon in this Chapter areINTERNATIONAL JURISTS.
Grotius, I. ii. c. xvi.
Puffendorf, 1. v. c. xii.
Vattel, 1. v. c. xii.
Rutherforth, B. ii. c. vii.
COiMMENTATORS ON THE ROMAN LAW.
ANCIENT.
Donellus de Jur. Civ. 1. i. c. xv.
Pothier on Obligations, p. i. c. i. art. vii., translated and amplified by Evans,
vol. p. 53; vol. ii. p. 35, number 5.
Domat. Pr6l. t. i. s. 2; tr. ch. 12.
MODERN.
Savigny, R. R. i. Viertes Kapitel,
Muhlenbruch, Doctrina Pandect. i. ss. 58-65, s. 115.
PUBLICISTS.
Suarez, De Leg., &c. 1. vi.
Story on the American Constitution, vol. i. c. v.
WRITERS ON ENGLISH LAW.
Broom's Legal Maxims, c. viii. The Interpretation of Deeds and Written
Instruments.
Bacon (Matthew,) Abridgment, tit. Statutes, i. Rules to be observed in the
Construction of a Statute.
Wildman's International Law, i. pp. 177-185.
(b) Grot. 1. ii. c. xvi. De Interpretatione.
(c) Ib. ii. 1. " Discrimen actuum bonwe fidei et stricti juris, quatenus ex jure et
Romano, ad jus gentium non pertinet."
Maltass v. Maltass, 1 Robertson's Reports, p. 76.
(d) " Sed quia interni actus per se spectabiles non sunt, et certi aliquid statuendum est, ne nulla sit obligatio, si quisque sensum quem  vellet sibi affingendo
liberare se posset; ipsa dictante naturali ratione jus est ei, cui quid promissum est,
promissorem cogere ad id quod recta interpretatio suggerit, nam alioqui res exitum
non reperiret: quod in moralibus pro impossibili habetur." —Grotius, 1. ii. c. xvi. s. 1.




INTERPRETATION OF TREATIES.                             71
other. But they may not be so disposed; one of them may endeavour
to avoid his share of the mutual obligation.  Indeed there is no need
for ci priori reasoning on a subject amply demonstrated, both in the
covenants of individuals and the Treaties of States, to be a matter of
practical necessity.
LXVI. The interpretation is the life of the dead letter; but what is
meant by the term " interpretation?"  The meaning which any party
may choose to affix? or a meaning governed by settled rules(e) and fixed
principles, originally deduced from  right reason and rational equity,
and subsequently formed into laws? Clearly the latter. The necessities of the great society of States as much demand such laws for the
exposition of their Treaties, as the necessities of each individual State
for the covenants of their subjects. The rules by which International
covenants are interpreted, have been collected by jurists both in the
Roman law itself, by commentators upon that law, and in the writings
of International Jurists.  Grotius, Puffendorf, Vattel, and Rutherforth,
have each written chapters upon this subject, which have obtained general
approbation from  their manifest equity of *the doctrines which
they contain, and the clear manner in which they are expressed. [ *81 
But great advantage is to be derived from  the writings of Suarez and
D)onellus, Pothier and Domat, who have treated the subject of the interpretation of laws and covenants in a manner, which combines the profoundest reasoning with the most perspicuous arrangement. The value
of such writers, as expounders of International as well as of Public
Law, has already been dwelt upon.(ee)
Sound principles upon this subject are moreover to be found scattered
up and down the pages of the Roman Law, with respect to the interpretation of contracts,(f) laws, and testaments.  The Roman lawyers were,
indeed, apt to confound the limits of interpretation and of explanation by
a new  law, but they were careful not to apply to the Public Treaty
(ptbTica conventio)(g) the peculiarities attending the forms and rules of
the private covenant.(A)  There is a manifest distinction between Laws,
and Covenants or Treaties, which modifies in some degree the application
of the rules of interpretation, transferred from the former to the
*latter.  The Law enacted by the Supreme Power of the State is [ 82 
(e) Vattel, ib. s. 265.                    (ee) Vol. i. p. 35.
(f) Savigny remarks, in a very recent work (Obligationenrecht, II. 189,) that
with respect to contracts, these principles are of a very general character, and
scarcely afford any aid beyond that which an intelligent and dispassionate consideration of each particular case would discover. This may be so; but the circumstance adds to their value as rules of Interpretation of Contracts between States
having no common superior.-Vide ante, vol. i. c. ix.
(g) Dig. ii. 14, 5. De pactis.
(h) Gains, iii. 94. Having remarked that only Roman citizens could validly
contract in the formula, " Spondes? Spondeo," continues, " Unde dicitur, uno casu
hoc verbo peregrinum quoque obligari posse, velut si Imperator noster Principem
alicujus peregrini populi de pace ita interroget: Pacem futuram spondes? vel ipse
eodem modo interrogetur.  Quod nimium subtiliter dictum est: quia si quid adversus
pactionemn fiat, non ex stipulatu agitur, sed jure belli res vindicatur."  This passage is
cited by Savigny, R. R.  310, n. c. It affords an additional proof that the Romans
were not ignorant of International Law.-Vide ante, vol. i. Pref. vii. viii.: p. 31,
&c.; App. I.




72    PHILLIMORE ON INTERNATIONAL LAW.
to be interpreted according to the intention of that one power.  The Covenant or Treaty contracted by two or more parties is to be interpreted with
reference to the intention of them all-"- conventio seu pactio est cluorumn
velplurium in idem placitum consensus."(i)  It is proposed to give a concise statement of those leading principles and rules, which appear to be
sanctioned by the reason of the thing, by usage, by the authority of jurists,
and by the rules and analogies of the Roman Law,(k5 with respect to the
interpretation of Treaties.
LXVII. The general heads under which, for the sake of perspicuity,
we may range the principles and rules of Interpretation, are the following:a. Authentic Interpretation, that is, the exposition supplied by
the Lawgiver himself.(Z)
it. Usual Interpretation, that which is founded upon usage and
upon precedent.
y. Doctrinal Interpretation; that which is founded upon a scientific exposition of the terms of the instrument, and which, according to many jurists, is the only interpretation properly so called.
This again admits of a sub-division into, 1. Grammatical, and, 2.
Logical exposition.
LXVIII. Authentic.Iterpretation, in its strict sense, means the exposition given by the Lawgiver himself; so far it is, of course, inapplicato the case of Treaties; but this kind of interpretation generally takes
the form of a ntew law, reciting and removing the doubts of the old one;
and this mode of interpretation may, of course, be adopted in the case of
Treaties.  The contracting powers may promulgate a subsidiary
[ *83] *and explanatory Treaty, the preamble of which, like the preamble
of a Statute, may be declaratory with respect to existing doubts upon the
construction of a former convention.  But this is, in fact, not so much a
particular mode of Interpretation, as the enactment of a new law, or the
conclusion of a new Treaty, as the case may be.
LXIX. Usual Interpretation is, in the case of Treaties, that meaning
which the practice of nations has affixed to the use of certain expressions
and phrases, or to the conclusions deducible from their omissions, whether
they are or are not to be understood by necessary implication.  A clear
usage is the best of all interpreters between nations, as between individuals; and it is not legally competent to either nation or party to recede
from its verdict.(n)
(i) Dig. ii. 14, I. 1.
Bowyer's Third Reading.
(k) Vide ante, vol. i. cc. iii. viii. pp. 14 —64.
(1) Cod. i. 14, 12. "' Tam conditor quam interpres legum solus Imperator just5e
existimabitur."
(m) "Minime6 sunt mutanda, qum interpretationem certain semper habuerunt."
-Dig. I. 3, 23.
" Si non appareat quid actum est: erit consequens ut id sequamur quod in regione in qua actum est frequentatur." —Ib. L. 17-34.
"In obscuris inspici solet, quod verisimilius est, ant quod plerumque fieri solet."
-lb. 114.
" Si de interpretatione legis qunratur, in primis inspiciendum est quo jure civitas




INTERPRETATION OF TREATIES.                            73
LXX. Doctrinal Interpretation  is, as has been said, either, 1. Grammatical or Philological; or, 2. Logical; and first,As to Grammatical Interpretation, we must not confound translation
and etymology with interpretation. It has been well observed(n) that
though it may not be easy to determine with exact precision where the
province of the grammarian and the lexicographer ends and that of the
interpreter begins, and though their provinces may be scarcely distinguishable upon their confines, yet that in their remotest extremities, and
for practical purposes, they are sufficiently distinct.  A competent knowledge of the language in which the covenant is *written is, in
fact, necessarily supposed to precede or accompany the work of [*84 ]
interpretation; and with respect to etymological refinements, they can
but rarely have any place in the legitimate construction of a law or contract: the meaning of the words employed by the lawgiver, or by the
parties, is to be sought in the common usage and custom, which indicate
the consent of those who use them, that they should bear a particular
meaning.(o)
It certainly may happen, that the meaning affixed by contemporaneous
use and practice, upon the particular words employed, may have undergone,
through lapse of time and change of fashion, so much subsequent alteration, that the due construction of the instrument, may require a knowledge of the antiquated as well as of the present use of the words, though
such an instance would probably be of an exceptional character. There
are, however, certain general rules of literal interpretation, which have
been sanctioned by all jurists, and which should be mentioned in this
place.
1. The principal rule has been already adverted to, namely, to follow
the ordinary and usual acceptation, the plain and obvious meaning of the
language employed. This rule is, in fact, inculcated as a cardinal maxim
of interpretation equally by civilians, and by writers on International
Law.
Vattel says that it is not allowable to interpret what has no need of
interpretation. If the meaning be evident, and the conclusion not absurd,
you have no right to look beyond or beneath it, to alter or add to it by
conjecture.  Wolff observes, that to do so is to remove all certainty from
human transactions.(p)  To affix a particular sense, founded on etymoretro in ejusmodi casibus usa fuisset: optima enim est legum interpres consuetudo.
-Ib. i. 3, 37.
"' Nam Imperator noster Severus rescripsit: in ambiguitatibus, qun ex legibus
proficiscuntur, consuetudinem, aut rerum perpetuo similiter judicatarum autoritatem, vim legis obtinere debere."-Ib. 38.
(n) Rutherforth, b. 2, c. vii.            (o) Rutherforth, b. 2, cc. 7-9.
(p) " Standum omnino est iis, quae verbis expressis, quorum manifestus est significatus, indicata fuerunt, nisi omnem a Vegotiis humanis certitudinem removere
volueris."-Jus Nat. part vii. n. 822.'" Non aliter a significatione verborum recedi oportet, quam cum manifestum est,
aliud sensisse testatorem." —Dig. xxxii. i. 69.
Upon this passage, Donellus remarks, " De testatore hoc scriptum est in I. non
aliter. D. de leg. 3, sed multo magis ad legislatores pertinet, qui intelligentes cum
sint, et in commune quid praecipiant et consulant, dant operam, ut qutam maxime
significantur et perspicu6 loquantur, ut intelligantur ab iis, quibus consultum, et
quos eosdem legi parere volunt, ac propter peritiam loquendi et doctrinam rerum
OCTOBERo 1855. —6




74   PPHILLIMOIRE ON INTERNATIONAL LAW.
logical *or other reasons, upon an expression, in order to evade
*'85] the obligation arising from the customary meaning, is a fraudulent subterfuge aggravating the guilt of the fcedifragous party, "g fraus
enim adstringit non dissolvit perjurium."(g) Vattel cites as instances of
such conduct, the act of a Turkish Emperor, who having promised a man
to spare his head, caused him to be cut in two, through the middle of the
body; and the act of Tamerlane, in ordering the soldiers, whose blood he
had promised not to shed, to be buried alive.
In such cases as these, the fraud in flagrant; but the principle, by
which they are condemned, applies to all cases in which an attempt is
made,
" To palter with us in a double sense,
To keep the word of promise to our ear,
And break it to our hope."(r)
2. The construction is to be derived from a due consideration of the
language of the whole instrument, and not from that of particular portions or sentences(s) of it, or in the language of Donellus,(t) t"antecedentia ipsius legis et sequentia in primis spectanda, ex his ambiguitas
siape explicatur."(u)
[ *86    *It may be necessary to affix a different signification to the
[186]  same term  in different parts of the same instrument, the term
being construed according to the subject-matter, pro subjecta rnateria.(x)
Vattel illustrates this position by an example, showing that the word
day, might be employed in two meanings in one and the same Treaty.
It might be stipulated in a Treaty that there should be a truce for fifty
days, upon the condition, that during eight successive days the belligerent parties should, through their agents, endeavour to effect a reconcilimulto facilihis id consequi possunt, quhm privati testatores. Unde intelligimus, si
verbum idem proprie quid significet, et aliud improprie sen abusive, kropriam significationem verbi sequendam esse. Sed hoc, ut dixi hactenus, nisi appareat aliud
sensisse legem." —Comm. De Jur. Civ. i. c. 15, 9, 43.
" Verbum hoc: si quis, tam masculos quam feminas complectitur." —Dig. L. 16,
1. (De Verborum significatione.)
"Nurus appellatio etiam ad pronurum et ultra porrigenda est."-Ib. L. 16, 50.
(g) Cic. de Off. 1. 3, c. 32, 113.
(r) Macbeth, Act V. sc. vii.                 (s) Vide ante, vol. i. p. 224.
(t) Comm. de Jur. Civ. i. 15, p. 43.
(u) "Incivile est, nisi totA. lege perspect%, uni aliqua. particuli ejus proposit.
judicare vel respondere."-Dig. i. 3, 24.
"Incivile, id est iniquum et contra jus." —Donellus, Comm. de Jur. Civ. 1. 13;
p. 32.
Vattel, 1. 2, c. 17, 285.
(x) " Precter hec multa reperimus tractata et de petitione hereditatis, et de distractis rebus hereditariis, et de dolo preterito, et de fructibus, de quibus, quum
forma senatusconsulto sit data, optimum est, ipsius, senatusconsulti interpretationem facere, verbis ejus relatis."  Then follow the words of the S. Consultum,
and the rule deduced is, " Aptanda est igitur nobis singulis verbis senatusconsulti
congruens interpretatio."-Dig. v. 3, 20, 6.
"Utrum autem omne pretium restituere debebit bonm fidei possessor, an vero
ita demum, si factus sit locupletior? videndum; finge pretiumn acceptum vel perdidisse, vel consumsisse, vel donasse. Et verbum quidem: pervenisse, ambiguum
est, solumne hoc contineat, quod prima ratione fuerit, an vero et id, quod durat?
Et puto sequentem, clausulam  senatusconsulti sequendam, etsi hea sit ambigua,
ut ita demum computet, si factus sit locupletior." —Ib. s. 23.




INTERPRETATION OF TREATIES.                            75
ation; the fifty days of the truce would be days and nights, or days of
twenty-four hours, according to the ordinary legal computation; but it
would be irrational to contend that the condition would not be fulfilled
unless the agents of the belligerent parties were, during the eiyht days,
to labour night and day without intermission,
3. Words of art, or technical words are to be construed according to
their technical meaning. This is as universal a maxim as any that can be
found in jurisprudence. It finds its application in International Jurisprudence chiefly upon questions of geographical or local distinctions.(y)
LXXI. The principles which have been laid down may suffice for the
due interpretation of those Treaties, in which the language clearly expresses the intention of the contracting *parties, and with respect [*87
to which there is no circumstance which prevents us from recognizing this intention so expressed, as containing the true meaning of the
contract.
LXXII. We have now to consider those cases in which the language(z)
employed gives rise to a doubt as to the intention of the contracting parties, and therefore requires for its elucidation a logical interpretation.
This doubt may be occasioned either by the uncertainty or by the impropriety of the language.
Each of these divisions may admit of separate rules of interpretation.
There are, however, certain general rules which may be said to be equally
and without distinction applicable to both.
LXXIII. (a)First,-The rule which has already been adverted to, of
deriving the interpretation of a particular passage from a comparison
with the whole context of the instrument, and which mode of interpretation belongs as much to the logical as to the grammatical division of
the subject.   Mr. Wildman illustrates this position by the following
example: —   The ninth article of the Treaty of Utrecht provided, that
the port of Dunkirk should be destroyed:'Nec dicta munimenta portus
moles aut aggeres denuo unquam reficiantur.' The plain intention of
this stipulation was, to prevent the existence of a French port of military
equipment in the midst of the Channel. The King of France, while he
was destroying the port of Dunkirk, *in accordance with the
article of the Treaty, was constructing at Mardick, at the dis- [88 ]
tance of a league, another port of greater dimensions and importance.
The English Government remonstrated upon the absurdity of putting
such a literal construction upon the article as would entirely defeat its
object;(b) and the French Government ultimately acquiesced, and dis(y) Grot. II. 16, 13, III. 20, 33. Vattel, iv. s. 33. Sir L. Jenkins, ii. 736.
(z) "Scripti et voluntatis frequentissima inter consultos queestio est: et pars
magna controversie juris hinc pendet." —Quintil. Inst. Orator, lib. vii. c. 6.
(a) " Deprehenditur sententia angustior seu lex plus scripsisse, minus sensisse,
guatuor ex rebus; quarum in singulis si verba ex sententiaf temperari, nec longius
produci animadverterimus, tum veram esse legem interpretationis quam dixi intelligemus. Deprehenditur igitur ex his rebus: (1.) ex aliis partibus ejusdem legis;
(2.) ex ratione legis; (3.) ex vequitate; (4.) ex aliis legibus. Quae omnia cum ad
sententiam et vim legis cognoscendam pertineant, diligenter in omnibus rebus
qunrenda et spectanda sunt."-Donellus, Comm. de Jur. Civ. i. 13, p. 31.
Dig. L. 16, 126, contains a good illustration of the rule.
(b) Grotius, ii. 16, xx. 2, 3.




76         PHILLIMORE ON INTERNATIONAL LAW.
continued the works.(c) It was stipulated by the fourth article of the
Treaty between France and England, concluded at the Hague in 1777,
that no new port should be formed within two leagues of Dunkirk and
Mardick."(d)
Secondly,(e) —The rule of considering the ground or reason (ratio legis)
in which the Treaty originated, and the object of those who were parties
to it.  This is a less safe and less certain mode of interpretation, and
one which requires more caution in its use and application.
Thirdly,-The rule of instituting a comparison between the Treaty in
dispute and other Treaties, whether prior, posterior, or contemporary,
upon the same subject and between the same parties.  This is a source
from which the intention of the contracting parties may generally be
fairly and safely derived; at all events it may be derived from'this source
in a less suspicious manner, than from a reference to those facts and circumstances, (themselves, perhaps, a matter of dispute,) which immediately preceded the conclusion of the Treaty.(f)
*8 *Fourthly, —The rule of having regard to the consequences,
[*89 ] to the justice or injustice, advantage or disadvantage, which
would ensue from affixing a particular meaning to the doubtful expressions.
This is, indeed, a mode of interpretation to which recourse must be
still more sparingly and more cautiously had.
Fifthly,-When a provision or clause in a Treaty is capable of two
significations, it should be understood in that one which will allow it to
operate, rather than  in that which will deny  to it effect.(g)  Thus,
according to Municipal Law, if in a partition between Peter and Pacul
it is agreed that Peter shall have a way over his land, though in strict
grammatical construction this would mean his own land; yet as in that
sense the agreement would be nugatory, it must be construed to mean
the land of Paul.(h)  This rule is perhaps a corollary from  that which
(c) Flass. iv. 388, et seq.
(d) Wildman's Intern. Law, vol. i. p. 178.
(e) "' Si generalem aliquam orationemr legis alia pars ejusdem legis nominatim
non mutabit, aut minuet: secundo loco ratio legis consulenda est. Ex hac prsecipue
voluntas et sententia legis perspicitur. Quinimo ratio nihil est, nisi voluntas legis:
siquidem ratio et causa legis est id, quod lex sibi propositum habuit, ut legem
constitueret; id, propter quod lex lata est, et sine quo lata non esset; denique quod
lex in jure constituendo consequi voluit."-Donellus, Comm. de Jur. Civ. i. 13, p.
32. Grot. ii. 16, 8.
(f) "Non est novum, ut priores leges, ad posteriores trahantur." —Dig. i. 3, 26.
"Ideo, quia antiquiores leges ad posteriores trahi usitatum est, senmper quasi
hoc legibus inesse credi oportet, ut ad eas quoque personas, et ad eas res pertineant, quae quandoque similes erunt."-Ib. 27.
" Sed et posteriores leges ad priores pertinent, nisi contrarise sint; idque multis
argumentis probatur." —Ib. 28.
(g) " Quoties in stipulationibus ambigua oratio est, commodissimum  est id
accipi, quo res, qua de agitur, in tuto sit."-Dig. xlv. i. 80.
(h) Pothier (Evans' transl.) i. p. 54.
"Si tibi pecuniam donassem, ut tu mihi eandem crederes, an credita fieret?
Dixi in hujusmodi propositionibus non propriis verbis nos uti; nam talem contractum neque donationem esse, neque pecuniam creditam; donationem non esse,
quia non ea mente pecunia daretur, ut omnimodo penes accipientem  maneret;
creditam non esse, quia exsolvendi causa magis daretur, quam alterius obligandi.
Igitur si is, qui pecuniam hac conditione accepit, ut mihi in creditumr daret accep



INTERPRETATION OF TREATIES.                               77
has been already stated, viz., that the intention, rather than the words,
of the contracting parties is to be considered.  Both rest on the presumption of common sense, that no contract is entered into with the
intention of being nugatory.(i)
Sixthly,-When the same provision or sentence expresses *two
meanings, that one which most conduces to carry into effect the [ 90 
end and object of the Convention, should be adopted.(k)
Seventhly,-An ambiguity in the terms of a Convention may sometinles,-due regard being of course had to the subject-matter, —be
explained by the common use of those terms in the country, with respect
to which more especially the engagement is made.(l)
Eighthly,-The rule, that the influence and authority of usage in the
interpretation  of private covenants, is such, that customary clauses,
though not expressed, are held to be contained therein, is in its spirit
applicable to International covenants.(m)
LXXIV. We have now to consider the cases in which doubt arises
from the uncertainty of the expression: and first, as to the nature of this
uncertainty.  It will generally be found to arise either from-1. inconmpleteness; 2. or ambfiguity.
LXXV. The uncertainty  caused by incompleteness, partakes of the
character of a speech interrupted, before the thought intended to be conveyed by it has been fully uttered.(n)
The Roman Law furnishes instances of such inconmpleteness, referring
to cases in which the law has required a deed or act of business to be
attested by witnesses, but has omitted to specify the number;(o) or
where a testator has required a sum'of money to be paid, but [91
omitted to specify the amount or the coin.(p)
LXXVI. The uncertainty arising from ambiguity is more important
tam dederit, non fore creditam; magis enim meum accepisse intelligi debeo. Sed
bhec intelligenda sunt propter subtilitatem verborum; benignius tamen est, utrumque valere." —Dig. xii. i. 20.
(i) 1" Omnia hominum facta ad scopum aliquem atque finem tendunt, unde sibi
vel aliis utilitatem quandam expectant."-Cic. de Fin. 1. i. c. 10.
(k)' Quoties idem sermo duas sententias exprimit, ea potissimum accipietur,
quae rei gerendae aptior est."-Dig. L. 17, 67.
Compare also Dig. xxiv. i. 52. Dig. xix. ii. 15, 4. Dig. xix. ii. 18.
(1) "Semper in stipulationibus et in ceteris contractibus id sequimur quod
actum est. At si non appareat, quid actum est, erit consequens, ut id sequamur,
quod in regione, in qua actum est, frequentatur."-Dig. L. 17, 34.
(m) " In contractibus tacite veniunt ea quae sunt moris et consuetudinis."-Pothier (Evans's Trans.) vol. i. p. 56. " In obscuris inspici solet, quod verisimilius
est, aut quodplerumque fleri solet." —Dig. L. 17, 114.
(n) Savigny, R. R. i. 36.
(o) Nov. 107, c. 1. In the preface to this novel, it is remarked that the wills of
testators were often so imperfectly expressed, that they required Diviners rather
than Interpreters:'" Eig rocavrriv do'Sdctarv tiOov, o-'rE tt 6 v rE o V #aXXov, Ep plvtov ara
rpo0-ZeOCat."  So the English lawyers have a maxim, " Divinatio non interpretatio
est quee omnino recedit a literS."
(p) "Et si plures fuerint testes adhibiti, sufficit solennem numerum exaudire.".     "Sed et si notam postea adjecerit legato vel sua voce vel litteris, vel
summam, vel nomen legatarii, quod non scripserat, vel nummorum qualitatem, an
recte fecerit? Et puto etiam qualitatem nummorum posse postea addi; nam et si
adjecta non fuisset, utique placeret conjectionem fieri ejus, quod reliquit, vel ex
vicinis scripturis, vel ex consuetudine patrisfamilias vel regionis."-Dig. xxviii.
i. 21.




78    PHILLIMOIRE ON INTERNATIONAL LAW.
in its character and more frequent in its occurrence. It is of two kinds,
1. The ambiguity of single expressions (singulorum  verborumr;) 2. The
amnbiguity which springs from  the general construction (compositione
orationis) of the instrument.(q)
LXXVII. The ambiguity of single expressions arises when one object
only is intended to be designated, but the expression used for the purpose embraces more than one.  In civil affairs this happens more frequently with respect to the testaments and contracts of individuals, than
with respect to public laws; but the Treaty or International Covenant,
it must be remembered, partakes of the character both of a law and a
contract. The Roman Law suggests as instances of this kind of ambiguity, testaments in which the slave Stichus is bequeathed as a legacy,
Titius is named as legatee, and the farm  of Cornelius(r) is the subject
of the bequest; but there are several slaves named Stichus, several persons named Titius, several farms designated the farm of Cornelius.
Or it may happen that the expressions relate to some abstract
[    ]2 e*idea, a class of things or persons, and then the ambiguity arises
either from the fact, 1. that the expression used has various and different significations, like the expressions puer, farmilia, potestas, prwscriptio, in the Roman Law.(s) 2. that it has a restricted (stricta,) and an
extensive (lata) signification, as the words cognatio, pignus, hlypotheca,
adoptio had in the Roman Law.(t) The interpretation applied to these
two kinds of ambiguity is usually called by jurists declaratory (declarativa.)
LXXVIII. The ambiguity which arises from the general construction
(compositione  orationis,) was not unnoticed by the Roman lawyers, both
with respect to laws, and to the instruments of private business.
The former is, indeed, well illustrated by an instance which occurs in
the Digest itself, in which the jurist, after stating various questions
requiring the application of a principle of law, ends the paragraph by
the words mihi contra videtur: the interpretation depends entirely on the
question, whether these words relate to the whole of the foregoing paragraph, or to a part of it.(u)
**93 1   CCicero(x) puts a well-known case of ambiguity relating to -private instruments.  In the direction given by a testator to his heir
(q) Donellus, Com. de Jur. Civ. i. p. 43.
Savigny, R. R. i. 36.
Dig. xxviii. 1, 21, 1, vide ante, n. 3.
(r) Dig. xxx. 39, 6.
(s) Savigny, R. R. i. s. 36.
Dig. L. 16, 195, Familice appellatio-varie accepta est, nam et in res, et in personas diducitur, &c.
Cod. iii. 39, 5. The word prescriptio is used to signify either a legal pleading,
defensive plea, or prescription.
Ib. 5, 13. Use of the phrase, si tamen extant, may mean, if they are not destroyed,
or if they have not been alienated by the husband (extant apud maritum.)
(t) Dig. i. 7, 1, s. 1.  "' Quod adoptionis nomen est equidem generale, in duas
autema species dividitur," &c.
Ib. viii. 2, 23. " Quodsi ita sit cautum, ne luminibus oqlciatur, ambigua est scriptura, utrumne, his luminibus officiatur, quae nune sunt an etiam his, qua postea
quoque fuerint."'
(u) Dig. xliv. 3, 2.
(x) "Ex ambiguo autem nascitur controversia, quum, quid senserit scriptor,




INTERPRETATION OF TREATIES.                               79
with respect to a certain weight of silver plate to be given to his (testator's) wife, the bequest being so worded that the collocation of the words
(quce volet) left it doubtful whether the selection of the particular plate
rested with the heir or the wife.  The rules of interpretation, it may be
observed, which Cicero suggests are much the same as those which are
laid down in this chapter.
LXXIX. However different these forms of doubt, arising from the
incomypleeteness or ambiguzity of an instrument, may be, they have this
feature in common, that they offer an obstacle to the full understanding
of the intention of the framers of the Treaty in which they occur.
Whether this obstacle has arisen from  the want of clearness in the
thoughts, or in an imperfect mastery over language in the provisions of
the Treaty, a logical inter2oretation is equally needed; and for this purpose the application of the general rules, already laid down, must be first
resorted to.
LXXX. With respect to difficulties of construction arising from both
the foregoing sources of doubt, two general rules are applicable.(y)
1. That the contracting party, who might and ought to have expressed
himself clearly and fully, must take the consequences of his carelessness,
and cannot, as a general rule, introduce subsequent restrictions or extensions of his meaning.(z)
*2. That what is sufficiently declared must be taken to be
true, and to have been the true intention of the party entering [    ]
into the engagement.
LXXXI. Under the second branch of logical interpretation, we have
obscurum est, quod scriptum duas pluresve res significat, ad hune modum: Paterfamilias, quum filium heredem faceret, vasorum argenteorum centum pondo uxori
sume sic legavit: heres meus uztori macer vasorugm argenteorumn pondo centurn, quce volet,
dato. Post mortem ejus vasa magnifica et pretiose cselata petit a filio:mater. Ille
se, quie ipse vellet debere dicit. Primum, si fieri poterit, demonstrandum est, non
esse ambigu6 scriptum, propterea quod omnes in consuetudine sermonis sic uti
soleant eo verbo uno pluribusve in eam sententiam, in quam is, qui dicet, accipiendum esse demonstrabit. Deinde ex superiore et ex inferiore scripture docendum
id, quod quseratur, fieri perspicuum.  Quare si ipsa separatim ex se verba considerentur, omnia, aut pleraque ambigua visum iri; quae autem ex omni considerata
scriptur' perspicua fiant, huec ambigua non oportere existimari.'"-De Invent. 1. ii.
c. 35, 40.
(y) Vattel, ib. ss. 264-266.
(z) " In stipulationibus quum quceritur quid actum sit, verba contra stipulatorem interpretanda sunt."-Dig. xlv. i. 38, 18.
1" Yeteribus placet, pactionem obscuram vel ambiguam venditori et qui locavit, nocere,
in quorumfuit potestate legempertiifs conscribere."-Dig. II. 14, 39; et vide ib. xviii.
1, 21; L. 17, 172; xviii. 1, 33.
Mr. Evans very justly observes, in a note to his edition of Pothier on Obligations, that " The rule of the English Law is directly the reverse, and the words of
an engagement are to be construed most strongly against the person engaging."
Ie adds that " These two opposite rules have probably both resulted from the
same maxim, that verba ambigua fortius accipiuntzr contra proferentem. By the
Roman Law, the words of the stipulation were necessarily those of the person to
whom the promise was made; the person promising, only assented to the question
proposed by the person stipulating. There is nothing similar to this in the covenants and engagements used in England; but an indenture is the deed of both
parties, and the words it contains are taken as the words of both, except as to
those parts which are in their nature only applicable to one of them."-Vol. i. p.
58. See, too, Savigny, Obligationenrecht, II. 193-4-5, who expresses himself
exactly to the same effect.




80    PHILLIMORE ON INTERNATIONAL LAW.
to consider cases of doubt, arising from the impropriety of the expression
employed. That is to say, cases in which the expression does convey a
meaning, and, abstractedly considered, an unambiguous meaning, but
one which, when the circumstances are considered, evidently does not
convey the meaning intended by the author or authors of the instrument
in which it occurs.
In such cases is the word or the intention to prevail?  It must be
answered, that as the only function of the word is to express the intention, to sacrifice the latter to the former is to prefer the means to the
end. The Roman jurists justly said of laws, "tNon hoe est, verba earum
tenere, sed vim ac protestatem;"(a) and not less justly of contracts, "In
[*95] conventionibus *contrahentiumn   voluntatem  potius, quam  verba
[95 ] spectari placuit."(b)
LXXXII. Cases of this character exhibit a much less varied form
than those in which the doubt arises from the uncertainty of the expression.
The imipropriety of the words to express the meaning arises, when the
words convey more or less than the meaning of the person using them.
In the former case the impropriety of the expression is rectified by a
narrowing or restrictive interpretation (interpretatio restrictiva), in the
latter by a widening or extensive interpretation (interpretatio extensiva).
LXXXIII. The object of both kinds of interpretation is identical,
namely, to bring the expression in unison with the thought, and the
necessity and justification of both is founded upon the hypothesis, that
the thought is as demonstrably clear as the expression is evidently improper. Although, therefore, this kind of interpretation has been ranged
under the class designated as logical, it manifestly is also of an historical
character, necessitating a recurrence to the record of the facts which preceded or accompanied the formation of the Treaty; and here again we
must have recourse to the general rules of interpretation which have
been already laid down.
In the application, equally of the restrictive as of the extensive modes
of interpretation, the most scrupulous caution is to be observed, lest the
true bounds of the doctrine which we are considering be overpassed, and
inference(c) or analogy(d) be substituted for interpretation, in which
case it is clear, that the expression is not rectified by being brought into
unison with the idea, but that a new idea is substituted by the interpreter
in the place of that which was present to the mind of the framers of the
Treaty.
(a) Dig. i. 3, 17.
"Verbum, ex legibus sic accipiendum est: tam  ex legum sententia, quam ex
verbis."-Dig. L. 16, 6.
" Sed etsi maximb verba legis hunc habeant intellectum, tamen mens legislatoris
aliud vult."-Ib. xxvii. 1, 13, 2.
"Non oportere jus civile, calumniari neque verba captari, sed qua mente quid
diceretur, animadvertere convenire."-Ib. x. 4, 19.
(b) Dig. L. 16, 219.
(c) Savigny, R. R. i. s. 37.
(d) "Analogia preeter legis argumentumn novi aliquid inducimus, ideo, quod id
quoque voluisse legislatorem probabile sit: quse quidem res est et discriminis et
cautionis plenissima."-Muhlenbruch Doctrina Pandect. 1. 1, s. 64.




INTERPRETATION OF TREATIES.                             81
*LXXXIV. With respect to the mode of interpretation, which
has been designated as extensive, Vattel, agreeing with G0rotius ['96]
and Puffendorf,(e) is of opinion that where the sufficient and only reason
of a provision is undisputed and certain, such provision may be extended
to cases to which the same(f) reason applies, although the provision be
not comprised within the signification of the terms employed. This principle is sometimes called, an adhering to the spirit rather than the letter.(g)  The Koran forbad wine to the Mahometans, and in so doing
forbad all intoxicating liquors. It was a provision in a Treaty that a
certain city should not be enclosed within walls: at the time when the
Treaty was made, walls were the only species of fortifications in use; it
would not be lawful to fortify that city by means of fosses and earthworks, because the spirit and intention of the Treaty was to prevent the
fortification of the town.  Sempronius willed in his last testament that
if the child of his then pregnant wife should die, Curius should be his
heir. The testator died, but his wife proved not to be pregnant. Are
the heirs under an intestacy, or Curius, to possess the property?  The
latter, for it is manifest that the intention of the testator was that Curius
should stand next to the testator's own child. These are the illustrations
employed by Vattel and his great predecessors, in support of the position~
One, it will be seen, borrowed from  a law, one from  a convention, one
from  an -unilateral act or testament.  Vattel, however, enforces with
great earnestness the necessity of the utmost caution always attending
the use of a mode of interpretation, which is not authorized by the terms
of the instrument. It may only be resorted to in cases where there is
no dispute with respect to the true and only reason of the procision;
*and the cardinal rule, that the true sense of a promise is not
only that which was in the mind of the promiser,(h) but also that [ *97 
which has been sufficiently declared, and which both the contracting
parties must have reasonably understood, is never to be departed from.
On the one hand, therefore, the instrument is not to be construed agreeably to the reason which one of the parties possibly might have had in
his mind.  On the other hand, it certainly ought to be construed agreeably to the reason upon which the parties clearly did proceed.
LXXXV. This rule of extensive interpretation excludes all the
evasions and pretexts which have been resorted to for the purpose of
evading stipulations. As a general maxim, it is true that good faith
clings to the spirit, and fraud to the letter of the convention.(i)
(e) Grotius, 1. ii. c. 16, 20. Puffendorf, 1. v. c. 12, 18. Vattel, I. ii. c. 17, s.
291-2.
(f) If, Grotius observes, it only comes within a like reason, this will not show
that they were included in his meaning.
(g) " Ergo hic status ducit ex eo quod scriptum est, id quod incertum est: quod
quoniam ratiocinatione colligitur, ratiocinativus dicetur."-Quintilian, Inst. Orat.
1. vii. c. 8.
(h) Vide ante, vol. i. p. 223.
(i) "Circumscriptio semper crimen, sub specie legis, involvit. Quod apparet
in illa, legitimum est, quod latet, insidiosum."-Seneca, 1. vi. Controv. 3.
"Contra legem facit, qui id facit, quod Lex prohibet: in fraudem vero legis,
qui salvis verbis legis sententiam ejus circumvenit. Frans enim legi fit ubi, quod
fieri noluit, fieri autem non vetuit, id fit; et quod distat riro- dr dILoavoas (id est




82    PHILLIMORE ON INTERNATIONAL LAW.
When the Corinthians, being forbidden to give ships to the Athenians,
sold them some, at a merely nominal price,-when the Queen of Egypt
refused to pay tribute to the Rhodians for Pharos, because, though as
an island, it was, under the convention, liable to such tribute, while the
demand was being made she had joined it to the continent by a mole,when these and similar frauds are attempted, the rule of extensive interpretation by which they are condemned, is the rule of acknowledged
right.(k)
*LXXXVI. There is another maxim  of law  relating to
*98] Private Contracts, which relates to the extensive interpretation,
and the principle of which is applicable to International Covenants.
Pothier says that,(l) tc When the object of the agreement is universally
to.ielude everything of a given nature (tune universalite' des choses,)
the general description will comprise all particular articles, although
they may not have been in the knowledge of the parties.  For instance,
an engagement which A. makes with B. to abandon his share in a
succession for a certain sum.  This agreement includes everything which
makes part of the succession, whether known or not; the intention of
A. and B. was to contract for the whole.  Therefore it is decided that
A. cannot object to the agreement, under pretence that a considerable
property has been found to belong to the succession of which both parties
had no knowledge."
LXXXVII. Restrictive is the reverse of Extensive Interpretation,
but founded upon the same principle of making the language correspond
with the intention of the parties to the convention.
Grotius lays down three predicaments in which Restrictive lJntepretation is necessary.
1. When, without a limitation of the literal meaning, an absurdity
would follow.
2. When the only cause or reason which moved the will of the parties
to the contract has ceased.
3. When the matter of the promise or engagement is defective.
LXXXVIII. It is a maxim of law that no one is supposed to intend
what is absurd. A man bequeaths his house to one person, and his
garden to another; it would be absurd to suppose that the latter had a
garden bequeathed to him into which he could not enter.  The absolute
bequest of the house must therefore be restricted, and subjected to the
condition of allowing a passage to the owner of the garden.  Vattel
*99  applies *this rule to the conduct of States, and observes that
[      9 ] when the strict meaning of a Treaty would lead to an unlawful
dictum a sententia,) hoc distat fraus ab eo, quod contra legem fit."-Dig. i. 3,
29-30.
(k) The Roman lawyers classed the modes of evading a prohibitory law under
four heads:By disguising or changing(1.) The thing which was the subject of the contract.-Dig. xiv. 6, 7, 3.
(2.) Theperson. —Ib. xxiv. 1, 5.
(3.) The nature of the contract. —Ib.
(4.) The manner of contracting. —Ib. xvi. 1, 8, 14.
(Z) Pothier, (Evan's Transl.,) vol. I. p. 59.




INTERPRETATION OF TREATIES.                             83
consequence it must be restricted.  The State which has promised to
assist an ally in all his wars, ought not to assist him in a war which is
manifestly unjust.
LXXXIX. Under the second class of cases mentioned by Grotius,
must be discussed the important question arising from the maxim of
Civilians, conventio omnis intelligitumr rebus sic stantibus.  When that
state of things which was essential to, and the moving cause of the promise or engagement, has undergone a material change, or has ceased7
the foundation of the promise or engagement is gone, and their obligation
has ceased. This proposition rests upon the principle that the condition
of rebus sic stantzbus is tacitly annexed to every covenant.  Grotius(m)
admits the soundness of this doctrine only in cases in which it is quite
clear that the existing state of things was the sole cause of the contract.
Vattel illustrates the doctrine by several instances.(n)  An Elective
Prince, having no children, promises an ally that he will endeavour to
procure for him the right of succession; but a son is afterwards born to
him.  Who can doubt that the engagement is made void by this subsequent event?  A sovereign, in time of peace, promises to send succour
to an ally; before he can do so, war breaks out in his own dominions:
he is not bound to fulfil a promise which would leave him defenceless.(o)
So, if a State be engaged to furnish another State with certain articles
of commerce, and subsequent unforeseen circumstances render these
articles of *paramount importance to the subjects of the engaging [100
State, the delivery of the articles cannot be reasonably required. [100
If, for instance, a State has promised to furnish corn to another state,
and a dearth takes place, so that there be not corn enough for his own
subjects,(p) in this collision of duties, the preference must be given to
the latter.(q)  Necessity, when real and bona fide, overrides the obligation of the promise.
Lord Stowell, sitting in the Prize Court observes that, a "6 clear necessity will be a sufficient justification of every thing that is done fairly,
and with good faith under it."(r)  And again, "c that the law of cases
of necessity is not likely to be well furnished with precise rules; necessity creates the law, it supersedes rules, and whatever is reasonable and
just in such cases is likewise legal.  It is not to be considered as matter
(m) " Solet et hoc disputari, an promissa in se habeant tacitam conditionem, si
res maneant quo sunt loco: quod negandum est, nisi apertissime pateat stature
rerum pruesentem in unica illa quam diximus ratione inclusum esse. Sic passim
in historiis legimus legatos a suscepto itinere domum rediisse deserta legatione,
quod res ita mutatas intelligerent, ut tota legationis materia aut causa cessaret."-L. ii. c. xvi. 25, 2.
(n) L. ii. c. xvii. 296.
(o) "Humana jura omnia ita esse comparata, ut non obligent in summit necessitate."-Grot. 1. ii. c. 18-4, s. 6.
(p) On this principle Great Britian arbitrated between Sardinia and Tunis,
1843-4. With respect to events rendering the performance of a contract illegal
in the case of individuals, owing to the breaking out of war between the nations
to which they belong, see Abbott on Merchant Ships and Seamen, c. 13.
(q) Vide ante, p. 12, n. Vattel, 1. ii. c. 12, s. 170.
(r) The Christiansberg, Rob. Adm. Rep. 6, 378.




84       PHILLIMORE  ON  INTERNATIONAL  LAW.
of surprise, therefore if much instituted rule is not to be found on such
subjects."(s)
Treaties concluded against a particular State, in order to preserve the
Balance of Power, must necessarily be subject to change, so far as the
parties are concerned, when one of them endeavours to violate the principle by his own unlawful aggrandisement.
Vattel, in accordance with the natural feelings of honour and honesty,
inculeates the utmost caution in the application of the rule of interpretation which has been under discussion.  It is manifest that the State,
like the Individual, which takes advantage of every change of affairs to
disengage itself from the obligations of a solemn covenant, weakens the
foundations of that good faith on which the peace of the world depends.
~101]3j *XC. The caution which Vattel so strongly inculcates with
respect to the rule, c conventio ormnis intelligitur rebus sic stantibus," was never more amply or more honourably illustrated, than in
the conduct of Great Britain with respect to the Russo-Dutch Loan.
During the wars of the French Revolution, Great Britain took possession of the colonies belonging to the Dutch, not because she was at war
with Holland, but to preserve them from  France when France invaded
Holland.  When, in 1814, Holland was liberated from the dominion of
France, Great Britain conceived herself bound in honour to restore to
Holland these colonies.  Therefore, on the 13th August, 1814, Great
Britain  concluded a Convention with the Netherlands, in the first
article of which she engaged to restore to the Netherlands all the colonies
which were possessed by Holland on the 1st of January, 1803, with the
exception of the Cape of Good Hope, Demerara, Essequibo, and Berbice,
which possessions were to be disposed of by a supplementary Convention.
That supplementary Convention was contained in the first additional
article to the Convention just referred to, namely, of the 13th August,
1814. By that additional article, Great Britain engaged, first, to pay
1,000,0001. to Sweden; secondly, to advance 2,000,0001. to be applied
towards augmenting and improving the defences of the Low Countries;
thirdly, to bear equally with Holland such further charges as might be
agreed upon towards the final and satisfactory settlement of the Low
Countries, in union with Holland, &c., not exceeding in the whole the
sum of 3,000,0001., to be defrayed by Great Britain. In consideration
of these engagements, the Netherlands agreed to cede in full sovereignty
to His Britannic Majesty the colonies of the Cape of Good Hope, Demerara, Essequibo, and Berbice.  The manner in which this latter sum was
to be expended, was determined by a subsequent Convention(t) signed on
(s) The Gratitudine, Ibid. 3, 266.
(t) Hansard's Parl. Deb. vol. xc. N. S. vol. xci.-Debates on Cracow. See especially the speeches of Lord John Russell, Sir W. Molesworth, Sir R. Peel, and Mr.
Stuart Wortley. See, too, the question again mooted in the House of Commons,
by Lord Dudley Stuart, August 1, 1854, and the speech of Sir. W. Molesworth,
which exhausts the subject.
55 Geo. III. c. 115, (28th June, 1815.)
2 & 3 Win. IV. c. 81, (3rd August, 1832.)
Hertzlett's Treaties, vol. iv. p. 367, &c.




INTERPRETATION OF TREATIES.                        85
the 19th of May, *1815, between Great Britain, the King of the [102
Netherlands, and Russia, by which Great Britain undertook the
payment of part of a debt owed by Russia to Holland.
According to the terms of the Convention, is His Majesty the King of
the Netherlands, being desirous, upon the final reunion of the Belgic provinces with Holland, to render to the Allied Powers who were parties to
the Treaty concluded at Chaumont on the 1st March, 1814, a suitable
return for the heavy expense incurred by them in delivering the said
territories from the power of the enemy; and the said Powers, having,
in consideration of arrangements made with each other, mutually agreed
to waive their several pretensions under this head in favour of His Majesty the Emperor of all the Russias, His said Majesty the King of the
Netherlands has thereupon resolved to proceed immediately to execute
with His Imperial Majesty a Convention to the following effect, to which
His Britannic Majesty agrees to be a party, in pursuance of engagements
taken by His said Majesty with the King of the Netherlands, in a Convention signed at London on the 13th day of August, 1814."
In the second article, their Belgic and Britannic Majesties engaged to
pay an annual interest of 5 per cent. on the said capitals, together with
a sinking fund of 1 per cent.  In the third and fourth articles it was
agreed that these payments should be made through the agency of Russia,
and that Russia should cc continue as heretofore to be security to the
creditors for the whole of the said loan, and shall be charged with the
administration of the same, their Belgic and Britannic Majesties remaining liable to his Imperial Majesty, each for the punctual discharge of
the respective proportions of the said charge."
*;By the fifth article it was said to be c" understood and agreed [ 103
between the high contracting parties, that the said payments on  103
the part of their Majesties the King of the Netherlands and the King of
Great Britain, as aforesaid, shall cease and determine should the possession and sovereignty (which God forbid!) of the Belgic provinces at any
time pass or be severed from the dominions of His Majesty the King
of the Netherlands previous to the complete liquidation of the same. It
is also understood and agreed between the high contracting parties, that
the payments on the part of their Majesties the King of the Netherlands
and the King of Great Britain, as aforesaid, shall not be interrupted in
the event (which God forbid!) of a war breaking out between any of the
three high contracting parties; the government of His Majesty the Emperor of all the Russias being actually bound to its creditors by a similar
agreement."
In 1831, after the separation of Holland and Belgium, Great Britain
having changed her mind, with respect to the advantage accruing to
Europe from the union of these territories, was anxious to induce Russia
to assent with her to their severance, and to the establishment of the new
kingdom of Belgium.  For this purpose, Great Britain entered into a
new Treaty with Russia, whereby, though the event had happened which
released Great Britain from the obligation of continuing to pay her portion of the loan, she nevertheless bound herself again to do so, by a new
Convention entered into in 1831, in which it was said that:




86    PHILLIMORE ON INTERNATIONAL LAW.
i" Their Mlajesties the King of the United Kingdom of Great Britain
and Ireland and the Emperor of all the Russias, considering that the
events which have occurred in the United Kingdom of the Netherlands,
since the year 1830, have rendered it necessary that the Courts of Great
Britain and Russia should examine the stipulations of their Convention
of the 19th May, 1815, as well as of the Additional Article annexed
thereto; considering that such examination has led the two high contracting parties to the *conclusion, that complete agreement does not
[*104] exist between the letter and the spirit of that Convention, when
regarded in connection with the circumstances which attended the separation that has taken place between the two principal divisions of the United
Kingdom of the Netherlands; but that, on referring to the object of the
above-mentioned Convention af the 19th May, 1815, it appears that that
object was to afford to Great Britain a guarantee that Russia would on
all questions concerning Belgium, identify her policy with that which
the Court of London had deemed the best adapted for the maintenance of
a just balance of power in Europe; and, on the other hand, to secure to
Russia the payment of a portion of her old Dutch debt, in consideration of
the general arrangements of the Congress of Vienna,(u) to which she had
given her adhesion-arrangements which remain in full force; their said
Majesties being desirous, at the present moment, that the same principles
should continue to govern their relations with each other, and that the
special tie which the Convention of the 19th May, 1815, had formed
between the two Courts, should be maintained, have, &c.
c ART. I.-In virtue of the considerations above specified, his Britannic
Majesty engages to recommend to his parliament to enable him to undertake to continue, on his part, the payments stipulated in the Convention
of the 19th May, 1815, according to the mode, and until the completion
of the sum fixed for Great Britain in the said Convention.
"c ART. II.-In virtue of the same considerations, his Majesty the Emperor of all the Russias engages, that if (which God forbid!) the arrangements agreed upon for the independence and the neutrality of Belgium, and
to the maintenance of which the two high powers are equally bound,
should be endangered by the course of events, he will not *con1053] tract any other engagement, without a previous agreement with
His Britannic Majesty, and his formal assent."
In 1847, after the incorporation of the free city of Cracow into the
Austrian dominions, Mr. Hume moved in the House of Commons the
following resolutions:
"9 1. That this house, considering the faithful observance of the General Act of Congress, or Treaty of Vienna, of the 9th day of June, 1815,
as the basis of the peace and welfare of Europe, views with alarm and
indignation the incorporation of the free city of Cracow, and of its territory, into the empire of Austria, by virtue of a Convention entered into
at Vienna, on the 6th day of November, 1846, by Russia, Prussia, and
Austria, in manifest violation of the said Treaty.
"s2. That it appears, by returns laid before Parliament, that there
(uz) Not the Treaty of Vienna, with which, in the debate, it was sometimes confounded.




INTERPRETATION  OF TREATIES.                        87
has already been paid from the British treasury towards the principal
and for the interest of the debt, called Russo-Dutch loan, between the
years 1816 and 1846, both inclusive, the sum of 40,493,750 florins,
equal to 3,374,4791. sterling money; and that the liquidation of the
principal and interest of the remaining part of the loan, as stipulated by
the Act of 2 & 3 Will. 4, c. 81, will require further annual payments
from the British Treasury until the year 1915, amounting to 47,006,250
florins, equal to 3,917,1871. sterling money, making then the aggregate
payment of 7,291,6661. and the average, for each of the hundred years,
of 72,9161.
", 3. That the Convention of the 16th day of November, 1831, between
lIis Majesty the King of Great Britain and Ireland and the Emperor of
all the Russias, was made to explain the stipulations of the Treaty
between Great Britain, Russia, and the Netherlands, signed at London
on the 19th day of May, 1815, and included in the Treaty of Vienna;
and, by that Convention, it was agreed by Great Britain' to secure to
Russia the payment of a portion of her old Dutch debt, in consideration
of the general arrangements *of the Congress of Vienna, to   10]
which she had given her adhesion-arrangements which remain L 106]
in full force.'
" 4. That this house is, therefore, of opinion, that Russia having
withdrawn that adhesion, and those arrangements being, through her
act, no longer in force, the payments from  this country, on account of
that debt, should be henceforth suspended."(x)
The Government, however, with the support of the legislature, refused
to assent to these resolutions, principally upon these grounds: 1. That
the loan had been undertaken by Great Britain partly on account of the
exertions made by Russia with the other great powers in liberating Belgium from  France, and annexing it to Holland.  2. Partly because
Great Britain had undertaken the loan in some measure as a set-off
against the Dutch possessions of the Cape of Good Hope, Demerara,
Essequibo, and Berbice, retained by her after the conclusion of the peace,
1814-15.  3. Because the convention of 1831 contemplated the continuance of the payment by Great Britain, even during a war with Russia.
It was admitted, during the discussion, that the evidence of the intention
of the contracting parties was to be derived from  the contemporary
instruments,(y) and from the main object, even against the letter of the
Convention.
In August, 1854, the attempt of Mr. Hume was renewed by Lord
Dudley Stuart. The motion for repudiating the loan was founded upon
the averment that Russia had violated a main article of the Treaty of
Vienna, with respect to the free navigation of rivers flowing through
divers countries,(z) *by rendering the mouths of the Danube
unnavigable;(a) and that therefore she was not entitled to fur- [*107]
(x) HIansard's Parl. Deb. vol. xc. p. 8h9.
(y) See Sir Robert Peel's remarks on the despatch of Lord Castlereagh, 13th
February, 1815, as explanatory of the Convention.
(z) Vide ante, vol. i. p. 173. It may well be doubted whether the provisions of
the Treaty of Vienna (which, by the way, did not include the Convention of the
(a) See next page.




88    PHILLIMORE ON INTERNATIONAL LAW.
ther payment of the loan. The motion, which was in substance the same
as that of Mr. Hume, was, for the like reasons, and for the additional
reason that Great Britain was, on account of being at war with Russia,
bound, by a regard to national honour, to be more than ever jealous of
affording'the slightest ground for the accusation that she wished to repudiate her debts justly contracted with the power which was now her
enemy.(b)
XCI. It is quite consistent with the maintenance of this faith, when
the interpretation of a Treaty, with reference to a case not foreseen or
provided for by it, has become necessary, to conduct that interpretation
as nearly as possible in accordance with what the party would have done
if the circumstance which has now happened had been foreseen. This
is sometimes called the argumentum a ratione legis ampli, and is founded
on the rule of law: "u zbi eadem ratio ibi idem jus statuendunm."
XCIT. (c)When the apprehension of a particular event has been the
reason of a particular provision of a Treaty, this provision is not to be
restricted to cases in which such an event is improbable, but to be
extended to all cases in which the event is possible.  If a Treaty declare
that no army or fleet shall be conducted to a certain place, it will not be
allowable to conduct thither an army or a fleet, under pretence that no
harm is intended by such a step; for the object of the provision was not
only to prevent the actual occurrence of an evil, but to keep all danger,
and all apprehension of danger, at a distance.
XCIII. However general the terms may be in which an agreement is
conceived, it only comprises those things respecting which it appears that
*1<08] the contracting parties proposed *to covenant, and not others
[*108] which were not within the scope of their intention or contemplation.(d)
XCIV. When a case is expressed in a contract for the purpose of preventing any doubt which might otherwise arise as to whether the engagement resulting from  the contract would extend to such case, the parties
are not thereby understood to restrain the extent to which the engagement, in respect to other cases not so expressed, would legally reach.(e)
This subject has also been considered in a case before the Supreme
Court of the United States of America, respecting the construction of
the Treaty of peace with Great Britain. During the war, the State of
Virginia made a law, that all persons indebted to British subjects might
pay the amount into the loan-office, which should be a good discharge.
]By the Treaty of peace it was provided that " creditors of either side
should meet with no lawful impediments for the recovery of their debts."
19th of May) could affect the Russian possession of the mouths of the Danube,
acquired by the Treaty of Adrinople, 1829.
(a) Vide ante, vol. i. p. 177.
(b) Vide post, as to the effect of war upon the debts both of States and Subjects. Vide ante, chap. iii. as to such debts in time of peace.
(c) Vattel, I. ii. c. 37, s. 298.
(d) " Iniquum est enim, perimi pacto id, de quo cogitatum non docetur." —Dig.
ii. 15, 9.
Vide ante, vol. i. pp. 49-50.
(e) Vide ante, vol. i. p. 45.
" Qua, dubitationis tollendae causa, contractibus inseruntur, jus commune non
leedunt."-Dig. L. 17, 81.




INTERPRETATION OF TREATIES.                             89
The defendant had paid the money into the loan-office; but it was held
that, in consequence of the Treaty of peace, he was liable to the plaintiff. Judge Chace, in giving his opinion to that effect, said: "r In the
construction of contracts, words are to be taken in their natural and
obvious meaning, unless some good reason be assigned to show that they
should be understood in a different sense. The universality of the terms
is equal to an express specification on the treaty, and indeed includes it.
For it is fair and conclusive reasoning, that if any description of debtors,
or class of cases, were intended to be excepted, it would have been specified. The indefinite and sweeping words made use of by the parties
exclude the idea of any class of cases having been intended to be
excepted, *and explode the doctrine of constructive discrimi- [U109]
nation."(f)
XCV. Under the extensive and restrictive kinds of interpretation,
Jurists have been in the habit of including a once celebrated distinction
between things of a favourable and things of an odious nature.
(g)Barbeyrac rejected this distinction, on the ground that these
assumed qualities cannot found any safe rules of interpretation. That
the same characteristics may seem odious to one party and favourable to
another, according to the dispositions of each, and the point of view
from which they regard them. That they are incapable therefore of a
certain definition; that it is admitted that the two qualities are often
blended together in one and the same subject; and, above all, that
without having recourse to this distinction, sound rules of interpretation
may be always obtained.
(h)Vattel, however, adheres to the distinction, but thinks that, with
(f) Ware v. Hylton, 3 Dallas (American,) Reports.
See, too, Hamiltons v. Eaton, Martin (American,) Reports, 79.
Pothier (Evans's trans.,) vol. i. p. 39.
(g) See his note on Grot. i. ii. c. 16, 10, in which he repeats the opinion which
he had already expressed in his commentary on Puffendorf, De Jure Nat. et. Gent.
s. 12.
(h) "One of the sections of Vattel which is relied on, states this proposition,'That whatever tends to change the present state of things, is also to be ranked
in the class of odious things.' (B. ii. s. 305.) Is it not most manifest, that this
proposition is, or at least may be, in many cases, fundamentally wrong? If a
people free themselves from a despotism,.is it to be said, that the change of
government is odious, and ought to be construed strictly? What, upon such a
principle, is to become of the American Revolution, and of our State Governments,
and State Constitutions? Suppose a well-ordered Government arises out of a
state of disorder and anarchy, is such a Government to be considered odious?
Another section (s. 508,) adds,' Since odious things are those whose restrictions
tends more certainly to equity than their extension, and since we ought to pursue
that line which is most conformable to equity, when the will of the Legislature
or of the contracting parties is not exactly known, we should, where there is a
question of odious things, interpret the terms in the most limited sense. We may
even, to a certain degree, adopt a figurative meaning, in order to aver the oppressive consequences of the proper and literal sense, or anything of an odious nature
which it would involve.' Does not this section contain most lax and unsatisfactory
ingredients for interpretation?  Who is to decide whether it is most conformable
to equity to extend or to restrict the sense? Who is to decide whether the provision is odious? According to this rule, the most opposite interpretations of the
same words would be equally correct, according as the interpreter should deem
it odious or salutary. Nay, the words are to be deserted, and a figurative sense
adopted, whenever he deems it advisable, looking to the odious nature or conseOCTOBER, 1855. —7




90    PHILLIMORE ON INTERNATIONAL LAW.
[*110] respect to certain things, concerning which the *intention of the
parties is not clear, equity gives in some cases an extensive in
others a restrictive interpretation.  This is unquestionably true, and is
indeed the substance of what has been already stated. But the catalogue
of things favourable, to which Vattel applies the extensive, and of things
odious, to which he applies the restrictive interpretations, are of a very
loose and disputable character; and the rules which he lays down appear
to find their place with more propriety and accuracy under the other
different heads which have been mentioned.
[l11l]                 TCHA1PTER   IX.
COLLISION OF TREATIES.
XCVI. IT has been already remarked that it is not competent to a
State to adopt customs or make Treaties which come into collision with
]Divine or Natural Law,(a) or which affect the general International
Law with respect to other States which are not parties to the Treaty.(b)
But a collision or opposition may happen between two human laws,(c)
two promises, or two Treaties; the fulfilment of both may be impossible,
and in this case it is desirable to have recourse to some recognized rules
for ascertaining to which the preference should be given.(d)  Grotius,
borrowing from  Cicero and Vattel, has here laid down various rules,
which in such cases should be observed.
XCVII. 1. In all cases where a stipulation which is permissive,
conflicts with one that commands, the former must yield to the latter.
This doctrine that command outweighs permission, was derived by Grotius
from Cicero, and is adopted by all jurists; nevertheless a universal
command, according to Barbeyrac, gives way to a particular permisson.
['112]   *2. A stipulation, which may be complied with at any time
must yield to one which must be executed directly or not at all.
This rule is manifestly reasonable;-by the adoption of it both engagements may possibly be satisfied,-whereas by a contrary rule only one
can be satisfied.
3. A prohibitory stipulation must be preferred, as a general rule,
over one which is imperative,-upon the principle that every prohibition
is absolute in itself, whereas, every injunction is of necessity conditional,
and supposes a power and an opportunity of doing what is enjoined.
quence of the common sense."-Story on the Constit. of the United States, vol.
i. pp. 291-2.
(a) Vol. i. p. 26, s. 34.
"Pacta, quse turpem causam continent, non sunt observanda." —Dig. ii. xiv.
27, 4.
(b) " Privatorum conventio juri publico non derogat." —Dig. L. 17, 45. Vide
ante, vol. i. p. 44, s. 52.
(c) Quintil. Instit. Orator. lib. vii. c. 7.
(d) Grot. 1. ii. c. 16, 29. Vattel, 1. ii. c. 17, ss. 311, 321. Rnutherforth, b. ii. c.
7, p. 430. (Ed. Baltimore, 1832.)




COLLISION  OF TREATIES.                         91
When this cannot be done without contravening a prohibitory stipulation,
there is no opportunity, and therefore no moral possibility, of acting;
but this remark is true only in cases where the prohibition is absolute
and unconditional.
4. When two stipulations, equal in other respects, conflict with each
other, the more particular one has precedence over that which is more
general.  This is the rule in the conflict of laws, founded upon the
principle that the legislator, when he speaks particularly, is held to be
more carefully to guard against accidental exceptions, and therefore more
unwilling to admit of any, than when he speaks in general.
5. It is a rule, with respect to all prohibitions, that the prohibition
which has a penalty attached to it is to be preferred to the one which
has not, and that which has the greater penalty to that which has the
lesser.
In the case of the Ringende Jacob, it was considered whether the
freighting the ship to the enemy was or was not the lending prohibited
in the Swedish Treaty.  (October 21st, 1666.)  Sir W. Scott said,
"creference has been made to an ancient Treaty between England and
Sweden, which forbids the subjects of either powers'to sell or lend
their ships for the use and advantage of the enemies of the other;' and
as this prohibition is connected in the same article with the subject of
contraband, it is argued, that the carrying of contraband articles in the
present cargo, is such a lending as comes within the meaning of the
Treaty; but *I cannot agree to that interpretation.  To let a  113
ship on freight to go to the ports of the enemy, cannot be termed  113
lending, but in a very loose sense; and I apprehend the true meaning
to have been, that they should not give up the use and management of
their ships directly to the enemy, or put them under his absolute power
and direction. It is, besides, observable, that there is no penalty annexed
to this prohibition. I cannot think that such a service as this is will
make the vessel subject to confiscation."(e)
6. A sound rule is often derived from  the consideration of dates of
Treaties. If there happen a collision between two affirmative Treaties
concluded between the same contracting parties, the Treaty of more recent, is preferred over that of later date. In this case both covenants
have been made by the same powers, and therefore the subsequent might
derogate from the former act.  On the other hand, if a collision happen between two Treaties concluded between two different contracting
parties, the more ancient one must be executed, because it was not within
the competence of the party promising, to act in derogation of his antecedent engagements to another.
7. If of two engagements, contracted with the same party, only one
can be fulfilled, it is true, as a general rule, the promisee may choose
which of the two shall be performed; and if his will cannot be discovered,
the promisor must fulfil the more important engagement, as being that
of which the promisee would presumedly require the fulfilment.
8. Vattel says, that when two duties stand in competition, that one
which is the more considerable, the more praiseworthy and productive
(e) 1 Robinson's Adm, Rep. pp. 89, 90.




92    PHILLIMORE ON INTERNATIONAL LAW.
of the greater utility, is entitled to the preference. Lord Bacon says,
that,"it is a point worthy to be observed generally of the rules of law,
that when they encounter and cross one another, that it be understood
which the law holds to be worthier and to be preferred; and it is in this
particular very notable to consider that this being a *rule of
some strictness and rigour, doth not, as it were, its office but in
the absence of other rules, which are of some equity and humanity."(f)
XCVIII. It should be observed that the question as to the judicial
proofs of the acts of a Foreign State is now regulated by statute.(g)
The 14 & 15 Vict. c. 99, s. 7, enacts, c"All proclamations, treaties, and
other acts of State of any foreign State, or of any British colony, and
all judgments, decrees, orders, and other judicial proceedings of any
Court of Justice in any foreign State or in any British colony, and all
affidavits, pleadings, and other legal documents filed or deposited in any
such Court, may be proved in any Court of Justice, or before any person
having by law or by consent of parties authority to hear, receive, and
examine evidence, either by examined copies or by copies authenticated
as hereinafter mentioned, that is to say, if the document sought to be
proved be a proclamation, treaty, or other act of State, the authenticated
copy to be admissible in evidence must purport to be sealed with the
seal of the foreign State or British colony to which the original document belongs; and if the document sought to be proved be a judgment,
decree, order, or other judicial proceeding of any foreign or colonial
Court, or an affidavit, pleading, or other legal document filed or deposited
in any such Court, the authenticated copy to be admissible in evidence
must purport either to be sealed with the seal of the foreign or colonial
Court to which the original document belongs, or, in the event of such
Court having no seal, to be signed by the judge, or, if there be more
than one judge, by any one of the judges of the said Court, and such
judge shall attach to his signature a statement in writing on the said
copy that the Court whereof he is a judge has no seal; but if any of the
aforesaid authenticated copies shall purport *to be sealed or signed
[*115  as hereinbefore respectively directed, the same shall respectively
be admitted in evidence in every case in which the original document
could have been received in evidence, without any proof of the seal
where a seal is necessary, or of the signature, or of the truth of the
statement attached thereto, where such signature and statement are
necessary, or of the judicial character of the person appearing to have
made such signature and statement."
XCIX. The effect of war, and of the subsequent restoration of peace
upon the continuing force and validity of Treaties, contracted previously
to the breaking out of the war, will be considered hereafter.
The reader will find in the note(h) a reference to some of *the
[ 116] principal cases decided in the British and American Courts of
Law, involving the interpretation and construction of Treaties.
(f) Maxims of the Law, Regula III.
(g) As to former law, see Richardson v. Anderson, 1 Campbell, p. 65, n. (a)
(h) CASES FROM THE ENGLISH REPORTS.
Elphinstone v. Bedreechund, 1 Knapp's Privy Council Rep. p. 340. Maltass v.




RIGHTS  OF SOVEREIGNS.                              93
PART THE SIXTH.
CH APTE     I.                          [*117]
RIGHTS OF SOVEREIGNS.
C. IT was observed in an early part of this work,(a) that there were
certain subjects of International Law, whiSh, though only to be accounted
Maltass, 1 Robertson's Ecc. Rep. p. 67. Lindo v. Rodney, Douglas' Rep. p. 340.
Hotham v. East India Company, ib. p. 277. Chalmers' Collection of Opinions, ii.
pp. 345-6. Marryat v. Wilson, 1 Bosanquet & Puller's Rep. pp. 436-9. Report
of Sir Leoline Jenkins (December, 1668), on the Construction of the Treaty between
the French and English, vol. ii. p. 735. The Diana, 5 Robinson's Adm. Rep. p.
60. In the same case, ib. p. 67. The Fama, ib. p. 106. The Zacheman, ib. p.
152. The Charlotte, ib. p. 305. The Eliza Ann, 1 Dodson's Adm. Rep. p. 244.
The Molly, ib. p. 394.  The Ringende Jacob, 1 Robinson's Adm. Rep. p. 89.
Richardson v. Anderson, 1 Campbell, 65, n. (a)
CASES rRoM AMERIcAN REPORTS.
Foster v. Neilson, 2 Peters, p. 253. Gordon v. Kerr, 1 Washington's C. C. p. 322.
Society v. New Haven, 8 Wheaton, p. 464. United States v. Percheman, 7 Peters,
p. 51. The St. I. Indiano, 2 Gallison's, p. 268. Blight v. Rochester, 7 Wheaton,
p. 535. Whitaker v. English, 1 Bay, p. 15. Hutchinson v. Brock, 11 Massachusetts, p. 119. The Pizarro, 2 Wheaton, p. 227. The Santissima Trinidad, 7
Wheaton, p. 283. Hylton v. Brown, 1 Washington's C. C. p. 343. Bolchos v.
Three Negro Slaves, Bee's Admiralty, p. 74. British Consul v. Ship Mermaid, ib.
69. Henderson v. Poindexter, 12 Wheaton, p. 530. Garcia v. Lee, 12 Peters, p.
511. M'Nair v. Ragland, 1 Devereux's Equity, p. 516. Orser v. Hoag, 3 Hill, p.
79. Miller v. Gordon, 1 Taylor, p. 300. Wilson v. Smith, 5 Yerger, p. 379. Ware
v. Highton, 3 Dallas, p. 199.
Hamnyltons v. Eaton, Martin, p. 79, and see especially the following cases, as to
the construction of the Treaties between Spain and England of 1762 and 1783,
giving privileges to vessels to cut mahogany, and the construction of the proclamation and by-laws relative to the trade under them.-Graham v. Pennsylvania
Ins. Co., 2 Washington's C. C. p. 113.
Under the second article of the Treaty with Great Britain of 1794, the precincts
and jurisdiction of a port are not to be considered as extending three miles in
every direction, by analogy to the jurisdiction of a country over that distance of
sea upon its coasts, but they must be made out by further proof. —Jackson v. Porter, Paine, p. 457.
The fourteenth section of the Spanish Treaty of 1795, which prohibits citizens
of Spain or of the United States from taking commissions to cruise against either
of those countries, does not extend the prohibition to public ships of war.-The
Santissima Trinidad, 7 Wheaton, p. 283.
No form of passport having been annexed to the seventeenth article of the
Spanish Treaty of 1795, the immunity intended by that article never took effect.The Amiable Isabella, 6 Wheaton, p. 1.
The United States, by their alliance with France, existing in 1780, were not
considered as parties in the capitulation made by the Marquis de Brouille with
the inhabitants of Dominica. Miller v. The Resolution, Bee's Adm., p. 404.
Where individual rights vest under a Treaty, the meaning of the Treaty, in respect to them, is to be construed by the same rules as private contracts. Anderson v. Lewis, 1 Freeman's Chancery, p. 178.
When a Treaty makes no special provision for deciding questions of individual
(a) See next page.




94        PHILLIMORE  ON  INTERNATIONAL LAW.
as such mediately and derivatively, required a separate consideration; and
it was said that these subjects of International Law were the following
individuals, who are said to represent a State:1. Sovereigns.
2. Ambassadors.
And another class of public officers, not clothed, accurately speaking, with
a representative character, but who occupy a quasi diplomatic positionnamely,
3. Consuls.
We have now to consider the International Status of Sovereigns with
respect to themselves and their families.
['118     P CI. The Sovereign(b) represents in his person the collective
[*1183] power of the State.  His person, as such representative, is the
subject-by a custom, which to say the least, approaches the border of
positive law —of certain international rights.  The recognition of his
title and claims as the de jure ruler of the nation, of which he is the de
facto governor, and the principles of International Law applicable thereto,
have been already considered.(c)
CII. The Sovereignty of the State may be vested in a single individual,
as in a monarch, a stadtholder, or a president; or in more than one, as
in the Consuls of ancient Rome, or of republican France at the beginning
of this century; or in various persons exercising the powers of regency
pending the minority of the Sovereign.(d)
The Roman Law expresses the rule of International Law upon this
subject —" Magistratus municipales, cum  unum  magistratum  administrent, etiam Aunius hominis vicem sustinefit."(e)
CIII. Before we enter upon the discussion of the personal prerogatives incident to the Sovereign in a foreign country, it must be rememidentity, they must be decided by the judicial tribunals of the country. Stockton
v. Williams, Walker's Chancery, p. 120.
Savigny has a chapter on the Foreign Codes which contains specific enactments
as to the Interpretation of Laws. R. R. i. s. 61. Ausprdche der neueren Gesetzbiicher fiber die Auslegung.
(a) Vide ante, vol. i. p. 10.
(b) Vattel, 1. iv. c. 7, s. 108; 1. ii. c. 3, c. 4.
Grotius places the exterritoriality of Ambassadors upon this ground: —" lUt qui
sicut fictione quidam habentur pro personis mittentium, ita etiam fictione simili
constituerentur quasi extra-territoriunm."  L. ii. c. xviii. 4, 5.
Puffendorf, De Jure Nat. et Gent. i. viii. c. 4, 21,
Bynkershoek, De Foro Legatorum, c. 3. " Princeps in alterius Imperio quo jure
censeatur, quod ad forum competens." C. 4. " Principis bona in alterius Imperio,
an per arrestum forum tribuant."  These two chapters contain the best dissertation on this subject.
Zouch, De Jure Feciali inter Gentes, p. ii. s. 2, q. 6. " Utrum Princeps in aliumn
Principem in suo territorio imperium habet?"
Giinther, ii. 473, prcesertim, ss. 4, 5, 6. Martens, i. v. ss. 164-175. Kliiber, ss.
48-50. Heffters, ss. 48, 58. Foalix, s. 209.
The subject of exterritoriality is again discussed under the subsequent title of
Ambassadors.
(c) Vide ante, ch. iv.
(d) " Einem wirklichen Mitregenten oder souveranen Reichsverweser gebiihren
mit Ausnahme der Titel gleiche Rechte wie dem eigentlichen Souverin selbst."
Heffters, 1, vi. s. 55.
(e) Dig. L. 1, 25.




RIGHTS OF SOVEREIGNS.                              95
bered that the honour and independence of nations are affected by the
treatment of their Sovereign.(f)
*The Sovereign is entitled to International rights belonging to
his public character, both while resident at home, and while corn- [119]
morant abroad.
At home he has a right1. To be addressed by other States according to his proper and accustomed title.
2. To be treated in all communications, unless established usage, or
the positive stipulations of Treaty have made a distinction, in all respects
on a footing of perfect equality with the rulers of other States.
Abroad the Sovereign is entitled to be treated by all public functionaries of another State, in all public communications, with respect.
If he be personally the subject of a libel on his character, or be defamed, he is entitled to the same redress in the municipal Courts of Justice in the country of the libeller, as any subject of that country. If he
were shut out from such redress on the ground of his being a Foreigner,
or upon any technical ground, he would have just ground of complaint,
unless, indeed, satisfaction were extra-judicially afforded to him.
But he has no just ground of complaint, if the sentence, after a fair
trial conducted according to the ordinary law of the country, be adverse
to him.
These cases are rarely such as concern the individual character of the
Sovereign; they are generally such as concern the collective character of
the State, as represented by the Sovereign.
The cases of persons proceeded against for libelling the Emperors
Paul and Buonaparte, have been already considered as falling under the
latter predicament.(g)
CIV. The Sovereign who travels through, or sojourns tempo- [*120
rarily for whatever cause(h) in a foreign state, is entitled to an [    ]
immunity from the civil jurisdiction therein. Even the private individual under these circumstances, much more the Sovereign, does not
become "' civis," or even " incola," but remains,, advena."(i)
It is not worth while to enter into the discussion whether this immunity be the result of natural law or of established custom.
It is only in more modern times that this exterritoriality has become,
as it may now be considered, a settled rule of International Law.
A certain amount of jurisdiction(k) over the persons composing the
(f) 1" Die Unabhbingikeit des Staates kommt auch der Person seiner Reprilsentanten zu: dem Regenten."  Kliber, s. 48.
Zouch, p. i. s. v. 1, speaking of " Delicta inter eos quibuscum Pax est," says,
" In his delictis primum est cum status laeditur vel'personis injuria offertur;" e. g.,
when the Athenians defiled the statues of Philip.
(g) Vide ante, vol. i. 415-17.
(h) B3ynk. c. 3, suggests four:1. Ut res suas ipse agat.
2. Ut litem obortam ipse transactione componat.
3. Ut discat ex rationibus alieni imperii quod ad suum transferat.
4. Solius animi et oblectationis gratia.
(i) Mary Queen of Scots, Heffters, 106. n. 4.
(kc) "'Man gestattet ihm daselbst der civil gerichtbarkeit fiber seine Gefolge."
Kliiber, s. 50.




96    PHILLIMORE ON INTERNATIONAL LAW.
suite of sovereigns seems to be a corollary from this proposition. This
jurisdictioh- is limited in most countries to matters of a civil character.
Martens, following De Real, qualifies the generality of the proposition
by these conditions:1. That the Sovereign has not entered the foreign State clandestinely.
2. That he be an actually reigning Sovereign, or recognised as such
by the foreign State.
3. That he have not submitted himself to the jurisdiction, by entering
into the military service of the State, or by some *equivalent act
of implied submission to its authority.  These two last exceptions appear to be well founded; in their absence the rule "' par in parem
non habet potestatem"(l) prevails, and one Sovereign remains exempt
from the civil jurisdiction of another.
CV. With respect to criminal jurisdiction, the foreign Sovereign, as
a general proposition, is exempt from  it.  Extreme cases may be put
which would make the rule inapplicable. If, indeed, he should abuse
the hospitality of the kingdom,(m) he may be ordered, like a delinquent
ambassador, to depart from it without delay.
If he should contrive or perpetrate any offence against the welfare of
the country in which he is a guest, International Law would warrant
the authorities of that country in preventing the commission of the
offence, by placing him under necessary restraint, and in subsequently
demanding satisfaction for the injury, at the hands of the country of
this delinquent representative.
We may go a step further and say, that his acts of violence may be
met by violence, and that if he perish in consequence of the resistance
opposed to his unlawful conduct, no maxim of International Jurisprudence is violated.
CVI. But may the delinquent Sovereign, under any circumstances,
[*1221  be rendered amenable to the criminal jurisdiction of *a Foreign
- Country?  It is difficult in a treatise on law to answer a question, which is founded upon the supposition, that the representatives of
the majesty of the law are the criminals to be tried by the law.
" Fac, principem homicidia et rapinas perpetrare, irruere in quosvis homines,
non sulos tantum," &c. Bynk. c. 3.
" En vertu de cette exterritorialite on accorde aussi h des monarques etrangers
la jurisdiction [civile au moins]* sur les gens de leur suite; mais on ne peat leur
attribuer le droit d'exercer pendant leur sdjour tons les diff6rens droits de souverainete qui produiraient leurs effets sur l'tat ou iTs se trouvent." Martens, 1. 5, s. 172.
(1) Maxim cited by the defenders of Mary Queen of Scots. —Camden's Elizabeth,
(ed. 1688,) b. 3, A.D. 1586, p. 370. See, too, Zouch, De Jud. inter Gentes, p. 2,
s. 2, qu. 6.
(m) ": Quare ut extremum est in legato ut jubeatur Imperio excedere, sic et in
Principe statuerenm, si jus hospitii violet. Sed nec sine cautionibus ea res transigenda est. Quid si enim more latronis in vitam, in bona, in pudicitiam cujusque
irruat, nee secus atque hostis capta grassetur in urbe. Poterit utique detineri,
forte et occludi, quamvis per turbam malim, quam constitute judicio.
Si Princeps in alieno Imperio manu rem agat, vel per se, vel per comites, quin
mannu repelli possit, non puto dubitandum. Si vero quid machinetur adversus
Principem hospitem, ejusve Imperium, si aliud commune delictum perpetret, satis,
puto, fiet rationi et Juri Gentium, si quod hic Jus Gentium est, si jubeatur finibus
Imperii excedere, nec amplius turbare rempublicam nostram." —Bynk. c. 3.
a The bracketed words are inserted by the editor, Pinheiro Ferreira.




RIGHTS  OF SOVEREIGNS.                             97
If, however, the question must receive a categorical answer, the answer
must be in the negative.(n)
The historical precedents which might appear to countenance a contrary opinion are valueless.,,Nihil igitur in hoe argumento proficies
rebus similiter a gentibus judicatis," is the just observation of Bynkershoek. (o)
CVII. It is obvious moreover,(p) that this class of eases is happily
so rare, and the instances cited are so exceptional in their nature, both
from their own circumstances and from  the periods of history in which
they happened, that International Law cannot rely upon them as exponents of usage in this arduous matter, but must guide the inquirer by
the reason of the thing applied to the exigency of each particular occurrence.
International Law, like the Civil Law, must pass by, without attempting to bring under exact rules, anomalies which a sudden emergency
may create, or to provide remedies beforehand for all imaginable contingencies. (q)
The excellent sense of Bynkershoek appears in these, among other
concluding remarks upon this subject, c"Non adeo frequentes sunt ipsorum, qui imperant, Principum in alienis Imperiis peregrinationes, minus
frequentia crimina vel debita, quae huic disputationi causam  prmbere
possint, et, quicquid sit, ob _persone sanctitatem, eo semper tempe-  *123l
ramento *utimur, ne ob minima quwque magnum exem  1an sta- 
tuamus." (r)
CVIII. The privilege of exterritoriality is extended to the moveable
effects which foreign Sovereigns carry with them.
The common usage of Europe exempts such effects from the payment
of custom duties and the visitation of custom-house oflicerso  The immunity is further extended by general Comity to goods destined for a
Foreign Sovereign or his family in their transit through foreign countries; though this privilege has sometimes, as in the treaty of Peace
between Russia and Saxony in 1745,(s) been the subject of an express
stipulation.
As to other private property of a foreign Sovereign, both moveable
and immoveable, it is, according to very high authorities on International
Law, liable to arrest, adjudication, and sequestration by the municipal
tribunals, and to the taxes and imposts of the local government.(t)
(n) Bynkershoek, referring himself for a solution of the difficulties growing out
of this subject to "ratio" and " usus" (as the legitimate interpreters of International Law,) arrives at this conclusion:-" Quin fere eo deveniendum est ut negandum videatur, hane rem Jure Gentium definitam esse, vel definiri posse."  C. 3.
Heffters, B. i. s. 102.
(o) Bynkershoek, c. 3.            (p) See next chapter, on Embassies.
(q)'" Jura constitui oportet, ut dixit Theophrastus, in his qum das 70 ~,rXstzov accidunt, non quoe PK 7rapaXayorv."-Dig. i. 3, 3.
" T yap ircar 1 Jig ut ait Theophrastus, rapSaftvotvr 6t vrooOeTrat."-fb. 6.
(r) Bynkershoek, c. 3.               (s) Vide Art. 10.
(t) Bynkershoek, who insists strongly upon the liability of the Sovereign's private property to arrest, in the same manner as the property of any private person,
would allow this exception. "a Cavendum autem est, ne res ad injuriam vergat,
nec quod inter privatos summum jus est, ex iniquis forte Pragmaticorum Decretis,
id summa injuria ad Principes porrigamus. Ajunt illi, vel rem minimam arresto




98    PHILLIMORE ON INTERNATIONAL LAW.
"c Usu gentium invaluit," says Bynkershoek, " ut bona, quse Princeps
in alterius ditione sibi comparavit, sive haereditatis, vel quo alio titulo
acquisivit, perinde habeantur, ac bona privatorum, nec minus, quam hec,
subjiciantur oneribus et tributis." And, speaking of a difference of
opinion on the point, he adds his approbation of Hilliger's Commentary
on Donellus(u) as follows: "Subditum  vocat (principem) ratione fori, et
executionis, quam judex forte deerevit in rem sibi subjectam, sive mobi12   lem, sive inmobilem, sive pecuniam, ex *quacunque tandem
causa debeatur; utique, si me sequaris, sic ea interpretor."(x)
CIX. Bynkershoek, and Martens,(y) who adopts his view, draw no
distinction between the moveable and immoveable private property of
the foreign Sovereign; and, as far as the reason of the thing and the
sentences of the Dutch tribunals are concerned, their opinion seems well
founded.
It must be admitted, however, that the Comity at least of various
nations has adopted this distinction, and, moreover, that it would be
placed, with the sanction of eminent jurists, among the rules of positive
law.
Not many years before Bynkershoek wrote his treatise, "De Foro
Legatorum," the King of Prussia was cited into a Dutch Court as a
defendant in the matter of the succession to the Principality of Orange.
He appeared and contested the suit,(z) and appealed (A. D. 1716) to
the Supreme Court of the Senate, before which he seems neither to have
prosecuted nor abandoned his appeal, and yet eventually to have been
successful in causing the sentence of the Court below to be reversed (A.
D. 1719.) Probably, in this case the property was of both a moveable
and immoveable description.
["125]'*The practice of the English Courts, both of Equity and
[125] Common Law, has been in'favour of the privileged exemption of
Sovereigns in all matters of private contract.
In 1844 the Duke of Brunswick filed a bill against the King of
detentam, sufficere ad subjectionem fori. Largiamur inter privatos, sic enim obtinuit, sed an ita Principis equus, per alterius ditionem transiens, poterit includi, ut
causam prsebeat foroe? Si me auctorem sequaris, non poterit, nec quicquam magis
erit contra prsesumptam, si non testatam mentem Gentium." —C. iv.
(u) Hilliger ad Donell. 1. xvii. c. 11, lit. A.  (x) Bynkershoek, c. 4.
(y) Martens, 1. v. s. 173, quite to the same effect.
Bynkershoek overthrows Huber's opinion to the contrary.-De Jure Civ. 1. 3, s.
2, c. 2, n. 21, ad tit. De in Jus Vocandi.
The cases cited by Huber and others, Bynkershoek refers to the comity and
humanity of princes exercised on particular occasions.
Klfiber, s. 40, confines the liability to immoveable property.
Heffters seems to be of the same opinion; and Huber has been already mentioned.
(z) He was much offended. Bynkershoek says (c. 4,) " Clausula edicti, per campanacm, ut fit, populo significata,' and which, he gravely says, might as well be
omitted when the prince has an ambassador who will receive service of the
citation.
" Citation au son du tambour,'" Martens says, 1. v. s. 173, n. (a); but no doubt
Bynkershoek's version is correct.
Grotius, 1. ii. c. xviii. 10.-" Nee metuendum est quod quidem putant, ne si id
juris sit nemo inveniatur qui cum legato contrahere velit. Nam et regibus qui cogi
nequeunt non desunt creditores."




RIGHTS OF SOVEREIGNS.                            99
Hanover, and the Master of the Rolls held(a) that his Majesty was
exempt from the jurisdiction of the Courts in this country for any acts
done by him as King of Hanover, or in his character of sovereign prince;
but that, being a subject of Her Majesty Queen Victoria, he was liable
to be sued in the Courts of this country in respect of any acts and
transactions done by him, or in which he might have been engaged as
such subject; and that in respect of any act done by him out of this
realm, or any act, as to which it might be doubtful, whether it ought
to be attributed to the character of sovereign prince, or to the
character of subject, the same ought to be presumed to be attributable
rather to the character of sovereign prince than to the character of
subject. And it was also held by the Rolls Court, that in a suit against
a sovereign prince, who is also a subject, the bill ought, upon the face
of it, to show that the subject-matter of it constitutes a case in which a
sovereign prince is liable to be sued as a subject.
And in a recent case in the English Court of Queen's Bench,(b) it
has been held that no English Court has jurisdiction to entertain an
action against a foreign Sovereign for anything done, or omitted to be
done by him in his public capacity as representative of the nation of
which he is the head; and, therefore, in an action entered in the Lord
Mayor's Court against the Queen of Portugal cc as reigning Sovereign
and supreme head of the nation of Portugal," to recover a debt alleged
to be due from  the Portuguese Government, and in which a foreign
attachment had issued, according to the *custom of the City of [126
London, the Court made absolute a rule for a prohibition to  1 ]1
restrain proceedings in the action and in the attachment.  And the same
principle was applied where a case was entered in the Lord Mayor's
Court against the Queen of Spain, not expressly as reigning Sovereign
and head of the Spanish nation, but where it appeared by affidavit that
the plaintiff's sole cause of action arose upon a Spanish Government
bond, purporting to have been issued under a decree of the Cortes
sanctioned by the Regent of Spain, in the name of the Queen, then a
minor.
In 1828, the French Court, the Tribunal Pre'miere Instance (Ire
C'hambre,) upheld the principles which have been stated, in two instances;
one, an action brought by a French firm against the Spanish Government;(c) another, in which an action was brought by a French company
against the Republic of  IaYti.(d)  In both cases judgment was given
upon the same principle of International Law, namely, the independence
of Foreign Sovereigns.
In the first case, the President Moreau delivered the following judgment:(a) Duke of Brunswick v. King of Hanover, Law Journal, vol. xiii. p. 107.
(b) De Haber v. Queen of Portugal, ib. vol. xx. p. 488. Wadsworth v. Queen
of Spain, ib. May 28, 1851.
(c) Affaire de la maison Balguerie, de Bordeaux, contre le Gouvernement espagnol
(voir la Gazette des Tribunaux des 19 et 26 Avril.)
(d) Affaire de JiUM. Ternaux, Gandolphe, et Compagnie, contre la Republigue d'Haiti
(voir la Gazette des Tribunaux du 26 Avril.)




100    PHILLIMORE ON INTERNATIONAL LAW.
c" Attendu quoe le droit de juridiction est une emanation de la souverainet6.
"4 Attendu que lart. 14 du Code civil ne peut etre applique a un souverain etranger, d'abord parce qu'il ne dispose que pour les obligations
contract6es envers un Frangais par un individu etranger, et encore paree
qu'on ne pourrait l'etendre aux souverains etrangers sans porter atteinte
au droit qu'a tout gouvernement ind6pendant d'etre seul juge de ses
actes.
"Attendu, en fait, que l'opposition form&e par la maison Balguerie
entre les mains d'Aguado, a pour cause l'ex6cution d'un trait6 passe
(*127] entre S. M. catholique et cette *maison pour l'affretement d'un
certain nombre de navires destines a transporter les troupes du
gouvernement espagnol.
"Qu'un pareil trait6 est (videmment un acte d'administration publique
et ne peut, sous aucun rapport, etre consid6re comme un contrat prive.;c Attendu, d'un autre cete6, que les deniers sur lesquels l'opposition a
ete formee, sont des deniers publics destines au paiement de l'emprunt
royal espagnol, at qui ne pourraient etre saisis sans entraver la marche
de ce gouvernement.
z Quadmettre une personne privee a saisir en France les fonds d'un
gouvernement ktranger, serait violer les principes sacr6s du droit des
nations, et s'exposer ainsi ia des represailles funestes.
", Attendu, enfin, que les jugemrens des Tribunaux frangais 6tant sans
autorite hors du royaume, le gouvernement espagnol ne pourrait pas etre
force6 de s'y soumettre, et par cons6quent de reconnaitre la validit6 du
paiement qui serait fait par Aguado.
" D'oii il suit que le Tribunal est incomp6tent.
g" Fait main levee de l'opposition, etc.'(e)
On the 16th April, 1847, one of the French Courts, the Tribunal
Civil de la Seine, pronounced a very important judgment on the same
subject.
A  MI. Solon brought an  action  against Mahcmet-Ali, Viceroy of
Egypt, for 100,000 francs, alleged to be due to him for his services in
founding and superintending a school at Cairo. Mahemet-Ali was very
ably defended by M. Odilon Barrot, principally upon the ground that a
Foreign Government could not, according to the principles of International Law, be sued in an action of this description.  The Tribunal
[P1281 *decided in conformity with this principle, and delivered the
I  following judgment:(g)
"Attendu que selon les principes du droit des gens, les Tribunaux
rangais n'ont pas juridiction sur les gouvernemens etrangers, i moins
qu'il ne s'agisse duane action a l'occasion d'un immeuble poss6d6 par eux
en France commoe particulier, ce qui emporte attribution territoriale et
ex6cution.
(e) Ml. le Pr sident Jarry a prononce dans I'affaire Ternaux-Gandolphe un jugement semblable et motive aussi sur l'ind6pendance des souverainetes.-Gazette
des Tribunaux (3 Mai, 1828.)
G() Gazette des Tribunaux du 17 Avril, 1847.




RIGHTS  OF SOVEREIGNS.                         101
i" Attendu qu'en matiere de declinatoire le juge doit avant tout consulter les termes do 1a demande.,6 Attendu que l'action de Solon est une action personnelle qu'il motive
sur un pretendu engagement, dont la rupture lui aurait eause un prejudice.
Attendu que toutes leos expressions de la demande lui donnent le
caractere personnel et revelent qu'elle est dirigie ceontre le gouvernement
egyptien, et non contre un particulier.
" Attendu que pour apprecier cette demande, il ne faudrait pas
examiner un acte particulier ayant pour cause un interet prive, mais un
aete admiioittratif et gouvernemantal, intervenu entre un gouvornement
et unf fonotionna;re, auquel ii a et6 conf&er un emploi et une mission
dont le demandeur a df peser les consequences; qu'il serait en outre
necessaire de rechercher les causes de la rupture qui motive l'action; que
de pareilles appreciations ne sauraient appartenir a la juridiction frangaise.
"c Attendu que la demande ne tend pas seulement a faire valider des
saisies-arrets pratiquees  sur des marchandises appartenant soit an
gouvernement egyptien, soit a Ma6enmet-Ali personnellement, mais
d'abord et avant tout, prejudiciellemontj X obtenir contre cc gouverne.
mont la somme de (1010,00 franca de dommages-int6rdts.
" Rileoit 8. A. Me6hmet-Ali opposant au jugement rendu par d6faut,
le 25 aout 1846, et faisant droit, declare ledit jugement non avenun.
*,, Se declare incompetent sur la demande introduite par M. [*129]
Solon, et le condatmne aux d6pens."
CX. If a dispute arise between two Sovereigns as to the ownership of
private property, it is said(h) that the dispute cannot be decided in the
municipal tribunal of the State over which either Sovereign presides 
and that arrests or executions made by the decrees of such Courts would
be, in fact, Reprisals, and not civil proceedings.  This observation can
hardly, however, apply to a case where the property is locally situated
in the jurisdiction of either State.  In that case, however, much must
depend upon the mode in which the Judges who try the question are
appointed; their entire independence, as in England, of the Crown would
be a very material circumstance.  Much also might depend upon the
mode of conducting the trial, with respoot to there being a full opportuanfly of siatln6 the oeec of choosing the advocate, with respect to the
latitude allowed to him in the use of every argument considered by
him necessary for his client, the adherence to the rules of evidence
which are common to all civilized nations, the permission to produce all
witnesses deemed necessary by him; if due regard were paid to all these
requirements of justice, it would be difficult to deny the jurisdiction of
the State over property situated within its confines, although it might
appertain to a foreign Sovereign.
The decision of the tribunal of a third country upon the property in
dispute between two Sovereigns, if the jurisdiction of the tribunal was
properly founded (forum rei sits,) hereditatis arresti,) is held to be binding upon both litigants.
CXI. Nations may, of course, invoke the arbitration of a third coun(h) Martens, 1. v. s,. 173.




102   PHILLIMORE ON INTERNATIONAL LAW.
try, or may voluntarily submit their claims to the decisions of its tribunals. Spain and Portugal, as we know from the Advocationes Hispanicte
of Albericus Gentilis,(i) submitted to the decisions of International Law
pronounced upon their captures in the Admiralty Courts of England.
rs*130]I   *Whether and how far the armies of a nation may be employed
[130 ];in vindicating the private rights of their Sovereign is a consideration of Public and Constitutional rather than of International Law;
but it is quite in accordance with the principles of that law that the
national armies should be employed for such an object.(k)
CXII. The same remark is applicable to the case of injuries affecting
the family of the Sovereign.  "c Le droit de gens," Martens observes,(l)
c n'est pas viold lorsqu'un souverain embrasse la juste cause des membres
de sa famille, dans des cas oui il serait en droit de proteger le moindre de
ses sujets, ou de preter le secours sollicit6 par un prince etranger."
The various domestic ties which, in the course of centuries, have bound
together the reigning houses of Europe, have in former times given to
them the appearance of a common family, from which all the kings of
Europe were descended. The French Revolution, and the events subsequent to it, have greatly effaced this appearance.(m)  The various customs which form a Code of Regal Comity, the notifications of accessions,
births, marriages, deaths; the interchange of presents and congratulatory
messages; the reception of foreign powers, the compliments paid to them
on their arrival and departure, and on their travel through the country,
do not seem to deserve any formal commentary in this work.
", On sent," says Martens, who touches lightly upon them,
[131] *("que tout depend ici des circonstances, et qu'il n'est pas question de droit parfait2'(n)
CXII. The personal rights incident to the Sovereign cease by his civil
as well as his natural death.
If the Sovereign have abdicated(o) or been lawfully deposed, and his
abdication or deposition be recognized by other States, there is no doubt
that any privileges accoirded to him during his residence in foreign countries, depend entirely upon the course which the authorities in those
countries deem  it expedient to adopt., His legal title to international
rights and favours has ceased.  This position is not impugned by the case
(i) Vide ante, vol. i. Introd. xxvi. p. 195.
(k) Martens, 1. v. ss. 173-4.
(1) Ib. s. 174. He refers, in a note, to the instances of Caroline Matilda in Denmark; Frederica Sophia in Holland; Marie Antoinette in France.
Flassan, Hist. de la Dipl. Frank. i. 378; ii. 286. Peace of Ryswick, art. 8, may
be consulted for some, among many instances of the private quarrels of sovereigns
supported by their subjects.
(mn) " Les liens de parentd ou d'alliance de famille entre les Cours ne donnent
aucun rang h leurs employes diplomatiques. Il en est de merne des alliances
politiques."  XVII. Reglement sur le Rang entre les Agens diplomatiques (19
Mars, 1815, art. vi.), Acte du Congres de Vienne, signe le 9 Juin, 1815. Martens,
Ree. de Tr. vol. x. p. 379.
(n) Martens, 1. v. s. 171.
"Europtische Vl1kersitte aber nicht Rechtspflichte," Kfiber justly remarks;
s. 49.
(o) Heffters, s. 57.
See the formal instrument of abdication of the Empire of Brazil by Don Pedro,
De Garden, Trait6 de Dipl. iii. 213-18.




RIGHTS  OF SOVEREIGNS.                          103
usually cited of Christina, the ex-Queen of Sweden.(p)  She lived many
years after her abdication, and was not only allowed royal honours, but
while resident in France put to death with impunity (1657) her chamberlain MIonaldeschi: "  Quod facttim/'," Bynkershoek says, "' Galli quamvis
indignabundi, impune transmiserunt ex'impotentia muliebri, dicet alter,
alter vero ex Jure Gentium  ut optimum  maximumque est."(q)  It is
clear, however, that Christina was justiciable for this murder before the
French tribunals, unless, perhaps, the French authorities had debarred
themselves by their previous acknowledgmenit of her title to the International Rights of a Sovereign.  In any case, her instant dismissal from
the kingdom was the very slightest vindication of the offended law which
France should have exacted.(r)
*Mary Queen of Scots, at the time of her pretended trial in    12]
England, had been de facto twenty years dispossessed of her   2]
crown; her son had been acknowledged as King of Scotland by all
Europe; she was styled, in her indictment, "c Mary, daughter and heir
of James V., late King of Scots; otherwise called Mary Queen of Scots,
Dowager of France:" and if her trial and execution were only impugnable upon the ground of the violation of her rights as a Sovereign, it
would be difficult to pronounce these acts a violation of strict International
Law. The atrocious guilt of her murder rests upon other grounds,
chiefly no doubt upon her forcible detention in England, " in violation"
(as Mr. Hallam admits) " of all natural, public, and municipal law."
CXIII. (a) It is important, however, to remark, that if a foreign sovereign become a suitor or a plaintiff in the Courts of another country, he
brings with him no privileges which can vary the practice or displace the
law applying to other suitors in those Courts; and, therefore, both the
Court of Chancery and the House of Lords decided that the King of
Spain, though suing as a sovereign prince, and in his political capacity,
in an English Court of Equity, was under an obligation to answer upon
oath to a cross-bill filed against him by the defendants to his suit;(s) and
the same doctrine had before been laid down with reference to a Republican Government, in the case of the Columbian Government v. Rothschild, in which the plaintiffs were described as the;" Columbian Government," and their counsel being desired to show who they were, and not
being able to do so, the demurrer to the bill was allowed, on the principle that the plaintiff must describe himself, so that the defendant might
come against him by a bill or a cross-bill.(t)  And in the case of Rothschild v. Queen of Portugal, the Court of Exchequer *held that
Her Most Faithful Majesty, being a voluntary suitor in a Court of [133
(p) De Martens, Causes C4I. ii.               (q) De Foro Leg. c. 3.
(r) Mr. Hallam says, "I should be rather surprised to hear any one assert that
the Parliament of Paris was incompetent to try Christina for the murder of
Monaldeschi" (Constit. Hist. chap. iii.); though he offers a stouter defence for
Elizabeth than almost any other historian.
See Strype's Annals of the Church, vol. iii. part 1, book ii. pp. 528-537, as to
the case of Mary Queen of Scots. The opinion of the Common Lawyers as to the
title. The Civilians as to the Law of Nations.
(s) King of Spain v. Hullett and Widder, 1 Clarke & Finnelly, 348, (A. D. 1833.)
S. C. in the Court below, I Dow. & Clarke, 160.
(t) 1 Simon's Rep. 94.




104   PHILLIMORE ON INTERNATIONAL LAW.
English Law, became subject, as to all matters connected with that suit,
to the jurisdiction of this Court of Equity; and was, therefore, compellable to answer to a bill filed against her by persons who were the defendants in an action which she had brought against them, but the plaintiffs
in the bill filed against her in the Court of Exchequer.(u)  In the case of
the Emperor of Brazil v. Robinson and Others, the Court of Queen's
Bench decided that the Emperor, having engaged in a commercial transaction, and bringing an action thereupon in the Courts of this country,
and being resident out of the jurisdiction, was not exempted from that
necessity of finding security for costs, to which any other person bringing
such an action would be subject;(x) and they held this decision to be
consistent with the principle of a former decision in which Lord Ellenborough had decided that such a privilege of exemption did attach to an
ambassador, who was in this country merely in his political capacity,
and concerning whom there was no reason to suppose that he was desirous
of leaving the country,(y) or going out of the jurisdiction.
[.134]                   *CIHAPTER    II.
EMBASSY-ANTIQUITY AND UNIVERSALITY OF ITS RIGHTS.
CXIV. WE now approach the subject of Embassies,(a) a part of International Jurisprudence which has taken deep root in the practice of
nations, and is therefore capable of precise treatment and clear exposition.
The principal rights and duties incident to Embassies have been recognized by all communities at all removed from the condition of savages.
*The whole subject may be conveniently discussed under the
['135] following general heads:
1. Who may send and receive Ambassadors?
(u) 3 Young & Collyer's Rep. 594, (A. D. 1839.)
(x) Emperor of Brazil v. Robinson and Others, 5 Dowling's Rep. of Practice
Cases, 522, (A. D. 1837.)
(y) The Duke de Montellano v. Christin, 5 Maule & Selwyn's Rep. 503, (A. D.
1816.)
(a) The principal authorities relied on for this subject areAlbericus Gentilis, De Legationibus, libri tres. The first good work on the
subject. Grotius, 1. ii. c. xviii. De Legationem Jure.
Zouch, De Judicio inter Gentes, pars i. iv. De qumestionibus debiti inter eos
quibuscum par est-solutio quoestionis veteris et novae, sive de legati delinquentis
judice competente dissertatio. Oxon: 1657.
Wicquefort, De Legato, translated by Barbeyrac, 1681. L'Ambassadeur et ses
Fonctions, 1746, last ed.
Bynkershoek, De Foro competente Legatorum. This treatise, though not without some characteristic defects of the' author, is by far the best that has been
written on the subject. Qu. Juris Pub. 1. ii. c. iii.-ix. Vattel, 1. iv. ch. 5, 6, 7, 8,
& 9. Martens, 1. vii. ss. 185-250. Kliiber, ss. 166-230, c. iii. Heffters, B. iii. ss.
193-230. Miruss, Das Europaische Gesandtschaftsrecht, Leipzig, 1847. Ward's
Law of Nations, vol. ii. c. xvii. Wheaton, Hist., pp. 48, 51, 95, 232-256, 496.
Fawlix, Droit Int. Pr., 1. ii. t. ii. ch. ii. s. 4. Wildman, I. c. 3.




EMBASSY.                            105
2. Is their reception obligatory?
3. Their Right of Inviolability.
4. Their Privileges of Exterritoriality.
5. May the Ambassador by any, and what, misconduct forfeit his
Rights and Privileges?
6. When the functions of the Ambassador legally cease.
CXV. Every nation, so far suijuris as to be capable of negotiating
in its own name with another nation, has the right of sending an Embassy
(droit actif-actives Gesandtschaftsrecht).
CXVI. Therefore, not only independent States have this, among other
jura mnajestatis, but dependent States, who have not an entire Sovereignty, may possess this right, if the nature of their connection with
the protecting State allows them the liberty of conducting their foreign
relations with other States.(b)
By the sixteenth article of the Treaty of Kainardgi,(c) concluded in
1774, between Turkey and Russia, the Hospodars of Moldavia and Wallachia, placed under the protection of Russia, are each entitled to be
represented by a charge' d'affaires, being a member of the Greek Church,
at Constantinople.
According to Vattel, a State which is under protection, or which has
contracted an unequal alliance, has retained, if it have not expressly renounced the right of Embassy.(d)
The Princes and the States of the German Empire, at the *time  *136
Vattel wrote, although under feudal subordination to the Emperor [136
(quoique (ils) relvent de l'Enmpereur et de l'Emnpire), preserved, in spite
of his opposition, their individual right of Embassy, and since the Peac e
of Westphalia have resembled a republic of Sovereigns.(f)
CXVII. There is no doubt that confederated States are collectively
entitled to the right of Embassy; the question as to the individual right
of each member of the Confederation is one of more difficulty.
On the one hand, it may be argued(g) that the Sovereignty of each
State is not impaired because it has entered into certain voluntary engagements with its neighbours, any more than the independence of an
individual is forfeited, by his having entered into a voluntary engagement with another individual. But this must, after all, depend, both in
the case of the State and of the Individual, very much upon the character
and nature of the engagements, however voluntarily contracted.
The question can only be answered by reference to the terms and conditions of the union by which the different States are bound together.(h)
CXVIII. In the ancient Republic of the Seven United Provinces,
the individual States were deprived of the right of Embassy, which was
lodged in the assembly of the States-General. Holland and Zealand,
however, had the singular privilege of presenting to the States the am(b) Bynkershoek, Q. J. P., 1. ii. c. iii. Qui recte legatos mittunt. Martens, s.
187. Vattel, 1. iv. c. v. Heffters, s. 200. Kliiber, s. 175.
(c) Klfiber, s. 175, n. 6.             (d) L. iv. c. v. s. 58.
(f) L. iv. c. v. 859.                 (g) Vattel, 1. i. c. i. s. 10.
(h) Merlin, Ministre Public, s. 2, v.
OCTOBER, 1855.-8




106   PHILLIMORE ON INTERNATIONAL LAW.
bassadors designated for England and France.  Holland chose one, and
Zealand the other.
Holland had also the right of sending a subject of its province, with
the Embassies from the other States, which were composed of two or
three persons.
CXIX. The United States of North America, in their first Federal
Act, gave the Right of Embassy to each State to be exercised with the
consent of Congress.  The President, *however, exercised the
['l3] Jexecutive power, nominated diplomatic agents, and concluded
treaties.  It is clear that foreign nations were exposed to great uncertainty in their relations with such a confederacy; and that the double
authority was inconsistent with the object of the Union.
In their second Federal Act this defect was in a great degree remedied.
This act forbids any State to enter into any treaty, alliance, confederation,
compact, or agreement with any other State of the Union, or with a
foreign State, without the consent of Congress.
Therefore Mr. Wheaton observes, ", The original power of sending and
receiving public ministers is essentially modified, if it be not entirely
taken away by this prohibition."(i)
CXX. In both these instances of the Seven United Provinces and of
the United States, there was one common centre of authority, in the
hands of which the individual members of the Union had lodged the
supreme executive power.  It followed, therefore, that in that power was
the Right of Embassy.
CXXI. In the Swiss Confederation, however, the case was different.
Each Canton preserved its right of sovereignty.  They had, indeed,
annual diets, but these diets constituted no centre of authority.. There
was no one body or council which represented the Confederacy in its
foreign relations. Each of the Cantons, therefore, contracted alliances
as they pleased.  The Roman Catholic Cantons were the only allies of
France; and at the death of Louis XV., the Cantons of Berne and Zurich
had contracted a particular alliance with each other.  "Aussi," observes
Merlin, " n'a-t-on jamais doute que chacun d'eux ne jouit du droit d'ambassade."(k)
CXXII. According to Vattel(l) there may be towns which are in
subjection to the general authority of the country in which *they
are situated, or to some other authority (villes stijettes-unter
landesherrliche Gewalt,) and which, nevertheless, enjoy the right of
embassy; and he instances Neufchedtel, and Brienne in Switzerland, which
had the droit de bannie're (js arnzorum), and as a consequence, the
right of legation; but Merlin, with justice, combats this position, and
says that it betrays that Vattel was a native of Neufchatel, and wished
to exalt the place of his birth, and Merlin adds, that a people cannot be
sovereign and subject at the same time; and that, though Neufchatel had
great civil privileges, and had been reckoned among the allies of the
Swiss Cantons, it had no right of legation according to theory, and that
according to practice it had, under the ancien reynime, acted through the
(i) Wheaton, vol. ii. p. 261.         (I) Merlin, Ministre Public, s. 2, v.
(1) Vattel, 1. iv. c. v. s. 60. Des villes qui ont le droit de banniere.




EMB AS SY.                          107
ambassador of Prussia, who, by the ninth article of the treaty of Utrecht,
had been recognised as "' Souverain seigneur de la principaute  de Neufchatel et Valengin."(m)
CXXIII. The question is often discussed in treatises, whether an
usurper has the Right of Embassy.
The answer must depend upon two considerations:-1. Whether the
country of the usurper has acknowledged him as the de facto sovereign;
2. Whether the foreign country has recognised him as such.
France, under Mazarin, for instance, admitted, without hesitation, the
ambassadors of Cromwell and rejected those of Charles.II. at the Congress
of the Pyrenees.
England, in 1641, not long before the occasion just mentioned, admitted the ambassador of John IV. King of Portugal, though she had
previously recognised only the Spanish Ambassador for Portugal.(n)
The consideration of this point has been in great measure anticipated
in the chapter on Recognition.(o)
CXXIV. A Sovereign who has abdicated his throne has no title, de
facto or de jure, to the Right of Embassy.
Upon this question all publicists refer to'the celebrated *case [139
of Leslie, Bishop of Ross, ambassador of Mary Queen of Scots.  139
CXXV. We have already discussed the legal status in England of
that unfortunate princess.  The question with respect to the rights of
her ambassador in the same country arose in the following manner.
Mary Queen of Scots was allowed, after her unwarrantable detention
as a captive in England, to send an ambassador to plead her cause before
the commissioners appointed by Elizabeth to try her.  She sent Leslie,
Bishop of Ross, in 1567. During the period of his embassy, he was
twice committed to prison upon the charge of endeavouring to effect a
conspiracy in favour of iMary against Elizabeth.(p)
It appears from the State Papers of Lord Burleigh, that the English
Government propounded to certain civilians the following questions.(q)
1. Whether an Ambassador, procuring an insurrection or rebellion in
the prince's country, towards whom he is Ambassador, is to enjoy the
privilege of an Ambassador?
2. Whether he may not, Jure Gentium et Civili Romanorum, be punished as an enemy, traitor, or conspirator, against that Prince, notwithstanding he be an Ambassador?
To these two questions they answered:-" Touching these two questions, we are of opinion, that an Ambassador procuring an insurrection
or rebellion in the Prince's country towards whom he is Ambassador,
ought not, Jure Gentium  et Civili Romanorum, to enjoy the privileges
otherwise due to an ambassador; but that he may, notwithstanding, be
punished for the same."
3. Whether, if the Prince be deposed by the common authority of
(m) Merlin, Ministre Pnblic, s. 2, ix.
(n) Ibid., vi. vii.
(o) Vide ante, ch. iv.
(p) Camden's Hist. 113. Ward. vol. i. p. 486.
(q) Burleigh's State Papers by Murden, 18. Ward, vol. i. p. 487, &c.




108    PIHILLIMORE ON INTERNATIONAL LAW.
the Realm, and another elected and invested of *that crown, the
Lt l40] Solicitor or doer of his causes, and for his aid (although the other
Prince do suffer such one to be in his realm) is to be accounted an Ambassador, or to enjoy the privilege of an Ambassador?
To this they answered:- We do think that the Solicitor of a Prince
lawfully deposed, and another being invested in his place, cannot have
the privilege of an Ambassador; for that none but Princes, and such
other as have sovereignty, may have Ambassadors."
4. Whether a Prince, coming into another Realm, and remaining
there under custody and guard, ought, or may have there his Solicitor
of his causes; and if he have, whether he is to be counted an Ambassador?
To this they answered:-" We do think that a Prince coming into
another Prince's Realm, and being there under guard and custody, and
remaining still a Prince, may have a Solicitor there; but whether he is
to be accounted an Ambassador, that dependeth on the nature of his
commission."
5. Whether, if such a Solicitor be so appointed by a Prince so flying,
or coming into another Prince's Realm-if the Prince in whose Realm the
Prince so in guard, and his Solicitor is, shall denounce, or cause to be
denounced, to such a Solicitor or to such a Prince under custody, that
his said Solicitor shall hereafter be taken for no Ambassador-whether
then such Solicitor or Agent can justly claim the privilege of Ambassador?
To this they answered:-(-'We do think that the Prince to whom
any person is sent in message of ambassador, may for causes forbid him
to enter into his lands, or when he hath received him, command him to
depart; yet so long as he doth remain in the Realm, and not exceed the
bounds of an Ambassador, he may claim his privilege as Ambassador,
or Solicitor, according to the quality of his commission."
This opinion of the English civilians is again referred to in this chapter, when the general subject of the inviolability of the Ambassador is
discussed. In the passage which has just been cited, the proposition of
International Law appears *to be correctly stated; but this, it
[*141] will be seen, cannot be predicated of the other portions of this
celebrated opinion.(r)
CXXVI. During the minority of the Sovereign, the Right of Embassy is lodged in the person or persons composing the Regency, or in
the minor himself, according to the constitutional law of the country of
the Sovereign.(s)
In France, during the Regency of the Duke of Orleans, the Cardinal
(r) See Preface to vol. i. of this Work, p. xxvii.
(s) Merlin, Ministre Public, s. 2, x. Kliiber, s. 176, n. e.
Vattel, 1. iv. c. iv. s. 42. Ministres de la Nation ou des R6gents dans l'Interregne:-"Le droit d'ambassade, ainsi que toutes les autres droits de la souverainete, reside originairement dans la nation comme dans son sujet principal et
primitif. Dans l'interregne, l'exercise de ce droit retombe h la nation, ou il est
d6volu It ceux X qui les lois ont commis la regence de l'etat. Ils peuvent envoyer
des ministres, tout comme le souverain avoit accouftum6e de faire, et ces ministres
ont les memes droits qu'avoient ceux du souverain."




EMBASSY.                              109
Dubois negotiated the Triple Alliance of La lHaye in 1717, by virtue of
Credentials, Full Powers, and Instructions, which were given in the
name of the King, then a minor.
In England, during the periods in which George III. was incapacitated by mental derangement for the transaction of affairs, the right of
sending embassies was vested in the Prince of Wales.
The Republic of Poland, during the vacancy of the elective throne,
exercised the Right of Embassy.
CXXVII. The maxim, delegatus non potest delegare, would apply,
generally speaking, to cases where the ministers of a State attempted to
delegate the Rights of Embassy.
If, however, the minister were armed, either by his original commission or by powers subsequently conferred, to appoint a delegate minister,
it would be clearly competent to him to exercise the authority.
After the death of Gustavus Adolphus at Lutzen, in 1632, the Senate
at Stockholm devolved the whole Government upon the Chancellor Oxenstiern.
*Ie nominated the illustrious Grotius as ambassador to
France, giving him credentials in his (the Chancellor's) own [*42]
name.  Richelieu, who then governed France under Louis XIII.,
refused to receive Grotius, on the ground that he ought to have received
his commission from  the Senate.  The Chancellor, however, demonstrated to Richelieu, that on this principle of rejection certain treaties
entered into between France and Sweden would be affected; whereupon
Grotius;was received, but, as Wicquefort observes, as ambassador of
Sweden, and not of the Chancellor who had given him his commission,
and in virtue of the procuration of the Senate.(t)
Some time afterwards the Spanish ambassador nominated certain public
ministers to carry on the negotiations of the Treaty of Munster. In
their commission, he recited that, by the Full Power granted to him by
the King of Spain, he (the ambassador) was authorised to substitute
(subrogare) other persons for the purpose of assisting him in the execution  of his office.  Wicquefort remarks, that these ministers were
received as the plenipotentiaries of the Crown of Spain, and not as the
delegates of the ambassador.(zu)
CXXVIII. The Viceroy of a province, especially of a distant province, has always been held ex necessitate rei to possess the Right of
Embassy.(x)
During the period when Spain governed Naples by a Viceroy, Milan
by a Governor, and Belgium by a Governor-General, the right to confer
upon others the jus legationis was *frequently exercised by these [*143]
high delegates of their Sovereign, and generally without contro(t) Merlin, Ministre Public, s. 2, x. Wicquefort, 1. i. s. 3.
(u) Merlin, ib. Wicquefort, 16.
(x) Merlin, ibid. Various instances are cited by him, viz., in 1524, 1562, 1577,
1588, to which, no doubt, many others might be added.
Vattel, 1. iv. c. v. s. 61, ascribes the jus legationis without hesitation to viceroys:
-" Agissant en cela au nom et par l'autorite du souverain qu'ils repr6sentent, et
dont ils exercent les droits;" and he expressly affirms that the Viceroys of Naples,
and the Governors of Milan and the Pays Bas, had this power.




110   PHILLIMORE ON INTERNATIONAL LAW.
versy;(y) though in 1646 the French ambassador in Switzerland succeeded in persuading the Cantons to refuse an audience at their General
Assembly to the ambassador of the Governor of Milan, on the ground
that this ambassador had no credentials from the Crown of Spain.(z)
During the time that Belgium was in the possession of Austria, foreign
diplomatic agents were sent to reside at Brussels, the seat of the
Governor-General's authority.
CXXIX. The same necessity and reasons have very generally caused
the power of imparting the jus legationis to be granted to the European
Governors of American or Asiatic dependencies.
The British Governor-General of India, the Spanish Governor of the
Philippines, and the Dutch Governor of Java, are examples which readily
occur.
The great Companies of European States, such as the Dutch, the
French, and the British East Indian Companies, have often possessed
this power.(a) But this authority cannot be presumed; it must be
conferred by the special and express grant of their respective Governments.(b)
CXXX. International Law, strictly speaking, is not concerned with
cases of rebellion. There is no doubt that rebellious subjects are not
entitled to the jus legationis in their communications with their Sovereign; the foundation of the right is wanting.  Nevertheless, when
rebellion has grown, from the numbers who partake in it, the duration
of it, the severity of *the struggle, and other causes, into the
[*144] terrible magnitude of a civil war, the emissaries of both parties(c)
have been considered entitled to the privilege of ambassadors so far as
their personal safety is concerned.(d)  " In hoc eventu," Grotius says,
(y) Queen Elizabeth in 1569, having possessed herself of money sent from Spain
to the Duke of Alva, refused to treat with the Duke's legate, " utpote misso a non
principe."  But Bynkershoek truly says, " satis eo ipsa Regina ostendit frivola se
exceptione uti, quam suum cuique reddere maluisse."-Q. J. P. 1. ii. c. iii.
Zouch, t. ii. 4, s. 7. An qui imperium  summum non habent legatos mittere
possunt.
(z) Merlin, ib.
(a) Bynkershoek, Q. J. P. 1. ii. c. iii.              (b) Merlin, ib.
(c) Bynk. 1. ii. c. iii. would allow the jus legatorum to the sovereign only, at
least until he be overthrown, and he cites with approbation two instances from
Tacitus:-1. In which Cerealis sent the legate of the rebellious Batavi to Rome
to be punished, (1. iv. Ibid. c. 75;) 2. In which Vitellius and the senate sent
ambassadors to Vespasian, who he says, coming from those who were at that time
suijuris, were entitled to the " sacrum legatorumjus;" whereas Vespasian's ambassadors would have been rebellorum nuncii. A third instance is that of Louis of
Bavaria, in 1327, who seized the legatees of the Pisans, " qui ipsum in urbem suam
recipere detrectabant."  Bynkershoek's own opinion is thus expressed; " Ut legatio
pleno jure utrimque consistat, status utrimque liber desideratur, qui si ab un& duntaxat
parte liber sit, ab ea& missi tantumrn jure legatorum utuntur, ab alia missi ad externum principem, habentur pro nunciis, ad suum, pro subditis, sic ut in eos princeps
exercere possit id jus, quod in reliquos subditos exercet.-Scissa in factiones
republics, interesse putem, penes quam partem stat rei agendi potestas, si penes
unam,ut ante stetit, nec aliorum, ad res agendas desideretur consensus, etiam huec
sola recte legatos mittit, et his competit quicquid veris legatis."
(d) Merlin, ib. xii.
Bynkershoek, however, observes (Q. J. P. 1. ii. c. iii.:) " Sed non aeque constant,
si subditi forte vel rebelles ad principes suos legatos mittant." —He instances the
ambassadors from the Netherlands in 1566, put to death by Philip II., and admits




EMBASSY.                               111
cc Gens una pro tempore quasi dume Gentes habetur."(e)  Peace and
order, under these circumstances, can only be restored, the shedding of
blood can only be stayed, through the medium of negotiation: negotiation must be carried on through negotiators, and negotiators cannot act
unless their personal securities *be guaranteed.(f)  We read in [*45
Livy, that when, in the early history of Rome, a Roman colony [*145
sent ambassadors to the Senate, they were warned to depart immediately,
"' ne nihil eos legationis jus, externo non civi comnparatum, tegeret."(g)
And on this ground Cicero argued that the Legati of Antony should
not be received.(h)
But we read in Caesar that some such considerations as have been
mentioned above, had caused the reception by Pompey of emissaries
even from  the fugitives and robbers of the Pyrenees; and by Cmesar's
directions, his officers endeavoured, though in vain, to open a negotiation
with Pompey, exclaiming, c Liceret me civibus ad cives de pace legatos
mittere? quod etiam fugitivis ab saltu Pyrenveo praedonibusque licuisset,
prsesertim ut id agerent, ne cives cum civibus armis decertarent."(i)
In truth, it must always be a question of circumstances, and incapable
of definition beforehand, when the citizen is to be considered as entitled
to the privilege of an enemy rather than the punishment of a rebel.(k)
The great revolutions of the world, such as the Revolt of the Netherlands, and of the British Provinces in North America,(l) could only have
that this act was specified in 1581 as one of those which caused the final rejection
of the Spanish dominion. Wicquefort, however, he says, is right (1. i. s. 2,) in
saying that Philip was justified jure stricto in this deed; that the reason which
founds the security of ambassadors, is that, being the subjects of another sovereign
whose interests they are bound to represent, they do not by embassy lose their
character and become subjects of the sovereign to whom they are sent; and that
this reason was wanting in the case of the rebels, who were, and remained, subjects of Philip; he admits, however, that the legatorumjus might have been, and
in 1609 was, granted to them.
(e) Grot. 1. ii. b. 18, 2.
(f) "Verum habetur, justis duntaxat hostibus esse jus legationis, et quod ab
allis aliquando legati admissi sunt id permissum, non in eorum favorem sed boni
communis causa cum alias omnia reconciliationis media tollerentur, mult6 magis
si hujusmodi legatis fides data est ea, omnino violanda non est."-Zouch, p. 2, s.
9, q. 16, De Jur. Fec.
(g) Liv. 1. vi. c. 17.                            (h) Phil. v. c. 8.
(i) Coesar, De Bello Civili, 1. iii. c. xix; see too, c. xviii.
(k) Merlin mentions two instances: —. The negotiation of the Government of
France through the mediation of England with the Reformers of Languedoc in
1704: a Treaty was signed between the crown and the rebels, differing only from
other treaties in being signed, " trbs humble requite des Reform6s du Languedoc
au Roi." 2. The negotiation with the Vendeans and Chouans.
(1) See some admirable remarks by Mr. Burke, " On the strange incongruities
which must ever perplex those who confound the unhappiness of civil dissension
with the crime of treason."  He adds:-" Wherever a rebellion really and truly
exists,-which is as easily known in fact as it is difficult to define in words,government has not entered into such military conventions, (e. g., as they had
entered into with the revolted colonies in North America; but has ever declined
all intermediate treaty which should put rebels in possession of the Law of Nations
with regard to war," &c. (Letter to the Sheriffs of Bristol.) See, too, his remarks
on the shameful violation of the Treaty of Limerick, ratified by King William III.,
under the faith of which Limerick and other Irish garrisons were surrendered
in the war of the Irish Revolution or Rebellion.-Tracts on the Popery Laws, ch.
iii. pt. 2.




112   PHILLIMORE ON INTERNATIONAL LAW.
been prevented from  producing a *state of perpetual warfare
1461] throughout the greater part of the globe, by a partial application
of the principle of Internation Law to the divided members of one and
the same State.
[*147]                 *CHAPTER  III.
EMBASSY-RIGHT TO RECEIVE.
CXXXI. STATES which have the right to send, have the right to receive embassies(a) (droit passif —passives Gesandtschaftsrecht.)
The active and the passive right of legation are inseparably connected,
and, as will be seen, the rule extends generally to the sending and reception of the same grade of diplomatic agents.
It is said by Kliiber and Miruss(b) that dependent States have not
necessarily the latter, because they have the former right. But it does
not appear on what principle this position is to be maintained, and no
authority is cited in support of it.  On the other hand, Vattzl, Martens,
Wheaton, and other writers, do not qualify the general principle which
has been laid down.
Perhaps, however, where the right to send is exclusively derived from
treaty, as in the cases of Moldavia and Wallachia above cited, the right
of reception not being mentioned in the instrument, cannot be inferred
as a matter of necessary implication.(c)
But, as a general proposition, the right of sending and receiving
embassies is inherent in all States; and it therefore follows, that to prevent the free exercise, in either way, of this right, would constitute a
very heinous violation of International *Law, a crime which, inasmuch as it affected the interests, would justify the interference
of all nations on behalf of the one which had been so injured.(d)
CXXXII. A State has a right to receive, as it has to send, an embassy; but a State is not under an obligation of duty to send or to receive
an embassy.
Upon the consideration of this last point three questions arise, viz:
1. Is a State bound, as a general proposition, to receive an ambassador
at all?
2. Is it bound to receive any ambassador duly commissioned?
3. Is it bound to allow a resident embassy within its territories (legationem assiduam?)(e)
CXXXIII. With respect to the first question, the sound opinion appears to be that a State is bound to give audience to an ambassador, and,
(a) Vattel, 1. iv. c. v. s. 51. Martens, s. 188.
(b) Kliiber, s. 176. Miruss, s. 80.
(c) Vide ante, p. 132.
(d) Vattel, 1. iv. c. v. s. 63. " De celui qui trouble un anutre dans l'exercice du
droit d'ambassade."
(e) Zouch, De Jud. inter Gentes, p. 2, s. 4. "An legatum aliquando admittere
non liceat."




EMB&SSY-RIGHT TO RECEIVE.                               113
except under most extraordinary circumstances,(f) to receive him for
that purpose within its territories and at its Court.
If, however, such circumstances do exist, some place must be specified-Vattel suggests, the frontier-at which the ambassador's message
must be received. A State may be aware that an ambassador is sent for
a mischievous purpose, or, it may be, from a third nation for a purpose
conceived to be inexpedient by the refusing State, e. g., reconciliation
with another State. In these cases, ex eo ob quod mittitur, it may refuse
the ambassador.
*CXXXIV. With respect to the second question, it may be [149
unhesitatingly answered in the negative.  It is in the discretion [*14
of the receiving State to refuse the reception of a certain diplomatic
agent; but it is not altogether an arbitrary discretion.  Some reason
must be alleged for the refusal: " Non enim," says Grotius, 4"omnes
admitti prscipit gentium jus: sed vetat sine causa rejici."(g)
A State cannot reasonably refuse to receive an ambassador on the
grounds of sex.(h)
The League of Cambrai in 1508, was signed by Margaret *of [*50
Austria, in the name of her brother, Charles V.  In the same   150
(f) Grot. 1. ii. c. xviii. s. 3. " Duo autem  sunt de legatis quae ad jus gentium
referri passim videmus, prius ut admittantur, deinde ne violentur. De priore locus
est Livii, ubi Hanno senator Carthaginiensis in Annibalem sic invehitur:' Legatos
ab sociis et pro sociis venientes bonus imperator noster in castra non admisit: jus
gentium sustulit,' quod tamen non ita crude intelligendum  est: non enim  omnes
admitti prsecipit gentium jus: sed vetat sine causa rejici-causa esse potest ex eo
qui mittit, ex eo qui mittitur, et ex eo ob quod mittitur."
Vattel, I. iv. c. v. s. 65. "Sans des raisons tres particulieres."  Wheaton's
Elem. s. 1-261.
(g) Martens, s. 199. "Du choix de l'ordre et du nombre des ministres," s. 200.
" Du choix de la personne du ministre;" and Pinheiro Ferreira's note on the latter.
In this instance his complaint against Martens is just: viz. that he was bound to
have expressed his own opinion, and not to have contented himself with a reference to other authorities. Grotius, note (f), last page. Bynkershoek, Q. J. P. 1.
ii. c. v. " Qui recte legati mittantur."'
(h) Zouch, De Jure Fec. p. 2, s. 4, Q. 9. "An feeminis legationes mandari possint," his opinion is, "'sed et quandoque fceminTe legationibus obeundis maxime
idonede habitse sunt:" he relies entirely on authorities drawn from Roman writers.
Merlin, Ibid., s. iii.
Bynk. Ibid., treats with contempt the argument that women were incapable by
the Roman law,-a rule, he says, violated in practice by the Romans, but otherwise of no avail: " nam de suis subditis princeps statuit pro arbitrio suo, de alienis
non etiam;" he observes that neither "ratio" nor "usus" exclude women from
being diplomatic agents. Not "ratio" "in feeminis enim  reperies quicquid in
legatis jure desideraveris;" not "usus " for Paschalius in Legato, c. xx., has accumulated instances of their employment: he cites passages from Plato, Plutarch,
and Tacitus to prove the abilities of women, and makes this curious Dutch pleasantry, "sed ne mulieribus, satis ut plurimuim  cristatis, cristos videor erioere,
plura non addo."
The passages in the Roman law will be found, Dig. 1. iii. tit. i. s. i. 5. ("Prsetor
edicto excepit) sexum dum ftminas prohibet pro allis postulare.  Et ratio quidemr
prohibendi est, ne contra pudicitiam sexui congruentem alienis causis se immisceant, ne virilibus officiis fungantur mulieres."
Ib. L. t. 7, s. 4. " Sed et eos, quibus jus postulandi non est, legatione fungi non
posse, et ideo in arenam missum non jure legatum esse Divi Severus et Antoninus
rescripserunt."
Ib. L. t. 17, s. 2. " Foeminse ab omnibus officiis civilibus vel publicis remotse
Bunt," &c.




114      PHILLIMO0RE ON  INTERNATIONAL  LAW.
place, Louisa of Savoy, mother of Francis, signed a peace, sometimes
called Le Traite des Dames.
It is said, that in the reign of Henry IV., France sent an ambassadress
to Constantinople. In 1645, Louis XIV. sent la Marechale de Guebriant
to conduct to Poland the Princess des Gouzaques, bride to the King of
Poland. Wiequefort says, erroneously, that she was the first female
diplomatic agent. The Duchess of Orleans negotiated as Plenipotentiary
the Treaty between France and England, which, in Charles II.'s time
detached the latter country from its alliance with Holland.
c" Minus frequentari," (says Bynkershoek) "cmulierum legationes res
certa est, sed non minus certa, etiam  olim  minus fuisse frequentatas.
Sed plus minusve sint fuerintve frequentatm, jus principis non tollit,
ejus igitur voluntas, etiam in hac causa, suprema lex est."(i)
CXXXV. A State may reasonably refuse to receive one of its own
subjects as a foreign diplomatic agent, especially if its constitution forbid
the subject ever to put off his allegiance.
One very good reason for refusing such a diplomatic agent, is the expediency of avoiding the very difficult question which may arise, from a
possible conflict between his privileges as a foreign ambassador with his
present and former obligations contracted as a subject: for it will be seen
that a class of these privileges is founded upon the fact that the bearer
of them is not a subject of the country in which he is residing as an
ambassador.
Bynkershoek(k) is of opinion that no objection exists to the employment of a subject; but he builds his opinion on the proposition that
there is no reason why a subject should not *serve two masters,
or rather be actively the subject of one and passively the subject
of another. Yet Bynkershoek himself is obliged to qualify his proposition with the condition that the interests of the two masters do not come
into conflict, or that, if they do, the ambassador take no part in them.
In France,(l) it has been for some time settled as a constitutional maxim
that subjects are not admissible as ambassadors.  An exception appears
to have been formerly made in favour of the ambassador from  Malta.
The Swedish Law equally forbids the reception of a subject as a foreign
ambassador.  The German Confederation refuses upon special grounds
to receive any Frankfort Burgher as the representative of any member of
the Confederation, except of Frankfort itself. (n)
As a State may exercise its right of refusal absolutely, it may also
exercise it conditionally.
A State may declare beforehand the terms under which it will consent
to receive its own subject as a foreign diplomatic agent. But if the sub(i) Bynk. De Foro Leg. c. xi. Q. J. P. 1. ii. c. v.
The "Qunestiones Juris Publici" were published after the treatise "De Foro
Legatorum."
(k) De Foro Legatorum, c. xi.
(1) De Callieres, in his Traite de la maniere de negocier avec les souverains,
speaks of this custom as peculiar to France; but if it ever was peculiar, it is not
so now, for such a rule would probably be now adopted by all the Great Powers.
Merlin, lb. v. Bynk. De F. L. c. xi.
(mn) Heffters, s. 202, n. 1.




EMBASSY —RIGT TO RECEIVE.                           115
ject be received without any such previously promulgated stipulation he
will be entitled to the full jus legationis.  But this is a point of which
the discussion belongs to another place.(n)
CXXXVI. That the exile is in any case, though more especially if
his return be forbidden by law, subject to the refusal of his own country,
cannot be doubted;(o) the only doubt is, as will be seen hereafter, whether he can escape, by virtue of his ambassadorial character, punishment
in the State which had exiled him, to which he has returned without permission, and therefore with an additional offence.
*In 1697, the English ambassador to France obtained permis- ['152
sion from the Government of that country to include among his  152
suite certain Frenchmen and refugees on account of their religion, without which permission Bynkershoek thinks France might have claimed
them  "e ut reverses exules."(p)
Still more justly may a State refuse to receive a criminal whose sentence
is yet unexecuted. A Dutchman condemned to a criminal punishment
by the Dutch East India Company fled from India to England, and was
sent by the latter country as a diplomatic agent to Holland.  Immediately
on his arrival at the Hague (1636,) the Dutch Company induced the
Government to put him in prison, from which, however, he was shortly
afterwards liberated, chiefly, according to Bynkershoek, because, the
States General were very anxious at that particular period to be on good
terms with England.(q)
The fact of the ambassador not being a native of the State which sent
him would not alone afford a reasonable cause for refusal.  The subject
of a third country might be the domiciled citizen of the country which
employed him as ambassador, and, even if he were not domiciled, no objection seems to lie against him, on the sole ground of his not being a
native.
CXXXVII. The private rank or birth of the ambassador, who is sufficiently ennobled by his Sovereign's choice, can constitute no ground of
refusal. The King of Spain employed Rubens as ambassador both to
England and Holland (1633.) A State, however, would for its own
honour justly refuse a notoriously scandalous person, and less justly but
lawfully any person known to be personally disagreeable to the head of
the State.(r)
*How far the religion of the ambassador can be considered an  *153
objection, will be presently discussed.(s) It is only necessary [*153
to state here that no State is bound to receive a Papal Legate or Nuncio,
armed, either by specific instructions or by the general Canon Law, with
(n) Story's Comment. on the United States, 1. 669. Miruss, s. 83.
(o) Bynk. Q. J. P. 1. ii. c. v. Zouch, p. 2, s. 4.
(p) Q. J. P. 1. ii. c. v.                 (q) Ibid. Merlin, ib. iv.
(r) Wicquefort, 1, s. 13. L'ambassadeur doit estre acgreable. "Le mesmne droit
de gens qui ne permet pas qu'on fasse violence ou outrage au ministre qui a est6
admis et reconnu, permet aux princes de ne point admettre un ministre dont ils
puissent recevoir du deplaisir." Wicquefort gives a catalogue of ambassadors
refused on this ground. The Duke of Buckingham, employed by Charles I., might
well have been rejected both by Spain and France on account of the insolence
and arrogance of his conduct.
(s) Vide post, RELIGION AND THE STATE. Heffters, s. 200, n. 4. Miruss, s. 94.




116   PHILLIMORE ON INTERNATIONAL LAW.
powers injurious to the Established Church or to the sovereignty of the
State over all causes, ecclesiastical as well as civil.  States have a right to
refuse the reception of such a minister, or to demand that these powers be
limited and defined, so as to be consistent with their safety, before the
bearer of them be admitted.
The notification of the refusal to receive ought to be made, if possible,
before the ambassador has left his own country, but it may be imparted
openly on his arrival, or tacitly by not accepting the letters of credit.(t)
CXXXVIII. The existence of a state of war between two nations by
no means relieves them from the necessity of receiving each other's ambassadors, not, of course, for the purpose of residence, but of audience.
It may be necessary to demand a passport or safe conduct, through the
intervention of a third State or of a herald, and what it is necessary to
demand may be refused; but the refusal cannot lawfully be grounded on
the mere existence of a state of war, for the greater the evil the more
stringent is the obligation upon nations to adopt the readiest means of
putting an end to it,(u) and especially those which are most likely to prevent or stay the shedding of blood.
CXXXIX. We have now arrived at the discussion of the *third
[.154] question propounded, viz.:-Is a State bound to allow a resident
embassy (legationem assiduam) within its territories?
The continuous residence of an embassy is, to speak strictly, a matter
of comity, and not of strict right.(x)
Nevertheless, so long a custom and so universal a consent has incorporated this permission of continuous residence into the practice of nations,
that the gross discourtesy of refusing it would require unanswerable
reasons for its justification, and would place the refusing in so unfriendly
an attitude towards the refused State, as to be little removed from a condition of declared hostility.
Grotius, indeed, says, "i Optimo autem jure rejici possunt, quoe nune
in usu sunt legationes assiduee, quibus quam non sit opus,(y) docet nos
(t) Miruss, s. 82.
(u) Vattel, 1. iv. c. v. s. 67. Comment on doit admettre les ministres d'un ennemi.
(x) Wheaton, El. 2, 261, 2. Merlin, Ib. s. 3. Heffters, s. 200. Ward, vol. ii.
p. 484.
Lord Coke, speaking of Henry VII., says, "that wise and politique king would
not in all his time suffer Lieger (i. e. resident) ambassadours of any foreign king
or prince within his realm, nor he with them; but upon occasion used ambassadours." -4 Inst. 155.
Charles I. expressed resentment against the Dutch for not sending a resident
embassy to England.-Wicq. Mem. touch. les Ambassadeurs, 25.
In 1660, a noble member of the Polish Diet complained of the continued residence of the French ambassador, "que le sejour de l'ambassadeur estoit suspect,
parceque les ambassadeurs ont accoustumes de se retirer des que leur 71gociation est
achevee."
In 1668, an attempt was made by various members of the Diet to send away all
ambassadors; it was resisted by the king and senate, but is said to have been one
of the chief causes of the dissolution of the Polish Diet.-Wicquefort, 1. viii.
(y) The Justinian law was unquestionably adverse to the notion of a resident
ambassador. It had no idea of protecting foreign commerce, "perniciosum urbibus
mercimonium" (Cod. 1. iv. t. 63, s. 3), which it forbad nobles to exercise, and which
it conceived might lead to a revelation of the secrets of imperial policy. The Code
contains a very curious law, beginning:-" cMercatores tam imperio nostro quam




EMBASSY-GENERAL STATUS.                               117
antiquitas cui illae ignorate;"(z) but *it must be remembered  *155
that since this opinion was expressed, a usage of two additional [155
centuries has imparted, according to the principles laid down in an earlier
chapter(a) of this work, a character approaching to that of positive law
upon this institution of resident embassies.
Vattel(b) therefore declares, that even in his time the custom was so
deeply rooted as to require excellent reasons for its abrogation by any
individual State.
*CHAPTER  IV.                             [*156]
EMBASSY —GENERAL STATUS.
CXL. WE: have now considered the Rights and the Duties incident to
the sending and receiving of embassies.  The next subject for discussion
is the Status which International Law ascribes to those who are so sent,
and to those who are so received.
This status is composed of rights stricti juris, resting upon the basis
of natural law and therefore immutable, and of privileges, originally not
immutable, but so rational in their character, and so hallowed by usage,
as to be universally presumed, and to become matter of strict right if
their abrogation have not been formally promulgated (a case almost
inconceivable) before the arrival of the ambassador.  The former are
usually described under the title of inviolability, the latter under the title
of exterritoriality.(a) It is with the former that we are at present concerned.(b)
CXLI. The right of sending embassies being *established, the
personal inviolability (inviolabilitas, inviolabilite, Unverletzbar- [157
keit) of the ambassador follows as a necessary consequence.
Persarum regi subjectos, ultra ea loca, in quibus foederis tempore cum memorata
natione nobis convenit, nundinas exercere minime oportet: ne alieni reyni (quod
non convenit) scrutentur arcana," &c.-Ib. s. 4.
(z) L. ii. c. xviii. s. 3, 2.             (a) Vide ante, vol. i. chap. v.
(b) Vattel, 1. iv. c. v. s. 66. Des MAinistres rdsidents. " La couftume d'entretenir
partout des ministres continuellement r6sidents, est aujour-d'hui si bien dtablie,
qu'il faut alleguer de tres-bonnes raisons pour refuser de s'y prater sans offenser
personne." Miruss, s. 82.
"Hodie tamen ita usurpantur ut sine illis amicitia vix stabilis inter populos
diversos coli videatur etsi nec minus usum habeat exploratorum."-Huberus de
Jure Civili, 1. iii. c. xii.
(a) The necessity of the case, the usage of foreign writers, the great convenience
of the term, will, it is hoped, justify the attempt to naturalize this word.
(b) Vattel, 1. iv. c. v. s. 55, ib. c. vii. s. 81, & s. 103. " Nous avons d6duit lindependance et l'inviolabilit6 de l'ambassadeur des principes naturels et n6cessaires
du droit des gens-ces prerogatives lui sont confirmees par l'usage et le consentement gen6ral des nations."
Heffters, s. 204, "ein so von selbst sich verstehendes Recht."  S. 205. "In der
Natur der Sache ist nun ein Mehreres nicht begriindet abs." u.s.w.
Kliiber, s. 203. " Den Gesandten raumt theils das natiirliche Viflkerrecht theils
daspositive der Europaischen Staaten besondere Vorrechte ein." u.s.w.




118   PHILLIMORE ON INTERNATIONAL LAW.
Every foreigner, indeed, is under the protection of the State in which
he is commorant, and is so far inviolable.
But this attribute is in a special manner ascribed to the representative of
a Foreign State, in whom the image of his sovereign and the majesty of
his country are as it were visibly present; therefore the expression of
sanctity (sanctitas, personne  sacre'e, Ieiligkeit) is often applied by jurists,
philosophers, and historians of all ages and countries, as applicable to the
bearer of an embassy.(c)
CXLII. Any offence committed against their person is or ought to be
considered by the State as an offence against the State itself (crime d'etat.)
The injury done to an ambassador is not merely an injury done to the
Sovereign and country which he represents, but a violation of the common
welfare and general safety of all nations.
Therefore there is a peculiarity incident to this right,(d) *viz.,
that an infringement of it, unlike the invasion of particular national interests, becomes immediately and directly a matter of general International concern, and entitles all nations to demand and enforce atonement for the offence and punishment of the offender.
CXLIII. The atonement and punishment, moreover, are to be measured
by a standard different from that which might satisfy an injury done to
a private subject.(e)
(c) Grotius, 1. ii. c. xviii. s. 1. "Passim enim legimus sacra legationum, sanctimoninam legatorumrn... sancta corpora legatorum."
lb. s. iv. 5. " Quare omnino ita censeo, placuisse gentibus ut communis mos,
qui quemvis in alieno territorio existentem ejus loci territorio subjicit, exceptionemr
pateretur in legatis, ut qui sicut fictione quadam habentur pro personis mittentium
senaties faciem secum attulerat, auctoritatem reipublicce, ait de legato quodam M. Tullius," &c.
Bynkershoek, De F. L. c. v. De Sanctitate Legatorum, &c. "Plus scire attinet,
quh ratione legati apud omnes, ut dixi, gentes habeantur sancti-Et si sanctum id
sit, quod ab injurit hominum atque defensum munitum est, ut esse dicit Marcianus in
1. 8, pr. ff De Rev. Divis., utque ex proprietate verbi deducit Festus in V. sanctum,
dicendum  videbatur sanctitatem  id legatis priestare, ne dicto factove offendere
liceat, quia imaginem principis sui ubique circumferunt, quia pacis et foederum
nuncii sunt et proxenetee, et sine his gentium societas et beata quies salva esse
nequit."
Vattel, 1. iv. c. vii. s. 81, & s. 92. "L'inviolabilit6 du ministre public, ou la
sfUretbe qui lui est due, plus saintement et plus particulibrement qu'ia tout autre ttranger
ou citoyen." Martens, s. 214. K1iiber, s. 203.
(d) Whether Vattel be right or not in the application of the principle of the law
to the case of the ambassadors of Francis I., put to death by the Governor of
Milan, through which city they were travelling to Constantinople, the principle
which he lays down is sound and true: " Et comme il n'en donna point de satisfaction convenable, Frangois Ier avait un tres-juste sujet de lui declarer la guerre,
et mdme de demander l'assistance de toutes les nations. Car une affaire de cette
nature n'est point un diff6rent particulier, une question litigeuse, dans laquelle
chaque partie tire le droit de son cot6; c'est la querelle de toutes les nations, int6ressees a maintenir comme sacres le droit et les moyens qu'elles ont de communiquer
ensemble et de traiter de leurs affaires."-l. iv. c. vii. s. 84. " Quiconque fait violence h un ambassadeur ou k tout autre ministre public ne fait pas seulement injure au souverain que ce ministre r6presente; il blesse la surete commune et le
salut des nations; il se rend coupable d'un crime atroce envers tous les peuples."Ib. s. 81.
(e) " Quid igitur est praecipuum in legatis? hoc videlicet, ut in eos, qui legatos
malB habent, severilis animadvertatur, atque ita ob personarum sanctitatem pcena
atrocior statuatur, quam solet statui in eos, qui privatum quemcunque lIesissent." —
Bynk. De Foro Leg. c. v. Miruss, s. 337.




EMBASSY.-GENERAL STATUS.                             119
An ambassador, it will be seen, may, with, but not without(f), the
consent of his master, waive his privilege of exemption from the local
tribunals; but if wrong has been done or an insult offered to him, he
cannot appear as a common person demanding satisfaction in a court of
justice; he has a right to demand that the State in which he is residing
prosecute the wrongdoer as a public criminal.(g)
CXLIV. There is another peculiarity incident to this right which
requires observation. The Civil Law of Rome expressed a sound principle of jurisprudence, in declaring that it was competent to a person to
waive any advantage *which had been introduced, for his sake [*159]
only, into a covenant.(h)
The Sovereigns, therefore, of the State may waive the rights due to
them in the person of their ambassadors, but the ambassadors themselves have no such liberty, because these rights are not incident to their
office for their own private convenience, but for the honour of their
Sovereign, the good of their country, and the welfare of all nations.(i)
This principle is to be found in the Roman Law, even with respect
to the legatus of a subordinate city or province of the empire.  Suits
might not be instituted  against him: " Julianus, sine distinctione
denegandam actionem.  Merito; ideo enim *non datur actio, ne
ab officio suscepto legationis avocetur:"(lo) and again:-" De(l) [*160]
eo autenr  qui adiit hbereditatem Cassius scribit, quamvis Romae adierit
hoereditatem, non competere in eum actionem, ne impediatur legatio: et
hoc verum est."
This proposition as to the incompetency of the representative to consent to the renunciation of rights of inviolability belonging to his con(f) United States v. Benner, 1 Baldwin's (American) Reports, 240.
(g) Vattel, 1. iv. c. viii. s. 3.
(h) Cod. 1. ii. t. 3. De Pactis, s. 29. " Si quis in conscribendo instrumento,
&c., &c., quare et in hac cause pacta non valeant, cum alia sit regula juris antiqui,
omnes licentiam habere, his, quae pro se introducta sunt, renunciare."
(i) Bynkershoek, De Foro Leg., at the end of his xxiii. chapter, " Legatus an
jurisdictionem  prorogare et fori privilegio renunciare possit," arrives at pretty
much the same conclusion as is expressed in the text here: "Ego vero, quicquid
earum rerum sit, non ausim dicere, legatum, inconsulto principe, juri suo renunciare posse; ad quid enim legatorum privilegia, quam ut ipsi principibus suis
magis utiles sint, et eorum legatio nulla re impediatur?  Magis igitur h'c privilegia pertinent ad causam Principis, quam ipsius legati; sibi renunciatione sua
legatus nocere potest, Principi non potest." Then follows a position doubtfully
expressed even at the time he wrote, and which can now be scarcely admitted at
all:-Atque ita, consultd ratione,forte dicendum est, legatum in causa delicti nunqunam
privilegio fori renunciare posse, in causi civili non aliter, quam ut adversus eum
jus dicatur, non ut sententia executioni mandetur, in quid per eamn impediretur legatio,
ut in causA criminali tantum non semper impediri solet. Sed ad manum non
sunt ea gentium exempla, ut ex jure gentium e de re possim constituere."
For the " ratio," he refers to the passage cited below from the Digest. In
neither case, at the present time, can, it is conceived, the ambassador rege inconsulto
forego his right. De Foro Leg. c. xxiii. in fine.
Vattel, 1. iv. c. viii. s. xi. " Mais si l'ambassadeur veut renoncer en partie X son
independance et se soumettre h la juridiction du pays pour affaires civiles, ii le
peut sans doute, pourvu que ce soit avec le consentement de son maltre.-Sans
ce consentement, l'ambassadeur n'est pas en droit de renoncer'a des privileges qui
interessent la dignite et le service de son souverain, qui sont fondes sur les droits
du maitre, faits pour son avantage et non pour celui du ministre."
(k) Dig. 1. v. t. 1, De Judiciis, &c., s. 24.             (1) Ibid. s. 26.




120    PHILLIMORE ON INTERNATIONAL LAW.
stituent, is also applicable, by the practice of nations, if not by the
reason of the thing, to the renunciation of the privileges of exterritoriality.
CXLV. These rights of inviolability, flowing from the Law of Nature
and the reason of the thing, are applicable to all societies, and therefore
unalterable by any individual member of the community of nations.
These rights have been acknowledged and respected since the dawn of
civilization in all ages, and are not without vestiges of their recognition
even among barbarous tribes.
Grotius at the outset of his excellent chapter De Legationum Jure,
observes that the sanctity of ambassadors, the sacred rights of embassies,
the inviolability of treaties, are topics abounding in the works of writers
of all ages.(m)
161  *Bynkershoek remarks, that all treatises on the jus legationis
contain an accumulation  of passages from  Greek and  Latin
authors upon the inviolability of ambassadors: —" et quo quis eruditior
fuit eo plures auctoritates attulit ad rem, quam nemo negat, probandum."
In the few observations which follow, it is hoped that the censure of
Bynkershoek will not be incurred.
CXLVI. Even the Israelites, being under the peculiar dispensation
of the Mosaic law, appear to have acknowledged the inviolability of
ambassadors.(n)
The Egyptians clothed the functions of the ambassadors with a religious
character, and are thought by some to have possessed a written code
upon the subject; and this code Pythagoras is said to have introduced
into Greece.  The Greeks(o) held in high estimation and invested with
(m) "Passim  enim  legimus sacra legationum, sanctimoniam  legatorum, jus
gentium illis debitum, jus divinum humanumque, sanctum  inter gentes jus legationum, fredera sancta gentibus, fcedus humanum sancta corpora legatorum."Ib. L. 2, c. 18, s. 1.
De Foro Leg. c. v. in prin.: " Ad satietatem  sufficere possunt qua in hanc rem
congesserunt:-videlicet, Jacobus Cujacius, 1. xi. observ. c. 5. Albericus Gentilis,
De Leg. 1. ii. c. 1 & 14. Hugo Grotius (princeps juris publici magister,) 1. ii. c.
18, s. 1 & 6 in note, adque eum locum tantum non omnes Grotii interpretes."
Wicquefort, 1. i. c. 27, 28.
Montesquieu, De l'Esprit des Lois, 1. xxvi. chap. 21.-" Qu'il ne faut pas decider
par les lois politiques les choses qui appartiennent au droit des gens.
"Les lois politiques demandent que tout homme soit soumis aux tribunaux
criminels et civils du pays ou ii est, et  l'animadversion du souverain.
" Le droit des gens a voulu que les princes s'envoyassent des ambassadeurs;
et la raison, tiree de la nature de la chose, n'a pas permis que ces ambassadeurs
dependissent du souverain chez qui ils sont envoyes, ni de ses tribunaux. Ils sont
la parole du prince qui les envoie, et cette parole doit 6tre libre.
" Aucun obstacle ne doit les empecher d'agir. Ils peuvent souvent deplaire,
pareequ'ils parlent pour un homme independant. On pouvait leur imputer des
crimes, s'ils pouvaient 6tre punis pour des crimes; on pourrait leur supposer des
dettes, s'ils pouvaient 6tre arr6tes pour des dettes. Un prince qui a une fiert6
naturelle, parlerait par la bouche d'un homme qui aurait tout k craindre. II faut
done suivre, a I'egard des ambassadeurs, les raisons tir6es du droit des gens, et
non pas celles qui derivent du droit politique; que s'ils abusent de leur 8tre
representatif, on le fait cesser, en les renvoyant chez eux: on peut meme les
accuser devant leur maitre, qui devient par-lh leur juge ou leur complice."
(n) Chronicles, c. xix.
(o) W. Wachsmuth, Jus Gentium quale obtinuit apud Grsecos.
Alber. Gentilis, c. xvii. Qubedam Grsecorum.




EMBASSY.-GENERAL  STATUS.                          121
religious sanctity the office of ambassadors (7?rpEor;) and the inviolability  of heralds (x'pvx,  cacduceatores,)  E0o'Were also  priests,
appears to have obtained in the earliest periods of their history. It is
probable that from  the Greeks was derived *to the Romans the
very remarkable institution of the Collegium Feciale.           [162]
CXLVII. The concourse of lawless adventurers and freebooters who
laid the foundations of Imperial Rome built out of the resources of their
own genius, the chief foundations of their domestic society. The principles of civil obedience, the acknowledgment of the relations of family,
the administration of justice, the ordinances of religion, the institution,
in fine, of the State, seem, according to the doubtful notices of their
early annals, to have found their chief root in their own character, as
developed by the exigencies of their condition.(p)
This was not the case, however, with respect to the acknowledgment
and observance of the rules of right and the principles of justice in
their intercourse with other communities.  That the necessity of any
such rules and principles should, even in the infancy of her existence,
have been recognized by Rome, and that this recognition should have
been made a part of her constitution, is a fact which distinguishes her
from  all other nations, and which, at the time, gave early presage of
that extraordinary sagacity which characterized her subsequent career.
That such necessity should have been felt, was most remarkable;
that it should have been supplied from without, and not, like the other
parts of her constitution, from within-that a regular code of rites and
observances, respecting a branch of International Law, should have been
at once imported into Rome from a foreign source, is also a circumstance
of great peculiarity.  The account is given by Livy:(q) —- Ut tamen
quoniam Numa in pace religiones instituisset, a se (Anco Martio) bellice
ceremoniae proderentur, nee gererentur soluim  sed etiam  indicerentur
bella aliquo situ, jus ab antiqua gente *2Equicolis, quod nune [*163]
Fetiales habent descripsit quo res repetentur.(r)
The Fecial institution lasted as long as the free Republic. It withered
in the civil wars; and though the name and the title of its chief officer,
that of Pater Patratus, existed in the time of the first Cesars, all trace
of both name and thing disappears in the reign of Tiberius.
The office and functions of the ambassador, however, retained the
sacred inviolability which had been among the attributes of the Feciales.
(p) Geist des romischen Rechts, u.s.w., von Rudolph Ihering: Leipzig, 1852.
(q) Lib. I. c. 32.
(r) "Legati nomen fecialis tenet cum ad fcedus feriendum  ant indicendum
bellum profiscebatur, ad jubendum alicunde aliquem decedere, ad aliquem dedendum."-Alber. Gentilis, 1. i. c. 12, De Jure Feciali et Patre patrato. Grot. ubi sup.
s. 10, in fine. Vide ante, vol. i. App. p. 491.
OCTOBEtR, 1855.-9




122    PHILLIMORE ON INTERNATIONAL LAW.
[*164]                    *C1HAPTER V.
AMBASSADORS-ROMAN LAW.
CXLVIII. (a)IT is necessary to notice certain passages relating to
the jus legationis, which occur in the Digest of Justinian, for two reasons:-First, because, though often misapplied, they have furnished
materials for writers on this branch of international jurisprudence.
Secondly, because they do contain principles, and, in one instance at
least, a direct enactment, applicable to the present subject.
The "legati" mentioned in the Roman Law were not ambassadors
from foreign independent states, but delegates(b) from provinces or municipalities subject to the Roman empire.  It is to these officers that the
passages in the Digest apply, with one very memorable exception. That
exception is to be found in the opinion of Pomponius, set forth under
the title "De Legationibus."   " Si quis" (he says) "tlegatvum  hostium
pulsdsset contra jus gentium id commissum esse existimatur, quia sancti
habentur legati: et ideo cum legati apud nos essent gentis alicujus cum
bellum  eis indictumrn  sit, responsumr  est, liberos eos manere.  Id eninm
165 jri gentiunm conveniens esse.  Itaque eum qui legatum *pulsas[  165] set, Quintus Mucius dedi hostibus, quorum  erant legati, solitus
est respondere."(c)
It is impossible to deny that here is a plain and direct incorporation
of that important part of International Law, which relates to ambassadors, into the Municipal Law of Rome.
But in every other instance the Justinian law respecting tclegati"
applies, as has been observed, to a class of deputies or delegates from
portions of the empire.
With respect to Criminal Jurisdiction, these laws pronounced the
legate and the members of his suite to be justiciable at Rome for
offences committed during their legation, though for offences previously
committed they might claim to be tried at home (domum revocare;)(d)
and this law was chiefly relied upon by the civilians, as warranting their
opinion that Leslie, Bishop of Ross, the Ambassador of Mary Queen of
Scots, was justiciable in England for seditious practices committed in
that kingdom.  This obvious misapplication of the Roman Law has been
commented upon by most subsequent jurists.(e)
(a) Bynkershoek devotes a whole chapter to this subject (De Foro Leg. c. vi.,)
which begins, " Quamvis non de Populi Romani, sed de Gentium jurisprudentia
agamus, non abs re tamen erit de Jure Romano quaedam proemonuisse, cum qui id
audit, voceen fere omnium gentium videatur audire, cumque etiam id jus, quod certa
ratione in quibusdam legatis constitutum est, ad omnes alios imprudentia quorumdam traduxerit."
(b) " Tantum non erant procuratores et mandatorii." —Bynk. ib.
(c) Dig. L. t. vii. s. xvii. de Legationibus. Tit. lxiii. Cod. de Legationibus.
(d) Bynk. c. vi.
(e) Queen Elizabeth's council were wiser than her lawyers, as Wicquefort
observes: " Et de fait," (he adds) " il y a lieu de douter s'ils ne s'6toient point
trompes en ce qu'ils r'pondent sur le premier article: et si les Lois Romaines, sur




AMBASSADORS-IROMAN  LAW.                            123
With respect to Civil Jurisdiction, the Justinian laws conferred on
legates the privilege of claiming to have civil actions brought against
them on account of obligations contracted before the period of their
legation, remitted to their domestic tribunal (revocandi domum,) on the
ground that the business of their legation might be otherwise delayed or
impeded.(f)
But this privilege was not extended to obligations contracted
*" legationis tempore," on the ground that a facility would other- [*166]
wise be given them  of fraudulently possessing themselves of the property of other persons.
By the Roman Law a person might " domum revocare" actions brought
against him at Rome for obligations contracted not at his own home, but
",intra provinciam;" but if, being himself the plaintiff, he remitted the
cause home, he was compelled in his turn to defend himself there against
all actions that might be brought against him.
The Roman Law, however, would not allow the legate to bring such
actions, because he could not in his turn, on account of the avocations
of his legation, be subject to actions at the suit of others.  During the
time of his legation, therefore, he could neither be plaintiff, or agent for
another in a civil action-a rule which Bynkershoek is strongly of opinion ought to be adopted by International Law with respect to ambassadors.  It is manifestly unjust, he thinks, that an ambassador should be,
as by International Law he is, permitted to bring an action, and not be
amenable to one brought against himself.(g) Upon the same ground,
viz., C ne ab officio suscepto legationis avocetur," no action in rsem could
be brought against a legate, respecting any possession acquired by him,
previously to his legation.
The Roman Law therefore, relating to legates, bore some resemblance
to, and was not without its effect upon, International Law respecting
ambassadors; though the circumstances of the legate being the subject
of the Prince to whom he was sent, and of his being the deputy from a
portion of the same kingdom, materially affected the introduction of the
principles of the former into the latter law.  "Inter utrosque," (Bynkershoek says) "fuit aliqua similitude et *inde quod de illis preadi- [167"
catur scope et de his proedicari poterat, at non semper et             J
ubique."(h)
CXLIX. The Christian Church appears to have afforded the earliest
instance of resident ambassadors,(i) as she probably did of representative
assemblies.
We read in the Novells of Justinian of apocrisiarii,(k) sometimes also
lesquelles ils se fondent, ne doivent pas estre appliquees a ces ambassadeurs, que
les villes municipales, ou les colonies Romaines, envoyaient au S6nat ou a l'Empereur."-L'Ambassadeur et ses Fonctions, 1. i. c. xxvii.; et vide post.
(f) Bynk. ubi supr.
(g) Vide post, p. 192, &c., and 201. Courts of justice have held that a Plaintiff
Ambassador is liable to counter-demands in a court of justice, and that a prior
assault by a Foreign Minister will excuse a battery committed on him in selfdefence. Vide post, p. 182.
(h) Bynk. c. vi.                  (i) Heffters, s. 199.
(k) "Apocrisarius, ambasciatore o procuratore, d7roxptcrpios, legatus alicujus vel
procurator qui pro eo respondet, ab dirobpivoab, respondeo."-Forcellini, Lexicon.




124   PHILLIMORE ON INTERNATIONAL LAW.
called responsales, who seem to have discharged the functions of resident
ambassadors for the affairs of the Church at the court (in Comnitates sex
Princi2is curid) at Constantinople.
The right of sending these officers appears, strictly speaking, to have
been a privilege of the Patriarchs only, though occasionally exercised by
the Archbishop of Ravenna and other Metropolitans.  Afterwards, the
Apocrisarius or Responsalis was chiefly employed by the Pope at the
court of the Emperor.
*[168]    The Canon Law makes specific mention of the c legatorum *non
~"1"[  ]violandorunt  religion" in its enumeration of the subjects about
which the jus gentiunt was universally admitted to be conversant.(l)
The Church, however, was not always ablelto enforce the observance of
this important part of International Law. And among the many deeds
of lawlessness(m) which disfigure the period usually designated as the
Middle Ages, are to be found some,(n) though not many, violations of
the sacredness of the ambassadorial person.
To these violations the Papal claim of universal dominion and the true
spirit of chivalry were alike opposed.  The Emperor Frederic I. secured
the safety of the Papal legates who had misconducted themselves towards
him.  The oppressive tax upon foreigners, the droit d'aubaine, was even
in France, where it long maintained its footing, remitted in favour of the
foreign ambassador.  The Crusaders scrupulously respected the character
of the ambassador, even in their infidel foe.
CL. The infidel was taught by his Koran the sacredness of embassies,
Apocrisarius, Du Cange,-a very full and careful account.'"Responsalis, nuntius: interdum et Apocrisarius et qui Responsa sen negotia
Ecclesiastica peragebat Theodorus Responsalis venerabilis Ecclesice CeUarthaginis, in
Constit. Justiniani de Africana Ecclesid," &c.-Du Cange v. Responsalis, i.
See Nov. 6, c. ii. "Ne Episcopus ultra annum  extra Ecclesiam  suam degat.
Et illud," &c. " Propterea sancimus si quando propter ecclesiasticam occasioned
inciderit necessitas, hanc aut per eos qui res agunt sacrarum ecclesiorum (quos
apocrisarios vocant) aut per aliquos clericos hue destinatos anut ceconomos suos,
notam imperio facere, ant nostris administratoribus ut impetrant quod competens
est," &c. In c. iii. of the same work: " Ne Episcopi ad comitatum Principis accedent absque systaticis literis." The bishops are ordered, "' aut per eos qui vocantur
Referendarii sanctissimne majoris Ecclesise (i. e. Constantinople), aut per religiosos
Apocrisarios cujusque diceceseos sanctissimorum Patriarcharum suggerere si Imperio," &c.
See also Nov. 123, c. xxv. "' De Apocrisariis," c. xxvi. "Ne Episcopi legationis
tempore conveniantur."
(I) C. ix. Dist. 1. "Jus Gentium est sedium occupatio, mdificatio, munitio,
bella, captivitates, servitutes, postliminia, feedera, paces, inducie, legatorum non
violandorum religio-hoc inde jus gentium  appellatur quia eo omnes fere gentes
utuntur."
(m) Ward, 1. 280-8.
(n) Pitter, Beitrage zur V6lkerrechts Geschichte, 169-173. Miruss, s. 333.
After all that has been said on this subject, many of the examples cited resolve
themselves into cases where safe conduct in time of war had not been granted, and
where the ambassador was seized in his passage through a third country. The
passage cited by Ward from Joinville's Life of St. Louis, p. 67, certainly speaks
of it being, in the 13th century, the received custom in Christendom as well as
heathendom, when war broke out between princes, to detain as a prisoner and
slave the ambassador of a prince who happened to die. But this is stated parenthetically, with respect to Christendom, in the account of the Patriarch of Jerusalem being made captive to the Emirs of Egypt, and cannot be taken to be true
as a general proposition with respect to the usage of Christian princes.




EMBASSY-EXTENT  OF INVIOLABILITY.                      125
though he sometimes interpreted the injunction as being applicable only
to Mahometan nations,(o) and *the Turk for a long time persisted  * 1691
in considering the European ambassador as a tolerated spy in
time of peace, and a hostage to be imprisoned at the breaking out of war.
CLI. Lastly, it should be observed, that even during the ages of violence and lawlessness in Europe, it was the principle of the Roman Law,
which afterwards took deep root in Christendom, that an injury done to
an ambassador should be treated by the Sovereign of the wrongdoer as a
crime against the State.
*CHAPTER   VI.                      [*170]
EMBASSY-EXTENT OF INVIOLABILITY.
CLII. IT is not probable that it will ever be necessary to draw the
line of demarcation in practice between the Rights of inviolability, founded
upon the Law of Nature (jus gentiumn primavum,) and the Privileges of
Exterritoriality, founded upon usage and implied consent (jus gentiun
secundariurn,) and in most Treatises they are treated of together and with
little if any distinction.(a)
CLIII. Nevertheless it concerns the interests of International Jurisprudence, considered as a science, and it may be necessary in practice to
establish this distinction.  What then are the limits within which this
strict Right of Inviolability is circumscribed?
1. To what class of diplomatic agents?
2. To what persons other than the diplomatic agents themselves?
3. To what subject-matter does it extend?
4. At what period of time does it begin?
5. Over what period is it extended?
6. Is it affected by the breaking out of war between the country which
sends and that which receives the ambassador?
These are questions which require as precise a solution as the nature
of the subject will admit.
First, —The Right of Inviolability extends to all classes of public
ministers who duly represent their Sovereign or their *State.
This may be now considered as an axiom of International Law.(b)
Secondly, —The right attaches to all those who really and properly
belong to the household of the ambassador-such, to use the ordinary
description, as accompany him as members of his family or of his suite.(c)
Such appears to be the best opinion upon this point, though, as will be
seen hereafter, it has been a matter of controversy whether this right
(o) Miruss, s. 333. Merlin, Ministre Public, v. iii.
(a) Miruss, ss. 333-341, is very able and learned upon the point.
(b) Vide post, p. 217, as to their privilege of exterritoriality.
(c) Vide post, pp. 196-7, as to exterritoriality.




126   PHILLIMORE ON INTERNATIONAL LAW.
attaches under all circumstances in an equal degree to the suite, as to the
ambassador himself.(d)
Thirdly,-The right applies to whatever is necessary for the discharge
of ambassadorial functions,(e) c4 nam omnis coactio (Grotius says) abesse
a legato debet, tam  quve res ei necessarias, quam  que personam  tangit,
quo plena ei sit securitas."(f)  It seems to follow, therefore, that he is
entitled, among other immunities, to an exemption from  all criminal
proceedings, and to freedom from arrest in all civil suits.
The private effects, and, above all, the papers and correspondence(g)
of the ambassador are inviolable.
The questions as to members of his suite who are subjects of the State
to which he is sent, and the franchise of his hotel, are reserved for future
consideration.
[f*~1723   *(h)Fourthly, —The Right attaches from  the moment that he
] has set his foot in the country to which he is sent, if previous
notice of his mission has been imparted to it, or in any case, as soon as
he has made his public character known by the production either of his
passport or his credentials.
Fifthly,-The Right extends, at least so far as the State to which he
is accredited is concerned, over the time occupied by the ambassador in
his arrival, his sojourn, and his departure.
(i)Lastly,-The Right is not affected by the breaking  out of war
between his own country and that to which he is sent. The Porte, indeed,
used, under pretence of securing the European ambassador from the effects
of popular violence, but in reality in order to retain him as a hostage, to
order his incarceration in the prison of the Seven Towns.
(d) Vide post, p. 182, and note (n) Sa's case.
(e) KlUiber, s. 203. "Sic erstreckt sich auf alles, was als Bedingung der gesandtschaftlichen Wirksamkeit zu betrachten ist: ganz vorzdiglich auf Verrichtung
der gesandtschaftlichen Geschifte."  Miruss, s. 335.
(f) Grotius, 1. ii. c. xviii. s. ix. The Edict of the States General in 1679, which
is discussed by Bynkershoek in his ninth chapter (De F. L.,) is to the same effect
(y) " Onregarde done l'ouverture des lettres en temps de paix, de quelque maniere.
qu'elle s'ex6cute, comme une violation du droit des gens; mais la plus odieuse et
la plus honteuse contravention h la foi publique, c'est qu'un gouvernement soufire luim6me un tel abus dans ces bureaux de poste qui ont requ les lettres avec la taxe
sous le sceau du secret."-De Garden, Traite complet de la Diplomatie, vol. ii. p.
86, &c.
(h) Grot. i. ii. c. xviii. s. vi. c" Caterum admissa legatio etiam apud tanto hostes,
magis apud inimicos prcesidium habet juris gentium."
Vattel, 1. iv. c. vii. s. 83. "Quoique le caractere du ministre ne se d6veloppe
dans toute son etendue, et ne lui assure ainsi la jouissance de tous ses droits, que
dans le moment ou il est reconnu et admis par le souverain a qui il remet ses lettres
de cr6ance, d&s qu'il est entr4 dans le pays of il est envoyS, et qu'il se fait connaitre, il
est sous la protection du droit des gens: autrement sa venue ne serait pas sure."
Martens, I. vii. c. v. s. 214. De Garden, Trait6 complet de Diplomatie, vol. ii. p. 142.
Merlin, v. iii. Miruss, s. 335. Heffters, ss. 204, 210. Bynk. De F. L. c. ix.
(i) Klfiber, s. 203. Miruss, s. 336.




EMBAS S Y-INVIOLABILITY-CRIMINAL LAW.   127
*CHAPTER  VII.                          [*173]
EMBASSY —INVIOLABILITY-CRIMINAL LAW.
CLIV. WE have now to consider the very grave and difficult question,
whether the inviolability of the ambassador shields him from responsibility
to the criminal law of the State to which he is delegated-may he, with
impunity, conspire against the Sovereign (crime d'Etat,) or commit outrage
on the lives and properties of the subject (delit prive?)
CLV. With respect to criminal offences against the Private Law, these
may be of two classes: (1.) against the property, (2.) or the life of individuals. With respect to the former, the reason of the thing and the
nature of the ambassador's function unquestionably demand his exemption
from the criminal tribunals of the country.
The Sovereign may, according to the gravity of the offence, signify, in
various ways, his displeasure, or demand his recall; but he can neither
be punished nor arrested.(a)
In 1763, the Ambassador of Holland at the Court of the Landgrave of
Hesse-Cassel was accused of mal-administration of a testamentary trust.
The Government of Cassel called upon him to render an account, which
he refused to do, whereupon he was arrested with a view to obtain from
him the necessary documents connected with the trust. But the Landgrave was obliged to send a special embassy to Holland to make apology and reparation for this infraction of International Law.(b)
*CLVI. With respect to graver offences against the Criminal  174
Law, such as murder, the question is more difficult; but the true [174
proposition of International Law upon this subject is as laid down by
Grotius, namely, that the guilty person cannot be tried by the foreign
tribunals.(c)  This doctrine is also supported by Wicquefort(d) Zouch(e)
Bynkershoek,(f) and Vattel.(g)
Great authorities in the English law, Coke,(h) Comyns,(i) Hale,(k)
Foster,(l) held a contrary doctrine; but Blackstone(m) correctly states
that, whatever may have formerly been the opinion, this country follows,
as others do, the opinion of Grotius.
CLVII. With respect to crimes against the majesty of the State, such
as conspiracies against the Government or the Sovereign thereof, it appears
to be now the clear law that no judicial process in the State, against which
(a) De Garden, vol. ii. p. 149.             (b) Ibid, pp. 149, 150.
(c) Grot. 1. ii. c. xviii. 4, 5. Ward, vol. ii. pp. 515-16.
(d) " Wicquefort (Mr. Ward truly observes) composed his Treatise on Ambassadors to establish this proposition, he being at the time undergoing punishment
from Holland, while minister of Luneburgh at the Hague, for betraying the secrets
of Holland, in whose service he also was."
(e) Solut. Quaest. De Leg. del. Jud. Comp.    (f) De Foro Leg. c. 17, 18, 19.
(g) L. ii. s. 94, 5, 6.                   (h) 4th Inst. 15-3.
(i) Dig. art. Ambassador.                 (k) Pleas of the Crown, i. 99.
(1) Crown Law, 188. Vide ante, vol. i. p. 21.
(m) Comment. i. 253-4.




128    PHILLIMORE ON INTERNATIONAL LAW.
the offence has been committed, can be put in motion against the Representative of a Foreign Sovereign.
CLVIII. Such appears to be the best and most generally received
opinion; there are not, however, wanting writers who draw a distinction
between the commission of mala prohibita and mala in se, and between
2rivata and p2ublica delicta.  But the reasons of exemption apply to both
cases; namely, first, because the nature of the ambassador's functions
*demands the most absolute freedom in every case that may arise,
[ ]    securitas legatorum utilitati qua ex pmona est preponderat."(n)
Secondly, because the ambassador represents the person of another, and
is recognized in that capacity by the tacit compact by which he is admitted into the country;(o) it has been nobly said: etils sont la parole du
Prince qui les envoie, et cette parole doit etre libre."(p)
It is not meant, however, to convey the impression, either that the
ambassador is to escape without punishment, or that the State in which
he is discharging his functions is powerless to resist his open violence,(q)
or to stay his secret machinations against her public safety,(r) or to
redress the rights of a subject whom he may have criminally injured.(s)
It is the duty and the right of the injured State, under these circumstances, to oppose force to force, and in the event of secret machinations,
to secure the person of the ambassador and remove him from her borders, and in the case of the privatum delictum, to insist upon his being
tried by the tribunals or the proper authorities of his own country.(t)
[*176]   CLIX. One of the questions put to the civilians in the *case
[176 ] of the ambassador to lMary Queen of Scots,. which has been
already referred to,(u) was: —
"Whether,. if an ambassador be confederate, or aider, or comforter of
any traitor, knowing his treason toward that Prince, towards whom, and
in whose realm he pretendeth to be ambassador, is not punishably by the
Prince, in whose realm and against whom such treason is committed or
confederacy for treason conspired;" and to this they answered, "We do
think that an ambassador aiding and comforting any traitor in his treason
toward the Prince with whom he pretendeth to be ambassador in his
realm, knowing the same treason, is punishable by the same Prince
against whom such treason is committed."
(n) Grot. 1. ii. c. xviii. 4.
(o) Ward, vol. ii. p. 516. Grot. 1. ii. c. xviii. 4, 5. Huberus, De J. C. 1. iii. c.
12-22-24.
(p) Montesquieu, De 1'Espr. des Lois, Pt. II. 1. xxvi. c. 21.
(q) " Quod si vim armatam intentet legatus, sane occidi poterit, non per modum
pence sed per modum naturalis defensionis."-Grot 1. 1. c. xviii. 4, 7.
(r) "Pour ce qui est des crimes d'Etat les mesures les plus s6veres X l'6gard d'un
envoy6, soit qu'il ait agi d'apr6s les instructions de sa cour ou spontan6ment; X 1a
verit, il n'est pas permis, dans ce cas mrme, de lui faire subir une peine corporelle, mais le droit de le faire arreter et transporter, sous escorte, hors des frontibres, est reclam6 sans opposition par toutes — es puissances." —De Garden, Tr. de
Dipl. vol. ii. pp. 150-1.
(s) "Si le d6lit a cause un scandale publique, le Prince porte ses plaintes au
souverain du ministre, demande mnme le rappel ou la punition du coupable, et il
y a des exemples, qu'en pareille circonstance, on a interdit X l'envoy8 de parattre
i la cour.-Si le fait est av6rS, on ne saurait refuser son rappel ou sa punition." —
lb. 150.       (t) Kliiber, s. 211. Stephen's (Blackstone's) Comm. ii. p. 508.
(u) Vide ante, p. 165.




EMBASSY-INVIOLABILITY —CRIMINAL LAW.   129
The opinion of the five civilians at first was considered as decisive
against the Bishop, but he replied with firmness that he had entered
England under a safe conduct, and with the full privileges of an ambassador. Lord Burleigh said that no privilege could protect an ambassador
offending against the public majesty of the Prince in whose court he was
resident, and that such conduct rendered him liable to a penal action.
But the Bishop still insisted upon the privileges of an ambassador, and
observed, with equal courage and truth, that they had never been violated vi2 juris sed via facti, never by regular form of trial, but by violence.
He was detained for some time in prison, and then banished from the
country, but the Duke of Norfolk and other conspirators were put to
death.
This case has formed the text of all future discussions upon the subject of the inviolability of ambassadors.  The opinion of Elizabeth's
civilians has been deservedly and generally rejected, by the authority of
the best writers, as well as by the practice of the most civilized States.(v)
Case of Mendoza, the Spanfsh A[mbassador.(x)   [*177]
CLX. We now proceed to consider the leading cases in which the
doctrine of ambassadorial inviolability has been brought under discussion. In the year 1584, not long after the opinions delivered in the
Bishop of Ross's case, Mendoza, the Spanish Ambassador in England,
having conspired to introduce foreign troops and dethrone the Queen,(y)
it was a matter of difficulty how he should be punished. The Government, however, took the opinions of the celebrated Albericus Gentilis,
then in England, and of IHottoman in France, who both asserted that an
ambassador, though a conspirator, could not be put to death, but should
be referred to his principal for punishment; or (according to Hottoman)
sent away by force out of the country.(z)  In consequence of this, Mendoza was simply ordered to depart the realm, and a commissioner sent to
Spain to prefer a complaint against him.(a)
Case of L'Aubespine, French Ambassador.
CLXI. Three years afterwards, there was a conspiracy not only to
dethrone the Queen, but to put her to death. The circumstances were
these: —L'Aubespine, the French Ambassador, endeavoured to procure
the assassination of Elizabeth.  For this purpose he tampered, both by
himself and secretary, with William Stafford, a man about the Court.
Stafford refused to be concerned in it himself, but recommended Moody,
a noted ruffian, then in Newgate, to be the instrument. With this man
(v) Bynk. De Foro Leg. c. vi.
(x) The following cases are extracted from Mr. Ward's Law of Nations, vol. ii.,
and the Causes Ce61b. by De Martens.
(y) Camden, 296.            (z) Zouch, Solut. Quaest. 130.
(a) Camden, ub. sup.




130      PHILLIMORE  ON INTERNATIONAL LAW.
conferences were held by Trappy and Cordalion, both of them secretaries
to L'Aubespine.  Stafford revealed the plot.  Trappy was arrested, and
both *he and Stafford confessed the whole before the Council.
[*178] The ambassador was sent for, but said "'he would not hear any
accusation to the prejudice of the privileges of ambassadors."  When
Stafford was brought in, however, he assented to his knowledge of the
matter, but said it was first propounded by him. Stafford, on the contrary, protested on his salvation that the first he knew of it was from
the ambassador. Lord Burleigh then reproached him with the design,
yet never thought of trying him.  All that we can find is, that he bade
him beware how he committed treason any more; that the Queen would
not by punishing a bad ambassador, prejudice the good; and that he was
not acquitted from the guilt of the offence, though he escaped the punishment. (b)
Case of one of the Retinue of the 1Duc de Sul2y, French Ambassador.
CLXII. In 1603, the Due de Sully, then Marquis de Rosny, being
ambassador at London, one of his retinue quarrelled at a brothel with
some English, one of whom he killed. The populace rose, but were
quieted by the Lord Mayor, who demanded justice.  Justice, however,
was not done by the magistrate, but by Sully himself, who assembled a
council of Frenchmen, condemned the man to death, and not till then
delivered him to the civil power. James I. pardoned him, but no attempt
was made to try him by the English law, and Sully delivered him up
solely for execution.(c)
[*179]  Case of ]izo&osa and Colonna, Spanish Ambassadors.
CLXIII. In the reign of King James I. of England, the Spanish
Ambassadors, Inoyosa and Colonna, endeavoured to breed a disturbance
in the country, by informing the King that the Duke of Buckingham
meant to imprison him by means of the Parliament, and to transfer the
regal authority to the Prince of Wales. Both the Court and the Parliament deemed this a scandalous libel, but knew not how to proceed with
the ambassadors.  Sir Robert Cotton, who was consulted, wrote a tract
called "c A Relation of the Proceedings against Ambassadors who had miscarried themselves," in which he asserts, that an ambassador, representing
the person of a Sovereign Prince, he is by the Law of Nations exempt
from Regale Tryale; that all actions of one so qualified are made the act
of his master, until he disavow them; and that the injuries of one absolute Prince to another is factum  hostilitatis, not treason, so much doth
public conveniency prevail against a particular mischief."  He then states
(b) Camden, ad an. 1587.
(c) MWm. de Sull. t. ii. pp. 191, 192. Another and a very curious question arose
out of this case; the French contending that, although James might remit the
execution of the man in England, yet, being a Frenchman, and judged by his own
tribunal, he could not grant him a pardon.




EMIBBA SSY-INVIOLABILITY —CRI I INAL LAW.   131
various examples of ambassadors who have had violence put upon them
by way of prevention, rather than punishment; none of them amounting
even to a design to try them; and then recommends that some of the
chief secretaries should wait upon the Ambassador of Spain, and, by wcay
of advice, desire him to keep his house, for fear of the people; that the
Prince of Wales and Duke of Buckingham  should complain of the
calumny in Parliament; that both Houses should, in consequence, wait
upon the ambassador, to request to know the authors of it, in order to
try them legally in Parliament; that if he refused, he should then be
confined to his house, and a formal complaint sent against him to the
King of Spain, requiring such justice to be done upon him, as by the
leagues of amity and the Law of NVations is usual.  If the King refused
it would then be c" Transactio Criminis upon himself, and an absolution
of all amity, amounting to no less than war denounced."(d) This was
*the opinion of the English Court, complaint was made to the [*180]
King of Spain, and the ambassador allowed to depart, but without the usual presents.(e)
Case of M. de Bass, Mlinister from France to Cromnwell.
CLXIV. In 1654, M. De Bass, Minister from France to Cromwell,
was accused of a conspiracy against his life. The Council endeavoured
to make him undergo examination, but he refused, saying, that although
he would communicate with Cromwell personally, and prove to him that
he was not privy to the design, yet he would not submit to interrogatories before a judge; for, being a public minister, he would by so doing
offend against the dignity of his master, to-whom alone he was accountable for his actions. The Council contented themselves with ordering
him to depart the country in four-and-twenty hours.(f)
Case of the Ambassador of England at Constantinople.
CLXV. In 1646, the Ambassador of England at Constantinople was
summoned by the merchants before the Divan to answer some complaints.
The Ambassador representing his privilege, the Grand Vizier said, 4" he
was aware that it was a thing unheard of to summon an ambassador before the Divan, which would destroy the rights of ambassadors and the
Law of Nlations."  It is true, he was afterwards arrested and sent home,
but that being solely owing to the revolution in England, and the arrival
of a new minister, does not affect the question.(g)
* Ccase of Gyllenburg, the Swedish Ambassador.    [#181]
CLXVI. On the 29th January, 1717, the Government of England
(d) Cotton's Remains.              (e) Wicquefort, i. 393.
(f) Thurloe's State Papers, vol. ii. pp. 351, 437. Wicquefort, i. 396.
(g) Wicquefort, i. 398.




132      PHILLIMORE  ON  INTERNATION-AL LAW.
having certain information of a conspiracy to invade the country and dethrone the King, contrived, by Gyllenburg,(h) the Ambassador of Sweden,
at that time at peace with Great Britain, they ordered the arrest of that
minister, which was acordingly effected.  General Wade and Colonel
Blakeney, to whom the charge was intrusted, found him  making up despatches, which they told him they had orders to seize; and they even
insisted upon searching his cabinet, which upon the refusal of his wife to
deliver the keys they actually broke open. Gyllenburg complained of these
proceedings, as a direct breach of the law of nations, and some of the
foreign ministers at the Court of London expressed themselves to the
same effect, upon which the Secretaries of State, Methuen and Stanhope,
wrote circular letters to them, to assign reasons for the arrest, which satisfied them  all except Montleone, the Spanish Ambassador, who, in his
answer, observed, that he was sorry no other way could be fallen upon
for preserving the peace of the kingdom, than that of the arrest of a public
minister and the seizure of his papers, which are the repositories of his
secrets, two facts which seemed sensibly to wound the Law of Nations.(i)
This proceeding was, however, clearly justifiable as a measure of selfdefence.
Case of the Earl of Holcdernesse.
CLXVII. In 1744, the Earl of Holdernesse was sent from England
+[182] as Ambassador to Venice.  Passing through the -States of the
[ ] Emperor of Austria, he was arrested, with his servants, by the
Austrian officer in command, on the ground that England, though not at
war with Austria, was an ally of her enemies, and that orders had been
received to allow no Englishman to pass through that territory. The
Earl at last obtained a passport, after signing an undertaking that he
would submit himself to the Austrian authority if he should be declared
a prisoner of war.
This proceeding was a flagrant violation of ambassadorial rights, and
was so considered by Austria, who compelled the officer in command to
offer an apology in person to the ambassador.(k)
Case of M. Van Hoey.
CLXVIII. After the battle of Culloden, in 1746, the King of France,
fearing that the Pretender would be taken and treated as a rebel, persuaded M. Van Hoey, the Dutch Ambassador at his Court (through
whose agency certain transactions from time to time had been carried on
between the belligerent Courts of London and Versailles) to write to the
(h) See a fill report of this case in Martens, C. C. i. 75, under the title, " Arrestation du Baron de Gortz, ministre de Charles XII. Roi de Swede, sur la requisition de l'Angleterre, en 1717."
(i) Tindal, (Contin. of Rapin,) b. 28. The proceedings against Gyllenburg are
quoted by Bynkershoek to prove his opinion.-De For. Leg. c. xviii.
(k) De Martens, C. C. ii. App. 479.-Le Mercure, Hist. de 1744.




EMBASSY-INVIOLABILITY-CRlIMINAL LAW.   133
English Secretary of State for Foreign Affairs a letter, entreating that
the life of the Pretender might be saved.  This interference was greatly
resented by England, and the English Ambassador in Holland obtained,
in answer to his remonstrances, a severe letter of reproof from the Dutch
authorities to M. Van Hoey, who wrote in consequence an apology to the
English minister.(l)
Case of Da Sa.
CLXIX. In 1653, Don Pantaleon Sa, brother to the Portuguese Ambassador in England, quarrelled with an Englishman, Colonel Gerhard,
about some matter in the New Exchange; *a scuffle ensued, in [*183]
which Gerhard was severely wounded.  The quarrel was renewed
the next day, at the same place; but this time Sa came with fifty followers, all armed to the teeth, with the deliberate intention of destroying
his adversary. The result was, that many English were wounded, and
one person (a Mr. Greenaway,) accidentally present, killed; that the
Guards were called in, and fired upon by the Portuguese, several of whom
they took to prison; the rest, with Sa, took refuge in the hotel of the
Portuguese Ambassador.  The ambassador was afterwards required to
deliver up others of the delinquents, which he complied with, and his
brother was among them.  He interceded for his brother; but Cromwell
resolved, if he could, to try him by the law of the land.  He therefore,
consulted the most eminent of the professors of the civil law, to settle
how such a barbarous murder might be punished. But these disagreeing
among themselves, he left the decision of the affair to a Court of Delegates, consisting of the Chief Justice and two other Judges, three Noblemen, and three Doctors of the Civil Law. Before these Sa was examined.
At first he was supposed to be a colleague in the embassy, and he vaunted
himself that he was the King's Ambassador, " and subject to the jurisdiction of no one else."  He was made, however, to produce his credentials, by which all that could be proved was, that the King intended, in
a little time, to recall his brother, and to give him a commission to manage
his affairs in England.  This being judged insufficient to prove him an
ambassador, he was, without any farther regard to the privilege of that
character, ordered, as well as all the rest, to plead to the indictment.
Such is the accurate statement of the affair till it came to a jury, as
it appears from the account of Zouch, a civilian of eminence, and
himself a delegate in the cause.(m)
*It is evident, from  this account of the matter, and one of [184
more authority can hardly be met with, that had Sa been actually [184
ambassador, instead of forming part of the suite, the proceedings against
him would have been the same with those in the cases cited above. All,
therefore, that can fairly be drawn from this precedent, as to the decision
(1) De Martens, C. C. i. 311.
(m) Vide Zouch, Solut. Questionis, de Leg. delinq. Jud. Compet. in pruf. Sa
was tried by a jury under a Commission of Oyer and Terminer.-Hale, Pleas of
the Crown, i. 99.




134    PHILLIMORE ON INTERNATIONAL LAW.
Of the then existing law of England, is, that the suite of an ambassador,
if they committed murder, were liable to be tried for it by the Courts
of the country.  Zouch asserts expressly, that his own opinion upon the
main question agreed with that of Grotius and the best authors, as to
the exemption of ambassadors themselves; and it should appear, from
his Solutio Queestionis, that if Sa could have proved that he was an actual
ambassador, his plea before the delegates would have been allowed.(n)
Conspiracy of Cellamare.
CLXX. The cases which have been hitherto cited have been those in
which the representative of England has been a party. They happen
to be also among the most important cases on this subject of which
there is any record.
There are, however, others in which England was not concerned, and
which are of importance for the principle involved in them.  Such was
the celebrated case of the Conspiracy of the Prince of Cellamare, at
the Court of France, in 1718.
The Prince was an ambassador sent to the Court of France from the
Court of Spain, by the Cardinal Alberoni, at that time Prime Minister of the
latter country.  The Prince, *under the direction of Alberoni,,185-] organized a conspiracy against the existing  Government of
France; and the fact having been ascertained by that Government,
they gave orders for searching the papers of the ambassador in his presence and at his hotel. Certain of these papers they placed under the
joint seal of the King of France and of the ambassador.  They after.
wards selected those which related to the conspiracy, some of which
they published, in justification of their conduct. None of the ambassadors from the other Courts, then resident at Paris, complained of this
act as an infringement of the privileges of their order, though a protest
from  this body has always been usual when any injury has been done
to any member of it resideat at the same Court.
The Prince waRsplaced under custody until intelligence was received
of the safoe arrival of the French Ambassador from Madrid, whom
Alberoni hiad intended to detain.  When this intelligence arrived, the
Prince was conducted, under military escort, to the frontier.
The next year war was declared between the two countries.(o)
CLXXI. It has been held by high judicial authority, that if a foreign
minister commit an assault, he is so far deprived of his privilege that
battery committed on him by way of self-defence is legal, though even
(n) Ward's Law of Nations, vol. ii. p. 537, who takes his account from Lord
Somers' Tracts, 10, 65, et inf.
Mr. Ward remarks, that Zouch, in the course of his work, also examines the
Bishop of Ross's case, and the opinions of the English civilians upon it, so often
cited, and blames those opinions in the most unequivocal terms. It is true, it
ought to be observed, that he differs from Grotius in his opinion on the immunity
of the suite.
See also, De Real, Science du Gouv., i. t. v., and De Martens, C. C. ii. 490.
(o) De Martens, C. C. i. 139.




EMBASSY-INVIOLABILITY-CRIMINAL  LAW.  135
such conduct on the part of a foreign minister will not justify an arrest
on process.(p)
It is clear that courts of justice cannot inquire whether a person
recognized by the Government as a foreign minister was duly appointed
as such or not. The recognition of the Government is conclusive upon
the judicial tribunal.(q)
*Courts of law have considered that the reasons which necessitate the inviolability of the person of the foreign minister [*186]
apply to those of his train or suite, and therefore, that an assault upon,
and threats used towards, a Secretary of Legation, are punishable as a
criminal violation of International Law.(r)
CLXXII. Hitherto the Rights of Inviolability accruing to the
ambassador in the State to which he is accredited have been considered,
but it must frequently happen that on his way to this State he is obliged
to pass through the territory of a third State; and the question arises
as to whether he is equally protected and inviolable in this territory.(s)
It is clear that the third State may refuse to allow an ambagsador a
passage through her territory for the same reasons that a State may
refuse to receive him.
During the Middle Ages no doubt seems to have been entertained as
to the strict legality of seizing the Sovereign or his representative, passing without safe conduct, previously granted through such dominions.
In all the complaints made during the cruel captivity of Richard I. in
Austria, by that monarch himself, by the Pope, and by other mediators,
it does not appear that it was ever urged that the Duke of Austria had
violated the jus gentium, which, so far as embassies were concerned,
was certainly well understood by the Canon Law, and must have been
familiar to the Pope.
As late as the year 1464, Louis XI. justified the arrest, in France, of
the Ambassador from the Court of Brittany, as he was travelling to the
Court of England, to which he was accredited, though at the time there
was peace between Brittany and France.
Later still, during the Thirty Years' War, Richelieu arrested, in
France, the Elector Palatine, and subjected him to *a very close   187]
imprisonment, assigning as a reason, i" the right which all nations
had to arrest strangers who come into the country without a safe conduct."(t)
(p) United States v. Little, 2 Washington (American) C. C. 205. United States
v. Ortega, 4 ib. 531. United States v. Benner, 1 Baldwin's Rep. (Amer.) 240.
(q) United States v. Ortega, 4 Washington (Amer.) C. C. 531. Torlade v.
Barrozo, 1 Miles (Amer.) 366.
(r) Respublica v. De Longehamps, 1 Dall. (Amer.) 117. Exparte Cabrera, 1
Washington (Amer.) C. C. 232.
(s) Vide ante, p. 181, case of the Earl of Holdernesse.
(t) In reality to prevent his treating with the army of the deceased Duke of
Saxe-Weimar (the leader of a sort of army of freebooters) for the possession of
Alsatia.
Ward, i. 275, n. 2, 2, 312, citing Bougeant, Hist. de la P. de Westp. 1. 5, 3, 60.




136   PHILLIMORE ON INTER-NATIONAL LATW.
The ambassadors(u) of Francis I. passing through Milan on their
way to Venice and Constantinople, to which they were accredited, were
seized and executed by the Governor of Milan, the officer of Charles V.
They had, of course, no passport or safe conduct; but there was a truce
subsisting between France and Spain.
Vattel condemns this atrocity, not merely as a wicked murder, which
it unquestionably was, but as a scandalous breach of the International
Law (contr ela foi et le droit des gens,)(v) and one which therefore called
for the interference of all other States.
*CLXXIII. It may be doubted whether these murders were a violation of the juts legationis, though-regard being had to the fact that
these ambassadors were travelling through a country with which their
master had a truce,(x) which is, while it lasts, a peace-the doubt is not
very reasonable; but there can be no doubt that it was a shameful
infringement of general International Law, the utmost rigour of which
would only have authorized temporary incarceration upon strong suspicion.
We pass by the horrible affair of Patkul, to be shunned as a crime,
and not cited as an example.(y)
*In 1756, the English seized, in the Hanoverian territory,
[*188] upon the French Ambassador accredited to Prussia, and conveyed him to England.
In 1793, the Austrians seized, on the Lake of Chiavenna, the French
Plenipotentiaries accredited to Switzerland and Naples.
CLXXIV. It has been deemed right to mention these instances of
the practice of nations, but the sound rules which ought to govern this
question appear to be:
1. That, in time of peace, the ambassador is -of right inviolable in
his transit through a third country, but cannot claim the privileges of
exterritoriality as a matter of tacit compact, though they would probably
be accorded to him by the courts of all nations-and to ambassadors to
a Congress they are accorded.  The diplomatic agents of foreign powers
at Frankfort-on-the-Maine are allowed the same privileges, on their
transit, as the members of the German Confederation.(z)
(u) Wicquefort, 1. 1, s. 19, p. 433. Vattel, 1. xiv. c. vii. s. 84.
(v) The distinction which Wicquefort would establish between the two is
wholly inadmissible. What he should have said was, that the offence was not,
under the circumstances, "contra jus legcationis."  This point is well put in the
Traite complet de la Dipl. s. 213.
(x) It is strange that Vattel omits this circumstance.
(y) De Martens, Causes Celebres, t. ii. App. 467.
(z) Grotius says, 1. ii. c. xviii. 5, 1: "Non pertinet ergo hsec lex ad eos per
quorum fines, non acceptS venia, transeunt legati, nam siquidem ad hostes eorum
eunt, aut ab hostibus veniunt, anut alioqui hostilia moliuntur, interfici etiam pote runt... multoque magis vinciri." It is, however, impossible to defend the former proposition, and it is certainly not a principle of the existing International Law.
Vattel, 1. iv. c. vii. s. 84. " Les autres, sur les terres de qui il passe, ne peuvent
lui refuser les 6gards que merite le ministre d'un souverian, et que les nations so
doivent r6ciproquement; ils lui doivent surtout une entidre sufret6."
Merlin, ib. s. iv. s. v. Art. 12.
Wheaton, i. 269. "H He is entitled to respect and protection,' though not invested
with all the privileges and immunities which he enjoys within the dominions of
the sovereign to whom he is sent." Miruss, s. 365. Bynkershoek, De F. L. c. ix.




EMBASSY-CIVIL  JURISDICTION.                         137
2. That, in time of war, he cannot be secure from imprisonment
without a previously obtained permission to pass through the territory;
but that his life can in no case be taken, unless, *indeed, he
actually exercises hostilities in the country through which he [*189]
passes.
CLXXV. It is a melancholy reflection, that the opinion of Cicero
should be in advance of modern and Christian civilization on this point:
cc Legatorum jus divino humanoque vallatum prsesidio, cujus tam sanctum et venerabile nomen esse debet, ut non solurn inter sociorum jura,
sed etiam et hostium tela, incolume versatur."(a)
The true International rule would be, that the ambassador should be
allowed, in all cases, the jus transituLs innoxii.   This, though(b)
Bynkershoek endeavours to misunderstand it, was clearly the law of
Holland at the beginning of the eighteenth century. The Mexicans are
said to have adopted a similar principle of law; their practice was to
mark out a certain route, out of which it was not lawful for the hostile
ambassador to deviate.
It is well remarked by Zouch, that both the State which sends the
ambassador, and that to which he is sent, are injured by harm or insult
inflicted upon him by a third country.(c)
*C H APTE R VIII.                        [*190]
EMBASSY-EXTERTORITORIALITY-CIVIL JURISDICTION.
CLXXVI. WE have now to consider the exemption of the ambassador
from  the jurisdiction of the civil tribunals of the country to which he
is accredited.  With respect to this subject, the privileges of Exterritoriality have been established by the universal consent and custom of
all civilized nations, in order to secure the sanctity of the ambassador:
they have been thrown up, from time to time, as outworks to the citadel.
The presumption of law, both from the length of the usage and the
reason of the thing (testata et prwsumnpta mens gentium,) is so strong,
that, unless due notification of the intention to depart from the established
custom had been given, the ambassador would unquestionably be entitled
to demand the enjoyment of the exterritorial privileges ordinarily incident
to his station.
Kiliber, s. 176. " Persenliche Sicherheit ist das mindeste worauf alsdann der
Gesandte Anspruch zu machen hat."
(a) In Verrem, iii.
(b) Ib. Cf. Merlin, Ministre Public, s. v. Art. 12.
Bynkershoek, indeed, admits it at first: " Benigna ordinum erga legatos voluntas;
vulgo alioquin dici solet, jus legationis non valere nisi inter utrumque principem,
qui mittit legatos et ad quem missi sunt, caeterse privatos esse."-C. ix.
(c) De Judicio inter Gentes, p. 2, s. 4, s. 18.
Fselix, Droit Int. Priv. p. 279, contains the enactments in various municipal
codes respecting the treatment and protection of ambassadors.
OCTOBER, 1855. —10




138      PIHILLIMORE ON INTERNATIONAL LAW.
If in an evil hour, for its own welfare, such due notification had been
given by any State, and nevertheless, an ambassador, which is a most
improbable hypothesis, had been accredited to it, he would not be entitled
to claim, as matters strictijuris, those privileges the denial of which had
formed the subject of the notification.
CLXXVII. This proposition, however, must be qualified by two
important reservations:1. It is not competent to a State, by any notification, under the pretext of curtailing exterritorial privileges, to deprive an ambassador of
those privileges which are essential to secure performance of his functions, such, for instance, as appertains to the inviolability of his person.
2. A State so narrow-minded and ill-advised as to refuse the customary
[*1911 exterritorial privileges to the representative of *another State,
Li[ 1] must take care to act in this matter, impartially, towards all
nations.  The nation unfavourably distinguished from others by conduct
involving a departure from long usage of the civilized world, and, in a
manner, affecting its honour, would be entitled to consider such unfavourable distinction as a just cause of war.
It is, indeed, not to be imagined for an instant that any other nation
would accept this invidious distinction.  She would know that, however
nominally in her favour, it was really to her detriment, as a member of
that community, a part of which cannot be injured without endangering
the welfare of the whole.
CLXXVIII. Nevertheless, the exemption of the ambassador, his
family, and suite, from the jurisdiction of the civil, as well as the criminal
tribunals of the country in which he was resident, is not absolutely necessary for the preservation of the inviolability of the ambassador.  c" Persona," Bynkershoek truly remarks,(a) " quantumvis sancta, sola in jus
vocatione non violatur."  The Roman Law rightly defined violence, when
it said, " vis est et tune, quotiens quis, id, quod deberi sibi putat, non
per judicem reposcit."(b) The Priests, the Vestal Virgins, the Tribunes
of the People, were sacred and inviolable: but they were amenable to
the Civil Courts of law. The Pontifex was exempt, but only while he
was employed in the performance of his holy functions. The ambassador
was not, by the reason of the thing,(c) therefore exempt from the jurisdiction of the Civil Courts, which might be so exercised as not to infringe
on his inviolability.
CLXXIX. When it had become a custom of universal observance
among nations (placuisse gentibus ut communis rnos)(d) that the ambassadorial representative should be considered *fictione quCclam, in the
[*1921 presence itself of the august Principal, the advance was not difficult to another usage, which "fictione simili," considered the representative as being c qluasi extra territorium."
He was a foreigner, and therefore, according to Bynkershoek(e) and
(a) Bynk. De F. L., c. v.
(b) Dig. 1. iv. t. 2, s. 12. " Cmesar dixit: tu vim putas esse solum si homines
vulnerentur? vis est," &c.
(c) Bynk. De F. L., c. vii. c. viii.    (d) Grotius, ib., iv. 5.
(e) De F. L., c. v. c. viii.




EMBASSY-CIVIL JURISDICTIOlN.                             139
other eminent civilians, not amenable to the civil tribunal, except by
arrest; and, as an ambassador, he was exempt from  arrest.  He therefore remained the subject of the power which commissioned him; his
domicil was unchanged.
CLXXX. It was a further extension of the fiction of Exterritoriality
to render the ambassador's personal property exempt from  arrest; this
was little more than an application to ambassadors of the rule generally
adopted by nations with respect to private foreigners, that their personal
effects were considered, as much as their persons, to belong to their
domicil.
It has not yet been, and probably never will be, extended to real property, if an ambassador should happen to possess any in the country of
his mission.  The territorial possession is in no way attached to the
character of the ambassador.  The fiction of Exterritoriality cannot be
applied to immoveable possessions, and there is no doubt that they, with
their incidents, remain subject to the jurisdiction (forum  reale) of the
country in which they are situate.(f)  The only question, in
~such a case, would be the proper way of serving the ambassador [*193]
with notice of such an action.  It has been said that, technically speaking, notice ought to be served upon his domicil, i. e., his residence in his
own country; but Bynkershoek(g) justly observes, that a letter is at once
the most courteous and most effectual way of apprising him of his interest in the legal proceedings.
From this rule with regard to real property, is to be exempted the
actual dwelling-house of the ambassador,(h) which is intimately connected
with his personal inviolability.
CLXXXI. There are some exceptions, moreover, to the privilege respecting personal property, viz.:
1. When the ambassador becomes a trader or a merchant in the country to which he is sent, the property embarked by him, or accruing to
him, in this capacity, is liable to seizure and condemnation, at the instance
of creditors, in the same manner as the property of any other trader or
merchant.(i)
(f) Vattel, 1. iv. c. viii. s. 114, 115. Miruss, s. 343.
Bynk. De F. L., c. xvi.: " In rem  actione legatos conveniri posse, ubi degunt,
ubique receptum esse, et neminem, qui vel prolixe legatos defendit, contradicere... idque ideo, quia res ipsa convenitur, neque aliter legatus quam possessor rei,
cujus possessio cum probanda sit (1. 9, if. de Rei vindic.) vix aliter probari poterit,
quam ubi res est. Et hoc quidem in fundo, qui vindicatur, dubium non est, contra
quam in re, legationis causa hue transducta, vel empt&, equo forte," &c.
" Si cet envoy6 possede des biens fonds dans ce pays, il y est justiciable des tribunaux pour toutes les affaires qui concernent ses proprietes, suivant la competence
qu'6tablit Ie droit civil."-De Garden, Trait6 complet, 1. ii. 144.
(g) De F. L., c. xvi. " Igitur demus hoc legato, ut ejus honori, quam fieri potest
maximt, consulatur, ut et hunc recta in jus vocemus per epistolam, non per ambages, mittendam ad locum pristinne habitationis, sed ubi nune est," &c.
(h) Vattel, 1. iv. c. viii. s. 115. Wheaton, i. p. 279. Bynk. D. F. L., c. xiv. De
Legato Mercatore.
lb. c. xvi. " Quibus ex causis legatus possit conveniri in loco, ubi legatione fungitur, et quemadmodum tune facienda sit judicii denunciatio." Vattel, 1. iv. c. viii.
s. 114. Merlin, ib. s. v., Art. vi., vii. Martens, s. 217. Wheaton, i. p. 279. Kliiber,
s. 210.
(i) Vide post. Taylor v. Best and another, January 31, 1854. Queen's Bench.




140    PIHILLIMORE ON INTERNATIONAL LAW.
There may sometimes be difficulty in deciding whether the property
belong to him in the capacity of ambassador or merchant, and in all cases
of reasonable doubt, the ambassador should be allowed the benefit of it.
The law was correctly laid down on this subject of the merchant-ambassador by theDutch Tribunal, in 1720-1, when the *Envoy Extraordinary of the Duke of Holstein was sued by his creditors for mercantile debts contracted by him; and the Courts at the Hague granted a
decree of arrest and citation against him.  The arrest was to operate on
all goods, money, and effects within the jurisdiction of the tribunal, with
the exception of the moveables, equipages, and other things belonging to
him in his character of ambassador.
By c" money" (Penningen-deniers-pecunia numerata,) Bynkershoek
says the Court clearly intended to include only money embarked in the
particular mercantile speculations; and he adds, that as it must be always
difficult to distinguish this money from that which belongs to the ambassador for other purposes, it would be wiser and fairer to omit money,
and include it among the things necessarily appertaining to the office of
legation. (k)
This instance is memorable, not merely on account of the correct enunciation of the law to which it gave rise, but also because it furnished
Bynkershock with the occasion of writing his excellent treatise'" De Foro
Legatorum."
CLXXXII. In truth, every State ought, by expressly forbidding
their ambassadors to combine engagements in private trade or commerce
with the sacred duty of representation, to prevent any question of the
kind from  ever arising.  The Roman law on this point deserves to be
imitated: "t Enim qui legatione fungitur, neque alienis neque propriis negotiis se interponere debeat."(1)
It would, however, be perhaps difficult and harsh to prevent the ambassador from acting in the fiduciary character of trustee or testamentary
executor; any property accruing to him in these capacities is not within
the shelter of exterritorial privilege.
195    *CLXXXIII. 2. Another exception is furnished by the case
[95 ] of the ambassador who becomes voluntarily a plaintiff in a cause,
which act implies the consent of his master. The plaintiff-ambassador
makes himself liable to the counter-demands (reconventiones), which are
a mode of defence, and to condemnation in costs, if the suit fail.(m)
The Roman law says justly, " Qui non cogitur in aliquo loco judicium
pati si ipse ibi agit, cogitur excipere actiones et ad eundem judicem
mitti."(n)
(k) Ibid. c. xvi. " Fortasse sequius melius erit, quia in caus. dubi&, ut haec est,
pro legato solemus respondere, omnem pecuniam arresto eximere, et hane referre
inter res ad obeundam legationem cum maxime necessarias."
Ibid. c. xiv. "Et mihi hujus libelli scribendi occasionem preebuit."
(1) Dig. De Legationibus, 1. 50, t. vii. 8.
(m) Bynk. ib. xvi. Merlin, ib. v. Art. x.
(n) Dig. 1. v. t. i. 22. " De judiciis et ubi quisque agere vel conveniri debeat."
Bynk. ib. xvi. "Alia etiam sunt, etiamsi legatos non subditos dicamus, in
quibus forum nostrum non recte subterfugerint, quin et in quibus potestas quandam
in eos exerceri poterit, sed ejusmodi potestas, quee nostros cives magis defendat,




EMBASSY-CIVIL JURISDICTION.                              141
On the other hand, if the suit succeed, and the defendant prosecute
an appeal, which is also a mode of defence, the plaintiff-ambassador cannot decline the jurisdiction of the Superior Court.
CLXXXIV. 3. There is also a kind of defensive jurisdiction, so to
speak, which may be exercised over ambassadors as over other foreignersa jurisdiction which has for its object to prevent the ambassador from
doing some civil injury, namely, the jurisdiction of interdict, according
to the Roman, and of injunction, according to the English law; such
(een Mandclament van (Complainte an een Mandament van Sauvegarcde)
appears to have been exercised by the Dutch tribunal, in 1644, against
the Swedish Ambassador.
CLXXXV. So Albericus Gentilis and Bynkershoek(o) are both of
opinion, that the ambassador might, on account of the dangerous condition of his house, or for other causes threatening his neighbour with
injury, be subject to that class *of actions(p) familiar to the ['196]
Roman Law, through which the Proetor administered an immediate temporary remedy against an impending wrong.  It is clear that
the Provincial Legates of Rome were not exempt from this kind of jurisdiction;(q) and both the authorities above mentioned conceive that the
reason of the thing renders the principle of that law applicable in this
particular to modern ambassadors.(r)
CLXXXVI. With these exceptions, all civilized nations unanimously
accord to ambassadors complete exemption from the civil jurisdiction of
the country in which they reside.
These exterritorial privileges are also extended, by positive International Law, as much as the rights of inviolability, to the family, and
especially to the wife of the ambassador.  She is entitled to ceremonial
honours, according to the usage of courts, and any affront offered to her
is a special indignity to the ambassador: the same remark applies to his
family.  It is not competent to any member of the family to waive this
privilege.(s)  His suit or train (comites) are also entitled to these priviquam legatos cogat. Multis aucti sunt privilegiis, ut ipsi commodihs degant, nec
quicquam turbentur in obeunda legatione, non ut, vi illata, alios turbent, et res
eorum auferant. Quod si fiat, fortasse rect6 utemur iis actionibus, quae interdictionum naturam magis sapiunt, quam jussionum, &c.
(o) Ibid.
(p) Dig. 1. 39, t. 1. "De operis novi nunciatione."
Ib. t. 2. " De damno infecto et de suggrtundiis et protectionibus."
Ib. t. 3. "De aqua et aquim pluviTe arcendie."
(q) Dig. 1. v. t. 1, 28. "-AEdium nomine legatus damni infecti promittere debet
aut vicinum admittere in possessionem."
(r). "Explorata ratio facit jus istud ab mnajoribus legatis commune."-Alb. Gent
c. xvi. De contractibus legatorum.
Vattel, 1. iv. c. ix. 121. "L'epouse de l'ambassadeur lui est intimement unie,
et lui appartient plus particulierement que toute autre personne de sa maison.
Aussi participe-t-elle a son ind6pendance et a son inviolabilit6.  On lui rend
meme des honneurs distingues, et qui ne pourraient lui etre refuses,'a un certain
point, sans faire affront I l'ambassadeur."
(s) Gazette des Trib. No. 4982, 21 Aouft, 1841. Case of La Baronne de Pappenheim. Grotius, ib. iv. s. 3. Wicquefort, i. s. 28.
Bynk. ib. c. xv. De comitibus legatorum. "Ex consuetudine, qum nune vicit
inter gentes, veri legati (non provinciales et municipales quales fere Rome) domum
revocant, tam in contractibus quam delictis. Igitur in utrisque etiam domum revocabunt comites, sive majores, sive minores, nam et lixon, scoparii, stabularii




142   PHILLIMORE ON INTERNATIONAL LAW.
leges, a violation of which in their persons affects *the honour,
[,1973 though in a less degree, of their chief.  In this suite, couriers
employed in carrying despatches are of course included.
CLXXXVII. As the privilege is accorded to the suite on account of
the ambassador, and not on account of his Sovereign, it may be waived
by the former; and it was waived by the ambassadors at the Congresses
of Miinster and Nimeguen.(t)  But it cannot be waived in the case of
any subordinate officer of his household appointed by the Sovereign
himself.
CLXXXVIII. The Secretary of Legation being so appointed, is especially, and of his own right, entitled to these privileges,(u) and to a certain rank, his appointment being notified to the Minister of Foreign
Affairs. The Secretary to the Embassy, though unfavourably distinguished from the other in these particulars, has been usually considered
as an official person distinct from the general suite.(x) Difficulties have
arisen from persons, perhaps subjects of the State from which the embassy is sent, claiming, without sufficient warranty, to belong to it.  It
has therefore been enacted by the municipal laws of some countries, and
it ought to be the usage of all, to require a list of the persons composing
the suite to be delivered to the Minister for Foreign Affairs, or other
proper officer.(y).1.98-] *CLXXXIX. In England it has been already observed, that
especial provision has been made concerning the arrest of foreign
ambassadors, or other foreign public ministers, and their domestics, or
domestic servants, by the Statute 7th Anne, c. 12, which makes any
process against them, or their goods and chattels, altogether void; and
provides, that the persons prosecuting, soliciting or executing such process, shall be deemed violators of the Law of Nations, and disturbers of
the public repose, and shall suffer such penalties and corporal punishment as the Lord Chancellor and the two Chief Justices, or any two of
them, shall think fit.  But no trader within the description of the Bankrupt Laws, who shall be in the service of any ambassador, or public
minister, is to be privileged or protected by this Act; nor is any one to
be punished for arresting an ambassador's servant, unless the name of
such servant be registered in the office of one of the principal Secretaries
of State, and by him transmitted to the Sheriffs of London and Middlesex, or their undersheriffs or deputies.(z)
This Act itself was, as Lord Chief Justice Abbott remarked, "only
sequuntur forum legati, ut quicunque famulus sequitur forum heri sui."  According to the Roman Law, the domestics of the legatus were justiciable at Rome, as
he was. Vattel, 1. iv. c. ix. s. 120. Wheaton, i. p. 277.
(t) Wicquefort, i. s. 28, pp. 423-4.
(u) Ex parte Cabrera, 1 Washington's C. C. (American) Reports, 232. Respublica v. De Longchamps, 1 Dallas (American) Reports; vide ante, p. 117.
(x) Traite complet, &c., ii. p. 21. When attached to Papal legations they are
styled auditeurs de nonciature. Wheaton, ib. Vattel, ib.
(y) Wheaton, ib.
Bynk. ib. " Quum autem ea res nonnunquam turbas dederit, optimo exemplo
in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum, sed pessimo exemplo id nune ubique gentium negligitur."
(z) Russell on Crime, (ed. Greaves, 1843,) vol. i. p. 754.




EMBASSY-CIVIL JURISDICTION.                         143
declaratory and in confirmation of the Common Law. It must, therefore, be construed according to the Common Law, of which the Law of
Nations must be deemed a part."(a)
CXC. There have been various decisions on the subject of this Statute.  It has been held to be insufficient to claim  the discharge of a
defendant, as being servant to the Minister of the Prince, Bishop of
Liege; and that it was necessary to learn in what manner the Minister
was accredited.(b)  "sCertainly," said Lord Mansfield, in this case, ",he
was not ambassador, which is the first rank. Envoy, indeed, is a second
class; but he is not shown to be even an envoy; he was called minister,
it is true, but minister alone is an equivocal *term." And Lord [199
Mansfield also said, that the Law  of Nations does not take in [    ]
consuls(c) or agents of commerce, although received as such by the
Courts at which they are employed; and this case was expressly determined in an elaborate judgment in the very recent case of Viveash v.
Becker.(d)
The servant need not lie in the house, although he must do some service there.(e) He must be a real, not a nominal servant.(f) Many
cases arose upon claims of privilege by persons as servants of the Count
Haslang, the Bavarian Ambassador, of whom it was said that, although
a minister of a very humble rank, he had more domestics registered than
the ambassadors of the most potent powers in Europe.
In the case of Masters v. Manby,(g) application was made to the Court
for the discharge of the defendant, as being the ambassador's messenger,
and it was sworn that he sometimes executed service as such. The
defendant was a land-waiter at the Custom House, and the Court were of
opinion, that he could never be deemed a bonca fide domestic. In Triquet v. Bath,(h) the privilege was allowed to the defendant, as English
secretary of the ambassador, the defendant's affidavits being so framed,
that everything was sworn that in absolute strictness could be required,
to bring him within the description of a domestic servant; and the Court
held that it was sufficient if an actual bona fide service were proved;
and that if such a service were proved, they must not, upon bare suspicion, suppose it to have been merely colourable and collusive.
In Lockwood v. Coysgarne,(i) the claim of privilege was disallowed to
the defendant as the ambassador's physician, as not being a case of bona
fide service; and the Court said, it *would be of very bad con- [*200]
sequence if protections should be set up for sale, or made use of
merely for the sake of screening people from their just debts.  In Darling v. Atkins,(k) the privilege was disallowed to the ambassador's English secretary, he being purser of a man-of-war, which was held to be an
(a) Novello v. Toogood, 1 Barnwell & Cresswell's Rep. 562, A. D. 1823.
(b) Heathfield v. Chilton, 4 Burrows, 2015.
(c) Yide post, Chapter on CONSULS, in which these decisions are further mentioned.
(d) 3 Maule & Selwyn, 284.
(e) Evans v. Riggs, Strange, 797. Widinore v. Alvarez, cited ibid.
(f) Crosse v. Talbot, 8 Modern Reports, Case 200, (tempore Geo. I.)
(g) 1 Burrows, 401.      (h) 3 Burrows, 1478.      (i) 3 Burrows, 1676.
(kc) 3 Wilson's Reports, 33.




144   PHILLIMORE ON INTERNATIONAL LAW.
office incompatible with the situation of secretary to the ambassador. In
this case it was observed, that the ambassador's secretary is privileged,
the Statute being only explanatory of the Law of Nations, and the
words " domestic" and," domestic servant" are only by way of example.(l)
c The Statute only requires the names of the persons privileged to be
registered, for the purpose of proceeding against the parties criminally,
for a violation of the Act, and not for the purpose of exemption from
arrest." (mn)
In a very recent case it was decided, that though a foreign minister
does not lose his privilege of exemption of suit by trading in this country, his domestic servants do, under the limitation contained in the Statute on which we have been commenting.(n)
CXCI. In 1772, the Baron de Wrech, Minister Plenipotentiary of
the Landgrave of Hesse-Cassel at the Court of Paris, was recalled from
his embassy.  He was about to quit Paris without paying the debts
which he had contracted there.  His creditors, especially a Marquis de
Bezons, besought the Minister for Foreign Affairs not to grant the Baron
his passport. It was accordingly refused. All the corps diplomatique
at Paris remonstrated against this act as a violation of International
Law.
The French Minister, le Due d'Aiguillon, replied in an elaborate
memoir, drawn up by M. Pfeffel, upon the Rights of Ambassadors;
defended, upon the authority of Grotius and Bynkershoek, the right of
2011 using that species of constraint *against an ambassador, which
Ut    ] did not interfere with the exercise of his functions.  He further
appealed to the practice of other States, as warranting the step which
had been taken, and especially to that of Hesse-Cassel itself, which had
imprisoned a Dutch ambassador, in order to compel him to render an
account of a charitable institution, of which he had been the administrator. It was admitted that this attack on the person of an ambassador
was indefensible, but it was added that Holland had not denied the jurisdiction of Hesse-Cassel in the matter.
The Landgrave was compelled to make an arrangement with the creditors of the Baron de Wrech, before that minister could obtain his
passport.(o)
If this had been a proceeding between the States of Hesse-Cassel and
Holland, on the principle of reciprocity of practice, it might have been
justified, but, under the circumstances, it was a direct infringement upon
the general principles of International Law.
CXCII. The Courts of Justice in England have adhered to the proper
rule of law upon this subject. Any apparent exceptions will be found
to range themselves under that class of cases, in which the ambassador
has either been a plaintiff in a suit, or engaged as a merchant or trader
in the commerce of the country to which he has been delegated.
In the year 1694, a case in the High Court of Chancery, intituled
(1) Hopkins v. De Robeck, 3 Durnford & East's Reports.  (m) Ibid.
(n) Vide post, Taylor v. Best, Drouet and Sperling, Law Journal Reports, vol.
xxiii. part 5, N. S., p. 93.
(o) Causes C61lbres du Droit des Gens, par De Martens, t. ii. p. 110.




EMBASSY-CIVIL  JURISDICTION.                       145
Pilkington v. Stanhope,(p) was decided as follows: — The plaintiff
having brought a bill, to redeem an old mortgage, against the defendant,
who was then an Ambassador at the Court of Spain, the defendant
obtained an order that all proceedings should cease until his return from
his embassy.  The plaintiff moved to discharge the order; and upon
debate it was agreed a protection lies for an ambassador, quia profecturus, or quia moraturus, and may at law cast an essoin *for a year
and a day, and may afterwards renew it, if the occasion con- [*202]
tinues."
The Court ordered a stay of proceedings for a year and a day from
this time, unless the defendant should sooner return into England.
CXCIII. In 1854, an action(g) was brought in the Court of Common
Pleas against the Secretary of Legation of the King of the Belgians, a
Monsieur Drouet, as well as other Directors of a Society formed in Belgium and London for working the Royal Nassau Sulphate of Barytes
Mines. The action was to recover deposits paid by the plaintiff on shares
in the above-mentioned society.  Before the writ issued, in June, 1853,
M. Drouet, who was Secretary of Legation of the King of the Belgians,
instructed his attorney to write to the attorney for the plaintiff, to ask if
a writ was to be issued, and if it was, to direct that it should be sent to
him; and after the writ was issued, M. Drouet directed his attorney to
enter an appearance, which he did accordingly.  M. Drouet was abroad
from June till the beginning of December, on the duties of his office,
and in the meantime the action proceeded. M. Drouet pleaded the general issue by his attorney.  Notice of trial was given for the 20th of
December, and a special jury was obtained on the application of M.
Drouet.  On M. Drouet's return to England, in December, his attorney
took out a summons to stay all proceedings, or to strike out his name
from the proceedings in the action, on the ground of his privilege as a
public minister.  The summons was heard before Talfourd, J., who
ordered proceedings to be stayed till the fifth day of next term.   -
Lord Chief Justice Jervis said:-c There is no doubt that the defendant, M. Drouet, fills the office of a public minister, such as the privilege
contended for will attach to; and I think it equally clear that, if the
privilege do attach, as it undoubtedly does attach to the character of
minister, it is *not, in the case of a minister, interfered with or
abandoned by the circumstance of trading, as it would be if the [E203]
claim were set up in respect of the privileges of a servant of the ambassador, under the Statute of Anne.(r)  If an ambassador or minister violate the character in which he is delegated to this country, by entering
into commercial transactions, that raises a question between the country
to which he is sent and the country from which he is sent; but he does
not thereby lose any privilege to which he may be entitled, the privilege
being a general privilege, and the limitation attached to the privilege, by
reason of trading, being confined by the Statute of Anne to the case of
(p) Vernon's Cases, vol. ii. p. 317.
(q) Taylor v. Best, Dronet & Sperling, Law Journal Reports, vol. xxiii. p. 89,
(Common Pleas.)
(r) Vide post.




146   PHILLIMORE ON INTERNATIONAL LAW.
servants of the ambassador, who may lose the privilege.
Admitting, therefore, that the applicant in this case is a person entitled
to the general privilege, which he has not lost by any trading transactions into which he may have entered; if such be established to the
satisfaction of the Court, the question is whether he is entitled, under all
the circumstances of the case, to the privilege which he now claims.
Now, although it is admitted, that no process against person or goods can
be available against the person or goods of an ambassador or minister,
no case has been cited to show that an application like this, to stay all
the proceedings in an action against such a person, is available in the
Courts of this country.  On the contrary, it appears, on examination,
that in the case of servants, and the same principle must apply with
reference to ministers, the practice has been not to stay all proceedings,
but to relieve the person of the servant from the vexation of service of
process, or of bail; and the applications have hitherto been, as far as I
can understand them, where the party has been arrested, to discharge
him from the arrest on entering a common appearance.
It is contended, and perhaps it is doubted, that an ambassador or
minister has a privilege from suit, or, at all events, from such suits as
ultimately result in the taking of his *person, or of his goods
L2O4] necessary for his state or comfort; and that he cannot be compelled, in invitum or involuntarily, to enter into litigation in a country
in which he is resident; but it is admitted by all the foreign jurists,
that where suits can be founded without attacking the personal liberty
or comfort, or interfering with the personal privileges of the individual,
they may proceed."
Mr. Justice Maule said: " I think, on the ground that M. Drouet has
appeared in this action, and allowed it to go through certain stages, this
application ought to fail.  It is a grave question whether an ambassador,
or public minister, which M. Drouet undoubtedly is, is so far protected
as not to be liable in any manner, supposing him to object to the jurisdiction.  That question is not decided by any legal determination in this
country, nor, as far as judicial determinations go, do we find it so determined elsewhere. With respect to mere cases in which a special applition was made under the 5th section of the Statute of Anne, they were
cases in which servants of ambassadors, who had been sued and arrested,
were discharged on common bail. Now, there is a great distinction
between an ambassador and the domestic servant of an ambassador. The
ambassador has a privilege; and the privilege of his domestic servant
is not the privilege of the servant himself, but of the ambassador, and
is based on the ground that the arrest of the domestic servant might
interfere with the comfort or state of the ambassador. Where these are
not interfered with at all, the ambassador is not interfered with by the
suit; and the servant has no privilege except that which arises from the
privilege of the ambassador. It is an important point, and one fit to be
very gravely considered when it fairly arises, whether an ambassador is
liable to be sued by process not affecting his person or his goods; whether by such a process he can be brought, unwillingly, into the Courts
of this country, and have his rights determined on, perhaps even so as




EMBASSY-CIVIL  JURISDICTION.                        147
to interfere with his comfort.  A man could not stand by and without
care allow a suit to be *determined on which the decision would  *205
be binding upon him; and, therefore, it may well be questioned [2051
whether the privilege of the ambassador is not as extensive as the text
of Blackstone(s) alleges it to be."
CXCIV. In some countries the immunity of the ambassador has not
been left to rest upon the general recognition of International Law by
the Municipal Law, but has been made the subject of express enactment.
In England, Blackstone observes(t) that so few cases (if any) had
arisen, wherein the privilege was either claimed or disputed, even with
regard to civil suits, that our law-books are (in general) quite silent upon
it previous to the reign of Queen Anne, when an ambassador from Peter
the Great, Czar of Muscovy, was actually arrested and taken out of his
coach, in London,(u) for a debt of 501., which he had there contracted.
Instead of applying to be discharged upon his privilege, he gave bail to
the action, and the next day complained to the Queen.  The persons
who were concerned in the arrest were examined before the Privy
Council, of which the Lord Chief Justice Holt was at the same time
sworn a member,(x) and seventeen were committed to prison,(y) most of
whom were prosecuted by information in the Court of Queen's Bench,
at the suit of the Attorney-General,(z) and at their trial before the Lord
Chief Justice were convicted of the facts by the jury;(a) reserving the
question of law, how far those facts were criminal, to be afterwards
argued before the judges; which question was never determined. In
the meantime, the Czar resented this affront very highly, and demanded
that the Sheriff of Middlesex, and all others concerned in the arrest,
should be punished *with instant death.(b)  But the Queen [*206]
directed her Secretary to inform him, " that she could inflict
no punishment upon any the meanest of her subjects, unless warranted
by the law of the land; and therefore was persuaded that he would not
insist upon impossibilities."(c) To satisfy, however, the clamours of
the foreign ministers (who made it a common cause,) as well as to
appease the wrath of Peter, a bill was brought into Parliament,(d) and
afterwards passed into a law,(e) to prevent and punish such outrageous
insolence for the future. And with a copy of this Act elegantly engrossed
and illuminated, accompanied by a letter from the Queen, an Ambassador
Extraordinary(f) was commissioned to appear at Moscow,(g) who
declared, ", that though her Majesty could not inflict such a punishment
as was required, because of the defect in that particular, of the former
established constitutions of her kingdom, yet, with the unanimous consent of the Parliament, she had caused a new Act to be passed, to serve
(s) Vide post.          (t) Stephen's (Blackstone's) Comm. ii. pp. 510-12.
(u) July 21, 1708; Boyer's Annals of Queen Anne.
(x) July 25, 1708; ibid.                   (y) July 25 & 29, 1708; ibid.
(z) October 23, 1708; ibid.                (a) February 14, 1708; ibid.
(b) September 17, 1708; ibid.
(c) January 11, 1708; ibid; Mod. Un. Hist. xxxv. 454.
(d) Com. Journ. December 23, 1708.      (e) April 21, 1709; Boyer, ibid.
(f) Mr. Whitworth.
(g) January 8, 1709; Boyer, ibid.




148    PIIILLIMORE ON INTERNATIONAL LAW.
as a law for the future."  This humiliating step was accepted as a full
satisfaction by the Czar; and the offenders, at his request were discharged
from  all further prosecution.(h)
CXCV. The North American United States passed a statute (April
30, 1790,) containing provisions similar to those of the statute of Anne,
which has just been mentioned, and the decisions of the tribunals of
the United States have been pretty much in accordance with those of
the courts of justice in England.(i)
[r207]   *CXCVI. In France(k) before 1789, the ambassadorial privi[L    ]- leges were not sanctioned by any law, but rested on the recognition of usage.  In that year the Constituent Assembly, in answer to an
address presented to them by the corps diplomatique, declared the inviolability of these immunities. In 1794, (3rd March,) the National Convention decreed that all questions relating to these immunities should
be referred to the Committee of Public Safety.  At the present time all
complaints upon this subject are addressed to the Minister for Foreign
Affairs.  In the projet of the Code Civil, there followed upon the third
article an exceptional provision, in these words:- "Les etrangers revetus
d'un caractere repr6sentatif de leur nation, en qualit6 d'ambassadeurs,
de ministres, d'envoyes, ou sous quelque autre denomination que ce soit,
ne seront point traduits, ni en matiere civile, ni en matiere criminelle,
devant les tribunaux de France.  II en sera de meme des 6trangers qui
composent leur famille ou qui seront de leur suite."   But this article
was rejected by the Conseil d'Etat, upon a suggestion of the elder Portalis, that " ce qui regarde les ambassadeurs appartient au droit des gens;
nous n'avons point a noUS en occuper dans une loi qui n'est que de
regime interieur."(1)  Therefore, the 14th article of the Code only provides for obligations contracted between a French subject and an individual foreigner; nevertheless the provision in theprojet is considered
by the legal authorities in France as, by usage at least, a part of the law
of the land.
CXCVII. Spain possesses various laws upon this subject; one relative
to the immunity of ambassadors from  taxes, another relative to their
debts, by which it should seem that proceedings may be taken before the
Spanish tribunals against ambassadors for debts contracted during the
[*208] time of *their mission, but not on account of antecedent obligations, a municipal regulation which is inconsistent with the
principles of International Law upon this subject. Another law suppresses the right of asylum in the hotel, and another provides that only
natives may represent the kingdom of Spain at Foreign Courts.(In)
(h) Vide post, decisions on cases arising under this Statute.
(i) See cases mentioned in note to section 172.
See also United States v. Hand, 2 Washington's (American) C. C. Rep. 435.
Dupont v. Pichon, 4 Dallas (American) Rep. 321.
(k) Flelix, 1. ii. t. ii. c. ii. s. 219.
(1) Faelix, ibid.; Locr6, Legislation Civile, t. i. p. 580, nO 11; t. ii. p. 45, nO 21;
le meme, Esprit du Code Napol6on, t. i. p. 210. Repertoire, vo Ministre Public, s.
5, s. 4, art. 3, (4e edit., t. viii. p. 291.)
(m) Fulix, 1. ii. t. ii. c. ii. s. 220.
Recopilacion de Leyes, 1. ix. t. 31, 1. 4. Martens, C. C. t. ii. pp. 353, 356, 361,
362 et 364.




EMBASSY-CIVIL  JURISDICTION.                         149
CXCVIII. Portugal has a law of John IV.,(n) renewed under John
V., to the same effect as that of Spain, with respect to the debts and
contracts of the ambassador.
CXCIX. Russia has enacted that all disputes against any member of
the Embassy must be transmitted to the Minister for Foreign Affairs,
and that no judgment can be put in force without the precincts of the
hotel, except through the intervention of that minister; all persons attached to the Embassy and all foreign couriers are exempt from  the
obligation of being furnished with a Russian passport, and from being
inspected by the custom-house officers.
All members of the corps diplomatique are allowed to introduce their
mnoveables duty free, and to receive those which may be addressed to
them during the first year of their residence in Russia upon the same
terms. (o)
CC. With respect to the German Powers, Austria has enacted that all
persons belonging to the Embassy shall enjoy the privileges conferred
upon them by the principles of International Law and Public Treaties.(p)
*The Bavarian Code provides that all persons enjoying ambassadorial rights are exempt from  the ordinary jurisdiction of [209
the tribunals of the country.(g)
The Prussian Code enacts that all persons belonging to the embassy
shall be entitled to those immunities which International Law and existing Treaties have conferred upon them. That Prussian subjects, who,
with the permission of their Sovereign, have been accredited as ministers
from Foreign Courts to the Court of Prussia, shall be subject, so far as
their private affairs are concerned, to the laws of Prussia. That ambassadors accredited by Prussia to foreign courts, are justiciable by the laws
of the place of the domicil which they last had, previously to entering
upon the discharge of their diplomatic duties. It is further provided
that no reigning German Prince or Ambassador shall be subject to arrest
by any Prussian tribunal, unless there has been a special reservation
upon the subject made with respect to them previously to their reception
at Court.(')
CCI. The ancient States-General of the Netherlands made an edict to
the effect that no persons attached to an Embassy, on their arrival or on
their departure, or on their passage through the country, should be liable
to be arrested, or to be proceeded against on account of any debts contracted therein.
A similar law prevails in Denmark.(s)
(n) 1640-1656.
(o) La Revue Etrangere, t. i. ii. p. 871, 555 et 648. Fanlix, ibid.
p) De Puttlingen, Die gesetzliche Behandlung der Ausldnder in Oesterreich,
u. s. w., ss. 52, 55, 116, 119.
"Die Gesandten, die offentlichen Geshaftstrager, und die in ihren Diensten
stehenden Personen, geniessen die in den Offentlichen Vertragen gegriindeten
Befreyungen."-Allgemeines burgerliches Gesetzbuch ffir die gesammten Deutschen
Erblander der Oesterreichischen Monarchie, s. 39.
(q) C. i. s. 11.
(r) Allgemeines Landrecht fiir die Preussischen Staaten: Einleitung, ss. 36,
37, 38, 39. Foelix, ibid.
(s) Feelix, ibid.




150       PIHILLIMORE  ON  INTERNATIONAL LAW.
CCII. Among the privileges which the usage of nations has imparted
to the ambassador, and which are not derived from the reason of the
thing, is the exemption of his person and his personalty from taxation.
He is, moreover, generally exempt from  the payment of duties upon
articles imported for the use of himself or of his family.(t) 
[*210]    *CCIII. Different nations, however, adopt different regulations upon this head, both as to the amount of this free importation, and as to the time when it is permitted.  Many nations limit it to
a fixed sum during the continuance of the embassy.
The Roman Law(u) compelled the legate to pay duty on articles which
he brought with him, but allowed him  an exemption upon articles procured ",ex Romano solo" for the purpose of transmission to his own
country.
This immunity is never extended to1. Real property;
2. To personalty unconnected with the ambassadorial character;
3. And very seldom, if ever, to tolls and postages; and, generally
speaking, it is clear that this class of privileges cannot be considered(x) as resting on an unalterable basis.
CCIV. The house, or, as it is usually called, the hotel of the ambassador is, by universal consent inviolable, and inaccessible to the ordinary
officers of justice or revenue.( y)
*The same remark applies to his carriage.  Upon this valuable
['211] and necessary immunity was at one time grafted the monstrous
and unnecessary abuse of what was called the Right of Asylum. In
other words, the hotel was to be a place of refuge for offenders against
the law of the State in which it was situated. Bynkershoek(z) is clearly
right in pronouncing that, whether common sense, the reason of the thing
or the end and object of embassies be considered, there is not even that
faint colour of reason which the most absurd pretensions can generally
put forth, to be alleged in favour of such a custom. History teems with
(t) Wheaton, 1, 279. Heffters, s. 217. Merlin, ibid., s. v. 3.
(u) "A legatis gentium devotarum, ex his tantum speciebus quas de locis propriis unde conveniunt, hue deportant octavarii vectigal accipiant: quas vero ex
Romano solo, (quse sunt tamen lege concessse,) ad propria deferunt has habeant
a prsestatione immunes ac liberas."-Cod. 1. iv. t. 61, 8.
(x) "Im Allgemeinen kann daher von einem feststellenden volkerrechtlichen
Privilegium hinsichtlich dieses Punctes keine Rede seyn."-Heffters, ibid.
(y) Wicquefort, 1, s. 28. "La maison et les domestiques de l'ambassadeur
sont inviolables." —P. 414.
Bynk. ibid., c. xxi. "LiEdes legati an proebent asylum."
Vattel, 1. iv. c. ix. s. 11 7. " L'independance de l'ambassadeur serait fort imparfaite, et sa suret6 mal 6tablie, si la maison oh ii loge ne jouissait d'une entiere
franchise, et si elle n'etait pas inaccessible aux ministres ordinaires de la jzustice...
La maison d'un ambassadeur doit etre a couvert de toute insulte sous la protection particuliere des lois et du droit des gens: l'insulter, c'est se rendre coupable
envers l'btat et envers toutes les nations." Merlin, ibid., v. 3.
(z) "' Omnia legatorum privilegia, quibus utuntur ex tacito gentium  consensu,
non alio fine comparata sunt, quam ut tuto sine remord, sine impedimento cujusquam officio suo fungantur. Possunt autem tuto fungi, etiamsi facinorosos non
recipiant, nec occultent, nec Principi, apud quem sunt, intervertant jurisdictionem,
non in sui vel suorum, at tertii, ad se non pertinentis, gratiam. Sed ejusmodi haec
sunt, ut vix seriam disputationem desiderent."-Bynk. ibid.




EMBASSY-CIVIL  JURISDICTION.                          151
examples of the evil consequences resulting from this absurd privilege,
which was often extended from houses to whole districts and quarters of
the town, as at Rome and Madrid.(a)
It is true that those States which have allowed this abuse are bound
to give notice of their intention to abolish it previously to the reception
of the ambassador.  (b)But it is also true that there can be no prescriptive right in any nation to demand a continuance of this obstacle to good
order, justice and *peace, wholly unconnected as it is with the [212
maintenance of the security or dignity of embassies.  And every [12
government must agree with the wish of the learned Merlin,(c) that such
a nuisance should be universally abolished.
No one can declare more strongly than Grotius that the jus as/yli is no
part juris gentiunz.  " Ipse autemr legatus an jurisdictionem  habeat in
familiam suam, et an jus asyli in domo sua pro quibusvis co confugientibus ex concessione pendet ejus apud quem agit.  Istutd enim juris gentium non est."(d)
In 1726, the Duke of Ripperda, the First Minister of Philip V., took
refuge in the hotel of Lord Stanhope, the English Ambassador at Madrid.
The King asked for the opinion of the Council of Castille, the first tribunal in the kingdom, whether, without a violation of International Law,
he had a right to take his subject Ripperda, accused of high-treason,
by force, if other means were of no avail, from the Hotel of the English
Ambassador; —the answer was in the affirmative, and Ripperda was accordingly taken by force from the hotel, and his papers were seized at the
same time. The British Government, of which the Duke of Newcastle
was then prime minister, complained bitterly of this act, and demanded
reparation for an alleged insult to the ambassador; the complaint, however, was founded rather upon the manner in which the act was done,
than upon a claim for the right, on the part of the ambassador, to have
retained the refugee.  Spain refused to make any reparation, and asserted
boldly the legality of what she had done.  The difference between the
two nations increased in bitterness till, in the next year, war upon other
grounds broke out between them.  It would seem *to follow,
from the principles which have been laid down, that Spain was [*213]
not guilty of any violation of International law.(e)
(a) " The Polish Ambassador at Rome in 1680, the Spanish in 1682, the English
in 1686, voluntarily renounced these exorbitant and mischievous privileges."Miruss, s. 361.
(b) Wicquefort, citing the instance of certain conspirators seized by the Venetian Government in the house of the French Ambassador, and the answer with respect to it made by the Venetian Ambassador, that he would deliver up to justice
any French rebels that took refuge in his hotel, adds: " On pent dire sur cet exemple, que, suivant le droit des yens, la maison de l'ambassadeur ne peut donner
surete qu'a lui et k ses domestiques, et ne penut servir d'asyle aux dtrangers que du
consentement du sourerain du lieu, qui pent estendre ou restreindre ce privilege
comme il vent: parcequ'ilt e fait paspartie du droit des gens."-S. 28, p. 414.
(c) " On voit par ces details, que le droit d'asyle est, al'6gard des hotels des ambassadeurs, une source perp6tuelle de dissensions et de querelles. Le bien des
nations demanderait, sans doute, qu'on l'abolit tout-h-fait; et cela paraft d'autant
plus raisonnable, qu'il y a plusieurs etats dans lesquels il n'est point connu."Merlin, ibid.
(d) L. ii. c. 18, viii. 2.    (e) De Martens, C. C. i. 174.




152   PHILLIMORE ON INTERNATIONAL LAW.
CCV. In 1747, a Swedish merchant of the name of Springer, accused
of high-treason, took refuge in the hotel of the English Ambassador at
Stockholm, Colonel Guideckens.  The ambassador refused to surrender
him; the Swedish Government surrounded his house with troops, searched
every body who entered it, and caused the carriage of the ambassador,
when he left the hotel, to be followed by a guard. Guideckens surrendered Springer under a protest as to the violence done to his ambassadorial privilege.  England demanded reparation, and Sweden steadily refused to give it, and the ambassadors from the two courts were mutually
withdrawn.
It seems clear that the conduct of Sweden was in accordance with the
principles of International Law.(f)
CCVI. It sometimes happens that a State authorises a foreign State
to acquire, within its territory, by purchase, a residence for its ambassador, and allows such residence to be vested in the Government of the country which accredits the ambassador.(g)
CCVII. So long, however, as the ambassador does not convert his
hotel into a place of refuge for offenders against the laws of the State, he
has a right to enjoy the most perfect and uncontrolled liberty of action
within(A) the precincts of his hotel.
It seems a corollary from this proposition that he should be entitled
"*214] to exercise privately the rites of his own religion, *though it be
at variance with that of the law of the State in which he is resident.(i)
CCVIII. Strictly speaking, however, this privilege is confined to himself, his suite, and his fellow-countrymen commorant in the foreign land;
for although he cannot be prevented from receiving native subjects who
come to his hotel, yet it is competent to the State(k) to prohibit them
from going to the ambassador's hotel for this, or indeed for any purpose.
According to Wicquefort, the State might require that the religious services be performed in the native language of the ambassador. This, however, does not appear to be a tenable position.; The sanctity of the hotel
must be violated, in order to ascertain the language, and certainly there
never could have been any semblance of reason for preventing the ambassador or his chaplain from the use of the universal, or Latin language in
their devotions.  This restraint by the State must be placed, if at all,
upon her own subjects.
CCIX. Since the period of the Reformation, general International
usage has sanctioned the rights of private domestic devotion by a chaplain
in the hotel, which, so long as it is strictly private, seems to claim the
sanction of natural as well as conventional International Law. Two con(f) Ibid. i. 326.
(g) Act of the British Parliament "to authorize the purchase by the Prussian
Minister of a residence in England for the use of the Prussian Legation, and to
regulate the future holding of the same."-13 & 14 Vict. c. 3. —Hertslet's Treaties,
vol. viii. p. 866.
(h) Wicquefort, ibid., ss. 415, 418.
(i) Martens, ss. 224-5-6, generally on this subject.
(k) Martens, s. 225. Permission even for foreigners belonging to a third country
to attend has been the subject of treaties.




AMBASSADOR S-D IFFERENT  CLASSES.                        153
ditions, however, have formerly accompanied the permission to exercise
this right-one, that it should be permitted to only one minister at a
time from one and the same court; another, that there should not be
already a public or a private exercise of the religion existing and sanctioned without the precincts of the hotel.
Having regard to this latter condition, the Emperor Joseph II., having granted to the Protestants at Vienna the liberty of meeting for the
private exercise of their devotion, insisted on the chapels of the Protestant ambassadors being closed.
*There does not, however, seem to be any foundation in prin- [215
ciple for this very arbitrary act; more especially as Protestant [215]
is a mere term of negation, under which are included worshippers of
very different tenets.
CCX. The only sound principle of law on this subject is that already
mentioned, viz.:-Religious rites privately exercised within the ambassadorial precincts, and for his suite and countrymen, ought not to be
interfered with.
The erection of a chapel or church, the use of bells, and of any
national symbol, is a matter entirely of permission and comity.
*CHAPTER IX.                            [*216]
AMBASSADORS-DIFFERENT CLASSES OF PUBLIC MINISTERS.
CCXI. TH:E Romans, and indeed the ancients generally, recognized
but one class of diplomatic agents, whom they usually designated by
the terms oratores or legati.
In Europe these terms found their translation at first in the generic
term of Ambassadors,(a) or in some equivalent designation of a single
class.  Since the fifteenth or sixteenth century, the refinements and the
vanity(b) of European Courts have introduced various grades of diplomatic agency into the positive Law of Nations, which are only so far of
importance inasmuch as different ceremonial privileges are attached to
the different degrees, of legation.
But to the accredited public minister of every State, whatever be his
designation, the rights of inviolability and the privileges of exterritorialty appertain with equal certainty and strength.(c)
(a) Anzbassadeurs, Embaxadores, Ambaciatori; perhaps from the Spanish embiar,.
to send, or more probably, regard being had to the similarity of the word in
various languages, from ambactus. (Botschafter, Gesandter.)
(b) And the economy, it should seem, less expense and state being necessary
for the minister of inferior rank. According to Vattel, Louis XI. set the example.
-L. iv. c. vi. s. 69.
There have been two classes, Kliiber says, since the beginning of the sixteenth,
and three since the beginning of the eighteenth century. —S. 179.
(c) " Legati varia nunc nomina rem ipsam idem sunt." —Bynk. De Foro Leg. c. 1.
" Qunecunque autem legatorum nomina sint et queecunque legatio sive ordinaria,
sive extraordinaria, quamvis et pro mittentis, et pro missi dignitate et titulo alius
OCTOBER, 1855. —11




154    PHILLIMORE ON INTERNATIONAL LAW.
*CCXII. Equally unknown to the ancients was the modern
["217] distinction  of Ordinary, or  Resident,(d) and  Extraordinary
Ambassador.
The Romans, safe, as they reasonably concluded, in the vastness of
their empire, from foreign invasion, and having but little commerce with
other nations, neither required nor instituted any resident ambassadors
in foreign countries.
CCXIII. The breaking up of this vast empire into various kingdoms
introduced that necessity, which, under the gigantic domination of Iome,
had not existed.
It was not, however, till after the Peace of Westphalia (1648) that
the institution of permanent embassies, though beginning, contemporaneously with standing armies, to take root soon after the fifteenth century,
can be said to have become the established practice of nations.(e)  It
was about this period that the rights of legation began to be ascertained
with the careful minuteness which distinguishes this part of positive
International Law.
CCXIV. Before the close of the fifteenth century, a second order,
and during the eighteenth century a third order, of diplomatic agents
appears to have sprung up;(f) and since the Congress of Vienna, in
1815, and the protocol of Aix-la-Chapelle,(g) in 1818, to which Austria,
France, Great Britain, *Prussia, and Russia were parties, the
[*218] diplomatic hierarchy has consisted, technically speaking, of four
orders, classified as follows:The first class is composed of ambassadors, ordinary and extraordinary,(h) as their mission be limited or indeterminate in point of time,
Papcal legates, d or de latere, and nuncios, ordinary or extraordinary.
CCXV. All these diplomatic agents enjoy, in the fullest manner, the
privileges incident to what is universally  called  the representative
character, by virtue of which they represent their Sovereign or State,
not only in the conduct of affairs at a foreign court, but they also represent(i) the person of the Sovereign or State, and are by usage entitled,
speaking generally, to the honours which the Sovereign or the State
(if it could be conceived to be present) would receive.
atque alius legatis habeatur honor, id tamen constare debet, si, ut oportet ex jure
gentium  causam  westimemus, legati personam  semper atque sancte habendam,
semper aequ6 custodienda jura, quae legatis, tanquam legatis, debentur." —Bynk.
ibid.
All classes of diplomatic agents have equally the "jus revocandi domum."ibid.
(d) Vattel, 1. iv. c. vi. s. 73.  (e) Ward, vol. ii. p. 413. Heffters, s. 199.
Miruss, s. 89. Kliber, s. 170. Merlin, Rdpert., Mlinistre Public.
(f) Heffters, s. 3571 n.                           (g) Miruss, s. 85.
(h) E. g. such as are sent on embassies of congratulation, condolence, or excuse
(Miruss, s. 86,) or to adjust some particular dispute, although there be a resident
ambassador. Martens, s. 193.
(i) Merlin, (Rep., Ministre Public, s. 1,) however, says, "Nous disons que, dans
un tel ministre, la representation est presquepacfaite, car elle ne lest pas absolument: quels que soient les honneurs qu'on rend, un ambassadeur, ils n'agalent
jamais et nulle part ceux qu'on rendrait i un souverain en personne; et c'est
l1embarras de l'etiquette,  1'aegard d'un souverain se trouvant en pays 6tranger,
qui a fait imaginer l'incognito."




AMBASSADORS-DIFFERENT  CLASSES.                           155
This idea of the full representative character in the agent, had no
doubt its origin in the fundamental constitution of Monarchical States,
because it was possible to represent the person of the Monarch; but
Republican States, nevertheless, have imitated the example.
CCXVI. Legates a latere must not be confounded with another class
of Papal agents designated Nuncios.(k)
The legates 2 latere are sent by the Pope into Roman Catholic
countries, to exercise, in his name, the spiritual functions which depend
upon his recognition as Head of the Church.
The nuncios are ambassadors sent to foreign courts to *repre- [.219]
sent the Pope in the conduct of his affairs, of whatever kind
they may be.(l)
CCXVII. The division of ambassadors and nuncios into ordinary and
extraordinary, had its origin in the distinction between permanent or
indeterminate missions, and those which had for their object the transaction of an extraordinary, particular, and determinate business.
In modern practice, however, the title (cextraordinary" is given occasionally as a title of greater honour, even to ambassadors destined to a
residence, for an indeterminate period, at the court to which they are
sent. (m)
CCXVIII. Diplomatic agents of this first class can only be sent by
States, whether monarchial or republican, entitled to royal honours.
That is to say, that if aa" inferior State accredit an ambassador of the
first class, he will not be received(n) by the great European powers. It
is impossible, however, to maintain, as has been attempted, that the right
to send ambassadors is confined to monarchies, or to deny that the rank
of the ambassador, abstractedly speaking, depends upon the sending and
not upon the receiving State.(o)
CCXIX. The second class comprises Envoys, (Eavoyes, Ablegati,
Prolegati, Inviati) Ordinary and Extraordinary.
Ministers Plenipotentiary  (Plenfi potentid muniti;, Jiinistres Plinipotentiaires, Bevollmdlchtigen Gesandteb, lirnisters).
The Austrian Minister at Constantinople, who appears to be by custom
exclusively designated as Internuncilus.
The Internuncio of the Pope.
CCXX. The third, or intermediate class, created by the Conference of
the Five Powers at Aix-la-Chapelle, in 1818, *is composed of
what are called "M Ninistres residens," accredited to the Sovereign. [*220]
Ministers of this class are sometimes said to represent the affairs, and
not the person of their Sovereign, and to be therefore of inferior
dignity.(_p)
(k) The Legate is selected from the cardinals, but not the rNuncio. Vide post,
Merlin, ibid.
(I) Vide post, Chapter on RELIGION AND THE STATE.
(m) Martens, ubi supr.
(n) If he be received at all, it must be according to his credentials.-Vattel, 1.
iv. c. vi. s. 76. Vide post.
(o) Miruss, s. 113. IHeffters, s. 209. Martens, s. 198. Vattel, 1. iv. c. vi. s. 78.
(p) " Le resident ne represente pas la personne du prince dans sa dignite, mais
seulement dans ses affaires. — Vattel, 1. iv. c. vi. s. 73.
See below, remarks on his real identity with the envoy.




156   PHILLIMORE ON INTERNATIONAL LAW.
The fourth, usually denominated the third class, includes Charge's
d'Affaires (Geschiftriger) accredited to the Minister of Foreign Affairs.
Either such as are originally sent and accredited ad hoc, or who have
been nominated, either verbally or by writing, ad interim, during the
absence of the minister,(q) or accredited to courts to which it is not customary to send a formally constituted minister.
The ceremonial honours to which this class may be entitled appear
doubtful, but they are entitled to the immunities of recognised diplomatic
agents, though without the formal character of "Ministers."  To this
class belong Consuls,(r) being accredited as ciplomatic agents, or public
ministers, such as are maintained by the Christian Powers of Europe and
America at the Courts of the Barbary States or in Egypt.
CCXXI. These different orders of ministers, it must be observed, can
only be distinguished by the ceremonial honours accorded to them; and,
in fact, these divisions, which make the difference of order depend upon
the difference of ceremonial, are, strictly speaking, illogical.(s)
For if, upon this principle of distinction, it were asked why the ambassador enjoyed greater honours than the envoy, it *must be
*[221] answered, because the former belongs to the first, and the latter
to the second class; and if it were asked why the former belonged to
the first, and the latter to the second class, it must be answered, because
the former is an ambassador and the latter an envoy.
CCXXII. The only sound and logical division is that which is founded
on the true principle of general International Law, viz., a regard to the
character of the affair evidenced by his credentials (mandatum:, mandat,)
entrusted to the management of the agent, whatever be his title. There
is a clear distinction, according to the nature of things, between agents
(Plenipotentiaries,) accredited by one Sovereign to another Sovereign,
and agents (Charge's d'Affaires,) accredited by one Minister for Foreign
Affairs to another Minister for Foreign Affairs.(t)
~ There is also a distinction, less clear but conceivable, between the
minister representing his Sovereign, both in his person and in his affairs,
as is the case with the anmbassador, and the minister representing the
Sovereign in his affairs only, as, according to Vattel,(u) is the case with
the Resident, or even with the Envoy. Neither of these classes of ministers have the preeminently representative character (caracte're repressentatif par excellence) which belongs to the full ambassador.(x)  It is
between these two classes, therefore, that Vattel pronounces "c the most
necessary and the only true distinction" to exist.
The juster division, however, appears to be that already stated, viz.,
between agents accredited to the Sovereign, and agents accredited to the
Minister.
(g) Ordinarily the Secretary of Legation.-Merlin, ibid. s. 1, vi. Martens, s.
194. Kliber, s. 182. Martens, s. 194.
(r')  "Si ce prince envoie un agent avec des lettres de creance, et pour affaires
publiques, l'agent est des-lors ministre public: le titre n'y fait rien." —Vattel, 1.
iv. c. vi. s. 75.
(s) There is much truth in MI. Pineheiro Ferreira's remarks on this point.-Note
to 192nd section of Martens.
(t) Martens, s. 191. Wheaton, 1, 262, s. 6.
(u) L. iv. c. vi. s. 73. "Le R6sident," &c.  (x) Martens, s. 193, Notes, &c.




AMBASSADORS-DIFFERENT  CLASSES.                           157
CCXXIII. It has been already observed, that all these different
classes enjoy equally the immunities(y) incident to *the jus legationum (droit le leyation, d'ambassade, Gesandtschaftsrecht.)    [222
According to the fourth article of the Congress of Vienna, (1815,) the
rank of diplomatic agents between themselves was to be determined by
reference to the date of the official notification of their arrival at the
court to which they are accredited; and by the sixth article, as we have
already seen,(z) all distinctions of rank between diplomatic ministers,
arising out of the ties of consanguinity and the domestic or political
relations of their respective courts, are abolished.
CCXXIV. Every State may determine for itself what rank it will
confer upon its diplomatic agents; nor is it restricted by International
Law as to their number,(a) their sex,(b) their religion,(c) or their station,
whether lay or clerical, military or civil,(d) unless the latter be opposed
to a fundamental law of the receiving State. It is usual for States to
send and receive diplomatic agents of equal rank.
A diplomatic agent may be accredited at one and the same time to
various States, as the history of Germany and Switzerland abundantly
testifies.(e)
A diplomatic agent may be fully empowered to negotiate with foreign
States, as at a congress of different nations, without being accredited to
any particular court: or he may be accredited by a third State to mediate between two other States.(f)
*CCXXV. The legal status of mere agents employed, on behalf
of Governments or Princes, in foreign countries is not very clearly [*223]
defined by any writer upon International Jurisprudence.(g)
It is clear, however, that agents employed in adjusting private claims
of the Sovereign, or negotiating a loan, commissioners to settle boundaries,
and the like, are not virtute oficii clothed with the immunities of a diplomatic agent.  The same remark applies to secret emissaries of a State,
though sent with the permission of the foreign State into its territory.
These commissioners or emissaries, though furnished perhaps with(h)
letters of recommendation from their Sovereign, and therefore entitled to
more consideration than private individuals, are not accredited, and
therefore cannot claim the jus legationum.
If, however, the State clothe them with diplomatic powers, and accredit
(y) Heffters, 208. " In Ansehung der gesandtschaftlichen Geschafte selbst, der
Fahigkeit dazu, und ihrer Giltigkeit, ist der ganzer Rangunterschied vollig ohne
Einfluss."
(z) Vide ante, Chapter on SOVEREIGNS. Martens, s. 199.
(a) Miruss, s. 117.
(b) Martens, s. 120. Moser, Die Gesandten nach ihren Rechten und Pflichten.
-Kleine Schriften, t. 3, n. 2. Miruss, s. 127.
(c) Vide post, RELIGION AND THE STATE.
The Bishop of Ross was Mary Queen of Scots' ambassador; the Bishop of Bristol was plenipotentiary at the Peace of Utrecht, the last instance of the diplomatic
employment of an English Bishop.
(d) Kliiber, s. 187.    (e) Miruss, s. 120.     (f) Miruss, s. 86, n. a.
(g) Wicquefort, 1. pp. 62-3. Vattel, 1. iv. c. vi. s. 75. Heffters, s. 222. Kliiber,
s. 171-2. Martens, s. 196-7, and P. Ferreira's notes thereupon. Miruss, ss. 107,
111.
(h) Martens, s. 203.




158   PHILLIMORE ON INTERNATIONAL LAW.
them to a foreign State, they become entitled to the immunities of a diplomatic agent.(i)
This is also the case with deputies sent to a Congress on behalf of a
Confederation of States, if they be accredited. The whole question
[*224] depends upon whether or no the constituent *body has been competent, and has intended to clothe them with a ministerial chaacter.
CCXXVI. Consuls, generally speaking, are not entitled to the jus
legationum.  The institution of the consulate being of great importance
and some complexity, must be reserved for a separate and distinct discussion.(k)
[$225]                   *CHIAPTER  X.
AMBASSADORS —INSTRUCTIONS.
CCXXVII. WITH  reference to the State which he represents, the
public character of the ambassador may be said to begin with the receipt
of his instructions, which contain the measure of his responsibility to
his own Government.  These are for his own guidance; they may be
secret or ostensible to the court to which he is accredited, or their partial or entire communication may be left to his discretion.(a)
Despatches addressed to him after his departure may contain, in substance or in form, subsequent and additional instructions.
CCXXVIII. Vattel remarks, that if the ratification of the principal
were not now held necessary for any engagement entered into by the
ambassador, these instructions would be liable to those principles of construction which natural(b) law would apply to the matter of agency and
procuration (procuration, mandement.)
CCXXIX. With reference to the State to which he is sent, the public
character of the ambassador receives its formal recognition on the pro*'226] duction of his Letters of Credence (*lettres de cre'ance, creditiv,
[226] CCredentialen, Beglaubigungsschreiben).(d)
(i) "Le mesme mot (Commissaire) a souvent une signification plus estendu6, et
marque un ministre qui n'a point d'autre qualit6 particuliere; et alors il peut estre
ministre public, soit qu'il ait este envoye a un congres ou X quelque prince ou r6publique."-1 Wicquefort, 64. Miruss, s. 86. Geschafts-Gesandte.
" Si ce prince envoie un agent avec des lettres de creance, et pour affaires publiques, l'agent est des-lors ministre public: le titre n'y fait rien."  "Ill faut en
dire autant des diputts, commissaries, et autres charg6s d'affaires publiques."-Vattel,
Ibid.
"Tout depend de la question de savoir jusqu'h quel point leur constituant a pu
et voulu leur attribuer un caract6re ministeriel."-Martens, ibid.
(k) Vide post, Part Seventh, Chapter I.
(a) Vattel, i. iv. c. vi. s. 77. Wheaton, 1, s. 268. Heffters, s. 210. Martens,
s. 205.
Bynkershoek, Q. J. P. 1. 2, c. vi. "Legati quid rerum  olim egerint, et nune
agant cum publice audiuntur."
(b) Here the Justinian law would be almost necessarily resorted to.
(c) Miruss, s. 133.
(d) Vattel, 1. iv. c. vi. s. 76. "Les lettres de creance sont 11instrument qui auto



AM BAS SADORS- INSTRUCTIONS.                            159
This instrument is addressed by the Sovereign or chief magistrate of
the State which the ambassador represents to the Sovereign or State to
which he is sent.  In the case of a charge' d'affaires, it is addressed by
one Minister of Foreign Affairs to another.(e)  It contains the general
purport of the mission, and the name and class of the diplomatic agent,
and requests that faith may be given to his representations on the part
of his principal.(f) The same Letters of Credence may suffice for several
ministers, if they be of the same rank.
Sometimes one minister is furnished with several Letters of Credence,
if he be accredited to several Sovereigns or States, or to the same Sovereign in various capacities.  If the rank of the diplomatic agent be
changed during his residence at a foreign court, fresh Letters of Credence
are required, and the ceremonies incident to their presentation are renewed.(g) According to modern custom, the Full Power empowering;the diplomatic agent to negotiate, is not inserted in the Letters of Credence, but is a separate instrument, drawn up in the form of letterspatent (nmandatwun   procuratorium, _ pleni-potentia,  pein _ pouvoir,   ollmrnacht).(h)
*CCXXX. It is the Full Power, whether it be a separate instrument or contained in the Letters of Credence, which founds [22
the authority of the diplomatic agent as the representative of his Sovereign, and the terms of it are binding on him and his principal, though
at variance with secret instructions.
This important principle of International Law, which clearly flows
from the reason of the thing, is supported by the express authority of
-Grotius,(i) and by the'analogy of the law of mercantile agency, as set
forth in the Digest, which is in this instance, as in others, the written
Law of Nations.(k)
rise et constitue le ministre dans son caractere aupres du prince h qui elles sont
addressees. Si ce prince reqoit le ministre, ii ne peut le recevoir que dans la
qualite que lui donnent ses lettres de cr6ance. Elles sont comme sa procuration
g6nerale, son mandement ouvert, mandatum manifestum."
Ibid., s. 83. "Des qu'il est entre dans le pays ou il est envoy6, et qu'il se fait
connaitre, il est sous la protection du droit des gens."  Heffters, s. 200.
(e) Martens, s. 202. Wheaton, 1, 267.
(f) Martens, ubi supr.                          (g) Heffters, s. 210.
(h) Vattel does not mention the instrument of Full Powers as distinct from the
Letters of Credence. Miruss, s. 136, 1-141. Martens, s. 204. Wheaton, 1, 268.
Heffters, s. 210.
(i) Grotius, 1. ii. c. xi. s. 12. "Sed et per hominem  alterum  obligamur, si
constet de voluntate nostra, qua illum  elegerimus, ut instrumentum nostrum  ad
hboc speciatim, ant sub generali notione. Et in generali praepositione accidere
potest, ut nos obliget qni prmpositus est, agendo contra voluntatem nostram sibi
soli significatam: quia hic distincti sunt actus volendi: unus, quo nos obligamus
ratum habituros quicquid ille in tali negotiorum genere fecerit, alter, quo illum
nobis obligamus ut non agat nisi ex prmescripto, sibi non allis cognito. Quod
notandum est ad ea, qun Legati promittunt pro Regibus ex vi instrumenti procuratorii, excedendo arcana mandata."
Ib. s. xiii. "Atque hinc etiam intelligi potest exercitoriam et institoriam, quae
non tam actiones sunt quam  qualitates actionum, ipso naturali jure niti. Bynk.
Q. J. P. 1. ii. s. 2, c. 7.
(k) " Ut autem obtinuit, Jus Justinianaeum appellari Jus commune, ita vicissim
Jus commune genere quodam  reciprocationis, appellabitur Jus CUesareum."Bynkershoek, Q. J. P. 1. i. c. xxiv.




160   PHILLIMORE ON INTERNATIONAL LAW.
The Full power may be general or special.  The general Full Power
(mandcatum illimitatum) capacitates the holder of it for all the usual
diplomatic functions, or for negotiating generally with a foreign State.
There are some instances of such a Full Power being construed, as accrediting the bearer to all courts (actus ad omines populos;)(1) but this
construction has long ceased to be maintained.
[*228]- *The special Full Power (mandatum limitatum) authorizes
C[228] the holder of it to transact only a particular business: the limits
of his authority are defined, and out of these he cannot travel.
CCXXXI. If these powers be granted to several persons, it should be
expressed in them(m) whether they may act severally or only jointly in
the execution of their office.  In time of peace, the diplomatic agent is
sufficiently protected by the passport of his own government.  In time
of war, he must be provided with a pass of safe conduct (saulfconduit,
salvi conductus literte), to ensure his protection while travelling through
the territories of the enemy of his State.(rn)
[*229]                 *CHAPTER   XI.
AMBASSADORS-ARRIVAL-AUDIENCE.
CCXXXII. EVERY diplomatic agent must notify his arrival to the
Minister for Foreign Affairs.(a)
If the diplomatic agent be of the first class, his arrival is communicated through the Secretary of the Embassy, or some other gentleman
(Gesandtschaftscavalier) attached to the mission.
He delivers a copy of the Letters of Credence to the Minister for
Foreign Affairs, and requests an audience for his principal with the
Sovereign.
This audience may be either public or private: diplomatic agents of
the first class are alone entitled to the former.  But this audience is
not a necessary preliminary to his entering upon the performance of his
functions.
The public audience used to be preceded by a solemn entry (entre'e
solennelle), the details of which, such as the number of horses which may
draw the ambassador's coach, the staircase by which he is to ascend, and
the like, have been dwelt upon with patient and characteristic minuteness by many German publicists. (b)The ceremony has now fallen into
general desuetude.
(I) Miruss, s: 137.
KEitiber, s. 193, n. c., who says that two instances are found in Lamberty, MWmoires,
viii. 748, ix. 653.
Martens, s. 204, n. 6, cites De Torey, MIemoires, t. iii. p. 65, and says, that the
plenepouvoir given by the First Consul to Augereau, in 1800, to make peace with
the princes of the empire, was of this description.
(m) Martens, s. 204.            (n) Miruss, s. 135. Wheaton, 1, 268-9.
(a) Martens, s. 206. Miruss, s. 307. Wheaton, 1, 270.
(b) "Au reste, toute cette penible ceremnonie de l'audience solennelle est peu
n'cessaire, mgme a un ambassadeur, pour entrer en fonctions," &c. Martens, ibid.




AMBASSAD ORS-ARRIVAL-AUDIEN  CE.                          161
At the audience, which is now usually private, the Letters of Credence are delivered, a complimentary speech is made by the ambassador,
and replied to by the Sovereign.
*CCXXXIII. If the diplomatic agent be of the second or  230
third class, his arrival is notified by a letter to the Minister for  i30
Foreign Affairs, who is requested to take the orders of his Sovereign respecting the delivery of the Letters of Credence.
It should seem that the majority of European courts would concede
to these diplomatic agents the privilege of a public audience.(c)  In
practice, however, the Sovereign usually receives them at a private audience, at which the Minister for Foreign Affairs restores to them their
Letters of Credence.
If the diplomatic agent be of the fourth class, if he be a Charge
d'Agaires not accredited to the Sovereign, his arrival is notified by
letter to the Minister for Foreign Affairs, of whom  alone an audience is
requested for the purpose of delivering the Letters of Credence.(d).
" In Republican States," Mr. Wheaton observes, " the diplomatic
agent is received in a similar manner by the chief executive magistrate
or council charged with the foreign affairs of the nation."  It should
seem, however, that though there is less uniformity in republican courts
as to the observance of the ceremonies of a public audience, they have
nevertheless retained the principal circumstances of the etiquette practised by monarchical courts upon these occasions.(e)
CCXXXIV. The rules of etiquette which long usage has established
between diplomatic agents resident at the same foreign court, and towards
the' members of the foreign government, occupy many pages of some
works upon International Law; but these rules, though their observance
on the ground of convenience be very desirable, and their non-observance
would denote ill-breeding in the State renouncing them, do not arrive at
the dignity of laws, or attain the character of rights.(f)
*CCXXXV.  Merlin's remark is sound and just, that there is [231
but one general rule on this subject: namely, that public minis- [231
ters should receive all the distinctions which etiquette and the manners
of each nation have determined, as marks of that estimation which is
befitting.
It must be remembered that custom may impart a value to a ceremony
in itself indifferent, but which has become significant of the estimation
in which the object of the ceremony is held.  We have seen an instance
of this in the honours of the salute paid to the flags of nations. When
usage has attached a real value to a point of etiquette, the omission of it
is not justifiable by any principle of International Law.(g)
(c) Martens, s: 207. Miruss, s. 311, would seem to deny this.
(d) Wheaton, ibid.                        (e) Martens, s. 206.
(f) Wheaton, 1, 272. Merlin, ibid., s. iv.
(g) "Quand une coutume," says Vattel, "est tellement 6tablie qu'elle donne
une valeur reelle h des choses indiff6rentes de leur nature, et une signification
constante suivant les mcurs et les usages, le droit des gens naturel et n6cessaire
oblige d'avoir 6gard i cette institution, et de se conduire par rapport a ces choses-lh,
comme si elles avaient elles-memes la valeur que les hommes y ont attach6e."-L.
iv. c. vi. s. 79.




162      PHILLIMORE  ON INTERNATIONAL LAW.
CCXXXVI. Nevertheless, it must always be competent to a Sovereign
to make alterations in the ceremonies of his court: he must of course be
prepared for two consequences-one would probably be, that foreign
nations will refuse to accredit diplomatic agents to him to be received
upon the footing of these alterations; another, in all likelihood, would
be, that he must submit himself to retaliatory alterations, in the person
of his own representatives at foreign courts.(h)
CCXXXVII. (i)The mission of a diplomatic minister may be:1. Altered in its rank or character.
2. Suspended.
3. Entirely closed or ended.
[*232]    CCXXXVIII. It is altered in its character when the grade *of
*232] the embassy is heightened or lowered, when an envoy becomes
an ambassador, or vice versa', or when an ambassador, sent on an affair
of ceremony, becomes a resident ambassador. By such changes as these
the embassy is not suspended or ended, but only changed as to its diplomatic rank or character.
CCXXXIX. Various events may happen which suspend the functions
of the ambassador; for instance, the death of his Sovereign may have
this effect only, though it may also end his mission.  During this interval, however, he enjoys all the privileges of inviolability and exterritoriality which appertain to his office.  These remain until his embassy
be bond fide terminated, and until he has left the territory of the State
to which he has been accredited.  Thus, Grotius observes: "In itu
continuo et de reditu censetur, non hoc ex vi verbi, sed ut absurdum
vitetur: neque enim inutile esse beneficium debet.  Et abitus tutus intelligendus usque dum eo pervenerit ubi in tuto sit."(k)
CCXL. The mission is ended by:1. The lapse of a particular period, as in the case of an ambassador
appointed ad interim, when the regular ambassador returns to his post.
2. By the accomplishment of the particular object of the mission, as
in the case of an embassy sent for the purpose of congratulation, or to
represent a State at a particular ceremony; or when there has been a
special and limited object to the mission which has either been attained
or has failed.
3. By the death, abdication, or dethronement of the Sovereign accrediting the ambassador, or by the death of the Sovereign to whom he is
accredited.  In both these cases, according to International Usage and
Practice, the ambassador must be accredited anew by his Sovereign.
Though in cases in which it is known that his mission is only suspended,
and that he will be re-accredited, it is usual to continue to transact business sub spe rati with him as ambassador.
4. By the formal declaration of the ambassador, on account *of
*233[ ] some injury or insult, or of some pressing urgency, that his mission must be considered as closed.
(h) Merlin, s. iv. See also Martens, s. 184, upon this point.
(i) Martens, 1. iv. c. 3, s. 148.  MlAiruss, ss. 366-370. Kltber, ss. 228-230.
Wheaton, Dr. Int. i. ss. 23, 24.
(kc) L. iii. c. xxi. 16.




AMB.SSAD 0 RS-A RIIVAL —AU D IEN CE.                    163
5. By the act of the Court to which he is accredited, when that Court,
on the ground of his misconduct, or of a quarrel with his government,
orders the ambassador to leave the territory, without waiting for his
formal recall.
6. By the voluntary resignation of his office by the ambassador
himself.
7. By his recall by the government which accredited him.
CCXLI. In the last-mentioned case it is usual for the ambassador to
request an audience, more or less formal, according to circumstances,
with the Sovereign to whom he is accredited, and to deliver to him the
order or letter recalling him (lettres de rappel, Zuriickbervfutn-gs-schreiben.)
He afterwards usually receives, in return, letters or papers to facilitate
his return (what are termed lettres de re'creance,(1) recred'itio,) and his
passport, and sometimes a present; but the Republic of the North
American United States follows the example of the ancient Republic of
Venice, and forbids her representatives to accept any such present.
CCXLII. When the death of the ambassador himself ends his mission,
the first step that the Secretary of Legation —or, in his default, some
minister of an allied power-takes is to affix a seal upon his official
papers, and, if necessary, upon his moveables.  It is only a case of
necessity that warrants the interference of the local authority.  His
corpse is entitled to a decent burial at the place of his death, or it may
be removed for the purpose of interment elsewhere; and it is exempted
*from  any mortuary dues usually payable in the country.  All [*234
questions relating to his moveable property, whether he died [34
testate or intestate, are, by a long-established rule  of International
Comity, determinable only by the laws of his domicil or of his own
country.   His moveables are also exempt from  any kind of tax or'ihpost (droit d'aubaine, detractio.)  It is usual also to continue to the
widow, family, and suite of the deceased, the privileges and immunities
incident to his office, for such limited period as may reasonably suffice to
enable them to leave the country.
(1) "IRecreance est aussi en usage dans cette phrase, lettres de recreance, qui
se dit, soit des lettres qu'un prince envoie a son ambassadeur, pour les presenter
au prince d'aupres duquel il le rappelle; soit des lettres que ce prince donne'a
un ambassadeur, afin qu'il les rende, a son retour, au prince qui le rappelle. Le
roi de Prusse envoya une lettre de recreance a son ambassadeur pour le faire
revenir. Le roi d'Espagne donna une lettre de recr6ance A l'ambassadeur de
France, lorsqu'il prit son audience de cong6." —Dict. de l'Acad., v. Recr6ance.




164   PHILLIMORE ON INTERNATIONAL LAW.
PART THE SEVENTH.
[*235]                     *CHAPTER I.
CONSUtLS-HISTORICAL INTRODUCTION.
CCXLIII. IN the second chapter of the former volume of this work,(a)
mention was made of a class of public officers who, though not clothed,
accurately speaking, with a representative character, are entitled  to a
quasi diplomatic position, namely Consuls.(b)
It is proposed now to take into consideration the character and functions imparted by International Law to this class of public officers.
CCXLIV. The institution of a Foreign Consulate, within the territory of an independent nation, is a most important result of International Comity; but inasmuch as Custom, Prescription, and Treaty, have
placed the Resident Consulate, as much as the Resident Embassy,
within the domain of Right, it seems more properly discussed in this
portion of the work than in that portion which is devoted to the exclusive consideration of questions relating to International Comity.(c) The
origin of this institution is probably traceable to that Domestic Consulate which, after the fall of the Western Empire, was during the
earlier part of the middle ages, founded  in  most of the maritime
cities of the south *connected with commerce and navigation;
[*236] and for the decision of which, it relied mainly upon principles
gleaned from the Roman and Greek Law.
The tribunals of the domestic institutions were occupied by judges,(d)
known by the name of Juges Consuls, or Consuls iMarchands; while
the foreign institution was dependent on certain officers known by the
title of Consuls d'outre mer, or Consuls a' l'Etranger.  These latter
officers were persons sent by independent countries, or free cities, to the
seaports and adjacent towns of foreign kingdoms for the purpose of protecting the national commerce, especially in matters of shipwreck, of
watching over national interests and privileges, and of adjusting disputes
between national sailors and merchants.(e)
(a) Vide ante, vol. i. p. 10.
(b) Miltitz, Manuel des Consuls, t. i. p. 6; a work of marvellous research and
great ability.
(c) Vide ante, vol. i. pp. 12, 13, etprcesertim, pp. 160-1.
(d) The term " consulaire" is still used as synonymous with "commercial" on
the Continent. "Sentence consulaire," "condemnation consulaire," "jurisdiction consulaire," as expressing the attributes and powers of " tribunaux de commerce."De Martens, Le Guide Diplomatique, t. i. p. 238, notes.
(e) The first chapter of the famous Consolato del Hare is in these words:"Sogliono ogn' anno il dl del Natale del nostro Signore; all' ora del vespero gli
uomini da bene naviganti, e padroni, marinari, o tutti, o maggior parte di quelli
ragunarsi in consiglio, in un luogo da loro eletto, e deputato, come per usanza
hanno nella Citta di Valenza; e quivi per elezione, e non per sorte, tutti insieme




CONSULS-HISTORICAL INTRODUCTION.                           165
The perils to which infant commerce was exposed, and the insecurity
of personal intercourse with foreigners during the times of oppression
which followed the overthrow of the Western Empire, rendered the two
following objects matters of the greatest importance:1. The obtaining in foreign countries a place of safe deposit for
merchandize.
2. A jurisdiction within the limits of it, independent of the country
in which it was situated.
About the eleventh century depositories and a jurisdiction in Europe,
for the purpose of taking cognizance of all questions *of this  *237
kind sprang into existence under the protection of Consuls upon [237
the shores of the Mediterranean Sea; and in the East, the establishment of similar institutions upon the coast of Syria was one of the
immediate consequences of the Crusades. The establishment of factories in Greece by the inhabitants of Amalphi and Venice, indeed, preceded the Crusades, while the establishments of factories in Syria was
the fruit of those conquests.  These were at first under the protection of
the Christian and Frank sovereignties, which, from  the conquest of
Palestine till the thirteenth century, maintained their position in the
East.
During this period, a system seems to have prevailed that every European should be amenable only to the law of his native country.(f) After
this period when the East had fallen under the captivity of Islam, treaties were entered into (of which the fourteenth century furnishes abundant examples) between the Christian and Moslem powers, and especially
in Egypt, which confirmed the establishment of European consulates in
Mahometan countries.
About the same time the institution began to extend itself, keeping
pace with the extension of trade, beyond the limits of the Mediterranean,
over the northern and eastern coasts of Europe.  In the ports of the
Baltic and the Mediterranean especially, foreign merchants inhabited particular quarters of the town, subject to the jurisdiction and authority of
their Consuls, who were also designated by various titles, according to
the customs of various countries, viz.: Governors, Protectors, [*238
*Ancients,  Aldermen,(g) Syndics Jurats, Prvosts, Capitous, [*238]
Echevins, and who administered justice to their fellow-countrymen according to their national laws, and maintained the privileges conceded to them
in all matters, especially as to the use of the weights, measures, and coins
of their respective countries.
The organization of the Consulate was more or less complete, accordraccolti, o la maggior parte di loro, eleggono due uomini da bene, deli' arte del
mare, per loro Consoli, e per Giudici un' altro della medesima fazione del mare, e
non d'altro qualsisia ufficio o arte; e questo eleggono per Giudice delle appellazioni, le quali appellazioni si fanno delle sentenze date per i predetti Consoli.
E. le sopradette elezioni si fanno per vigore de' privilegi ottenuti dal Re, e dagli
antecessori di quello, quali privilegi hanno gli uomini da bene della sopradetta
arte del mare." Then follow several chapters as to the mode of exercising their
jurisdiction, both by the Consuls and the Court of Appeal.
(f) Vide post, DOMICIL. Miltitz, 1. ii. c. 1. R6sum6 Ph. 394-401. Heffters,
Drittes Buch, iii. Die Consuln, s. 224.
(g) Appellation of the Hanse Towns.




166   PHILLIMORE ON INTERNATIONAL LAW.;ng as the interests which the Consul had to protect were more or less
regular, as the obstacles they had to encounter were greater or less, as the
Municipal Laws of the State, in which they were established, were more
or less penetrated by the commercial spirit. The Levant produced the
best specimens of the institution; and Venice, Genoa, Marseilles, and
Barcelona appear to have been the cities in which it attained the greatest
perfection. (h)
At this time when the faith of Treaties was little respected; when even
alliances of States, subjected as they were to frequent violations, offered
but a feeble guarantee for the security of life and property to the stranger; when one nation generally regarded the trade of another as an injury
to her own subjects; when embassies were of rare occurrence and of'
short duration, and when there were no Resident Ambassadors, International Commerce would have withered away without the protecting shadow
of the Consulate. Consuls alone, at this time, enjoyed the full privileges
of the jus gentiunl and all the immunities accorded at the present time
to Ambassadors.
Before the middle of the seventeenth century, however, a great change
had been effected in the whole condition of International Commerce, and of
International intercourse generally. About this time, permanent and perpetual legations had become a part of the received Public Law of Europe;
the idea of national independence, moreover, had taken deep root, and
the exterritorial jurisdiction, both criminal *and civil, of the Consuls was wholly at variance with this principle; at the same time
the general refinement of manners, and the improvement of Municipal
Law, rendered it less necessary; and throughout Christian Europe, this
jurisdiction passed into the hands of the territorial authorities.
The mediaeval institution of consular jurisdiction, under the influence
of these causes, entirely changed its condition and character, and shrank
into a general vigilance of the Consul over the interests of the shipping
and navigation of his nation, and into a kind of authority, not very accurately defined,(i) over the members of it at a particular locality.
This is the position which, in Christian countries, the Consulate occupies at the present day. In Mahometan countries, however, States have
retained, by virtue of express stipulations in Treaties, the jus gentium
incident to accredited ministers, together with the especial prerogatives
of jurisdiction, which have been alluded to.(lc)
CCXLV. The status of the Consulate, therefore at the present time
seems to require a twofold division, viz.:1. The legal status of Consuls in Christian countries.
2. The legal status of Consuls in the Levant and in Mahometan countries.
(h) Miltitz, 1, ii. c. 2, s. viii. p. 492.
(i) a A l'aimable, amniablement," in the Consular Instructions put forth by France
and Greece.
(k) Miltitz, 1. iii. c. 1. Bynkershoek, De Foro Leg. vol. vi. c. x. Martens, Droit
des Gens, 1. iv. c. iii. s. 147. Vattel, 1. ii. c. ii. s. 34.




MODERN CONSULATES IN CHRISTIAN COUNTRIES. 167
*CHAPTER   I1(a)                           [*240]
MODERN CONSULATES IN CHRISTIAN  COUNTRIES.
CCXLVI. CONSULS in Qhristian countries are not, legally speaking,
Public Ministers of the State to which they belong, though having a
public character, they are under a more special protection of International
Law than uncommissioned individuals.  This protection they have a right
to claim both from  the State which sends, and from  the State which
admits them.  But they are not the representatives of their State, or
entitled to any of the privileges and immunities accorded to such representatives, whether they be full ambassadors, or simple charge's d'affaires,
and for these more especial reasons:
*1. They are not, except in cases where they are also charg6s *241]
d'affaires,(b) furnished with credentials (lettres de cre'ance,) but [i
with a mere commission (lettres de provision) to watch over the commercial rights and privileges of their nations.
2. They cannot enter upon the discharge of their functions without the
permission and confirmation of their commission by the Sovereign of the
country to which  they are deputed.  That commission is termed the
exequatur, and may, at any time, be revoked by such Sovereign.
3. As a general rule, they are amenable to the civil and criminal
jurisdiction of the country in which they reside.  Vattel's position, that
they are exempted from the latter, is wholly unsupported by the requisite
proof.(c)
(a) Kent's Commentaries, &c., vol. i. part 1, 1. ii. p. 41. Wheaton's Hist. p. 244.
Wheaton's Elements, &c., vol. i. p. 282. Fynn's British Consul Abroad, passim.
Wildman's Int. Law, vol. i. p. 130; vol. ii. p. 41. Heffters, Drittes Buch, p. 223.
Ortolan, Dipl. de la Mer, t. i. p, 275. De Martens et De Cussey, i. Index Expl.
" Consuls." Wicquefort, t. i. s. 5, p. I. Valin, Ord., vol. i. 1. 1, t. 9. De Consuls.
Saalfeld, Handbuch des Positiven Volkerrechts, p. 117, s. 55. A very useful and
correct summary of the duties and rights of Consuls.
Report from the Select Committee on Consular Establishments, laid before Parliament, 10th August, 1835.
Foelix, Droit International PrivY, ch. Exterritorialit6.
Flassan, Histoire Gen6rale et Raisonnue de la Diplomatie Frangaise, t. i. vii.
Grundsatze des Praktischen Europaischen Seerechts, Von Kaltenboon, Berlin,
1851; ii. 352, s. 216.
Le Guide Diplomatique, par le B. Charles De Martens, t. i. c. 12, p. 236. (4th
Ed. 1851.)
(b) The Consuls-General of France, at Cairo, Tunis, Tripoli, and in the capital
of the South American Republics, and also, it is believed, at Canton and Manilla,
are charges d'affaires, as well as Consuls. The French agent at Bucharest is accredited as " Agent et Consul-Gen6ral."  The powers of these Consuls are of a much
more extended character than those of the European Consuls. —De Martens, ib. i.
257. n.
(c) Vattel, t. i. 1. ii. c. ii. s. 34. " Ses fonctions exigent premierement qu'il ne
soit point sujet de l'6tat ou il reside; car il serait oblige d'en suivre les ordres en
toutes choses, et n'aurait pas la libert6 de faire les fonctions de sa charge. Elles
paraissent meme demander que le Consul soit independant de la justice criminelle
ordinaire du lieu oh il reside, en sorte qu'il ne puisse etre moleste, ou mis en prison,
X moins qu'il ne viole lui-m6me le droit des gens par quelque attentat enorme."




168    PHILLIMORE ON INTE'RNATIONAL LAW.
*4. They are subject to the payment of taxes.
I~[*~242]    5. The permission to have places of worship in their houses is
very rarely accorded to Consuls.(d)
6. They have no claim to any foreign ceremonial or mark of respect,
and no right of precedence, except among themselves according to the
rank of the different Sates to which they belong, but they have a right to
place the arms of their country over the door of their residence.
CCXLVII. De Martens(e) is of opinion that unless they have engaged
in trade, or become owners of immoveable property in the country, they
cannot be arrested or incarcerated for any less offence than a criminal act.
As a part of the results of the ever-memorable action at Algiers, Lord
Exmouth demanded and obtained full compensation from  the Dey for all
injuries and losses inflicted on the British Consul, and caused him to beg
*243] pardon in terms dictated for having imprisoned *him; moreover,
he insisted on the release(f) of the Spanish Vice-Consul, imprisoned upon a fictitious charge of debt.
When the French protectorate(g) had been established by Admiral
Dupetit Thouars over Tahiti, in 1842, the French found themselves the
objects of ill-concealed hostility.  This they attributed to the influence
of the English missionaries in the island.  A Mr. Pritchard, who had
"Et bien que l'importance des fonctions consulaires ne soit point assez relevde
pour procurer h la personne du Consul l'inviolabilit6 et l'absolue independance
dont jouissent les ministres publics, comme il est sous la protection particulitre
du souverain qui l'emlploie, et charge de veiller a ses int6rtts, s'il tombe en faute,
les egards dus t son maitre demandent qu'il mli soit renvoy6e pour dtre puni. C'est
ainsi qu'en usent les etats qui veulent vivre en bonne intelligence. Mais le plus
sur est de pourvoir, autant qu'on le peut, & toutes ces chosea par le trait6 de commerce."
" On penut accorder" (says De Martens, 1. iv. c. iii. s. 148, note) " que la plupart
des etats ne refuseraient pas l'extradition."
"4 Conaidorin& the importance of the consular functions, and the activity Which
in required of them in all great maritime ports, and the approach which Consuls
make to the efficacy and dignity of diplomatic characters, it was a wise provision
in the Constitution of the United States which gave to the Supreme Court original
juriilditiun in  ll sa aiffcting ~oni ulm, aN well as Ambasaadorg and otho@rDullit
ministera i and the federal jurisdiction is understood to be exclusive of the State
Courts."-1 Kent, 45.
(d) The second separate article of the Treaty between France and the Hanse
Towns, stipulated 1716.
" I. Que si un ministre de Sna Majest4, residant dans une desdites villes, vient X
y deceder, il sera permis h sa famille, heritiers, ou ayant cause de continuer, en
payant le loyer, d'y tenir chapelle, ainsi qu'elle s'y tenait pendant la vie dudit
Resident, et ce pendant trois mois seulement, h compter du jour de son d6ces, h
moins que Sa Majest6, avant ce temps-lh, n'eut choisi une antre maison dans laquelle l'etablissement d'une chapelle aurait aussi-tot ete fait, auquel cas elle cessera
dans la maison dudit defunt.
" II. Que le Roi donnera des ordres prdcis et effectifs dans tous les ports et lieux
n6cessaires, pour qu'il ne soit apporte aucun trouble ni empechement aux sujets
desdites villes de Lubeck Bremen et cHambourgh, lors de la ceremonie des obsbques de
ceux d'entr'eux qui seront deced6s, dans l'Btendu6 pes terres de l'obdisaance de Sa
Majeste, et ce sous peine de prison contre les contrevenans, et de telle amende qu'il
appartiendra."-Schmauss, ii. 1623. See Wenck, vol. iii. p. 769, for the Treaty
between France and Hamburg, A. D. 1769. Fynn, 13. De Martens, Dr des Gens,
i. 149.
(e) De Martens, Le Guide Dipl. i. 250.
(f) Annual Register (1816,) vol. lviii. pp. 104, 237-8-9.
(g) This account is taken from the Annual Register for 1841.




MODERN  CONSULATES IN  CHRISTIAN  COUNTRIES. 169
gone out originally as a missionary, was at this juncture acting as British
Consul. He had, indeed, a short time previously, notified to the English Government his resignation of that office; but, as intelligence of
the acceptance of this resignation had not reached Tahiti, he was still
clothed with the character and exercising the functions of Consul. The
French officers looked upon him as the chief author of the disturbances
that broke out from time to time, and of the opposition evinced to their
authority. On the night of the 2nd of March, in 1844, a French sentinel was attacked by the natives; the French determined to make Mr.
Pritchard responsible for this act. Accordingly, on the evening of the
5th of March, as Mr. Pritchard was leaving his house, he was seized by
the Commandant of Police, with some soldiers, who hurried him off to
prison, where he was kept in close confinement. The following paper
was circulated in the French, English, and Tahitian languages:" French Establishment in Oceania.
"A French sentinel was attacked in the night of the 2nd to the 3rd
of March.  In reprisal, I have caused to be seized one Pritchard, the
only daily mover and instigator of the disturbances of the natives.  His
property shall be answerable for all damage occasioned to our establishments by the insurgents; and if French blood is spilt, every drop shall
recoil on his head.
" D'AUBIG NY,
"'Commandant Particular to the Society Islands.
" Papiti, 3rd March."
*At the intervention of Captain Gordon, of the British war- [*244]
steamer Cormorant, Mr. Pritchard was released from prison, on
condition that he should not be again landed on the Society Islands;
without taking leave of his family, he was conveyed in the Cormorant
to Valparaiso, where he embarked in the Vindictive, and was brought
to England.
yWThen the news of this outrage reached England, a natural feeling of
indignation was loudly expressed; and the then Prime Minister, Sir
Robert Peel, in his place in the House of Commons, declared that "a
gross outrage, accompanied with gross indignity, had been committed
upon IMr. Pritchard:" at the same time he stated, that as this act had
not been done in consequence of any authority given for that purpose by
the French Government, he entertained a strong hope that it would at
once make the reparation, which Great Britain had a right to require.
In this expectation Sir Robert Peel was not disappointed.  On the
last day of the Session of the British Parliament, the 5th of September,
he was enabled to state in the House of Commons, that the discussion
between the two Governments, relative to the Tahitian affair, had been
brought to an amicable and satisfactory termination.  This was effected
by the payment, on the part of the French Government, of a sum of
money to Mr. Pritchard, as an indemnity or compensation for the outrage which had been offered to him  by the French in the island of
Tahiti. (Ih)
(h) Annual Register, vol. lxxxvi. (1844), pp. 260-1.
NOVEMBER, 1855.-12




170       PIIILLIMORE ON  INTERNATIONAL LAW.
CCXLVIII. The privileges of Consuls, so far as they are derived
from the country to which they are sent, are, generally speaking, an
exemption from any personal tax, and. generally from the liability to
have soldiers quartered in their houses; and in cases where the ambassadors are absent, or non-resident, they have a right of access to the authorities of the State in which they reside. They are usually allowed
to grant passports to subjects of their (the consuls') own country, living
w245  ithin the range of their consulate, but not to foreigners.  As
a general rule,(i) the muniments and papers of the consulate are
inviolable, and under no pretext to be seized or examined by the local
authorities.
CCXLIX. As a general rule, too, Consuls, in Christian countries,
have no contentious jurisdiction over their fellow-countrymen, but simply
a sort of voluntary jurisdiction-a power of arbitration (jurisdiction
arbitrate) in disputes, more especially those relating to matters of commerce.(k)  Their functions must, in great measure, depend upon the
municipal law  of their own country.. No contentious jurisdiction can,
according to the doctrine laid down in a former chapter, be exercised
over their fellow-countrymen without the express permission of the State
in which they reside; and no Christian State has as yet permitted the
criminal jurisdiction of foreign Consuls. But usage, and the rule adopted
in most treaties, concede to the Consul the assistance of the local police
when it may be necessary for the exercise of his functions over the seamen of merchant-vessels belonging to his own country.(l)
CCL. It has been observed, that the institution of the consulate is a
result of International Comity; and that the refusal to receive a foreign
Consul is no breach of strict International Law. But a Consul, admitted
without any express *stipulation, is entitled to the same privileges as his predecessors have enjoyed, upon the general principle
mentioned in a former chapter, that every nation is presumed to follow
custom and usage in its treatment of foreigners, and is bound to give
previous warning of its intention, if it have any, of adopting a different
course with respect to them.(m)  As a general rule, and in the absence
of any treaty upon the subject, the Consul looks for his authority and
functions to the diplomatic instrument, by which he is appointed to his
(i) Mr. Fynn, in his work on the British Consul Abroad, observes, (p. 17,) "A
Consul, however, is distinguished from the merchants or inhabitants of the place
where he is appointed to by various privileges, derived from treaties, or founded
on usage. He is respected in a particular manner: on his arrival he is allowed a
free entry for his furniture and baggage; he is exempt from the excise or inland
duties on liquors and other articles of consumption, for himself and family; he is
entitled to a seat on the Bench with the magistrates of the place, whenever he is
obliged to appear at their assemblies; to act as Counsel for the subjects of his
nation, in all cases of dispute between them and the natives of the place. He is
exempt from lodging the military in his house; and is to be furnished with a
guard, when he requires one, to aid and assist him in the maintenance of his authority over the subjects of his own country trading to where he is located; and all
masters of vessels are to show him respect and obedience."
(k) De Martens, Dr. des Gens, i. 251.        (1) De Martens, ib., i. 287.
(mn) Vattel, t. i. liv. ii. c. ii. s. 34. "Au d6faut des traites, la coutume doit
servir de rbgle dans ces occasions; car celui qui reoit un Consul sans conditions
expresses, est cens6 le recevoir sur le pied 6tabli par l'usage."




MODERN CONSULATES IN CHRISTIAN COUNTRIES. 171
office, to the exequatur which empowers him  to exercise them, and to
any modification which the particular law or custom of the country in
which he is placed may apply to them;(n) and he must always remember, that the principal end and object of the consulate is to protect the
external commerce and the national navigation of his own country in
the rights secured to them by usage or treaty.
CCLI. Some nations permit, and others forbid their Consuls to trade;
a trading Consul is, in all that concerns his trade, liable to the local authorities in the same way as any native merchant. In fact, sometimes
natives of the locality itself in which consular services are required, are
appointed Consuls; and thus are, at one and the same time, the subjects
of the country in which they dwell, and the agents of a foreign State.
Such an appointment is, perhaps, rightly pronounced, by a considerable
living authority, to be objectionable in principle.(o)  The prerogatives
of such Consuls are very limited; the only exemptions which they appear
to enjoy are from lodging soldiers and from personal service in the civic
guards or militia.(p)
*CCLII.  Such an appointment cannot, of course, be made  *247]
without the sanction of the Sovereign, though a condition of this [7]
kind has sometimes formed the subject of an express provision of a
treaty. Thus, in the Treaty of 1753, between the Crown of the Two
Sicilies and the Republic of Holland, it is provided:-'f L'on fera attention, de part et d'autre, de nommer pour Consuls
dans les Etats respectifs, comme ci-dessus, des propres sujets naturels;
et si l'une des parties contractantes nommait pour son Consul, dans les
Etats de l'autre, un sujet de celle-ci, il sera libre'a cette derniere de
ladmettre, on non."' ()
CCLIII. Consuls-General are sometimes appointed.  These officers
exercise their functions over several places, and sometimes a whole
country; and, generally speaking, Consuls and Vice-Consuls are under
their control.
CCLIV. The appointment of Vice-Consuls is also sanctioned by the
practice of nations.
English Vice-Consuls are usually appointed by the Consul, subject to
the approbation of the Foreign Secretary of State, and, as a general
rule, the English Vice-Consul corresponds directly with the Consul; but
in special cases with the Foreign Secretary, in the first instance.(r)
CCLV. The Treaties which have reference to this subject appear to
admit of the following classification:1. Treaties between Christian European States.
2. Treaties between Christian European States and the States of North
and South America.
3. Treaties between the States of North and South America.
4. Treaties between Christian States and Infidel or Heathen States.
(n2) De Martens, ib. i. 260-5.
(o) De Martens et De Cussey, Rec. de Trait. Index Explicatif, p. xxx. tit. Consuls, " Usage d6plorable en principe."
(p) De Martens, Le Guide Diplomatique, J. 398.
(g) Wenck. Codex Jur. Gent. t. ii. p. 775.   (r) Fynn, p. 6.




172     PHILLIMORE  ON INTERNATIONAL LAW.
The Treaties which principally illustrate the functions, powers, and
privileges, of Consuls are, according to the above-mentioned classification, the following:
1. Treaties between Christian European States.
[*248] *,France with Spain, 1768-1769.
"    with Great Britain, 1787.
with the Netherlands, 1840.
"    with Russia, 1787.
"    with Portugal, 1667, 1797.
Auistria with Spain, 1725.
"   with Greece, 1835.
Denmark with Spain, 1641, 1742.
r"    with Russia, 1782.
Kingdom of the Two Sicilies with the Netherlands, 1753.
<v ~              C r    with Russia, 1787.
"    with Sweden, 1742.
Prutssiac with Portugal, 1844.
Great Britain with France, 1787 (vide ante'.)
~e:~   with Portugal, 1840.
with Russia, 1843.
h'      with Spain, 1665, 1667, 1751.
Spain with the Netherlands, 1714, 1816.
"  with Great Britain (vide ante'.)
2. Treaties between the States of North and South America and
Christian European States.
c. North America:United States of N2orth America with France, 1788, 1800.
with Denmark, 1826.
"i tc     with Spain, 1795, 1819.
C' re     with Great Britain, 1806.
with Prussia, 1828.
with Sweden, 1816, 1827.
with Austria, 1829.
p. South America:Mexico with France, 1827.
with Great Britain, 1826.
"   with the Netherlands, 1827.
SNew Grenada with France, 1840.
Brazil with Denmark, 1828.
with Great Britain, 1827.
a with Prussia, 1827.
249 Texas with France, 1839.
Rio de la Plata with Great Britain, 1825.
3. Treaties between the States of North and South America.
Central America with the United States, 1825.
Columbia with the United States, 1824.
4. Treaties between Christian States and Infidel or Heathen States.
Morocco with France, 1682, 1767.
"    with Denmark, 1767.




MODERN CONSULATES IN CHRISTIAN COUNTRIES. 173
Morocco with Spain, 1799.
with United States of North America 1786, 1830.
"     with Great Britain, 1826.
"     with the Netherlands, 1683, 1752.
The Ottoman Porte with France, 1535, 1569, 1581.
cc           with the Two Sicilies, 1740.'c           with Spain, 1782.
cc           with United States of North America.
cc           with Great Britain, 1675.
Tuzis with Denmark, 1751.
c with Spain, 1794.
"c  with United States of North America, 1797.
Trsipoli with the Two Sicilies, 1754, 1816.
4   with Spain, 1784.
4c   with United States of North America, 1805.
" with Great Britain, 1662, 1675, 1694, 1716, 1754.
Persia with France, 1708, 1715, 1808.
China with Great Britain, 1843.
CCLVI. From these Treaties the general usage of nations with respect
to the condition and authority of Consuls, both in Christian and Infidel
countries, may be collected.  It may be useful to mention further that
those Treaties which most fully illustrate the usual and ordinary status
of Consuls, as distinguished from  their extraordinary privileges in Turkey *and the  Levant, are  the following, viz.:-The  Treaty
between Sicily and the Netherlands in 1753, and more particu- [*250]
larly the 31st article.(s)
The "-Convention entre la Cour d'Espagne et celle de France, pour
mieux regler les fonctions des Consuls et Vice-Consuls de ces deux Couronnes dans leurs Ports et Domaines respectifs" of 1769.(t)
The Consular Convention between the United States of North America and France, in 1788.
The Treaty between France and the Republic of Texas, in 1839.(u)
(s) Wenck. ii. 774-5.
(t) By the 12th Article of this Treaty it is provided, " Tous les diffdrends et
procis entre les sujets de lune des parties contractantes sur le territoire de l'autre, et notamment tout ce qui concerne les gens de mer, seront jug6s par les Consuls respectifs, sans qu'aucun officier territorial puisse intervenir, et que les appels
des jugements consulaires seront port6s devant les tribunaux du pays qui a institu6
les Consuls, lesquels tribunaux pourront seuls en connaltre."
(u) Martens, Rec. de Traites, &c., 1830-39, vol. xxiv. p. 990.
"Art. 9. Les Consuls, Vice-Consuls, et agens consulaires respectifs, ainsi que
leurs chanceliers, jouiront, dans les deux pays, des privileges g6n6ralement attribu6s h leurs charges, tels que l'exemption des logemens militaires, et celle de
toutes les contributions directes, tant personnelles que mobilieres ou somptuaires,
B moins, toutefois qu'ils ne soient citoyens du pays, ou qu'ils ne deviennent, soit
proprietaires, soit possesseurs de biens immeubles, ou, enfin, qu'ils ne fassent le
commerce, dans lesquels cas ils seront soumis aux memes taxes, charges et impositions que les autres particuliers. Ces agens jouiront en outre de tous les autres
privileges, exemptions et immunit6s qui pourront 6tre accord6s, dans leurs r6sidences, aux agens du meme rang de la nation la plus favorisee.
10.'" Les archives, et en general tous les papiers des chancelleries des consulats
respectifs, seront inviolables, et sous aucun pr6texte, ni dans aucun cas, ils ne
pourront etre saisis ni visites par l'autorite locale.




174    PHILLIMORE ON INTERNATIONAL LAW.
[*252]                    *CIIAPTER   III.
CONSULS-DUTIES AND POWERS OF.
CCLVII. IT will not be inconsistent with the scheme of this work to
call attention to some of the principal domestic regulations of particular
States upon the duties and powers of Consuls.  The law of the United
States of America upon a subject in which they have so deep and legitimate an interest, is thus stated by Mlr. Chancellor Kent:", The Laws of the United States, on the subject of Consuls and ViceCounsuls, specially authorize them to receive the protests of masters and
others relating to American commerce, and they declare that Consular
Certificates, under seal, shall receive faith and credit in the Courts of the
United States.  It is likewise made their duty, where the laws of the
country permit, to administer on the personal estates of American citizens,
dying within their consulates, and leaving no legal representative, and to
take charge of and secure the effects of stranded American vessels, in the
absence of the master, owner, or consignee; and they are bound to provide for destitute seamen within their consulates, and to send them at the
public expense, to the United States, It is made the duty of American
Consuls and commercial agents to reclaim deserters, and discountenance
insubordination, and to lend their aid to the local authorities for that
purpose, and to discharge seamen cruelly treated.  It is also made the
duty of masters of American vessels, on arrival at a foreign port, to deposit their registers, sea-letters and passports with the Consul, Vice-Consul, or commercial agent, if any, at the port; though this injunction only
11. "Les Consuls, Vice-Consuls, et agens consulaires respectifs, auront le droit,
au d6cs de leurs nationaux morts, sans avoir tests ni d6sign6 d'exdcuteurs testamentaires, de remplir, soit d'office, soit ai la r6quisition des parties int6ress6es, en
ayant soin de prevenir d'avance l'autorit6 locale comp6teute, les formalits n6cessaires, dans l'interet des hdritiers, de prendre en leur nom possession de la succession, de la liquider et administrer, soit personellement, soit par des d6legu6s,
nommes sous leur responsabilit6.
12. "Les Consuls, Vice-Consuls, et agens consulaires respectifs seront exclusivement charg6s de la police interne des navires de commerce de leur nation, et
les autorit6s locales ne pourront y intervenir qu'autant que les desordres survenus
seraient de nature a troubler la tranquillit6 publique, soit a terre, soit a bord d'autres batimens.
13. " Les Consuls, Vice-Consuls, et agens consulaires respectifs pourront faire
arr6ter et renvoyer, soit A bord, soit dans leurs pays, les matelots qui auraient
deserte des bttimens de guerre ou de commerce appartenant & leur nation. A cet
effet ils s'adresseront par ecrit aux autorites locales comp6tentes, et justifieront,
par l'exhibition des registres du batiment on du r6le d'equipage, ou, si ledit navire etait parti, par copie desdites pieces, dudment certifiees par eux, que les hommes qu'ils r6clament faisaient partie dudit equipage. Sur cette demande, ainsi
justifiee, la remise ne pourra leur 6tre refus6e. 11 leur sera de plus donne toute
aide et assistance pour la recherche, saisie et arrestation desdits d6serteurs, qui
seront m6me d6tenus et gardes dans les prisons du pays, a la requfte et aux frais
des Consuls, jusqu'a ce que ces agens aient trouv6 une occasion de les faire partir.
Si pourtant cette occasion ne se presentait pas dans un delai de quatre mois, a
compter du jour de l'arrestation, les deserteurs seraient mis en libert6, et ne pourailent plus 6tre arretes pour la mame cause."




CONSULS-DUTIES AND POWERS OF.    175
applies when the vessel shall have come to an entry, or transacted business at the port.  These particular powers *and duties are similar to those prescribed to British Consuls, and to Consuls under [*253]
the consular convention between the United States and France, in 1788;
and they are in accordance with the usages of nations, and are not to be
construed to the exclusion of others, resulting from the nature of the
consular appointment. The consular convention between France and this
country, in 1778, allowed Consuls to exercise police over all vessels of
their respective nation,' within the interior of the vessels,' and to exercise a species of civil jurisdiction, by determining disputes concerning
wages, and between the masters and crews of vessels belonging to their
own country.. The jurisdiction claimed under the consular convention
with France was merely voluntary, and altogether exclusive of any coercive authority; and we have no treaty at present which concedes even
such consular functions.  The doctrine of our courts is, that a foreign
Consul, duly recognised by our Government, may assert and defend, as
a competent party, the rights of property of the individuals of his nation,
in the courts of the United States, and may institute suits for that purpose, without any special authority from the party for whose benefit he
acts. But the Court, in that case, said that they could not go so far as
to recognise a right in a Vice-Consul to receive actual restitution of the
property, or its proceeds, without showing some specific power for the
purpose from the party in interest."(a)
CCLVIII. The authority and powers entrusted by the British Government to their Consuls are to be found:1. In certain general institutions issued in 1846 by the Secretary of
State for the Foreign Department.  Of these the following only require
to be noticed in this work:-." SEC. 1. Exequcatur.-Upon the arrival of the Consul at his post, he
will announce himself to the principal public authorities, and will show
them Her Majesty's Commission *or a copy thereof; and he may  *254]
if required, give them a copy, stamped with the consular seal.   [254
r" The original Commission should be forwarded to Her Majesty's Ambassador or Minister at the Court of the country in which the Consul has
to reside, with a request that the said Ambassador or Minister will apply
to the proper authorities for the usual exequatur to enable him to enter
officially upon his consular duties.
"SEC. 2. Privileges.-lHer Majesty's Commission and the exequatur
will secure to the Consul the enjoyment of such privileges, immunities,
and exemptions, as have been enjoyed generally by his predecessors, and
as are usually granted to Consuls in the country in which he resides;
and he will be cautious not to aim at more.
" SEC. 7.-Advice and assistance to be given to British subjects. —The
Consul will give his best advice and assistance, when called upon,
to Her Majesty's trading subjects, quieting their differences, promoting
peace, harmony, and good-will amongst them; and conciliating, as much
(a) Kent's Commentaries, vol. i. pp. 42-3.




176   PHILLIMORE ON INTERNATIONAL LAW.
as possible, the subjects of the two countries upon all points of difference
which may fall under his cognizance.
" In the event of any attempts being made to injure British subjects,
either in their persons or property, he will uphold their rightful interests,
and the privileges secured them by treaty, by due representation in the
proper official quarter.  He will, at the same time, be careful to conduct
himself with mildness and moderation in all his transactions with the
public authorities; and he will not, upon any account, urge claims on
behalf of Her Majesty's subjects to which they are not justly and fairly
entitled.  If redress cannot be obtained from the local administration, or
if the matter of complaint be not within their jurisdiction, the Consul
will apply to Her Majesty's Consul-General, or to Her Majesty's Minister, if there be no Consul-General in the country wherein he resides, in
order that he may make a representation to the higher authorities, or
take such other steps in the case as he may think proper; and the Con*255] sul *will pay strict attention to the instructions which he may
receive from the Minister or Consul-General.
" SEC. 10. Protection on board of British ships.-Misconception
having arisen with respect to the degree of protection which commanders
of British ships may afford to any individuals seeking refuge on board
of those ships, the Consul is informed that the commanders of British
ships lying in the ports of a foreign country are not authorized to
harbour any persons (even if British subjects) who may seek refuge on
board of their vessels, in- order to evade or resist the due execution of
the laws, to which, by reason of their residence in the country, they
have rendered themselves amenable; and the Consul will bear in mind,
in all applications which may be made to him on behalf of individuals
so circumstanced, that such persons are liable to be taken by due process
of the laws of the country.
"Sec. 16. Certificates.-The Consul will be careful not to grant a
certificate of any fact of which he has not accurately ascertained the
truth; and whenever, he is required to attest or certify a document
consisting of more than one sheet, he will unite the sheet by a tape or
ribbon to the end of the document, by means of wax or wafer, -on which
he will place his official seal.
is SeC. 24. Precedence between Consuls and Naval Officers.-In order
to avoid the inconvenience which has arisen to Her Majesty's service
from a difference of opinion on a point of etiquette between Her Majesty's
Consuls and the Commanders of HIer Majesty's ships of war arriving at
foreign ports with respect to the payment of the first visit, it has been
decided that whenever the captain of one of Her Majesty's ships of war,
being a post-captain or a commodore, wearing a blue pendant, shall
signify to the Consul, in writing, his arrival at the port at which the
Consul resides, the Consul (or Vice-Consul in ports were there is a
Consul-General) will take the earliest opportunity of waiting in person
on the commander of the ship, and of affording him such assistance as
he may require.  Commanders *of Her Majesty's navy will, on
] their arrival at any such ports, wait upon Her Majesty's Consuls,
but they will be waited upon by Vice-Consuls.  Consuls-General and




CONSULS-DUTIES  AND  POWERS OF.                     177
Consuls will, in all cases, wait upon flag-officers and commanders wearing
a red or white pendant, without waiting for any previous communication.
The officers commanding Her Majesty's ships of war have orders to
furnish a boat to convey the Consul on board, and to re-land him, on
the Consul notifying his wish to have a boat so sent for him.  The
Consul will strictly attend to the foregoing instructions.  The copy of a
memorandum upon this subject, issued by the Admiralty to Her Majesty's
naval officers, is herewith enclosed.
"' SEc. 27. V7ice- Consuls —In case it shall appear to the Consul necessary that a Vice-Consul should be stationed at any port within his
district, where no British vice-consulate has heretofore existed, or wherever
a vacancy shall occur, he will report the fact to the Secretary of State,
showing at the same time how far British interests require such an
appointment; and if suggested as expedient, he will submit the name
of some English merchant of respectability for the appointment, with
the grounds of his recommendation; but he will in no case give him
any commission or sanction to act in that capacity, until the approval
of the Secretary of State shall have been given.  Upon the receipt of
such approval, the Consul will acquaint the individual with his appointment as Vice-Consul, and will furnish him with the necessary authority
to act in that capacity, together, with instructions for the guidance of
his conduct conformable to those which he himself is acting."
The Consul is ordered not to dismiss any Vice-Consul acting within
his district without the sanction of the Secretary of State; but if he
should be of opinion that good and sufficient grounds exist for the
dismissal of a Vice-Consul, he will give information thereof to Her
Majesty's Secretary of State, suspending, provisionally, the Vice-Consul,
only when the extraordinary nature of the case may appear to require
so *prompt a proceeding; and awaiting, in all cases, the decision
of the Secretary of State, previously to taking ulterior proceed-  2571
ings upon the subject.
At the close of every year, it is the duty of the Consul to transmit
to the Secretary of State a list (according to a prescribed form)(b) of all
persons who may be acting within his consular district, and under his
jurisdiction, either as British Vice-Consuls, Deputy Consuls, Provisional
Consular Agents, or in any other similar capacity; stating in such return
the station, the name of the individual, his consular rank, the date of
his provisional nomination, and the date of the approval thereof by the
Secretary of State.
" SEC. 29. Passports.-The Consul will not take upon himself, as a
matter of course, to grant passports. If, however, the regulations of
the country wherein he resides require that his visa should be affixed to
the passport of British subjects, or that a certificate should be furnished
by him, to enable them to obtain passports from the proper authorities,
he will, when called upon, affix such visa, or give such certificates."(c)
An Order in Council regulating the consular fees issued in 1851.
CCLIX. The authority and powers of British Consuls are also to be
(b) Which is annexed to the statute.
(c) Fynn's British Consuls' Handbook, pp. 36-55.




178    PHILLIMORE ON INTERNATIONAL LAW.
found in the statute passed in the sixth year of George IV.;(d) and
also in the statute passed in the sixth year of George IV. (chapter 78)
relating to the performance of quarantine.(e)
In the statute of the 12th and 13th of Victoria (chapter 62) great
[*2581 powers are given to Consuls for the purpose of facilitating *the
[U5    ] marriage of British subjects resident in foreign countries.
The statute of the 7th and 8th Victoria, chapter 112,(f) commonly
called "i The Merchant Seamen's Act,"  contained various provisions
relating to Consuls and Vice-Consuls. This statute did not apply to
any ship registered in or belonging to any British colony having a legislative assembly, or the crew of any such ship while it was within the
precincts of the colony; but it did apply to every ship belonging to any
colony or possession of the British Crown, when proceeding from one
part of the United Kingdom  to another (including the islands of Jersey,
Guernsey, Alderney, Sarks, and Man,) or from  any port in the United
Kingdom  to any port of any foreign power, or to any colony to which
the ship did not belong.
This statute was followed by one passed in 1854 (the 17th and 18th
Vict. c. 104,) called the "c Merchant Shipping Act," and which is in
fact a code of British mercantile and marine law; it embodies and
extends the provisions of the former statute, and contains a variety of
important provisions with respect to the powers and duties of British
Consuls over the commercial marine of Great Britain: the sections which
principally relate to this subject are mentioned in the note appended to
these observations.(g)
CCLX. The most instructive and remarkable of the  Regulations
respecting Consuls, promulgated by Foreign Powers for the direction of
their subjects, appear to be the following:(h)-Those put forth by Spain
in 1745, 1817, 1818, 1827; by France,(i) "rOrdonnances" respecting
(d) Chapter 87. " To regulate the Payment of Salaries and Allowances to
British Consuls at Foreign Ports, and the Disbursements at such Ports for certain
public Purposes."
(e) In this statute the clauses which extend from the tenth to the fifteenth
relate to provisions for the support of churches and chapels in foreign ports and
places where a chaplain is appointed and maintained by subscription.
(f) Sec. 61.
(g) Ss. 13, 31, 46, 52, 53, 54, 80, 81, 83, 103, 104, 105, 158, 192 to 211, inclusive; 219, 220, 221, 227, 230, 246; 257 to 267, inclusive; 276, 483 to 494, inclusive.
(h) De Martens, ib. 331-2, recommends them  as "les plus indispensables X
connaltre ou a consulter."
(i) In the Code de Commerce are these provisions:" 234. Si pendant le cours du voyage, il y a necessite de radoub, ou d'achat de
victuailles, le capitaine, apres l'avoir constat6 par un procesverbal sign6 des
principaux de l'equipage, pourra, en se faisant autoriser en France par le tribunal
de commerce, ou a defaut, par le juge de paix, chez l'etranger par le consul
frangais, ou a defaut, par le magistrat des lieux, emprunter sur le corps et quille
du vaisseau, mettre en gage on vendre, des marchandises jusqu'h concurrence de
la somme que les besoins constates exigent.
"Les proprietaires, ou le capitaine qui les repr~sente, tiendront compte des
marchandises vendues, d'apres le cours des marchandises de meme nature et
qualit6 dans le lieu de la d6charge du navire, a l'poque de son arrivee.
"244. Si le capitaine aborde dans un port stranger, il est tenu de se presenter
au consul de France, de lui faire un rapport et de prendre un certificat constatant




DECISIONS  AS TO  CONSULS.                        179
Consuls in *Christian  countries, published  in 1833, 1845;
respecting Consuls in Barbary and the " ekchelles du Levant," [*259]
those published in 1836. Those put forth by Sardinia in 1835; by
Prussia(k) in 1796, and in the years immediately following; by Brazil
in 1834; by Denmark in 1824; by the United States of North America
in 1833; by Russia in 1820; by Greece in 1834.(1)
*C HA PTE R  IV.                       [*260]
DECISIONS OF MUNICIPAL TRIBUNALS AS TO CONSULS.
CCLXI. A CONSUL being a person impressed with a public character
is c" entitled" (as Lord Ellenborough says) "c to privilege to a certain extent, such as for safe conduct; and if that be violated, the sovereign has
a right to complain of such violation."(a)
Vattel complains that Wicquefort, in his Treatise on Ambassadors,
denies to Consuls the jus gentiun, while he cites instances which support
their claim  to it.  But these instances when examined do not sustain
the assertion of Vattel.(b)
CCLXII. The Governor of Cadiz having arrested and insulted the
Dutch Consul, the United States complained to the Court of Madrid on
the ground that *the 4jius gentium" had been violated, and not on the
ground that specific treaties, which was their real vantage ground, had
been disregarded by these acts.
The Dutch also made a fruitless endeavour to obtain the privilege of
an Ambassador for their Consul at Genoa, but the Senate refused their
claim, replying: cc Qu'ils ne le reconnoissoient point pour Ministre Public; et que tout ce qu'on pouvoit desiderer d'eux, c'estoit la jouissance
paisible des droits et des privileges, que la coustume attribue ia cette sorte
d'emplois.  Les Consuls ne sont que des marchands, qui avec leur charge
de juge des diffdrends, qui peuvent *naistre entre ceux de leur
nation, ne laissent pas de faire leur trafic, et d'estre sujets   la [261
justice du lieu de leur residence, tant pour le civil que pour le criminel;
ce qui est incompatible avec la qualite de Ministre Public."(c)
In 1634 a quarrel took place between the Republic of Venice and the
Papal Government, on account of divers flagrant and indefensible outrages committed by the Governor of Ancona against the property and
persons of the Consuls of the Republic, seizing the papers and goods of
one, and imprisoning the person of the other, upon suspicions wholly
unsupported by proof.  The Ambassador of France interfered to mediate
l'6poque de son arrivee et de son depart, 1'6tat et la nature de son chargement."L. ii. t. iv.
(k) See Manuel Pratique des Consulats, by De Mensch.
(1) See these translated into French, in a note to p. 245, of De Martens, Le
Guide Diplomatique, t. i.
(a) Viveash v. Becker, 3 Maule & Selwyn, (Q. B. Rep.,) 297. Vide post.
(b) Wicquefort, L'Ambassadeur et ses Fonctions, 1. i. s. v. p. 63.
(c) Wicquefort, 1. i. s. v. p. 62.




180   PHILLIMORE ON INTERNATIONAL LAW.
between the parties. But these were cases in which the Government of
Venice would have resented the injury, if one of their private citizens
had been the subject of it; and Wicquefort's position with respect to the
status of Consuls is, " Les Princes qui les employent les protegent, comme
personnes qui sont a leur service et comme tout bon maistre protege son
serviteur et son domestique; mais non comme Ministres Publics."(d)
And it is with the instances cited by Wicquefort before his eyes that
Bynkershoek, not disposed, it must be presumed, to lower the dignity of
his country, remarks: "cEt, si verum  amamus, Consules illi non sunt
nisi Mercatorum  Nationis sume defensores et quandoque etiam  judices,
quin fore ipsi Mercatores, non missi, ut principem  suum  representent
apud alium principem, sed ut principis sui subditos tucantur in iis, quve
ad mercaturam pertinent, spepe et ut de iis inter eos jus dicant."(e)
CCLXIII. In France the law has been very correctly laid down.
In September, 1842, the Cour Royale de Paris confirmed, on appeal,
the judgment of the Tribunal Civil de la Seine, in *the matter of
[*262] M. Carlier d'Abaunza, Marquis de la Fuente IEermosa.
The Marquis was a Spaniard by birth, and had lived in Paris since
1833. In 1840 he had been nominated Consul-General of the Republic
of Uruguay; but had not obtained the exequatur of the French Government.  Ile was arrested by a creditor and claimed exemption from civil
process on the ground of his diplomatic character.  But the French
Courts decided that the Consul had no diplomatic mission, and was not
entitled to the immunities of an ambassador, under any circumstances,
and that this proposition was still more certain when the Consul had not
received the exequatur of the government of the country in which he was
residing.(f/)
The Cour Royale of Aix, in the year 18413, gave the following decision
in the case of M. Soller:"Attendu que si les Ambassadeurs sont independants de l'autorite
souveraine du pais dans lequel ils exercent leur ministere, ce privilege
n'est pas applicable aux Consuls;
"c Que ceux-ci ne sont que des agents commerciaux; que si les lois de
police et de securite obligent en general tous ceux qui habitent le territoire frangais, il en resulte que l'6tranger, qui se trouve memee casuellement sur ce territoire, doit concourir de tous les moiens a faciliter l'exercice de la justice criminelle;
Attendu que si la convention diplomatique dont le Consul d'Espagne
se prevaut pour etre dispens6 de venir deposer devant la cour dtait sans
inconvenient pour le tems oul elle fut faite, alors que la procedure criminelle 6tait secrete, elle est inapplicable aujourd'hui oui d'apres le droit
public qui nous regit les debats sont publiques, et oui les temoins sout
tenus de deposer oralement devant le jury;
(d) Ibid. p. 63.
(e) Bynkershoek, Opera, vol. vi. p. 482. De Foro Legatorum, c. x.
(f) Gazette des Tribunaux (Numero 4809,) Lundi 5 et Mardi 6 Septembre,
1842. lb. (Numero 4783) Samedi 6 Aoft, 1842.
See also the case of Hermann Delong. lb. (Numero 4890) Dimanche, 9 Mai, 1841.




DECISIONS AS TO  CONSULS.                       181
*"4 Mais attendu que le Consul est etranger; qu'il a pu ignorer [263]
l'conomie et le m6canisme de la procedure criminelle frangaise,
et qu'il y a de la bonne foi dans son refus;
c La cour ddclare n'y avoir lieu ia condamner M{. Soller a l'amende."(g)
CCLXIV. The civil tribunals of the United States of North America
have promulgated the same doctrine.
CCLXV. In England the status of Consuls has more than once been
brought under discussion in the Courts which administer Municipal
Law.
In the tenth year of the reign of George II. (1737,) the following
case was brought before Lord Chancellor Talbot:
Barbsit's Case in Chancery.(h)
Barbuit had a commission, as Agent of Commerce from  the King of
Prussia, to Great Britain, in the year 1717, which was accepted here by
the Lords Justices when the King was abroad. After the late King's
demise, his commission was not renewed until 1735, and then it was,
and allowed in a proper manner; but with a recital of the powers given
him in the commission, and allowing him as such. These commissions
were directed generally to all the persons whom the same should concern,
and not to the King; and his business described in the commissions
was, to do and execute what his Prussian Majesty should think fit to
order with regard to his subjects trading in Great Britain; to present
letters, memorials, and instruments concerning trade, to such persons,
and at such places, as should be convenient, and to receive resolutions
thereon; and thereby his Prussian Majesty required all persons to receive
writings from his hands, and give him aid and assistance.  Barbuit lived
here near twenty years, and exercised the trade of a tallow-chandler,
and claimed the privilege of an Ambassador or foreign minister, to be
free from arrest.
*After hearing council on this point, —                      264
The Lord Chancellor said:-"-   A Bill was filed in this Court [*264]
against the defendant in 1725, upon which he exhibited his cross bill,
styling himself merchant.  On the hearing of these causes the cross
bill was dismissed; and in the other, an account decreed against the
defendant.  The account being passed before the Master, the defendant
took exceptions to the Master's report, which were overruled; and then
the defendant was taken upon an attachment for non-payment, &c.  And
now, ten years after the commencement of the suit, he insists he is a
public minister, and therefore all the proceedings against him null and
void.  Though this is a very unfavourable case, yet, if the defendant is
truly a public minister, I think he may now insist upon it; for the
privilege of a public minister is to have his person sacred and free from
arrests, not on his own account, but on the account of those he represents; and this arises from the necessity of the thing, that nations may
have intercourse with one another in the same manner as private per(g) Ileffters, s. 226, note. De Martens, Le Guide Diplomatique, t. i. p. 298.
(h) Cases in Equity under Lord Talbot, p. 281.




182   PHILLIMORE ON INTERNATIONAL LAW.
sons, by agents, when they cannot meet themselves.  And if the foundation of this privilege is for the sake of the prince by whom an ambassador is sent, and for the sake of the business he is to do, it is impossible
that he can renounce such privilege and protection; for by his being
thrown into prison the business must inevitably suffer.  Then the question is, whether the defendant is such a person as 7 Anne, cap. 10,
describes; which is only declaratory of the ancient universal jeus gentium.
The words of the statute are Ambassadors or other poublic JIinisters,
and the exception of persons trading relates only to their servants: the
Parliament never imagining that the ministers themselves would trade.
I do not think the words Ambassadors or other public Xilinisters are
synonymous. I think that the word Ambassadors, in the Act of Parliament, was intended to signify ministers sent upon extraordinary occasions,
which are commonly called Ambassadors Extraordinar~y; and public
265Ministers, in the Act, take in all others who constantly reside
[*265] here: and both are entitled to these privileges.  The question
is, whether the defendant is within the latter words. It has been
objected that he is not a public minister, because he brings no credentials
to the King. Now, although it be true that this is the most common
form, yet it would be carrying it too far to say that these credentials
are absolutely necessary; because all nations have not the same forms
of appointment.  It has been said, that to make him a public minister
he must be employed about State affairs.  In which case, if State affairs
are used in opposition to commerce, it is wrong: but if only to signify
the business between nation and nation, the proposition is right; for
trade is a matter of State, and of a public nature, and consequently a
proper subject for the employment of an ambassador. In treaties of
commerce those employed are as much public ministers as any others;
and the reason for their protection holds as strong; and it is of no
weight with me that the defendant was not to concern himself about
other matters of State, as if he was authorized as a public minister to
transact matters of trade. It is not necessary that a Minister's commission should be general to entitle him to protection; but it is enough that
he is to transact any one particular thing in that capacity, as every
Ambassador Extraordinary is; or to remove some particular difficulties,
which might otherwise occasion war. But what creates my difficulty is,
that I do not think he is entrusted to transact affairs between the two
crowns: the commission is, to assist his Prussian Majesty's subjects here
in their commerce, and so is the allowance.  Now this gives him  no
authority to intermeddle with the affairs of the King, which makes his
employment to be in the nature of a Consul. And although he is called
only an Agent of Commerce, I do not think the name alters the case.
Indeed, there are some circumstances that put him below a Consul; for
he wants the power of judicature which is commonly given to Consuls.
Also their commission is usually directed to the prince of the country,
*266] *which is not the present case; but at most he is only a Consul.
[*266,, It is the opinion of Barbeyrac, Wicquefort, and others, that
a Consul is not entitled to the jus gentium belonging to Ambassadors.
And as there is no authority to consider the defendant in any other view




DECISIONS AS TO  CONSULS.                       183
than as a Consul, unless I can be satisfied that those acting in that
capacity are entitled to the jus gentiurn, I cannot discharge him."
CCLXVI. In 1764, the case Triquet and others v. Bath(i) came
before King's Bench, and the great Lord Mansfield referred to the case
of Barbuit in which he had been counsel, and said that neither Lord
Talbot, nor Lord Holt, nor Lord Hardwicke ever doubted that the Law
of Nations was part of the Law of England. This case related to the
privileges of a Secretary of a Foreign Ambassador.
In 1767, the case of Heathfield v. Clifton(k) came before the King's
Bench, in which also the privileges of the Ambassador's retinue were discussed, and Lord Mansfield said:-"a The privileges of public ministers and
their retinue depend upon the Law of Nations, which is part of the Common
Law of England. And the Act of Parliament of 7 Anne, c. 12, did
not intend to alter, nor can alter, the Law of Nations.  His Lordship
recited the history of that Act, and the occasion of it, and referred to
the annals of that time.  He said, there is not one of the provisions in
that Act which is not warranted by the Law of Nations.
"c The Law of Nations will be carried as far in England as anywhere,
because the Crown can do no particular favours affecting the rights of
suitors, in compliment to public ministers, or to satisfy their points of
honour.
" The Law of Nations, though it be liberal, yet does not give protection to screen persons who are not bona fide servants to public ministers,
but only make use of that *pretence, in order to prevent their [*267]
being liable to pay their just debts.
" The Law of Nations does not take in Consuls, or agents of commerce,
though received as such by the courts to which they are employed. This
was determined in Barbuit's case, which was solemnly argued before and
determined by Lord Talbot, on considering and well weighing Barbeyrac,
Bynkershoek, Grotius, Wicquefort, and all the foreign authorities (for
there is little said by our own writers on this subject.")
CCLXVII. In 1808, the case of Clarke v. Cretico(l) came before the
Common Pleas.  The defendant claimed exemption from arrest, on the
ground of being Consul-General of the Sublime Porte; and the authority
of Vattel was much urged on his behalf, as well as the doctrine laid down
by Lord Mansfield in the case just cited, that the Law of Nations was
part of the Law of England. In this case of Clarke v. Cretico, Sir James
Mansfield, Chief Justice, said: —" It has not been clearly proved that
the defendant held the office of Consul at the time of the arrest.  The
general question is undoubtedly of importance; but it is not necessary
that the Court should come to any determination upon it at present.
The office of Consul is indeed widely different from that of an Ambassador; but still the duties of it cannot be performed by a person in prison.
Yet I should have some difficulty in deciding in opposition to Wicquefort,
who is an authority of great weight, and without any determination upon
the question (for in the case before Lord Talbot there was no decision,)
that a Consul is entitled to this privilege.  The words of the statute are,
(i) 1 Taunton, 107.                         (k) 4 Burrows, 2016.
(1) 3 Burrows, 1481.




184    PHILLIMORE ON INTERNATIONAL LAW.
Ambassador or other public Minister.' But a Consul is certainly not a public minister. Let the case stand over till it shall be ascertained by further
evidence whether the appointment of the defend ant has been revoked."
*Afterwards an affidavit was produced, by which it appeared
[*268] that the defendant had been dismissed from his office in the month
of December, 1806, and the rule was discharged.
CCLXVIII. Lastly, in the case of Viveash v. Becker,(m) which in
1814 came before the King's Bench, Lord Ellenborough decided that a
resident merchant in London, who had been appointed and had acted as
Consul to the Duke of Oldenburg, was not privileged from arrest.  In
this case Lord Ellenborough, having reviewed the preceding cases, and
the doctrine of WVicquefort and Vattel, concluded his judgment in these
words:-" Nobody is disposed to deny that a Consul is entitled to privileges to a certain extent, such as for safe conduct; and if that be violated,
the Sovereign has a right to complain of such violation. This consideration disposes of the authority which was endeavoured to be derived from
that case. Then it is expressly laid down that he is not a public minister,
and more than that, that he is not entitled to the jus gentiumn.  And I
cannot help thinking that the Act of Parliament, which mentions only'Ambassadors and public Ministers,' and which was passed at a time
when it was an object studiously to comprehend all kinds of public ministers entitled to these privileges, must be considered as declaratory not
only of what the Law of Nations is, but of the extent to which that Law
is to be carried. It appears to me that a different construction would
lead to enormous inconveniences, for there is a power of creating viceconsuls; and they too must have similar privileges.  Thus a Consul
might appoint a vice-consul in every port to be armed with the same
immunities, and be the means of creating an exemption from arrest indirectly which the crown could not grant directly. The mischief of this
would be enormous.  In this case it does not appear that the debt was
not contracted before the time of the defendant's having the character of
Consul.  If we saw clearly that the Law of Nations was in favour of the
*269] privilege, it would be afforded to the *defendant; and it would
be our duty rather to extend than to narrow it.  But we
are of opinion that no such privilege exists, but that this defendant is,
like every other merchant, liable to arrest." Rule discharged.
CCLXIX. The English court(n) has considered that a Consul resident
abroad, and plaintiff in a suit, is exempt from the necessity of giving
security for costs, to which necessity, by the general principle of International Law, the foreign plaintiff is subject.(o)
CCLXX. Such being the doctrine of the municipal courts of Great
Britain, it remains to notice the doctrine held by the tribunals of International Law in that country. The case of the Indian Chief came before
the Prize Court in 1800.  In this case a cargo seized as prize was sought
to be exempted from the rights of the belligerent, upon the ground that it
was the property of the American Consul at Calcutta.  Lord Stowell
(m) 3 Maule & Selwyn, 297.
(n) Colebrooke v. Jones, 2 Vesey's Rep. 154.
(o) Fwelix, 1. ii. t. ii. c. 2. Etranger Demandeur.




CONSULS  IN  THE  LEVANT.                        185
said: —   On the part of the claimant many grounds have been taken.
I am first reminded that he was American Consul, although it is not distinctly avowed that his consular character is expected to protect him;
nor could it be with any propriety or effect, it being a point fully established in these Courts, that the character of Consul does not protect that
of merchant united in the same person.  It was so decided on solemn
argument in the course of the last war by the Lords, in the cases of Mr.
Gildermester, the Portuguese Consul in Holland, and of Mr Eykellenburg, Prussian Consul at Flushing. These cases were again brought
forward to notice in the case of Mr. Fenwick, American Consul at Bourdeaux in the beginning of this war, on whose behalf a distinction was
set up in favour of American Consuls, as being persons not usually
appointed, as the Consuls of other nations are, from among the resident
merchants of the foreign country, but *specially delegated from   270
America, and sent to Europe on the particular mission, and con- [2]
tinuing in Europe principally in a mere consular character.  But in that
ease, as well as in the case of Sylvanus Bourne, American Consul at Amsterdam, where the same distinction was attempted, it was held that if an
American Consul did engage in commerce, there was no more reason for
giving his mercantile character the benefit of his official character, than
existed in the case of any other Consul. The moment he engagedin trade,
the pretended ground of any such distinction ceased: the whole of that
question, therefore, is as much shut up and concluded as any question of
law can be." (p)
CCLXXI. The same doctrine has been promulgated by the Prize
Courts in the United States of America.(q)
*CHAPTER  V.                            [*271]
CONSULS IN THE LEVANT.(a)
CCLXXII. THEE attributes and functions of the Consul have hitherto
been considered with reference to the existence of their office in Christian
countries; but by usage, practice and still more, by the express stipulalations of treaty, they have obtained a very different status in Mahometan and indeed in Unchristian dominions.  In these countries they have
retained that general character of diplomatic representatives which they
appear, from the sketch given at the beginning of this Chapter, to have
in earlier times possessed everywhere, but of which, in Christian countries, they have subsequently been deprived.
(p) The Indian Chief, 3 Robinson's Ad. Rep. 26. The Josephine, 4 Robinson,
26. The President, 5 Rob. 277. The Falcon, 6 Rob. 197. The Hope and others,
Dodson's Ad. Rep. 226, and note D. at the end of the volume. Albrecht v. Sussman, 2 Vesey & Beames' Chancery Reports, 323.
(q) American Reports:-Arnold v. United Insurance Company, 1 Johnson, 363.
Griswold v. Washington, 16 Johnson, 346. Kent's Comment. vol. i. pp. 44-62.
(a) Papers laid before Parliament relating to the Jurisdiction of Her Majesty's
Consuls in the Levant, 1845.
lNOVEMBER, 1855.-13




186    PHILLIMORE ON INTERNATIONAL LAW.
CCLXXIII. In almost all the treaties which, of late years, have been
entered into by European powers with Mahometan States, the power of
criminal jurisdiction over the subject of the State which the Consul represents, has been stipulated for and conceded to that officer.  In fact, Mahometan States have accorded to Europeans a privilege equivalent to that
which they would have enjoyed from a concession of territory, viz., the
privilege of preserving their natural right, and being subject to their
national jurisdiction in a foreign territory.(b)  Consuls in the c e'chelles
dlot Levantt" receive, on the requisition of their Ambassador at Constantinople, letters-patent from the Porte, called a Barat, specifying their privileges and immunities.'~272]2  *CCLXXIV. In England a corporation by the name of " The
[    ]721   Governor and Company of Merchants of England trading in the
Levant Seas" was created by letters-patent in James I.'s reign.  These
were confirmed by Charles II., and were the object of various statutes in
toe reigns of George II. and George III.; but in the sixth year of
George IV. the possessions and property of the company were transferred
to Government for the public service.(c)
CCLXXV. In August, 1843, a very important English statute was
passed (6 & 7 Vict. c. 94,) which recited that"c Whereas by treaty, capitulation, grant, usage, sufferance, and other
lawful means, Her Majesty hath power and jurisdiction within divers
countries and places out of Her Majesty's dominions: and whereas doubts
have arisen how far the exercise of such power and jurisdiction is controlled by and dependent on the laws and customs of this realm, and
it is expedient that such doubts should be removed: Be it therefore
enacted, &c., That it is and shall be lawful for Her Majesty to hold, exercise, and enjoy any power or jurisdiction which Her Majesty now hath,
or may at any time hereafter have within any country or place out of
Her Majesty's dominions, in the same and as ample a manner as if Her:Majesty had acquired such power or jurisdiction by the cession or conquest of territory.
6 I. That every act, matter, and thing, which may at any time be
done in pursuance of any such power or jurisdiction of Her Majesty, in
any country or place out of Her Majesty's dominions> shall in all courts,
ecclesiastical and temporal, and elsewhere within Her Majesty's dominions, be and be deemed and adjudged to be, in all cases, and to all intents
and purposes whatsoever, as valid and effectual as though the same had
been done according to the local law then in force within such country,or place."
CCLXXVI. In consequence of the provisions of this statute, two im[*2731 portant Orders in Council were issued respecting *the civil(d)
I[   ] and criminal(e) jurisdiction of Her Majesty's Consuls in the Levant.(f)  In the memorandum put forth by the Foreign Office (July 2,
1844) for the guidance of the Consuls in the exercise of their jurisdiction,
(b) De Martens, Le Guide Dipl. i. 311, n.
(c) 6 Geo. IV. c. 23.                (d) 2nd October, 1843.
(e) 19th June, 1844.                 (f) Fynn, pp. 174-8.




CONSULS IN  TIHE LEVANT.                       187
the grounds upon which it rests, and the general manner in which it
should be exercised, are very clearly stated in the following language:"' The right of British consular officers to exercise any jurisdiction in
Turkey, in matters which in other countries come exclusively under the
control of the local magistracy, depends originally on the extent to
which that right has been conceded by the Sultans of Turkey to the
British Crown, and therefore the right is strictly limited to the terms in
which the concession is made.
" The right depends, in the next place, on the extent to which the
Queen, in the exercise of the power vested in Her Majesty by Act of
Parliament, may be pleased to grant to any of her consular servants
authority to exercise jurisdiction over British subjects, and therefore
the Orders in Council which may, from time to time, be issued, are the
only warrants for the proceedings of the consuls, and exhibit the rules
to which they must scrupulously adhere.'6This state of things in Turkey is an exception to the system
universally observed among Christian nations. But the Ottoman emperors
having waived in favour of Christian Powers rights inherent in territorial
sovereignty, such Christian Powers, in taking advantage of this concession, are bound to provide, as far as possible, against any injurious effects
resulting from it to the territorial sovereign; and as the maintenance
of order and the repression and punishment of crime are objects of the
greatest importance in every civilized community, it is obligatory upon
the Christian Powers, standing as they do in Turkey, in so far  *27
*as their own subjects are concerned, in the place of the terri- [*274
torial sovereign, to provide as far as possible for these great ends."(g)
CCLXXVII. Consuls residing in any of the five: free ports (Canton,
Amoy, Foo-chow-foo, Ningpo, Shanghae) established by the Treaty of
Peace between Great Britain and China in 1842, have received, by the
subsequent commercial Treaty of 1843, powers of a very extended
character, requiring, in some respects, the exercise of judicial and executive functions.  The thirteenth article of this Treaty contains the following provisions with respect to Consuls:"Whenever a British subject has reason to complain of a Chinese, he
must first proceed to the consulate, and state his grievance.   The
Consul will thereupon inquire into the merits of the case, and do his
utmost to arrange it amicably. In like manner, if a Chinese have
reason to complain of a British subject, he shall no less listen to his
complaint, and endeavour to settle it in a friendly manner.  If an English
merchant have occasion to address the Chinese authorities, he shall send
such address through the Consul, who will see that the language is
becoming; and, if otherwise, will direct it to be changed, or will refuse
to convey the address.  If, unfortunately, any disputes take place, of
such a nature that the Consul cannot arrange them amicably, then he
(g) Fynn, p. 20. Annual Register, vol. lxxxv. p. 370. Martens, Nouv. Rec.
xxx. ii. p. 484. lb. xxxvi. p. 418; see sections 12, 13, as to Subordinate Consuls
and Consuls.
Vide ante, vol. i. pp. 83, and 501, (App.) for enumeration of the principal
Treaties between Christian and Infidel States




188      PHILLIMORE  ON  INTERNATIONAL  LAW.
shall request the assistance of a Chinese officer, that they may together
examine into the merits of the case and decide it equitably.  Regarding
the punishment of English criminals, the English Government will
enact the laws necessary to attain that end, and the Consul will be
empowered to put them in *force; and, regarding the punish[*275] ment of Chinese criminals, these will be tried and punished by
their own laws, in the way provided for by the correspondence which
took place at Nankin after the concluding of the Peace."(h)
iPART THE EIGHITH.
[*277]                   *CIHAPTE R   Io
RELIGION AND THE STATE.
CCLXXVIII. IT was stated in an early part of this work,(a) that
the International Status of Foreign Spiritual Powers, especially of the
Pope, would require a distinct and separate consideration.
It is a subject to which very slight, if any, allusion is to be found in
writings of the early International Jurists.  Grotius mentions the donation of the Roman territory to the Popes,(b) and places among the " unjust causes of war" the papal claim of jurisdiction over all the nations
of the earth;(c) and under the same head,(d) he evidently alludes to the
division by Alexander VI. of the newly-discovered world (A. D. 1494),
between the Crowns of Portugal and Castille,(e) perhaps, also to the
donation by Pope Julius II. (A. D. 1512), of the kingdom of Navarre to
Ferdinand of Arragon, because the lawful monarch (Jean d'Albret) had
taken part with Louis XI. of France against the Pope and Ferdinand.
Grotius does not specifically mention these instances, but the former,
278  *at least, appears to have been present to his mind, when he
[278 ] speaks of the untenable position of those who assert the jus
Eccles~ie over nations occupying the hitherto unknown part of the earth.
(h) Annual Register for 1843, vol. lxxxv. p. 371.
The 6 Geo. 4, c. 87, which regulates the payments of salaries and allowances
to British Consuls at foreign ports, and the disbursements at such ports for certain
public purposes, contains various provisions relating to Churches and Chaplains
attached to CONSUaSHIPS; for by this Act the whole management of the funds
and the regulation of the expenditure is under the control of the Consul, and not
of the Ambassador; and by a strange anomaly, in those foreign Courts where
there is an Ambassador and not a Consul (e. g., Berlin, Dresden, &c.,) there is no
legislative provision for any chaplain at all.-Burns's Eccles. Law (ed. Phillimore,)
vol. i. p. 415, ggggg.
(a) Vol. i. ch. 2.                  (b) De J. B. et P., i. 3, 13.
(c) II. 22, 14.                     (d) De J. B. et P., 1. ii. c. xxii. 14.
(e) See note of Gronovius.




RELIGION AND THE STATE.                              189
Such pretensions are, he says, contrary to the letter and spirit of Scripture, to the example of our Saviour, from whom all Ecclesiastical power
is derived, and to the opinion of the early Fathers of the Church. A
bishop is required by St. Paul, among other things, not to be a smiter.
To rule by human force belongs, says St. Chrysostom, not to bishops,
but to kings. A bishop is to discharge his office non coyendo sed persuadendo, and, Grotius concludes; flex his quidem satis apparet, Episcopos, quA tales sunt, jus regnandi in homines humano more nullum
habere; Hieronzymus Regem  et Episcopum  comparans: ile volentibus
prweest, hic nolentibus."(f )
Besides these allusions to this question of International Law, other
observations, more or less bearing upon'it, may be found in the work
De Jure Belli et Pacis;(g) but the whole subject, in its mixed aspect
both of International and Public Law, is dealt with by Grotius in a later
work published after his death, and entitled, De Imperio summarum
potestatum  circa sacra.  Bynkershoek(h) touches upon the authority of
the Canon Law, and the difficulty which, on account of his double allegiance, might arise in the case of a delinquent Cardinal Ambassador;
and in his Quastiones Juris Publici, he has some chapters on the general
subject, in which it is not unimportant, with reference to subsequent
observations on this subject, to remark, that he carefully distinguishes
between the cases of States which have, and those which have not an
established Church.(i)   D'Aguesseau has an elaborate dissertation(k)
*upon the double allegiance of the Cardinal, which will be con-   279
sidered in a later chapter on this subject.  Vattel has a. chapter  27
De la Piete et de la Religion,(l) which is not characterized by much
force of reasoning or affluence of historical research, and which is chiefly
concerned with considerations appertaining to Public Law. Later writers,
especially Kliiber, deal more systematically, though still very scantily,
with the subject. More is to be found in such writers upon the general
question of Religion in its connection with the State; but these observations seem generally to belong rather to the province of Public than of
International Jurisprudence.(m) The question of the Right of Inter(f) See note of Gronovius, s. 14.
(g) Grotius refers to the authority of his fellow-countryman, Pope Adrian
(Adrianus noster, qui Cialpinorum ultimus Pontifex Romnanus sit), as asserting, with
probability, that subjects may consider whether the war of their government be
just or not.-De J. B. et P., 1. ii. c. 26, iv. 4.
(h) De Fore Leg. xii. 3-4, xxii. 4, xxiii. 4.
(i) " Quia Jus publicum etiam in Sacris consistit, ut admonet Ulpianus in 1. i. s.
2, ff. d. Just. et Jur., inde rect& efficitur, Sacrorum quoque curam ad eum pertinere, ad quem pertinet summa totius Reipublica, potestas. Scio, de eo argumento
integris Libris esse disputatum in utramque partem, alios pro principe, alios pro
Ecclesiae suffragium dedisse, quin et esse, qui inter Jovem et Casarem imperium
diviserint, sed quicquid illi dixerunt, dixerunt de Religionejam constitutdt, de consti.
tuenda, autem et verum est, et utile, eum, qui rerum civilium imperio potitur, etiam
sacrorum esse potentem."-Bynkershoek, Q. J. P., 1. ii. c. xviii. et vide cc. xix. xx.
(k) Vide post.
(I) L. i.c. xii.
(m) E. g. De Rayneval, Instit. de Droit de la Nature et des Gens, c. 27.  De la
Religion et de Culte, De Martens, i. 208. Vattel, i. 316-20. Ger. Noodt, Dissert.
de Relig. ab Imperio, Jure Gentium, libera. Bynkershoek, De Cultu Religionis
Peregrinse apud veteres Romanos.




190      PHILLIMORE  ON INTERNATIONAL  LAW.
vention on behalf of co-religionists, the subjects of a foreign kingdom,
has been considered in the former volume of this work.(n)
CCLXXIX. It should be the object of the International Jurist to deal
with this difficult subject, not in a theological, but in a strictly legal
spirit. The line of demarcation between the two is often, indeed, very
finely drawn, and it may not be always possible, especially in the historical narrative which necessarily introduces the law, to avoid trespassing
in some degree upon what may appear, when regarded from one particular
point of view, to be the exclusive domain of theology.
[*280] t'But there is one rule, the observance of which is essential to
[*280] the judicial discussion of this matter, namely, that an accurate
statement of historical fact should precede the attempt to lay down any
position or canon of International Law, upon the subject of the relations
of Foreign Spiritual Powers with an independent State.
CCLXXX. It is proposed, in the following chapters, to treat of the
whole subject in the following order:
1. General observations as to the right of the State to superintend,
Within its territorial limits, all religious doctrines taught, and the teachers
of them.-The early connection of the Christian Church with the State.
2. The growth of the exterritorial authority and pretensions of the
Pope.
3. The Corpus Juris Canonici, the principles contained therein, and
in subsequent Bulls, at variance with International Law.
4. The International Status of the Papacy, between the period of the
promulgation of the Canon Law and the Council of Trent.
5. The period of the Council of Trent, and the effect of that Council
upon International relations.
6. The International relations of the Papacy with Foreign States, in
which a Roman Catholic Church is established, during the period between
the Reformation and the present time. —The history of Concordata.
7. The International relations of the Papacy with Foreign States in
which a Protestant Church is established._ Bullye Circumscriptionum.
8. The International relations of the Papacy with Foreign States in
which a branch of the Catholic Church, not in communion with Rome,
is established.
9. The Electors, Ministers, and Courts of the Pope, considered in
their relation to Foreign States.
10. The International Status of the Patriarch of Constantinople.
[*281]                *C HAPTER   II.
GENERAL OBSERVATIONS AS TO THE RIGHT OF THE STATE TO SUPERINTEND, WITHIN ITS TERRITORIAL LIMITS, ALL RELIGIOUS DOCTRINES
TAUGHT, AND THE TEACHERS OF THEM.-THE EARLY CONNEXION OF
THE CHRISTIAN CHURCH WITH THE STATE.
CCLXXXI. " ITAQUE ex tot generibus nullum  est animal proeter
(n) Vol. i. pp. 470-482.




GENERAL OBSERVATIONS, ETC.                              191
hominem, quod habeat notitiam aliquam Dei: ipsisque in hominibus nulla
gens est, neque tam immansueta neque tam fera, quae non etiamsi ignoret
qualem  habere Deum deceat, tamen habendurn sciat."   Such is the language of Cicero.(a)
The influence of this universal religious belief upon the character and
conduct of citizens, has always brought the subject under the cognizance
of the founders and the governors of States.(b)  In this sense a great
statesman and jurist has *observed: "t La religion en general est
du droit des gens."(c)  The power exercised by those who claim  [*282
to be the authorised expounders of the Divine Will over the minds of
their disciples, is necessarily great, and frequently unlimited.
The reason of the thing required that persons and doctrines so intimately connected with the welfare of society should be in some degree
subjected to the inspection and control of those who were responsible for
it.  Thus Grotius accurately observes, "cReligio autem  quanquam  per
se ad conciliandam  Dei Gratiam  valet, habet tamen et suos in societate
humand effectus maximos.   Neque enim  immerito  Plato religionem
propugnaculum  potestatis an  legurn et honestsc disciplinse vinculum
vocat." (d)
CCLXXXII. Accordingly, to go back no further, we find that in most
of the cities of Greece, and especially in Athens, the care of divine worship was committed to the magistrate who was often also the priest.(e)
Polybius singled out the religious instruction of the iRomans(f) in(a) De Leg. i. c. viii. Cicero was deeply impressed with the truth, that the citizen who did not fear God could not adequately discharge any high or responsible
office in the State, whether legal, or relating to the administration of public affairs.
See what he says about the Epicureans, severely in the De Legibus, and jocosely
in his Epistola-.: " Sibi autem indulgentes et corpori deservientes atque omnia,
quae sequantur in vita, quseque fugiant voluptatibus et doloribus ponderantes.
in hortulis suis jubeamus dicere, atque etiam ab omni societate reipublicce, cujus partern nec n6runt ullam, nec unquam nosse voluerunt, paullisper facessant, rogemus."
— De Leg. 1. i. c. 13; et vide c. 15.
" Indicavit mihi Pansa meus Epicureum te esse factum.....  Sed quonam
modo jus civile defendes, quum omnia tud causd facias non civium."-Ep. ad Fam.
12. (Trebatio.)
(6) Hugonis Grotii, De Imperio summarum potestatum circa sacra Commentarius
posthumus: Paris, 1547. Montesquieu, De l'Esprit des Lois, 1. xxiv. cc. 14-18./
Discours, Rapports, et Travaux indits sur le Concordat de 1801, les Articles
Organiques, &c. &c., par Jean Etienne Portalis; publies et prece'des d'une Introduction, par le Vicomte Frederic Portalis: Paris, 1845, (Art. Organ. 6,) p. 66.
"' I, however, am far from inculcating persecution, although I venture to say,
that there might be a state of religion in a country which it might be the duty of
the State to prohibit. Religion is not a mere matter of commerce between man
and his Creator, but a lively motive of public action; and however it may become
matter of conscience, it must become also, like other things, a motive of human
conduct, and, of necessity, a subject of human laws. A State has a right to prohibit that of which the prohibition is essential to its security."-Lord Wellesley's
Speech in the House of Lords, on the Motion for a Committee to inquire into the
State of the laws affecting Roman Catholic Subjects, April, 1812.
(c) Portalis, ubi sup. p. 579.
(d) Grotius, 1. ii. c. xx. 44, 3. He proceeds to cite some striking passages from
Philo, Plutarch, Chrysippus, and Aristotle, and the Roman Law, which supports
this view.
(e) "Rex Anius, rex idem hominum Phcebique sacerdos."-Virg. AEn. iii. 80.
(f) Speaking of Numa, Livy says, " Ad hzec consultanda procurandaque, multitudine omni a vi et armis conversa, et animi aliquid agendo occupati erant, et




192    PHILLIMORE ON INTERNATIONAL LAW.
* fluencing as it did both the private conduct of the *citizen and
the public administration of the State, as demonstrative of the
superiority of their. government over that of all other nations; and he
contrasts the general faith which prevailed in the acts of the God-fearing
Roman(g) with the discredit universally attached to that of the degenerate
and irreligious Greek.(h)
Long after the Republic had decayed under the fate which this wise
man had foretold to it, the jus sacrum was still considered as a p:;rt of
the public law,(i) and found its place in the laws of the heathen emperors.  The celebrated definition of jurisprudence, "4 rerunm  divinarum~
atque humanarum scientia," viewed in this light, was not so incorrect
as is sometimes supposed: it did not necessarily mean a knowledge of
theology, but rather a knowledge of the laws appertaining to the sfatus
of religion as one of the established institutions of the State.(k)
CCLXXXIII. (I)It is true that the great doctrine of the Unity and
Brotherhood of the human race revealed by our *Saviour was
wholly opposed to the opinions and belief and to the philosophy
of the ancients: and against it the Emperor Julian loudly and eagerly
protested.  But in the provisions of the Roman Law, as in those of the
laws of other countries with respect to religion, thus incorporated with
the constitution of the State, we read the great truth that the State is
not a mere mechanical institution concerned solely with the external life
of its citizens, but that it is built(m) of necessity upon foundations of
a moral and spiritual character, and that this character is the principal
element of its strength, and the real spring of its continued existence.
CCLXXXIV. The introduction of Christianity tended still further to
strengthen those foundations, adding the sanctions of the Creator's
revealed will(n) to the voice of conscience and the instinctive sense of
Deorum assidua insidens cura, quum interesse rebus huemanis cceleste numen videretur,
ea pietate omnium pectora imbuerat, ut fides ac jusjureandum proximo leguzm ac peenauren
metu, civitatem regerent." —L. i. c. 21. Polyb. 6, vi.
(g) Cicero's observations on the College of Augurs are remarkable: —six children of the principal Etruscans were, he says, by order of the Senate, brought at
one time to Rome, —" Ne ars tanta, propter tenuitatem hominum, a religionis auctoritate abduceretur ad mercedem." De Div. i. 41.
" Sedl dubium non est, quin hvec disciplina et ars augurum evanuerit jam et
vetustate et negligentia.  Itaque neque illi assentior, qui hanc scientiam  negat
unquam in nostro collegio fuisse; neque illi, qui esse etiam nune putat, quse mihi
videtur apud majores fuisse dupliciter, ut ad reipublicue tempus nonnumquam, ad
agendi consilium ssepissim6 pertineret.7" —Cic. De Leg. 1. ii. c. 13; et vide c. 9, et
De Div. 1. i. c. 15. Dion. Halyc. 1. ii. c. 16. Polyb. 6, vi.
(h) Yet see Cic. De Leg. 1. ii. c. 14.
(i) Dig. i. t. ii. 2, De Just. et Jure. "Publicum jus est quod ad statum reipublice Romanue spectat. Publicum jus in sacris, in sacerdotibus, in magistratibus
consistit."
(k) Bynkershoek, de Relig. Peregrina, &c., c. 1.
(1) Laurent, Hist. du Droit des Gens, t. iii. p. 367.
(m) " Denique in his delinquendi est gravius periculum, ubi Fides vioIatur, ant
jurisjurandi Religio contemnitur, nam grave est fidem fallere qupe justitise totius
firmamentum est, qu'a non solam respublicue, sed omnis humana societas continetnur, et quod perjurium atheismo sit detestabilius, cumr perjuri numeni agnoscere
videantur, sed ipsum irridere audeant."-Zouch, part i. s. v. 5.
(n) "They who hold Revelation give a double assurance to their country."Burke's Works, vol. x. p. 39. Speech on a Bill for the Relief of Protestant Dissenters.




GENERAL OBSERVATIONS, ETC.                             193
right and wrong by which the duties of the citizen were supported and
enforced.
At the same time the origin and nature of Christianity rendered its
incorporation into the State, in the manner in which Pagan worship had
been incorporated, impossible.
The Church began by direct and uncompromising hostility to the
existing religion of the State,(o) with which it refused to be in any way
identified, and of which it was necessarily altogether intolerant.  The
maxim  of later times, c CGzjus est regio, illins est religio," is blasphemous in theory and false in fact.(p)
*'When Christianity had triumphed, and become, not only one
of the collegia licita but, the actual religion of the nation, it was [   ]285]
still, by the very charter of its being, a body distinct from the State;
touching it, however, and being touched by it, in so many ways, that the
teachers of its doctrines soon became endowed with goods and lands,
either by individuals under the sanction of the civil power, or by the
State itself.  The Church became, to borrow a term  familiar in modern
times, estatished in every Christian kingdom.
It thus became a collegiunl licitum,(q) under the protection of the
State as to its establishment; but having a divine mission, a divinely
constituted order, a divinely given doctrine, it remained, as it must ever
remain, in all these respects, independent of human authority.
CCLXXXV. In return for endowment and protection(r) the Church
gave the State a security beyond the reach of human laws, for the obedience and good conduct of its subjects.  She taught that subjects should
"render unto C6esar the things that are Coesar's, and unto God the things
that are God's;" that temporal magistracies were "rordained of
*God;" that subjects must obey, "'not only for wrath but also [*286]
for conscience sake;"' that the fear of the Lord is the beginning of wisdom," and " that unless the Lord keep the city the watchman waketh
but in vain."(s)  The immediate result of Christianity was to strengthen
the hands of government, to render patriotism  a religious as well as a
(o) Such, for instance, as must, at this day, be the relation in which the Greek
Church stands to the established religion of Turkey. Packman, Lehrbuch des
Kirchenrechts, 162, 157.
(p) Packman, i. 135, p. 162.
(q) " Neque societatem, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur.. item collegia Romae certa stint, quorum corpus Senatusconsultis atque Constitutionibus Principalibus confirmatum est...
quibus autem permissum est corpus habere collegii, societatis, sive cujusque alterius eorum nomine, proprium est, ad exemplum Reipublicae habere res communes,
arcamt communem, et actorem  sive Syndicum, per quem, tanquam in Republica,
quod communiter agi fierique oporteat, agatur et fiat."-Dig. 1. iii. t. 4, 1. Dig.
xlvii. 22. Cod. 1. i. t. 2, 19, 23, 26, (De Sacrosanctis Ecclesiis,) et t. 3, (De Episcopis et Clericis.)
(r) Warnk6nig says:' In prim& (i. e. Juris Publici parte) est ponendum jus
ecclesiasticum, apud veteres jus sacrum. Hoc jure definitur ecclesire potestas et
constitutio, magistratuum ecclesiasticorum imperium et jurisdictio, omnisque hierarchin status. Introducta sunt hoc jure sacra, instituta sancta, ecclesiastica
judicia et leges ad res privatas publicasque religione moderandas. Sepe conjuncta
esse solet cum hac juris publici parte institutionis publicae et disciplinarum artiumque liberalium summa cura."-Instit. Juris Romani Privati, c. i. t. v. (Introd.)
(s) Psalm cxi. 10. Ecclus. i. 16.




194   PHILLIMORE ON INTERNATIONAL LAW.
civil duty.  c, Tolle religionem," says Leibnitz,(t)  c et non invenies subditum  qui pro patrig, pro republics, pro recto et justo, discrimen fortunarum, dignitatum, vitseque ipsius subeat, si, eversis aliorum rebus, ipse
consulere sibi, et in honore atque opulentia vitam ducere possit."(u)
Montesquieu speaks in a similar strain: "Bayle," says he,'" ose avancer que de veritables Chritiens ne formaient pas un 6tat qui put subsister.
Pourquoi non?  Ce seraient des citoyens infiniment 6claires sur leurs
devoirs, et qui auraient un tres grand z5le pour les remplir; plus ils croyaient devoir i la religion, plus ils penseraient devoir a la patrie.  Les
principes du Christianisme, bien graves dans le coeur, seraient infiniment
plus forts que ce faux honneur des monarchies, ces vertus humaines des
r6publiques, et cette crainte servile des 6tats despotiques."(x)
CCLXXXVI. IRome was the mistress of the world when the Christian
Church was planted, and was still the mistress of the world when the
Christian Church was established.  The connexion therefore, at first,
between Church and State was identical with the connexion between the
Church and the Roman Empire.(y)
To make this coincidence the more striking, Constantine divided the
[:287] Roman Empire into four prefectures:
J   *1. The prefecture of Italy.
2. Of Illyria, excluding the Western Illyria.
3. Of the Gallias.
4. Of the East.
Each prefecture was divided into Dioceses or Vicariates, and these
again into Provinces.  The principal city in each province was called,
though not till late, in the language of civil life, the Metropolis.
It is remarkable that the Ecclesiastical division bore a close relation
to this order of the State.  The four Patriarchates resembled in many
respects the four Prefectures.
The Patriarch of Rome comprised all the West, Italy, the Gallias,
Illyria; the Patriarchs of Antioch, Alexandria, Jerusalem and Constantinople, occupied the territories comprised in the Prefecture of the East.
(t) Leibnitz, Epist. Censor. contra Puffendorf, s. vi.
(u) Robespierre's remark is well known:-" Si Dieu n'existait pas, il faudrait
l'inventer."
(x) Esprit des Lois, 1. 24, c. 6. These passages are cited in Walter's Kirchenrecht, s. 38.
(y) Nobody now denies that the donation of Constantine to Pope Sylvester is
wholly fabulous. But it excited the indignant regret of Dante:"Ahi, Costantin, di quanto mal fu matre
Non la tua conversion, ma quella dote
Che da te prese il primo ricco patre."  Inf. 115.
Before Ariosto wrote, the fraud had lost its odour and stank. He found the donation in the repository of things lost on earth, the moon:"Di versate minestre una gran massa
Vede, e demanda al suo dottor, ch' importe.
L' elemosina 6 (dice) che si lassa
Alcun, che fatta sia dopo la morte.
Di vari fiori ad un gran monte passa
Ch' ebbe gia buono odore, or putia forte,
Questo era il dono (se pero dir lece)
Che Costantio al buon Silvestro fece."
Orland. Fur. c. 34, 80.




GENERAL OBSERVATIONS, ETC.                            195
Exarchs and Primates exercised a jurisdiction not unlike that of civil
Vicars over Metropolitans.
In every province the principal city became the seat of an Episcopal
See.  It sometimes happened that one Metropolitan presided over the
Bishoprics of several provinces.(z)
*CCLXXXVII. (a)The tendency and the object of Christianity was not merely to affect the spiritual condition of indi- [288
viduals, but to form them into a peculiar human society.
The end of this Society was to obtain immortal happiness after deaththe means were to believe in its Divine Founder, and to will and to act
in conformity with his commands.  It was in its nature irrespective of
the material order of things in which it was placed.  It was a spiritual
Society so far as a Society of human creatures could be; but being necessarily a Society, not of spirits, but of men, it stood in need of material
signs and means to accomplish its end.  It was a visible and material
order of men united for a common object.  As far as each individual
was concerned, Christianity was confined to internal operation between
him and his God; but as far as the Society was concerned, like every
other material union, that is, every union of corporeal persons, external
means for its operation. It required human government, therefore, inasmuch as it was a human Society, in order that, by the use of external
and material means, the spiritual end which it proposed to itself might
be the easier obtained.  This Society, so outwardly shaped and constituted, is what we usually denominate the Church.(b)
*This Society was independent of the territorial limits of
kingdoms, but the individuals composing it must exist within [289
those limits, they must be subjects or members of a State, a temporal
Society, as well as of the Church, a Spiritual Society.(c)  If the State,
(z) Lequeux, Manuale Compendium Juris Canonici, t. iv. p. 46. Tableau de
l'Eglise dans l'Empire Remain, p. 206.
The English Canonists and Ecclesiastical Historians limit the Roman Patriarchate to a part of Italy, Sicily, Sardinia, and Corsica.-Bramhall's Just Vindication, vol. i. p. 156, ed. Oxon. Bingham's Antiqu. ii. 17, 20.
(a) Saggio Teoretico di Dritto Naturale, appoggiato sul fatto, del P. Luigi Taparelli (Leovino, 1845), Parte quinta, Dissertazione quinta, c. 1-2.
The reader will find the Ultramontane theory stated with great acuteness of
logic and admirable precision of language in this work.
(b) "' The Church being a supernatural society, doth differ from natural societies in this, that the persons with whom we associate ourselves in the one, are
men, simply considered as men; but they to whom we be joined in the other, are
God, angels, and holy men. Again, the Church being both a society and a society
supernatural, although, as it is a society, it have the self-same original grounds
which other public societies have, namely, the natural inclination which all men
have unto sociable life, and consents to some certain bond of association, which
bond is the Law that appointeth what kind of order they shall be associated in,
yet unto the Church, as it is a society supernatural, this is peculiar; that part of
the bond of their association which belongs to the Church of God must be a Law
supernatural, which God himself hath revealed concerning that kind of worship
which His people shall do unto Him. The substance of the service of God, therefore, so far forth as it hath in it anything more than the Law of Reason doth teach,
may not be invented of men, as it is amongst the Heathens; but must be received
from God Himself, as always it hath been in the Church, saving only when the
Church hath been forgetful of her duty."-Hooker, Ecclesiastical Polity, b. i.
s. 15.
(c) The subject of a Foreign Spiritual Corporation is glanced at in the case of




196       PHILLIMORE  ON  INTERNATIONAL  LAW.
in its corporate capacity, recognized the religion of Christ, and established
a Church, then the individual Christians were bound by the double tie
of private will and social duty to the authority of the Church.  But if
it happened that the State did not socially recognize Christianity, then
the individual Christians must remain members of both Societies.  The
present state of Turkey might be cited as an illustration of the truth of
this proposition.
In fact, the duties and the rights of the citizens remain, and those of
the Christian are superadded.  The statement of Grotius on the subject
is perspicuous and sound:"'Atque ita absurdum  non est dari duo Jzudicia suntzma, sed generum
diversorum, quale est in sacris Judicium directivusln    Ecclesie Catholicae,
et IJnperativum  summarum  potestatum.   Nam  nec illo Judicio inter
humana ullum  est majus auctoritate: neque hoc ullum  majus 1potestate."(d)
As the Church has a peculiar relation to the State, so the Christian
nation has the speciale jus gentis fidelis(e) in its intercourse with Christian nations, as well as the jis commune with Heathen nations, who are
members of the great community of States. And so far the introduction
290] of Christianity *would not appear to have given rise to any difficulty in International Jurisprudence.
The difficulty, it will be seen, proceeds from  the disputes which have
arisen among Christians and Christian nations with respect to the external
government of this spiritual, but human, Society.
These disputes relate both to the person it whonm this authority is
lodged, and also to the extent of that authority among those who are
agreed as to the person in whom it is vested.
The reasoning of the Roman Church is this,-the external and visible,
Church must be governed by an external, visible, and infallible authority; that authority must be lodged in one person, and that one person
must be the Pope,(f) without whose sanction no bishop can be lawfully
appointed, and who, for the purpose of duly exercising the authority,
must possess a power irrespective of and superior to that of all temporal
Sovereigns.  On the other hand, the Gallican(g) and the English(h)
The Society for the Propagation of the Gospel, &c. v. Wheeler et al., 2 Gallison's
(American) Reports, 104.
(d) Grotius, De Imp. sutmm. potest. circa sacra, c. v. p. 91.
(e) Vide ante, vol. i. p. 24.
(f) Taparelli, par. v. dis. v. c. 2, s. 1411.
(g) Dupin states concisely the Gallican opinion, thus: "Verum ut majorem his
lucem afferamus, distinguenda sunt plura in Romano Pontifice:-Primo, quod sit
primus Episcoporum. Secundo, quod sit Metropolitanus et Patriarcha. Tertio,
quod aliquas habet prmerogativas, aliqua jura peculiariter concessa. Quarto, quod
habet potestatem  temporalem  in patrimonium  Sancti Petri."-De Ant. Eccles.
Discipline, Diss. Historie, iv. p. 368, (ed. 1788.)
(h) The Anglican doctrine on this point is well stated in the Vindicisa, Ecclesise
Anglicanue, by Mason, (ed. 1625,) p. 430. The dialogue in the work is carried on
by Philodoxus, a Romanist, and Orthodoxus, an Anglican; —
"Phil.-Christus Dominus supremum Ecclesixe caput, potuit per seipsum omnes
illas Ecclesiasticas actiones exercere, quarum potestatem allis tradidit.
1" Orth.-Rectissime.  Quam enim Apostolis praedicandi, baptizandi, ordinandi
Eucharistiam ministrandi concepit potestatem, quanta quanta erat, ab ipso solo
originem duxit.




GENERAL OBSERVATIONS, ETC.                             197
Churches, and many Cis-montane canonists, hold that the Episcopate is
not necessarily dependent upon  the *Pope; they assert that [ 291
during the first centuries of the Church, and at a still later [L]
period, the Patriarch of Rome exercised no jurisdiction, properly so
called, over the other Patriarchs, though a great respect, approaching to
homage, might have been originally paid by the Ecclesiastical authorities
of all countries to the Bishop of the Imperial City-a respect which the
Gallican Church is still willing to continue.(i) The Protestant Churches,
which have rejected Episcopacy d fortiori, deny the claims of the Papacy.
The importance of these two views, in their bearing upon International
Law, is, as will be seen, very great. It must be the duty of the International Jurist to ascertain whether these Papal claims are consistent
with the Rights of Nations;(j) whether they are supported by credible
evidence, by the records and practice of States; whether the claims have
varied from time to time according to the energy of pontiffs and the
weakness of princes, or whether they have been always inflexibly the
same, flowing from the reason of the thing;(k) and whether the most extravagant claims have not been the legitimate consequences of   292
the premises laid down by the Curia *Romana.  It will be seen [            ]
that the double condition of. the Pope, as spiritual chief and temporal
prince, has greatly complicated a question, sufficiently difficult under a
single aspect.
CCLXXXVIII. When the seat of empire was transferred to Constantinople, even this homage of comity, so to speak, was materially diminished.  Theodosius II. indeed inserted an ordinance in his Code, that
all nations subject to him should receive the faith which Saint Peter had
delivered to the Romans; and Valentinian III. forbade the bishops of
the provinces to depart from ancient usages without the sanction of the
Venerable man, the Pope of the Holy City.()
" Pil.-Idclem etiam dicendunz est de Papa.
" Orth. —Esto, et de quovis Episcolpo."
(i) Taparelli's mode of disposing of the difficulty of the Gallican Church is edifying: " Non pretendiamo qui tacciare teologicainente la opinione gallicana, ma
godiamo nel considerare che la divisione da noi stabilita delle forme di governo, a
rigor di filosophia, venga qui a giustificare la riprovazione, che soffrirono piu volte
dalla Chiesa, le famose proposizioni del 1682. I loro difensori non comnpr1endeano
che logicainente la Chiesa presso di loro diveniva repubblica, eppero non furono
anatema, e ei sono fratelli, hen cari fratelli: ma la loro conseguenza colT audrebbe
a parare, ed ecco percha nella vigna del vero non potea mettere radice,-eradicabitur." —Taparelli, ib. 1435, note.
(j) Grotius (De Imp. circa sacra) cites with approbation, the following passage
from Suarez:-' Semper autem servatum videtur ab hominibus ut licet particulares magistratus Civiles et Sacerdotales diversis hominibus tribuerentur, quia
varietas actionum istam distinctionem postulabat, nihilominus suprema potestas
utriusque ordinis, praesertim  quoad leges ferendas, in uno Principe collocaretur.
Et ita Regibus et Imperatoribus semper tributa fuit hsec potestas in Romana urbe
et imperio, ut ex historiis constat. Idemque de allis communitatibus verisimile
est."-Tract. de Leg. &c. 1. ii. qua 29, art. iii.
(k) Vide ante, vol. i. c. iv.
(1) Codex Theodos. xvi. 1-2. Die R6mischen PApste, ihre Kirche und ihr Staat,
B. i. c. i. Planck, Geschichte der christlich-kirchlichen Gesellschaftsverfassung,
i. 642.
Theodosius II. published his Code A. D. 435. Valentinian III. reigned from A. D.
424 to 455.-L'Art de Verifier les Dates.




198   PHILLIMORE ON INTERNATIONAL LAW.
Nevertheless, the effect of the division of the Empire was to leave the
Bishops of Rome practically without the protection of the Emperor, though
theoretically, he retained his pretensions both to the territory of Italy
and to the allegiance of the Roman See.  The generals of Justinian in
the middle of the sixth century delivered Italy from the dominion of the
Ostrogoths; but within twenty years from the period of the victory of
Narses in Campania,(m) a new foe, the Lombards, from the North of
Germany, conquered the upper part of Italy, and planted himself at
Pavia. (n)
It was not long after this period that Pope Gregory the Great, who
had in vain besought the Emperor Maurice not to confirmn his election,
became, by the force of circumstances and against his will, a temporal
prince, and the Protector of Civil and Spiritual Rome against the foreigner
and Arian.  Then were laid the foundations of the mediweval papacy.
IBut we must hasten onwards.
93 *CCLXXXIX. Of all the German races which had raised their
[ 293] rude and vigorous nationality upon the crumbling and corrupt
civilization of the Roman Empire, the Francs were for a long period the
foremost and the most powerful in Europe; they, too, were among the first
barbarians who embraced Christianity, and their subsequent connexion
with the Patriarch of Rome laid the first foundations of that system, the
cdnsideration of which must occupy an important place in a work upon
International Law.
CCXC. The monarchy founded by Clovis(o) included nearly the whole
of Gaul and the greater part of which is now called Germany.  In the
hands of his successors, the newly-founded kingdom was divided and
brcught to the verge of dissolution, but the Mayors of the Palace grafted
the energy and talent of the Carlovingian upon the decaying stock of
the Merovingian Dynasty.( p)
Pepin d'Heristal reunited the kingdom which he governed, though
without the title of King; as did his illustrious son, Charles-le-Martel,(q)
who earned the gratitude of Christendom by delivering(r') her from the
aggressions, till then resistless, of the infidel Saracen. Pepin-le-Bref,
the son of Charles, added to the real power of the monarchy the title of
King; which, for sixty-five years, the Carlovingians had allowed to decorate the puppets in whose name they ruled.  Pepin.le-Bref(s) took a step
fraught wtth the most important consequences, both to the future relations of the Church and State in France, and to the international relations of every State with the See of Rome: he invoked the aid of religious
sanction to secure his throne, and, first of the Frank Kings, caused him[:-294] self to be crowned in the Cathedral *of Soissons, by St. Boniface,
the first Archbishop of Mayence.
St. Boniface, himself an Anglo-Saxon, was devoted to the Roman See.
(m) Belisarius was recalled, 549; Narses destroyed Tejas, the last Gothic king
of Italy, A. D. 553. Justinian died, A. D. 565.
(n) A. D. 592.                  (o) A. D. 485.
(p) A. D. 687, the date of the victory by which Pepin reunited Austria (Oesterreich) and Neustria (Westerreich.)
(g) A. D. 714.               (r) A. D. 732, 737, at Poitiers and Narbonne.
(a) A. D. 752.




GENERAL  OBSERVATIONS, ETC.                       199
He persuaded the bishops, not only in Germany, but in Gaul, where they
appear to have been previously independent, to acknowledge submission
to the successors of St. Peter at Rome.
At the time of Pepin's coronation, the Roman See was in the deepest
distress.  The King of the Lombards(t) had seized upon the Exarchate
of Ravenna, where the last remnant of the authority of the Greek Emperor remained, and threatened Rome with destruction.
Stephen II., the then Bishop of Rome, appears to have first endeavoured
to renew his relations, long practically severed, with the Greek Emperor;(u) but, as the danger became more and more pressing, he resolved
to implore the assistance of the Franks, then renowned throughout
Europe for their victories over the enemies of the Christian faith, and
whose King, as St. Boniface had written, alone enabled him to execute
his apostolical mission in Germany with safety or effect.(x)
CCXCI. The consequences of this resolution have ever since affected
the destinies of the world. The compact between the spiritual and secular powers of Western Europe(y) was soon adjusted; the necessities of
both arranged without difficulty the terms.  Stephen II. consecrated
P6pin anew in the Church of St. Denis, and at the same time also his
two sons Charles and Carloman; he absolved the consecrated usurper
from the oath of allegiance which he had sworn to Childric, the remaining phantom of the Merovingian Dynasty; and adjured the Frank lords
in the name of Christ and St. Peter, to be faithful to their new Sovereign;
and, *lastly, he conferred on P6pin and his two sons the dignity [*295
of Patricians of Rome.                                        [295
Pepin was not wanting in substantial marks of gratitude for the aid
which the spiritual power had rendered to his new-made throne.  He
drove the Lombards out of the Exarchate,(z) and conferred the fertile
provinces comprised under that name, not upon the Greek Emperor, to
whom by strict right they appertained, but upon the Bishop of Rome;
declaring, with an oath, that he had embarked in the contest, not for the
favour of many, but {v pro amore Petri et venia delictorum."(a)
CCXCII. Grotius, in that part of his great work, De Jure Belli et
Pacis, in which he argues that Kings who do not hold their sovereignties
7pleno jure cannot alienate any part of them, deals, among other supposed
instances to the contrary, with the story that Louis, the successor of
Charlemagne, restored the City of Rome to Pope Paschal (A. D. 817;)
and his language is remarkable respecting the character and status of
the Pope and of the Roman people at this period: " Nee quod idem
ille Ludovicus urbem Romamn Paschali Pontifici reddidisse legitur ad rem
facit, cum Franci imperium in urbem Romam a _populo Romano acceptum
reddere populo eidem recta potuerint, cujus populi personam sustinebat is
guli prinf? ordinils princeps erat."(b)
(t) Astolphus.                     (u) A. D. 751.
(z) Ranke, b. i. c. i.            (y) Koch, Tableau des Rev. i. 32.
(z) The Archbishop of Ravenna, while the war of the Lombards with Pepin
and Charlemagne lasted, seized every opportunity of defying the authority, spiritual
and temporal, of the Roman See. Muratori, Annali, t. iv. pp. 347, 371. Savigny,
Geschichte des Romischen Rechts im Mittelalter, i. 359.
(a) Ranke, b. i c. i.                          (b) L. ii. c. 3, xiii.




200   PHILLIMORE ON INTERNATIONAL LAW.
CCXCIII. What Pepin  began, Charlemagne completed.(c)   That
mighty monarch, while engaged in the work of exterminating the Lombard
dominion, repaired to bRome, and ratified the endowments of Pepin.(d)
26  Charlemagne was received at Rome with the honours due to an
E296 xarch and FPatrician,(e) and under these titles he began to put
in force that jurisdiction over the Ecclesiastical State which the Greek
Emperors and Exarchs had exercised before him.
It was not, however, till after a quarter of a century had passed away
that Charlemagne was fully installed in the dignity of his Imperial
predecessors.  The Pope again invited his all-powerful ally to Rome;
but this time it was against a domestic and not a foreign foe.  Leo III.,
like Pius IX. in our time, could no longer resist the contending factions
which, in Rome itself, set at nought his authority. The victor of Western
Europe reinstated the Pope in his authority, who, in return, placed upon
his head,(f) while he knelt at the alter of St. Peter's, upon Christmas
Day, A. D. 800, the crown of the Western Empire, and proclaimed him
Emperor of the Romans.
This was one of the rare conjunctures —the reigns of Constantine and
Justinian alone furnish similar instances in which the Church and
State were thoroughly incorporated.  Certain it is, that these Emperors
exercised, whether with or without the consent of the Church,(g) functions and jurisdictions which partook largely of a spiritual character.
Nor can it be denied that a new kind of power over religion was now
conferred upon the Governor of the State.  As a civil magistrate, heathen
or Christian, he had always bad control over all that concerned the welfare
of society, and therefore, incidentally, some power over the subject of
religion; but now he was constituted its protector.(h)
CCXCIV. But the Papacy, thus placed under the protection of the
French Emperor, remained, more or less, in the same relation to his
[*297] successors, the Emperors of Germany, *until the 1st of August,
1806;(i) they then became the Emperors of Austria, and this
relation, long practically disused, nominally, as Well as really, ceased.
The hands of Charlemagne's successor were too feeble to hold the
sceptre of his vast dominions, from  the divisions of which sprung the
distinct nationalities of States and, in some measure, of Churches, which
afterwards composed the commonwealth of Europe.
It should be observed, that by the Constitution of Charlemagne, the
(c) A. D. 7 68.
(d) A. D. 774.                     (e) Koch, Tabl. des. Rev. i. 42.
(f) The Pope seems to have considered the coronation as a necessary confirmation
of the act of the civil or constitutional law.
(g) Phillipps, Kirchenrecht, iii. 60, 61.
(h) See some remarks of Portalis (as cited in Lequeux, iv. 535,) upon the fifth
article of the Organic Articles of Napoleon. Phillipps, K. R. iii. 382.
(i) In a little pamphlet published at Vienna, 1849, entitled Deutsch oder Russisch,
will be found some striking remarks on the consequence of this change: —" Die
Deutsche Kaiserstellung war die Grundlage, auf welcher die osterreichische monarchie emporgewachsen. Ungeachtet des unglticklichen politischen und kirchlichen
Systems, durch welches sich Oesterreich mehr und mehr von Deutschland absonderte, war die hiistorische atisericlee, doch nach innen und aussen machtiger, als
die habsburgischen Ftirsten einsahen," u. s. w. Pp. 6, 7.




PRETENSIONS OF THE  POPE.                      201
German and French clergy were under the control of the Bishop, the
Bishop of the Metropolitan, the Metropolitan not of the Pope, but of
the Emperor.
*CH APTER  III.                      [*298]
THE GROWTH  OF THE AUTHORITY AND PRETENSIONS OF THE POPE.
CCXCV. FoR a while after the death of Charlemagne, the Papal
power seems to have been greater than the Imperial; but soon after the
German Emperors were seated on the throne, the political subjection of
the Popes is, as a matter of history, unquestionable. They were content
for a time to countenance with their authority a new political system
which sprung up about this period in Europe, according to which all
Christians belonged to a great Republic, of which the Spiritual chief
was the Pope, and the Temporal chief the Emperor.(a)
For a time this doctrine was a formidable instrument in the hands of
the Emperor. The great Protector of the Church, in the exercise of his
office, watched over the interests of the Roman See, convened general
councils, and claimed the tremendous prerogative of nominating, or at
least confirming, the Pope. Such a prerogative was exercised from the
time of Otho the Great to that of Henry IV. Henry III. deposed
three schismatical Popes, and nominated more than one German Pope.
CCXCVI. Otho and his successors created the great ecclesiastical
princes of Germany,(b) thereby weakening the empire, but unintentionally constituting, perhaps, a defence for the German National Church
against Rome, such as at -the Council of Ems, in the reign of
Joseph II., all but established the complete and entire indepen- [299]
dence of that Church from the See of Rome.
Before the beginning of the fourteenth century, the majesty of the
German Imperial crown had faded away; the federal system had destroyed
it, and the Emperor was only the Suzerain of the many independent
States which composed it.(c) Upon the ruins of the Imperial authority
arose the edifice of Papal power in its fullest dimensions; of this edifice
the skill, energy, and ability of Gregory VII.(d) (Hildebrand,) about the
year 1073, had already laid the deep and careful foundations, and from
A. D. 1074 to 1300, it lifted up its head over all the dominations of
earth.
CCXCVII. And here it must be observed that these events had imported new and strange elements into International Law:First. A great spiritual had become a considerable secular power, and
(a) Koch, i. /8-81.
(b) German canonists contend that the Roman cardinalate was formed on the
model of these ecclesiastical princedoms.
(c) Koch, i. 1.
(d) His election was confirmed, at his own request, by the Emperor. His Papacy
extended from 1073 to 1085 he had been subdiaconus under six Popes.
NOVEMBER, 1855.-14




202    PHILLIMORE ON INTERNATIONAL LAW.
the difficult question had arisen how were other secular States to carry on
their relations with it?
Secondly. This spiritual power was no longer identified with the limits
and extent of one dominion; it claimed equal authority over many distinct kingdoms, which stood as it were apart from, and yet were most
intimately connected with, this Foreign Power.  It wielded an authority
over the citizens of every kingdom, and exacted an allegiance upon oath
from them far above that which the Municipal Law of their own country
could impose, or the temporal Sovereign enforce.
Thirdly. In process of time it collected a feudal revenue of no inconsiderable amount from the governors and subjects of foreign realms.
Fourthly. This spiritual ruler claimed and exercised a power of absolving Sovereigns and subjects from their oaths.
3   *Fifthly. This spiritual power claimed for the officers which
L]3001 it employed in each kingdom, a status wholly distinct from that
of the subjects of each kingdom, whether these officers were or were not
born subjects of the kingdom.(e)  This separate status was claimed for
the persons and the property of the clergy (clerus,) and the law by which
they were to be governed.  Justinian had intended to Christianize as
well as compile the fabric of Roman Jurisprudence.  He meant to be
the religious as well as the civil legislator of the world.  The Christian
faith, the Christian doctrine, the status of the Christian clergy in all its
branches, are the subjects of his laws.(f)
It was not, however, in their clerical character, but as subjects in their
civil capacity, that the clerus claimed to live under the Civil Law of
Rome; and it appears even from one of the constitutions of Clothaire, as
early as A. D. 560, and from various records of the ninth and eleventh
centuries, that in the Frank kingdom the clergy were permitted to live
under the Roman Law.  It seems, however (and the fact is very remarkable,) that even then the clergy in Lombardy had the option of declaring
whether they would live under the Roman or Lombard Law.(g) So early
was the struggle begun between the nationality of the individual and the
law of the order to which he belonged.
But while the clergy lived under the Civil Law of Rome, they were
pretty much in the same predicament as the conquered provincials, who
were equally, in the early part of the Middle Ages, allowed to choose a
personal law distinct from the law of their domicil.(h) When various
foreign spiritual *enactments, and at last the elaborate compilations of the Canon Law, were promulgated, the difficulty of reconciling a foreign spiritual with a domestic secular allegiance became greater
or, at least, the distinction became sharper and more prominent between
the two.
(e) Savigny, Geschichte des ROmischen Rechts im Mittelalter, i. 141-2.
(f) Milman, Hist. of Latin Christianity, i. 355, &c., contains an able review of
these laws of Justinian.
(g) " Ego Teopertus archipresbiter Ecclesioe Sancti Juliani qui professus sum
legem vivere langubardorum."-Vide Savigny, ubi supr. It seems, however, that
this power of option was confined to Lombardy.
(h) Savigny, Gesc. RI. R. ii. 274. At first the spiritual edicts contained large
and literal extracts from the Roman Civil Law.




PRETENSIONS OF THE POPE.                              203
That those, whose sacred office it is to be the teachers of religion,
should be clothed with a privileged and cosmopolitan character, seems to
be in accordance with the natural feelings of man in every part of the
world, not wholly barbarous and uncivilized.  We know, from  the recent
travels of a most intelligent Roman Catholic missionary in China and
Thibet, that in these interesting countries this notion very generally prevails;(i) but the subject immediately under our consideration is that of
an inmperium in imperio, caused by the double allegiance of the native
clergy.
*CCXCVIII. The collision between the two powers of Church [*302
and State, accordingly, arose soon after the time of Charlemagne, [302
and has continued in a greater or less degree up to the present time.
The temporal Sovereign soon began to claim as incidents both to his
royal status, and to the independence of his country, various rights,
which had for their object the control of Papal encroachment; of this
nature were what are sometimes designated collectively as Juora majestatis
circa sacra, the principal of which were:1. Jus advocatie —the right of protecting the Church establishments
in his dominions (Schutzrecht,) that right which in private patrons was
called the jus patronatsus.
2. Jus cavendi —the right of preventing the introduction of laws for
the government of the national clergy at variance with their civil obligations (Recht der Vorsorge).
3. Jous inspiciendci-the right of inquiring into the manner in which
the temporalities of this great corporation in his kingdom  were administered, and of rectifying abuses.
CCXCIX. Now, for the first time, it should seem  that the Roman
Pontiff claimed the title of Pope,(l) to the exclusion of all other bishops,
who had hitherto been equally designated by it.  The celibacy of the
clergy, which had taken no root in Germany, England, or the northern
(i) " Nous nous hhttmes de nous rendre chez le Rfgent, et de lui faire part de la
deplorable entrevue que nous avions eue avec Ki-Chan. Le premier Kalon avait
eu connaissance des projets de persecution que les Mandarins Chinois tramaient
entre nous. 11 tacha de nous rassurer, et nous dit que, protegeant dans le pays des
milliers d'etrangers, ii serait assez fort pour nous y faire jouir d'une protection que
le gouvernement Thibetain accordait a tout le monde. Au reste, ajouta-t-il, lors
mrme que nos lois interdiraient aux dtrangers l'entree de notre pays, ces lois ne
pourraient nous atteindre. Les r eligieux, les hommes de prilre, entcznt de tous les pays,
ne sont etrangers nulle part; telle est la doctrine qui est enseignee dans nos saints
livres. 11 est.6crit: La ch/vre jeune est sans patrie, et le Lama n'a pas de famille... Sha-Ssa 6tant le rendez-vous et le s6jour special des hommes de priere, ce seul
titre devrait toujours vous y faire trouver libert6 et protection.
" Cette opinion des Bouddhistes, qui fait du religieux un homme cosmopolite, n'est
pas simplement une pensee kcrite dans les livres; mais nous avons remarqu6 qu'elle
etait passee dans les mornes etles habitudes des lamaseries. Aussitot qu'un homme
s'est rase la tte, et a revetu le costume religieux, il renonce h son ancien nom pour
en prendre un nouveau. Si l'on demande i un Lama de quel pays il est, il r6pond:
Je n'ai pas de patrie, mais je passe mes jours dans telle lamaserie. Cette maniere
de penser et d'agir est m6me admise en Chine, parmi les bonzes et les autres especes
de religieux, qu'on a coutume de designer par le nom gdndrique de Tchou-kia-jin,
homme sorti de la famille." —Voyage dans le Thibet, par MI. Hue, Prdtre, Missionaire de la Congregation de Saint Lazare, vol. ii. p. 357.
(k) Trait6 de la Prerogative Royale, i. ch. viii. (Lorieux.)
(I) Koch, Tabl. des Revol. i. P6riode iv. p. 106.




204   PHILLIMORE ON INTERNATIONAL LAW.
kingdoms, and was continually disregarded in France and Spain, was
practically enforced, and a powerful link which connected that order with
the State was broken off, while a new link which connected it with a
foreign power was forged.  (m)The Popes *ceased to date their
[*303] acts from the years of the reign of the Emperor, or to stamp their
coin with his impress; the investiture of the ring and crozier, which
bound the clergy very closely to the State, was successfully refused. The
Sovereign was bound to nominate or confirm the nomination of any pre.
late. The Prefect of Rome was required to take the oath of homage and
allegiance to the Pope, instead of to the Emperor; and it was with truth
that Gregory VII. wrote to the German nation, respecting the Emperor:
— ( Non ultra putet sanctam Ecclesiam sibi subjectam, sed prselatam ut
dominam."(n) Quite consistently he claimed the empire as a fief of the
Roman Church, and exacted from  Hermann of Luxemburg, whom  he
set up as an anti-Emperor to Henry IV., a formal oath of vassalage.
Tribute was exacted from and paid by the greater part of European States
to the Pope.  Royal dignities were conferred and taken away, oaths of
loyalty imposed and annulled, at the bidding of the Roman See.(o)
Hitherto the Emperors had exercised the right of confirming the election
of the Popes and of deposing them; the same rights were now claimed
by the Popes over the Emperors, and indeed over all other Sovereigns.
It was, perhaps, a natural consequence of extending the spiritual power
of excommunication to secular matters.  The multiplication of religious
orders claiming exemption from the jurisdiction of the State, and devoted
to the Roman See, though one of those orders was destined to furnish its
deadliest enemy, tended as well as the Crusades, to strengthen the hands
of the Pope; for it was not merely against infidels that this weapon was'*304] used; Crusades were preached by Popes *against refractory ChrisLi]  tian Kings and Republics, such as Venice in 1309;(p) against
schismatical Princes, such as the Greeks and Russians; against pagans,
like the Sclavonic tribes on the Baltic; against heretics, like the Vaudois,
the Albigenses, and Husssies.(q)
A confusion of ideas generated a confusion of authorities.  Heresy,
which, if it attacked the law of the State, might be a political crime,
was punished with equal severity when it was a religious error. Infidelity to the Church was put on the same footing as rebellion against
the throne. The Inquisition secured to the ecclesiastical authority the
arm of the secular power, without any right of inquiry or intervention as
(m) See that monument of German industry and erudition, Christliche Kirchengeschichte, von J. M. Schrockh, xxvi. Theil 86, for the (Concordatum Wormatiense)
Concordat of Worms, A. D. 1122, concluded between Henry V. and Pope Calixtus
II. The Sovereigns were allowed, contrary to Gregory VII.'s intention, to preserve
the bare feudal tie, by presenting with the sceptre the regale to the Bishop. The
important words in the Concordat are, " Electus per sceptrum regale abs te acciipiat." Koch, ib. 121.
(n) Epist. 1. iv. c. 3. Koch, ib.
(o) Collier, speaking of Becket's opposition to the Constitutions of Clarendon
(A. D. 1164,) observes,'His tenet, that the Civil Government had its authority
from the Church, was a grand mistake, and misled his practice."-Church History,
vol. ii. p. 328, ed. 1840.
(p) Portalis, Introd. vii.             (q) Koch, ib. 136, 137, notes.




PRETENSIONS  OF THE POPE.                          205
a condition of its use.(r)  Meanwhile the territory of the Roman See
was, from various causes, largely increased, so also was her wealth, by
contributions (annates) from  all countries, and her power, from  the
causes already mentioned, to which should be added her claims to collate to benefices, which, under the pretext of rights of concurrence and
prevention, she often enforced to the injury of the national prelate.(s)
It is true that many of these pretensions, especially the last, were
founded upon the decretals of Isidore, now universally acknowledged to
have been forged during the early part of the ninth century;(t) but it is
difficult to deny that they flowed, as strict logical consequences, from the
principles on which Rome, who, to borrow the French expression, une
recule pas," founded, both at this and at a much later period, her authority.(u)
(CCC. About the year 1152, A. D., the Decretum, a systematic   305
compilation of the existing canons and laws of the Church, was [30
compiled by Gratian and approved of by the Pope. About the year
1235, A. D., Pope Gregory IX. caused his chaplain to reduce into a
regular order and system the constitutions of former Popes, including
with them his own, and also the canons of the third and fourth Councils
of Lateran;(x) these are the Decretals.(y)  The Sext or Sixth book of
Decretals was added by Boniface VIII.; Clement V. began another
compilation, afterwards published, called The Clementines; another was
made by John XXII., constituting the Extravagantes Johannis. To
this were added, in 1483, other decrees of popes, the Extravagantes
Communes. These celebrated compilations received the most deliberate
stamp of the Roman Church's approbation, and were ordered to be publicly taught in all her schools, and to become the law of all her tribunals.
The provisions contained in them have never been expressly repealed by
the Papal authority which originally sanctioned them; though many
canonists hold that some of them have fallen into desuetude.
(r) Portalis, ubi sup.                    (s) Koch, 127, 111.
(t) "It is impossible to deny (Dean Milman says) that at least, by citing without reserve or hesitation, the Roman Pontiffs gave their deliberate sanction to this
great historic fraud."-Hist. of Latin Christianity, vol. i. p. 379.
(u) Miiller's defence is eloquent and ingenious:-" Wenn die Hierarchie ein
Uebel ware besser doch als Despotie; sie sey eine leimerne Mauer, sie ist's doch
gegen Tyrannei. Der Priester hat sein Gesetz, der Despot hat keins; jener beredet,
letzterer zwingt; jener predigt Gott, letzterer sich. Man spricht weder die Unfehlbarkeit; wer darf eine Verordnung unweise oder ungerecht nennen, und ihr Gehorsam versagen?-wider den Papst, als ob ein so grosses Unglick waire, wenn ein
Aufseher der christlichen Moral dem Ehrgeiz und der Tyrannei befehlen konnte,
bis hieher und nicht weiter!-wider die Personalimmunitat, als ob ein grosses
Unglilck ware, das jemand ohne Lebensgefahr fuir die Rechte der Menschheit reden
durfte I-wider ihren Reichthum, als waren die Laien gebessert, wenn der Priester
mit ihnen darbt?-wider Steuerfreiheit; die franzosische Clerisei giebt so viel als
die Laien; —wider Usurpationen, ohne zu berechnen was die Fdrsten der Kirche
zu restituiren hatten fur Kriege, Bedriickungen, Commenden, Pensionen, Reunionen;-wider die vielen Kloster, nicht wider die Vermehrung der Kasernen;wider sechzigtausend ehelose Geistliche, und nicht wider hundert tausend ehelose
Soldaten."-Miiller, Fiirstenbund. Werke, B. ix. S. 164, cited by Walter, Kirchenrecht, 41, n. p., and ib. 196.
(x) Held in the time of Alexander III., A. D. 1179.
(y) In the time of Innocent III., A. D. 1215.




206     PIILLIMORIE ON INTERNATIONAL  LAW.
[*306]   *These compilations constitute that body of Papal Law which
is known by the name of Corpus Juris Canonici.
It is intended to be the law of a Foreign Spiritual Chief for the
government of a particular class of the subjects of independent States.
To all nations, however, but the Roman States, it constitutes a body of
Foreign Law.  It is now universally acknowledged that it depends, as
well as the jus novissimum, or later Canon Law, for its civil authority,
upon the degree of Reception which has been accorded to it by the State.
Now in this body of Canon Law are contained, as will be seen in the
following chapters, principles and doctrines utterly subversive of the independence of States, and inconsistent with the first principles of International Law.
[*307]                *CHAPTER   IV.
THE CORPUS JURIS CANONICI AND THE PRINCIPLES CONTAINED THEREIN,
AND IN SUBSEQUENT BULLS, AT VARIANCE WITH INTERNATIONAL
LAW.
CCCI. THE Decretals which appear to be inconsistent with the independence of Foreign States, are known by the following titles, taken
from the words with which they begin:1. Yenerabilem.
2. Solitas.
3. Ad Apostoicw.
4. Clericis Laicos.
5. Quod olim.
6. Unam Sanctam and [er-utit.
7. Romani Principes.
8. Pastoralis.
9. Si Fratrum.
10. De Consuetudine.
CCCII. The Emperor Henry VI. died in A. D. 1197. The majority
of the electoral Princes chose Philip of Swabia for his successor; the
minority, Otho of Brunswick, son of Henry the Lion. Philip had been
excommunicated by the Pope for spoliating the Church's property. Both
Princes were crowned. Innocent III. sent a legate into Germany, ordering the Princes to acknowledge Otho.
Duke Berthold of Zahringen, with the other Princes who supported
Philip, sent a complaint to the Pope that his legate had done wrong,
whether he acted in the capacity of elector or of judge.
*As an elector he had thrust his sickle into another man's
[*308] harvest, and derogated from the rights of the Princes. As a
judge he had decided in favour of one party in the absence of the other,
who had not been cited.
Innocent replied to this in a letter which appears as the Thirty-fourth




THE  CORPUS JURIS CANONICI.                       207
chapter of the Sixth title of the First book of the Decretals of Gregory
IX., and begins with the word Venerabilem, and was issued probably in
A. D. 1202. This Decretal opens with a recital of the above-mentioned
complaints, and goes on to recognize the power of election to be by law
and usage vested in the Princes: "cproesertim cum ad eos jus et potestas
hujusmodi ab Apostolica sede pervenerit, quse Romanum. Imperium  in
personam  magnifici Caroli a Groecis transtulit in G-ermanos."   The
Princes, on the other hand, ought to acknowledge, and have acknowledged, (c quod jus et auetoritas examinandi personam electam in Regem,
et promovendam ad Imperium, ad nos spectat, qui eum inungimus, consecramus et coronamus.  Est enim regulariter et generaliter observatum,
ut ad eum  examinatio personae pertineat, ad quemn impositio manus
spectat." The legate had not discharged the office of an elector (electoris) or a judge (cognitoris), but of a denouncer (denunciatoris) of an
improper choice. The voters for the improper person had thrown away
their votes.(a) The unfitness of the chosen was indisputable; "sunt
enim notoria impedimenta Ducis, scilicet excommunicatio publica, perjurium manifestum, et persecutio divulgata, quam progenitores ejus et
ipse prsesumpserunt in Apostolicam sedem et alias Ecclesias exercere."
Moreover, the Duke had taken an oath against being Emperor.  If
it were an unlawful oath, it bound him as the Israelites were bound by
their oath to the Gibeonites, though fraudulently procured.
*Besides, "cutrum  verb dictum  juramentum  sit licitum  vel
illicitum, et ideb servandum  an non servandum  extiterit, nemo [*309]
sanme rentis ignorat ad nostrum judiciumr pertinere."
Lastly, it is suggested that if the Duke were to succeed his brother,
who had succeeded his father, the electors would seem to lose their
liberty of election, as the dignity would appear hereditary.
The remarkable points in this Decretal are the assertions:i. That the right of the electors was derived through the Roman See.
2. That the Pope had a right to examine, and therefore to reject, the
elected whom he was called upon to consecrate and crown.
3. That an improper choice by the majority gave the Pope the power
of sanctioning the choice of the minority.
4. That excommunication, and ancestral as well as personal offences
against the Roman See, disqualified a person from being elected.
5. That to the Pope it belonged to judge whether a person should be
absolved from an oath, whether it were lawful or unlawful, given bona
fide or procured by fraud.
CCCIII. About the same time (A. D. 1200) the same Pope wrote to
the Emperor at Constantinople touching the injury done to the Patriarch
of Constantinople by placing him on a footstool to the left of the throne.
In this Decretal, the Sixth chapter of the Thirty-third Title(b) of the
first book of the Decretals, and which begins Solitm, the Emperor is
shown the folly of supposing that the passage in St. Peter's Epistle
(I. 2-13,) could in any way, indicate that the Priesthood was subject to
(a) A maxim, it may be observed, subsequently incorporated into English jurisprudence.-Oldknow v. Wainwright, 2 Burrow's Reports, 1017.
(b) De Majoritate et Obedienti.




208    PHILLIMORE ON INTERNATIONAL LAW.
the Temporal Power. Various reasons are alleged-the last is very
remarkable:" Proeterea nosse debueras" (the Pope says to the Emperor,) " q-ubd
fecit Deus duo magna luminaria in ifirmamento coli: *lsuminare
c310 mas, ut preesset dieii: et lumninare minus, ut preesset nocti:
utrumque magnum, sed alterum  majus.  Ad firmamentum igitur cccli,
hoc est, universalis Ecclesive, fecit Deus duo magna luminaria, id est,
duas instituit dignitates, quec sunt Pontificalis auctoritas, et Regalis
potestas.  Sed illa, qum prweest diebus, id est spiritualibus, major est:
quse verb carnalibus, minor: ut, quanta est inter solem et lunam, tanta
inter Pontifices et Reges differentia cognoscatur. Hiee autem si prudenter
attenderet Imperatoria celsitudo, non faceret, aut permitteret Constantinopolitanum  Patriarcham, magnum  quidem  et honorabile membrum
Ecclesime, juxta seabellum pedum  suorum in sinistra parte sedere: cmin
alii Reges et Principes, Archiepiscopis et Episcopis suis (sicut debent)
reverentur assurgant."
It is difficult to extract any other position from this Decretal than that
the kingdoms of the earth were in all respects subjected to the Church,
and, therefore to the Pope.(c)
CCCIV. The advantage which accrued to the most extravagant of
Papal claims from the baseness and wickedness of King John of England,
is a well-known page of history. Before, however, John became " a
gentle convertite"(d) and resigned his crown to the Pope, that monarch
had invoked the interference of Rome to stay the irruption of King
Philip in Normandy.
A " denunciatio" was made by John to Innocent III. against Philip,
charging him with the breach of a truce made between France and
England.
Innocent wrote on behalf of John to Philip, who returned for answer
that the Pope had no right to interfere between Kings, or between him
and his vassal.  Then Innocent, in *the year 1204, issued the
[U1 ]~ Decretal,(e) beginning "c Novit ille," which may be divided into
three parts:-1. An assertion of the general principle of Papal jurisdiction in these matters, viz., that though he had no jurisdiction
c" judicare de feudo," yet he had c" decernere de peccato;" that John had,
according to the Scripture, "4 told to the Church"(f) the offence of his
brother King, and the Pope, therefore, " ad regimen universalis Ecclesim
vocati," must hear the cause by himself or his legate.  That his power
to do so was the gift of God, not of man; that there was no exemption
for Kings any more than for private persons; that the Emperor Theodosius
had even laid down in his Code that at any time, and in any suit, the
appeal of either plaintiff or defendant to Rome put an end to every
inferior jurisdiction.
2. That a charge of breach of faith to a treaty (rupta pacisfoedera)
no doubt appertained, ratione causaw, to the Church.
(c) Walter thinks that this Decretal says no more than that Christendom was
divided between the authority of the King and the Church-that the Pope was
at the head of the Church, and therefore the central point of spiritual life. —
Kirchenrecht, s. 41.                      (d) King John, act v. sc. 1.
(e) Decret. Greg. ix. 1. 2, t. i. c. xiii.  (f) St. Matthew, c. xviii.




THE  CORPUS  JURIS  CANONIOI.                      209
3. Therefore,c prsedicto Legato dedimus in prseceptis, ut (nisi Rex
ipse vel solidam pacem cum prsedicto Rege reformet, vel saltem humiliter
patiatur, ut idem Abbas et Archiepiscopus Bituricen de plano cognoscant,
utrum justa sit quserimonia, quam  contra eum proponit coram  Ecclesia
IRex Anglorum, vel ejus exceptio sit legitima, quam  contra eum  per
suas nobis literas duxit exprimendam) juxta formam sibi datam a nobis
procedere non omittat."
The legate accordingly went to Meaux, held a council there, and began
to proceed against Philip by censures.  The French Bishops appealed to
Rome; the appeal was received.  The representative of the Bishops
appeared; John was cited, and, not appearing, the cause was decided,
in pain of his contumacy, in favour of France, and the crown of England
was in consequence stripped of the greatest part of its continental possessions. (g)
*CCCV. The Emperor Frederic II., who began his reign A. D. [*312
1212, waged nearly a forty-years' war with the pretensions of  32]
Rome.
The end of the contest is well known. I-e was deposed on the 17th
July, 1245, by a sentence of Innocent IV., with the advice of the
Council at Lyons.  All his subjects were released from their obedience;
all who might hereafter aid him were excommunicated.  The sentence
was duly placed by Boniface VIII., under the title "c de sententiae et re
judicata," in the sixth book of the Decretals;(h) it is known by the
title ad Apostolice.
Four principal premises are stated for the conclusion of the sentence:1. His frequent perjury, shown in violating the peace between the
Church and the Empire.
2. His sacrilege, in imprisoning certain cardinals and prelates on their
way to the council, convened by Innocent's successor.
3. A vehement suspicion of heresy.(i)
4. He had harrassed both ecclesiastics and laymen in the kingdom of
Sicily, which he held as a fief from the Pope, and which he had exhausted
by his tyranny.
5. He had entered into negotiations with the Saracens, and carried on
a criminal intercourse with Saracen women.
The Pope, it will be seen, founded his right to judge, and his power
to depose kings, upon the declaration of our Lord to  St. Peter:
"Wrhatsoever thou shalt bind on earth shall be bound in heaven."(j)
The condemnatory part of the sentence is as follows:()-         13
*Nos itaque super prsemissis, et quampluribus aliis ejus nefandis [313
(g) Phillipps, K. R. iii. 238.
(h) L. 2, t. 14. The Bullarium  (Cocquelines, Romse, 1740) contains some
various but unimportant readings of this sentence.
(i) "De haresi quoque non dubiis et levibus sed difficilibus et evidentibus
argumentis suspectus habetur."  This is pretty much in the style of Dogberry's
reasoning, "Masters, it is proved already that you are little better than false
knaves; and it will go near to be thought so shortly."-Much- Ado about Nothing,
act iv. sc. 2.
(j) St. Matthew, c. xvi. ver. 19.
(k) The avowed objects of convening this First Council of Lyons were to take




210   PHILLIMORE ON INTERNATIONAL LAW.
excessibus, cum fratribus nostris et Sancto Consilio deliberatione proehabita diligenti (cunm Jesu Christi vices licet immeriti teneamus in terris,
nobisque in B. Petri persona sit dictum: Quodcunque ligaveris super
terram, ligatum erit et in ccelis:) memoratum  Principem  qui se imperio
et regnis, omnique honore ac dignitate reddidit tam indignum, quique
propter suas iniquitates h Deo, ne regnet, vel imperet, est abjectus, suis
ligatum peccatis, et abjectum, omnique honore ac dignitate privatum a
Domino ostendimus, denunciamus, et nihilominius sententiando privamus:
omnes, qui ei juramento fidelitatis tenentur adstricti,.r juramento hujusmodi perpetub absolventes: auctoritate Apostolica firmiter inhibendo,
ne quis quamde caetero sibi tanquam Imperatori vel Regi pareat vel quomodoibet parere intendat.(l)   Decernendo quoslibet, qui ei deinceps
velut Imperatori vel Regi consilium  vel auxilium  prxestiterint, seu
favorem, ipso facto excommunicationis sententire subjacere.  Illi autem,
ad quos in eodem imperio Imperatoris spectat electio, eligant liberb
successorem.   De prefato  Sicilise regno  providere curabimus, cuim
eorundem fratrum nostrorum consilio, sicut viderimus expedire."(rn)
This sentence was received as law in various parts of Christendom;
and though Frederic II. maintained a strong party in the Empire to the
last, the sentence was published in England by Henry III., and the
Ecclesiastical Princes of Germany elected a new King of the Romans.
CCCVI. The Second Council of Lyons, held thirty years afterwards,
decided upon the confirmation of the election of the Emperor Rodolph,
the renunciation of Alphonso, King of Arragon, to the Imperial dignity,
and the excommunication *of those who should interfere with
[5314 ]a priest publishing Ecclesiastical censures against a Sovereign.(n)
CCCVII. It will have been observed that the sentence upon the Emperor Frederick II. was given by the advice of the Council at Lyons;
and we find the second Council of Lyons taking cognizance of questions
of great secular importance. The (Ecumenical Councils(o) had, in course
of time, become a tribunal, before which were discussed the principal
International affairs of Christendom, not only articles of faith and matters of religion, but the conduct of Princes, their trial and punishment,
the precedency and rank of nations, and the disputed successions to
kingdoms.  The Councils generally were called, even by Voltaire,(p)
the Senate of Europe.
The canonists define a Council to be an assembly of prelates and doctors, to settle matters concerning religion and the discipline of the
Church. (q)
These Councils admit of various subdivisions, into (1) General Couninto consideration the abuses of the Church and the defence of Constantinople,
then threatened by the Turks.-See the History of the Council at length, Matthew
Paris, 663, &c. Ward's Law of Nations, ii. 59-71.
(1) The words in Italics are in the Bullarium. Vide ante, n. (h.)
(mn) Phillips, in his Kirchenrecht, published 1850, laments the necessity, but
defends the authority and lawfulness, of the Pope's sentence.-B. 3, pp. 221-3.
(n) Ward, ii. 73.
(o) Ward, ib. 55, 56.
(p) Essai sur les Mceurs et l'Esprit des Nations, ch. lxvii.
(q) Monsieur Durand de Maillane's Dictionnaire de Droit Canonique, tome premier, titre CONCILE.




THE CORPUS JURIS CANONICI.                            211
cils, (2) National Councils, (3) Provincial Councils, (4) Diocesan Councils.  It is only, however, with General Councils that International Law
is concerned.
These (Ecumenic or General Councils are divided into (a) those which
form a portion of the Corpus Juris Canonici (the effect of which upon
International Law will presently be noticed,) and (/s) those which have
been held subsequent to these compilations.
With respect to the former, there have been(a) Eight General Councils in the East.
1. Nice (1).... 325
2. Constantinople (1).. 381
3. Ephesus.... 431
4. Chalcedon....  451
5. Constantinople (2)...  553
6. Constantinople (3)...  680
7. Nice (2)....  787
8. Constantinople (4)..         869
*Seven General Councils in the West.             [*315]
9. Lateran (1)... 1123
10. Lateran (2)... 1139
11. Lateran (3)... 1179
12. Lateran (4)... 1215
13. Lyons (1)... 1245
14. Lyons (2)... 1274
15. Vienne. 1311
With respect to the latter, there have been (g) six General Councils,
ct quorum nulla in corpore juris mentio fit."
16. Pisa..... 1409
17. Constance.... 1414
18. Basle.... 1431
19. Florence.... 1439
20. Lateran (5).. 1512
21. Trent..... 1545
It is manifest that a much greater International(r) authority and influence is to be ascribed to the Councils of the Undivided Church, than to
those which have been held by one branch only of the Church.
WTith respect to the four first Councils, Justinian decreed that the
canons contained in them should be observed as laws;(s) and the Canon
(r) It is probably with reference to these Councils, that Grotius says: "Synodici canones qui recti sunt, collectiones sunt ex generalibus legis divine pronuntiatis, ad ea, qua occurrunt, aptatne; hi quoque aut monstrant, quod divina lex
preecipit, aut ad id, quod Deus suadet, hortantur. Et hoc vere Ecclesine Christianae est officium, ea quae sibi'a Deo tradita sunt tradere et eo quo tradita sunt
modo." —De J. B. et P. (Proleg.) 51.
(s) " Sancimus igitur, vim leguni obtinere sacros ecclesiasticos canones in sanctis quatuor synodis expositos vel confirmatos, hoc est in Niceena trecentorum




212    PHILLIMORE ON INTERNATIONAL LAW.
Law declares "(Inter caetera Concilia, quatuor esse scimus venerabiles
Synodos, quT totam  principaliter fidem  complectuntur, quasi quatuor
Evangelia, vel totidem Parasidi flumina.(t)
[*316]   *In England, the Legislature enacted that the High ComL[i ]) missioners appointed by Queen Elizabeth, should have no power
to "adjudge any matter or cause to be heresie, but only such as have
heretofore been determined, ordered, or adjudged to be heresie, by the
authority of the Canonical Scriptures, or by the first four General Councils, or any of them, or by any other General Council wherein the same
was declared heresie by the express and plain words of the said Canonical Scriptures, or such as hereafter shall be ordered, judged, or determined to be heresie, by the High Court of Parliament of this realm,
with the assent of the Clergy in their Convocation."(u)
The International character of these General Councils is nowhere
more forcibly stated than in the work of a celebrated English divine:"Now as there is great cause of communion, and consequently of
laws, for the maintenance of communion amongst nations, so, amongst
nations Christian, the like in regard even of Christianity hath been
always judged needful.  And in this kind of correspondence amongst
nations, the force of General Councils doth stand.  For, as one and the
same Law Divine, whereof in the next place we are to speak, is unto all
Christian Churches a rule for the chiefest things, by means whereof they
all in that respect make one Church, as having all but one Lord, one
faith, and one baptism,(x) so the urgent necessity of mutual communion
for preservation of our unity in these things, as also for order in some
other things convenient to be every where uniformly kept, maketh it
requisite that the Church of God here on earth have her laws of spiritual commerce between Christian nations-laws, by virtue whereof all
Churches may enjoy freely the use of those reverend, religious, and
[317] sacred consultations, which are termed Councils General.  *A
thing whereof God's own blessed Spirit was the Author;(y) a
thing practised by the holy Apostles themselves; a thing always afterwards kept and observed throughout the world; a thing never otherwise
than most highly esteemed of, till pride, ambition, and tyranny began,
by factions and vile endeavours, to abuse that divine intention unto the
furtherance of wicked purposes.  But, as the just authority of civil
courts and parliaments is not therefore to be abolished, because sometimes there is cunning used to frame them according to the private intents
of men over-potent in their commonwealth, so the grievous abuse which
hath been of Councils should rather cause men to study how so gracious
a thing may again be reduced to that first perfection, than in regard of
stains and blemishes, sithence growing, be held for ever in extream disdecem et octo, et in Constantinopolitana centum quinquaginta sanctorum patrum,
et in Ephesina prima, in qua Nestorius condemnatus est, et in Chalcedonensi, in
qua Eutyches cum Nestorio anathemate percussus est. Przedictarum enim sacrarum synodorum et dogmata ut sacras scripturas suscipimus, et canones tanquam
leges observamus." —Nov. cxxxi. 1.
(t) Decret. I. Dist. xv. c. i. s. 1, et vide c. ii.
(u) 1 Eliz. c. i. s. 36.                (x) Ephes. iv. 5.
(y) Acts xv. 28.




THE  CORPUS JURIS  CANONICI.                      213
grace.  To speak of this matter as the cause requireth, would require
very long discourse. All I will presently say is this, whether it be for
the finding out of anything whereunto Divine Law bindeth us, but yet
in such sort, that men are not thereof on all sides resolved; or for the
setting down of some uniform judgment to stand touching such things,
as being neither way matters of necessity, are notwithstanding offensive
and scandalous, when there is open opposition about them; be it for the
ending of strifes, touching matters of Christian belief, wherein the one
part may seem to have probable cause of dissenting from the other; or
be it concerning matters of polity, order, and regiment in the Church, I
nothing doubt but that Christian men should much better frame themselves to those heavenly precepts which our Lord and Saviour with so
great instancy gave(z) as concerning peace and unity, if we did all concur in desire to have the use of ancient Councils again renewed, rather
than these proceedings continued, which either make all contentions
*endless, or bring them  to one only determination, and that of [*318]
all other the worst, which is by sword."(a)
It is manifest, however, that these Western Councils had become at
the time of the deposition of Frederic, mere instruments for extending the
power and avenging the quarrels of the See of Rome.
CCCVIII. In some sense, too, it may be observed, that the Universities of Europe have been considered the expositors of International Ecclesiastical Law.  Philip III. of France invoked the aid of the University
of Paris in his contest with Pope Boniface VIII., and, compelled the
members of that learned society to examine into the pretensions of the
Pope; and it is remarked by Spittler(b) that a more dangerous enemy to
the Papacy could not have been aroused, inasmuch as at that period Universities were indignant with the Pope, on account of the privileges
which he had accorded to the Mendicant Orders, and which trenched
upon the academical rights.  The Universities were also resorted to by
Henry VIII., at the suggestion of Cranmer, to obtain the much-desired
divorce from his innocent wife; and after the lapse of nearly three centuries, by Mr. Pitt, in order to ascertain what the opinions of Roman
Catholics were, as to the alleged conflict between their allegiance to the
Pope and to their temporal Sovereign, previously to the removal of their
civil disabilities in England.(c)
CCCIX. To return, however, to the task of tracing the continuous
development of the claims of Papal authority over independent States.
The connexion between France and Rome, which, before the tenth
century, had been so intimate, and which after that period, had been
exchanged for the alliance of Germany, was again renewed after the quarrel with the race of Hohenstaufen.
*Various Popes, as has been stated, had taken refuge in France
since the reign of the Emperor Henry IV.; and at the time when C[319]
Frederic II. was dethroned, St. Louis reigned in France.  But the grand(z) John xiv. 27.
(a) Hooker, Ecclesiastical Polity, B. i. s. 10.
(b) Geschichte des Papsthums (1828,) p. 172.   (c) Vide post.




2914   PHILLIMORE ON INTERNATIONAL LAW.
child of St. Louis was by no means disposed to submit to the authority
which the Popes had claimed in Germany.
Philip IV. (the Handsome) discovered the necessity of taxing his
clergy as well as his laity, in order to defray the expenses of his wars
with Edward I. of England.
The (c)Third (1179) and (e)Fourth (1215) Councils of Lateran had
laid down the principle that the State had no authority whatever over
the property of the Church.
Boniface VIII. sought to enforce this maxim against Philip IV. in a
Decretal fulminated in 1296, which certainly begins with the assertion
of a very unconciliating proposition: —
4 Clericis Laicos infestos oppidcl  tradit ccntiquitas, quod et proesentium
experimenta temporumn manifeste declarant, dum suis finibus non contenti
nituntur in vetitum, ad illicita frmena relaxant, nec prudenter attendunt,
quam  sit eis in Clericos Ecclesiasticasve personas et bona interdicta
potestas."(f)  It went on to declare that all secular authorities imposing,
and all spiritual authorities paying, any taxes (it must be assumed,
according to the defenders of the Decretals, to speak only of new taxes,)
without the authority of the Holy See, should incur excommunication
ipsofacto, from which they should not be relieved even in articulo nmortis,
without the special license and authority of the Pope,'ccum  nostroa intentionis existat, tam horrendum secularium potestatum abusum nullatenus sub dissimulatione transire."
CCCX. In A. D. 1304, Benedict XI., the gentle successor of the arrogant Boniface, by a Decretal beginning cc Quod oliqn,"(g) &c., took away
the punishment from the clergy who payed new taxes, provided that they
F*320] had first *deliberated in Synod, and agreed that the tax was imU[t320   posed on account of necessity, or for the general good; and even
in that case the Pope was to be first consulted.
CCCXI. Boniface VIII., by the Bull c"Ausculta Fili," further explained to Philip the Handsome that he and all other kings were subject
to the Pope, and set before him many of his offences, especially his debasing the coin of his realm, and finally advised him to make peace with
the Church and prepare for an expedition to the Holy Land. The text
of Scripture upon which the Pope chiefly relied was this passage in Jeremiah (i. 10.): — ~See I have this day set thee over the nations, and over
the kingdoms, to root out, and to pull down, and to destroy, and to throw
down, to build, and to plant."  The next step of Boniface was to call a
Council at Rome, and, in 1302, to promulgate the famous Decretal beginning cc Unam sanctam,n"(h) in which, after setting forth various texts, one
from the Canticles,(i) one from the Psalms,(k) and especially r feed my
(d) Can. 19.                                   (e) Can. 44.
(f) Sexti Decret. L. 3, t. 23, c. iii.
(g) Extravag. Comm. 1. 3, t. xiii. De Immunitate Ecclesiorum.
(h) Extravag. Comm. 1. 1, t. viii. De Majoritate et Obedentia. "Unam sanctam
Ecclesiam," &c.
(i) "My dove, my undefiled, is but one; she is the only one of her mother, she
is the choice one of her that bare her."-Cantic. vi. 9.
(k) "Deliver my soul from the sword, and my darling from the power of the
dog."-Psalm xxii. 20.




TIE CORPUS JURIS CANONICI.                           215
sheep" from St. John's Gospel, and observing, by way, that if the Greeks
or any other persons denied that they were under the care of St. Peter's
successor, it was clear that they were not Christ's sheep, as there was
but one shepherd and one sheep-fold, the Pope proceeded with the following unqualified averment of the entire and unquestionable subjection of
all temporal power to the See of Rome:4"In hac ejusque potestate duos esse gladios, spiritualem videlicet et
temporalem, Evangelicis dietis instruimur.  Nam  dicentibus Apostolis,
-Ecce gladii du0o hic: in Ecclesid scilicet, cum Apostoli loquerentur, non
respondit Dominus nimis esse, sed satis. Certe, qui in potestate Petri
temporalem  gladium esse negat, male verbum  attendit *Domiini*321]
proferentis, Converte glcadiurn tuum  in va-ginanm.(1)  Uterque   321
ergb est in potestate Ecclesi-e, spiritualis scilicet gladius et materialis.
Sed is quidemr pro Ecclesia, ille verb ab Ecclesia exercendus. Ille Sacerdotis, is manu Regum et militum, sed ad nutum et patientiam Sacerdotis.
Oportet autem  gladium  esse sub gladio, et temporalem  auctoritatem
spirituali subjici potestate.  Nam cum dicat Apostolus: Non est potestas
nmisi a  Deo; quce autemn sunt, a Deo orclinatce sunt:(n) non autem ordinates essent, nisi gladius esset sub gladio, et tanquam inferior reduceretur
per alium in suprema...
" Porrb subesse Romano Pontifici omni humanoe creature declaramus,
dicimus, definimus et pronunciamus omninb esse de necessitate salutis.
Dat. Laterani, Pontificatus nostri Anno 8."(n)
CCCXII. As Benedict XI. had softened the c" Clericis Laicos" of
Boniface by the subsequent constitution Quod olinm, so the successor of
Benedict, Clement V., being still more devoted to France, hastened to
take off the edge of Unam sanctam by the Bull ileruit (1306,)(o) which
declared that Untamz  sanctabn did not subject France more to Rome
*than it had been subjected before; that no prejudice to royal
or national rights was intended, and that all the relations of [*322]
France to Rome should be considered c"in eodem  esse statu quo erant
ante definitionem prcefatam."
CCCXIII. In 1311, Clement V., in the Bull which begins cRomani
Princilpes,"(p) and which is inserted among the Clementine Constitutions in the Corpus Juris Canonici, declares, in the most express terms,
that the examination and approbation of the fitness of the Elector's
choice, as well as the coronation of the Emperor at Rome, belongs,"eidem  Ecclesise, qum  ia Greecis imperium  transtulit in Germanos`;"
(1) St. Matthew, xxvi.                           (mn) Romans, xiii.
(n) This Decretal, too, actually finds a modern champion in Phillips, who observes that " its object was to develop dogmatically, upon general principles, the
relation between Church and State" (pp. 25-6 ): that it contained nothing new,
but a recapitulation of maxims enunciated by former Popes and Fathers of the
Church (256-259); that it contained merely a logical conclusion from undoubted
premises (259-60.) —B. iii. Kirchenrecht. Walters, however, mentions it with sorrow and shame.-Kirchenrecht, s. 41. Packman considers it as dogmatical only,
but does not defend it. —Kirchenrecht, i. 169. n.
(o) Extrav,. Comm. 1. 5, t. 7, c. ii. "'Meruit clarissimi Filii nostri Philippi,
Regis Francorum illustris, sincerce affectionis ad nos et Ecclesiam Romanam integrilas," &c.-Enough to have roused Boniface from the grave.
(p) Clement. 1. ii. t. ix. De Jurejurando.




216   PHILLIMORE ON INTERNATIONAL LAW.
also, that the oath taken by the Emperor was not merely one which
bound him to protect and defend the Pope, as the Emperor Henry VII.
at this time contended, and which contention,,osi sub dissimulatione
pertranseat, vel silentio pallietur, posset in magnum et evidens prmjudicium Rom. Ecclesive redundare;" and therefore the Pope decreed, in
plain terms, that the oath was one of feudal allegiance and feudal vassalage, like that of the King of Naples, "cum  ipsi Reges ejusdem
Ecolesire specialissimi filii, sibi juramento fidelitatis, et alias multipliciter essent adstricti," and that by it he was bound to extirpate all
heretics and schismatics, never to enter into any relation or confederation
with any one "ccommunionem Catholiem fidei non habente, aut cum
aliquo alio praefatm Ecclesiae inimico, vel rebelli, seu eidem manifestb
suspecto;" and to maintain the whole property and jurisdiction of the
Roman Church intact and secure, and to abstain from injuring any
vassal belonging to it.
CCCXIV. The same Pope followed up this decree by another, beginning ctPastoralis,"(q) in which, annulling the procedure-a very unjust
one, it must be admitted-of Henry against Robert, King of Naples, his
Holiness expresses his unlimited and illimitable authority over all king[*323] doms as follows:-_ Nos tam ex superioritate, quam ad *imperium
non est dubium nos habere, quam ex potestate, in qua, (vacante
imperio,) imperatori succedimus: et nihilominus ex illius plenitudine
potestatis, quam  Christus, rex regnum  et dominus dominantium  nobis,
licet immeritis, in' persona beati Petri concessit, sententiam et processus
omnes predictos, et quidquid ex eis secutum est, vel occasione-ipsorum,
de fratrum nostrorum  consilio declaramus fuisse ac esse omnino irritos
et inanes, nullumque debere aut debuisse sortiri effectum."
CCCXV. After Henry's death, which happened shortly afterwards,
John XXII., the successor of Clement, issued (1316), a Bull beginning
"Si Fratrum,"(r) and duly inserted in the Extravagantes of the Corpus
Juris Canonici, wherein he asserted respecting the government of the
empire, e"cum in illo ad secularem judicem nequeat haberi recursus, ad
summum Pontificem, cui in persona beati Petri terreni simul et ccelestis
Imperii jura Deus ipse commisit;" therefore all persons pretending to
any authority not conferred by the Pope were excommunicated, all their
acts and contracts voided, and all who obeyed them were subjected to
the like punishment.
CCCXVI. The Extravagant De Consuetudine(s) of John XXII., at
Avignon, in A. D. 1322, appears to crown the pillar of Papal pretensions,
while it bears directly upon a most important point of International Law.
It begins by the assertion that the Pope is placed by God over all kingdoms and nations; it represents that the Pope cannot personally perambulate all countries, therefore he must have lieutenants or legates to
supply his place and exercise his power over the people committed to
him; that some nations have said that legates could not be sent to them
against their will, that they have a customary right to reject them; that
(q) Clement. 1. ii. t. xi. c. 2. De Sententia et re judicata.
(r) Extravag. Joan XXII. t. v. Ne sede vacante aliquid innovetur.
(s) Extravag. Comm. 1. i. t. i. c. 1.




THE  CORPUS JURIS CANONICI.                       217
there is, however, no such right, but that the attempt to exercise it draws
down immediate excommunication upon the whole country.
*The words of the Bull should be carefully studied.
"c Super gentes et regna Romanus Pontifex i Domino constitu- [*324]
tus," &C.
" Qui verb de cmtero super precldictis dictos Legatos, aut etiam Nuntios,
quos ad quascunque partes pro causis quibuslibet sedes ipsa transmiserit,
pruesumpserint impedire, ipso facto sententiam excommunicationis incurrant.  Regna, terrae et loca qumelibet subjecta eisdem, tamdiu sint eo
ipso Ecclesiastico supposita interdicto, quamdiu in hujusmodi contumacia
duxerint persistendum.  Non obstantibus quibuslibet indulgentiis, ant
privilegiis, Imperatoribus ac IRegibus, seu quibuscunque modis, tenoribus
et formis ia sede ipsa concessis, quae contra priemissa nullis volumus suffragari."
CCCXVII. The authority shown from the foregoing extracts of the
Canon Law, to have been claimed and exercised by the Popes, has long
ago been pronounced by the voice of International and Public Law to be
altogether irreconcileable with the peace and independence of nations.
Nevertheless it is important, and especially at the present time, to
show what claims have been made, what authority has been exercised
by the Roman See.  For this authority has never been distinctly repudiated by the successors of the Popes who actually exercised it; it still
forms a part of the body of Canon Law, taught as the jurisprudence of
the Roman Church, however rejected by national churches of that communion.  Two hundred years and more after these edicts were promulgated, able advocates were found to defend, under the sanction and
patronage of the Roman See, the literal meaning and the full extent of
their provisions.
In the year 1729, the Neapolitan Government interfered, by royal
edict, to prevent a service being celebrated in honour of Gregory VII.
(Hildebrand), in which his deposition of the Emperor Henry IV. was
commemorated and extolled as a lawful exercise of Papal power.(t) At
this day, even in *France, men of no mean ability are found to [*325
maintain that these decrees admit of a merely spiritual and a ['325
perfectly defensible interpretation.  Some writers are found to admit
that they can only receive a temporal interpretation, but that they are,
nevertheless, perfectly justifiabl.e.(tu)
When the great Portuguese canonist, Barbosa, in the early part of the
(t) Vide post.
(u) "When, then, we find a sovereign Pontiff judging, condemning, and deposing a secular Prince, releasing his subjects from their obligation to obey him, and
authorizing them to choose them another King, we may regret the necessity for
such extreme measures on the part of the Pontiff, but we see in them only the
bold and decided exercise of the legitimate authority of the spiritual power over
the temporal; and instead of blushing for the chief of our religion, or joining our
voice to swell the clamour against him, we thank him with our whole heart for
his fidelity to Christ., and we give him the highest honour that we can give to a
true servant of God and benefactor of mankind. It is not the sainted Hildebrand,
nor the much-wronged Boniface, that we feel deserves our apology or our indignation, but Henry of Germany and Philip the Fair of France."-Telegraph Newspaper, October, 1853.
NOVEMBER, 1855. —15




*218   PHILLIMORE ON INTERNATIONAL LAW.
seventeenth century, endeavoured to show that the Unam sanctam, &c.,
had only a spiritual signification, he was obliged to confess that he was
combating the contrary opinion of almost every expositor of the Canon
Law.(x)
26  *Nor, indeed, is the controversy of much consequence, for the
same author admits that though the Pope has no direct power in
temporal matters, yet he has it' casualiter et indirecte' in ordine ad
spiritualia quoties scilicet ad spirituale forum fuerit necessaria;" and he
consistently maintains(y) that the deposition of the German Emperors,
the transference of their kingdoms to others, the abrogation of civil laws
in any way adverse to spiritual good, the donation of infidel countries to
Portugal and Spain, were perfectly legitimate acts of Papal supremacy.(z)
It is much in the same spirit that modern Ultramontane writers(a) write
and act at the present time.  These decretals, it must be remembered,
were enacted by an authority which a large and a most devoted portion
of Romnanists hold to be infallible.  They are taught in books, ancient,
medimval and modern, dedicated to Popes, and published under Papal
sanction.  They are defended at this day by various learned writers and
commentators as having a spiritual character only; by others as being a
proper exertion of authority at the time. The question arises, have they
ever been repudiated by the authority which enacted them? —are the
teachers of Canon Law at Rome ordered to declare that they are obsolete,
and that they were or are contrary to the rights of nations?-are there
any editions published by authority, in which these passages are omitted,
explained, or censured? —have they like the bad laws of civil states, been
repealed?  Till these questions can be answered in the affirmative, the
Governors of States, who see the present state of revived Ultramontanism,
must superintend with vigilance and jealousy the promulgation of the
Canon Law in their dominions.
2  *It has been also said, both by the infidel philosopher and by
[327] the Ultramontane divine,(b) that this authority, at the time of its
(x) " Nec etiam nos deterrent pleraque jura, quce juxta omnium fere' Doctorum
mente7n, summo Pontifici tribuere videntur secular'em potestatem ut in cap. i. distiactio 22, et in Extravag. Unam sanctam," &c.-De Off. et Pot. Episcopi, p. 110,
t. iii. c. 2.
"' Il n'est pas vrai que les Papes aient jamais pretendu la toute-puissance temporelle."-De Maistre, Du Pape, c. viii. Walter, however, says, with praiseworthy love
of truth, " Geistlose Schriftsteller, wie sie auch andere Hofe erzeugen, grindeten,
gefillig gegen die herrschenden Umstinde, Forderungen und Systeme auf das, was
aus freier Huldigung hervorgegangen, nur durch Weisheit und MAssigung erhalten
werden konnte. Die Papste erlangten vomi Kaiser einen wahren Lehnseid, von der
weltlichen Gewalt die unbedingte Unterwrfirigkeit unter die Geistliche. Da wandten
sich die Fiirsten und    ker von ihnen ab," u. s. w.-Kirchenrecht, Abschn. 41.
Mr. Bowyer also admits that the Decretals, as well as the other works composing the Corpus Jturis Canonici, contain passages, decisious, and principles, tending
to establish the authority of the Popes over the temporal civil rights of Kings and
States-a doctrine contrary to the public law of Europe, and, indeed not maintained by the Roman Church, though it has been asserted by individual doctors."
-13th Reading, p. 164.
(y) De Off. et pot. Episcopi, ib. p. 111.
(z) C. 2, passim. De primatu Ecclesice Romance super omnes, et de Suprema sumrmi
Pontif. potestate in universum orbem. The work is dedicated to Urban VIII. (1623.)
(a) Packmann, 133.
(b) De Maistre, p. 249, citing Voltaire.




TUtE CORPUS JURIS CANONICI.                         219
promulgation and exercise, was eminently beneficial to the world; that
the spectacle of princes and nations submitting their quarrels to the arbitration of the chief minister of the Gospel of Peace, was one which the
bloody wars of later times have given Christendom good reason to regret;
that a perfect tribunal of International Law was established in the Vatican,
and the only common judge, which independent nations could acknowledge, was presented in the person of the Pope. Nor can it be denied
that this authority often protected the oppressed, humbled the oppressor,
stayed the shedding of blood, cherished peace, and prevented war, at a
period when the barbarous manners and savage passions of men would
have yielded to no other influence.(c)  it It is impossible," says a very
learned and accomplished dignitary of the English Church, in a recent
publication, "d to conceive what had been the confusion, the lawlessness,(d)
the chaotic state of the middle ages without the mediaeval Papacy."
Nevertheless, experience and history demonstrate that this authority was
one which no mortal hands were made to wield. Had the practice corresponded with the theory of this great tribunal, it is conceivable that
"the foundation of its manifestly beneficial authority might never [*328
have been scrutinized.  But for such a tribunal, the most perfect [328
disinterestedness, the most entire freedom from the suspicion of ambition,
personal and pontifical, the most unspotted character, the most innocent
unworldly life, the most ardent love of justice, the most fearless disregard of persons, were indispensably and perpetually requisite.  It was
not enough that some of these qualities should be possessed, or that some
Pontiffs should possess them, there must be a security that none but
those who possessed them should ever be placed upon the judgment seat
of the world. But an Italian Sovereign, mixed up with the quarrels of
his neighbours, seeking the aggrandizement of his own territories, relying for his claim upon forged credentials, founding his authority upon
false decretals, at one time the instrument of the ambition of Germany,
at another of France, residing in Avignon, contending with a rival Pope
at Rome who possessed apparently  equal credentials, fighting like
Julius II., infamous beyond expression, like Borgia, worldly and luxurious, like Leo, and in much later times refusing to recognize, as in
the case of Prussia and Spain, the Sovereigns chosen by the constitutional law of independent kingdoms, such a Sovereign was palpably unfit
to be the unappellable dispenser of International Law. It became evident
that the unquestionable virtues, the sanctity of morals, the great abilities
of many Pontiffs, could not cure the inherent defects in the tribunal
itself.
(c) " Ils exercerent une dictature salutaire, qui laissa respirer les peoples, et pr6para la renaissance de l'ordre social. Mais les exemples qui seraient tirds d'un etat
de choses essentiellement transitoire, ne sauraient lgitimer des pretentions inconciliables avec le but et la nature des soci6tes civiles, le v6ritable esprit de l'Eglise et
sa mission divine." —Discours, &c. par F. Portalis, Introd. vi. Paris, 1845. De
Maistre, 203-4, 265.
(d) Milman's History of Latin Christianity, vol. i. p. 430; "and (he adds) of
the mediaeval Papacy, the real father is Gregory the Great."  But this is perhaps,
rather too broadly stated; at least, it should be remembered that he strongly protested against the virtual absorption of all the Episcopates into one. His Papacy
extended from A. D. 590 to 604.




220   PHILLIMORE ON INTERNATIONAL LAW.
Then came the time when the credentials of this superhuman authority
were demanded and investigated. A few isolated, if not distorted, texts
of Scripture were not sufficient to countervail the silence, much less the
contrary practice of primitive antiquity; and the modern theory of
development, so much used in our days, for different purposes, both by
the Infidel and the Ultramontanist, was not yet developed.
[*329] t CCCXVIII. That there should be some authoritative repudia*]329] tion *of the portions of the Canon Law which we have been considering, appears the more necessary, when it is remembered, that as
late as the year 1773, some of the most extravagant claims of the Papacy
were formally promulgated in the Bull, which is entitled In Coena Domini,
and is also known as Pastoralis, and which at one time greatly disturbed
the peace of Europe.
CCCXIX. The Bull(e) called In Coenz Domini was published at Rome
every Holy Thursday.
It is a maxim of Ultramontane canonists, at variance with the general
doctrine of the Civil and Canon Law, that what is published at Rome is
published all over the world, consequently ignorantia jutris neminegn
excusat.
The Ultramontane canonists say that the Bull is so ancient that its
origin cannot be discovered.  It appears that there is a copy in the Vatican of the Bull of Gregory XI. (A. D. 1370,) and the date of this famous
instrument cannot be traced further back.  The Bull does not relate to
dogmas, but to discipline, and therefore even some Ultramontane canonists admit that it does not bind the conscience in countries where it has
not been received. If so, it would bind only the consciences of the subjects of the Pope, for it appears to have been refused admittance by the
Governments of every independent State.
[*330]   *In France,(f) M. Pithou made its rejection the subject of a
[*330] particular article(g) of the liberties of the Gallican Church. But
in the province of Roussillon the Bull appears to have been formally
published, till the 21st March, 1763, when by an arre't dut conseilsouverain,
it was suppressed, and prohibited for the future.  Indeed the Parliament
of France were so stout in their opposition to the introduction of this
Bull, that on an occasion, when their suspicions were aroused that certain persons intended to introduce it into the kingdom, they confiscated
the temporalities of certain bishops, and treated as State criminals those
who obeyed them: for the French thought that though the Bull was
(e) Fleury, Hist. Eccles. t. xxxiv. 1, 169, s. 22.
D. de Maillane, i. pp. 376-7. This author, writing in 1770, mentions the Bull
as being annually published-" qu'on publie aujourd'hui." Leber, Pieces relatives
i l'Histoire de France, t. iii. p. 302. Van Espen, Tract. de Promulg. St. Eccles.
par. 3, cap. 2, 2. Reiffenstuel, Jus Canon. Univ. v. c. 5. Giannone, Ist. di Napoll, 1. 33, cc. 3, 4, 5, 6.
Thuani, Historiarum sui Temporis (ed. Londini, 1733.) T. ii. 673-4. Bull In
Ccena Domini, promulgated by Pius V.; forbidden by Philip, evaded by Venice.
T. iii. 816. Promulgated by certain French Bishops, forbidden by Parliament
of Paris.
(f) Papers laid before Parliament (vide post,) 1816-17, pp. 178-9. Requisition
of the Attorney-General Seguier.
(g) Art. 17.




THtE  CORP US JURIS CANONICI.                      221
injurious to all Sovereigns, it was especially detrimental to the prerogatives of the French crown and the liberties of the French Church.
CCCXX. The preamble of this famous Bull(h) opens with the obligation of the Roman Pontiff to preserve the Catholic faith in its integrity.
The provisions which follow are the following:1. It excommunicates and anathematises heretics of whatever sect,
and their abettors, as well as those who read and print their books, and,
lastly, schismatics.
2. Also all persons and universities which appeal to a future council.
3. *Also pirates, corsairs, and maritime freebooters.
4. Also those who seize the chattels of shipwrecked parties in [33
whatever region.
These two last provisions are curiously illustrative of the Pope's claim
to be supreme International Judge, which has been already commented
upon.(i)
5. Also those who impose new tolls or augment old ones, without the
license of the Pope.
6. Also those who forge Apostolic letters and petitions, as well as
those who utter forged letters.
7. Also those who supply the Saracens or Turks, or other enemies of
the Christian name, with arms or aid.(k)
A  provision which would operate very inconveniently for Roman
Catholic, as well as Heretic States at the present moment,(l) unless,
indeed, the fact of the Turks being aided against the schismatic might
be considered a casus omissus in the Bull.
8. Also those who obstruct the conveyance of victuals and other supplies for the use of the Curia Romana.
9. Also those who persecute persons coming to the Roman See, or
sojourning at the Roman Court.
10. Also those who in any way molest pilgrims coming to Rome for
purposes of devotion.
11. Also those who injure the Cardinals of the Holy Roman Church,
or other ecclesiastical dignitaries.
12. Also those who injure persons having recourse to the Roman
Court in matters of business, and also pleaders of causes.
13. Also those who appeal to the Secular Power against the execution
of the Letter Apostolic.
14. Also those who remove causes touching spiritual matters from the
(h) The Bull In Ccena Domini, translated, &c. Papal Diplomacy and the Bull
In Ccena Domini, &c. (Hatchard, London, 1848.)
A Letter to Mr. Plumptre on the Bull In Ccena Domini, by the Earl of Arundel
and Surrey. (Dolman, London, 1848.)
A Letter to the Earl of Arundel and Surrey on the Bull In Ccena Domini.
(HIatchard, London, 1848.)
Report from the Select Committee (1817,) p. 123, &c.
In the pamphlet above referred to ("the Bull In Ccena Domini") will be found
cited, as authorities for the text of the Bull, the following works:-Bullarium Romanum, op. Cherubini, viii. fol. Luxembourgh, 1727. Id. op. Cocquelines, xiv.
Romce, 1739-44. Bullarium S. D. N. Benedicti Papre, xiv. t. iv. Venetiis, 1778.
Bullarii Rom. continuatio, viii. 1835-44.
(i) Vide ante, vol. i. p. 82.    (I) lb.         (1) September, 1854.




222   PHILLIMORE ON INTERNATIONAL LAW.
delegates of the Apostolic See, and other *ecclesiastical judges)
[*332] or who obstruct the proceedings of the said judges.
15. Also secular judges, who bring before their tribunals ecclesiastical persons, or who publish or execute ordinances and pragmatics prejudicial to the ecclesiastical liberty.
16. Also those who obstruct prelates and ecclesiastical judges in the
exercise of their jurisdiction; those who have recourse to the secular as
a protection against the ecclesiastical courts, and those who aid and abet
them.
17. Also those who usurp and sequester the revenues of properties
belonging to the Holy See and to the Church.
18. Also those who exact contributions from ecclesiastical persons and
goods, and their aiders and abettors.
19. Also secular judges who interfere in criminal causes against
ecclesiastical persons.
20. Also those who occupy the city of Rome, and other cities, provinces, and places belonging to the Roman Church, and who usurp her
jurisdiction.
In this category are included, among other territories, the kingdom of
Sicily, the islandseof Sardinia and Corsica.
21. Decrees that this Bull shall continue in force until another similar process be issued by the Pope for the time being, and that no one
shall obtain absolution from the sentences of this Bull from any other
than the Pope, unless he be in articulo mortis, and then only after
surety given for obedience to the mandates of the Church, and for satisfaction to be made.
Another article provides that the affixing of this Bull to the door of
St. Peter's and St. John of Lateran, shall have the effect of a personal
service upon everybody.
CCCXXI. There has been much dispute whether this Bull be now in
force, or whether it requires an annual publication for that purpose.
The English Roman Catholics maintain that it is obsolete,(m) and
*3331 requires a promulgation to revive it;'though those provisions
I[    ] in it which were to be found in other Bulls, of which, indeed, it
is a compilation, are still binding.
The language of canonists, and especially of Reiffenstuel,(n) would
seem to warrant a contrary conclusion.  Practically speaking, it is, no
doubt, dormant for the present. It will be presently seen what a general
resistance from all independent States the last attempt to promulgate it
excited.
(mn) Letter of Lord Arundel, p. 4.
(n) Letter of Lord Arundel, p. 6.
----- ----




PAPAL  RELATIONS.                         223
*CHIAPTER  V.                        [*334]
THE INTERNATIONAL STATUS OF THE PAPACY BETWEEN THE PERIOD
OF THE PROMULGATION OF THE CANON LAW AND THE COUNCIL OF
TRENT.
CCCXXII. THUS, at the close of the thirteenth century, the Papal
power had reached its utmost height. It had carried to the extremest
practical verge the logical consequences of the principles laid down in
the Bulls which have been mentioned.(a)
The kingdoms of the earth were at the disposal and under the
supremacy of the servant of the servants of God.
About the beginning of the fourteenth century, the flagrant abuse of
Pontifical authority began to cause its rapidly accelerating downfall.(b)
Philip IV. of France burnt the Bull of Boniface VIII. which invaded
the Regalia of the French crown,(c) defied his *excommunication,
and appealed to a General Council.(d) The contumacy and ['335]
cruelty of Clement VI. towards the Emperor Louis of Bavaria, roused
the Princes and States of the Empire, and produced the celebrated decree
of the Diet of Frankfort, A. D. 1338.(e) In this decree, which became a,
Fundamental Law of the Empire, it was declared that the Imperial Dignity was derived from God alone, and that the Emperor, once chosen by
a plurality of the suffrage of electors, needed no confirmation or coronation of the Pope, and that to maintain the contrary should be considered
a crime of high treason.(f)
CCCXXIII. Another event greatly injured the Papal authority. Clement V., who had been Archbishop of Bordeaux, was crowned at Lyons,
and took up his abode at Avignon(g) A. D. 1305, and there his successors continued till A. D. 1378.(h)
The Pope was accused, not without reason, after abetting the persecution of the Templars, of being the tool of the French Kings.
(a) Discours, Rapports, et Travaux in6dits sur le Concordat de 1801, &c., par
J. E. M. Portalis, publies et precedes d'une Introduction, par le Vicomte Fraddric
Portalis. Paris: 1845.
(b) Shakspeare has admirably painted the spirit of these times in the answer
to Pandulph, which he puts into the mouth of the Dauphin Lewis:"Your Grace shall pardon me. I will not back;
I am too high-born to bepropertied,
To be a secondary at control,
Or useful serving-man, and instrument
To any sovereign State throughout the world," &c.
King John, act v. sc. 2.
(c) A. D. 1302. 1 Koch, 224.              (d) 1 Koch, 225.
(e) Raynaldus, A. D. 1346, n. 7.
(f) Leibnitz, Cod. Juris. Gent. Dipl., part i. p. 149.
(g) See the instrument of sale by which Joanna, Queen of Sicily, transferred
Avignon to Clement VI., A. D. 1358. 1 Schmauss, C. J. A. 50.
(h) In 1376, Gregory XI. returned to Rome. Then, as the Italians said, the
seventy years of the Babylonish Captivity ceased.-3 Phillipps, 331.




224   PHILLIMORE ON INTERNATIONAL LAW.
If the State during the preceding century had dwelt in the house of
the Roman Church, the host and guest had certainly changed places.(i)
Towards the end of the fourteenth century, Schism tore the Papacy in
pieces.  Christendom  was divided between Popes contemporaneously
chosen at Avign'on and at Rome; at one time a third Pope was chosen at
[*336] Pisa,(k) so that three *Pontiffs claimed at one and the same time
the undivided spiritual allegiance of Christendom.  The Avignon and Roman Schism lasted from 1398 to A. D. 1417.
The Ecclesiastical Council of Constance (A. D. 1414), deposed the
Popes of Avignon, and procured the resignation of the Popes of Rome,
and at its fifth session declared the superiority of the authority of an
Universal Council to the Pope; nevertheless, it was thought indecent to
take further proceedings while no visible chief of the Ecclesiastical State
existed. At Colonna, Marten V. was elected, and prepared his own
scheme of reform; but this was not agreeable to the clergy of England,
France, Germany, Italy, and Spain, who were assembled at Constance.
Tle Council of Basle was therefore convened, at which Annates and
various Papal exactions were abolished, and the liberty of appeals to
Rome greatly circumscribed.(l)  Eugenius IV., the successor of Marten,
dissolved the Council twice, once under the allegation of opening a communication with the Greek Church.(m)  Another Schism  happened,
another Pope (Felix V.) was chosen by the prelates who remained at
Basle.  He subsequently resigned, and at last, about A. D. 1449, the
Council discontinued its sittings, and the Popes since this period have
been resident, except during the captivity in France of Pius VI. and
VII., at Rome.(n)
CCCXXIV. The question now arises, how were the International relations of independent States with the Roman See affected by these great
and significant events?
*The time had fully arrived when neither-to use the expres[*337] sion of modern canonists-the hierocratic nor the territorial
system could exclusively prevail, when the Church was to be considered
as standing by the side, as it were, of the State, subject to it in all
temporal matters whatever, but not incorporated in the State, as in the
days of Constantine, Justinian, and Charlemagne, or altogether absorbing
the State, as in the days of the Gregories and Innocents.  It is no
longer necessary, for the explication of this difficult subject, to record
minutely the changes of dynasties and the vicissitudes of national fortunes.
The age of Pragmatics, of Pragmatic Sanctions, and of Concordats
(i) The history of the Papal residence at Avignon was not lost upon Napoleon.
He was well aware of the advantages which the Pope's residence in France gave
to its Monarch, and had at one time determined to revive the French Popedom.
Vide post.
(k) A. D. 1409.
(1) Bossuet, Declaratio Cleri Gallicani, 1. v. cc. 4, 5. 1 Koch, 230.
(mn) A temporary act of union of the Roman and Greek Churches appears to
have been signed at Florence, A. D. 1439, but it was speedily dissolved.-Ib. 231.
(n) The Councils of Constance and Basle were called Reformatory, and modern
writers, who are vehement upholders of the Papal pretensions, admit that the
views of the Popes, and especially the flagrant abuse of spiritual censures, called
aloud for reformation.-Phillipps, Kirchenrecht, iii. p. 325.




PAPAL  RELATIONS.                           225
had begun; the very meaning of the latter term, it must be observed,
bears testimony too the historical facts stated above; we learn from it
that the relation subsisting between the spiritual chief at Rome and the
Government of other nations, had become that of an alliance regulated
by treaty between two independent States.  Nevertheless, there is this
distinction to be borne in mind, viz., that a third party, the National
Church, and especially the Clergy, are parties interested (indeed, principally interested,) as well as the Government and the Roman See, in
whose names a treaty is contracted.(o)
The Concordata between the Roman See and Independent States
proceed upon two presumptions:First, —That there are certain rights and privileges inherent in Sovereigns with respect to the Church established in their realms.
Secondly,-That there is in independent kingdoms, whatever relations
it may bear to Rome as the centre of unity, a national Church-the two
principles which the Pragmatic Sanctions had already on the part of the
nation declared to be essential to the independence of the State.
CCCXXV. The International relations of Rome with other
*nations cannot be understood without an examination of these [    ]338
instruments;(p) from  them  not only the expression of Pontifical and
National will may be best collected, but usage, the great expounder of
International Law may be most clearly ascertained.
As the era of the Reformation, and the Treaty of Vienna (1815,)
have greatly affected this branch of the Law, it will be convenient to
divide the consideration of this subject into three epochs:1. The period preceding the Reformation.
2. The period intervening between it and the Treaty of Vienna.
3. The period subsequent to this Treaty.
CCCXXVI. 1. As to the period before the Reformation. The history
of the intercourse of the secular Government and of the national Church
of France with the Pope, is perhaps that which best illustrates the
International Relations between Independent States and Rome during
this period. Into this discussion the most remarkable circumstances of
these peculiar relations in the history of other nations, during the same
period, may be easily interwoven; though, as to the period which has
elapsed since the Reformation, they will require a separate and more
specific narration.
CCCXXVII. A Pragmatic(q) is an imperial constitution, framed,
(o) De Pradt, i. 280.
(p) Eichhorn follows Sauter in pronouncing his opinion that inasmuch as all
concordata are founded upon the principle of the weal of the Church, they are
only binding so long as they attain that end, and cannot therefore be ranked either
among private or international contracts.-Eichhorn, Kirchenrecht, I., B. iii.
Absch. i. c. 5, pp. 578-9. Sauter, Fundam. Jur. Eccl. Cathol. p. 1, ss. 626-4.
(q) " Pragmatica s. Pragmaticum, rescriptum principis solemne proesertim illud
quod res publicas administrandas aut negotia collegii alicujus tractanda respiciebat."-Dirksen, Manuale Lat. Fontium Jur. Civ. Romanorum.
"Parmi nous l'usage a donne ce nomr aux grandes ordonnances qui concernent
les grandes affaires del'Eglise, on de l'Etat, oun, au moins, les affaires de quelques
communautes."-Durande De Maillane, Dict. du Jur. Can., voce PRAGMATIQUE SANCTION. Ducange, Gloss., voce PRAGMA. rIpyvcla is, of course, its origin.




226   PHILLIMORE ON INTERNATIONAL LAW.
after inquiry and deliberation, upon a matter of *State importance, with the consent of the chiefs and the approbation of the
Sovereign of the country(r).
The Pragmatic, which is of the earliest International importance with
reference to the present branch of our subject, is that of Saint Louis.
It was promulgated in 1268, by that Monarch of France, whom  the
Church of Rome has especially delighted to honour.  It is extremely
simple, short, and pertinent, and a most valuable historical monument
upon this branch of International Law.
CCCXXVIII. "e Ludovicus, Dei Gratia Francorum PRex, ad perpetuam
rei memoriam. Pro salubri et tranquillo statu Ecclesile regni nostri,
neenon pro divini cultfis augmento, et Christi fidelium animarum salute,
utque gratiam et auxilium  omnipotentis Dei (cujus solius ditioni ac protectioni regnum nostrum semper subjectum extitit, et nunc esse volumus,)
consequi valeamus, quee sequuntur hoc dicto consultissimo, in perpetuum
valituro, statuimus et ordinamus.
" I. Prim out Ecclesiarum regni nostri prselati, patroni, et beneficiorum
collatores ordinarii jus suum plenarium habeaut, et unicuique sua juridictio servetur.
" II. Item, Ecclesise cathedrales, et alise regni nostri liberas electiones,
et earum effectum integraliter habeant.
" III. Item simonie crimen pestiferum Ecclesiam labefactans a regno
nostro penitus eliminandum volumus et jubemus.
" IV. Item promotiones, collationes, provisiones et dispositiones prTelaturarum, dignitatum, et aliorum quorumque beneficiorum et officiorum
ecclesiasticorum  regni nostri, secundum dispositionem, ordinationem, et
determinationem Juris Communis, sacrorum  Conciliorum Ecclesise Dei,
[*340] atque *institutorum antiquorum sanctorum patrum fieri volumus
et ordinamus.
"V.  Item  exactiones et onera gravissima pecuniarumn per curiam
Romanam  Ecclesire regui nostri imposita, quibus regnum  nostrum
miserabiliter depauperatum extitit, sive etiam imponendas, vel imponenda,
levari aut colligi nullatenus volumus, nisi duntaxat pro rationabili, pia
et urgentissima causg, vel inevitabili necessitate, ac de spontaneo  et
expresso consensu nostro et ipsius Ecclesie regni nostri.
" VI. Item  libertates, franchisias, immunitates, prserogativas, jura et
privilegia per inclytto  recordationis  Francorum  reges prsedecessores
nostros, et successive per nos, Ecclesiis, monasteriis, atque locis piis
religiosis, nec non personis ecclesiasticis regni nostri concessas et concessa laudamus, approbamus et confirmamus per prsesentes.," Datum Parisiis, anno Domini 1258, mense Martio."(s)
Here, then, we have a French King  and a French Church, with
rights and privileges which have been grievously injured, and which are
to be for the future protected against the invasion of the Curia Romnana.
These articles are the MagnaC Charta of the liberties of the Gallican Church,
(r) The Roman Emperors published Pragmatic Rescripts in the time of St.
Augustine, as did the first and second races of French monarchs.-De Pradt, i.
198.
(s) Lequeux, Manuale Compendium Juris Canonici, t. iv. pp. 432-3.




PAPAL RELATIONS.                         227
Bossuet said that in them were contained the celebrated four propositions,
which will presently be mentioned.
CCCXXIX. The next national declaration of importance, on behalf
of the State and Church of France, was made after the close of the
great Schism of the Western Church, and after the Council of Constance
and Basle had endeavoured to apply remedies to the frightful disasters
of the Ecclesiastical State. The two Estates were assembled at Bourges
by Charles VII., and unanimously accepted, with certain modifications,
the decrees of the Council of Basle.(t)  The resolutions of the French
Council were made by royal ordonnance *part of the law of the  341
nation, and duly registered in the Parliament, 13th July, 1439. [41
Pope Eugenius protested against them  in vain. Pius II. renewed the
complaint after the death of Charles VII. (1461.) Louis XI. yielded
to his urgent solicitations, and issued Letters-Patent for its abolition;
but the Parliament refused to register them, and made one of those
celebrated remonstrances, which will always keep their place in the
history of France.
Paul II. pressed Louis XI. for stronger measures. The University
of Paris declared to the Legate that it would appeal to a future Council
against any invasion of the Pragmatic. Louis, however,(u) was bent
upon making peace with the Pope, and made a Treaty, in 1724, with
Sextus IV., which reduced the Pragmatic, as to beneficiary matters,
to the same position as the German Concordata.  But the Parliament
refused to register the Treaty.
Louis XI. died in 1483; his successor, Charles VIII., plunged into
Italian wars and politics, andwas little disposed to aid the Pope. This
Monarch assembled the three Estates at Tours. Innocent VIII. and
Alexander VI. attacked Charles in vain, and after his death (1497),
they found in Louis XII. a yet more obstinate adversary. Julius II.
put France under an interdict, and excommunicated the King; but Louis
XII., fortified by the universal sympathy of his subjects and the alliance
of the Emperor Maximilian, ordained that the Pragmatic of Bourges
should be observed throughout France, and convened, in 1499, his
clergy at Tours. Before this assembly he laid the dispute between himself and the Pope, and sought their advice upon certain questions(x)
proposed to them.  The French clergy agreed that their King had full
power to protect his subjects from all oppression, that it was lawful for
him to deprive the Pope of fortified places *used as means of [342
annoyance to his neighbours, to withhold obedience, so far as [342
was necessary to his safety, from the Pope, and during the interval of
suspended obedience to conform to the ancient discipline of the Church.
That what he did for himself he might also do on behalf of his allies;
that the Papal excommunications issued upon temporal matters, and
without legal form, were altogether null. The chief of the clergy requested permission to lay these resolutions before the Pope, and to call
(t) Durande de Maillane, ubi supra. De Pradt, i. c. ix.
(u) See De Pradt, i. p. 232, &c., for the motives of Louis: among them was the
hope of obtaining Naples.
(x) They appear to have been eight in number.




228    PHILLIMORE ON INTERNATIONAL LAW.
upon him to put an end to a scandalous war, and convene a general
Council. And they besought the King, if the Pope should fail to heed
their request, to join with the Emperor and those cardinals and foreign
ecclesiastical dignitaries who stood aloof from Rome, to adopt the precedents of Pisa, Basle, and Constance, and convene a general Council
without the Pope.  Finally, they determined to meet again at Lyons,
and await the reply of the Roman See, and in the meanwhile they forbad
all communication with Rome, especially in the shape of pecuniary contributions.  Maximilian promised the hearty concurrence of himself and
his clergy at the forthcoming Council of Lyons.(y)
CCCXXX. In the midst of these significant preparations, Louis XII.
died.  In the year 1514, France had a new Sovereign, and, the fruit of
his'exigencies, a new Ecclesiastical Law.
Francis I. found himself in a very embarrassing position.(z)  Eager
for Italian conquests, he had already vanquished some of his opponents,
when he received at Pavia the intelligence that Leo X. (1516) had issued
a peremptory citation against the Crown, the Church, the Parliament,
and the Universities of France, to show cause why the Pragmatic should
[*343] not be abolished.  Its condemnation was certain before the trial.
L *Rash, ill-judging, ill-advised, scared by the probable consequences of an excommunication and interdict by Pope and Council, and
by the league of enemies stirred up against him by the Pope, Francis
repaired to Bologna, and there, with the manner and in the language of
humiliation, signed a Concordat with Leo, abrogating the Pragmatic
(1516,) and undertook to procure its registration in Parliament.(a) Long
and sturdily did the Parliament refuse to register a Treaty, which they
openly and courageously avowed to be contrary to the liberties of the
kingdom and the Church.(b)
The Crown had entreated, the Chancellor addressed them in vain,
when the Grand Chamberlain, De la Tremouille, spoke to them(c) in a
style which overcame the obstacle; he assured them, inter alia, that the
honour of the Crown was at stake, and added the most violent threats of
compulsory registration of the Concordat. The Parliament finally having
rejected the Papal Bulls against the Pragmatic, registered the Concordat,
protesting against the violence used against them, and appealing to a
better-advised Pope and a future General Council.
(y) Maximilian, it should seem, like one of his predecessors, had some idea of
making himself Pope, and the Papacy hereditary. —  De Pradt, 238-9, n.
(z) Observations sur le Concordat fait entre LBon X. et Frangois Premier, par
M. Michel du Peray. Paris: 1740.
(a) " Tempori utique inserviendum esse duximus, ac rebus nostris periclitantibus
pro re nat/a consulendum imminentiaque detriments minore ac leviore dispendio
dirimenda...... obnixis precibus ab eo (Leoni X.) contendimus ut si
Pragmaticae nomen omnino esset abrogandum, saltem vice illius bona sua conciliique venia certos nobis leges conditionesque meditari comminiscique liceret
quibus Imperiume nostrum supradictum in posterum uteretur quod ad ea quidemn
pertinet quic sanctione Pragmatic'a cavebantur." —D. De Maillane, t. i. p. 781, App.
(b) "Relation de ce qui passa sur la publication et lenregistrement du Concordat au Parlement de Paris des annees 1516 et 1517, contenant les raisons du
Parlement pour empecher cette publication et ces protestations a ce sujet." —1 De
Pradt, 250.
(c) 1 Do Pradt, 264-5.




PAPAL RELATIONS.                              229
The University of Paris made a similar appeal, and the King was
besought by the Doyen de l'Eglise de Paris, in the name of the Chapter, to assemble the French Church.  The execution of the Concordat,
the object of universal disgust, *and condemned by the nation [344
and the Church, became a matter of extreme difficulty.(d)  The
Pope granted its prorogation,(e) first for six months, then for a year, then
for another year. Francis was taken prisoner at Pavia in 1524; the consternation ensuing on this calamity was favourable to the Concordat.
The King referred the cognizance of contested elections, as to the consistorial or more important benefices, to the Council of State.
Henry II. confirmed this decree in 1552, and thus a great obstacle was
removed from the path of the Concordat.
In 1560, Francis II. sent an edict to Parliament, referring causes of
religion to Ecclesiastical Judges.  Parliament took an opportunity of
addressing the King to restore the liberty of Elections and the Pragmatic,(f) essential, they said, to the welfare of his subjects. In the
same year the successor of Francis, Charles IX., received remonstrances
from the States at Orleans.
CCCXXXI. The earliest Concordat of the German Empire with the
See of Rome was the Concordaturn  Calixtinum, betwixt Henry V. and
Pope Calixtus II., A. D. 1122.(g)
Its historical and legal importance is but slight; it contained
*the arrangement respecting investitures which has been already [34
mentioned.
The Concordata of the fifteenth century were in great measure founded
upon the Basle decrees, which were once formally accepted by a decree
of the Empire at Mayence, in A. D. 1439,(h) and the firm attitude of the
(d) "Ad Papam melihs consultum et futurum Concilium Generale legitime congregandum et ad illum vel illos ad quem seu quos petendo Apostolos instantissime," &c.-Durand De Maillane, vaoce PRAGMATIQUE SANcTION.
(e) See what the French call the " disposition ampliative," which they distinguish
from the Concordat itself, though it begins tit. xvii.:T. xx. is " De prorogatione temporis ad recipiendum," &c.
1. "Ad postulationem Regis" (six months).
2. " Eo quod propter varias occupationes non fuit Concordatum approbatum
et receptum a regnicolis" (one year).
3. "Conceditur secundus annus a fine prima computandus ad hoc ut Concordata recipiantur et observentur a regnicolis."
-D. De Maillane, voce CONcORDAT.
(f) " Ce r6glement toujours cher aux Franqais," says D. De'Maillane, voce CoNcoRDAT) t. i. p. 621; but which Leo X. calls, in his condemnatory Bull (19th Dec.
1516), "Regni Franciae corruptelam Bituricensem."
(g) Eichhorn, Kirchenrecht, I., B. ii. Absch. ii. cap. 1. iv. Die Concordata.
(h) Sanctio Pragmatica Germanorum illustrata (confirmatory of, and suppletory
to, Decrees of Basle and Mayence, accepted in Germany,) Koch, c. 9, (ed. Argentorati, 1789,) consists of three parts:1. Historia Sanctionis Pragmaticee.
2. Argumentum S. P. This part includesVII. De Cardinalibus Eccles. Rom.
II. Power of General Councils.
P. 61, c. ii. 1. Jura Pontifici ablata, Reservationes generales et speciales,
Gratihe expectatue.
3. Sylloge Documentorum quibus Sanctio Pragmatica Germanorum illustratur.
P. 201. Tabulae Concordatorum inter Nicolaum V. Pont. et Fredericum III.
Imp. (Vindobone initorum, A. D. 1448, 17th February.)




230   PHILLIMORE ON INTERNATIONAL LAW.
Electoral Princes extorted a ratification of this act from  Eugenius IV.
But in 1448 the Emperor Frederic III. entered at Vienna into a separate
Concordat with Nicholas V., whereby a large part of the claims sacrificed
by his predecessor were regained by him for the Roman See. It would
appear, however, from the reply of ]Eneas Sylvius(i) to the "l Murmur
gravaminis Germanicse Nationis,"(k) in A. D. 1457, that, on account of
the difficulties *and troubles of the time in 1449, a compromise
L[     ] only between these Basle decrees and the Papal claims had been
allowed by the Roman See, for he had rejected the notion that an absolute
Sovereign like the Pope could make a Treaty with his subjects.
In 1487, however, the entire Empire successfully resisted a tithe which
the Pope sought to impose; and in A. D. 1500, the Empire granted the
Pope only one-third of that indulgence, and reserved the two other parts
for the war against the Turks. Nevertheless, the detestable Alexander
VI. and his successor Julius II., raised the Papal power to a height which
enabled them to speak, at the beginning of the sixteenth century, the
language held by Boniface VIII. at the beginning of the fourteenth.
The accomplished and dexterous Leo X. found little difficulty in emasculating the Decrees of Basle and Constance, by a Council held at Rome
(A. D. 1512-17,) and at last it appeared that all the advantage that the
Reforming Councils had bestowed upon States and National Churches
had shrunk into a few limitations upon the arbitrary application of the
Reserved Privileges of the Papal See.(g)
The consequence of this retrogression in Ecclesiastical Reform, was
that portentous event in the history of the world, usually called the
Reformation.
The abuses and exactions(m) of the Court of Rome, and the gross
wickedness of some of her Pontiffs had heaped up that smouldering mass
*347] of disgust and discontent throughout *Christendom, which, about
Li ]~3   the year 1517, the preaching of Martin Luther and Ulric Zwingle
against the Indulgences of Leo X., kindled into a flame.
The way of General Councils had been tried, and had failed, and the
National Churches appeared to have struggled in vain for their liberty.
Prsef. 2. "Palladium hoc Ecclesike Germanise et sacram quam libertatis
ancoram."
The Bulls of Ratification, issued 5th and 7th February, 1447, were called in honour of the Princes, " Die Fiirsten-Concordate."-Eichhorn, B. i. Abehen. i. c. v.
(i) He was then Cardinal: he became Pius II. A. D. 1451.
(k) I" IEnee Sylvii Epistola ad 5Martinum Maierum contra Murmur gravaminis
Germanicie Nationis, A. D. 1457," cited by Ranke, c. i., from Miiller's Reichstagstheatorum unter Friedrich III., p. 60. Mayer was Chancellor to the Archbishopric of Mayence. Schrockh, xxxii. Theil. 172-215, contains a full account of the
whole negotiation and of the long correspondences between the Chancellor and
Cardinal; the former defending the liberties of the German Church, the latter
maintaining, in language at least, the loftiest pretensions of the Pope.
(1) Schrockh, xxxii. p. 519.
(m) Freely admitted by many modern Roman Catholic jurists and canonists.
Phillipps, iii. 325. " Es lAsst sich nicht leugnen, dass eine nicht geringe Zahl von
Papsten sowohl durch ihre Sittenlosigkeit als auch durch den vielfachen Missbrauch
ihrer Gewalt, namentlich im Betreff der Geistlichen Strafen, selbst einen grossen
Theil der Schuld an jenem traurigen Zustande der gesammten Christenheit auf
sich geladen hatte."  See, too, p. 335, " Die vallige Sorglosigkeit der Paipste."




COUNCIL OF TRENT.                           231
*CHAPTER VI.                           [*348]
THE PERIOD  OF THE  COUNCIL OF TRENT, AND ITS EFFECT UPON
INTERNATIONAL RELATIONS.
CCCXXXII. THE Council of Trent,(a) which has so materially
affected the status of the Roman Catholic clergy, and in some degree
the laity,(b) has too much of an international character to be passed by
without some notice. The rapid increase of Luther's disciples, the many
and admitted abuses of Rome, and the urgency of the Emperor Charles
V., compelled Paul III. to convene this assembly.
It began in 1545 and ended in 1563. During these eighteen years
it had many intervals and interruptions, and three distinct epochs.
The first under Paul III., 1.545-1547.
The second under Julius III., 1551-1552.
The third under Pius IV., 1560-1563.
The important questions mooted during its sessions gave rise to
frequent debates of the most vehement character; they *were
decided, not as those at the Council of Constance had been, by [*349]
the majority of the suffrages of nations, but by the majority of individual votes, as at the Council of Lateran,-a proceeding which impressed
an Italian rather than an international character on the conclusions of
the Council, as the whole number of votes was 281, out of which 189
were Italians.
The English Church was not represented at this Council.(c)
The representatives of the Spanish and the French Churches maintained,
with great fervour, the Divine Right of Episcopacy, as emanating immediately from our blessed Lord, and not immediately from the Pope,(d)
meaning that the fact that a Bishop was made and confirmed by the
Pope, was no more an argument against his deriving his authority from
our Lord, than the fact that the Cardinals elected the Pope was an
argument that his power was derived only from them. These Churches,
moreover, maintained the superior authority of the Church generally to
the authority of the Pope, and appealed to the Councils of Basle and
Constance, which the Italians rejected.
(a) Eichhorn, Kirchenrecht, I., B. i. Abschn. iii. c. 1; Durande De Maillane,
i" Trente,' "Libertes de t'.glise Gallicane;" Lequex, Manuale Compendium Juris
Canon. iv. 171-348 (Paris, 1850;) Landon's Manual of Councils, " Tente," are
works of easy access.
The great works of Thuanus (De Thou,) and those of Sarpi and Pallavicini
the rival historians of the Council, are well known. There is a careful criticism
upon their respective merits in the Appendix to the last volume of Ranke's History
of the Popes. See, too, Giesler, Lehrbuch der Kirchengeschichte, Abschn. iv. c.
i. s. 105. " Wirkungen der Schisma auf die allgemeine Kirchliche Meynung."
(b) E. g. as to the Law of Marriage, see Dalrymple v. Dalrymple, Judgment of,
Lord Stowell, 2 Consistory Reports, 64. Swift v. Kelley, 3 Knapp's Privy Council
Reports, 283.
(c) There appears, by the lists, to have been one English Bishop.
(d) It was finally resolved to omit all notice of the institution of Bishops and
of the authority of the Pope.




232   PHILLIMORE ON INTERNATIONAL LAW.
The French Ambassador loudly demanded that the decisions of the
Pope should be submitted to the Council, that the reforms of the Church
in its Head and members, as had been promised at Basle and Constance,
should be effected; and of these reforms the abolition of annates, and
arrangements made for avoiding the necessity of sending for dispensations
to Rome, were among the most necessary.
The King of France expressed his extreme dissatisfaction at the
scanty measures of reform proposed, and many of the French bishops,
and one of the ambassadors, withdrew from the Council: the latter
having previously protested against certain propositions as contrary to
the Rights of the Crown and the liberties of the Gallican Church.(e)
[*X350] c'The Tridentine Council closed 4th December, 1563; it was
confirmed by a Bull of Pius IV., 26th June, 1564. A perpetual
Congregation of Cardinals(f) was instituted to advise the Pope as to
the interpretation of its decrees, all commentaries on which were
forbidden.  Canonists(g) hold that the Pope may dispense tacitly, and
without express declarations, with decrees of this council, though he
cannot, without express declaration, derogate from those of other councils.
They found this opinion upon the words (Decr. 21, Sess. 25:) ", Ut in
his salva semper authoritas sedis Apostolicre sit et esse intelligitur."
CCCXXXIII. The Decrees of the Council were arranged under two
principal divisions or heads:-(1.) The Decrees concerning the Discipline
(de Reformatione,) and (2,) those concerning the Faith set forth in
Canons (canones,) which closed with an anathema upon all who held a
different opinion.  These Decrees depended course, for their civil and
legal validity beyond the Roman See, upon their reception by the
authorities of other countries.
The French Kings at first solemnly protested against it, as a private
assembly of certain prelates, who had insulted the ambassadors and
attacked the liberties of the throne and Church of France.
The clergy of France were generally well affected to it, and often,
but in vain, besought its legal promulgation.(h) This promulgation was
made by the Pope one of the conditions of Henry IV.'s reconciliation
with Rome; but in vain did this popular monarch entreat the Parliament
to consent to its publication, even with a general clause of reservation
for the liberties of the Gallican Church. He was obliged to accept the
answer of the illustrius De Thou,(i) that the *Parliament knew
no precedent since the foundation of the monarchy for receiving
a Council, without examining and reconsidering every article that it
contained.
The Ordonnance of Blois (1579,) however, incorporated into its text
large portions of the Council of Trent, carefully avoiding to mention the
source from whence they came.
Generally speaking, it may be said, that by edicts, ordonnances, and
(e) See, as to the Pope's power of excommunicating Kings, s. 22, c. 4, De Ref.
(f) "f'Tente," D. De Maillane, iii. 667.            (g) Ibid.
(h) De Concordantih Sacredotii et Imperii sui de Libertatibus Ecclesise Gallicani,
Petrus de Marca, Archiepiscopus Parisiensis (died 1662,) 1. vii. c. 28, 3.
(i) Thuanus, 1. vii. Memoirs preceding his History.




COUNCIL  OF TRENT.                         233
usage, the principal decrees of the Council, as to matters of faith and discipline,(k) have practically, though not formally, been introduced into France.
With respect to other European countries, the Tridentine Council was
generally received by them.
It was rejected by the Catholic and Episcopalian Churches of Greece,
Russia, Egypt, England and Scotland, and, of course, by the Protestant
and Non-Episcopalian Churches of Germany and the North, and by the
civil Governments of all these countries.
CCCXXXIV. The religious wars which broke out at the beginning of
the sixteenth century, and were extinguished by the Treaty of Westphalia
must be mentioned in connexion with this subject of the Papal relations
with independent kingdoms.  Disgust at the practical abrogation of the
Reforming Councils of Basle and Constance, determined large bodies of
religious persons to break off all connexion with the Roman See.  Not
merely the relation flowing from the acknowledgment of the Pope as the
visible iHead of the Church upon earth, but the lesser and more reasonable relation flowing from the acknowledgement due by comity, and a
regard to ecclesiastical order, to the Patriarch of Western Christendom,
were, in the hour of indignation and despair, forcibly snapped asunder
by the Protestants of Switzerland, France, and Germany. The Germans
protested in 1529 against the Decrees of the Diet of Spires, which forbad
any change in religious matters until a General Council could be holden.
They subsequently refused to submit to the decrees of a Council held in
Italy, *which they thought, not without reason, would be in fact
the voice of the Italian, rather than the Universal Church. [ 352]
They presented their confession of faith at the Diet of Augsburg, 1530.
The profound treachery and great ability of the Elector Maurice united
the Protestant Princes of the empire(l) against Charles V. In 1552, the
Treaty of Passau was made, and in 1555 the Diet of Augsburg was held,
by which the liberty of exercising a religion unconnected with the Pope
became part of the law regulating the mutual relations of Independent
States; though thirty years of a desolating warfare, which cannot, even
now, be read without a shudder, were to be endured by Germany and
Holland, before this principle was firmly incorporated into the Public
Law of Europe by the memorable Treaty of WTestphalia, signed at Munster and at Osnabruck in 1648.(m)
During this corrupt period, the minds of men upon all questions of
civil and religious liberty were much affected by the circumstances and
character of their time. Private ambition and avarice often wore successfully the mask of religious zeal.  True ideas of liberty and religion
were mixed with specious falsehoods, which sprung from pride of intellect
and licentious passion. The consequences, as the subsequent pages of
history are unfolded, may be traced in bloody characters in the crimes
which stained the religious revolutions of many countries, and in the
controversies which still agitate the world.
(kI) Lequeux, iv. 394.
(1) He concluded, at the same time, a secret treaty with Henry II. of France.
(m) De Pactis et Privilegiis circa Religionem. Moser. (Franckfort, 1738, ss.
19, 20, 29.) Savigny, R. R. ii.
NOYFtMBER, 1855.-16




.34i     PHILLIMORE  ON INTERNATIONAL LAW.
CCCXXXV. A new era of International Law opens from the date of
this Treaty, and especially with respect to the immediate subject of these
chapters.
The Treaty was signed-not an insignificant fact-without the intervention or ratification of the Pope, who protested in *vain against
*[353] those articles of it which confirmed the secularisation of ecclesiastical property, as his successor was destined to do upon the same ground
and with the same effect, against the last Treaty of Vienna.
The relations of the nations of the whole earth-for Christianity had
passed the limits of Europe, and planted itself in a new world-were
now both greatly and permanently changed towards Rome.  Her claims
in theory were the same.  The Pope was still the Vicar of Christ upon
Earth, the sole fountain of the Episcopate, the infallible Judge of all
matters appertaining to religion; and if the logical consequences of supreme temporal as well as spiritual power were not put forward, they were
not abandoned, and, indeed, had been remarkably exercised, at no very
distant period, in dividing the newly-discovered regions of the world
between the two independent States of Spain and Portugal, and were, as
will be seen, as late as the year 1773, asserted in all their plenitude.
But the actual state of the world as confronted with these claims was
this:-An Episcopal Church in Great Britain, deriving its Catholic doctrine and order from the early Fathers and Councils of the Undivided
Church.
A Church in France, which claimed as resolutely as that in Great
Britain the Divine Right of the independent Episcopate, and denied the
power of the Pope to dispense with the customs of the national, or the
canons of the visible General Church, though it acknowledged the Headship and the Patriarchate of the Successor of St. Peter.
Protestant Churches in Germany repudiating Papacy, and, as connected with it Episcopacy.
The Churches under the Patriarchate of Constantinople, who charged
Rome with being the original and continuing cause -of the Schism  of
Christendom; and under this Patriarchate should be included, at this
time,f the Churches of Russia, Syria, and Egypt.
But in all these countries there were Roman Catholic as well as Catholic and Protestant subjects.  How was the relation between the Roman
Catholics and the Pope to be carried on *when the religion of
the State was Protestant or Catholic, but unconnected with
Rome?-how were Protestant subjects to be treated in Rloman Catholic,
and Roman Catholic subjects in Protestant countries? This is perhaps
the most difficult of State problems, and has never yet been satisfactorily
solved.
The Reformation, and the spirit, which arose with it, of searching
inquiry into the legitimacy and foundation of all claims, naturally affected
the relations of Governments as well as of Churches with the See of
Rome.
Before we consider these relations in the case of individual States, let
us glance at their general features in all States during the period between
the Treaty of Westphalia, and the last Treaty of Vienna.




COUNCIL OF TRENT.                           235
The Council of Trent was not able to extinguish the general desireof which the decrees of the Councils of Basle and Constance had been the
expression,-for a National Church, one, if not wholly independent of
Rome, yet connected with it only by a recognition of its Patriarchate and
Primacy.  Cismontane canonists, the Anglicans, and the Protestants,
were continually employed in maintaining, that the more the other claims
of Rome were considered, the more it became apparent that their origin
was to be traced to the false Decretals of Isidore, then and now admitted
to be forgeries, and which had been fabricated for the purpose of
maiming and weakening the true apostolical rights of each individual
Bishop.(n)
Many and sore appear to have been the strivings of the Church, in
different countries, to return to this primitive state of order and discipline.
The attempt was acceptable to States and governors, because it tended
to secure the national independence, and to prevent the allegiance of
citizens from being distracted between the claims of a native and a'foreign
superior.
It was the constant endeavour, therefore, of all Princes and   355
~Parliaments, whether Roman Catholic, Catholic, or Protestant, [    ]
to cut off the channels of communication and interference with their subjects, which the Pope kept open.
The reception and authority of Legates and Nuncios, the appeal from
Ecclesiastical Courts to Rome, the Annates, the establishment, and protection, and disposition of Religious Orders and Houses, were subjects
upon which the governors of States were continually striving to repeal
the Papal claims; but there were two questions which, so far as International relations with the Papacy are concerned, almost exclusively
occupy the foreground of the historical picture during this epoch, and
upon which the struggle was most severe and most important.
1. The terms under which the Institution or Confirmation of Bishops
should be obtained from the Pope.
2. The condition of previous knowledge and sanction on the part of
the civil Government with respect to all Bulls, Rescripts, or Apostolic
Letters, promulgated by Rome within the dominions of the foreign
State.
With respect to the first of these questions, it will be seen that,
during the epoch which we are discussing, France, Austria, Portugal,
and Naples were, once at least, upon the verge of returning to the primitive practice of instituting and confirming Bishops, and of severing,
as England had done, their Episcopal National Church from all dependence upon the Pope.
CCCXXXVI. There is one other question(o) connected 5with [356
this subject, of a mixed public and International character, the [356
(n) "Falss decretales seculo none illatue, videntur in hune scopum fuisse fabricat  ut t judicia Episcoporum redderent magis difficilia." —Lequeux, i. 339.
(o) Gerardi Noodt, Dissertatio Quarta, de Religione ab imperio Jure Gentium
libera, vol. i. p. 641. (ed. Lugd. 1735:) "Interest, inquis, civitatum quh forma,
quo ritu, quibus coeremoniis colatur Deus, nempe, ne fiant conventus, quorum
initlis in rempublicam conjurationes, et adversus leges stupra, adulteria, incestus,
csedes, parricidia, falsa testimonia, fraudesve cogitentur. Non est enim religio




236    PHILLIMORE ON INTERNATIONAL LAW.
treatment of which has greatly perplexed the Governments of States,
and with respect to which their intellectual errors and moral crimes have
been of a most grievous kind-namely, the treatment of subjects professing a different religious belief from  that established by the State;
such errors and crimes as are illustrated in the treatment of the Huguenots in France, and, in a less degree, of the Roman Catholics in Ireland.
No idea appears to have been of slower growth than that of real religious
toleration. The absence of it led, as we have seen, to the intervention
of foreign Governments, on behalf of co-religionists in other States; but
it led also to a still more strange result in France, for there the Roman
Catholic Government,(p) which would not tolerate religious dissent, concluded a regular Treaty with its own Protestant subjects, and delivered
up towns and cities, like Rochelle, as a security that the provisions of
the Treaty should be observed,-a most unnatural, fatal, and impossible
policy.
The Edict of Nantes (A. D. 1598) and its Revocation (A. D. 1685) are
among the most painful and disgraceful, but also the most remarkable
and instructive pages of history.
CCCXXXVII. The policy pursued by the Papacy upon this question
of religious toleration deserves notice. The Pope, having in vain remon*35751 strated, by his Nuncio, against the *Treaties of Munster and of
[357] Osnabruck,(g) put forth a Protest,(r) in the shape of a Bull, in
which he represented these Treaties as " infinitely prejudicial to the
Catholic religion, to the Divine worship, to the Apostolical See of Rome,
to inferior Churches, to the orders of the clergy, as well as to their ecclesiastical jurisdiction, authorities, immunities, franchises, liberties, exemptions, privileges, and rights; inasmuch as, by divers articles of one of
these Treaties of Peace, the lands formerly possessed by the clergy in
those countries are, amongst others, abandoned for ever to the heretics
and their successors: the free exercise of their heresy is itn several places
allowed to these heretics, styled of the Confession of Augsburg; land is
promised to be assigned to them to build temples, and they are admitted
qua' pernicies humano generi inducatur-scelus est cui prntexitur color religionis
-id cum turbat disciplinam, et strigat finem civilis conjunctionis: non obstat Dei
veneratio, cur non perinde ad severitatum legum pertineat, ac si adhibita non
esset imago religionis? Sic hominum sacrificia in Africa sustulit Tiberii principatus, sic Bacchanalia Romme atque in Italia coercuit Senatus, ceaterum, innoxia
sit Religio nec ad turpe atque improbum deflectat facinus, sed virtutem juvat et
bonos mores, sed agat ut salva sit Reipublicoe reverentia quod improbetur? nisi si
quis non flagitia sectme affinia, sed sectam quamquam scelere vacuam puniendam
existimat?  Sed hoc injusti ac feri et crudelis hominis esse, quis non videt?"
P. 642. "Nam si (secta) perdendae sit Reipublicae non quia nova est prohiberi
debet sed quia noxia."
P. 644. Noodt remarks that Valentinian the elder is praised by Ammianus (i.
lib. 30, c. 9,) for his toleration; and Noodt also cites Valentinian's Constitution,
in the Codex Theodosianus, which ends-" Testes sunt leges a me in exordio imperii mei datee quibus unicuique quod animo imbibisset, colendi libera faculta
tributa est.  Nec fIarus2picinam?reprehendimus, sed nocenter exerceri vetamus."  Valentinian was a Christian.
(p) Portalis, ib. Introd. pp. ix. —xix.
q) Vide ante, vol. i. p. 48.
r) Parl. P. for 1816, pp. 103-4. L'Histoire du Trait6 de Westphalie, par le
Pre Bougeant, t. vii. pp. 412, 414, 423.




PAPAL RELATIONS WITH FOREIGN STATES.  237
along with the Catholics to public functions and offices... Therefore, we, of our own accord, from our certain knowledge, after mature
deliberation, and by virtue of the plenitude of the ecclesiastical power,
pronounce and declare by these presents that the aforesaid articles
have been by right, are, and shall be for ever, null, void, of
no value, iniquitous, unjust, condemned, reprobated, frivolous, without
any force or effect, and that no one is bound to observe them,, although
they should have been confirmed or strengthened by an oath.(s)
Nevertheless, by way of greater precaution, and as far as may be necessary, we, of our own said accord, knowledge, deliberation, plenitude of
power, condemn, reprobate, annul, suppress, and deprive of all force and
value the aforesaid articles," &c.
*C H A P T E R  VII.                  [*358]
TEE INTERNATIONAL RELATIONS OF THE PAPACY WITH FOREIGN STATES
IN WHICH THE ROMAN CATHOLIC CHURCH IS ESTABLISHED, DURING
THE PERIOD BETWEEN THE REFORMATION AND THE PRESENT TIME.THE HISTORY OF CONCORDATA.
CCCXXXVIII. THE great evil of the Concordat of Francis I.(a) was
the manifest inequality of the contract in one important particular between
the contracting parties.  It assigned a term within which the Crown
must nominate, but no term within which the Pope must institute, the
Bishop. In this inequality the ground was prepared for collision between
the State and the Pope. The advantage was necessarily and greatly
upon the side of the spiritual potentate.  Upon the Episcopate the
clergy depended for their order, the laity for the enjoyment of religious
ministrations, and, indirectly, the whole realm for its tranquility. If the
Pope refused institution, the Crown had no means of redress, though its
State was thrown into the utmost confusion, and its subjects were deprived
of their greatest blessing. The means to which one temporal State resorts
against another temporal State, of compelling the execution of the contract, were, or ought to he, wanting in this instance.
France and Naples might, and did indeed, sometimes sanction the
invasion of the Papal territories, as of Avignon and Beneventum, and
so far treat the Pope in this respect as a temporal Prince, as to have
recourse to the means, which International Law would sanction, of conmpelling a temporal Prince to fulfil his contract.
*To dwell on the mischief done to the Church alone by this  359
consequence of the Concordat(b) of Francis I., does not belong [ 9]
to this work; but such mischief to the State and Church could never
have arisen under that primitive rule of the Church by which the Bishop
was elected by the laity or clergy, or both, and instituted by his compro(s) Vide ante, pp. 67, 299, in fine.  (a) De Pradt, pp. 304-5.
(b) De Pradt, i. c. 14.




238    PHILLIMORE ON INTERNATIONAL LAW.
vincials and Metropolitan.  ei II est sans doute conforme "a l'antique discipline de l'Eglise Gallicane d'attribuer aux Metropolitains et aux plus
anciens Eveques des metropoles l'institution des Eveques,"(c) is the language of the " Exposition des Principes sur la Constitution du Clerge
par les Eveques d6put6s a l'Assemblee nationale" in 1791,(d) of which
Pius VI. approved, and which a modern French council has pronounced,
not unjustly, to be one of the fairest monuments of the Gallican Church.
CCCXXXIX. Between the reign of Francis I. and Louis XIII.,(e)
on account of the Pope's refusal of a Bull of institution to a Bishop
nominated by Henry IV. to the See of Auxerre, that see was vacant for
twelve years. Louis XIII. underwent a similar refusal in the person of
the celebrated De Marca, whom he had nominated to the Bishopric of
Conserans; and the vacancy lasted six years, from 1642 to 1648.
Three Popes(f) successively refused the confirmation of the Bishops
of Louis XIV., and the number of vacant sees amounted at one time to
thirty-five. In later times the Pope sometimes accomplished the end of
refusal in a less direct manner, by leaving out the name of the Prince
in the Bull, which, according to the Concordat, ought to be there, and
thereby making it appear that the nomination was made proprio mrotu of
the Pope, and not of the Sovereign. Such Bulls were of course rejected
by the Prince.
[*360]   CCCXL. To these disagreements, in spite of a Concordat
*between the States and the Pope, Christendom  is indebted for
the ever memorable declaration of the liberties of the Gallican Church.
As early as 1504,(g) the University of Paris protested against certain
powers claimed by the Legate d'Amboise, with respect to the collation
of benefices, and the rights of graduates, and asserted, with respect to
denying the absolute power of the Pope, that "min hac consistit libertas
Ecclesie Gallicanwe."  In 1594, Pierre Pithou,(h) published, under the
title of "gLibertes de 1'Eglise Gallicane," a sort of code of eighty-four
articles, deduced from two maxims,'namely, the independence of Princes,
and the limitation of Papal authority by canons and councils.  This
code has been called by French writers the Palladiumn of France, and
has actually been cited in edicts, as in that of November, A. D. 1719.(i)
In 1651 it was published, after De Marca had defended it in his great
work, with a "'privilege" prefixed by the King, in which the work was
represented as placing the Regalia of the Crown in ecclesiastical matters
beyond dispute.(k)
In A. D. 1614, the States-General complained bitterly of infringements upon their liberties.  In 1663, the Sorbonne put forth six arti(c) See this exposition at length in Lequeux, i. 499.
(d) lb. 387.                        (e) De Pradt, i. c. 6.
(f) Innocent XI., Alexander VIII., Innocent XII.
(g) Lequeux, i. 358.
(h) The most learned Frenchman of his time; born at Troyes, died 1596, at the
age of 57. Frangois Pithou, his brother, shared his labours and fame.
(i) Durande De Maillane, cit. t. iii. 194, contains the eighty-four articles at
length.
(k) The most famous commentary on Pithou's work is that of Jacque Dupuis,
in two vols. folio. Some of the propositions contained in it were condemed by an
assembly of the clergy in 1640.




PAPAL RELATIONS WITH FOREIGN STATES.  239
cles,(l) denying, in the plainest language, all authority of the Pope,
direct or indirect, in temporal matters, declaring that he had no power
of dispensing with the obedience of subjects, of deposing Bishops, that
he was not infallible, and asserting the inferiority of the Pope to an
cecumenical council, and proclaiming that the King had no superior but
God.
*In 1673,(m) Louis XIV. extended, by an edict, his Regale  *361
over all the dioceses of his kingdom.  Two prelates(n) only [    ]
resisted this edict; one of whom appealed to Pope Innocent XI., and
was protected by him.  The Archbishop of Toulouse, nevertheless, proceeded against the Bishop and his Vicars-General. The quarrel between
the Crown and the Pope became exacerbated.
The King, under the advice of Le Pellier and Bossuet, appealed to a
general assembly(o) of his clergy; and the result was the famous declaration of the clergy in 1682, sanctioned by thirty-four Bishops, and
contained in four articles, pretty much the same in effect as the six articles of the Sorbonne, and recognised by name the authority of the
Council of Constance.  It was approved by Royal Edict in March,
1682,(p) and annulled by a Brief from Innocent XI., of April 11, 1682.
The Pope arbitrarily, and not upon any alleged canonical or moral
defects, refused Bulls of Institution to the Bishops nominated by the
Crown.  Alexander VI. went a step further than his predecessor, and
published, January 20, 1691, the Bull inter mnulti2olices, by which he
annulled the resolutions equally with respect to the Regale(q) and the
spiritual authority,-a Bull, it may be observed, subsequently confirmed
by another, the Auctorem fidei, of Pius VI.(r)
*Meanwhile the question of ambassadorial privileges arose at
Rome; the Pope excommunicated, the Ambassador protested.(s) [*362]
(1) Durande De Maillane, ubi supr. t. iii. 210.
(mn) De Pradt, i. 335.
(n) D'Aleth and De Pamiers. The latter published a perspicuous little tract,
entitled Traite de la Regale. " The Regale," he says, " consists in"1. La disposition des revenus de l'Eglise vacante.
"2. La collation deplein droit des benefices non cures durant la vacance du
siege episcopal."-P. 5.
(o) It was at the opening of this meeting that Bossuet published his sermon
"Sur l'Unit6 de l'Eglise."
(p) Which in February, 1810, Napoleon declared by an Imperial Decree, and
promulgated as the Law of France.
(q) Lequeux, iv. 372-3.
(r) In 1786, when Scipio Ricci, Bishop of Pistoja and Prato, called a Diocesan
Synod, which more than adopted the French articles.-Coppi, Annali d'Italia, i.
p. 155.
(s) The following dissertations by D'Aguesseau should be noticed:" Memoires Historiques sur les Affaires de l'Eglise de France, depuis 1697 jusqu'au
1710, ou Recit de ce que M. le Chancelier d'Aguesseau a fait en faveur des Maximes
du Royaume, des Libertds d'Eglise Gallicane, et de notre Droit Public Eccldsiastique,. dans la dispute du Qui6tisme en 1697; dans les affaires du Bref de 1703
contre le fameux cas de conscience, de la Bulle' vineam Domini Sabaoth' de 1705;
de M. lFEv6que de Saint-Pons, et de la Declaration des douze Eveques en 1610 au
sujet de l'Assemblee du Clerg6 de 1705."-Tom. xiii. p. 161.
" Fragment d'une ve Instruction, qui n'a pas 6t6 achevee.-Sur 1'6tude du Droit
Eccldsiastique.-Notions g6nerales sur la maniere d'dtudier le Droit Eccldsiastiqne."
Ib., tom. i. p. 415.




240    PHILLIMORE ON INTERNATIONAL LAW.
The Nuncio at Paris was put under restraint; Avignon was seized
upon;(t) thirty-five Bishops were refused Bulls; the Advocate-General of
the Parliament of Paris spoke of the convocation of a council, and of a
return to the Pragmatic of providing for their own Church without the
Pope.
CCCXLI. The Bishops were on the point of rejecting altogether the
Papal authority, when Louis XIV., aided by Bossuet, prevented this
catastrophe.(u)
Peace was made in 1793 with Innocent III. Certain Bishops were
induced to write a penitential letter to the Pope, and Louis XIV. promised him by letter that the Edict of 1682 should not be executed,
though it was not to be recalled.  *For in 1713, when Clement
[*363] XI. called upon Louis to forbid the teaching of the four articles,
that monarch wrote a letter to say he had engaged not to enforce the
execution of the Edict of 1682, but that it would be unjust to forbid the
articles being taught. The Pope was satisfied, and issued the Bulls.
The letter was kept as a trophy of the submission of the Gallican Church,
brought to Paris by Pius VII. in 1801, and soon afterwards, it is said,
burnt by Napoleon.(x)
CCCXLII. The revocation of the Edict of Nantes, the theological
quarrels between Jesuits and Jansenists, and the miserable discords
arising out of the Bull Unigenitus, closed, in sorrow  and disgrace, the
seventy-two years' reign of Louis XIV. in 1715; but it should be mentioned that, in the year 1695, an Ecclesiastical Edict-in imitation of
those precursors of modern codes, the Civil Edicts of 1665 and 1670incorporated into a sort of code, without reference to Rome, a recapitulation and readjustment of a great variety of previous domestic legislation upon the Gallican  Church, especially of the mutual duties and
relations of it and the civil power.
CCCXLIII. In 1716,(y) Clement XI. at first refused Bulls of confirmation on grounds connected with the  inigenitus Bull, to the Bishops
of Bayeux, Tours, and Rhodes, but yielded at last to the positive demands
of the Regent.
In 1723, when the infamous Dubois was installed in the chair of the
President of the Assembly of the Clergy, he proclaimed his intention of
" XXVI. Plaidoyer. Du 7 Aoust, 1693.-Dans la Cause de Frere Houdiart, Cordelier, qui s'etoit fait transfarer dans l'ordre de S. Benoit et de Charles du Sault.
" 1~. Si un Bref du Pape portant confirmation d'une translation d'un Religieux,
ddclarde abusive par un Arrbt, est abusif?
" 2~. Si ce Bref et des Lettres-Patentes obtenues du Roi pour en ordonner l'execution, peuvent avoir effet au prejudice d'un tiers?-Ib. tom. ii. p. 597.
(t) As it had been in 1663, when the Ambassador was insulted at Rome. Satisfaction was demanded and obtained, and an obelisk erected at Rome, with an inscription recording the fact.
(ui) "' Dies war der Augenblick, wo jene Bischofe auf dem Punlite, standen, das
Schisma auch formell ausziusprechen; der Entwurf der Declaration war ganz in diesem Sinne von dem Bischof von Tournay gefasst. Dass es nicht dazu kam, war
das Werk Ludwigs und des grossen Bossuet."-Phillipps, Kirchenrecht, iii. 358.
(x) " On ne viendrat plus nous troubler avec ces cendres," Napoleon is reported to
have said when he burnt it.-De Pradt, i. 353-4.
(y) De Pradt, i. 366. This was at the time when no opposition was made to
the conferring of the Cardinal's hat upon Dubois.




PAPAL RELATIONS WITH FOREIGN STATES. 241
acting the part of an Ultramontane Cardinal.(z)  But death interrupted his design of covering his many vices with the mantle of disloyal
bigotry.
In 1762, the Order of the Jesuits, the great champions of the Papal
power, was suppressed by a decree of Parliament of Paris.
CCCXLIV. In 1766, Louis XV. put forth  a decree-in   364
*which he referred to the Edicts of 1682, 1695, and a decree [*364
of his Council in 1781, as containing the undoubted Law of Francethat though the Church, having a real authority from God, was subordinate to no other in spiritual matters, the temporal power, "which
emanates from God, is held from God alone, and is neither directly nor
indirectly dependant on any other power on earth;" that though the
Church has exclusive power to pronounce upon questions of doctrine,
yet the State, before it assisted in their execution, had a right to examine
their form, to see that they are agreeable to the constitution of the kingdom, whether they will affect public tranquillity, as well as to prevent
qualifications unauthorized by the Church being attached to their publication; that it was the duty of the temporal power to watch over the
honour of citizens, and to see that it was not violated by the non-observance of ancient rules and formalities, with respect to which the Sovereign
was to be considered as the external Bishop and avenger; that he had
a right to declare invalid vows which are not in conformity with civil or
canonical rules, and to reject and exclude religious orders which are
injurious to the State; and, therefore, that in order to preserve the just
boundaries between the temporal and spiritual powers, it was ordered
that all the Royal Edicts, and especially the Edicts of 1682 and 1695,
should be executed throughout the kingdom, and that the four resolutions
of the assembled Bishops of the kingdom in 1682 should be inviolably
observed, supported by all universities, and taught in all seminaries
throughout the kingdom.(a)
*CCCXLV. In 1768, the Duke of Parma made an edict upon [*365]
a variety of subjects of a mixed, civil and spiritual character,  365
and, among other matters, forbad, without his permission, appeals to
Rome from litigations as to the benefices of the Dutchy; he forbad also
commissions to be conferred on strangers, and ordered that "4 no writing
coming from Rome, "- or other foreign country," should have any effect
in Parma without the Sovereign's exequatur.  Clement XIII. published
a Brief (monitorio di Parma) calling the Duchy his own (nostro ducato
di Parma,) declaring the edict void, forbidding all ecclesiastics to obey
it, and pronouncing that all concerned in the publication had incurred
(z) Histoire de France, par H. Martin, tom. xvii. p. 293, ed. 1851.
(a) See Appendix to Report from Committee on Regulation of Roman Catholics
in Foreign Countries, ordered by the House of Commons to be printed in 18161817, and to be reprinted in 1852. In this publication, but still more in the
Correspondence respecting the Relations existing between Foreign Governments
and the Court of Rome, printed by Parliament in 1851, is contained a vast mine
of information. No work exists which gives the modern history of these relations
with a fullness of detail at all comparable to this latter publication, and the
authority furnished by the minister of each country is indisputable.




242   PHILLIMORE ON INTERNATIONAL LAW.
the censures of the Bull In Coenm Domini, and could not be absolved
except by the Pope or his successors.(b)
Du Tillot, the Minister of Parma, appealed to the Courts of Europe
against this act, and not in vain; for the reference to the Bull Liz Cmna
-Domini had exasperated all the Sovereigns, and the Bourbons were also
especially offended by the aggression on their kinsman.  Portugal condemned the Brief. The King of Spain put out an edict that the Bull
In Coena had never been received in his dominions.  The Parliament of
Paris reprobated the Brief,(c) and observed that all countries rejected
the IT, Coena Bull, attacked violently the continual reappearance of
obsolete and illegal pretensions of Rome and expressed indignation at
the censure on the exequatur, "which is the lawz of call countries, and
par'ticularly of Fqrance," and requested that the law, contained in
the 77th article " of our liberties," should be enforced, viz, c"that all
Bulls and despatches coming from. the Court of Rome, without exception, are to be examined, to ascertain whether they do not contain any
thing that in any manner may prove prejudicial to the *rights
L1366] and liberties of the Gallican Church,(d) and to the authority of
the King."  The principal propositions maintained by this Parliament
were embodied and promulgated in a Royal Declaration in the same
year.
The Pope found no support.  Maria Theresa coldly replied to his
solicitations for aid, that it was not an affair of religion, but of State
policy. Venice declared also against the Pope. The King of Naples
invaded Benevento and Pontecorvo; the King of France Avignon and
the Venaissin.  All the Sovereigns demanded the recal of the Brief, and
the Papal suppression of the Jesuits.
CCCXLVI. Clement XIII. died in the  midst of this tumult.
Clement XIV. (Lorenzo Ganganelli,) leaningr ather to the Regalisti who
counselled concession, than to the Zelanti, who wished to uphold all the
claims of Rome, restored peace.  He prohibited the reading of the Bull
In  Ccend, made concessions to Sardinia, sent a Nuncio to Portugal,
suspended the monitoriunz against Parma, and in 1773, true to the
policy of the Roman See in the case of the Templars,(e) pronounced the
decree of dissolution against the most faithful soldiers of his see, the
Jesuits.(/)
The Revolution was followed (1789) by the confiscation of the property of the Church, and what was called the civil constitution of the
clergy, one main feature of which was that the Bishops, though they
were to announce in writing their appointment to the Pope, were not to
receive from  him  canonical institution, but from the Metropolitan or
(b) Coppi, i. p. 77. Martens Tr. i. p. 495.
(c) This arret (26th February, 1768) of Parliament is referred to a clear law in
the first of the Organic Articles. —Vide post.
(d) Requisition of the Attorney-General and Arret of the parliament of Paris.
Report of 1817, Parl. Papers, pp. 179-181.
(e) Vide ib. for Letters-Patent of the King in 1772, suspending the execution of
the arret; but the substance of it was proclaimed in a Royal Declaration, 8th
March, 1772. —Vide ib. pp. 178-181.
(f) Ranke.




PAPAL  RELATIONS WITH  FOREIGN STATES.   243
senior Bishop. Thirty Bishops protested against these measures and the
Pope condemned them in various Briefs.
CCCXLVII. We pass over the persecutions of the clergy, the history
of the Constitutional Church, the consecration of'constitutional
Bishops, and approach the second and the existing Concordat [*367]
of France, namely, that between Napoleon and Pius VII. in 1801. It
consists of seventeen articles.
The preamble recognized on the part of France, that the " Catholic
Apostolic Roman religion" was that of the great majority of French
citizens, and, on the part of Rome, that great advantages had accrued,
and were expected, to this religion from the re-establishment of it in
France and the public profession of it made by the Consuls; that a new
arrangement of diocesses, cc de concert avec le gouvernement," should be
made; that the First Consul should nominate, and the Pope institute
Bishops, according to the ancient forms used in France; that the Bishops
and Ecclesiastics of the second order, before entering into their functions,
should swear obedience to the Republic, and not to abet by council or
undertake any plot, " soit au dedans soit au dehors," contrary to the
public tranquillity, and to reveal anything of the kind to the Government.
It provided that the First Consul should have the same rights and prerogatives as the ancient government. This Concordat was followed by certain Bulls, c"Indults," and Briefs(g) on the part of the Pope, the most
remarkable of which was the Brief oTam mnulta, in which the Pope, in
order to facilitate the new arrangements with Bonaparte, obliged eightyone Bishops, admitted to be " anciens et veritables Evdeques," as the
reward of their fidelity to the Church, and their loyalty to the Crown,
to resign their sees. Forty-five submitted; thirty-six(h) resisted.  It
should never be forgotten that the Pope proceeded, by the Bull Qui
Ch/risti Domini to deprive these thirty-six *prelates of their sees,
without a form of a canonical judgment, without an allegation of [68]
fault, much less of crime, upon the naked plea of the necessity of the
time.  Civil history might be searched in vain for an act of more flagrant
injustice. Ecclesiastical history affords no precedent, and will, it may be
hoped, afford no imitation, of so barefaced a contempt for all moral right
as well as all Canonical Law and custom. The very apology gave the
enemies of religion the occasion of rejoicing at the practically acknowledged dependence of the Church upon the State.
CCCXLVIII. Little good accrued to the Roman See from the servility
to Napoleon.  On the very day upon which the Concordat was published
articles orgafniues of the Government were issued; which, though remonstrated against by the Pope, and though their abrogation formed a part
of the abortive Concordat of 1817,(i) remain, it should seem, to this day
(g) Ecclesia Christi, 15th August, 1801. Qui Christi Domini, 30th November,
1801. Indult. Apostolicse Sedis, 9th April, 1802, by the Pope's Legate, Caprara,
diminishing the number of Festivals.
(h) Some of these retired to England. They formed what was called " La Petite
Eglise," and which, like the Nonjuring Church in England, continued to exist for
some time. Indeed, it would appear not to have been wholly extinct in 1852. For
some account of them, see The Guardian of February 4, 1852.
(i) Lequeux, iv. 400.




244    PHILLIMORE ON INTERNATIONAL LAW.
a loi de l'tEtat.(k)  These articles were prefaced by Portalis (no mean
name in French jurisprudence.)  They contain provisions with respect
to the verification of Balls, the Delegates of the Pope, the Decrees of
Councils held out of France, and of General Councils, and of the Appel
conmme d'abus (with a very long enumeration of possible cases for its
exercise,) which secured the independence of the kingdom  in a more
stringent manner than any preceding edits or regulations had done.(l)
The memorable journey of Pius VII. to Paris, his consecration of Napoleon, their subsequent quarrel, chiefly on the Bulls of institution, the
outrage offered to the Pope at Rome, Napoleon's demand that the Holy
See, in logical consistency with its claims and position,(m) should cease
to'hold any communion with Schismatics like Russia and Eng-.[369] land.  The final annexation of the Papal dominions to France
by the decree of Schinbrunn(n) (17th May, 1809,) the scandalous seizure
of the Pope, his imprisonment(o) at Savona and Fontainebleau, and the
excommunication of Napoleon, are pages of history well deserving of
study, but which the limits of this work compel us to pass by; nevertheless, it belongs to the object of this chapter to notice that Napoleon sought
to justify his outrage by referring to the donations of his c" auguste predecesseur," Charlemagne, to the Roman See, as having caused an incompatible mixture of temporal and spiritual power, fruitful in discord,
because it had always induced the Pope to employ the influence of the
latter to support the pretensions of the former.(p)  At the very time
when Napoleon brought these charges against the Pope, he meant to
make his spiritual power a political instrument, and to fix his residence
in France.
CCCXLIX. The Pope resorted for his defence to the weapon of his
predecessors; he issued a Bull(q) of excommunication, not against Napoleon by name(r) but against all who had in any way perpetrated, connived, assisted at, or counselled the division and rapine of the Holy See.
This is the last instance in history of the exercise of this power by the
Pope.  It was couched in different language(s) from  the Bulls against
Henry VIII. and Elizabeth; it did not call upon the subjects of the exs
(k) The clause for its abrogation was one of the impediments which prevented
the execution of the proposed Concordat; for the clause would have required the
consent of the Chambers  which could not be obtained.-Ib. 402.
(1) Article 23, and 24, provided for the teaching in all schools of the four Gallican propositions.
(m) Schoell. Archives Historiques et Politiques, ii. 3.
(n) Koch, Hist. des Tr. iii. 115.
(o) Napoleon's conduct was shameful, and wholly indefensible. But it is sometimes forgotten that the great Charles V. at the same time imprisoned the Pope
-and prayed for his deliverence from captivity, and that Charles V. was never excommunicated.
(p) It is truly said by Ranke, that the Constituent Assembly meant to detach
itself from the Pope, the Directory to destroy him, and Napoleon to make him a
tool.
(q) In the Memorie del Cardinale Pacca, i. 234, this Bull is to be found in extenso. I cannot discover it in the volume of the Bullarium which relates to Pius
ViI.
(r) " Gubernium Gallicanum" occurs in the instrument.
(s) De Pradt, ii. 406-7.




PAPAL RELATIONS WITH FOREIGN STATES. 245
communicated Prince to rebel, or *upon foreign powers to invade
his territory, but it refused absolution from the penalties of the [*370]
]iajor Exconmmnunicatio, 4( donee omnia quomodolibet attentata publice retractaverint revocaverint cassaverint et aboleverint, ac omnia in pristinum
statum  plenarie et cum effectu reintegraverint, vel alias debitam et condignam Ecclesise ac nobis et huic sanctae  Sedi satisfactionem in prcemissis
prcstiterint."(t)  The spiritual power of the Pope was therefore exerted,
if not to extend as it had been in 1707 and 1768,(u) yet principally to
recover territorial right and property: all these latter excommnications
were practical applications of the article in the Council of Trent(v) which
has been mentioned above, and which was cited in the Bull of Pius
VII. (x)
CCCL. At Savona the Pope consented, if consent can be predicated of
a prisoner, to the demand of his captor, that when a Bull of institution
had been refused by him on other grounds than those of personal unworthiness, the institution should devolve after six months on the Metropolitan.(y) This provision, which Roman Catholic Princes have always
striven for in vain, was also inserted in the fourth article of the Concordat,
signed at Fontainbleau, January 25, 1813.(z)  That Concordat the Pope,
as is well known, afterwards, though by no means immediately afterwards, repudiated, and it may always be truly said that, inasmuch as the
free agency of both parties is of the essence of a valid contract, and the
Pope was at this time a *prisoner,(a) and not permitted to consult [371]
with the advisers whom  he would have chosen, his approbation
was an extorted act and null.  Nevertheless, the great feature of this
Concordat was to secure religious peace to France; it prevented the possibility of the clergy and laity of France being deprived of the functions
of the Bishops at the arbitrary will of a foreign spiritual power. The
Pope would have been no longer able to refuse institution to a canonically
qualified nominee of the Prince, without assigning any reason, or assigning one which had a clear reference to temporal, and not to spiritual
grounds.  The Prince was obliged to nominate within six months, and
the Pope to institute within the same period, otherwise the institution
devolved on the Metropolitan, or on the oldest Bishop of the province.
Such a scandalous vacancy of sees, as has been already mentioned, could
never, under these regulations, have again disorganized the Church.(b)
(t) Memorie del Card. Pacca, p. 247.
(u) To support the claims of the Papal See to the Duchy of Parma, the Pope
twice issued excommunications-once in 1707, once in 1768-against the Duke of
Parma.
(v) Sess. 22, c. iv. is mentioned in Pacca, but it must be a misprint for xi.
(x) De Pradt, ii. 324. See the instrument of consent, p. 470.
(y) This was also declared, after the failure of the Ecclesiastical Council in 1811,
by the Edict of 5th August, 1811. The Pope at Savona agreed to this, but the
~Metropolitan was to institute in the name of the Pope.-De Pradt, 501, 512, n.
(z) See this Concordat, Pacca, ii. 215.
De Pradt says that Pacca belonged to that class of men " faits pour tout gater."
(a) 1" lMa ci siamo in fine sporcificati (sporcati.)  Quei Cardinali... mi strascinarono al tavolino, e mi fecero sottoscrivere," Pius VII. said to Pacca. At the
same time, it would seem, from what passed between them, as if, at that time, the
Pope did not intend to rely upon the contract being void, as extorted by force.Pacca, ii. 196-9.                                (b) De Pradt, iii. 13.




246    PHILLIMORE ON INTERNATIONAL LAW.
CCCLI. The restored House of Bourbon endeavoured to effect a fourth
Concordat, that of 1817, by which the Concordat of Francis I. should be
re-established; that of 1801, and the organic articles abolished: but the
attempt(c) was vain.(d)
CCCLII. We have now to consider the Papal relations with Germany,
and especially with Austria.
The effect of the Council of Trent(e) was to strengthen the power of
the Pope in those parts of Germany where a re-action had given the
Roman Catholics a decided triumph over the Protestants.
[*372]    *This increase of power was principally established and exercised
L[*12] through the intervention of the Papal nuntius.
The necessity of arranging the vexed state of ecclesiastical matters in
Germany, had, ever since the reign of Charles V., afforded the Court of
Rome an excuse for a perpetual nuntius atthe Imperial Court.
The necessity of the Papal consent to the interpretation and execution
of the Tridentine decrees, confirmed and enhanced the authority of this
minister.  In 1566, a nuntius had also been established at Lucerne, for
Roman Catholic Switzerland and for part of Germany.  During Clement
VIII.'s Papacy (1591-1605,) the nuntnius at the Imperial Court was armed
with full powers, and, for a considerable space of time, the Church in Germany was more immediately under the control of the Roman See, than it
had been at any time before the Reformation, while the rights and functions of her Bishops were overridden and enfeebled, if not quite absorbed,
by the plenitudo potestatis of the Delegate of the Pope.
The struggles, however, of the Gallican Church to restore the Church
to the primitive state in which she existed before the False Decretals had
been forged, to maintain the independent substantive rights of her native
Episcopacy, and to confine the primacy of the Pope to the definite object
of upholding, by his Patriarchate, the visible unity of the Church-these
struggles were not without their effect in Germany, and especially in the
vast domains of the House of Austria.
The beginning of the eighteenth century produced the great work of
Van Espen.(f)  It placed what has been called by German writers the
Episcopal System, upon foundations too deeply laid in historical erudition(g) to be shaken by any answer of the Roman See.
[*373]   *The work remains to this day the great light of Canonical
Jurisprudence.  Upon the principles which it contains, the relations of Church and State, both with each other and with Rome, might
find a peaceable and equitable adjustment.
(c) See this embryo, Ib. iii. 76, n.
(d) The negotiations continued till 1822. The Bull, Paternae Pietatis, recognising eighty French sees, appeared 10th October, 1822.-Lequeux iv. 406, &c.
(e) Eichhorn, I., B. i. Abschn. iii. c. 1, p. 294. Phillipps, 338, as to the effect
of the paritat system on the Empire.
(f) The Jus Ecclesiasticum universum hodiernae disciplin%, was published at
Cologne, 1702; also Tractatus de promulgatione legum Ecclesiasticorum ac speciatim Bullarum et Rescriptorum Curike Romanse. Van Espen was born 1646, and
died 1726.
(g) For which, however, he was much indebted to Thomassinus, and to the invincible argument drawn from that source.




PAPAL RELATIONS WITH FOREIGN STATES.  247
CCCLIII. The Episcopal system received a yet further support from
the writings of the Suffragan Bishop of Treves,(h) Von Hontheim,(i)
and from  the writers who flourished under the  protection  of Maria
Theresa and Joseph II. The reforms of this Emperor, hastily, perhaps,
and arbitrarily executed, were not ill received by his subjects.  So far
as they related to the relations of Austria with the Roman See, they
greatly curtailed the power of the Pope; they conferred upon the
Bishops authority over the Religious Orders, and forbad the latter to
have any relations with any foreign spiritual powers.  Dispensations
were no longer to be obtained from the nuntius, but from  the Bishop;
the " recursus" to Rome from the national spiritual tribunals was greatly
restricted; the promulgation of all Papal Briefs or Bulls was to depend
upon the permission of the Crown, signified by the Placet or Placitums
regteum.
By Imperial Decrees(j) of 1767, 1781, 1791, all Papal rescripts, as
well originals as copies, are to be submitted to the provincial Government, and afterwards to the supreme tribunal, with the opinion of the
Attorney-General and of the provincial Government thereupon.  This
law, however, applied *to all Papal rescripts of former times.  374
No one would use them without the imperial placet.                [   ]
The right to examine the credentials of Papal Legatees, the right to
dismiss, and the exemption from the obligation to them, was fully estab.
lished; all Papal reservation of benefices was entirely done away with
with by the Decree of October 7, 1782.  In 1781, the Minister, Prince
Kaunitz, wrote an answer to the complaint of the Pope's Nuncio, in
which he observed that abuses had been successively introduced " into
the doctrine of Jesus Christ propagated by his Apostles" which were
" contrary to the maxims of all good Governments; that the Pope had
no authority whatever in the State, except on dogmatical or mere
spiritual points; that the Emperor had only restored to the Bishops the
rights which the Pope had wrongfully taken from them."(k)
CCCLIV. In the year 1786 the erection of a new Nuntiatura at
Munich determined the Emperor to assemble at Ems the three Prince(l)
Archbishops of Germany (Mayence, Treves, Cologne, and the Archbishop
of Saltzburg, in order to consult in what manner the German Episcopacy
might recover the rights of which it had been deprived by the Pope.
The result of their meeting was expressed in what the Germans call a
(h) Eichhorn, ubi supr. Phillipps, iii. s. 136.
(i) Under the assumed name of Justinus Febronius, De Statu Ecclesise et
legitima Potestate Romani; Bullioni et Francof. 1763.-Ib. 1765.
Condemned by Clement XIII., 29th February, 1764.-Phillipps, ubi supr.
Pauli Jos. de Riegger, born 1705, died 1775, Institutiones Jurisprudentie Ecclesiasticse, Pt. iv. Vindob.: 1776, 1771, 1777. Eybel, Was ist der Papst? (Wien:
1782.) Ebenders, Was ist ein Bischof? Schram, Institutiones Juris Ecclesiastici
Publici et Privati, &c. Augsburg, 1774.
(j) Enchiridion Juris Ecclesiastici Austriaci.-Rechberger.  (Lintz: 1809,) i.
s. 272.
(k) See Parl. Papers, 1815-17, p. 84. Letter at length, Storia del anno 1782.
(1) Vide ante, their creation in Eichhorn, ubi. supr.




248   PHILLIMORE ON INTERNATIONAL LAW.
Punctation, signed atEms by four Archbishops, the highest ecclesiatical
authorities on this side of the Alps, in 1787-8.(mn)
Their resolutions deserve careful study; they upheld the Episcopacy,
and denied the claims of the Papacy, pretty much in the same manner
as England and Queen Elizabeth, before her excommunication, would
[*375] have done;(n) *for they expressly denied to the Papacy any
] authority or rights, but those which could be proved to have
been attached to it in the first centuries.  Joseph II., in spite of Plus
VI.'s journey to Vienna, was eager to reform the Church upon the
principles laid down by the Archbishops; but the Bishops collectively
gave him  no assistance.   The furies of the French Revolution were
about this time let loose upon terrified Europe; and in the midst of the
tumult of the Revolution, the Pope condemned the Synod of Pistoja
for adopting the maxims of the Gallican Church.
CCCLV. The scandalous treatment of Pius VI. by Napoleon, and the
eminent piety and virtues of this Pontiff, caused a general reaction in
his favour. After the dissolution of the ancient German Empire, in
1806, neither the ckRheinischle Bunci" nor the e" Deutsche Buznd,"(o)
which succeeded to it in 1815, intermeddled in religious matters, further
than to admft all persons professing christianity equally to civil and
religious rights.
CCCLVI. The secularisation of the German ecclesiastical property
was accepted as a fact of history by every body but the Pope, who
formally protested against it at the Treaty of Vienna.
CCCLVII. By a very recent Concordat, Austria has entered into
terms much more favourable to the Pope.(p)
CCCLVIII. It would surprise many superficial readers of history to
learn that no countries have more strenuously resisted the aggressions of
Rome than Spain and Portugal.(q)
-[*376]   *In the early annals of Spain, towards the beginning of the
[376 ] thirteenth century, Alonso X. makes no mention of Papal confirmation in the consecration of Bishops, when directions are given by
him as to the manner in which they shall be chosen. The Kings of
Arragon and Naples were in constant hostility with the Pope.
CCCLIX. It is true that, anterior to the Austrian Dynasty, —however
much the monarchs of Spain might have protested against the various
abuses of Rome, the sums of money extorted for dispensations, and the
(m) Joseph II., says Phillipps, iii. 378, " auf dem Puncte stand sich gfnzlich
von dem Oberhaupte der Kirche loszusagen."
(n) Report, &c. laid before Parliament (1816-17, reprinted in 1851) (pp. 86-96.)
The whole proceedings at Ems are set out at length in translation. See also
Resultate des Emser Congresses, von den vier Deutschen Erzbischofen unterzeichnet, u.s.w. Frankf. u. Leipz.: 1787-8.
(o) Eichhorn, K. R., B. i. Abschn. iii. c. 1.
(p) With respect to Hungary, see Conspectus Juris Publici Regni Hungariae, per
Czirdky (Vienna: 1851,) t. ii. c. ix. De Jure Regis circa negotia Religionis prmsertim, s. 479. The Pope confirms the Bishops nominated by the Crown; but the
Bishop, before such confirmation, is entitled to the dress, revenues, rank, and
seat, " sicut in Comitiis sic et in Synodis," belonging to his see.
(q) See papers, already referred to, laid before Parliament in 1814-1817, and
1851.




PAPAL  RELATIONS WITI  FOREIGN  STATES.  249
exemptions and exclusive privileges of the clergy,-the point upon
which the monarchs chiefly showed an energy, beyond that of merely
protesting, was, the nomination of Bishops, which they always maintained as an unquestionable prerogative of the Crown.
CCCLX. But after the Austrian Dynasty became seated on the
Spanish throne, the ecclesiastical independence of Spain was much more
firmly maintained.  The hypocritical prayers of Charles V., for the
liberty of the Pope whom he had imprisoned, have been already referred
to.(r)
In 1568, Philip II., in consequence of some attempt of the Pope to
invade the Royal Prerogative, declared that he had a right to present to
all the Bishoprics in Spain, and in 1588 created a Board (Supremo
Consejo de la Camnara) for the purpose of inquiring into and watching
over the rights of the Crown, and preventing their invasion by the See
of Rome. In 1633, Philip III. sent an embassy to Rome to demand a
reform of various abuses, and the Pope conceded a certain measure of
reform.
CCCLXI. When the Bourbons were seated on the Spanish throne,
the mixed character of the Pope as a temporal and spiritual monarch,
brought the Roman See into no small embarrassment.
In the European War of Succession, the Pope declared for the
Austrian Archduke. Philip V., indignant at this display of partizanship,
in 1709, forbad his subjects to hold any *communication with
the See of Rome.  In 1714, a Concordat was patched up between [37
Clement II. and Philip V., which was never published, and never in fact,
executed by Rome. The same fate attended another Concordat in 1717.
When the Infante Don Carlos conquered the Two Sicilies, the Pope
intrigued with the Italian party, which provoked the Emperor of Austria; while the King of Spain (Philip V.) ordered the Cardinal Aquaviva to leave Rome, and to bring with him all the Spaniards resident
there; and he promulgated several decrees, suspending every species of
communication, civil as well as ecclesiastical, with the Roman See.
CCCLXII. In 1770, a Pragmatic Sanction was promulgated on the
subject of communications with the Roman See, and in 1803, when the
Archbishop of Nicea was made the Pope's Nuncio at Madrid, a special
order was made by the King's Council as to the restrictions under which
his office was to be limited.  In 1805, the King put forth an Edict,
which, reciting " that there existed at the Court of Rome many ecclesiastics and secularised priests, who were employed in negotiating pontifical favours and dispensations, and in offering them to the ecclesiastics,"
ordered that every pontifical grant or reservation should be authorised
by the Visto Bueno of the King's general agent at Rome.
In 1806, "4 in order to strike at the root of the shameful traffic made
in Rome by some Spaniards of the pontifical favours," a Royal Cedula
directed that no dispensation or favour from the Roman Curia should be
valid unless demanded originally by the royal agent resident at Rome.
In the reign of Ferdinand VII., a report was made to him upon the
(r) Vide ante, p. 363, n. (o.)
NOVEMBER, 1855.-17




250    PHlILLIMORE ON INTERNATIONAL LAW.
Papal Rights in Spain,(s) in which, among other things, it was set forth
-"- Your Majesty is well aware that the Roman Curia is always under
vows to oppose your Majesty's prerogative.  It is true that all Briefs
and Rescripts from the Roman Curia must undergo a revision in this
kingdom; but *this, Sire, is a requisite not exclusively estabU[378] lished in Spain, it is used in all Catholic kingdoms under different names, although always intended for the same purposes.  It is
called Pase, Placito, Exequatur, Letters of Pareatis, or otherwise,
because all Sovereigns enjoy the same rights and have the same duties
imposed on them."
CCCLXIII. Before the death of Ferdinand VII., Amat de San Felipe,
Archbishop of Nicea, succeeded Cardinal Fiberi as Nuncio at Madrid.
The Pope's Brief accrediting him to the office was still awaiting, according to the law, the signature of the Council of Castile, when Ferdinand
died.
The practice of International Law required that the credentials of
the diplomatic agents be renewed. The Spanish Government immediately
communicated to the Pope the death of Ferdinand, and the succession
of Queen Isabella II. by virtue of the Pragmatic Sanction of 31st
March, 1830, (of which a copy was enclosed,) and the universal recognition
of her Majesty by her subjects. The Pope replied that he must abstain
from recognizing Isabella, and that he could not consider the Pragmatic
Sanction as conclusive evidence of her right.
It is worthy of remark, that at so very recent a date we find the Pope
maintaining in substance the old claim, sometimes said to be abrogated,
but which appears always ready to be re-asserted and re-exercised, of
interference in the political and civil affairs of a foreign independent
nation. If it be said that the Pope only exercised his right as a temporal
Prince in refusing to recognize Queen Isabella, then the event well
illustrates the incompatibility of the mixed spiritual and temporal claims
of Rome with the peace and independence of other nations.  The consequences were, that political relations were broken off between Spain
and Rome; that subsequently many episcopal sees became vacant, and
*379] the Spanish *Government, strictly in accordance with the Concordat, nominated the new  Bishops.   The Pope, however,
objected, not because the Bishops elect were objectionable on the grounds
of learning, morality, or doctrine, but because, not having recognized
Isabella II., he could not confirm her Bishops, which would imply his
recognition of her title.
It appears that the Pope afterwards offered confirmation on condition
that the presentation by the Queen was omitted, and that the words
" motu proprio et benignitate Sanctin Sedis" were inserted in their
stead.
This attack upon the most cherished prerogative of the Crown was
(s) Parliamentary Papers, 1851, p. 305.
" Y. v6 Vuestra Mragestad que la Curia Romana estv siempre en armas para
hostilizar las regalias de Vuestra Magestad."  Again, " Contra las demasias de la
Curia unas veces sorprendido otros engaiada, siemnpre enrpeiiada en estender sus
facultades fuera de sus justos limites."




PAPAL RELATIONS WITH FOREIGN STATES. 251
firmly resisted: and this scandalous state of the Church in Spain actually
continued till, in 1848, Queen Isabella was recognized by the Pope.(t)
CCCLXIV. Here then, as in the case of Napoleon, the Pope refused,
on grounds strictly political, the exercise of a strictly spiritual power,
without which the foreign country, over which he claimed to exercise it,
and in behalf of which he would have appealed to the people against
the Government, must be deprived of the most-essential elements of its
peace and well-being, namely, the reception and enjoyment of religious
rites.
CCCLXV. It seems necessary to make some remarks upon certain
Concordats which have been entered into between Spain and Rome.  On
the 26th of September, 1737, a Concordat was negotiated with Clement
XII., but it was not satisfactory; and Ferdinand VI., under the advice
of *his Minister, Jose de Carbajal, obtained through his ambas-  *380
sador at Rome Cardinal Portocorrero, upon the 11th of January, [80
1753, another Concordat, which regulated till 1851 the relations between
Spain and Rome.
By this instrument,(u) the right of naming to vacant Bishoprics
(Patronatos) in the kingdoms of Spain, Granada, and the Indies, which
Rome had been for ever striving to obtain, and which Spain had always
considered one of the first prerogatives of the Crown, was formally
admitted to belong to the latter. The Pope reserved to himself fifty.two
specified benefices, and was to receive 22,000,000 reales as a compensation
for the loss of fees on Briefs and Annates.
On the 16th of January, 1762, a Pragmatic Sanction was ordered by
his Majesty to be published, with the view of preventing, from this day
forward, the circulation of any Brief, Bull, or Papal letters, for the
establishment of any law, rule, or general observance, unless they be
ascertained to have been previously seen by his Royal person; and of
directing the Briefs or Bulls relating to transactions between private
individuals to be presented in the first instance to the Council."
CCCLXVI. On the 16th March, 1851, a Concordat was concluded
with Rome on terms more favourable to the Roman See,(v) than she had
hitherto obtained. The Roman Catholic Apostolical Religion, to the
(t) Vide ante, Pt. 5, c. iv. as to RECOGNITION generally.
Far wiser and sounder is the course of religious policy recommended by
Gioberti who maintains that Recognition is an essential Catholic doctrine:" Quando un governo a stabilito, quando 6 riconosciuto dai vari poteri della
nazione, e dal complesso degli altri popoli inciviliti e cristiani, B legittimo per
ogni verso, qualunque possa essere stato il difetto della sua origine; perche, supponendo eziandio questa origine viziosa, la legittimit, gli e conferita, dal concorso
degli altri poteri sovrani, interni ed esterni, che lo riconoscono. Tal' e la dottrina
cattolica cosi nella teorica come nella pratica; tal' e la sola dottrina, che s'
accordi coi principij delta diritta ragione. Se le massime dei legittimisti fossero
fondate, ed una dinastia riconosciuta da tutti i poteri interni della nazione, da
tutti i potentati esteriori, senza escludere il capo supremo della Cristianith, fosse
usurpatrice, non vi sarebbe forse un solo governo legittimo in Europa, e la
giustizia politica non potrebbe conciliarsi colla quieta degli Stati."-Gioberti,
Introduzione allo Studio della Filosofia, 1. i. pp. 102-3.
(u) The Bull is printed in Spanish and English in the Parliamentary Papers,
1851.
(v) Annual Register. vol. xciii. p. 464, (1851.)




252    PHILLIMORE ON INTERNATIONAL LAW.
exclusion of every other form of worship, is to have the rights and
prerogatives which belong to it according to the Law of God and the
sacred canons.(x) The possessors of Church property are quieted in
their possession.(y) The prerogatives of the Crown are *retained,
C[381] and also the Convention of 1763, except in so far as it is abrogated from by this Concordat.(z)
CCCLXVII. The subject of the Papal Relations with Spain must not
be dismissed without observing, that, when the year 1768 had produced,
as has been already mentioned, the famous Monitorio di Parma, nowhere
was this attempt of the Pope to use spiritual power for secular ends more
fiercely attacked than in Spain. It gave rise to two very important State
papers, in both of which the pretensions of Rome with respect to issuing
orders of any kind which were to take effect in a foreign territory without
the consent of the Sovereign, were most distinctly repudiated as contrary
to the private law of Spain and the public law of Europe.
1. The Royal Regulation of the Lords of the Council of his Majesty,(a)
whereby it was ordered that all copies of the Monitorium and all other
writings, letters, or despatches of " the Court of Rome," infringing upon
the Royal prerogative or other rights of Government, or likely to disturb
public tranquillity, should " not be allowed to be published or printed;
that, on the contrary, they are to be delivered immediately to the Council, under pain of death against the notaries and lawyers who act contrary
to the present regulation, and of the other penalties pronounced against
all other individuals in conformity with the dispositions of the 25th law,
tit. 3, lib. 1, of the collection of statutes called Recopilacion, which is
annexed." That law recites "4 that every day there are received in our
kingdom regulations from the Court of Rome, derogatory to their preeminence and the immemorial customs of the country, and requesting a
remedy," and then provides the penalty aforesaid.(b)
[*382]   2. The circular of the Minister accompanying the preceding
[*382] *edict and prohibiting the publication of the Bull under severe
penalties.  Precedents were cited extending from 1551 to 1766, in which
Spain had resisted and considered;" as affronts," for which;" satisfaction"
was to be demanded, all attempts of the Court of Rome to promulgate
any instruments affecting the subjects of Spain without the consent of
the Crown of Spain.  " All these precedents" (says the 22nd paragraph
of this State Paper,) 4" with many more that are not stated here, the constant tradition of the learned in the law of the kingdom, and the practice
of its superior courts of Justice, show evidently that the reasons of the
said monitory In Coevnl Domini have no force whatever in Spain, as far
as they infringe upon the independent authority of Sovereigns in temporal
matters, obstruct the functions of magistrates, facilitate the Pretensions
of the Court of Rome, and disturb the tranquillity of the country to which
the harmony of the State and Church is so greatly conducive."
CCCLXVIII. The history of the Lusitanian Church and Kingdom
present pretty much the same picture, as that of the other realms of
Christendom, up to a certain epoch.  Portugal is perhaps distinguished,
(x) Art. 1.                (y) Art. 42.                 (z) Art. 44.
(a) Parl. Papers, p. 211.                  (b) lb. p. 214.




PAPAL RELATIONS WITH  FOREIGN  STATES.   253
among modern Roman Catholic countries, for the firmness with which
it has repelled the attempts of Rome to infringe upon national independence.
Towards the end of the eighth century,(c) after the expulsion of the
Saracens, we find the clergy and people electing the Bishop, the Monarch
consenting, the Metropolitan confirming, Provincial Councils, or Popes
resorted to in case of doubt.  From the beginning of the fourteenth to
the middle of the fifteenth century, the Pope had usurped the right not
only of confirming but of nominating Lusitanian Bishops. About 1440,
Dom Alphonso V. firmly established the royal right of presenting to the
vacant sees, though for some time the Bulls of confirmation contained the
phrase ad stpplicationem and not ad prmasentationen.  During the time,
however, *that Portugal was under the Crown of Spain, the Spanish [383]
monarchs admitted no such limitation of their privilege, and afterwards when Portugal secured her independence, her Kings, Dom John
IV., and V. steadily maintained this right; till at last Benedict XIV.,
by a decree of 12th December, 1740, determined that the appointment
to all the cathedrals of Portugal should be c curm clausula, adprcesentationern regis.(d)
CCCLXIX. King Joseph issued an edict, dated 6th April, 1768, forbidding, under severe penalties, the importation and promulgation of the
Bull In Ccena Domini, and of the indices expurgatorii. Various subsequent royal edicts to Nuncios, Cardinals, Patriarchs, and Abbots-General,
were issued, having for their object to prohibit the promulgation of Papal
Briefs unsanctioned by the Placitum  Regium; the same doctrine is repeatedly enunciated by the Portuguese publicists and jurists.(e)
In 1815,(f) the attempt of Pope Pius VII. to re-establish, by the Bull
Solicitudo omnium, the Jesuits in Portugal, was met by the firm and
peremptory refusal of the Government, and by an expression of their
determination to "maintain in their utmost rigour," a municipal ordinance of a directly contrary tendency.
In 1822, the Pope's refusal to confirm the Episcopal nominee of the
Crown produced the following significant remonstrance from Carvalho,
the Minister of the Crown, addressed to the Portuguese Minister at
Rome.
" If his Holiness should still persist in delaying the confirmation of
the Bishop-elect as coadjutor and future successor of the Bishop 6f Coimbra, you will acquaint him, in the most formal manner, that Hlis Most
Faithful Majesty, while he holds the respect he owes to the Holy Apostolic See and to the Holy Father, as a sacred duty, holds it a no less sacred
duty to uphold the rights of his *Crown-rights which his august [*384
ancestors so often and so gloriously upheld.  If His Holiness [38
should still persist in delaying the confirmation of the Bishop-elect as
coadjutor and future successor of the Bishop of Coimbra, you will acquaint him, in the most formal manner, that His Most Faithful Majesty
is firmly resolved to make use of the right established by the fourth Ca(c) Parl. Papers, 1851, Portugal, Historical Memoir, p. 111.
(d) Parl. Papers, 1815-16, p. 241.  (e) Ibid. 1816-17, pp. 231-239.
(f) Ibid. pp. 244-5.




254   PHILLIMORE ON INTERNATIONAL LAW.
non of the Council of Nice, cEpiscopum oportet maxim8 quidem ab omnibus qui sunt in provincid constitui;' and by the twelfth Canon of the
Laodicean Council,' Episcopi judicis metropolitanorum,' a right which was
confirmed by Innocent I., Dis. 64, Can. 5, by St. Leo in his letter to
Anastasius of Cephalonia, by the seventh Council in the second Canon,
and finally understood and confirmed as a general right in the Decretals
of Gregory IX.  His Holiness is aware that Bishops have been thus
confirmed and consecrated for thirteen centuries; and, as the holy Church
of Jesus Christ neither did nor could change character, the Bishops confirmed and consecrated now as they were in those happy times, are as
much Bishops, and have the same jurisdiction and authority as they possessed during these thirteen centuries.  For the more prompt and legal
execution of this resolution, His Majesty even now keeps vacant the
Bishopric of Tangiers, which is in the Royal gift, as you yourself have
lately observed.
"c Finally, you will inform  His Holiness, that the abuse of authority
frequently occasions the adoption of measures of expediency and emergency; and that should His Majesty decide upon the confirmation and
consecration of one Bishop in this manner in his dominions, he will follow the same course and the same doctrine of the Church with regard to
all Bishoprics which he may have to bestow."(g)
This despatch was dated 8th February, 1822. In a subsequent despatch to the same minister upon the same subject, dated 13th March,
~[*385] 1822, Carvalho, after citing Van Espen as *authority for the jus
commune of the Church, and declaring that His Majesty was
acting both cc as the defender of the canons of the Church," and also of
" the rights of his Crown," concludes, "c But if you see that the spirit of
prepossession or rather of discord is perceptible in the Vatican, you will
make use of the instructions which His Majesty directed to be sent to
you on the 8th of February this year, protesting against the innovation
and the false doctrine of paying more attention to a private letter than to
legal testimonials: and you will prepare a note, stating to His Holiness,
that His Most Faithful Majesty renews his declaration of adhesion and
faithfulness to the Apostolic See, but that availing himself of the rights
of the general law (mas que utilisando se do direito commum) and of
the best ages of Christianity, he not only proceeds to the conf rmation of
the Bishops of his kingdom by the Metropolitans, but determines that both
the one and the other shall grant the dispensations and the spiritual favours which they may grant as the successors of the Apostles and the depositories of the authority necessary for suplplying the wants of their
Churches and flock; depriving of his royal approbation all and any
Bulls issued in Rome, or here, by the Apostolic Delegate.  Such are His
Majesty's orders to you."(h)
CCCLXX. The language of these instruments and their date are remarkable.  In them not only the superiority of the jus commune of the
(g) Parl. Papers, 1851, pp. 139-40.
(h) Parl. Papers, 1851, p. 143. In the first despatch it is said:'' His Holiness,
in the present instance, has no rig/it to judge unless secundum allegata et probatea"
(Sua Santitade no caso presente nao tern direito de julgar, se nao secundun allegala et
probata.)




PAPAL RELATIONS WITH FOREIGN STATES. 255
Catholic Church over the Pope, and the rights of the Crown are distinctly
asserted, but, as appears in the last extract, a position is taken up scarcely,
if at all, different from that which has been since the time of Henry VIII.
occupied by the national Church of England.
*CCCLXXI. There is no existing Concordat between(i) Portu- [*386]
gal and Rome.  There appear to have been Concordats of Pedro
I. and John I., but none of later date.
CCCLXXII. We have now to consider the Papal relations with the
Kingdom  of the Two Sicilies.(j)  By a Bull, dated A. D. 1076, Pope
Urban II. created Roger, Count of Calabria and Sicily, perpetual Legatus
of the Roman See,-a distinction which has been transmitted to the existing monarch of the two Sicilies.
By a Bull(k) of 1139, Innocent II. confirmed the act of his predecessor,
whereby the kingdom of Sicily, the Duchy of Apulia, and the principality of Capua, were conferred as a feudal tenure upon Roger II.
CCCLXXIII. This tenure continued till a very late period. For six
centuries the white palfrey (chinea) and 7000 golden ducats had been
claimed, and generally obtained, by the Popes, as the mark of the feudal
homage due from the Crown of the two Sicilies.
It was not till the year 1776 that Ferdinand (the First(l) of Naples)
availed himself of a quarrel which arose during the ceremony of presenting these gifts, between the Ambassador of Spain and the Governor of
Rome, altogether to get rid of this homage.(m)
Lamenting that an act of devotion towards the Holy Apostles should
have given rise to a public quarrel, he announced, or rather his able minister Tanucci announced, that henceforward *the ceremony of *387
presenting the palfrey should altogether cease, and that the ducats [387
should be privately presented as the free gift of a devoted son of the
Church.
Rome protested(n) then, and, it is said, protests now, against this disobedience of the Neapolitan Court.
CCCLXXIV. The Two Sicilies, after the expulsion of the Anjouan
race, followed the policy of the Arragonese, Austrian, and Spanish kingdoms, to which, until the middle of the last century, they were successively appended.(o)
The Spanish Viceroy refused to give the Royal Exequatur to the pro(i) Parl. Papers, 1851, p. 108. Ib., 1816-17. Attorney-General's Petition, p.
234. The originals are said to be in the Royal Archives of Torre de Tombo, and
to be found in Gabriel Pereira de Castro's Monomachia, at the end of his first
Treatise, De Manu Regia.
(j) Schmauss, i. 1. " Nullum in terra potestatis vestra, praeter voluntatem ant
consilium vestrum Legatum Romanae Ecclesise statuemus."  The conquest of the
Saracens and the aid borne to the Church are assigned as the meritorious cause
of the extraordinary power.
(k) lb. 1.                    (1) Sometimes called Ferdinand IV.
(m) Colletta, Storia del Reame di Napoli, 1. 2, xiii.
(n) " E il Papa rifiutandoli dichiaro pia che mai solennemente le sue ragioni e
la disobbedienza (cost la diceva) della corte di Napoli."-Colletta, Storia del Reame
di Napoli, 1. 2, xiii.
(o) The House of Anjou reigned at Naples about 160 years after they had been
expelled from Sicily in 1282. Alphonso of Arragon first took the title of King of
the Two Sicilies, A. D. 1442-3.-Giannone, 1. xxv. c. 7.




256   PHILLIMORE ON INTERNATIONAL LAW.
mulgation of the Council of Trent; and though the decrees of that Council were allowed to be dispersed over the kingdom, orders were sent to
the President and other officers of the kingdom to suffer no innovation to
be introduced injurious to the royal prerogative.
The Bull In Coena Domini was as stoutly resisted, and the necessity
of the Regium Exequatur(p) as steadily maintained as in other countries.
CCCLXXV. In 1728, Benedict XIII. decreed that the service in honour of Pope Gregory VII. should be performed by the secular and regular
clergy.  The decree was reprinted *and published at Naples.
The Secretary of State(q) reported to the Emperor Charles VI.
that he had found, in the service ordered to be used, these words;
cc 4 contra H:enrici imperatoris impios conatus fortis per omnia athleta
impavdiclus permansit, seque pro muro domui Israel ponere non timtuit,
eundem Henricum in profundul  malorum prolalpsusn fidelius  communione, regnoque privavit, atque subditos popoulos  fide ei data iiberavit.'
The meaning of these words," continues the Secretary of State, c "appearing to me too injurious to the authority of Princes, too favourable to
seditions, and contrary to the tranquillity of the State, I thought it right
to leave the business to the Delegate of the Royal Jurisdiction, that he
might lay it before the Court, as he did in my presence, where the import of the said words having been duly weighed, they were easily perceived to betray the vast design harboured by the Court of Rome to attempt to make itself a sovereignty over all the temporal Princes and to
render them, as it were, its subjects and dependlants  so that the Papal
Court might deprive Kings of their kingdoms, and transfer them to whomsoever it liked best —a strange and unjust conceit, directly contrary to
the institution of the Pontificate.         The serious and intolerable
evils accruing to the independence of Princes in general, and to your
Majesty's Imperial and Royal Rights in particular, from the publication
of the aforesaid lessons, would authorise u%, in imitation of the usages
and the prudence of the Court of Rome, to prohibit the lessons themselves, charging the Bishops not to insert them in the Breviary.  But,"
continues the Secretary, alleging various reasons, " it is thought more
advisable simply to order the printers to. be confined, and all the copies
of the said lessons to be seized, for no other ostensible motive than because a foreign publication had been imported, reprinted, and sold with[*389] out any previous license, contrary to the Royal Regulations,
*and particularly, because the reprint is said to have taken place
(p) In the thirty-third book of his History, Giannone devotes chap. iii. to the
disputes about the reception of the Council of Trent; in chap. iv. he discusses the
reception of the Bull In Ccen'a Domini, in chap. v. the necessity of the Exequatur
Regium for all mandates from Rome: but see more especially the sixth chapter of
the fortieth book, for the account of the strenous maintainance by Charles VI. of
the Regium Exequatur against Clement XI., " Stabili fermamente la necessitk del
Regio Exequatur in tutte le Bolle, Brevi, o altre provisioni che vengono da Roma."
This was vehemently condemned by Clement XI., but acquiesced in by his successor, Innocent XIII.
(q) Consultation of the Secretary of State, &c.




PAPAL RELATIONS WITIH FOREIGN STATES. 257
with the permission of the magistrates, when no such permission had
been granted.(r)
CCCLXXVI. (s)In 1761, the Secretary of the Delegates of the Royal
Jurisdiction at Naples, referring to what had been done in 1728,(t) prohibited in the kingdom  the use of ordinarii (prayer-books) which contained directions for reading the service to Gregory VII., and the Bull
In CcenG2, and what were called "4casus sreservati Emninentissimo et Reverendissimo Domino."
In 1769, Ferdinand I., by the advice of Tanucci, would not allow the
Papal(u) confirmation of the Archbishop of Naples to contain the words,
" Per grazia della Sede Apostolica."  Shortly afterwards, the Pope refused to consecrate the Bishop nominated by the Crown to the See of
Potenza, and persisted in the refusal till the King wrote to him that, if
the consecration should be longer delayed, he would cause each new
Bishop, in every province of his kingdom, to be consecrated by three
existing Bishops, according to the ancient practice of the Church.
CCCLXXVII.  (x)The existing Concordat(y) between Rome and the
Two Sicilies bears date the 16th February, 1828; the 29th article of
which contains the following oath:"II swear and promise, on the holy Gospels of God, obedience and
allegiance to his Royal Majesty; and I also promise, that I will have no
conmmunication, that I will not partake in any design, that I will maintain no suspicious connection, either at home or abroad, which may endanger public tranquillity; and that if I am aware that any machination
*is being carried on, whether in my diocese or elsewhere, to the
disadvantage of the State, I will make the same known to his [*390]
Majesty." (z)
CCCLXXVIII. With respect to the Kingdom of Sardinia, the Dukes
of Savoy appear to have had, like other Sovereigns, contests with the
Pope at an early period.(a)  The earliest document relating to that part
of the Regale which concerns the nomination to bishoprics in the kingdom of Sardinia, is a Brief of Nicholas V., in which he promises Louis
II., Duke of Savoy, never to institute any persons to any archbishopric,
bishopric, or abbey, "nisi habitis prius per nos intentione et consenstm
ipsius Ducis."(b)
CCCLXXXIX. The Right of Royal Nomination was further confirmed by a Brief of Leo X., in 1515, in the text of which the above
expressions of Nicholas V. were referred to, and by the Brief of Clement
(r) Parl. Papers, 1816-17, pp. 151-4.
(s) Ibid., p. 156.
(t) Consultation of the Marquis Nicolas Fraggiani, &ec.   (u) Pius VI.
(x) Parl. Papers, 1851, pp. 274-278, where it is set out.
(y) A Convention, which I have not seen, is said to have been drawn up in
1838.
(z) Parl. Papers, 1851, p. 287.
(a) Ib., 1816-17, 1851. Six volumes of Treaties between the House of Savoy
and Foreign Powers are referred to.
(b) "Neminem proeficiemus seu illis (alluding to archbishoprics, bishoprics,
abbeys) de quorumcunque personis non providebimus nisi habitis prius per nos
intentione et consensu ip2sius Ducis, de personis idoneis ad hujusmodi regimine seu
dignitatis promovendis, vel de quorum personis tales provisiones fuerint facienda."




258    PHILLIMORE ON INTERNATIONAL LAW.
VIII., on the 19th of June, 1595, to Duke Charles Emanuel. There
are also Briefs of Sextus IV., Innocent VIII., and Julius II., restricting and prohibiting the nomination of strangers to benefices in Sardinia.
The royal privileges were admitted, by a Brief of Innocent XII. on
July 31, A. D. 1700, to extend to the dominions of the House of Saxony,
south of the Alps. This was in the reign of Victor Amedeus, the first
King of Sardinia.
CCCLXXX. By three successive Concordats of 1727, 1741, 1750,(c)
the Regale was further confirmed, and extended to Churches formally
excepted; and the claims of the Roman Curia to the revenues of vacant
[*391] benefices, and to the property *of deceased clergymen, were abandoned.  In 1728, the civil and ecclesiastical rights were clearly
defined by Victor Emanuel, in the Code Vittorina, notwithstanding the
opposition of Clement XII.
CCCLXXXI. By the Regulations of 1770, (s. 6, c. 1,) it is provided,
that the nominations made by the Crown to the higher or consistorial
dignities, and which have been sent to Rome, shall be expedited by the
Secretary of State for Foreign Affairs; the patents of collation to any
ecclesiastical office shall be expedited by the Secretary of State for the
Home Department.  In 1831, a Minister for Ecclesiastical Affairs was
appointed, and upon him are now devolved the ecclesiastical duties of
the Home Secretary.(d)
CCCLXXXII. By a Royal Decree of 21st December, 1850, (s. 7,
Article 2,) it is provided, that the Council of Munster shall deliberate
on the proposition relating to archiepiscopal and episcopal sees, and that
the Minister for Foreign Affairs shall carry on all ecclesiastical negotiations with Rome.
CCCLXXXIII. As to the form of nomination to the Pope, the King's
representative at Rome delivers to His Holiness the royal letter announcing the individual nominated to the vacant see. Formerly these letters
contained the expressions ",in virtui"  or 4"in forza del diritto che ci compete nominiamo," &c.; but now the simpler form, e"abbiamo nominato
come nominiamo il.    alla vacante mitra," &c.  They conclude with
a request that the Pope will order the necessary provisions (provide~nze).
CCCLXXXIV. The right of the Exequatur has been always carefully
maintained in Sardinia.
The most ancient history of this country has records of the necessity
of the approval by the civil power of the provisions of *the
[392 ] Roman See.  The inspection of these documents was at first
intrusted to the Governors, afterwards to the Supreme Courts of Justice
or the Senates. The instructions to these bodies were that no Bull,
Brief, Letters, or Decree, should be published or executed until it had
been presented for the Exequatur. Notaries were strictly forbidden to
exercise their calling in the way of recording or authenticating any pro(c) Confirmed by a Brief of 11th June, 1791.
(d) By the 18th Article of the Constitution, the Crown exercises the rights of
the civil power in the matter of benefices and nominations.
By s. 1, of Article 6, of the Royal Decree of 21st December, 1850, the royal
patronage belongs to the Minister for Ecclesiastical Affairs, Grace, and Justice.




PAPAL RELATIONS WITH FOREIGN STATES. 259
vision proceeding from Rome, for which the Exequatur had not been
obtained. The right of the Exequatur was, moreover, recognized by
Benedict XIV. in his " Concordata Istruzione Pontificia" of 1742, which
had reference to the Concordat of 1727.
In 1787, a Sardinian agent was established in Rome, according to the
example of other Courts, with a royal office, through the agency of
which, all petitions, without exception, of Sardinian subjects, for provisions which were to have effect "c nel foro esterno," were to be obtained.
When Genoa was annexed to the Sardinian monarchy, the Legation of
Piedmont was extended to this new acquisition.
And lastly, by the Decree of April 25, 1848, all provisions from
Rome must receive the Royal Exequatur before they can be considered
by the tribunal, or executed by the prelate or any party charged therewith. The only exceptions appear to be provisions respecting matters
purely spiritual, such as dogmatical Bulls, indulgences, jubilees, &c.
In Savoy and the other provinces, where the Gallician customs are
still in use, nothing is exempt but the Briefs of the Sacred Penitentiary
or the sealed letters sent to confessors with powers reserved to the Pope
to absolve from certain sins.
CCCLXXXV. The ancient Florentine Republic,(e) the Government
of the Medici, and of the Austrian and Bourbon family, have been in
succession equally watchful to prevent any *infringement of the
sovereignty of the State by the act of any foreign power.   [3931
CCCLXXXVI. Under this category they appear always to have considered the exercise of Papal authority within their dominions, which has
been regulated by a series of laws issued by the sovereign authority of
the State, and which have been constantly enforced; and the necessity
of the Regium. Exequatur has been maintained in Tuscany with great
vigilance.(f)
On the occasion of the vacancy of an episcopal see, the Sovereign of
the Grand Duchy causes a list of four candidates to be presented to the
Pope, with an understanding that the first must be chosen, even if he be
not duly qualified.
This custom appears to be immemorial, and to have been sanctioned
by various pontificial Briefs.  Every subject of the Grand Duke must
obtain the permission of the Government previously to applying, in any
matter of ecclesiastical jurisdiction, to the Pope; and every Brief or Decree obtained in consequence of the application must be sanctioned by
the Placet or "c Regio Exequatur" of the Sovereign, without which no
Papal Brief, Bull, or Decree has any judicial validity in any civil or
temporal matters.
CCCLXXXVII. A recent Concordat has been entered into between
Rome and Tuscany, and, like that of Austria, very favourable to the
Roman See.
CCCLXXXVIII. No State ever more strictly resisted the Papal authority than Venice.(g) She excluded ecclesiastics from the councils and
(e) Parl. Papers, 1816-17, p. 109. Ibid., 1851, p. 329.
(f) See especially the Circular Letter of Duke Leopold, 25th October, 1797.
(g) Parl. Papers, 1816-17, p. 106.




260   PHILLIMORE ON INTERNATIONAL LAW.
public employments of the State.  The Government of her Church was
divided between the patriarchates of Venice and Aquileia.
When Sixtus IV. excommunicated Venice,(h) the Council of Ten
ordered the Patriarch and all the Venetian clergy to transmit, unopened,
[*394] to the inquisitors of the State any Bull *that might be addressed
to them by the Holy See. These commands were strictly obeyed.
An appeal was lodged with the tributary Patriarch to a future council,
from the sentence of excommunication. The Patriarch, in consequence
of the appeal, suspended the interdict, and sent a summons to the Pope
to appear before a future Council.
In 1754 the Ventian Senate put forth a decree, forbidding the publication of any Bull; and in the same year expressly prohibited Venitians
from applying to Rome for any dispensation which could not be obtained
through the Bishop, and from applying at all to Rome except through
the Bishop.
CCCLXXXIX. (i)With respect to Bavaria, the Treaty which regulates
the relations between that kingdom and the See of Rome is the subsisting Concordat of 1817.(k)
It begins as follows: ", Sanctitas sua Summus Pontifex Pius VII. et
Majestas sua Maximilianus Josephus Bavarise Rex, debith solicitudine
cupientes, ut in iis quse ad res ecclesiasticas pertinent certus stabilisque
in Bavariae regno terrisque ei subjectis constituatur ordo, solemnern propterea conventionemn inire decreverunt."
It provides for the nomination of Bishops by the Crown to be followed
by the confirmation of the Pope, and that the prelates shall take the following oath on their installation:" Ego juro et promitto ad sancta Dei Evangelia obedientiam et fidelitatem Regire Majestati: item promitto me nullam communicationem habiturum, nullique consilio interfuturum, nullamque suspectam  unionemr
neque intra neque extra conservaturum quse tranquillitati publicee noceat,
et si tam in IDiocoesi meac quam alibi noverim  aliquid in Statuis damnum
tractari, Majestati suvm manifestabo."
5  CCCXC. Contemporaneously with this Concordat was pro["3953 mulgated what is called the ", Religion Edict"(1) in the Bavarian
Constitution (Part 3, par. 58, 59,) containing these provisions:" 58. In conformity to the general mandates hitherto existing in the
royal dominions, no laws, ordinances, nor other regulations issued by the
Church shall be promulgated and carried into effect without the sovereign
concurrence and sanction.  The clerical authorities are bound, after receiving the royal sanction for the promulgation (placet,) to state the same
expressly on all occasions, at the outset of the publication of the ordinances issued by them.
" 59. Public notices issued by the clerical Government, which refer
solely to the priesthood under its authority, and which emanate from
(h) Sismond de Sismondi, Hist. des Rep. de l'Ital., ii. p. 235.
(i) Parl. Papers, 1851, p. 47.
(k) Eichhorn, Kirchenrecht, B. iii. Abschn. i. 11, p. 564. Phillipps, Kirchenrecht, B. iii. Kap. 10, Abschn. 145.
(I) This Concordat will be found in the Appendices to the works of Eichhorn
and Phillipps, and in the Parl. Papers of 1851.




PAPAPAL RELATIONS WITH PROTESTANT STATES. 261
approved and universal regulations, require no renewed sanction. This
placitum regqium is accorded by the King."
In 1824 these provisions were revised and extended.
In 1852 a Concordat was signed between the Pope and the President
of the Republic of Costa Rica, which provides:Art. 1. The same declaration as in the last Spanish Concordat as to the
Roman Catholic Religion.
Art. 4. That the Sovereign Pontiff being the chief of the Universal
Church, the Bishops, Clergy, and People may have free intercourse with
him,
Art. 7, 8. A power of Nomination granted in return for Dotation.
Art. 14. "c That taking the times into consideration, civil causes and
temporal rights of ecclesiastics are to be tried before lay judges."
Art. 20. That no obstacle be interposed to the erection of monasteries
or nunneries.
sArt. 23. Public prayer to be-                            [*396]
"v Domine salvam fac rempublicam.," Domine salvum fac Prresidum ejus."
Art. 26. All laws, &c., at variance with this Convention are annulled.(m)
*CHAPTER VIII.                         [*397]
THE INTERNATIONAL RELATIONS OF THIE PAPACY WITH FOREIGN STATES
IN WHICH A PROTESTANT CHURCH IS ESTABLISEED.-BULLLE CIaCUMSCRIPTIONUM. (a)
CCCXCI. THE territorial changes in Europe,(b) and, indeed, in the
world, which followed upon the Treaty of Vienna, brought the Roman
See into immediate contact with Protestant States, with which it had
hitherto had no relations.  By that treaty, territories inhabited for the
most part by Roman Catholics, accustomed to acknowledge the supremacy
of the Pope as an indispensable part of their religious belief, were transferred to Sovereigns who had always considered the rejection and denial
of his authority as necessary for the political and religious welfare of their
dominions. Rome had no longer to deal exclusively with those Princes,
wholbore, as their proudest distinctions, the religious titles which she had
conferred upon them.  Her intercourse was no longer to be confined to
His Most Christian Majesty, The Catholic King, His Most Faithful
Majesty, or His Apostolical Majesty.
The Duke of Muscovy, whom Rome had not long ago regarded with
Chinese indifference as an outside barbarian, had become one of the most
(mz) Annuaire des Deux Mondes, 1852. See De Pradt, Concordat de l'Am6rique
avec Rome. (Paris: 1827.)
(a) De Pradt, Les Quatre Concordats, t. i. avant-propos,
(b) Walter, ss. 42, 43., as to the Greek Church.




262   PHILLIMORE ON INTERNATIONAL LAW.
powerful European potentates, uniting to his ancient title of Chief of the
Greek Church, that of Protector of ten millions of Roman Catholic Poles.
The King of Prussia, whom fifty years ago Rome had still addressed as
*the Marquis of Brandenbourg, had grown into a powerful mo[*398] narchy in fact as well as name; and had added to its compact
military State two ecclesiastical electorates, besides Prince bishoprics,
abbeys and chapters.
The Protestant Stadtholder of Holland had become possessed of that
ancient inheritance of the Catholic Sovereigns, the Belgic provinces, and
of the Prince Bishopric of Liege. Passing by, therefore, the revolutions
of Roman Catholic Southern America, in Europe alone a new order
of things had arisen, to which the application of Papal claims was a
matter of great novelty and nicety, not the less so, on account of the
remarkable circumstances connected with the Pope himself.  For he did
not pretend to be ignorant of a fact patent to the world, namely, that
his restoration to Rome was mainly owing to the energies and the arms of
schismatical and heretical powers; that Russia and Prussia-and, above
all, excommunicated England-had been the prinipal instruments in reseating him upon the pontifical throne, from which he had been dragged
by Roman Catholic France.
CCCXCII. The first remark which is of importance, the object of this
work being considered, is, that the Papal See has entered into no convention, strictly speaking, with any Non-Roman-Catholic State. Before
the year 1850, the only Concordat since the Treaty of Vienna which had
been entered into was one with Bavaria(c) in 1817, though a Concordat
very favourable to Rome is said to be still pending in Austria.
The communications between the Roman See and the Protestant States
of Germany have assumed the form of edicts on the part of the Pope,
with respect to the creation, restoration, and general adjustment of dioceses,
entitled " Bullse Circumscriptionis;" and on the part of the State
[*399] a *recognition of these Bulls in a domestic law or statute subsequently promulgated.
CCCXCIII.(d) To this adoption of the regulations of Rome by the
piacet of the territorial power, German jurists are careful not to ascribe
that binding power, for the future, which is inherent in a Treaty or Concordat. The acts of the State, which clothe these Papal Edicts with the
character of municipal law emphatically recite that their force, as such,
is derived from the Sovereign who promulgates then; and the Bulls relating to Prussia and Hanover recite that they have been framed with the
acquiescence and consent of the Sovereign.
CCCXCIV. The Bulla circumscriptionis for Prussia is known by the
title  i De Salute,' (e) the words with which the instrument begins; it
was accompanied by a letter beginning "Dilecti filii."  In both docu(c) Eichhorn, Kirchenrecht, I. Band, B. ii. Abschn. ii. c. 1. Phillipps, Kirchenrecht,-3, 523, for the status of the Roman Catholic Church, generally, in Germany.
(d) Vide Eichhorn, supra. Kldber, Oeffent. Recht des Deutschen Bundes, Th.
2, s. 420. Phillipps, 3, 677, 8-9, complains of this construction.
(e) The Bull is given at length in the Appendices to Eichhorn and Phillipps,
and in the Parl. Papers. See below.




PAPAL RELATIONS WITH PROTESTANT STATES. 263
ments the approbation of the King of Prussia was recited.  This Bull
was sanctioned by a cabinet order of the King of Prussia.(f/)
The Bulla circumscriptionis for Hanover bears date the 26th March,
1824, and begins, " Imperio Romanorum Pontificium;" *it recites [400
that Pius VII. had considered the matter, and proceeds,  re [re 400
propterea collata cum Serenissimo "' Georgis Quarto regnorum Magnse Britannise et Hibernive unitorum necnon Hannoverao Rege," &c. This Bull
was ratified by a royal sanction of George IV., dated from Carlton House
in England.(g)
CCCXCV. According to the Law of Hanover,(h) all Bulls and Briefs
require the Royal Placet, unless they relate solely to spiritual matters,
and if they do, they are to be brought under the superversion of the
King. ~ The Roman Catholic Bishops of Hanover take a very stringent
oath of fidelity to the Crown.(,i)
(f)                                          " Berlin, August 23, 1821.
": Whereas. the Papal Bull submitted to me by you, which begins with the words'De salute animarum,' and is dated Rome, the 16th of July of this year (xvii. Cal.
Aug.,) agrees in its essential contents with that arrangement which was entered
into on the 25th of March of this year, respecting the establishment, endowment,
and limits of the archbishoprics and Bishoprics of the Catholic Church in the State,
and of all subjects having reference thereto, and which was already sanctioned
by me on the 9th of June of this year, I will hereby give, on your proposal-also
to the essential contents of this Bull, namely, to what concerns the enactments respecting things having reference to the before-mentioned subjects-my royal approval and sanction, by virtue of which these enactments are to be observed as
the binding statute of the Catholic Church of the State, by all those whom it concerns.
This, my royal approval and sanction, I give in virtue of my sovereign rights,
and without prejudice to these rights, as well as to all my subjects of the Evangelical Church of the State.
" Accordingly, this Bull is to be printed in the Collection of Laws, and the Ministry of Ecclesiastical Laws is to take care of its execution.
" (Signed)    FREDERIC WILLIAM.
" To the State Chancellor, Prince von Hardenberg."
-Parl. Papers, 1851, p. 169.
(g) Parl. Papers, 1851, pp. 90-102. See Appendices to Eichhorn and Phillipps
for the Bull.
(h) Parl. Papers, 1851, p. 89.
(i) " Form of Oath of Allegiance to be taken by Roman Catholic Bishops in
Hanover.
" I, N. N., Bishop of Hildesheim and Administrator of Osnabruch, swear &c., &c.,
on oath before the Almighty and All-knowing God, that after having been promoted to the dignity of Bishop of Hildesheim, and nominated Administrator of the
Diocese of Osnabruch, I will be true, devoted, obedient, and subject to His Majesty
Ernest Augustus, King of Hanover, Royal Prince of Great Britain and Ireland,
Duke of Cumberland, Duke of Brunswick and Luneburg, &c., my most gracious
King and Ruler of the land, and to his illustrious legal successors in the Government. I will promote, to the best of my power, in the practical circle allotted to
me, what may advantage His Majesty and the common welfare (avoiding injury
and disadvantage;) and truly and conscientiously attend to my episcopal office,
and my episcopal administration. I will take pains to lead a worthy and irreproachable life, and most zealously will, above all, be anxious that Christian knowledge
and true piety, joined with reverence towards the head of the State and love to the
fatherland shall take deep root and blosson with the vigour in the ecclesiastics
and laymen entrusted to my direction, and especially also in the growing youth.
I will therefore not suffer or allow that priests or other ecclesiastics under my controll shall teach or act in a contrary sense or spirit, or otherwise, by word or deed,
lead astray, the fidelity of the subjects, and their loyalty to their King and fatherland; and should I get knowledge that anywhere, within or without my diocese,




264   PHILLIMORE ON INTERNATIONAL LAW.
l[*401] ~*CCCXCVI. The relations of the Papal See with the Provinces
of the Upper Rhine have been less easily arranged.
On the 24th of March, 1818,(k) Wurtemberg, Baden, the two Hesses
Miecklenburg, Nassau, Oldenburgh, the Grand Ducal and Ducal Houses
of Saxe, Lubeck, Bremen, Frankfort, and Hamburg, put forth a Latin
Declaration, which they subsequently denominated, "( Magna Charta
Libertatis Ecclesie Catholicre Romanre," founded upon the principles of
the German Princes' Concordat of 1446, upon the resolutions of the
Arbishops at Ems (die Emser Punktation,) and the Austrian constitution
of the Church under Joseph II.
This declaration was resisted and replied to by the Pope, who subsequently, in August, 1821, promulgated a " Bulla circumscriptionis Dioecesium Provinciae Ecclesiarum superioris," in which he recited that the
Sovereigns of the territories above mentioned had sent ambassadors to
Rome to arrange matters respecting the foundations and dotation of certain bishoprics; r( ast cum res omnes ecclesiasticre, *de quibus
t[  21] actum fuit, conciliari minime potuerint;" His Holiness was therefore compelled to make ecclesiastical arrangements for the faithful in these
countries, in the hope that the rulers of them would be brought to a
better mind.  This Bull begins, 9 cProvida solersque."
The Sovereigns of the provinces replied by a Kirchenpragmatik," in
which the former resolutions were embodied.
On the 11th April, 1827, the Pope promulgated a "6 Bulla erectionis
Dicecesium Provincire Ecclesiasticae Superioris Rheni," beginning " Ad
dominici gregis custodiam."(l)
In this instrument the Sovereigns of the respective territories were
allowed the power of objecting to any one of the candidates for the episcopal and archiepiscopal sees; and a hope was expressed that they would
be benevolent towards their Catholic subjects, who would be most loyal
to them.
CCCXCVII. These Bulls were finally admitted by the respective
Governments, it being declared "9 that nothing therein contained shall be
construed or considered as interfering with the rights of the Sovereign,
opposed to the laws and ordinances of the land, the archiepiscopal and
anything should be intended which could threaten with danger His Majesty the
King, his dignity and rights, as well as the security, peace, and welfare of the
State, I will make immediately a faithful report thereof. At the same time I declare herby that I thoroughly understand, and will cause to be understood, the oath
which I have to tender to His Holiness the'Pope, as head of the Catholic Church,
before entering my office, and especially the clause in this oath which purports,'Hec omnia et singula et inviolabilius observabo, quo certior sum, nihil in illis
contineri, quod juramento fidelitatis mete erga Regem Hannoverir ejusque ad
thronum successores debitn adversari possit;' that I do not consider myself in any
other sense, by this said oath of consecration, bound to an act or omission of any
kind which would be against my duty as a subject, and the oath of allegiance,
devotion, and subjection which I have tendered to His Majesty, my most gracious
King and Ruler of the land. All this I swear, vow, and declare, so help me God,
and His holy Word." —Parl. Papers, 1851, p. 103.
(k) Phillipps, iii. 529.
(I) See Phillipps, Band iii. and Eichhorn, ii. App. for these Bulls; and Parl.
Papers, 1851. " Further Correspondence," &c., p. 2, Hesse Cassel, Nassau, &c.




PAPAL RELATIONS WITH PROTESTANT STATES. 265
episcopal privileges, or the rights of the Evangelical Confession and
Church."(m)
Moreover, on the 30th January, 1830, the Governments of the States,
to which these Bulls were applicable, promulgated " an ordinance relative to the exercise of the sovereign right of protection and superintendence over the Catholic Church."  It recited the Bulls, and proceeded,
" Now that, in consequence of the agreement made (getroffenen Abrede)
with the Roman Court, the episcopal sees and cathedral chapters of this
Church provincesare entirely filled, and they have entered upon the exercise of the authorities connected *therewith, we are induced, in [403
concurrence with the other Governments in the Upper Rhine [40]
Province, to publish and make known the following ordinances for the
maintenance of our right of protection and superintendence over the
Catholic Church in our dominions."
Then follow thirty-nine Articles, in none of which the Roman See is
mentioned, except in the fifth, which declares that all Roman Bulls and
Briefs must receive the sanction of the Sovereign, and that Bulls which
have received it are only binding so long as nothing contrary to them
shall have been enacted by the State. That the sanction of the State is
necessary not only for present but for former Papal ordinances, if it be
intended to use them. Otherwise all reference to "' foreign" authority is
forbidden, and the "( Metropolitan" is spoken of throughout as the ecclesiastical superior.
By Article 3. —" Every State exercises its inalienable sovereign right
of protection and superintendence (Miajest'tsrechte des Schutzes und der
Oberattfsicht) over the Church to its full extent."
By Article 8.-" The Metropolitan  constitution  is re-established
according to its original intention, and the exercise of the Metropolitan
rights belonging to the Archbishop are under the united protection of the
collective States."
By Article 10.-"-The Church disputes (kirchliche Streitsachen) of
Catholics may in no case be carried out of the province, or before foreign
judges; and therefore, in their respect, the necessary regulations will be
made."
By Article 15. —" No ecclesiastic can be elected Bishop who is not a
German by birth and a citizen of the State in which the vacant episcopal see is situated, or of one of the States which have united to form
such diocese."
By Article 16.-"- The Bishop elect is to apply to the Superior of the
Church for information immediately after the election. Prior to consecration he is to take the oaths of fidelity and obedience in his quality of
Bishop to the Sovereign of the country."
By Article 17.-"-After having received consecration, *the
Bishop enters into full exercise of the rights and duties con- [*404]
nected with the episcopacy, and the Governments will not suffer him to
be impeded; on the contrary, they will effectually protect him."
By Article 22. —" Taxes or rates, of whatever kind they may be, or
(m) Phillipps, iii. 532. Parl. Papers, 1851. " Further Correspondence," &c., p. 3.
NOVEMBER, 1855.-18




266   PHILLIMORE ON INTERNATIONAL LAW.
by whatever names they may be called, shall not be raised either by our
own or by foreign ecclesiastical authorities."
By Article 33. —- No ecclesiastic can accept any dignities, pensions,
decorations or titles from  foreigners without the consent of his Sovereign."
By Article 34.-" Every ecclesiastic, before he receives the Church
ordination, shall take the oath of fidelity to the Head of the State, and
swear canonical obedience to the Bishop."
By Article 36. —" The ecclesiastics as well as the laity have the right
of appeal to the State authorities, whenever an abuse of the ecclesiastical authorities takes place against them."
CCCXCVIII. The object of these regulations is manifestly to form a
national Catholic Church.
The Pope remonstrated in a letter directed to the Archbishops of the
provinces, beginning " Pervereerat non ita," complaining of ecclesiastical
assent having been given to many of the provisions, and of a breach of
the alleged convention between the Princes and the Roman See. The
Bishops of the Upper Rhine have lately demanded a repeal of many
secular provisions concerning the Church, and have claimed a right of
free communication with Rome.(n)
CCCXCIX. Saxony presents the solitary instance of a Roman Catholic Sovereign over a Lutheran people-a state of things exactly reversed
in Belgium.
* CCCC. In the fifteenth century, the Prince and the people
* 405] of Saxony embraced the Evangelical Protestant Religion.(o)
The provisions of the Treaty of Passau (1552,) of the Peace of Augsburg (1555,) and of the additional articles to the Treaty of Westphalia,
were strictly applied to Saxony.
During the existence of the Imperial Diet, Saxony was President of
the " Corpus Evangelicorum," the politically-recognised part of the Imperial Representation.
Upper Lusatia was acquired by the Electoral House of Saxony in
1635, at the Peace of Prague.  In this province the Roman Catholic
Religion prevailed, and the preservation of its rights was confirmed by
the Elector.
Augustus the Strong acquired the Crown of Poland, and embraced the
Roman Catholic Faith; but he secured to his country, by what is called
"-the Reservation" (Reservalien,) all its religious rights.  Till 1697 the
Roman Catholic Faith was only tolerated in Saxony.
By Article V. of the Treaty of Posen, and by mandate of the 16th
of February, 1807, Roman Catholics and Evangelists were placed on an
equality as to their religious worship, and as to their civil and political
rights.  But the relation of the Roman Catholic Church to the State,
and its fixed government, were established by a law promulgated on the
19th of February, 1829.
(n) Phillipps, Band iii. App. Parl. Papers, 1851. 1" Further Correspondence.'
Gazette de Hanau, 1851 (before June.)
(o) Parl. Papers, 1851, p. 223.




PAPAL RELATIONS WITH PROTESTANT STATES. 267
This law gave an organic construction to the Roman Catholic Church
without any Concordat from the See of Rome.
In the old hereditary dominions there is an Apostolic Vicariate, to
which office the Pope appoints one of the native clergy proposed to him
by the King. The Apostolic Vicar takes an oath of allegiance to the
King.
In Upper Lusatia the episcopal duties are performed by the Dean at
Bredissin or Bautzen; the Dean is chosen by the Chapter and confirmed
by the King.(p)
*There are no bishoprics in Saxony.  When the Pope makes [*406
the Apostolic Vicar or the Dean a Bishop, it is it partibus infi- [0
delium.
The Placet (q) is required for every notification of the Pope or the
Apostolic Vicar.  The right of the Placet is incident to the sovereignty
of the State, whether the King be Roman Catholic or not.
All ecclesiastical authorities are subject to the Department of Public
Instruction (das MinisteriuAm der Cultur.)  Complaints of the abuse of
the ecclesiastical power are brought before this department and before
the Cabinet.
CCCCI. In Denmark(r) no communication since the Reformation has
taken place with Rome.  At Copenhagen there is a Roman Catholic
chapel, under the protection of the Austrian Government, who are bound
by treaty to tolerate a Protestant chapel at Vienna.
In Sweden and Norway(s) there is no arrangement of the nature of a
Concordat subsisting between the Crown and Rome.  From  the time of
Charles IX. to 1780, no Roman Catholic priest could legally officiate in
the kingdom. The Pope obtained toleration for the Roman Catholics
when Gustavus III. visited Rome in 1780.
No Papal Bull has ever been published in these dominions.
The arrangements entered into between Wurtemberg and the Papal
See are the Bulls already mentioned of Provida solersque (August 16,
1821,) Ad dominici gregis custodiarn (April 11, 1827.)
By a [Royal Ordinance of 30th January, 1830, all Papal Bulls and
Briefs must obtain the royal sanction, and no former Bulls can be put in
force without it.
CCCCII. There is no Concordat existing between the *Swiss
Confederation, as such, and the Roman See.(t)  The Federal [407]
Government does not interfere in any way respecting the appointment of
Bishops, or the promulgation of Bulls or other instruments from Rome.
These matters are regulated by the authorities of the respective Cantons,
and the arrangements relating to them are of various kinds. But although
(p) The Apostolic Vicar and the Dean are generally united-in the same person,
who is made a Bishop in pcartibus. He must take the oath of obedience to the
Constitution of 1631.
(q) The exercise of the royal supremacy (jus circa sacra) over the Church is
settled by the Regulations of 1837 and 1845, though the latter have not yet been
promulgated.
(r) Parl. Papers, 1851, p. 81.           (8) Ib., p. 307.
(t) Parl. Papers, 1851, p. 321.




268    PI-IILLIMORE ON INTERNATIONAL LAW.
no uniform rule(u) upon these matters prevails throughout Switzerland,
the principle of requiring the sanction of the domestic authority in all
cases where the See of Rome directly addresses itself to the subject of
that authority, appears to be steadily adhered to.
CCCCIII. The Bishops inJthe Roman Catholic Cantons are appointed
either directly by the Cantonial authorities,'or subject to their approbation,
and the publication of Papal Bulls and instruments is not permitted
without the previous placet of the Government.
CCCCIV. There was a formal Convention(x) entered into between the
Pope and the Canton of St. Gall, relative to the re-organization of the
Bishopric of St. Gall, in 1845.(y)  This appears to be the only instance
of any kind of Concordat between the Roman See and any of the Swiss
Cantons.  After this Convention a Bull was issued in 1847,(z) and was
sanctioned by the Placet of the Landamman and Executive Council of
[408],the Canton of St. Gall in an act which carefully guarded *the
40]sovereignl right which belongs to the State in reference to the
Catholic body."
In 1824,(a) on the occasion of the establishment of the Double
Episcopal See of Coire and Gall, without notice given to the State, or
its consent being obtained, the Great Council passed a resolution refusing
to recognize the negotiation  sequestrating  the temporalities of the
Bishopric of Coire, and declaring to the Prince Bishop of Coire that
the State considered "c Every Bishop of Coire, both according to legal
principles and special agreements with the Episcopal See, and the existing laws, to be in every temporal respect, as much dependent upon the
same as other Christian Sovereigns considered their Bishops to be."
In 1834,(b) the President and Great Council of the Canton of Lucerne
put forth a law subjecting to the Placet of the State "' Roman Bulls,
Briefs, and other enactments."
In 1850, the Great Council of the Canton of the Grisons promulgated
an Ordinance declaring, among other things, "c That all regulations and
enactments of ecclesiastical authorities of both religions, intended to
reach the people, directly or indirectly, shall be submitted to the inspection of the Executive, prior to their being promulgated, communicated,
executed, or applied."(c) This law is enforced by the penalties of fine
and imprisonment.
CCCCV. The reorganization of the Bishopric of Basle(d) 1828-1830,
was effected upon the principle of " Episcopal c" Concordats" and c" Papal
(u) Uri, Schwyz, Unterwalden. The Valois appear to be the only exception;
in them Bulls, &c., are published without the Placet of the Government.
(x) Parl. Papers, " Further Correspondence," p. 51.
(y) See p. 61, ib. for the Bull relative to this bishopric, beginning " Instabilis
rerum humanarum memoria."
(z) Ib. pp. 72-3. The Act of the State of St. Gall. "Der Eingangs erwahnten
Bulle, welche anf/ingt'Instabilis,' &c., wird an mit das obrigkecitliche Plazet
ertheilt," &c.
" Genannte Bulle soll sowohl in ihrem Urtexte, als in der von uns anerkannten
deutschen Uebersetzung, in die Sammlung der Gesetze und Beschlfisse aufgenommen werden."
(a) Parl. Papers, 1851, " Further Correspondence," p. 74.
(b) lb. p. 15.            (c) lb. p. 77.             (d) lb. pp. 78, 153.
See especially the Historical Memoir (Vorrede,) p. 78; translated, p. 153.




RELATIONS  OF THE  PAPACY, ETC.                    269
demarcation Bulls," recognized by special " State sanctions" of the
respective Governments of the Cantons.(e) One of the most curious
instances of the jealousy with which the Swiss have regarded whatever
was *supposed to be an ecclesiastical encroachment upon the civil *409]
power, is to be found in the address of the old Patrician Govern- [
ment of Fribourg to the Bishop of Fribourg, complaining of the publication by him of directions concerning the observance of Lent, without
the knowledge or consent of the Government.  The language in which
the Fribourg Government enunciates the principle on which it relies is
remarkable: ct I1 est dans la nature des choses, il est de l'essence de la
souverainte, et l'ordre public r6clame imperieusement que tout acte,
quelqu'en soit la source ou le but, ne puisse etre publi6 dans un Etat
sans l'agrement de l'autorit6 souveraine.  Cette rigle, si intimement
liee au bien de la societY, a e6t observee, votre Grandeur ne saurait
l'ignorer, dans les Etats les plus attaches a la religion Catholique, et
qui par consequent respectaient le plus les droits de l'Eglise."
*C H APTE R  IX.                      [*410]
THE INTERNATIONAL RELATIONS OF THE PAPACY WITH STATES IN
WHICH A BRANCIH  OF THE CATHOLIC CHURCH, NOT IN COMMUNICATION WITH ROME, IS ESTABLISHED.
CCCCVI. WE have now to consider the relations of the Papacy with
those States in which a branch of the Catholic Church is established.(a)
These Catholic Churches are distinguished from Roman Catholic Churches
by not: acknowledging the Pope as their spiritual chief, and from merely
Protestant Churches by their Episcopate; or, as it is clearly said by
Portalis, " Toutes les commwunions Protestantes s'accordent sur certains
principes.  Elies n'admettent aucune hie'rarchie entre lespasteurs."(b)
The established Catholic Churches, not in communion with Rome, are
two:
1. The Greek Church.
2. The English Church.
The English Church in the Colonies, the Episcopalian  Church of
Scotland, and the North American Church are not established, in the
sense of being endowed by the State.
CCCCVII. It does not lie within the province of this work to dwell
upon the history of that great schism  between the Greek and Latin
Churches which made the first external rent in the seamless robe of the
Church.
(e) Ib. p. 228.
(a) Parl. Papers, 1819, p. 254. Ibid. 1851, p. 173.
(b) Rapport du Portalis sur les Articles Organiques des Cultes Protestants.
Discours, &c., sur le Concordat de 1801, par le Vicomte Portalis (Paris: 1845,)
p. 105.




270     PHILLIMORE  ON INTERNATIONAL LAW.
The Greek branch of the Catholic Church is said to number eighty
millions of worshippers. It is established in the countries subject to the
Porte, Russia and Greece.  In all these countries the Roman See
fosters a separate communion.
s[411]   *CCCCVIII. Russia has no Concordat with the Pope, but
[*411] certain articles were agreed upon in 1847, between them, which
regulate the appointment of Roman Catholic prelates.  They are nominated by the Emperor, who communicates his choice confidentially to the
Pope, who, if he entertain no objection to it, canonically institutes the
imperial nominee. But all direct communication between the Pope and
the Roman clergy in Russia is interdicted; the only channels through
which it is allowed to be carried on being the Russian mission at Rome,
and the Department of Foreign Affairs at St. Petersburg.  This department and that of Foreign Worship (which is under the jurisdiction of the
Minister of the Interior,) examine every instrument emanating from Rome
before it can be delivered to the clergy of that see.
The present practice of the Russian Government is to decline the reception of any Nuncios or Papal Legates at St. Petersburg, except such
as are sent on special missions.
CCCCIX. No Concordat, or arrangement in any way equivalent or
analogous to it, subsists between the Sublime Porte and Rome. The
Roman Vicar Apostolic resident at Constantinople is not recognised by
the Turkish Government.
The Roman Bishops are either appointed or confirmed by the Pope,
and Papal instruments are transmitted to them from Rome, either directly
or through the unrecognised Vicar Apostolic; But no Papal Brief can be
legally enforced, and the Pope appears to connive at the exercise of
spiritual authority by the Roman communities in Turkey, but to reserve
to himself the right of interference.(c)
CCCCX. The relations of the National Church of Greece with the
Patriarchate of Constantinople will be mentioned in the next chap:ter.:[*4112]   *Between the kingdom of Greece and the See of Rome there
1   exists no Concordat, or equivalent arrangements.
The Latin population appears to be diminishing, though in some of the
Islands inhabited by the decendants of the old Venetian and French settlers, the Latin Bishops exist in a number at present disproportioned to
their congregation.
The Pope directly appoints Bishops of the Latin Church, who apply
to the Minister of State for their exequatur, which, it appears, has never
been refused.
The Pope does not appear to be compelled to nominate natives to the
Latin sees, though, as a matter of fact, the existing Latin Bishops are
natives.
The reception and publication of Papal instruments is not forbidden
(c) C" The appointment of Bishops," writes Sir Stratford Canning, "is at once a
matter of conflicting pretensions, and of mutual though tacit compromise between
the Court of Rome and the several Roman Catholic communities."-Parl. Papers,
1851, p. 323'




RELATIONS  OF THE  PAPACY, ETC.                    271
by any law, but; as a matter of fact, communications from Rome are carried on through the medium of a private correspondence.
The Latin Church founds its rights on long custom and enjoyment
guaranteed at the Revolution, which guarantee was recognised by the
National Assembly in 1843, at the period of the formation of the Constitution.
The fact of the Monarch of Greece professing the religion of the Latin
Church, has, of course, facilitated the civil status of that Church and the
intercourse with Rome.
The Bishops are required to take the oath of allegiance to the King,
and of fidelity to the Constitution.
CCCCXI. The history of the relations of the Roman See with England, since the Reformation, is without parallel in the annals of the
world.
Before the Reformation, these relations of England with Rome were
not unlike those which subsisted between the Papacy and other considerable independent Kingdoms.
In the history of no kingdom is the independence of the national
Church written with a firmer character than in that of England, in the
statutes of the realm, the decisions of judicial tribunals, and the debates
of Parliament.
The Constitutions of Clarendon, in Henry II.'s reign (A. D. 1164,)
though directly aimed at the repression of the *inordinate claims [*413]
and priveleges of the National Church, were, no doubt, indirectly
" calculated," as Hume observes, " to establish the independency of England on the Papacy;" and therefore, when the King sought Pope Alexander's ratification of them, that Pontiff annulled and rejected all but
six out of the sixteen memorable articles. The resistance of Becket, and
still more, the general feeling excited by the wicked and impolitic murder
of that prelate, procured the practical abrogation of the articles objected
to, by the enactments of Edward I.(d) and III., of Richard II., of Henry
IV. and V., and of Edward IV.
CCCCXII. In the severe penalties attached to the statutes of Provisors and Prmemunire may be read the steady determination of the English
people to maintain an independent national Church, and to resist the
ultramontane doctrines, which had taken root in other countries.
The Statute of Provisors (25 Ed. III. st. vi. A. D. 1350) recites that,"the Holy Church of England was founded in the estate of prelacy
within the realm of England" by the King and nobles of England, and
forbids the prevalent abuses of the Pope's bestowing benefices upon
aliens, cc benefices of England which be of the advowry of the people of
Holy Church," the reservation of first fruits to the Pope, and the provision or reservation of benefices to Rome.  By 38 Ed. III. st. 11, c. 1,
(A. D. 1363,) persons receiving citations from Rome in Courts pertaining
to the King, &c., are liable to the penalty of 25 Ed. III.(e)
(d) See the provisions of the Parliament at Carlisle, A. D. 1307.
(e) 37 Ed. III. st. 1, c. 1, A. D. 1353.
" Praemun ire for suing in a foreign realm, or impeaching of judgment given."




272   PHILLIMORE ON INTERNATIONAL LAW.
The Statute (A. D. 1392) 16 Richard II. c. 8, renders the procuring
of Bulls from Rome liable to Prremunire, and it *recites a variety
[414 ] of Papal aggressions upon the privileges of the Crown; among
other matters, as to the translation of Bishops out of the realm, or from
one bishopric to another within the realm, and the carrying of treasure
out of the realm, "and so the realm, destitute as well of counsel as of
substance, to the final destruction of the said realm, and so the Crown
of England, which hath been so free at all times, that it hath been in no
earthly subjection, but immediately subject to God in all things touching
the regality (la regalie) of the same Crown, and to none other, should be
submitted to the Pope, and the laws and statutes of the realm by him
defeated and avoided at his will, in perpetual destruction of the sove*4151 reignty of the kingdom  of the King and Lord, his *Crown, his
tL i 5] royalty, and of all his realm, which God defend."
This statute before the Reformation, and the subsequent enactment of
24 Henry VIII. c. 12, and the famous case of Cawdry,(f) may be said
to contain the whole Constitutional Law of England upon the subject of
the usurpation of the Papal See upon the liberties of the national
Church, and in regard to the authority and privilege of the English
Crown.
CCCCXIII. It would be difficult to conceive a clearer or more digniProemunire, so called from the words of the writ:-" Rex vice comiti," &c.,
"proemunire facias proefectum A. B. quod tune sit coram nobis."
38 Ed. III. st. 2, A. D. 1363. Against Provisors.
There are various statutes of Richard II. against giving benefices to aliens, or
allowing aliens to purchase or convey benefices, viz.:13 Rich. II. st. 2, c. 2, is a confirmation of the statute of 25 Ed. III. st. vi. See,
too, c. 3.
16 Rich. II. c. 5, A. D. 1392, made it Preemunire to purchase Bulls or other instruments from Rome.
This statute was called by the Pope execrabile statutum, and the passing of it
foedum et turpe facinus.-Burn's Ecclesiastical Law, 2, 36. (Ed. Phillimore.)  See
also, generally, as to Papal authority2 Hen. IV. c. 3, A. D. 1400.
3 Hen. V. st. 2, c. 4, A. D. 1415.
32 Hen. VI. c. 1, (Ireland,) A. D. 1454. All Statutes against Provisions in England and Ireland to be kept in force.
7 Ed. IV. c. 2, (Ireland,) A. D. 1467. Against Bulls from Rome.
2 Ed. IV. c. 3.
10 Hen. VIII. c. 5. An Act against Provisors to Rome.
23 Hen. VIII. c. 20. An Act restraining payment of Annates to the See of
Rome, A. D. 1531.
24 Hen. VIII. c. 12, A. D. 1532. The great Statute forbidding Appeals to Rome,
under pain of Proemunire.
25 Hen. VIII. c. 19, A. D. 1533. Act of the Submission of the Clergy and the
Restraint of Appeals.
c. 20. Act for Non-payment of First-fruits to the Bishop of Rome.
c. 21. Concerning Peter-pence and Dispensations.
28 Hen. VIII. c. 13, (Ireland,) A. D. 1537. An Act against the Authority of the
Bishop of Rome........ c. 16, A. D. 1536. As to Dispensations and Licences heretofore
obtained from the See of Rome.
c. 19, (Ireland,) A. D. 1537. The Act of Faculties.
5 Eliz. c. 1, and 13 Eliz. c. 2, brought the maintaining the pre-eminence of the
See of Rome under the penalties of the Statutes of Provisors and Prmemunire.
(f) 5 Coke, 8.




RELATIONS  OF THE  PAPACY, ETC.                     273
fled exposition of the law upon this subject than is contained in the prefatory part of the statute of Henry VIII.
"Where by divers sundry old authentick histories and chronicles, it
is manifestly declared and expressed, that this realm of England is an
empire, and so hath been accepted in the world, governed by one supreme
head and King, having the dignity and royal estate of the imperial crown
of the same; unto whom a body politic, compact of all sorts and degrees
of people, divided in terms, and by names of spiritualty and temporalty,
been bounden and owen to bear next to God a natural and humble obedience; he being also institute and furnished, by the goodness and sufferance of Almighty God, with plenary, whole, and entire power, preeminence, authority, prerogative and jurisdiction, to render and yield
justice, and final determination to all manner of folk, resiants, or subjects within this his realm, in all causes, matters, debates and contentions, happening to occur, insurge, or begin within the limits thereof,
without restraint or provocation to any foreign princes or potentates of
the world; the body spiritual whereof having power, when any cause of
the law divine happened to come in question, or of spiritual learning,
then it was declared, interpreted, and shewed by that part of the said
body politic, called the spiritualty, now being usually called the English
Church, which always hath been reputed, and also found of that sort,
that both for knowledge, integrity and sufficiency of number, it hath
been always thought, and is also at this "hour sufficient and meet  416]
of itself, without the intermeddling of any exterior person or per- [41
sons, to declare and determine all such doubts, and to administer all such
offices and duties, as to their rooms spiritual doth appertain; for the due
administration whereof, and to keep them from  corruption and sinister
affection, the King's most noble progenitors, and the antecessors of the
nobles of this realm, have sufficiently endowed the said Church, both
with honour and possessions; and the laws temporal for trial of property
of lands and goods, and for the conservation of the people of this realm
in unity and peace, without rapine or spoil, was and yet is administered,
adjudged and executed by sundry judges and ministers of the other part
of the said body politic, called the temporalty; and both their authorities
and jurisdictions do conjoin together in the due administration of justice,
the one to help the other."
CCCCXIV. At the period of the Reformation, the national Church
introduced an express denial of the authority of the Pope, henceforth
called in all public acts and documents the Bishop of Rome, into her
articles and canons, and an acknowledgment of the temporal supremacy
of the Crown over the Ecclesiastical as well as the Civil State.
Henry VIII.(g) was excommunicated, and in the Bull his subjects
were commanded to renounce their allegiance, and the nobles were
ordered "a sub ejusdem excommunicationis ac perditionis bonoruml suorum
(g) Damnatio et Excommunicatio Ifenrici VIII. Regis Anglice, ejusque fautorum, &c.
(edita A. D. 1535 et 1538.) This is printed at length in the Appendix to the Bruturnm Fulmen, or the Bull of Pope Pius V. concerning the Damnation, Excommunication, and Deposition of Queen Elizabeth; and the Bull of Pope Paul ]I. against
HIenry V11I., by Thomas [Barlow,] Lord Bishop of Lincoln. [London: 1681.)




274      PHILLIMORE  ON INTERNATIONA L LAW.
penis," to unite with all Christian Princes in expelling Henry from
England.  Elizabeth(h) was excommunicated in pretty similar terms, but
not until twelve years after her accession.  In answer to a request from
the Emperor and other Roman Catholic Princes *that she would
[*417] allow the Roman Catholics places of worship, she replied that
she would not allow them to keep up a distinct communion, alleging her
reasons in these remarkable words, "for there was no new faith propagated in England: no religion set up but that which was commanded by
our Saviour, practised by the primitive Church,(i) and unanimously
approved by the fathers of the best antiquity."  (kI)The Roman Catholics, both in England and Ireland, outwardly conformed to the services
of the Church for about ten years.(l)
Both this fact and the ground of Queen Elizabeth's refusal are remarkable, and not without their bearing, as considerations of International
Law, upon the question of the recent Papal aggression in England.
CCCCXV. As the Jesuits pursued their machinations against Elizabeth,
she had recourse, by way of defence, to the severest statutes against the
Papal power, enacting that the attributing by act or speech any such
authority or jurisdiction to the Bishop of Rome, as he had heretofore
claimed, should be punishable with Prnnmu-nige.
CCCCXVI. In the year 1827, long after the Pope had been restored
to the Vatican, in great measure through British money and British
arms, this statute of Elizabeth was held by the law officers of the Crown
to be still in force, and actually to prevent Mr. Canning (then Secretary
for Foreign Affairs) from replying to a letter sent to him by the Pope
announcing his succession to the Pontificate.(m)  From  the reign of
Elizabeth till the recent Act of Victoria, all legal channels of communi[*418] cations-we pass by the illegal exception of James II.'s *reignbetween Great Britain and the See of Rome were closed, —a fact
in history almost incredible when it is remembered that in Ireland alone
there were many Roman Catholics.
CCCCXVI1. (n) William III. introduced that barbarous code of persecuting laws against the Roman Catholics which disgraced the statutebook of this country, until the reign of George III.; which made Ireland,
according to Mr. Burke's expression, c"full of penalties and full of
Papists;"(o) and which has entirely failed in its object of eradicating
Papacy, as the Inquisition had failed in destroying Protestantism.
Since the alterations which the law has undergone during the reign
(h) Accession, A. D. 1558; excommunication, A. D. 1570.! (i) The English Church has always held the doctrine of St. Cyprian,:~ Episcopatus unus est, cujus h singulis in solidum pars tenetur." —De Unitate Eccles.
(London,) 641.
(k) Collier's Eccles. Hist. of Great Britain, vol. vi. pp. 263-4: vide ante, p. 290,
n. (h)
(1) Collier's Eccles. Hist., vol. vi. p. 264.
(m) Mr. Canning's speech on the Roman Catholic question, March 6, 1827.
(n) In Collier's Church History, vol. ix. p. 365, will be found Paul V.'s Brief to
the Roman Catholics forbidding their going to the English service, or taking the
oath of allegiance, A. D. 1606; and Cardinal Bellarmine's letter to the Archpriest.
(o) Tracts on the Popery Laws, Burke's Works, vol. ix.
George Blackwell, against the Oath of Allegiance, A. D. 1607, p. 365.




RELATIONS  OF THE  PAPACY, ETC.                     275
of the present Sovereign, it is questionable whether any civil penalty
attaches to the acknowledgment of the Pope.
CCCCCXVIII. The national intercourse with the See of Rorne became
lawful in 1848, by the statute of Victoria which enacts:",1. That notwithstanding anything contained in any Act or Acts
now in force, it shall be lawful for Her Majesty, her heirs and successors, to establish and maintain diplomatic relations, and to hold diplomatic.intercourse with the Sovereign of the Roman States.
" 2. Provided always, and be it enacted, that it shall not be lawful
for Her Majesty, her heirs or successors, to receive at the Court of London, as ambassador, envoy extraordinary, minister plenipotentiary, or
other diplomatic agent, accredited by the Sovereign of the Roman States,
any person who shall be in Holy Orders in the Church of Rome, or a
Jesuit or member of any other Religious Order, Community, or Society
of the Church of Rome, bound by monastic or religious vows.
"r 3. Provided always, and be it enacted, that nothing herein [419
contained shall repeal, weaken, or affect, or be construed to re- [41
peal, weaken, or affect, any laws or statutes, or any part of any laws or
statutes, now in force for preserving and upholding the supremacy of our
Lady the Queen, her heirs and successors, in all matters civil and ecclesiastical within this realm, and other Her Majesty's dominions, nor those
laws, or parts of laws, now in force, which have for their object to control, regulate, and restrain the acts and conduct of Her Majesty's subjects, and to prohibit their communications with the Sovereigns of foreign
States on the said matters, all which laws and statutes ought for ever to
be maintained for the dignity of the Crown and the good of the subject."(p)
This statute has not as yet been acted upon.  It is said to have given
offence to Rome by not speaking of the Pope in his spiritual character,
and by the prohibition it contained with respect to the reception of any
ecclesiastical ambassador from the Holy See.
The Pope, however, is unquestionably a temporal Sovereign, and in
that capacity subject to temporal International Law. The Pope has
temporal as well as ecclesiastical subjects of high rank, and the former
might well discharge the duties of ambassador at a foreign Court, not in
spiritual communion with Rome. If that foreign Court had reason to
apprehend that the presence of an ecclesiastical ambassador would be
likely, on whatever account, to disturb the peace of the country, it was
surely justified both by the practice of comity as well as by strict law
in refusing to receive an accredited minister of that character.
It is much lamented that Great Britain did not endeavour to obtain
the reception of an English ambassador at Rome, soon after the passing
of the statute above mentioned. The tempest of 1851, would have been
probably averted, if the *Pope had been rightly and fairly in- [*420
formed of the state both of the law, and of the religious feeling [420
in this country.
CCCCXIX. It is necessary to preface our observations on the promul(p) 11 & 12 Victoria, c. 108.




276    PHILLIMORE ON INTERNATIONAL LAW.
gation in England of the Papal instrument in 1850, by some notice ef
the relations which have previously subsisted between the Roman Catholics in these realms and the See of Rome, since the epoch of the Reformation.
Dr. Watson,(g) Bishop of Lincoln, in Queen Mary's time, the last
survivor of the prelates expelled by Queen Elizabeth, died in 1584. The
Pope did not then attempt —though urged to do so at Rome —the establishment of a Roman Catholic Episcopacy in England. In 1589, an
Archipresbyter was sent here under the authority of a Brief from Gregory XIII., a Mr. Blackwell was instituted to the office in which he was
confirmed by a Brief of Clement VIII. in 1599.  Rome governed the
Roman Catholics through these Archipresbyters till about 1623; then
the visit of Prince Charles (afterwards Charles I.) to Spain, his subsequent marriage with the French Princess Henrietta Maria, and the consequent necessity of a Papal dispensation, produced a relaxation, if not
of the law itself in England, of the severity of its administration against
Rome.
In 1622, a Roman Catholic Bishop of Chalcedon, that is in partibus,
appears for the first time to have been sent to England by virtue of a
Papal Bull.  Two things are remarkable in this instrument:1. That it is expressly provided that no prejudice should arise from
it to the Patriarch of Constantinople, to whom the Church of Chalcedon
was subject.
2. That no allusion to England is to be found in it.
*So carefully was both the public law of the Church, which
['~421] is itself of an international character, and the law which regulates the intercourse of independent nations, observed in this instance.
Subsequently, a Vicar Apostolic was sent from Rome to England.(r)
This Vicar, though also a Bishop, was not, in the canonical sense, Ordinary in the place over which he presided; therefore the Roman Catholics
remained under the immediate authority of the See of Rome.  In James
II.'s time, the number of Vicars Apostolic was increased to four, and so
it remained till the year 1840. There were afterwards eight Vicars, with
Bishops in pcartibus as coadjutors.
Under this system a regular Roman Catholic Hierachy was not established, and it would seem that the Canon Law was imperfectly, if at all,
applicable to that status of the Roman Catholics.
In Ireland the Roman Catholic Church has for many years been on a
different footing, namely, it has been governed by Ordinaries and not by
Vicars Apostolic.
In the British Colonies(s) the Roman Catholic Church is partly
(q) The Letters Apostolic, by Dr. Twiss, contain a great amount of information
on this subject. See c. v. p. 114. In the Appendix will be found the Bull of
Pius IX., and various instruments of his predecessors affecting the Roman Catholics in England.
See, too, Butler's Historical Memoirs of the Roman Catholics, and Dodd's
(Roman Catholic) History.
(r) Brief of Benedict XIV., in 1753, beginning, "Apostolicum Ministerium,"
Bullarium, t. iv. p. 59.
(s) I have not entered into a discussion of the controversy about precedence
between the Anglican and the Roman Hierarchy.




RELATIONS  OF THE PAPACY, ETC.                     277
endowed and established, as in Canada, and everywhere tolerated, in
whatever form it may chance to assume.
CCCCXX. It will be obvious from this necessarily brief sketch of
the status of the Roman Catholics in England since the Reformation,
that the ill-advised instrument which Pius IX. sent to these shores in
1851, was well calculated to excite the national feeling to the utmost
verge of hostility against the Roman Catholics, and to resuscitate the
expiring embers of religious animosity.
Not only was the customary law, as acknowled and expounded by the
greatest jurists and canonists of Rome, in the promulgation of decrees
without the Placet or Exequatur of the State, violated, but the additional
injury was done *of proclaiming to the subjects of that State,   422
that the Church established in it was deficient in that indispensable and distinguishing mark of Catholicity which the Constitution had
declared it to possess.
Upon this principle the infraction of the law by the late Papal Bull
would have been, so far as the State alone is concerned, less, if it had
been confined to Scotland, where there is no established Episcopacy, and
still less in the United States of North America, where there is no
established Church at all; though in both it would have been a clear
offence against International Ecclesiastical Law as not having the Exequatur or Placet of the Sovereign.
1. The very title of the Bull, " Papm IX. Literx Apostolice qfuibus
Hierarchia Episcopalis in Anglitd restituitur," conveyed an insult to the
branch of the Catholic Church established in England.
A country which has retained as a cardinal point of its constitution
the primitive episcopal government of the Catholic Church, has a right
to treat the Papal appointment of a foreign Episcopate, unauthorized by
the State, as a grave infraction of International Law-far graver than
it would have been if no such national branch of the Catholic Church
had been established in the State.  Thus the manifesto, in March 29,
1851, of the two Archbishops and twenty Bishops of the English Church
set forth "cthe undoubted identity of the Church before and after the
Reformation," and that at the Reformation the English Church rejected
certain corruptions and established ", one uniform ritual," but "' without
in any degree severing her connexion with the ancient Catholic
Church."(t) In Pius IX.'s Apostolic Letters, not only were Bishops
created by titles derived from places in the Queen's dominions, thereby
forestalling the prerogative of the Crown as to the future creation of
Anglican Bishops, but, in one instance, that of St. David's the title of
an existing *Anglican See was conferred by the Pope upon one [*423]
of the Roman Bishops.
2. The language of the instrument,(u) treating England as if it had
(t) The Guardian, April 2, 1851.
(u) "Itaque post rem universam a nobis etiam accuratt consideratione perpensam, motuproprio, certa scientia, ac de plenitudine Apostolicse nostrie potestatis
constituimus, atque decernimus in regno Anglise reforeatjuxta communes Ecclesice
Regulas Hierarchia ordinariorum Episcoporum qui a sedibus nuncupantur quas
hic hisce ipsis nostris Literls in singulis Apostolicorum Vicariatuum Districtibus
constituimus."




278      PHILLIMORE  ON INTERNATIONAL LAW.
been a territory of the Sovereign of the Roman States, parcelling out
the kingdom  into districts, 6C motu proprio," " plenitudine Apostolicee
nostrre potestatis," without the faintest allusion to any other authority,
was another aggravation of the offence, as were also3. The undeniable fact that the act being done ci Rege inconsulto,"
was done contrary to Canon no less than to International Law.
4. The proclamation of the Bull in the metropolis of the kingdom,
without any Placet or Exequatur from the Sovereign.
Lastly, the Pope could not allege, by way of defence or palliation,
the impossibility of conferring with the Sovereign of Great Britain,
before he did an act without precedent in Ecclesiastical or International
Law, because the recent statute above mentioned afforded means of
international communication between the two Courts.
CCCCXXI. It is not within the scope of this work to travel into any
political or ecclesiastical questions growing out of this wrongful and
illegal act; but no impartial writer upon International Law could pass
it by without adverting to the censure which that law inflicts upon it.
It is true that the publication of these Letters Apostolic raised a
ferment in the minds of the English people, greatly resembling that
which disgraced this country in the reign of Charles II., under the
auspices of Titus Oates.
The result of many stormy debates in Parliament was the following
statute, passed in the fourteenth year of the reign of Queen Victoria:(x)ti424]  *- "Whereas divers of Her Majesty's Roman Catholic subjects
[    ]*424   have assumed to themselves the title of Archbishops and Bishops
of a pretended province, and of pretended sees or dioceses, within the
United Kingdom, under colour of an alleged authority given to them
for that purpose by certain Briefs, Rescripts, or Letters Apostolical from
the See of Rome, and particularly by a certain Brief, Rescript, or Letters
Apostolical purporting to have been given at Rome on the twenty-ninth
of September, one thousand eight hundred and fifty: and whereas by
the Act of the tenth year of King George the Fourth, chapter seven,
after reciting that the Protestant Episcopal Church of England and
Ireland, and the doctrine, discipline, and government thereof and likewise the Protestant Presbyterian Church of Scotland, and the doctrine,
discipline, and government thereof, were by the respective acts of union
of England and Scotland, and of Great Britain and Ireland, established
permanently and inviolably, and that the right and title of Archbishops
to their respective provinces, of Bishops to their sees, and of Deans to
their deaneries, as well in England as in Ireland, had been settled and
established by law, it was enacted, that if any person after the commencement of that Act, other than the person thereunto authorized by law,
should assume or use the name, style, or title of Archbishop of any province, Bishop of any bishopric, or Dean of any deanery, in England or
Ireland, he should for every such offence forfeit and pay the sum of one
hundred pounds: And whereas it may be doubted whether the recited
(x) 14 & 15 Vict cap. c x., An Act to prevent the Assumption of certain Ecclesiastical Titles in respect of Places in the United Kingdom (lst August, 1851.)




RELATIONS OF THE PAPACY, ETC.                     279
enactment extends to the assumption of the title of Archbishop or Bishop
of a pretended province or diocese, or Archbishop or Bishop of a city,
place, or territory, or Dean of any pretended deanery in England or
Ireland, not being the see, province, or diocese of any Archbishop or
Bishop or deanery of any Dean recognized by law; but the attempt
*to establish, under colour of authority from the See of Rome  *425
or otherwise, such pretended sees, provinces, dioceses, or deane- [4 ]
ries, is illegal and void: And whereas it is expedient to prohibit the
assumption of such titles in respect of any places within the United
Kingdom: be it therefore declared and enacted by the Queen's most
Excellent Majesty, by and with the advice and consent of the Lords
spiritual and temporal, and Commons, in this present Parliament
assembled, and by the authority of the same that(I. All such Briefs, Rescripts, or Letters Apostolical, and all and
every the jurisdiction, authority, pre-eminence, or title conferred or pretended to be conferred thereby, are and shall be and be deemed unlawful
and void.
c" IT. And be it enacted, that if, after the passing of this act, any person shall obtain, or cause to be procured from the Bishop or See of Rome,
or shall publish or put in use within any part of the United Kingdom,
any such Bull, Brief, Rescript, or Letters Apostolical, or any other instrument or writing for the purpose of constituting such Archbishops or
Bishops of such pretended provinces, sees, or dioceses within the United
Kingdom, or if any person, other than a person thereunto authorised by
law in respect of an archbishopric, bishopric, or deanery of the United
Church of England and Ireland, assume or use the name, style, or title
of Archbishop, Bishop, or Dean of any city, town, or place, or of any
territory or district, (under any designation or description whatsoever,)
in the United Kingdom, whether such city, town, or place, or such territory or district, be or be not the see of the province, or co-extensive
with the province, of any Archbishop, or the see or the diocese, or coextensive with the diocese, of any Bishop, or the seat or place of the
Church of any Dean, or co-extensive with any deanery, of the said United
Church, the person so offending shall for every such offence forfeit and
pay the sum of one hundred pounds, to be recovered as penalties imposed
by the recited Act may be *recovered under the provisions there- *426
of, or by action of debt at the suit of any person in one of Her [42
MIajesty's Superior Courts of Law, with the consent of Her Majesty's
Attorney-General in England and Ireland, or 1Her Majesty's Advocate
in Scotland, as the case may be."
The policy of Queen Elizabeth was certainly bolder and perhaps wiser:
when in her time the Pope sent an uninvited Legate to England, she
took good care that he should not set his foot upon the shore of her territory, and if he had done so, she would certainly have sent him back to
Rome.
CCCCXXII. The practice of Rome since the reign of Queen Elizabeth
to appoint Roman Catholic Bishops in partibus, did not infringe directly
the principle of territorial authority incident to Sovereigns or prelates of
the country.  The conduct of Great Britain with respect to the consecra



280   PHILLIMORE ON INTERNATIONAL LAW.
tion of Bishops for the United States of North America was in harmony
with this principle, and it must also be remembered that there was no
established Church in that country, and that there is no trace in the
English Statute(y) of the assumption of authority over the subjects of
the United States.  The conduct of Great Britain with respect to the
establishment of the Anglican Bishopric at Jerusalem, can only be defended, as a question of International Law, upon the ground of the permission of the Sultan, and as a question of Canonical Law upon the permission of the Greek ecclesiastical authorities.
The statute founding that Bishopric was accompanied by a Letter
Commendatory from the Archbishop of Canterbury "c to the Right Reverend our Brothers in Christ, the Prelates and Bishops of the Ancient
and Apostolic Churches in Syria and the countries adjacent;" and also
by an explanatory statement, published by authority, in which it was
declared that the new Bishop's " spiritual authority will extend over the
English clergy and congregations, and over those who may join his
*4271 Church, and *place themselves under his episcopal authority in
U" ]71 Palestine, and for the present, in the rest of Syria, in Chaldea,
Egypt, and Abyssinia: such jurisdiction being exercised as nearly as may
be, according to the laws, canons and customs of the Church of England;
the Bishop having power to frame, with the consent of the Metropolitan,
particular rules and orders for the peculiar wants of his people. His
chief missionary care will be directed to the conversion of the Jews, to
their protection, and to their useful employment.
" He will establish and maintain, as far as in him  lies, relations of
Christian charity with other Churches represented at Jerusalem, and in
particular with the Orthodox Greek Church; taking special care to convince them that the Church of England does not wish to disturb, or
divide, or interfere with them; but that she is ready, in the spirit of
Christian love, to render them such offices of friendship as they may be
willing to receive."
Lord Aberdeen, who was consulted at the time of the institution of
the bishopric, has recently declared in a letter, which has been published,
that no interference was intended with the authority of the Greek
Church.(z)
Considered apart from these limitations, the terms of the English statute,(a) under which this Bishopric was founded, are so extensive, as to
be, however unintentionally, indefensible, upon the strict principles of
International Law, Ecclesiastical as well as Civil.
(y) 26 George III., c. lxxxiv.
(z) Thomassinus has a chapter on the difficulties arising "circa ordinationes
Episcoporum, vel plurium in unAt urbe," &c.,-Vetus et Nova Eccles. Discipl., pt. i.
1. 1, c. xxix. S. vii. refers to the case of Venice, in which there were Greek'Bishops
for the Greek people; so in Cyprus and Rhodes: " Duo quippe in uno populo erant
populi duae urbe in una urbes quoties duos assignari Episcopos indultum est."
The second Bishop should be confined to those of his own country and language,
and act with the permission of the first.
(a) 5 Victoria, c. vi. s. 1.




ELECTORS, ETC., OF THE  POPE.                      281
*CHAPTER X.                           [*428]
THE ELECTORS, MINISTERS, AND COURTS OF THE POPE, CONSIDERED IN
THEIR RELATION TO FOREIGN STATES.
CCCCXXIII. THE ambition of the Emperors of Germany, which at
one period, as we have seen, claimed the absolute power of nominating
the Pope, produced a reaction both in favour of a free election to the
spiritual throne, and in favour of the independence of the temporal principality; for it became evident to Catholic Sovereigns that the Sovereign
who nominated the supreme Pontiff would indirectly govern the whole of
Christendom.(a)
At all times, indeed, the rule and manner of succession to that throne,
which claims, without reference to territorial limits, a spiritual allegiance,
theoretically from all Christians, practically from all co-religionists, of
whatever country they may be subjects, must be a question of grave
general international importance.  But at no time, perhaps, can this be
more truly predicated than at the present, not merely because most of
the questions which in these days agitate nations, including the great war
which is now afflicting Europe, have religion for their object or their pretext, but also because the difficult problem which the union of a temporal
sovereignty with an universal spiritual dominion presents has never been
more difficult or more necessary to solve. Of this problem, a living
Italian (one of the few statesmen whom the recent throes of that unhappy
country has produced) has well said, that, from its very nature, irrespective of external *circumstances, involves considerations which  429]
are both grave and universally interesting, both political and in- [29]
ternational.(b)
CCCCXXIV. We must not, therefore, pass by wholly without notice
the following considerations:1. What qualifications render a person eligible to be elected Pope?
2. Who are the electors and the ministers of the Pope?
3. YWhat is the mode and law of such election?
4. AMay the Pope be deposed for any offence, and by whom?
CCCCXXV. (1.) According to rule and usage, no one is eligible, and
no one is elected to be Pope, except a Cardinal;(c) but according to the
Canon Law, the election of another person,(d) even, it is said, of a layman,(e) would not be null.  So that Maximilian's(f) expectations were
not without the pale of possible gratification.  But the Throne of Rome
may not be filled, as other thrones are, by a female.  One must be a
Protestant, says the French canonist, who has been already cited, or be
a) Portalis, Introd. v. vi.
b) Farini, Lo Stato Romano, vol. iv. Lettera XV. a G. Gladstone. "Nb cio
dipende tanto della natura dei Governi che prevalgono in Europa quanto dalla
natura stessa del problema, il quale e implicato nelle piu gravi ed universals questioni religiose, internazionale, e politiche.' Vide post, Lettera XVII.
(c) D. De Maillane. ii. 551. " Pape."  (d) Can. oportebat et seq. dist. 79.
(e) Glos. in cap. si quis pecunia eod verb. non Apostolicus.
(f) Vide ante, p. 342, n. (y).
NOVEMBER, 1855. —-19




282    PHILLIMORE ON INTE RNATIONAL LAW.
blinded by other fanatical prejudices, "pour croire a' la fable de la Papasse Jeanne."(g)
As to the age of the Pope, it must not be less than that of the canonical age required for the Episcopate, namely, thirty years.(h)  In the
year 1770, it was remarked that of the successors of St. Peter three only
had reached that elevation under the age of forty.
[430](( *CCCCXXVI.(i) The Electors of the Pope are the Cardinals.
[*430]   Who are the persons eligible for an order possessing such an
important suffrage?
How are the members of this order elected or appointed?
What is their history?-what are the functions of this order?-are
questions which immediately present themselves for solution.
CCCCXXVII. Originally every Church was governed by a Bishop,
who was assisted by a synod or senate of the clergy, that is, of the priests
and deacons in his diocese.  Those of the clergy who were attached by
institution to certain cures of souls to certain Churches, were at first
designated Incardinati, as a name of distinction from the temporary and
auxiliary clergy not attached to any particular Church.
The name Incardinatus,(k) was afterwards exchanged for that of Cardinalis, and in early times every Church possessed its Cardinales, though
probably the appellation was generally confined, as it was in France, to
the clergy of the city, or suburbs of the city of the diocese, in fact to the
chief advisers of the Bishop, and was not bestowed upon the rural clergy.
When the Church of Rome claimed pre-eminence over all other Churches
it was an evident consequence that her Cardinals should be equally distinguished above all others.
It was the duty of the Roman Cardinals not only to govern the Churches
of the metropolis of the world, but also to form the council of the chief
pastor of that metropolis.
They were not Cardinals(l) merely because Incardinati to different
431  parishes in Rome, but also, and principally, because *these
[ 431] parishes constituted in their aggregate that Roman Church, which
was the head, the centre, the hinge (cardo) of all the Churches of the
world. These Cardinals, though but simple priests and deacons as their
order, claimed jurisdiction over the inferior Bishops of the Roman See.
Afterwards the Bishops of seven contiguous and suburban sees (episcopi
8uburbicarii) were added to the number of Cardinals.
The Pope was at first, like other Bishops, elected by the clergy and
laity of the city, the choice being ratified by the Emperors; then, as we
have seen, for a time the Emperor usurped the right of nomination, and
finally the election was left to the regulations of the Roman See. In
the Council held at Rome under Pope Nicolas II. (A. D. 1509), the principal authority in electing the Pope was conferred on the Cardinal
(g) D. De Maillane, ii. 551. " Pape."
(h) Ib. ii. 552. "Pape." lb. i. 113. " Age." Ib. ii. "Episcopat."
(i) Pachmann, Lehrbuch des Kirchenrechts, s. 175-8. Vide post, Lord Palmerston's observations.
(k) Also Intitulatus.
(1) C. 1, Dist. xxii. 0. 3, Dist. xxiv. 0. 5, Dist. lxxi. C. 6, Dist. lxxiv. C. 13,
Dist. lxi. 0. 3-5, Dist. lxxix.




ELECTORS, ETC., OF THE  POPE.                    283
Bishops; Pope Alexander III., in the third Council of Lateran (A. D.
1179), excluded the people and the clergy from  all share in the elections, and made equal the right of the Cardinal Bishops, Priests, and
Deacons. Thus the election of the Pope fell into the hands of the College of Cardinals, with whom it has ever since remained.(m)
CCCCXXVIII. The appointment of the Cardinals is made by the
Pope.
To borrow the language of a learned French canonist:(n) "aComme il
n'y a que les Cardinaux qui cr6ent le Pape, il n'y a aussi que le Pape
qui cree les Cardinaux; c'est un principe 6tabli par tous les canonistes."
Nevertheless, as a matter of usage, the Pope does not create Cardinals
before the advice and the suffrages of the College of Cardinals have been
obtained in consistorio secreto.  The Council of Basle required that the
election of Cardinals should be conducted by the way of scrutinium and
publicatio, with the suffrage in writing of the majority of the Cardinals
assembled in their collegiate capacity, non autemper vota auricularia.
*This rule has been only partially followed.  The creation of *432
Cardinals is not held to resemble the election of prelates.   [
The number of Cardinals has greatly varied; originally it was about
fourteen or fifteen, commensurate with the Churches and parishes served
by the priesthood and diaconate of Rome; others were added by Pope
Marcellus, who fixed the number at twenty-five.
The schism at Avignon (A. D. 1307-77), led to the extension, as both
the French and the Roman Popes were anxious to increase the number
of their partisans.
After the death of Pope Martin V. (A. D. 1431), the Cardinals agreed
in conclave upon certain articles, the effect of which being to admit the
Cardinals to share the revenues and the jurisdiction, both spiritual and
temporal, of the Papacy, has, according to high authority, permanently
altered the conditions both of the sovereignty itself (Signoria stessa) and
of the temporal government of the Popes.(o)
The Council of Basle (A. D. 1434), among various other regulations
with respect to the Cardinals, fixed their number at twenty-four, and
forbad any increase, 4"nisi pro magna Ecclesice necessitate vel utilitate."(p)  The Popes, however, utterly disregarded this rule; Leo X,
created twenty-one in a single day, in consequence of a conspiracy
formed against him, the leader of which was a Cardinal.  Paul IV.
fixed the number at forty.(q)
Sixtus V. made what was intended to be a final regulation on this
subject by a Bull promulgated in 1586, fixing the number of Cardinals
at seventy, and dividing them into three orders:(m) D. De Maillane, i. 403. "Cardinal." Ib. ii. 509. "Pape" contains the
new regulations of Alexander III. at length.
(n) Ib., i. 408. "Cardinal."
(o) Farini, Lo Stato Romano, iv. 323-5. Lettera IX. al G. Gladstone. See
these important articles in extenso; he calls them the Magna Charta of the Papal
Monarchy.
(p) Tit. xx. De Numero et Qualitate Cardinalium.-Koch, Sanctio Pragmatica,
&c., Sylloge Doe. p. 143.
(q) By an Indultum,.which is known by the name Compactum.




284    PHILLIMORE ON INTERNATIONAL LAW.
1. The first Cardinal Bishops, being in number six.
*2. The second Cardinal Priests, being in number fifty.
E[433]   3. The third Cardinal Deacons, being in number fourteen.
Since this regulation, the number appears to have been increased to
seventy-two-one being added to the Cardinal Priests, and one to the
Cardinal Deacons. But the number is not necessarily or usually filled up.
The Council of Trent decreed that the qualifications as to morals, doctrine, and learning, which they had already specified as needful for the
office of Bishop, should be required for that of the Cardinals, ccquos S.
S. Pontifex ex omnibus Christianis nationibus, quantum  commode fieri
poterit, prout idoneos repererit, assumet."(r)
This recommendation or direction evidently tended to give an international character to the Sacred College.  It appears, too, that it was
the habit of certain nations to choose a Cardinal as the protector of their
national ecclesiastical interests; and probably from hence grew up the
custom which prevails to this day, that the Sovereigns of certain kingdoms are allowed to nominate a Cardinal(s) from  among their own subjects.  In France the new-made Cardinal received the insignia of his
dignity from the King or his chancellor.(t)
CCCCXXIX. The principal function and privilege of the Cardinal
is to give his vote for the election of the Pope-a right incident to every
Cardinal who has received the order of deacon, or who has solicited the
Pope to bestow upon him that order.(u)
On the tenth day after the death of the Pope, the Cardinals ought to
meet in conclave: on the next day the election of the new Pope begins.(x)
The Cardinals present in conclave *are not bound to await the
arrival of those who are absent. Votes cannot be given by proxy.
The election is generally per scrutininum,(y) on the publication of which
the person elected by two-thirds of those present is declared to be the
new Pope.  If no person be so elected, then the votes are taken again,
in accessa, until, by the requisite proportion, some person is elected. It
would appear, however, from  the account of the proceedings after the
death of Pius VII., that the testament of a deceased Pope may, in some
degree, contract the mode of his successor's appointment.(z)
(r) Sess. xxiv. De Ref. c. 1. Vide post, remarks of Lord Palmerston.
s) See this claim very distinctly set forth, on the part of France, in 1822, and
recognized within certain limits by Pius VII. Artaud, Histoire de Pie VII., t. ii.
pp. 593-5.
(t) D. De. Maillane, i. p. 408.  "Cardinal."
u) Devoti Institutionum Canonicarum Libri, t. i. p. 171, (ed. Paris, 1852,).
x) Ib. p. 260.
(y) According to Devoti, t. i. ss. 18, 19, 20, 21, pp. 271-2: "Tribus autem
modis alio praeterea nulla electio perficitur per scrutinium, compromissum, et quasi
inspirationem."
The per scrutinium is to be by three senators; votes are to be collected, 1, secretoe;
2, singillatim; 3, justo ordine; 4, diligenter: compromissum where there is no opposition, but all are unanimous: "per quasi inspirationem electio absolvitur cum electores omnes quasi divino spiritu afflati in eum repente feruntur, de quo antea vix
cogitaverant."  The first of these three modes appears to be generally in use.
(z) "Ensuite le Cardinal La Somaglia, doyen, dit qu'il avait requ de son predecesseur Mattdi divers papiers, avec l'ordre de ne les ouvrir qu'apres ta mort du
Pape, et en presence du Sacr6 Colldge rassemble. Son Eminence decacheta le
paquet, et il y trouva deux Brefs, dates de Fontainebleau. Le Pape, dans le




ELECTORS, ETC., OF THE POPE.                            285
*CCCCXXX. The duty, which ranks next in importance to
that of choosing the Pope, is, that of affording counsel to him  [435
and assisting him  in the temporal government of his kingdom, and the
spiritual government of the world.
This duty is performed, 1st, in consistorio,(a) that is in the assemblage
of Cardinals at the Papal Palace, in the presence of the Pope; 2nd, in
congregationibus, that is in certain colleges or committees of different
official persons, over which a Cardinal presides, and to which a certain
portion of the Papal Government is delegated.(b)
The authority of the decisions of these committees (1) as to matters
of doctrine (2) as to matters of discipline, and (3) as to the adjudication of
particular cases, depends, of course, so far as foreign countries are concerned, upon the law  of each country in which  the Roman Catholic
Church is established.
It is only under great limitations as to the necessary concurrences of
the royal, legal, and episcopal authorities, that *these decisions [*436]
have ever been allowed to take effect in France.(c)
The same remarks are applicable both as to general usage and, especially the law of France, with respect to the decisions of the tribunal,
premier, ordonnait aux Cardinaux de se r6unir imm6diatement sous la presidence
du Cardinal doyen, et, en dirigeant X toutes les anciennes constitutions, pour no
considerer que l'empire des circonstances et les dangers de l'Eglise, d'6lire, dans
le plus bref d6lai, un Pape, a la pluralite des voix. Le second Bref portait les
rmmes dispositions, avec la difference que le Pape demandait, pour consacrer
l'4lection, les deux tiers des voix, en conformite de l'ancien usage. Le Secretaire
du Sacr6 College, Monsignor Mazio, prit alors la parole, et declara qu'il etait
depositaire d'un troisieme Bref, dont, par les ordres du Pape, et sous le secret de
la confession, il avait ete le rddacteur et le seul confident. Ce Bref portait la date
du mois d'Octobre, 1821. C'etait l'epoque ou le Pape avait lance la Bulle contre
les Carbonari. Le Saint Pere ordonnait que l'on procge6dt  l'61lection aussit6t
apres sa mort, par acclamation, s'il 6tait possible, et, pour ainsi dire, sur le corps
expirant; que cette election se fit en secret, sans attendre les Card~inaux hors de
Rome, sans prevenir les ministres accredit6s, sans informer les Cours, sans s'occuper des funerailles, avant que l'acte ffit consommd. Le Saint Pere, avec les
expressions les plus pathetiques, recommandait lunion aux Cardinaux, leur rappelait que presque tous etaient ses creatures, et que la reconnaissance, jointe A
l'amour de la religion et de la patrie, devait l'assurer de leur obdissance. Ce dernier Bref causa la plus vive sensation. Cependant, toute la congregation eut la
sagesse de reconnaitre que les ordres 6manes de Sa Saintete, h l1'poque ofh les
suites de la revolution d'Espagne et du Piemont agaitaient l'Italie, n'etaient plus
applicables aux circonstances actuelles." —Artaud, Histoire du Pape Pie VII.
p. 609.
(a) It is in the Consistory that the allocutions of the Pope are made which are
in some degree analogous to royal speeches and public declarations of the Executive in other countries.
(b) Of these congregationes some have for their more especial object municipal
and civil matters of the Roman territory, some the ecclesiastical affairs of a particular nation, others the general care of the Roman Catholic Church, viz.:
Congregatio Consistorialis.
Inquisitionis (over which the Pope usually presides.)-(Devoti, i.
p. 171, s. 27.)
Indicis.
Concilii.
Episcorporum ac Regularium.
De Ritibus.
De Indulgentiis et Reliquiis.
De Propagauda Fide.
(c) Lequeux, 364-5-6.




286   PHILLIMORE ON INTERNATIONAL LAW.
which are concerned with preparing and expediting Letters Apostolic or
Rescripts of the Popes, namely, the Cancellaria, Dataria, and Pcenitentiaria.(d) So with respect to the highest Roman tribunal, the Rota
Romana, which consists of twelve auditores, one French, one Spanish,
one German, the rest Italian; it has no authority in France.(e)  The
tribunal of the Signature Justitioe presides over matters of Appeals,
Delegation, and Recusation, and the Rescripts are signed by the Pope.
The tribunal of the Signature Gratise has cognizance of matters in which
the favour of the Pope is sought, and in this tribunal he presides in
person.
CCCCXXXI. With respect to the rank of the Cardinal(f) at Rome,
it is considered next to that of the Pope. For some time Archbishops
and Bishops refused to yield precedence to Cardinal Priests and Deacons;
but from the order of rank observed at the Council of Lyons, A. D.
1245, it appears that precedence was accorded to Cardinals over all
dignitaries, including Patriarchs.
When, in 1440, the Archbishop of York was made Cardinal, the
Archbishop of Canterbury demurred to his claim for precedence.  But
the Pope wrote to the latter prelate, that, as the College of Cardinals
represented the Apostles, their universal right of precedence was not to
be disputed.
[*437]   Their rank in foreign countries must depend upon the laws
[*437] *and usages of each country, but generally in countries which
recognize the supremacy of Rome, their rank has been, with more or
less restriction, recognized also.
The Cardinal now resident in England has no rank in that country,
but this is probably the consequence of the non-recognition of his
mission, and the grievous infraction of International Law with which it
was inaugurated. With respect to other Roman privileges of Cardinals,
such as those which relate to the holding of benefices and residence at
Rome, they are by no means recognized as a matter of course in other
countries, and in France they have been denied.(g)
CCCCXXXII. As Cardinals are subjects in one State and Princes in
another, and have two allegiances, it may be important to examine the
oath which they take to the Sovereign of the country in which they are
Princes.  That oath is,(d) Reiffenstuel, Jus. Can. Univ. 1. iii. t. iv. n. 577.
(e) " Apud nos nullam  exercet jurisdictionem hoc tribunal."-Lequeux, i. 368.
(f) " C. xiii. s. Sunt autem X. qui filiis. leg. c. xvii. s. Decet de elect. in VI.
cardinales, id est cardines orbis consiliarii, fratres, familiares aut filii Papae, cardinales divi, lumina Ecclesise, &c. denique faciunt unum corpus cum Papa sicut
canonici cum Episcopo," &c.-Barbosa, De Jure Eccles. 1. i. c. iv. n. 1.
(g) " On n'a jamais regarde en France les r4glements que les Papes ont faits
touchant la r6sidence des Cardinaux k Rome, comme une loi que les Cardinaux
Francois fussent obliges de suivre." An eminent magistrate at the head of the
bar denounced the Bull of Innocent X. as " abusive;" they admitted the high rank
and dignity of the Cardinal, especially with the Sovereign Pontiff, " auquel ils
(les Cardinaux) doivent respect et fidelitd particuliere; mais cette obligation qui
est du droit positif et humain, ne peut venir en competence avec les droits de la
naissance et de la nature qui nous attachent de droit divin h nos Souverains, et
auquel il n'est pas loisible de resister." —D. De Maillane, i. 413-14; M. du Clerg6,
t. vi. p. 1047.




ELECTORS, ETC., OF THE  POPE.                       287
" Ego —-— nuper assumptus in Sancta Romand [Ecclesia] Cardinalem
[Cardinatum,] ab hac hora in antea ero fidelis beato Petro, universalique
et Romanre Ecclesiae, ac summo Pontifici ejusque successoribus canonice
intrantibus.  Laborabo fideliter pro defensione fidei Catholicre, extirpationeque hseresium, et errorum  atque Schismatum reformatione, ac pace
in populo Christiano: alienationibus rerum et bonorum Ecclesiae Romanae,
aut aliarum Ecclesiarumr et beneficiorum quorumcunque (non) consentiam,
nisi in casibus a jure permissis; et pro alienatis ab Ecclesia Romana
recuperandis pro posse meo operam dabo. Non consulam quidquam
summo Pontifici, nec subscribam  me nisi secundum *Deum et [*438]
conscientiam, quse mihi per sedem Apostolicam commissa fuerint
fideliter exequar, Cultum  Divinum  in. Ecclesia tituli mei, et ejus bona
conservabo; sic me Deus adjuvet et hae  sacrosancta Dei Evangelia."(h)
CCCCXXXIII. D'Aguesseau wrote a very learned Memoire(i) upon
the question whether a French Cardinal, guilty of leze-majeste', was
exempted, on account of his dignity, from  the royal jurisdiction.(k)
This great jurist considers the question under four heads, and the
Cardinal is considered (1) as a Clerk, (2) as a Bishop, (3) as a Cardinal, (4) as the Diocesan, by virtue of his rank in the College of Cardinals; and the result of his examination into all these points is that
the Cardinal is subject to the royal jurisdiction: —  De quelque cot6
que i'on consid6re le Cardinal, il est 6galement soumis a la puissance
et a la justice du Roi."(1)
The following passages in this elaborate and international treatise are
well worthy of attention:-   Comme le Pape reunit en sa personne la
qualite de Prince-Souverain i celle de Chef de 1'Eglise, et que contre
la doctrine et les sentimens des anciens Papes, il est enfin devenu Roi et
Pontife tout ensemble, les Cardinaux, qui soent ses ministres dans ces
deux qualit6s, peuvent aussi etre consider6s sous deux faces differentes;
c'est-a-dire, ou dans leur 6tat ecclesiastique, comme principaux ministres
de l'Eglise de Rome, et assesseurs du Pape dans les affaires eccl6siastiques,
ou dans leur etat politique, comme conseil et principaux officiers d'un
Prince etranger."(m).              t...      Quelle est done, suivant ces principes, la veritable situation d'un Francais qui est honor6 de la diguit6 de
Cardinal?"
*"( Il devient, a la verite, le conseil, le ministre du Pape, avec [*439]
l'agrement et presque tonjours par la protection du Roi; il entre [    1
par-la au service du Pape, il contracte de nouveaux engagements: mais il
ne d6truit pas les anciens qui le lient a sa patrie.  Le lien qui l'attache
i son premier maitre, est d'un ordre superieur a celui qui l'unit au
second; l'un est naturel, l'autre est purement civil: l'obligation civile
ne detruit pas l'obligation naturelle, et un Cardinal n'en est pas plus
dispense qu'un Gen6ral Frangais qui commande les troupes du Roi
(h) D. De Maillane, i. 413, " Cardinal."
(i) D'Aguesseau, v. 199, M6moire ot l'on examine si un Cardinal Frangais qui
commet une Crime de Lbze-Mageste, est exempt de la Jurisdiction Royale par sa
dignit6. A very valuable dissertation on the limits of the spiritual and temporal
power.
(k) See Bynkershoek, De F. L. c. vi. p. 455; c. xii. p. 491.
(1) D'Aguesseau, ib. p. 336.                         (m) Ib. p. 290.




288    PHILLIMORE ON INTERNATIONAL LAW.
Catholique, ou qu'un Due et Pair qui a joint a ce titre celui de Grand
d'Espagne, ou qu'un negociant qui va s'etablir i Amsterdam ou a Cadiz,
par rapport a son commerce."
CCCCXXXIV. D'Aguesseau cites eight precedents for the trial of
Cardinals by the law of the land:1. Cardinal de Constance in the time of Louis XI., A. D. 1462.
2. Cardinal Ballue, in the same reign, in whose case there was an
elaborate discussion between the Ambassadors of France on the one hand,
at the Court of Rome, and the Pope and Cardinals on the other.
3. Cardinal de Chattillon, " exemple celebre," accused and judged by
the Parliament.
4. Cardinal de Guise, executed, without the formalities of justice, by
Henri III.
5. Cardinal de Bourbon, executed by the same monarch in a similar
manner.
6. Cardinal de Plaisance, sent by Pope Clement VIII. to assist the
League against Henri IV. The Cardinal was not a born subject of the
crown, and was an ambassador.  It was held by the parliament of Charles
that by joining in a conspiracy he had forfeited his privilege as ambassador, and that he was justiciable by reason of the locality of the crime,
though not by reason of his birth.
7. Cardinal de Sourdis, in the reign of Louis XIII., A. D. 1615.
l*440]'8. Cardinal de Retz(n) cc exemple 6quivoque," for the King,
[*440] then scarcely of age, just emerged from the troubles of his
minority, first ordered the Parliament to proceed against the Cardinal,
and afterwards applied to Rome for commissioners.
CCCCXXXV. The Roman canonists(o) say, that as the whole Church
of Christ is committed to the charge of the Pope, and as he cannot be
present everywhere, it is necessary that he should have deputies armed
with his authority and jurisdiction, and hence the institution of Legates(p).  Legates are of three kinds: —
1. Legati a latere.
2. Legati missi or NVuntii.
3. Legati nati.
CCCCXXXVI. Legati a latere(q) are Cardinals whom the Pope has
sent, as it were, from his own side, either to foreign Princes or into
provinces of the Roman See, clothed with the most ample authority. In
the Decretals, powers nearly, if not quite equal to those of the Pope,(r)
are comferred on these Legates, and it is provided that they shall continue after the death of the Pope.  They were authorised to convene and
preside over Councils, with a vote equivalent to that of the whole
assembly, to suspend and depose Bishops, and to make laws. These
extravagances were partly framed only by the Council of Trent,(s) but
n) D'Aguesseau, v. p. 330.
o) Devoti, i. 172, xxix xxxii. C. viii. X. De Off. Leg. C. iii. iv. vi. ix. X. Ib.
C. xx. X. De Jure Patron. C. i. VI. De Off. Leg. C. xxiii. X. De Privileg.
(p) For their early history, see Thomassinus, Discipl. Pt. I. 1. ii. cc. 113, 119.
De Cardinalibus et Legatis.
(q) X. I. 30, Sext. I. 15. De. Off. Leg.   (r) Cap. Antiqua, 23, De Privileg.
(s) Sess. xxiv c. xx. De Ref.




ELECTORS, ETC., OF THE  POPE.                         289
the laws and practice of *independent States have so curtailed [441
and limited them,(t) that the office has fallen into desuetude. [*441
Nevertheless, after the desolating storm of the first Revolution had passed over the Gallician Church, and Napoleon had again opened communications with Rome Pius VII. sent Cardinal Cap.rara, in the character
of a Legate a latere, to France.  The French Government admitted him,
and with very large honours, which, however, they partially circumscribed by denying to him the faculty of acting by delegate (subdelegandi.)(u)
These Legates are ambassadors of the first rank.
CCCCXXXVII. Legati missi, or Nuntii, are Papal ambassadors
appointed for the execution of some particular business in foreign parts,
with powers limited by their credentials.
Nuntii Apostolici are resident Papal ambassadors at foreign Courts.(x).Nuntii are ambassadors of the second rank, though sometimes furnished 4cum potestate Legati a latere."
lzternuntii are those who are appointed provisionally, or who are resident in provinces in which the Sovereign is not present.  These are
ambassadors of the third rank. For the transactions of matters of
minor. moment Ablegati are sometimes dispatched from Rome.
The chief duties of the Legate or Nuncio are, to watch over *the
interests of the Roman See, to apprise the Pope of all matters of [    ]
moment passing at a foreign Court, and to obtain canonical information
respecting the Bishops nominated by the Crown.(y)  They have  no
jurisdiction unless by the permission of the State to which they are
sent. (Z)
Their powers, therefore, no longer depend upon one general law, but
upon the particular instructions given to them, and on the law and usage
of the country to which they are sent.  This has been the consequence
of the dispute at the close of the last century with respect to perpetual
or standing nuntiaturas.(a.)
CCCCXXXVIII. The title of Legati nati(b) was conferred upon certain foreign dignitaries, to whose See or Crown the power and office of
Legate was perpetually annexed. Such were the Archiepiscopates of
(t) " Aucun individu, se disant Nonce, Legat, Vicaire, ou Commissaire Apostolique, ou se pr6valant de toute autre denomination, ne pourra sans l'autorisation
du Gouvernement, exercer sur le sol FranSais, ni ailleurs, aucune fonction relative
aux affaires de l'Eglise Gallicane."-Artic. Organiques, art. ii. Walter, Kirchenrecht, s. 143. Thomass. Discip. ubi supr.
(u) The Papal letters, " Qui Christi Domini," conferred on the Legate 1" potestatern constituendi novas Ecclesias Galliarum: singulorum Diceoesium fines determinandi: probandi statuta capitulorum, eisque concedendi choralia insignia, quae
iis convenire arbitrebitur: parcecias circumscribendi: procedendi per se ad constitutionem Ecclesiarum: dispensandi, condonandi: imb etsubdelegandi."-Lequeux,
i. 380. Bulletin des Lois, IIIe Sbrie, NO. 1374.
(x) Vide ante, p. 167, n. (k), formerly apocrisiarii or responsales, Nov. 123, c. 25.
(y) "Nullum apud nos Nuntii jurisdictionis actum exercent."-Lequeux, i. 380.
(z) "Ihre Vollmachten hanngen von ihren besondern Instructionen, ihre Zulassung von der Regierung des betreffenden Landes ab."-Walter, Abschen. 144. C.
un Extr. Comm. de Consuet. i. 1, is now held contrary to the jus commune of the
Church and of States.
(a) Pachmann, Lehrbuch des Kirchenrechts, s. 182.
(b) Devoti, i. 175.




290   PHILLIMORE ON INTERNATIONAL LAW.
Rheims, Bordeaux, and Lyons in France; of Canterbury and York in
England; of Toledo and Taragona in the Spanish peninsula; of Salzburg, Cologne, and Prague in Germany; of Pisa in Italy; the Crown of
Hungary and the Crown of the Two Sicilies-apostolica regni Sicilim
Legatio.(c)
In process of time it was found that the Papal power was rather weakened than strengthened by these perpetual and unchangeable Legates,
and it is probable that the provisionary title is the only memorial of
former authority which they now retain, Except, indeed, in the case of
the Crown of Hungary, for Pope Sylvester conferred this privilege upon
*4431  *King Stephen.(d)  Except, also, in the case of the King of
the Two Sicilies; this privilege of the Sicilian  Monarchy is
founded upon a Bull of Urban II. to Roger (1099,) and was expressly
confirmed by a Bull of Benedict XIII. (1728.) The King exercises, or
did exercise, jurisdiction as Legate through a special tribunal of his own
(Monarchia Sicula.)
The Commissarius Apostolicus, sometimes called Delegatus, is an
officer despatched by the Pope to obtain information upon a particular
matter.
The vicarius Apostolicus is an officer through whom the Pope exercises authority in parts remote, and who is sometimes sent with episcopal
functions into provinces where there is no Bishop resident, or where there
has beon a long vacancy of the see, or in infidel or heretical countries.(e)
The Prnefecti Apostolici are officers of the same character, but without
the power of exercising episcopal functions.
CCCCXXXIX. There remains the question as to whether the Pope
may be deposed for his offences, and by whom?
In the case of any other Sovereign, such a question would not properly
be answered in any treatise on International Law.  First, because it is
a question rather of Public than of International Law; and secondly,
because it is neither prudent nor right to atttempt to lay down rules for
a case, which, if it ever happen, must be superior to all rule, save that
which the necessity itself may suggest and justify.  But the character
of the Pope as Universal Spiritual Chief gives foreign countries a direct
interest in that question; and, moreover, it is one which has undergone
consideration, and of which a solution has been attempted.
[*<444]   *Here, again, as in so many matters relating to the Pope, there
are two distinct opinions maintained by ultra and cis-montane
canonists. The former maintain the impossibility of the Pope's trial or
deposition, on account of his infallibility, and of his superiority to every
earthly tribunal. The latter hold the superiority of General Councils of
(c) Walter, Kirchenrecht, Abschn. 144, " Doch hangen nur Ehrenrechte davon
ab."
(d) "Sich das Kreuz, als Zeichen des Apostolats allenthalben vortragen zu
lassen, und nach dem Masse der gottlichen Gnade, und als Stellvertreter des Papstes,
die gegenwartigen und klfinftigen Kirchen des ungarischen Reiches einzurichten,
zu ordnen, und mit Vorzfigen auszuzeichnen."-Benedict XIV. De Synod. Didc. 1.
ii. c. vi. cited by Pachmann, s. 181.
(e) The right to nominate these officers rests upon the Pope's claim to universal
jurisdiction, and on what is called by canonists thejue devolutionis.-Walter, ib.




ELECTORS, ETC., OF THE POPE.                       291
the Church to the Pope, the possibility of his erring, and that he is not
exempt from the jus commune whereto every Bishop or dignitary of the
Church is canonically responsible for certain offences, and that bad Popes
have been lawfully deposed both by Emperors and by Councils.
The Council of Basle distinctly asserted three propositions: —
1. That a General Council was superior to the Pope, and that he owed
obedience to it.
2. That he might be punished (debite' puniatur) for disobedience to it.
3. That by this Council the Cardinals are enjoined to remonstrate first
personally, then in their collegiate capacity, with an erring Pope, and
lastly, to denounce him, if he do not amend, at the next General Council.(f )
" Non nostrum est tantes inter componere lites."
But it is necessary to add, that, both in the convocation and in the proceedings of a General Council, all Christian nations must be interested.
CCCCXL. We have arrived at the conclusion of the observations on
the relations of foreign States with the Papacy,-perhaps by a longer
road than to many readers may have seemed necessary,-but it is a conviction which has grown upon the writer of these pages that the subject
is not only one deeply affecting the Public Law of all States, but that it
is properly and strictly one of International Jurisprudence.(g)  The laws
which govern the relation and intercourse, *be it spiritual or *445
temporal, between the subjects of one State and the ruler of [445]
another, are surely part of the jus inter gentes.  The fact that the Pope
is an Independent Temporal Sovereign as well as a great Spiritual Chief.
does indeed complicate, and for the present inextricably, the difficulty,
but it does not take away the international character of his relations with
the subjects of other States.
This fact, on the contrary, introduces a new problem of International
Law, namely, with respect to the Right of Intervention(h) in the affairs
and internal government of the subjects of this hybrid State.  During the
recent revolutions on the Continent and in Italy, the difficulty of reconciling the duties of temporal Prince of the nation with those of the Spiritual Chief of all nations was made very evident.(i) At one time the
Pope blesses the banners of his subjects, going forth to fight, as they say,
the battle of Italian liberty; at another time he disclaims the use of all
temporal weapons, and declares that his position is one of necessary neutrality.  Such is the conduct of the Papacy in its direct temporal relalations.  But the same incompatibility of functions and offices appears
to render all his domestic affairs foreign affairs.  At one moment the
(f) Art. ii. iii. vi. vide Koch, Sanctio Pragm. Sylloge Doec. pp. 112, 147. Can.
lviii. Dist. 50. Can. vi. c. xxv. s. 1.
(g) " Comme chef d'une socie6t religieuse, le Pape n'a qu'une autoritd limitde
par des maximes connues, qui ont plus particulierement 6t6 gardees parmi nous,
mais qui appartiennent au droit universel des nations."-Portalis, D scours sur l'Organisation des Cultes, p. (Paris: 1845.)
(h) Vide ante, vol. i. pt. iv. c. i. on Intervention.
(i) See Martens, Rec. Gen. de Tr. t. ix. (A. n. 1846) for the public documents &c.
of Pio Nono.




292   PHILLIMORE ON INTERNATIONAL LAW.
Pope confers a constitutional government on his three million subjects,
placed geographically and morally in the heart of a great nation-subdivided, indeed, into different kingdoms, but of one blood, one feeling, one
language.  At another, this constitutional government is withdrawn,
because it is inconsistent with the spiritual duties and interests of the
Papacy.
The Pope, dismayed and disgusted —let us say with good reason-at
the acts of his ministers, flies from his kingdom; so did the late King of
the French, Louis Philippe.
[*446]   *We have already discussed(k) what course, in such circumstances, the sound principles of International Law, as well as the
improved practice of nations, require foreign States to pursue, viz., that
to stand aloof and be neutral is the rule, to intervene is the exception.
The rule was accordingly followed in the case of Louis Philippe, the
exception in the case of Pio None. Why? The revolutionary Government which succeeded the expulsion of the French monarch was, on the
principle of vicinage, more dangerous to the established governments of
other States than the expulsion of the Italian Sovereign.  The answer,
however, is, that the Italian Sovereign was the Spiritual Chief of Roman
Catholic nations, and therefore they were justified in intervening in the
domestic affairs of another State, because it is essential to the position
and dignity of their Spiritual Chief that he should rule as he pleases
over a certain portion of Italy.  On this principle, Pio None is restored
by a foreign army to his throne: but this abnormal and exceptional state
of things does not end here; so well is it understood that the people over
whom he rules would not accept the government of their ruler, that the
foreign army remains, on the ground of being absolutely necessary for
the protection of the Sovereign thus restored.(l)
It is not, it will be observed, intended to apply the slightest approbation of the late temporary Republic of Rome, of the actors in it, or their
acts. They may be admitted to have been very wicked, very base, and
very foolish, without much, if at all, affecting the question under consideration.  The object is to point out the principal anomalies to the fundamental rules of International Law, which the double *character
[     of the Pope actually does, or is supposed to render necessary.
We have seen that the cardinal doctrine that 4s every State has a right
to choose its own form of government without the interference or control
of any foreign Power,"(m) is not held to be applicable to the three
million inhabitants of the Roman State.  There remains a difficult question about the Balance of Power-that principle for which so much
blood has been, and is being shed, and the value of which has been
already discussed at length.(n)
It may be, perhaps, not unreasonably argued that the occupation of
(k) Vide ante, vol. i. p. 164, pt. iii. c. iii. Right to a Free Choice of Government; pt. iv. c. i. on Intervention: and in this volume, pt. v. c. iv. p. 15, as to
Recognition.
(1) " E. manifesto che il cadavere ne sta ritto solo, perch6 Francia ed Austria lo
sorreggono con due eserciti." —Farini, t. iv. p. 344.
(m) Vide ante, vol. i. p. 164.                 (n) Ib. p. 447, &c.




ELECTORS, ETC., OF THE  POPE.                      293
the central kingdom  of Italy by Austrian and French troops(o) did
obviously disturb the equilibrium  of Europe.  It was, indeed, on this
principle that, some years ago, French troops occupied Ancona, when
Austrian troops were marched into the Roman States. All States,
whatever be their Established Church, are equally interested in maintaining this equilibrium.  May then Prussia, England, Russia, and Spain
send an armed force to Rome?  There is this answer, that the Pope
invites the Austrians and French. This is true; and it has been shown
that circumstances may justify foreign nations in intervening at the
request of either party in a civil war; but what would have been the
confusion in Europe and the world, if other States had been invited by
the other party in this civil war to intervene on their behalf, and had
accepted *the invitation,-if Prussia and England had inter-  *448
vened in the centre, as Sardinia had done in the North of Italy?  448
Lastly, it is not only Roman Catholic States that were interested in
events affecting the status of the Pope. Prussia and England have
millions of Roman Catholic subjects.  But a little while ago, as we
have seen, an Apostolic Letter threw England into a ferment, which to
be believed must have been witnessed.
In 1849, during the civil wars in Italy, the English Minister for
Foreign Affairs carried on a very important correspondence with our
ambassador abroad, in which he made the following, among other obsertions:1. That England would not, on account of her Roman Catholic subjects, view with indifference what was passing in the Roman States.(p)
2. That she desired that the Pope should occupy an independent
temporal position, in order that he might not become the political instrument of any one European Power.(q)
3. That there was, nevertheless, a great difficulty in making the
Roman States an exception to the general rule of noninterference
between any foreign people and their Sovereign.
4. That the position of the Pope differed from that of other Sovereigns,
as he was elected by the College of Cardinals, a body neither national
in its constitution nor in its membership.
5. That the Pope ought to give his subjects securities for good
government.
6. That for that object a separation should be made between the
spiritual authority and the temporal powers and institutions of the State.
(o) It is true that England was consulted before this took place. Lord
Normanbv writes from Paris to Lord Palmerston (July 23, 1849,) "He (M. de
Tocqueville) took this opportunity of again repeating what he had said to me
upon former occasions, that though England, for reasons given by your Lordship,
had declined to take any active part in the present negotiations when invited by
the Pope, he hoped she would, nevertheless, in some shape, give to such an arrangement as she had formerly wished to see effected, the moral support of her advice
and counsel, either at Gaeta or at Rome. The active interest she might show
upon this subject, would be an additional security that whatever reforms were
promised would be sincerely executed."-Correspond. respecting the Affairs of
Rome, 1849, presented to Parliament 14 April, 1851.
(p) Vide ante, vol. i. p. 443.
(q) See the opinion of Portalis, Discours sur l'Organization des Cultes.
Discours, &c., par le Vicomte F. Portalis, s. 33. (Paris: 1845.j




294    PHILLIMORE ON INTERNATIONAL LAW.
7. That an armed intervention to assist the Pope in retaining a bad
Government would be unjustifiable.(r)
[*449]                  *CHAPTER XI.
THE  INTERNATIONAL  STATUS OF THE PATRIARCHATE OF CONSTANTINOPLE.(a)
CCCCXLI. IN the time of Pope Gregory the Great(b) (A. D. 595,)
and while Maurice was Emperor of Constantinople, John, the Patriarch
of Constantinople, openly assumed the title of Universal Bishop, claiming
thereby apparently a spiritual supremacy over the whole Christian
world.(c)  The letters written by Gregory to the Emperor, to the Patriarch, and to certain Bishops, are among the most valuable monuments
of Ecclesiastical History, and, indeed, of Ecclesiastical International
Law.
These letters of this illustrious(d) prelate, in which he denies the
right of any Patriarch or Bishop to arrogate to himself the title of
Universal Bishop, and denounces the usurper of this foolish, offensive,
and unchristian appellation as the precursor of Antichrist,(e) will well
repay the perusal *of all who take an interest in those events,
[450] twhich combine the most remarkable features of civil and ecclesiastical history.(f)
CCCCXLII. More than a century passes away between the Pontificate
of Gregory I. (the Great) and that of Gregory II.(g) But both Popes
(r) Correspondence between Viscount Palmerston, the Marquis of Normanby,
and Prince Castalcicala, laid before Parliament, June 15, 1849.
(a) Walter's Kirchenrecht, ss. 168-173. Verfassung der Morgenlandischen
Kirche.
(b) His Pontificate lasted from A. nD. 590 to A. D. 604.
(c) Vide ante, p. 292.
(d) The blot upon his character in his adulatory letter to the wretch Phocas;
but even Gibbon says that " Gregory might justly be styled the Father of his
Country."-Decline and Fall, vol. iii. p. 176, (ed. Milman.)
(e) L. vii. ep. xxxiii.: " Eundem vero fratrem  et coepiscopum meum studios6
admonere curavi, ut si habere pacem omnium concordiamque desiderat ab stulti
vocabuli se appellatione compescat.".. "Ego autem  fidenter dico, quia
quisquis se Universalem Sacerdotem vocat, vel vocari desiderat, in elatione sua,
antichristumprcecurrit, quia superbiendo se cseteris preponit."
Ep. xxxi.: " Ut verbumn superbice, per quod grave scandalum in Ecclesiis generatur,
auferre festinetis."
Some expressions of the kind occur in most of the ten letters.
(f) The reader is referred to:-  Liv. v. ep xviii. (Ad Johannem Episcopum)
Ep. xix. (Ad Sabinianum Diaconum.)  Ep. xx. (Ad Mauricium Augustum.)  Ep.
xxi. (Ad Constantinam  Augustam.)  Ep. xliii. (Ad. Eulogium et Anastasium
Episcopos.)  Lib. vii. ep. xxvii. (Ad Anastasium Episcopum.)  Ep. xxxi. (Ad
Cyriacum Episcopum.) Lib. viii. ep. xxxiii. (Ad Mauricium Augnstum.) Lib.
viii. ep. xxx. (Ad Eulogium Episcopum Alexandrinum.) Lib. xiii. ep. xl. (Ad
Cyriacum Patriarcham Constantinopol. Sancti Gregorii Papse I. Cognomento
Magni Opera Omnia, t. ii. (Parisiis: Sumptibus Olaudii Rigaud, 1705.)
(g) Extended from A. D. 715 to 731.




PATRIACHATE  OF CONSTANTINOPLE.                      295
were brought into especial contact with the Patriarchate of Constantinople. According to the opinion of Gibbon, certainly important on this
point, the Patriarchs of Rome and Constantinope were at this time
nearly equal in ecclesiastical rank and jurisdiction.(h) But the Greek
Patriarch was under the immediate yoke of a tyrannical Prince, which
the distant Roman Patriarch had been long striving to shake off.
When the imperial iconoclast, Leo, was making that assault upon the
devotional use of images, which-trifling as it seems to the infidel philosopher-was fraught with serious consequences to the future peace of
Christendom, he received from Gregory II. a letter, which contains a
passage bearing upon the present subject:rcc Are you ignorant" (Gregory
writes) <" that the Popes are the bond of union, the mediators of peace
between the East and West?"()  When the *iconoclast had 
ceased to reign, the power of the Byzantine Emperor in Italy [451]
had dwindled into the Exarchate of Ravenna, and was practically confined within the walls of that city.
The restoration of the Western Empire by Charlemagne, which has
been mentioned in the preceding pages,(k) was followed by the separation
of the Latin and Greek Churches. In what degree a difference of religious opinion upon the most inscrutable of mysteries, national animosity,
and arrogance on the part of Rome contributed to produce that schism,
which the lapse of ten centuries finds unhealed, it is not within the compass of this work to consider.
In the turbulent period between A. D. 857-886, Pope Nicholas I. and
the Patriarch Photius had mutually denounced and deposed each other.
But it was not until A. D. 1054 that the Pope sent his legates to excommunicate formally the Church of Greece and the Patriarch of Constantinople in his own metropolis, and to deposit the Latin anathema on the
altar of Saint Sophia.  The failure of the attempt to reunite the two
Churches at the Council of Florence (A. D. 1439) has been previously
noticed. (I)
The conquest of Constantinople by the Turks (A. D. 1453) was followed
by that long and cruel oppression of the Greek Church, from which she
has been, during the last few years, partially relieved; and her complete
emancipation from which appears, so altered is the state of things, to be
no impossible result of the war which is now being waged for the protection of the Ottoman Power.
CCCCXLIII. The Patriarch of the East has not renewed that claim to
the title of Universal Bishop which drew down upon him the just rebuke
of the Patriarch of the West.
It is not easy to define the existing relations of the Patriarchate
*of Constantinople to the Russian Church.(m)  The Patriarch,  452]
(h) Decline and Fall, vol. ix. p. 131.
(i) Gibbon, vol. ix. p. 136. At p. 134, he has this note: "'The two epistles of
Gregory II. have been preserved in the Acts of the Nicene Council, t. viii. p p.
651-674. They are without date, which is fixed by Baronius in 726; by Muratori
(Annal. d'Italia, vi. p. 120,) in 720; by Pagi in 730."
(k) Vide ante, pp. 294-7.                 (1) Vide ante, p. 336.
(m) Strahl, Beytrage zur Russischen Kirchengeschichte. (Halle, 1827.) Neale,
History of the Holy Eastern Church, vol. i. p. 55.




296    PHILLIMORE ON INTERNATIONAL LAW.
while these pages are being written, is reported to have rebuked the Emperor of Russia for the schismatic condition of the Church in that country,
and to have refused his proffered protectorate for the Greek Church.(n)
The Patriacch of Constantinople has recently entered into a Concordat
with the Crown of Greece.  The ministers of that Crown sent a formal
letter to the Patriarch, accompanied by an unanimous decree of the Holy
Synod of Greece, dated May 30, 1850.  This document contained the
following among other propositions:-" That the Synod of Greece holds
as a most solemn obligation the duty of piously conceding the primacy
guaranteed by the sacred canons to the cecumenical Throne of Constantinople, as the first Chair of the Catholic Apostolic Orthodox Church, and
to commemorate first, him who sits thereon, in the sacred diptychs, according to the established order of the Church.  In addition to this, whereever spiritual questions may arise which require united deliberation and
action, for the greater edification and confirmation of the Orthodox Church,
they recognise it to be a duty that reference should first be made to that
Chair." (o)
This and the other propositions of the letter were formally ratified and
confirmed by the Patriarch of Constantinople, his associate Synod and
Suffragans, in a Synodical decree.
[#453]   *CCCCXLIV. It is remarkable, that not long before the Papal
aggression in England, which has just been discussed, Pius IX.
made an attack of a similar character upon the Eastern Church.
On the 6th of January, 1848, he issued "4 an Encyclical Letter of the
One Holy Catholic and Apostolic Church to the Orthodox in all parts,"
in modern Greek, "' to the Easterns," containing some very unfortunate
errors,-among others, a reference to the Council of Carthage, instead of
Chalcedon;(p) but neither this mistake nor the modern Greek appears
to have been the cause of the great irritation and offence caused by this
memorable epistle, of which it is now not easy to obtain a copy: it was
the assumption of authority, the implicit denial of the Greek Episcopate,
which roused this long-oppressed Church, and caused it to return, in classical Greek, "a an answer, which will never be forgotten, of the Orthodox
Eastern Church to the Encyclical Epistle of His Holiness the Pope of
(o) " The Greek Patriarch at Constantinople, M. Anthimos, had addressed a remarkable circular to his co-religionists. Hearing that some Greeks manifested
hostile sentiments towards the allies of Turkey, the Patriarch censured their conduct, and passed a high encomium on the noble disinterestedness with which the
Western Powers defend the cause of the weak against the strong. In conclusion,
he pronounced a solemn anathema, in the name of the Eastern Church, against the
schism, calling itself orthodoxy, which has transferred to St. Petersburg the spiritual authority in religious matters."-Times, August 31st, 1854.
(n) These documents were printed in a modern Greek journal called the A'w,
and are translated in the April number of the Scottish Ecclesiastical Journal for
1851.
(p) The mistake is singular, for Gregory the Great thus speaks of the compliment paid to Rome by the Council of Chalcedon: " Si enim universalem me PPapam
vestra Sanctitas decit, negat se hoc esse, quod me fatetur universum. Sed absit
hoc. Recedant verba quae vanitatem inflent et caritatem vulnerant. Et quidem
in Sancta Chalcedonensi Synodo, atque post a subsequentibus Patribus hoc decessoribus meis oblatum vestra Sanctitas novit. Sed tamen nullus eorum uti hoc
unquam vocabula voluit: ut dum in hoc mundo honorem Sacerdotum diligerent
omninm, apud omnipotentem Deum custodirent suum."-L. viii. ep. xxx.




PATRIARCHATE OF CONSTANTINOPLE.    297
Rome lately sent to the Easterns."  This answer corrected the historical
errors of the Pope, and enumerated the offences against the unity and
peace of the Church committed by Rome, while it vindicated the faith of
the Greek Church in a manner worthy of its best days.(q)
*WTe have already considered the claim of the Emperor of Rus-  454,
sia(r) to protect the subjects of the Porte, who are members of [
the Greek branch of the Catholic Church,-and would that we could
speak in the past tense of the terrible war into which this pretension has
plunged Europe, and perhaps the world!
It only remains to add that the great Powers of Europe, who, in
1827,(s) had intervened for the purpose of establishing the Kingdom of
Greece, intervened again in 1853 to guarantee that the successors to the
Throne of Greece should profess the faith  of the orthodox Eastern
Church.(t)
(q) Scottish Ecclesiastical Journal, January, 1851. Neale, History of the Holy
Eastern Church, vol. ii. pp. 1192-1202.
The Signatures to the Eastern Encyclic are as follows:" Anthimus, by the mercy of God, Archbishop of Constantinople, New Rome, and
(Ecumenical Patriarch, in Christ our God a beloved brother and bedesman."
" Hierotheus, by the mercy of God, Patriarch of Alexandria and of all Egypt, in
Christ," &c.
" Methodius, by the mercy of God, Patriarch of the great city of God, Antioch,
and of all the East, in Christ," &c.
" Cyril, by the mercy of God, Patriarch of Jerusalem and of all Palestine, in
Christ," &c.
THE HOLY SYNOD IN CONSTANTINOPLE.
Paisius of Caesarea.                Theocletus of Berrhaea.
Anthimus of Ephesus.                Meletius of Pisidia.
Dionysius of Heraclea.              Athanasius of Smyrna.
Joachim of Cyzicus.                 Dionysius of Melenicus.
Dionysius of Nicomedia.             Paisius of Sophia.
Hierotheus of Chalcedon.            Daniel of Lemnos.
Neophytus of Derci.                 Pantelermon of Dryinopolis.
Gerasimus of Hadrianople.           Joseph of Ersecuim.
Cyril of Neocsesarea.               Anthimus of Bodena.
THE HOLY SYNOD IN ANTIOCH
Zacharias of Arcadia.               Joannicius of Tripolis.
Methodius of Emesa.                 Artemius of Laodicea.
THE HOLY SYNOD IN JERUSALEM.
Meletius of Petra.                  Thaddeus of Sebaste.
Dionysius of Bethlehem.             Joannicius of Philadelphia.
Philemon of Gaza.                   Hierotheus of Tabor.
Samuel of Neapolis.
(r) Vide ante, vol. i. pp. 470-483. INTERVENTION ON TRE GROUND Oir RELIGION.
(s) Vide ante, vol. i. pp. 105-7, 444-7, 479.     (t) Ann. Reg. vol. xcv.
NOVEMBER, 1855.-20








CONTENTS OF APPENDIX.
The pages referred to are those between brackets [    ]
APPENDIX I. (Page 15, ch. 4.)
RECOGNITION.
1. Mr. Canning's Despatches relating to the South American Spanish
Republics, October 9th, 1823; January 30th, 1824; March 25th,
1825,.........  461
2. Mr. Canning's Despatch relating to Greece,....  46
3. Protocol of Conference in London relating to Belgium, 1830.-Lord
Palmerston,....                               478
APPENDIX II. (Page 37, ch. 5, sect. xxxi.)
FRAUDS UPON, AND BREACHES OF FOREIGN MUNICIPAL LAW, NOT COGNIZABLE IN
THE COURTS OF ENGLAND, OR IN THE UNITED STATES OF NORTH AMERICA.
1. Boucher v. Lawson,.......  483
2. Holman and Others v. Johnson, alias Newland,.                484
3. James v. Catherwood, June, 1823,.....  487
4. Case of the London,......  488
5. Smith v. Marconnay,.......  489
Santissima Trinidad, the,.....  489
Dr. Story, Opinion,......  489
Pothier, CEuvres de, Trait6 d'Assurance, Passage from,.  490
APPENDIX III. (Page 79, ch. 8.)
TREATIES-INTERPRETATION OF.
1. Interpretatio, s. 4. Pacis Monasteriensis, 30 January, 1648,.  491
2. Letter of Sir Leoline Jenkins to the Lords of the Privy Council December 1, 1668.......  492
3. Hotham v. East India Company,.....  499
4. Maryatt v. Wilson, May 6, 1799,.....  506
5. Case of the Jonge Josias, July 29, 1829,....  517
6. Sutton v. Sutton, July 29, 1830,...                521
7. Maltass v. Maltass, July 17, 1844,.....  530
8. Russo-Dutch Loan, Statutes relating to,..      536




300    PHILLIMORE ON INTERNATIONAL LAW.
APPENDIX IV. (Part VI. ch. 1. Pages 117-133.)
RIGHTS OF SOVEREIGNS-CASES RELATING TO.
1. The Columbian Government v. Rothschild,...      542
2. Hullet and Co. v. King of Spain,...  548
3. King of Spain v. Hullett and Widder,....  553
4. Rothschild v. Queen of Portugal,...      565
5. Duke of Brunswick v. King of Hanover,.                 567
6. De Haber v. Queen of Portugal,    5.                                91
7. Wadsworth v. Queen of Spain,...  599
8. Decisions in French Courts respecting:1. Republic of Haiti,.....   04
2. Viceroy of Egypt,...                 611
APPENDIX  V. (Pages 141-2, s. cxxvii.)
EMBASSY.
1. Instrument of Subrogation.-Extract from Merlin, Repertoire de Jurisprudence, tit. Ministre Public, vol. x. sec. 10, p. 256,..  621
2. Statute 7 Anne, cap. 12. (P. 198, s. clxxxix.).                 624
3. M6moire of the French Minister (1772) on the Privileges of Ambassadors.-De Martens, Causes Cledbres, t. ii. p. 112,               626
4. Ambassadors, Civil Jurisdiction, &c.-Taylor and Others v. Best.Law Journal, vol. xxiii. p. 89, (Common Pleas.) (P. 202, s. cxciii.)  631
When compellable to give securityfor costs.
5. Emperor of Brazil v. Robinson.-5 Dowling's Reports, 524,.         642
6. Law of United States of North America. (P. 186, s. clxxii. P. 206.
s. cxcv.)....          643
7. Decisions in French Courts respecting...  648
APPENDIX VI. (Page 258, ss. cclix. cclx.)
CONSULS.
1. Treaty respecting, between the United States of North America and
France, 14th November, 1788,.....  651
2. Spain Ordonnance respecting Foreign Consuls, 8th May, 1827,        657
3. Prussian Rescript, relating to the Authority of English Consuls in
matters of Sea Protests of English Subjects,...  658
4. Greece.-Consular Regulations,.....  661
5. Decisions in French Courts respecting,...  663
APPENDIX VII. (Page 438.)
INTERNATIONAL RELATIONS OF FOREIGN SPIRITUAL POWERS WITH THE STATE.
1. Memoir of D'Aguesseau upon the Royal Jurisdiction over a Cardinal
who is a French Subject,......  670
2. Correspondence of the English Secretary of State for Foreign Affairs
respecting the Affairs of Rome, present to Parliament, 15th June,
1849,........  675
3. Regulations of the College of Cardinals after the Death of Martin V.
(A. D. 1431.) Extract from Lo Stato Romano of Farini, vol. iv. pp.
322-325,......  688




APPENDIX I. (PAGE 15. CHAP. 4.)
RECOGNITION.
COMMUNICATIONS WITH FRANCE AND SPAIN, RELATING TO THE SPANISH
AMERICAN PROVINCES.(a)
No. 1.
(Extract of a 17Iemoratndvn  of a Conference between the Prince de
Polignac and Mr. Canning, held Oct. 9, 1823.)(b)
*THE Prince de Polignac having announced to Mr. Canning
that His Excellency was now prepared to enter with Mr. Canning [
into a frank explanation of the views of his Government respecting the
question of Spanish America, in return for a similar communication
which Mr. Canning had previously offered to make to the Prince de
Colignac on the part of the British Cabinet, Mr. Canning stated:"That the British Cabinet had no disguise or reservation on that
subject; that their opinions and intentions were substantially the same
as were announced to the French Government by the despatch of Mr.
Canning to Sir Charles Stuart, of the 31st of March, which despatch
that ambassador communicated to M. de Chateaubriand, and which had
since been published to the world.
I( That the near approach of a crisis, in which the affairs of Spanish
America must naturally occupy a great share of the attention of both
Powers, made it desirable that there should be no misunderstanding
between them on any part of a subject so important.
", That the British Government were of opinion, that any attempt to
bring Spanish America again under its ancient submission to Spain,
must be utterly hopeless, that all negotiation for that purpose would be
unsuccessful, and that the prolongation or renewal of war for the same
(a) Presented to both Houses of Parliament, by command of His Majesty, 4th
March, 1824.
(b) State Papers, vol. ii. pp. 49-53.




302      PHILLIMOitE  ON INTERNATIONAL LAW.
object would be only a waste of human life, and an infliction of calamity
on both parties, to no end.
462 That the British Government would, however, not only
[462 ] abstain from  interposing any obstacle, on their part, to any
attempt at negotiation which Spain might think proper to make, but
would aid and countenance such negotiation, provided it were founded
upon a basis which appeared to them to be practicable; and that they
would, in any case, remain strictly neutral in a war between Spain and
the Colonies, if war should be unhappily prolonged.
"But that the junction of any Foreign Power, in an enterprise of
Spain against the Colonies, would be viewed by them as constituting an
entirely new question, and one upon which they must take such decision
as the interests of Great Britain might require.
c"That the British Government absolutely disclaimed, not only any
desire of appropriating to itself any portion of the Spanish Colonies,
but any intention of forming any political connexion with them, beyond
that of amity and commercial intercourse.
c" That in those respects, so far from seeking an exclusive preference
for British subjects over those of foreign States, England was prepared,
and would be contented, to see the mother country (by virtue of an
amicable arrangement) in possession of that preference, and to be
ranked, after her, equally with others, on the footing of the most
favoured nation.
"c That, completely convinced that the ancient system of the Colonies
could not be restored, the British Government could not enter into any
stipulation binding itself either to refuse or to delay its recognition of
their independence.
",That the British Government had no desire to precipitate that
recognition so long as there was any reasonable chance of an accommodation with the mother country, by which such a recognition might
come first from Spain.
" But that it could not wait indefinitely for that result; that it could
not consent to make its recognition of the New States dependent upon
that of Spain; and that it would consider any foreign interference, by
force or by menance, in the dispute between Spain and the Colonies, as
a motive for recognizing the latter without delay.
"cThat the Mission of Consuls to the several provinces of Spanish
America, was no new measure on the part of this country,-that it was
one which had, on the contrary, been delayed, perhaps too long, in consideration of the state of Spain, after having been announced to the
Spanish Government, in the month of December last, as settled, and
even after a list had been furnished to that Government of the places
to which such appointments were intended to be made.
(" That such appointments were absolutely necessary for the protection
of British trade in those countries.
c"That the old pretension of Spain to interdict all trade with those
[*463] countries, was, in the opinion of the British Government, altogether *obsolete; but that, even if attempted to be enforced
against others, it was, with regard to Great Britain, clearly inapplicable.




APPENDIX.                           303
"o That permission to trade with the Spanish Colonies had been conceded to Great Britain in the year 1810, when the mediation of Great
Britain between Spain and her colonies was asked by Spain and granted
by Great Britain; that this mediation, indeed was not afterwards
employed, because Spain changed her counsel, but that it was not,
therefore, practicable for Great Britain to withdraw commercial capital
once embarked in Spanish America, and to desist from commercial intercourse once established.
"- That it had been ever since distinctly understood that the trade was
open to British subjects, and that the ancient coast laws of Spain were,
so far as regarded them at least, tacitly repealed.
", That, in virtue of this understanding, redress had been demanded
of Spain in 1822, for (among other grievances) seizures of vessels for
alleged infringement of those laws; which redress the Spanish Government bound itself by a Convention (now in course of execution) to
afford.
-" That Great Britain, however, had no desire to set up any separate
right to the free enjoyment of this trade; that she considered the force
of circumstances, and the irreversible progress of events, to have already
determined the question of the existence of that freedom for all the
world; but that, for herself, she claimed, and would continue to use
it; and should any attempt be made to dispute that claim, and to renew
the obsolete interdiction, such attempt might be best cut short by a
speedy and unqualified recognition of the independence of the Spanish
American States.
"r That, with these general opinions, and with these peculiar claims,
England could not go into a joint deliberation upon the subject of
Spanish America upon an equal footing with other Powers, whose
opinions were less formed upon that question, and whose interests were
less implicated in the decision of it.
", That she thought it fair, therefore, to explain beforehand, to what
degree her mind was made up, and her determination taken."
The Prince de Polignae declared"c That his Government believed it to be utterly hopeless to reduce
Spanish America to the State of its former relation to Spain.
"g That France disclaimed, on her part, any intention or desire to avail
herself of the present state of the Colonies, or of the present situation
of France towards Spain, to appropriate to herself any part of the
Spanish possession in America, or to obtain for herself any exclusive
advantages.
" And that, like England, she would willingly see the mother country
in possession of superior commercial advantages, by amicable arrangements; and would be contented, like her, to rank, after the mother
country, among the most favoured nations.
*" Lastly, that she abjured, in any case, any design of acting [*464]
against the Colonies by force of arms."
The Prince de Polignac proceeded to sayc" That, as to what might be the best arrangement between Spain and




304     PHILLIMOiE  ON INTERNATIONAL  LAW.
her colonies, the French Government could not give, nor venture to
form, an opinion, until the King of Spain should be at liberty.
sc That they would then be ready to enter upon it, in concert with
their allies, and with Great Britain among the number."
In observing upon what Mr. Canning had said, with respect to the
peculiar situation of Great Britain, in reference to such a Conference,
the Prince de Polignac declared —
c" That he saw no difficulty which should prevent England from taking
part in the Conference, however she might now announce the difference
in the view which she took of the question from that taken by the allies.
The refusal of England to co-operate in the work of reconciliation might
afford reason to think, either that she did not really wish for that reconciliation, or that she had some ulterior object in contemplation-two
suppositions equally injurious to the honour and good faith of the British
Cabinet."
The Prince de Polignac further declared"s That he could not conceive what could be meant, under the present
circumstances, by a pure and simple acknowledgment of the independence of the Spanish Colonies; since, those countries being actually
distracted by civil wars, there existed no government in them which
could offer any appearance of solidity; and that the acknowledgment of
American Independence, as long as such a state of things continued,
appeared to him to be nothing less than a real sanction of anarchy."
The Prince de Polignac added"c That, in the interest of humanity, and especially in that of the
Spanish Colonies, it would be worthy of the European Governments to
concert together the means of calming, in those distant and scarcely
civilized regions, passions blinded by party spirit; and to endeavour to
bring back to a principle of union in government, whether monarchical
or aristocratical, people among whom absurd and dangerous theories
were now keeping up agitation and disunion."
Mr. Canning, without entering into discussion upon these abstract
principles, contented himself with sayingcc That, however desirable the establishment of a monarchical form of
government in any of those provinces might be, on the one hand, or
whatever might be the difficulties in the way of it, on the other hand,
his Government could not take upon itself to put forward as a condition
of their recognition."                                    G. C.
[*4657                       *No. 2.
Mr. Canning to Sir W. a Court.(c)
Foreign Office, January 30, 1824.
" Sir,
c THEF Messenger Latchford delivered to me, on the 14th instant, your
despatch, inclosing a copy of the Count de Ofalia's official Note to you
(c) State Papers, 1823-4, vol. ii. pp. 58-63.




APPENDIX.                           305
of the 26th of December last; with the accompanying copy of an
instruction, which has been addressed, by order of His Catholic Majesty,
to his ambassador at Paris, and to his ministers plenipotentiary at the
Courts of Vienna and St. Petersburg.
"c Having laid these papers before the King, I have received His
Majesty's commands to direct you to return to them the following
answer:"4 The purpose of the Spanish instruction is to invite the several Powers, the allies of his Catholic Majesty, to'establish a Conference at
Paris, in order that their plenipotentiaries, together with those of His
Catholic Majesty, may aid Spain in adjusting the affairs of the revolted
countries of America.'
"'The maintenance of the'Sovereignty' of Spain over her late colonies, is pointed out in this instruction as one specific object of the proposed Conference; and though an expectation of the employment of
force for this object, by the Powers invited to the Conference, is not
distinctly disclaimed.
"4The invitation contained in this instruction not being addressed
directly to the Government of Great Britain, it may not be necessary to
observe upon that part of it which refers to the late' events in the Peninsula,' as having c paved the way' for the' desired co-operation.'
"4 The British Government could not acknowledge an appeal founded:
upon transactions to which it was no party. But no such appeal was
necessary.  No variation in the internal affairs of Spain has, at any
time, varied the King's desire to see a termination to the evils arising
from the protracted struggle between Spain and Spanish America, or
His Majesty's disposition to concur in bringing about that termination.
"c From the year 1810, when his Majesty's single mediation was asked
and granted to Spain, to effect a reconciliation with her colonies, —the
disturbances in which colonies had then but *newly broken out,- [*466
to the year 1818, when the same task, increased in difficulty by [*466
the course and complication of events in America, was proposed to be
undertaken by the Allied Powers assembled in Conference at Aix-la-Chapelle,-and from the year 1818 to the present time,-the good offices of
His Majesty for this purpose have always been at the service of Spain,
within limitations and upon conditions, which have been in each instance
explicitly described.
"c Those limitations have uniformly excluded the employment of force
or of menace against the Colonies on the part of any mediating Power;
and those conditions have uniformly required the previous statement by
Spain of some definite and intelligible proposition,-and the discontinuance on her part of a system utterly inapplicable to the new relations
which had grown up between the American Provinces and other countries.
" The fruitless issue of the Conferences at Aix-la-Chapelle would have
deterred the British Government from acceding to a proposal for again
entertaining, in Conference, the question of a mediation between Spain
and the American Provin ces, even if other circumstances had remained
nearly the same. But the events which have followed each other with
such rapidity during the last five years, have created so essential a differ



306   PHILLIMORE ON INTERNATIONAL LAW.
ence, as well in the relative situation in which Spain and the American
Provinces stood, and now stand to each other, as in the external relations
and the internal circumstances of the Provinces themselves, that it would
be vain to hope that any mediation, not founded on the basis of independence, could now be successful.
",The best proof which the British Government can give of the interest which it continues to feel for Spain, is, to state frankly their opinion
as to the course most advisable to be pursued by His Catholic Majesty;
and to answer, with the like frankness, the question implied in M. Ofalia's instruction, as to the nature and extent of their own relations with
Spanish America.
c There is no hesitation in answering this question. The subjects of
His Majesty have for many years carried on trade and formed commercial connections in all the American Provinces, which have declared their
separation from Spain.
",This trade was originally opened with the consent of the Spanish
Government.  It has grown gradually to such an extent as to require
some direct protection, by the establishment at several ports and places
in those Provinces of Consuls on the part of this country-a measure
long deferred out of delicacy to Spain, and not resorted to at last without
distinct and timely notification to the Spanish Government.
"As to any further step to be taken by His Majesty towards the
acknowledgment of the de facto Governments of America, the decision
must (as has already been stated more than once to Spain and to other
Powers) depend upon various circumstances, *and, among others,
upon the reports which the British Government may receive of
the actual state of affairs in the several American Provinces.
",But it appears manifest to the British Government, that if so large
a portion of the globe should remain much longer without any recognised
political existence, or any definite political connexion with the established
Governments of Europe, the consequences of such a state of things must
be at once most embarrassing to those Governments, and most injurious
to the interests of all European nations.
"For these reasons, and not from mere views of selfish policy, the
British Government is decidedly of opinion, that the recognition of such
of the new States as have established de facto their separate political
existence, cannot be much longer delayed.
",The British Government have no desire to anticipate Spain in that
recognition. On the contrary, it is on every account their wish that His
Catholic Majesty should have the grace and the advantage of leading the
way, in that recognition, among the Powers of Europe. But the Court
of Madrid must be aware, that the discretion of His Majesty in this
respect cannot be indefinitely bound up by that of His Catholic MIajesty;
and that even before many months elapse, the desire now sincerely felt
by the British Government, to leave his precedency to Spain, may be
overborne by considerations of a more comprehensive nature —considerations regarding not only the essential interests of His Majesty's subjects,
but the relations of the old world with the new.
" Should Spain resolve to avail herself of the opportunity yet within




APPEND IX.                           307
her power, the British Government would, if the Court of Madrid desired
it, willingly afford its countenance and aid to a negotiation, commenced
on that only basis which appears to them to be now practicable; and
would see, without reluctance, the conclusion, through a negotiation on
that basis, of an arrangement by which the mother country should be
secured in the enjoyment of commercial advantages superior to those
conceded to other nations.
"c For herself, Great Britain asks no exclusive privileges of trade, no
invidious preference, but equal freedom of commerce for all.
"cIf Spain shall determine to persevere in other counsels, it cannot
but be expected that Great Britain must take her own course upon this
matter, when the time for taking it shall arrive, of which Spain shall
have full and early intimation.
" Nothing that is here stated can occasion to the Spanish Government
any surprise.
t"in my despatch to Sir Charles Stuart of the 31st of March, 1823,
which was communicated to the Spanish Government, the opinion was
distinctly expressed, that'time and the course of *events had  *468
substantially decided the separation of the Colonies from  the [*4
mother country, although the formal recognition of those Provinces as
Independent States, by his Majesty, might be hastened or retarded by
various external circumstances, as well as by the more or less satisfactory
progress in each State, towards a regular and settled form af Government.'
",At a subsequent period, in a communication(d) made, in the first
instance, to France, and afterwards to other Powers,(e) as well as to
Spain, the same opinions were repeated, with this specific addition-that
in either of two cases (now happily not likely to occur) —in that of any
attempt on the part of Spain to revive the obsolete interdiction of intercourse with countries over which she has no longer any actual dominion,
or in that of the employment of foreign assistance to re-establish her
dominion in those countries, by force of arms, the recognition of such
new States by His Majesty would be decided and immediate.
"After thus declaring to you, for the information of the Court of
Madrid, the deliberate opinion of the British Government on the points
on which Spain requires the advice of her allies, it does not appear- to
the British Cabinet at all necessary to go into a Conference to declare
that opinion anew; even if it were perfectly clear, from the tenor of M.
Ofalia's instruction, that Great Britain is in fact included in the invitation to the Conference at Paris.
"a Every one of the Powers so invited has been constantly and unreserv edly apprised, not only of each step which the British Government
has taken, but of every opinion which it has formed on this subject: and
this despatch will be communicated to them all.
" If those Powers should severally come to the same conclusion with
Great Britain, the concurrent expression of their several opinions cannot
(d) The Memorandum of Conference, No. 1.
(e) Austria, Russia, Prussia, Portugal, the Netherlands, and the United States
of America.




308   PHILLIMORE ON INTERNATIONAL LAW.
have less weight in the judgment of Spain, and must naturally be more
acceptable to her feelings, than if such concurrence, being the result of
a Conference of Five Powers, should carry the appearance of a concerted
dictation.
"If (unhappily, as we think) the allies, or any of them, should come
to a different conclusion, we shall at least have avoided the inconvenience of a discussion, by which our own opinion could not have been
changed; we shall have avoided an appearance of mystery, by which the
jealousy of other parties might have been excited; we shall have avoided
a delay, which the state of the question may hardly allow.
*469     " Meanwhile, this explicit recapitulation of the whole course of
[*469] *our sentiments and of our proceedings on this momentous subject, must at once acquit us of any indisposition to answer the call of
Spain for friendly counsel, and protect us against the suspicion of having
any purpose to conceal from Spain or from the world.
"s I am, &c.,
GEORGE CANNING.
" The Right Hon. Sir W. a Court, G. C. B., &c., &c., &c."
Note of Mr. Secretary Canning to the Chevalier de Los Rios, relative to
Spanish Americca.(f)
"Foreign Office, March 25, 1825.
"THEE undersigned, His Majesty's Principal Secretary of State for
Foreign Affairs, is commanded by his Sovereign to deliver to the Chevalier de Los Rios, for the purpose of being transmitted to his Court,
the following reply to the official Note, addressed by His Excellency M.
Zea to His Majesty's Charge d'Affaires at Madrid, on the 21st of
January.
"'So large a portion of the official Note of M. Zea was founded upon
a denial of the facts which had been reported to the British Government,
with respect to the state of several of the countries of Spanish America,
and upon an anticipation of events expected by the Court of Spain to
take place in those countries, by which the credibility of the reports
transmitted to the British Government would be effectually disproved,
that it has been thought advisable to await the issue of the expected
events in Spanish America, rather than to confront evidence with evidence, and to discuss probabilities and conjectures.
A" Of that issue, decisive as it appears to be, the undersigned is directed
to say no more than that it is a great satisfaction to the British Government that it had actually taken place before the intentions of the British
Government towards the other countries of Spanish America were announced.  Those intentions, therefore, cannot by possibility have had
the slightest influence upon the result of the war in Peru.
"With this single observation, the undersigned is directed to pass
over all that part of M. Zea's Note which turns upon the supposed incor(f) State Papers, 1824-5, vol. xii. pp. 909-15.




APPENDIX.                           309
rectness of the information on which the decision of the British Government was founded.
",The questions which remain to be examined, are, whether, in
*treating with de facto Governments, now established beyond [*ax0
the danger of any external assailment, Great Britain has vio- [     i
lated either any general principle of International Law, or any positive
obligation of Treaty.
"To begin with the latter, as the more specific accusation.
"M. Zea brings forward, repeatedly, the general charge of violated
Treaties; but as he specifies only two-that of 1809 and that of 1814,
it may be presumed that he relies on them alone to substantiate this
charge.
"'First, as to the Treaty of 1809:"'That Treaty was made at the beginning of the Spanish struggle
against France, and was directed wholly, and in terms not to be misapprehended, to the circumstances of the moment at which it was made.
It was a Treaty of Peace, putting an end to the war, in which we had
been, since 1804, engaged with Spain. It is expressly described in the
first Article as a Treaty of' Alliance during the War,' in which we were
engaged, jointly with Spain against France. All the stipulations of the
Treaty had evident reference to the declared determination of the then
Ruler of France, to uphold a branch of his own family upon the Throne
of Spain and of the Indies; and they undoubtedly pledged us to Spain
not to lay down our arms until that design should be defeated in Spain,
and the pretension altogether abandoned as to America-a pledge which
it is not, and cannot be denied, that Great Britain amply redeemed. But
those objects once accomplished, the stipulations of the Treaty were fulfilled, and its obligations necessarily expired, together with the matter to
which they related.
"In effect, at the happy conclusion of the war in the Peninsula, and
after the restoration, by British assistance, of His Catholic Majesty to
the throne of his ancestors, the Treaty of 1809 was replaced by the
Treaty of 1814. And what does that Treaty contain? —First, the expression of an earnest wish on the part of His Majesty that Spanish
America may be re-united to the Spanish Monarchy; and Secondly, an
engagement to prohibit British subjects from supplying the Spanish
Americans with munitions of war. This engagement was instantly carried into effect by an Order in Council of 1814.  And in furtherance of
the like object, beyond the obligation of the Treaty, an Act of Parliament
was passed in 1819, prohibiting the service of British subjects in the
ranks of the resisting Colonies.
"That the wish expressed in this Treaty was sincere, the proof is to
be found, not only in the measures above-mentioned, but in the repeated
offers of Great Britain to mediate between Spain and her colonies. Nor
were these offers of mediation, as M. de Zea alleges, uniformly founded
on the single basis of the admission by Spain of the independence of the
Spanish provinces.
*' Years had elapsed, and many opportunities had been missed,
of negotiating on better terms for Spain, before that basis was 47]




310      PHILLIMORE  ON INTERNATIONAL  LAW.
assumed to be the only one on which negotiation could be successfully
opened.
"It was not assumed in 1812, when our mediation was offered to the
Cortes.
"It was not assumed in 1815, when Spain asked our mediation, but
refused to state the terms to which she was willing to agree.
"'It was not assumed in 1818, in the Conferences at Aix-la-Chapelle,
in which Conferences the question of an arrangement between Spain and
her Americas was, for the first and last time, discussed between the
Great Powers of Europe.
"After the silence, indeed, which Spain observed, as to the opinion
of the Powers assisting at those Conferences, when laid before her, two
things became perfectly clear; the First, that Spain had, at that time,
no serious intention of offering any terms, such as the Spanish American
Provinces were likely to accept; the Second, that any subsequent reference of the subject to a Congress must be wholly fruitless and unsatisfactory.  From that time forth, Great Britain abstained from stirring
the subject of negotiation with the Colonies, till, in the month of May,
1822, Spain spontaneously announced to Great Britain that she had
measures in contemplation for the pacification of her Americas, on a
basis entirely new, which basis, however, was not explicitly described.
"'In answer to that notification, Spain was exhorted by Great Britain
to hasten, as much as possible, her negotiation with the Colonies, as the
course of events was evidently so rapid as not to admit of a much longer
delay; —but no suggestion was even then brought forward by Great
Britain as to the adoption of the basis of independence.
"c The first suggestion of that basis came, in fact, from the Government
of Spain itself, in the month of November, 1822, when the British
Minister at Madrid received an intimation that the Cortes meditated
opening negotiations with the Colonies, on the basis of Colonial Independence-negotiations which were in fact subsequently opened, and carried to a successful termination, with Buenos Ayres, though they were
afterwards disavowed by His Catholic Majesty.
"'It was not till after this last-mentioned communication from the
Spanish Government, that Great Britain expressed the opinion which
she entertained, as to the hopelessness of negotiating upon any other
basis than that then first suggested by the Spanish Government.
", This opinion, stated, (as has been said) in the first instance, confidentially to Spain, was, nearly a twelvemonth afterwards, that is to say, in
the month of October, 1823, mentioned by the *undersigned, in
[472 ] a Conference with the French Ambassador in London, the substance of which Conference was communicated to Spain, and to other
Powers.  It was repeated and enforced in the despatch from the undersigned to Sir William i Court, in January, 1824.
"c Nothing, therefore, can be less exact than the supposition that Great
Britain has uniformly put forward the basis of Independence as the sine
qual non condition of her counsel and assistance to Spain, in negotiation
with her colonies.
"To come now to the Second Charge against Great Britain,-the




APPENDIX.                           311
alleged violation of general International Law.  Has it ever been admitted as an axiom, or ever been observed by any nation or Government
as a practical maxim, that no circumstances, and no time, should entitle
a de facto Government to recognition? —or should entitle Third Powers,
who may have a deep interest in defining and establishing their relations
with a defacto Government, to do so?
i"Such a proceeding on the part of Third Powers, undoubtedly does
not decide the question of right against the mother country.
",The Netherlands had thrown off the supremacy of Spain long before
the end of the sixteenth century; but that supremacy was not formally
renounced by Spain till the Treaty of Westphalia in 1648. Portugal
declared, in 1640, her independence of the Spanish Monarchy; but it
was not till 1668, that Spain, by Treaty, acknowledged that independence.
",During each of these intervals, the abstract rights of Spain may be
said to have remained unextinguished. But Third Powers did not, in
either of these instances, wait the slow conviction of Spain, before they
thought themselves warranted to establish direct relations, and even to
contract intimate alliances with the Republic of the United Netherlands,
as well as with the new monarchy of the House of Braganza.
"cThe separation of the Spanish Colonies from Spain, has been neither
our word nor our wish. Events, in which the British Government had
no participation, decided that separation,-a separation which, we are
still of opinion, might have been averted, if our counsels had been
listened to in time. But, out of that separation grew a state of things,
to which it was the duty of the British Government (in proportion as it
became the plain and legitimate interest of the nation whose welfare is
committed to its charge) to conform its measures, as well as its language,
not hastily and precipitately, but with due deliberation and circumspection.
c"To continue to call that a possession of Spain, in which all Spanish
occupation and power had been actually extinguished and effaced, could
render no practical service to the mother country; but it would have
risked the peace, of the world. For all political communities are responsible to other political communities *for their conduct; that is, *473
they are bound to perform the ordinary international duties, and [43
to afford redress for any violation of the rights of others by their citizens
and subjects.," Now either the mother country must have continued responsible for
acts, over which it could no longer exercise the shadow of a control, or
the inhabitants of those countries, whose independent political existence
was, in fact, established, but to whom the acknowledgment of that independence was denied, must have been placed in a situation, in which
they were either wholly irresponsible for all their actions, or were to be
visited, for such of those actions, as might furnish ground of complaint
to other nations, with the puishment due to pirates and outlaws.
" If the former of these alternatives,-the total irresponsibility of unrecognized States,-be too absurd to be maintained; —and if the latter,
-the treatment of their inhabitants as pirates and outlaws,-be too monstrous to be applied, for an indefinite length of tim,, to a large portion




312     PHILLIMORE  ON INTERNATIONAL LAW.
of the habitable globe, no other choice remained for Great Britain, or for
any country having intercourse with the Spanish American Provinces, but
to recognize, in due time, their political existence as States, and thus to
bring them within the pale of those rights and duties which civilized
nations are bound mutually to respect, and are entitled reciprocally to claim
from each other.
"The example of the late Revolution in France, and of the ultimate
happy restoration of His Majesty, Louis XVIII, is pleaded by M. Zea
in illustration of the principle of unextinguishable right in a legitimate
Sovereign, and of the respect to which that right is entitled from all
foreign Powers; and he calls upon Great Britain, in justice to her own
consistency, to act with same reserve towards the new States of Spanish
America, which she employed, so much to her honour, towards revolutionary France.
" But can M. Zea need to be reminded, that every Power in Europe,
and specifically Spain amongst the foremost, not only acknowledged the
several successive Governments, de facto, by which the House of Bourbon
was first expelled from the throne of France, and afterwards kept for
near a quarter of a century out of possession of it, but contracted intimate
alliances with them all; and, above all, with that which M. Zea justly
describes as the strongest of defacto Governments,-the Government of
Bonaparte, against whom, not any principle of respect for the rights of
legitimate monarchy, but his own ungovernable ambition, finally brought
combined Europe into the field?
" There is no use in endeavouring to give a specious colouring to facts
which are now the property of history.
4" The undersigned is, therefore, compelled to add, that Great Britain
herself cannot justly accept the praise which M. Zea is willing to ascribe
*474] to her in this respect; nor can she claim to be *altogether exempted from the general charge of having treated with the Powers
of the ]French Revolution.
" It is true indeed, that up to the year 1796, she abstained from treating with revolutionary France, long after other Powers of Europe had set
her the example. But the reasons alleged in Parliament, and in State
Papers, for that abstinence, was the unsettled state of the French Government. And it cannot be denied that, both in 1796 and 1797, Great
Britain opened a negotiation for peace with the Directory of France-a
negotiation, the favourable conclusion of which would have implied a
recognition of that form of Government; that in 1801, she made peace
with the Consulate; that if, in 1806, she did not conclude a Treaty with
Bonaparte, Emperor of France, the negotiation was broken off merely on
a question of terms; and that if, from 1808 to 1814, she steadily refused
to listen to any overtures from France, she did so, declaredly and notoriously, on account of Spain alone, whom Bonaparte pertinaciously refused
to admit as party to the negotiation.
"c Nay, further, it cannot be denied that, even in 1814, the year in
which the Bourbon Dynasty was eventually restored, peace would have
been made by Great Britain with Bonaparte, if he had not been unreasonable in his demands; and Spain cannot be ignorant that, even after




APPENDIX.                            313
Bonaparte was set aside, there was question among the allies of the possible expediency of placing some other than a Bourbon on the throne of
France.
c" The appeal, therefore, to the conduct of the Powers of Europe, and
even to that of Great Britain herself, with respect to the French Revolution, does but recall abundant instances of the recognition of defacto
Governments; by Great Britain, perhaps, later and more reluctantly than
by others, but by Great Britain herself, however reluctant, after the example set to her by the other Powers of Europe, and specifically by
Spain.
e" There are two other points in M. Zea's Note, which appear to call
for particular observation.
"N M. Zea declares, that the King of Spain will never recognize the new
States of Spanish America, and that His Majesty will never cease to employ the force of arms against his rebellious subjects in that part of the
world.
" We have neither the pretension nor the desire to control His Catholic
Majesty's conduct; but this declaration of M. Zea comprises a complete:
justification of our conduct, in having taken the opportunity which, to
us, seemed ripe for placing our relations with the new States of America
on a definite footing.  For this declaration plainly shows, that the complaint against us is not merely as to the mode, or the time of our advances
towards those States; it shows that the dispute between us and Spain is
not merely as to the question of fact, whether the internal con- [*475]
dition *of any of those States be such as to justify the entering
into definite relations with them; that it was not merely a reasonable
delay for the purpose of verifying contradictory reports, and of affording
opportunity for friendly negotiation, that was required of us; it shows
that no extent of forbearance on our part would have satisfied Spain; and
that, defer our advances towards the New States as long as we might,
we should still have had to make them without the consent of Spain; for
that Spain is determined against all compromise, under any circumstances
and at any time, and is resolved upon interminable war with her late
colonies in America.
I"M. Zea concludes with declaring, that His Catholic Majesty will
protest, in a most solemn manner, against the measures announced by the
British Government, as violating existing Treaties, and the imprescriptible rights of the throne of Spain.
"i Against what will Spain protest?
"It has been proved that no Treaties are violated by us; and we admit that no question of right is decided, by our recognition of the new
States of America.
"But if the argument upon which this declaration is founded be true,
it is eternal; and the offence of which we are guilty, in placing our intercourse with those countries under the protection of Treaties, is one of which
no time and no circumstances could, in the view of Spain have mitigated
the character.
"c Having thus entered, with great pain and unwillingness, into the
several topics of M. Zea's Note, the undersigned is directed, in concluNOVEMBER, 1855. —21




314      PHILLIMORE  ON INTERNATIONAL  LAW.
sion, to express the anxious hope of his Government, that a discussion,
now wholly without object, may be allowed here to close. The undersigned is directed to declare to the Spanish Minister, that no feelings of
ill-will, or even of indifference, to the interests of his Catholic Majesty,
has prompted the steps which His Majesty's Government has taken,that His Majesty still cherishes an anxious wish for the welfare of Spain,
-and that His Majesty still retains the disposition, and commands the
undersigned again to renew to His Catholic Majesty's Government the
offer, to employ His Majesty's good offices, for the bringing about of any
amicable arrangement which may yet be practicable, between His Catholic
Majesty and the countries of America which have separated themselves
from Spain.
" The undersigned, &c.,
"s G(EORGE CANNING.
c" The Chevalier de Los Rois."
[*476]                       *No. 3.
Reply of Mlr. Secretary Canning to a Letter of M. Radios relative to
the tc Russian Memoir on the Pacification of Greece."(y)
Foreign Office, December lst, 1824.
" Sir,'c I HAVE to acknowledge the receipt of the letter which you did me
the honour to address to me on the  -2th of August (but which reached
my hands only on the 4th of November,) expressing the opinion of the
Greek Provisional Government upon a paper which has been published in
the Gazettes of Europe, purporting to be a Plan of Pacification for Greece,
drawn up by the Court of St. Petersburg.
i' That the publication of the paper in question is unauthorized, cannot be doubted. Whether the paper itself be authentic, it is not for me
to admit or to deny: but it is due to the Court of St. Petersburg, to
declare to you, that any plan of pacification, emanating from that Court,
would be drawn up (as the British Government sincerely believe) in anything but an unfriendly disposition towards Greece; that no such plan
has been definitely settled (as your letter appears to assume) with the
intention of imposing it either upon Greece or upon the Turkish Government: and that whatever plan the Emperor of Russia might have in contemplation, would be submitted by His Imperial Majesty to several
of the Powers of Europe, His Imperial Majesty's allies, for their consideration, before any proposition founded thereupon would be made to the
contending parties. The Emperor of Russia had, it is true, suggested
to his allies the expediency of proposing, simultaneously to the Porte
and to the Provisional Government of Greece, a suspension of hostilities,
for the purpose of allowing time for an amicable intervention between
them. Nor would the British Government have refused, at a proper
time, to be party to that proposal.," It is but just to add, that the paper which has attracted the indig(g) State Papers, vol. xii. 1824-5, pp. 900-3.




APPENDIX.                            315
nation of the Greek Provisional Government, has been viewed with no
less indignation by the Divan.
" While the Greeks profess an insurmountable abhorrence of any settlement, short of the establishment of their independence as a nation, the
Divan abjures all modes of reconciliation, short of an unqualified reestablishment of their sovereignty over Greece.
c" Between two parties so disposed, there can, indeed, be little hope of
an acceptable and successful mediation. But to have felt and expressed
a desire to mediate, before the extreme vehemence *of these oppo- [477
site resolutions was known, and while the varying fortune of the [477
war appeared to furnish to both parties not unreasonable motives for a
compromise, surely cannot be imputed, either to Russia, if she originated
the project of such a compromise, or to those who might have been prepared to deliberate in concert with her upon it, as a crime.
c" The paper, purporting to be a Russian memoir, contains the elements
of a compromise, though not adjusted, perhaps, exactly in the proportions in which they might finally have been arranged for proposal to the
belligerent parties.
" If the sovereignty of the Turks were not to be absolutely restored,
nor the independence of the Greeks to be absolutely acknowledged (to
propose either of which extremes would have been, not to mediate, but
to take a decided part in the contest,) there was necessarily no other
choice than to qualify, in some mode and degree, the sovereignty of the
one and the independance of the other; and the mode and degree of
that qualification seemed to constitute the question for inquiry and deliberation.
c" Either party, no doubt, had it in its power to defeat any plan of
compromise, however rational in its principles or impartial in its provisions. And the previous knowledge that both parties would concur in
rejecting any plan of compromise that could be devised, renders, any
hope of successful intervention, at the present moment, utterly vain.
cc On the remainder of your letter, which, in effect, calls upon the
British Government to take part with the Greeks in the struggle for
their independence, comparing their merits and claims with those of the
Provinces of Spanish America, which have separated themselves from
the mother country, I have only to observe, that, with respect to the
contest between Spain and the several countries of Spanish America,
Great Britain has professed and maintained a strict neutrality; and that
the like neutrality has been observed by Great Britain in the contest
now raging in Greece. The belligerent rights of the Greeks have been
uniformly respected; and if the British Government has found itself
compelled, on a recent occasion, to repress the excess to which certain
of those rights were attempted to be carried, the British Government is
satisfied that such a necessity will not occur again.
cc The Provisional Government of Greece may rely upon the continuance of the same scrupulous neutrality.   They may be assured, not
only that Great Britain would not be concerned in any attempt (if such
attempt were in contemplation) to force upon them a plan of pacification
contrary to their wishes, but that, if they should at any time hereafter




316      PHILLIMORE  ON INTERNATIONAL  LAW.
think it fit to solicit our mediation, we should be ready to tender it to
the Porte, and, if accepted by the Porte, to do our best to carry it into
effect, conjointly with other Powers, whose co-operation would at once
*give facility to any arrangement, and afford the best security
for its duration.
"This appears to the British Government all that can reasonably be
asked of them. They cannot accuse themselves of having in any way,
directly or indirectly, instigated the commencement of the Greek enterprise, nor of having in any way interfered in its progress.
c" Connected with the Porte by established relations of amity, and by
the ancient obligations of Treaties, which the Porte has not violated, it
surely cannot be expected that England should engage in unprovoked
hostilities against that Power in a quarrel not her own.
"I trust, Sir, that the exposition which I have thus the honour to
address to you, will be considered as affording sufficient answer to any
suspicions or imputations which error or intrigue may have propagated
against the intentions of the British Government towards Greece, and
will be accepted as a proof, at once of the purity of our views, and of
the frankness with which we are ready to declare them.
" I am, &c.,
"s GEORGE CANNING.
" The Secretary of the Provisional
Government of Greece."
No. 4.
"Protocole de la Confjrence tenue au Foreign Office, le 19  ie'vrier
1831.(h)
"'PRESENS:-Les Plenipotentiaires d'Autriche,  de France, de la
Grande Bretagne, de Prusse, et de Russie.
A" Les Plenipotentiaires des Cours d'Autriche, de France, de la Grande
Bretagne, de Prusse, et de Russie, s'etant assembles, ont porte toute
leur attention sur les interpretations diverses donnees au Protocole de la
Conference de Londres, en date du 20 Decembre, 1830, et aux principaux
Actes dont il a et6 suivi.  Les deliberations des Plenipotentiaires les ont
conduits C reconnaitre unanimement, qu'ils doivent C la position des
Cinq Cours, comme C la cause de la paix generale, qui est leur propre
cause, et celle de la civilization Europeene, de rappeler ici le grand
principe de droit public, dont les Actes de la Conf6rence de Londres
n'ont fait qu'offrir une application salutaire et constante.
[-479]   *- D'apres ce principe d'un ordre superieur, les Traites ne
$*479] perdent pas leur puissance, quels que soient les changemens qui
interviennent dans l'organisation interieure des peuples.  Pour juger
de l'application que les Cinq Cours out faite de ce mnme    principe, pour
(h) Protocols of Conferences in London relative to Belgium, 1830-1, part i. No.
19, pp. 59-65.




APPENDIX.                             317
apprecier les determinations qu'elles ont prises relativement i la Belgique,
il suffit de se reporter a l'epoque de l'annle 1814.
" A cette epoque les Provinces Belges etaient occup6es militairement
par l'Autriche, la Grande Bretagne, la Prusse, et la Russie; et les
droits que ces Puissances exergaient sur elles furent compl6tes par la
renonciation de la France'a la possession de ces mfemes Provinces. Mais
la renonciation de la France n'eut pas lieu au profit des Puissances
occupantes.  Elle tint a une pens~e d'un ordre plus elev6.  Les Puissances, et la France elle-meme, egalement desinteress6es alors comrme
aujourd'hui, dans leur vues sur la Belgique, en garderent la disposition
et non la souverainet6, dans la seule intention de faire concourir les Provinces Belges' 1'6tablissement d'un juste 6quilibre en Europe, et au
maintien de la paix gen6rale.  Ce fut cette intention qui presida a leurs
stipulations ult6rieures; ce fut elle qui unit la Belgique a la Hollande;
ce fut elle qui porta les Puissances! assurer des-lors aux Belges le double
bienfait d'institutions libres, et d'un cormmerce f6cond pour eux en
richesse et en developpement d'industrie.
c" L'union de la Belgique avec la Hollande se brisa. Des communications officielles ne tarderent pas a convaincre les Cinq Cours que les
moyens primitivement destin6s a la maintenir, ne pourraient plus ni la
r6tablir pour le moment, ni la conserver par la suite; et que d6sormais,
au lieu de confondre les affections et le bonheur des deux peuples, elle
ne mettrait en presence que les passions et les haines, elle ne ferait
jaillir de leur choc que la guerre avec tous ses desastres.  Il1 n'appartenait pas aux Puissances de juger des causes qui venaient de rompre les
liens qu'elles avaient form6s.  Mais quand elle voyaient ces liens rompus, il leurs appartenait d'atteindre encore l'objet qu'elles s'etaient propos8 en leos formant.
c" I1 leur appartenait d'assurer, a la faveur de combinaisons nouvelles,
cette tranquillit6 de l'Europe, dont l'union de la Belgique avec la
Hollande avait constitue une des bases.   Los Puissances y 6taient
imperieusement appelees.  Elles avaient le droit, et les evenemens leur
imposaient le devoir, d'empecher que les Provinces Belges, devenues
independantes, ne portassent atteinte h la securite generale, et a l'equilibre
Europeen.
t"Un tel devoir rendait inutile tout concours etranger.  Pour agir
ensemble, leos Puissances n'avaient qu'I  consulter leurs Traites, qu'i
mesurer l'etendue des dangers que leur inaction ou leur desaccord aurait
fait naItre.  Lcs demarches des Cinq Cours a l'effet d'amener la cessation
de la lutte entre la Hollande et la Belgique, et leur ferme resolution de
mettre fin i toute mesure qui, de part ou d'autre, aurait eu un caractZere
hostile, furent les *premibres consequences de l'identite de leurs [~480
opinions sur la valeur est les principes des transactions soloennelles qui les lient.
" L'effusion du sang s'arreta; la Hollande, la Belgique, et meme les
Etats voisins, leur sont egalement redevables de ce bienfait.
" La seconde application des memes principes eut lieu dans le Crotocole du 20 Decembre, 1830.
" A  l'exposA des motifs qui determinaient les Cinq Cours, cet Acte




318   PHILLIMORE ON INTERNATIONAL LAW.
associa la reserve des devoirs dont la Belgique resterait chargee envers
l'Europe, tout en voyant s'accomplir ses voeux de separation et d'independance.," Chaque nation a ses droits particuliers; mais l'Europe aussi a son
droit-c'est l'ordre social qui le lui a donne.
"Les Traites qui regissent l'Europc, la Belgique devenue independante, les trouvait faits et en vigueur.  Elle devait done les respecter,
et ne pouvait pas les enfriendre.  En les respectant, elle se conciliait
avec l'interet et le repos de la grande communaut6 des Etats Europeens.
En les enfreignant, elle eut amene la confusion et la guerre. Les Puissances seules pouvaient prevenir ce malheur, et puisqu'elles le pouvaient,
elles le devaient. Elles devaient faire prevaloir la salutaire maxime,
que les evenemens qui font naitre en Europe un Etat nouveau, ne lui
donnent pas plus le droit d'alterer le systeme ge6nral, dans lequel il
entre, que les changemens survenus dans la condition d'un Etat ancien,
ne l'autorisent i se croire deli6 de ses engagemens anterieurs.  Maxime
de tous les peuples civilises; maxime qui se rattache au principe meme
d'apres lequel les Etats survivent i leurs Gouvernemens, et les obligations imprescriptibles des Traites, a ceux qui les contractent; maxime,
enfin, qu'on n'oublierait pas, sans faire r6trograder la civilization, dont
la morale et la foi publiques sont heureusement et les premieres consequences, et les premieres garanties.
"c Le Protocole du 20 Decembre fut l'expression do ces verites: il
statua,' Que la Conf6rence s'occuperiat de discuter et de concerter les
nouveaux arrangemens les plus propres i combiner l'independance future
de la Belgique avec les stipulations des Traites, avec les int6rets et la
s6curit6 des autres Etats, et avec la conservation de l'6quilibre Europeen.'
c Les Puissances venaient d'indiquer ainsi le but auquel elles devaient
marcher.  Elles y marcherent fortes de la purete de leurs intentions, et
de leur impartialit6.  Tandis que, d'un cOt6, par leur Protocole du 18
Janvier, elles repoussaient des pretentions qui seront toujours inadmissibles, de l'autre, elles pesaient avec le soin le plus scrupuleux toutes les
opinions qui etaient mutuellement 6mises, tous les titres qui etaient
r6ciproquement invoques.  De cette discussion, approfondie des diverses
communications faites par les Pl6nipotentiaires de Sa Majeste le Roi des
Pays-Bas, et par les Commissaires Belges, resulta le Protocole definitif
du 20 Janvier', 1831.
81]   *" I1 etait i prevoir que la premiere ardeur d'une independance naissante, tenderait i franchir les justes bornes des Traites et
des obligations qui en derivent.  Les Cinq Cours ne pouvaient neanmoins
admettre en favour des Belges le droit de faire des conquetes sur la Hollande, ni sur d'autres Etats.  Mais obligees de rEsoudre des questions de
territoire, essentiellement en rapport avec leurs propres Conventions et
leurs propres inte6rts, les Cinq Cours ne consacrerent, i l'egard de la
Belgique, que les maximes dont elles s'taient faites ih elles-melmes une
loi rigoureuse.
"c Assurement elles ne sortaient ni des bornes de la justice et de l'equit6,
ni des regles d'une saine politique, lorsqu'en adoptant impartialement les
imites qui separaient la Belgique de la Hollande avant leur reunion, elles




APPENDIX.                              319
ne refusaient aux Belges que le pouvoir d'envahir: ce pouvoir elles ont
rejette, parcequ'elles le considerent comine subversif de la paix et de
l'ordre social.
" Les Puissances avaient encore h deliberer sur d'autres questions qui
se rattachaient a leurs Traites, et qui ne pouvaient par consequent 8tre
soumises a des decisions nouvelles, sans leur concours direct.
D'apres le Protocole du 20 Decembre, les Instructions et les Pleins
Pouvoirs demandes pour les Commissaires Belges qui seraient envoyes s
Londres, devaient embrasser tous les objets de la negociation. Cependant,
ces Commissaires arriverent sans autorite suffisante, et, sur plusieurs points
importans, sans informations; et les eirconstances n'admettaient point de
retard.
i" Les Puissances, par le Protocole du 27 Janvier, ne firent neanmoins
d'une part qu'enumerer les charges inherentes, soit au Territoire Belge,
soit au Territoire Hollandais, et se bornerent i proposer de l'autre, des
arrangemens fond6s sur une reciprocit6 de concessions, sur les moyens de
conserver a la Belgique les marches qui ont le plus contribue a sa richesse, et sur la notori6t8 meme des Budgets publics du Royaume des
Pays-Bas.
P Dans ces arrangemens la mediation des Puissances sera toujours
requise; car, sans elle, ni les parties interessees ne parviendraient "a
s'entendre, ni les stipulations auxquelles les Cinq Cours ont pris en 1814
et 1815 une part imm6diate, no pourraient se modifier.;" L'adhesion de Sa Majeste le Roi des Pays-Bas aux Protocoles du 20
et du 27 Janvier, 1831, a r6pondu aux soins de la Confdrenee de Londres.
i" Le nouveau mode d'existence de la Belgique, et sa neutralite regurent
ainsi une sanction dont ils ne pouvaient se passer.  II ne restait plus h
la Conf6rence que d'arreter ses resolutions relatives "a la protestation faite
en Belgique contre le premier de ces Protocoles, d'autant plus important
qu'il est fondamental.
i" Cette protestation invoque d'abord un droit de post-liminie qui n'appartient qu'aux Etats independans, et qui ne saurait par consequent appartenir'a la Belgique, puisqu'elle n'a jamais  te6 *compt6e  au [482
nombre de ces Etats.  Cette meme protestation mentionne en [*48
outre des cessions faites i une Puissance tierce, et non a la Belgique, qui
ne les a pas obtenus, et qui ne peut s'en prevaloir.
" La nullite de semblables pretentions est evidente.  Loin de porter
atteinte au Territoire des anciennes Provinces Belges, les Puissances
n'ont fait que declarer et maintenir l'integrite des Etats qui l'avoisinent.
Loin de reserrer les limites de ces Provinces, elles y ont compris la Principaute de Liege, qui n'en faisait point partie autrefois.
"P Du reste, tout ce que la Belgique pouvait desirer, elle l'a obtenu:
separation d'avec la Hollande, independance, sufrete exterieure, garantie
de son Territoire et de sa neutralite, libre navigation des fleuves qui lui
servent de debouch6s, et paisible jouissance de ses libertes nationales.
" Tels sont les arrangemens auxquels la protestation dont il s'agit, oppose le dessein, publiquement avoue, de ne respecter ni les posseesions ni
les droits des Etats limitrophes.
" Les Plenipotentiaires des Cinq Cours, considerant que de pareilles




320   PHILLIMORE ON INTERNATIONAL LAW.
vues sont des vues de conquete, incompatibles avec les Traites existans,
avec la prix de l'Europe, et par consequent avec la neutralite et l'indpendance de la Belgique, declarent:l" 1~. Qu'il demeure entendu, comme il l'a ete des l'origine, que les
arrangemens arret6s par le Protocole du 20 Janvier, 1831, sont des arrangemens fondamentaux et irrevocables.
c"2~. Que l'independance de la Belgique ne sera reconnue par les Cinq
Cuissances, qu'aux conditions et dans les limites qui resultent des dits
arrangemens du 20 Janvier, 1831.
" 3~. Que le principe de la neutralite et de l'inviolabilit6 du Territoire
Belge, dans les limites ci-dessus mentionnees, reste en vigueur, et obligatoire pour les Cinq Puissances.
"4O. Que les Cinq Puissances, fideles Ba leurs engagemens, se reconnaissent le plein droit de d6clarer, que le Souverain de la Belgique doit
r6pondre par sa position personnelle au principe d'existence de la Belgique
mime, satisfaire a la sfirete des autres Etats, accepter sans aucune restriction, comme l'avait fait Sa Majeste ]e Roi des Pays-Bas par le Protocole
du 21 Juillet, 1814, tous les arrangemens fondamentaux renfermes dans
le Protocole du 20 Janvier, 1831, et etre a meme d'en assurer aux Belges
la paisible jouisaance.
" 5~. Que ces premieres conditions remplies, les Cinq Puissances continueront d'employer leurs soins et leurs bons offices pour amener l'adoption reciproque et la mise ia execution des autres arrangemens n6cessites
par la separation de la Belgique d'avec la Iollande.
" 6~. Que les Cinq Puissances reconnaissent le droit, en vertu duquel
les autres Etats prendraient telles mesures qu'ils jugeraient necessrires,
pour faire respecter ou pour retablir leur *autorit6 l1gitime dans
tous les pays a eux appartenans sur lesquels la protestation mentionn6e plus haut eleve des pretentions, et qui sont situses hors du Territoire Belee d6clar6 neutre.
" 7O. Que Sa Majeste le Roi des Pays-Bas ayant adhere, sans restriction,
par le Protocole du 19 Fevrier, 1831, aux arrangemens relatifs' la s6paration de la Belgique d'avec la Hollande, toute enterprise des Autorites
Belges sur le Territoire que le Protocole du 20 Janvier a d6clare Hollandais, serait envisage comme un renouvellement de la lutte & laquelle
les Cinq Puissances ont resolu de mettre un terme.
" ESTERLIAZY,
"cTALLEYRAND,
( BULOW,
"LIEVEN WASSENBERG,
" PALMERSTON,
" MATUSZEWOIC,'




APPENDIX.                           321
APPENDIX II. (PAGE 37, CHAP. 5, S. xxxI.)
FRAUDS UPON, AND BREACHES OF FOREIGN MUNICIPAL LxW, NOT COGNIZABLE IN THE COURTS OF ENGLAND, OR IN THE UNITED STATES
OF NORTH AMERICA.
No. 1.
THE principle referred to in the text, that a nation which protects the
forgers of the coin of another nation, commits an international offence,
ought, as Mr. Chitty reasonably remarks in his note upon the passage in
Vattel, to be so extended as to deny effect to any fraud upon the Government or subjects of a foreign State. A different rule, however, certainly
prevails both in England and in the United States of North America.
As to England, the case usually referred to as that in which a contrary
principle was laid down, is Boucher v. Lawson, in which the opinion of
Lord Hardwicke, then Chief Justice of the King's Bench is thus recorded:-" I think the unlawfulness of the trade makes no difference, for it
is not material to us what the law of Portugal is, but what the law of
England is; and here in England it is not only a lawful trade, but very
much encouraged."(i)
This judgment was delivered in the 9th year of George II.
*No. 2.                       [#484J
In the 15th year of George III., the following case was tried in the
Court of King's Bench: —(k)
HOLMAN et al' versus JOHNSON, alias NEWL&ND.' Assumpsit for goods sold and delivered: Plea non-assumpsit and
verdict for the plaintiff. Upon a rule to show cause why a new trial
should not be granted, Lord Mansfield reported the case, which was
shortly this: The plaintiff who was a resident at, and an inhabitant at
Dunkirk, together with his partner, a native of that place, sold and delivered a quantity of tea, for the price of which the action was brought,
to the order of the defendant, knowing it was intended to be smuggled
by him into England.  They had however no concern in the smuggling
scheme itself, but merely sold this tea to him, as they would have done
to any other person in the common and ordinary course of.their trade.
Mr. Mansfield, in support of the rule, insisted, that the contract for
the sale of this tea being founded upon an intention to make an illicit use
of it, which intention and purpose was with the privity and knowledge
of the plaintiff, he was not entitled to the assistance of the laws of this
country to recover the value of it. He cited Huberus, vol. ii. pp. 538,
539, and Robinson v. Bland, to show that the contract must be judged
by the laws of this country, and consequently that an action for the price
of the tea could not be supported here.
(i) Cases temp. Hardwicke, p. 198.
(k) Cowper's Reports, pp. 341-5.




3-22     PHILLIMORE  ON INTERNATIONAL  LAW.
" Mr. Dunning, Mr. Davenport, and  Mr. Buller, contra, for the
plaintiff, contended, that the contract being complete by the delivery of
the goods at Dunkirk, where the plaintiff might lawfully sell, and the
defendant lawfully buy, it could neither directly or indirectly be said to
be done in violation of the laws of this country; consequently it was a
good and valid contract, and the plaintiff entitled to recover. It was of
no moment or concern to the plaintiff what the defendant meant to do
with the tea, nor had he any interest in the event.  If he had, or if the
contract had been that the plaintiff should deliver the tea in England, it
would have been a different question; but there was no such undertaking
on his part. They pressed the argument ab inconvenienti, and cited several cases: —MSS. at Ni. Pri. before Lord Mansfield, sitttings in London. —
An action brought by the plaintiffs, who were lace-merchants in Paris,
for laces, (which were contraband in this country) sold and delivered to
the defendant's order at Calais. The question made was, whether the
vendor of contraband goods at Paris was not bound to run the risk of
*4~85  their being *smuggled into this country.  But Lord Mansfield
[*485] held, that as the contract on the part of the plaintiff was compleat
by his delivering the laces at Calais, he was clearly entitled to recover,
and the jury found a verdict accordingly.-Faikney v. Reynous and
Richardson, East, 7 Geo. 3, B. R. since reported in 4 Bur. 2069, and 1
Black. 633, where one partner in a stock-jobbing contract lent the other
15001. to pay his moiety of the differences on the rescounter day; and
though this was pleaded to the bond, the Court upon demurrer over-ruled
the plea, and held the plaintiff was entitled to recover.  Bruston v. Clifford.  In Chan. before Lord Camden, 4th December, 1767.  Alsibrook
v. Hall in C. B. where money paid for the defendant for a gaming debt
was held recoverable by the plaintiff.
" Lord Mansfield.-' There can be no doubt, but that every action tried
here must be tried by the law of England; but the law of England says,
that in a variety of instances, with regard to contracts legally made
abroad, the laws of the country where the cause of action arose shall
govern.-There are a great many cases which every country says shall be
determined by the laws of foreign countries where they arise. But I do
not see how the principles on which that doctrine obtains, are applicable
to the present case.  For no country ever takes notice of the revenue
laws of another.
c"'The objection, that a contract is immoral or illegal as between
plaintiff and defendant, sounds at all times very ill in the mouth of the
defendant. It is not for his sake, however, that the objection is ever
allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between
him and the plaintiff, by accident, if I may so say. The principle of
public policy is this; ex dolo malo non oritur actio.  No court will lend
its aid to a man who founds his cause of action upon an immoral or an
illegal act. If, from the plaintiff's own stating or otherwise, the cause
of action appears to arise ex turpi causea, or the transgression of a positive law of this country, there the Court says he has no right to be assisted.
It is upon that ground the Court goes; not for the sake of the defend



APPENDIX.                            323
ant, but because they will not lend their aid to such a plaintiff.  So if
the plaintiff and defendant were to change sides, and the defendant
was to bring his action against the plaintiff, the latter would then have
the advantage of it; for where both are equally in fault, potior est conditio dcfendentis.'"'The question therefore is, whether, in this case, the plaintiff's demand is founded upon the ground of any immoral act or contract, or upon
the ground of his being guilty of any thing which is prohibited by a
positive law of this country.-An immoral contract it certainly is not;
for the revenue laws themselves, as well as the offences against them,
are all positivijuris. What *then is the contract of the plaintiff? [*486]
It is this; being a resident and inhabitant of Dunkirk, together [*486
with his partner, who was born there, he sells a quantity of tea to the
defendant, and delivers it at Dunkirk to the defendant's order, to be paid
for in ready money there, or by bills drawn personally upon him in England. This is an action brought merely for goods sold and delivered at
Dunkirk.  Where then, or in what respect is the plaintiff guilty of any
crime? Is there any law of England transgressed by a person making a
compleat sale of a parcel of goods at Dunkirk, and giving credit for
them? The contract is compleat, and nothing is left to be done.  The
seller indeed, knows what the buyer is going to do with the goods, but
has no concern in the transaction itself.  It is not a bargain to be paid
in case the vendee should succeed in landing the goods; but the interest
of the vendor is totally at an end, and his contract compleat by the delivery of the goods at Dunkirk.
"'To what a dangerous extent would this go if it was to be held a
crime.  If contraband  cloaths are bought in France, and brought
home hither; or if glass bought abroad, which ought to pay a great duty,
is run into England; shall the French taylor or the glass-manufacturer
stand to the risk or loss attending their being run into England? Clearly
not.  Debt follows the person, and may be recovered in England, let the
contract of debt be made where it will; and the law allows a fiction for
the sake of expediting the remedy. Therefore I am clearly of opinion,
that the vendors of these goods are not guilty of any offence, nor have
they transgressed against the provisions of any Act of Parliament.
(' ( I am very glad the old books have been looked into. The doctrine
Iuberus lays down, is founded in good sense, and general principles of
justice.  I entirely agree with him.  He puts the very case in question,
thus: Tit. de conflictu legum, vol. ii. p. 539.  4i In certo loco merces
qusedam prohibitse sunt. Si vendantur ibi contractus est nullus. Verum,
si merx eadem alibi sit vendita, ubi non erat interdicta, emptor condemnabitur, quia, contractus inde ab initio validus fuit."  Translated, it
might be rendered thus: In England, tea, which has not paid duty, is
prohibited; and if sold there the contract is null and void. But if sold
and delivered at a place where it is not prohibited, as at Dunkirk, and an
action is brought for the price of it in England, the buyer shall be condemned to pay the price; because the original contract was good and
valid. —He goes on thus: " Verum si merces venditae in altero loco, ubi
prohibitms sunt essent tradendse, jam non fieret condemn atio, quia repug



324   PHILLIMORE ON INTERNATIONAL LAW.
naret hoc juri et commodo reipublicTe qune merces prohibuit."  Apply
this in the same manner.-But if the goods sold were to be delivered in
England, where they are prohibited, the contract is void, and the buyer
shall not be liable in an action for the *price, because it would
[*487] be an inconvenience and prejudice to the State if such an action
could be maintained.
"-  The gist of the whole turns upon this,-that the conclusive delivery was at Dunkirk. If the defendant had bespoke the tea at Dunkirk to be sent to England at a certain price, and the plaintiff had
undertaken to send it into England, or had had any concern in the running it into England, he would have been an offender against the laws of
this country.  But upon the facts of this case, from the first to the last,
he clearly has offended against no law of England.  Therefore let the
rule for a new trial be discharged.'
9" The three other judges concurred."
No. 3.
In the 4th year of George IV., the following case was decided in the
Court of King's Bench: —()
JAMES V. CATHERWOOD.-(June, 1823.)
" Assumpsit for money lent.  Plea, first, non-assumnpsit, and second,
the statute of Limitations.  At the trial before Abbott, C. J., at the
Second Middlesex Sittings in Easter Term, it appeared that the money
in question was lent by plaintiff to defendant in France, in the year 1814,
where both parties then resided.  To prove the loan, receipts for the
money, dated in the year 1817, and signed by the defendant, but not stamped, were tendered in evidence. The defendant's counsel objected to those
receipts as inadmissible, and offered to show, that by the law of France,
such receipts required a stamp; but the learned judge being of opinion
that they were admissible here, as acknowledgements of the debt, without any stamp, rejected that evidence, and the plaintiff had a verdict.
"c Chitty now moved for a new trial, on the ground that the defendant
should have been allowed to produce evidence of the 1 aw of France, to
show that in that country such receipts were not legal without a stamp,
and contended that as every contract must be entered into in conformity
with the lex loci, it was competent to the defendent to show that this contract had not so been entered into.  (Best, J. — Can we take notice of the
revenue laws of France?' Abbott, C. J.-' That is the question. In the
time of Lord Hardwicke, it became a maxim, that the Courts of this
country will not take notice of the revenue laws of a foreign State.
There is no reciprocity between nations in this respect. Foreign States
do not take any notice of our stamp laws, and why *should we
be so courteous to them, when they do not give effect to ours?')
There certainly was a dictum of Lord Hardwicke, that an English Court
cannot take notice of the revenue laws of a foreign country, but here was
(l) 3 Dowling & Ryland's Reports, pp. 190-1.




AP PEN DIX.                          325
no solemn decision upon that point; which seems rather to have been
taken for granted, than grounded on any authority.  It is admitted by
foreign writers, and others, that though an instrument made in a foreign
country, may not be admissible in evidence, yet it does not make it void;
but that if any use is to be made of it, evidence must be adduced to show
that it has been framed according to the ex loci.  Upon this principle
it is a matter worthy of further consideration, whether it was not competent to the defendant to show that, by the law of France, these receipts
would not be binding in that country unless stamped.
" Abbott, C. J. — This point is too plain for argument. It has been
settled, or at least considered as settled, ever since the time of Lord
lIardwicke, that in a British Court we cannot take notice of the revenue
laws of a foreign State.  It would be productive of prodigious inconve.
nience, if in every case in which an instrument was executed in a foreign
country, we were to receive in evidence what the law of that country was,
in order to ascertain whether the instrument was or was not valid.
Nothing must be taken by the motion.'
" Holroyd, J.(m) and Best, J. concurred.' Rule refused."
No. 4.
It is difficult to strive against the authority of HIardwicke, Mansfield,
and Tenterden, but the international jurist must lament that a more
liberal view of international obligations, by way of comity at least, has not
been taken by these great luminaries of the English law. And it is right
to add that the authority of Stowell supports a case of gross fraud upon
an enemy which it is difficult to reconcile with the laxest views of belligerent morality.  The case is as follows:CASE OF THE LONDON.(n)
" This was also the case of a British ship and cargo, captured by an
American privateer, the captain of which offered to restore the ship and
cargo to the master, on condition of his drawing a bill for 1,0001., payable in London. The master accepted the restitution on these terms,
and accordingly drew a bill, to that amount; but took care to send
advices to London in time to *prevent payment of it. A demand [*489]
was now made by him for salvage on the cargo, as recaptured
from the enemy. The value of the cargo was stated to be from 1,5001.
to 2,0001.
it The Court gave him one-tenth and his expenses."
No. 5.
To these cases it should be added that it was actually held in the case
of Smith v. Marconnay,(o) "that the maker of paper in England, know(nz) Bayley, J., was absent.
(n) 2 Dodson's Admiralty Reports, 74.
(o) 2 Peake's Reports, 81.




326   PHILLIMORE ON INTERNATIONAL LAW.
ingly made by him for the purpose of forging assignats upon the same,
to be exported to France in order to commit frauds there on other persons, might recover damages for not accepting such paper pursuant to
contract."
The same doctrine has been held by the American Courts in various
cases.  In the Santissima Trinidad, Mr. Justice Story says —,  The
question as to the original illegal armament and outfit of the lindependencia may be dismissed in a few words. It is apparent, that though
equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating our
laws or our national neutrality.  If captured by a Spanish ship of war
during the voyage, she would have been justly condemned as good prize,
and for being engaged in a traffic prohibited by the law of nations. But
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 persons engaged in it to
the penalty of confiscation. Supposing, therefore, the voyage to have
been for commercial purposes, and the sale at Buenos Ayres to have been
a bona fide sale, (and there is nothing in the evidence before us to contradict it,) there is no pretence to say that the original outfit on the voyage was illegal, or that a capture made after the sale was for that cause
alone, invalid."(p)
A similar doctrine has been laid down in other cases. But Dr. Story,
in his Commentaries on the Conflict of Laws, speaking as a jurist, reprobates, with Pothier, the principle of these decisions. Dr. Story says-,"It might be different according to the received, although it should seem
upon principle indefensible, doctrine of judicial tribunals, if the contract
were made in some other country, or in the foreign country to which the
parties belong; for (as has been seen) it has been long laid down as a
settled principle, that no nation is bound to protect, or to regard the
revenue laws of another country; and, therefore, a contract *made
in one country by subjects or residents there to evade the revenue laws of another country, is not deemed illegal in the country of its
origin.  Against this principle Pothier(q) has argued strongly as being
inconsistent with good faith and the moral duties of nations. Valin,(r)
however, supports it; and Em6rigon(s) defends it, upon the unsatisfactory ground, that smuggling is a vice common to all nations. An
enlightened policy, founded upon national justice as well as national
interest, would seem to favour the opinion of Pothier in all cases where
positive legislation has not adopted the principle as a retaliation upon
the narrow and exclusive revenue system  of another nation.  The contrary doctrine seems, however, firmly established in the actual practice
of modern nations, without any such discrimination, too firmly, perhaps,
to be shaken, except by some legislative act abolishing it."(t)
(p) 7 Wheaton's (Amer.) Reports, 340.
(q) Pothier, Assur. n. 58.      (r) 2 Valin Comn. art. 49, p. 127.
(s) Em6rigon, c. 8, s. 5, pp. 212, 215.
(t) Story, Conflict of Laws, c. viii. s. 257, p. 333.




APPEND IX.                             327
The passage in Pothier to which Dr. Story refers, is as follows:-,, Lorsque l'arret a ete fait pour cause de contrebande, et que les marchandises assurees s'6tant trouvees de contrebande ont ete confisquees,
cette perte doit-elle tomber sur les assureurs?  Par exemple, un negociant Francois a fait charger en Espagne clandestinement des marchandises de soierie, contre les loix d'Espagne, qui en defendent l'exportation: le vaisseau a et6 arret6 par les Officiers du Roi d'Espagne, et les
marchandises confisqu6es, comme 6tant charg6es en contrebande. Les
assureurs sont-ils tenus de cette perte? Vaslin tient l'affirmative, pourvu
que les assureurs aient eu connoissance que les marchandises qu'on a fait
assurer 6toient de contrebande: car s'ils l'avoient ignore, il n'est pas
douteux, en ce cas, qu'ils n'en seroient pas tenus: ils ne pourroient pas
etre cens6s s'etre soumis au risque de la confiscation pour cause de contrebande, n'ayant pas de connoissance que les marchandises fussent de
contrebande."(z)
It appears that the Judicial Tribunal in Prussia do, to their great
credit be it said, hold that a contract relating to the smuggling into a
foreign country of goods prohibited by the revenue laws of that country,
is illegal and invalid, as being contra bonos mores (guten Sitten zuwider.)
— Heffters, Das Europiische V6lkerrecht der Gegenwart, ~ 31, n. 21.
*APPENDIX  III.  (PAGE 79.  CHAP. 8.)              [*491]
TREATIES- INTERPRETATION OF.
No. 1.
Interpretatio ~ 4.  Pacis Monasteriensis, 30 J'anuar. 1648.(x)
"' LONGUM esset exponere, qume Pontificiorum fuerit conditio in Belgio
Fcederato ab initio Reipublice ad hoec usque tempora.  Ne quidem animus est commemorare, quse in Imperio Ordinum Generalium, et que3 in
singulis Provinciis contra solos Ecclesiasticos, qui Pontifici Romano
adsurgunt, constituta et decreta sunt.  In rem  nostram  sufficit scire, ut
Laicis Pontificiis in Belgio Foederato libere morari semper licuit, ita Clericis, etiam ante pacem Monasteriensem, non licuisse.  Jesuitis quidem,.
qui in Belgio Foederato invenirentur, 600, florenorum  mulotam Ordines
Generales constituerunt in Edictis 26 Febr., 1622, 8 Sept., 1692, et 30
Aug., 1641, ceteris omnibus Ecclesiasticis Belgio Foederato simpliciter
interdicto, exceptis duutaxat iis, qui ante annum 1722, hic habitassent,
dummodo intra dies octo nomina sua ad Magistratum  loci, ubi degunt,
deferrent, et secundum leges Ordinum viverent.
"Recte se habebant ea Edicta tempore belli Hispanici, quo facta sunt,
sed qusero, an recte se habeat Edictum, quod Ordines Generales post
pacem  Monasteriensem  promulgarunt 14 Apr. 1649, quo priora illa
(u) Pothier, (Euvres de Trait6 du Contrat d'Assurance, t. iii. c. i. sect. 2, art. 2,
s, 2, p. 58.
(x) Bynkershoek, Quoestiones Juris Publici, lib. ii. cap. 20.




328      PHILLIMORE  ON INTERNATIONAL  LAW.
Edicta, quorum sententiam retuli, repetita et servari jussa sunt? vel
potius quero, an non sseviora illa Edicta restringi et temperari debeant
quod ad Ecclesiasticos, qui ex Imperio Regis Hispaniarum, Belgio forte
tune Hispanico, nune Austriaco, hie adsunt? Qusestionem facit ~ 4, Pacis
Monasteriensis 30 Jan. 1648, quo inter Regem Hispaniarum et Ordines
Generales convenit, ut olim  quoque convenerat ~ 4, Induciarum 9 Apr.
1609, alterius subditis et incolis, absque ullo personarum discrimine, in
alterius Imperium recte licere advenire, ibi manere et agere, et commercia sua exercere.  Verba Belgice sic habent: de Ondersaten en inwoonderen van de Landschappen van de voorschr. Heeren Coning en Staten..... zullen ook moyen homen en blyven in de Landschappen de een
van de andere, en daar doen hare trafique en commescie in alle versekertheid, zoo ter Zee, ander'e WVateren, als te Lande.
"Sane plerique Belgm Fcederati videntur credidisse, salva ea pace,
duriora illa Edicta explicari non posse, atque ita Ecclesiasticis Pontificiis
omnino prodesse d. ~ 4.  Gelri quidem, et Hollandi, et Frisii, et Gronin[.4921 gani in extraordinariis Ordinum *Generalium Comitiis, proxime
post illam pacem habitis anno 1650, et 1651, proposuerunt, exercerentur Ordinum Edicta contra effrenem Ecclesiasticorum in has Regiones
veniendi licentiam, sed hoc nominatim addito, quatenus salva pace fieri
posset, cujus nomine non aliam, quam illam Monasteriensem, intelligo, et
ita quoque, addita hac ipsa clausula, Ordines Generales decreverunt 27
Jan. 1651.  Quia autem illa clausula parum certitudinis habebat, ideirco
in iisdem  Comitiis mense Apr. 1651, propositum  est, habita ratione
eorum, quve tempore induciarum acta gesta erant, certa ei rei forma daretur, sed traditum invenio, earn non esse constitutam, verum ad ordinarium
Ordinum  Generalium  Collegium  rejectam  ejus rei curam, atque adeo
tacite substitum esse in illo Decreto 27 Jan. 1651, nihil enim quicquam
postea definitum est.
"t Nondum igitur extricata res erat. Zelandi, ut extricarent, 22 Jan.
1651, in iisdem  extraordinariis Comitiis alia rem  adgressi sunt via.
Existimarunt illi, non obstante eo ~ 4, omnes Ecclesiasticos, qui Pontificia Sacra sequuntur, expelli, nec ullos alios admitti posse, quod nempe
illi Ecclesiastici, utut ex Imperio Hispanico advenientes, non essent
Regis Hispaniarum  subditi, sed Papre Romani.  Addebant, id ipsum
Regis Legatos eo tempore, quo pax illa pangebatur, fuisse testatos, quin
etiam Ordines in deliberationibus, quse pacem prmcesserunt, decrevisse;
nihilominus Edicta, contra Ecolesiesticos Pontificios facta, effectum esse
habitura.  Quas rationes Synodorum Legati per libellum, iisdem Comitiis porrectum, deinde suas fecerunt.  At prima ratio apud me parum
valet, Ecclesiastici utique etiam sunt subditi, et pro subditis habentur in
omnibus Imperils Pontificiis. Si tamen, qua sunt Ecclesiastici, subditos
Regis esse neges propter jurisdictionem Ecclesiasticam, non negabis certe,
qui ex Imperio Hispanico ad nos advenere, Regis Hispaniarum esse incolas, inwoonderen, pax autem loquitur de subditis et incolis, ondersaten
en inwoonderen.  Legatos Regis aliud fuisse testatos, et Ordines in premviis deliberationibus modo decrevisse, etiam post pacem factam tuenda
esse smviora illa Edicta, non comperi, etsi diligenter quoesiverim, neque
adeo de duabus illis rationibus, qum facti sunt, quicquam  habeo, quod




APPENDIX.                              329
dicam, nec etiam  de his quicquam dixerunt Gelri, Hollandi, Frisii et
Groningani, nec postea etiam Transisulani, quamvis in Pontificios adhuc
magis acerbi.  Et tamen ille rationes, in causa adeo recenti, omnes illos
latere non potuerunt.  Hoc unumr comperi, Ordines, priusquam Legatos
suos ad pacem pangendam mitterent, simpliciter decrevisse, se tuituros
puriora Sacra, publice recepta, sed aliud est Sacra illa tueri, aliud duriora
illa Edicta exsequi. Neque etiam animadverto, quid prodesset, si Legati
Regis ante pacem pactam vel tale quid garrivissent, vel ipsi Ordines decrevissent.  Quid in ipsa pace convenerit, unice qurerendum, et ex ejus
legibus, si quid inter Principes incidat, definiendum est.
*~CFuit, cum  putarem, d. ~ 4, duntaxat esse intelligendum  [493]
de ejusmodi subditis et incolis, qui commercia exercerent, ajunt [
enim verba finalia, quma exhibui, en daar doen hare trafique en commercie.
Sed bona fides illam  interpretationem  respuit, namn quod de mercatura
additur, non aliam causam habet, quam quod eo plerumque fine alterius subditi alterius Principis Imrperiumn frequentent, non quod interdicatur alterius subditis in alterius Imperium advenire, et ibi forte otiari,
philosophari, et procul negotiis securum  agere sevum.  Hac igitur sententia nunc non utor, maxime quum  alia, et, ni fallor, verior succurrat.
Nempe Clericatus Pontificius, postquam  emendatior Religio publice recepta fuit, in hisce Regionibus criminis speciem quandaml habebat, neque
enim cuiquam hic impune Clerico esse licebat, quibusdam Clericis posita
mulcta, et omnibus, ut dixi, advenis Belgio Foederato interdicto, quin et
indigenis sub certo modo. Sic leges moresque ferebant, etiam ante pacem
Monasteriensem; criminosis autem, ex mente d. ~ 4, quamvis in alterius
Imperio habitarent, in alterius Imperiumn, ubi criminosi sunt, advenire
nequaquam licet. Factus est d. ~ 4, belli finiendi ergo inter Regem et
Ordines, ut sic, quemadmoduin ibi palam expressum est, inter utriusque
subditos cesset, quicquid antea hostile fuit, sed non ut cessaret persequutio criminum, que-, etiam  extra causam belli, leges publicse vindicabant.  Quare d. ~ 4, prodesse nequit Ecclesiasticis, quanquam  Hispaniarum  Regis subditis, quia et ante illam  pacem  proscribebantur, et
proscribebantur non tanquam  Regis Hispaniarum  subditi, sed tanquam
Ecclesiastici, omniumn enim Principum Ecclesiasticos Pontificios, etiam
eorum, quibuscum pax erat, eadem  lex arcebat.  Unde manifestum est,
antequam Ecclesiastici, ut Regis Hispaniarum  subditi, etiam hic admitterentur, nova opus fuisse pactione, ex qua, quos citra belli causam lex
repellebat, hic adesse liceret, cujusmodi pactio nunquam intercessit. An
tu putas, qui non propter bellum, sed propter crimen aliquod, ex Belgio
Foederato relegati deportative in Ditionem Regis Hispaniarum concesserant, et ibi, qua subditi vel incolas, aliquamdiu egerant, an, inquam, tu
putas, iis, si animum revertendi haberent, per d. ~ 4, in Belgio Feederato
esse licere? ego non puto. Exemplo res fiet clarior. Omnes Judeos
impia pietate, et in manifestam Imperii sui perniciem I-Iispani proscripserunt, et in aliis etiam  Imperiis inclementius habentur, sed aliter Hollandi, mercator Populus, sentiunt, apud hos enim Judoei, Gens ad Rempublicam  commerciis firequentandam  utilissima, adeo benigne recepti
sunt, ut utantur iisdem  Lcgibus et Privilegiis, quibus utuntur ceteri
Hollandice subditi et incolae.  Qumaro igitur, an Judmaus ex Hollandia,
NOVEMBER, 1855.-22




330      PHILLIMORE  ON INTERNATIONAL LAW.
Judrmorum nutricula, post d. ~ 4, in Hispaniam commeare, ibique libere
morari possit? Si me audias, non poterit, nam, qua Judveus, diu, ante d.
~ 4, proscriptus est, nec proscriptis favet ille ~ 4.
" Quamvis autem  illa, quam  dedi, interpretatio d. ~ 4, videatur
*verissima, dubito tamen, an Ordines Hollandime ea uti possint.
[*4941 Quum enim Judeos quosdam  Hollandos male accepissent Hispani, et Judoei ea de re essent questi apud Ordines Hollandia, hi 12 Jul.
1657, decreverunt, Judoeos illos, male acceptos, habendos esse pro subditis et incolis Foederati Belgii, ideoque et gaudere oportere eodem jure
et privilegiis, quao ex pace, cum Hispanis pacta, aut ex Pacto marino,
vel ex quibusque aliis Conventionibus, cum alliis Regibus, Rebuspublicis,
Principibus, Ordinibus, Urbibusve factis, hujus Reipublicae subditis et
incolis competunt, addito insuper mandato, sui in Ordinumn  Generaliumn
Collegium Delegati et in hac, et in alliis omnibus causis curarent, Judaei
secundum id Decretum omnino defenderentur. Si credas, illud Decretum
duntaxat pertinere ad bona, non etiam ad personas Judaeorum, falleris,
nam quod ad bona nullus ab Hispanis metus: eece enim septennio ante
id Decretum, anno nempe 1650.  Hispaniarum  Regis Legatus apud
Ordines Generales jam  erat testatus, Judmeis, qui in Belgio Foederato
essent, in Hispania liceret res suas agere per homines suos, et eorum
bona non aliter haberentur, quam  reliquorumn  subditorum  Foederati
Belgii, modo ne ipsi in Hiispaniam venirent.
c Igitur amplius deliberandum  est de justitia ejus Decreti 12 Jul.
1657, sed, dum deliberamus, tenendum  est, reliquos Ordines Foederati
Belgii nunquam simile quid decrevisse, per eos igitur recte subsistere
illam interpretationem d. ~ 4, et, hac admissa, satis intelligimus, duriora
illa Edicta contra immoderatum Ecelesiasticorum  Pontificiorum multitudinem, in has Regiones irruentem, repeti potuisse illo 14 Apr. 1649, et
postea etiam optimo jure saepius fuisse repetita.  Novissimum Ordinum
Hollandiae Edictum ea de re promulgatum est 21 Sept. 1730.  Sed hoc
et alia ejusdem argumenti prattereo, contentus probasse, nulla ratione d.
~ 4, plerssque Ordines Foederati Belgii habuisse sollicitos, atque si
nempe obstaret interdictioni Clericorum, huc advenientium  ex Imperio
Hispanico."
NTo. 2.
Letter of Sir Leoline Jenkins to the Lords of the Privy Council (y)
(c To the Right Honourable the Lords of His Majesty's Most Honourable
Privy Council, appointed a Commnittee for his M2ajesty's Plantations.
"December 1, 1668.
cc My LORDS,
c" The affair of St. Christopher's, (whereof I am in obedience to your
Lordships now to give an account) seems to resolve itself into these following inquiries:* First, whether the French instruments of Cession, and the
[*495] Most Christian King's despatches and orders for the restoring of
His Majesty's part of that island, be valid and sufficient?
(y) Life of Jenkins, vol. ii. p. 735.




APPENDIX.                           331
<'I cannot say, my Lords, but that the instrument of Cession is full
enough, and agreeable to the best legal forms now current in France
and Italy. Of the despatches there is this account to be given.
"In the first, dated August 28, 1667, the order for Restitution was
full and clear, without any proviso or condition, yet it obtained not the
effect expected.  The pretence was that the Commander-in-Chief M. de
la Barre, was out of the way when my Lord Willoughby made his
demand: but it seems that was not all; for when Colonel Lambert made
the same demand about two months after, at Midsummer last, M. de la
Barre made the very same difficulties and demands that the French Ambassador now makes in his last Memorial.
6 In the second despatch, dated the 17th of July last, the Most Christian King does (upon His Majesty's Letter) bewail the disappointment
to my Lord Willoughby in very passionate language, both as it reflected
upon the honour of a Prince, tender of nothing so much as of his word;
and as it appeared to be a dissatisfaction to our most gracious Sovereign;
and (to make amends) the French Governor is commanded, whether M.
de la Barre be in the way or not, to deliver up his part to His Majesty,
all delays and pretences whatsoever laid aside, under pain of disobedience
and rebellion. This despatch likewise (in all probability) obtains no
effect. For M. de Lyonne advises my Lord St. Alban's that it was desired in the French Court, that this despatch should not be sent away
hence: l. de la Barre having been written to, to govern himself as A21
Colbert should direct from hence, and not according to these orders.
"The last despatch, dated the 31st of October last, varies from the
tenour of both the former; for it supposes the word habitations to be
within the intendment of the VIIIth Article; and consequently, that the
French bought the English houses and lands, as well as their stocks and
moveables.  And then it takes for granted, that M. Colbert has satisfied
His Majesty that the English are not to be restored to their plantations,
till they do reimburse the French of their demands.  So that this de.
spatch being compared with the Ambassador's Memorial, promises no
great effect.
",For the Ambassador desires: 1. That the French, who shall become
subjects to this Crown, may be treated in all respects as English.
2. That they be not in the least disturbed in their possessions, till we
pay them back their purchase-money.  3. That we give them content
(that is the word, which cannot imply less than good security) in the
demands they make for improvements. 4. That His Majesty would
please to prefix a day, within *which the English shall be bound   496
to reimburse the French; and in default of doing so, the English [49
to be declared for ever incapable of being restored to their own: This
implies, that very much is expected to be done on our part, before the
French do anything on theirs; as if the VIIIth Article were a necessary
condition, antecedent to the performance of the VIIth, which is not only
distant from the sense of the article, but contrary to the tenour of this
and all other Treaties. And though the King's letter mentions no more
but the reimbursement of the purchase-money, yet it is with a bien




332   PHILLIMORE ON INTERNATIONAL LAW.
entendre, that this must be done effectually, before the English be restored to their possessions.,cAnother inquiry is, whether the word Bona comprehends lands
and houses, as well as stock, and those moveables which we call a personal estate?,"It cannot be denied, my Lords, but that the word Bona, in the
Roman Civil Law, as also in the present laws and customs of the French,
comprehends both the one and the other in many cases; though in this
case it does not, as may be evinced by several arguments.
"tFirst, In this Treaty with the Dutch and the Dane at Breda, the
clauses and proviso's concerning lands and immoveables on the one side,
and concerning goods and moveables on the other, are still distinct and
separate, as things opposite in their notion. For instance, in the Treaty
with the Dutch, the right of all lands, towns, forts, places, and colonies,
is, in the IIIrd and VIth Articles, settled one way; and in the IVth and
VIIth, that of Bona cuncta mnobilia, another way: Just so it is with
Denmark in the Vth; their moveables, Quicquid Bonorum, fall under
one provision, and in the VIth, their territories under another:'Tis so
in the elaborate Treaty of the Pyrenees, 1659. For moveables, des
Debts, Merchantdizes, Effects and Meubles, it has distinct Articles, the
XXIInd and XXIXth, but nothing moveable mingles in those other
Articles that do settle lands, territories, and real estates.  So it is in the
Treaty of Chasteau Cambresis, and several others.  The Territory therefore and Sovereignty of St. Christopher's, being the subject-matter of
the VIIth Article of the Treaty with France, the word Bona, in the
following Article, (in this Treaty as well as in the others) must mean
moveables, and nothing else; for the Forma Communis must needs in
construction of law be here intended and observed, since the variation
from it is not expressed. And it cannot be well imagined, that the
word -Bona  should signify one thing to the Dutch and Dane, and another thing to the French, where both the subject-matter of the debate,
and the persons treated with by the three parties, were the very same.
From these concurrences, the law raises validissimamn conjecturam, and
a full light wherewithal to clear the ambiguity.
",Secondly, The case of the English is extremely favourable,'tis to
*4971 be restored to their own by a sacrked compact; and the word *Re[U9 ]3 stitution is so favourable, that when a heinous malefactor hath it
in his pardon from his Prince, it does not only take off his punishment,
but also restore him to his good name, honours, and estate: much more
then shall those that are restored ex debitojustitie, recover everything
that the Treaty does not in very clear and express terms deny them.
"c Thirdly, The civilians and feudists do hold, that lands held by such
tenures and services as the English held theirs in this island, are not
comprehended under the word Bona; and in this very case, when they
say, (and'tis a very common saying) Bona in bello capta cedunt occupanti, they must mean moveables only; the lands and houses going
another way, that is, to the conqueror.
c" Fourthly, By the VIth Article of War, upon the surrender to the
French, the English had power to dispose of their immoveables, and to




APPENDIX.                           333
carry away their moveables, excepting negroes and cattle,'tis clear they
could dispose of no more than what the Treaty gave them leave to do,
all the rest being devolved to the French Jure Belli; therefore, since
they had not power granted them to dispose of their Ponds, Maisons,
and heritages, their houses and lands did not pass. The word Immeubles,
when opposed to Meubles in the French laws, signifies no more than what
we call chattells real, parcels of the freehold, and choses in action, here
in England.
"- But if it be urged, that the English have made over, not only their
moveables, but their lands and houses, to the French by firm conveyances, it is humbly conceived, that whatever those contracts were, they
are not to be measured and expounded by the Treaty. Besides, these
conveyances were some of them void, as being forced by threats and
terrors; some of them voidable, as being under half the real value, and
some of them utterly feigned and false. An instance whereof is given
in Captain Freeman, who was before your Lordships the other day. He
passed away his estate to M. de Chambers, Director of the West-India
Company, for 40,000 sugars, that is, about 4001. sterling: his estate
was worth 10001. a year, and'tis set down in the contract, that he has
received all these sugars; yet he utterly denies the receiving of one
penny value. Nay, that he was forced to pay 20,000 sugars for a boat
to this purchaser, to carry himself and his family.
4" A third question is, whether the French are bound to repair His
Majesty's three forts, that they have demolished, since the publishing
of the peace?
l There is no express provision, my Lords, in the VIIth Article,
about rendering the forts to His Majesty. But in case the French (with
whom  the English are to be takenpari passu) had been beaten out of
the island, the rule given to the English was, Nihilominuts in eum
Staturm restituantur Galli, in quo initio anni 1665 erant.  And the
Dutch stipulating to surrender forts among other things, in case they
should take them after the 10th of May, *do promise that bona *498]
fide in eodemn plane' statu confestim restituentur quo turn temporis
reperientur, quandocunque de instauratd Pace in i isdem Locis constabit.
And when forts are to be rendered, they must not be demolished places;
for in interpreting of Treaties, the rule is verba artis (as a fort is)
secundum artem intelligenda sunt.
c"A fourth inquiry is, concerning the improvements and the costs,
which the French are said to be at upon the plantations.
" What the Ambassador's Memorial hath, of all laws and all nations
allowing for necessary expenses and improvements, is under favour to be
understood, when the possessor is in bonafide; but if he be malwefidei
possessor, an usurper solemnly denounced against, yet continuing his
usurpation by force of arms, he shall be so far from recovering his
layings out, that he shall account for the profits he hath received to a
farthing; but putting the case, that the French had been all this while
in bona fide, as they were, till my Lord Willoughby summoned them;
yet when their demands are not liquid, the law allows them not to detain
the thing improved; they must accept of security, to be reimbursed of




334      PHILLIMORE  ON INTERNATIONAL LAW.
what shall appear to be justly due. This was offered the French by
Colonel Lambert, when he made his demand in June last, but it was not
accepted.," Besides, in purchases that are subject to Restitution, by that which
the French call Retraict Lignager, the buyer is expressly forbidden in
France to lay out any more, or other charges in building or repairing,
than are purely and absolutely necessary, within the year and the day
allowed to the next of kin to come in.  The reason is, that the pur.
chaser may not, by expenses unnecessarily laid out, render the recovery
of the thing more difficult to the family.  The restitution of the English
in this case is no less favourable: Therefore, whatever the French have
laid out since the knowledge of the Treaty, upon pretence of improvements, they have laid out in their own wrong, and by the equity of law
are precluded, and have no colour to demand any account, satisfaction,
or reimbursement from the English.
"s The extravagant demand, my Lords, of almost 7,0001. sterling, for
food and necessaries to  the  English prisoners, and of 8001. for
chirurgeons about them, needs not, as I conceive, any answer, till it be
known what reparations the English are like to have for the waste, the
spoils, the demolition, acted upon their plantations since the peace.
i"So that, my Lords, upon the whole matter, the true and honest
meaning of the Treaty being, that the most Christian King, on his part,
do forthwith order his subjects to quit all the plantations they are possessed of, and to leave the English part entirely to the English; and
that His Majesty, on the other side, do not suffer the English to lay
claim to their own cattle, slaves, or other goods, unless they do first lay
down the money or value, for which *they formerly sold them;
[*499] but that the French be at liberty to carry them away, or otherwise dispose of them as their own: If the French have made any
improvements before notice of the peace, they ought to be reimbursed;
if they have done us any damages since, they ought to repair them.
This I hope will be done, and nothing less than this can be done, if the
French do, as the Most Christian King in his two first despatches directs,
proceed sincerement et en bonne Joy.  But as to the particular demands
of disbursements for meliorations, and for prisoners on their side, and
the demands of reparation for waste, spoil, and utter demolition, on our
side, they must, as I humbly conceive, be left to Commissioners to be
adjusted upon the place. All which I do most humbly submit to your
Lordship's high wisdom."
No. 3.
HOTHAM AND TWO OTHERS V. THE EAST INDIA COMPANY.(Z)
"cTHE ship York, of which two of the plaintiffs were part-owners,
and the third captain, had been freighted by a charter-party between
(z) Douglas's Reports, pp. 272-78.




APPENDIX.                           335
them and the East India Company, on a voyage from London to India
and back to London.  On her return home she met with a most uncommonly violent storm off Margate, where she was stranded, on the first of
January, 1779, and sunk under water.  By this misfortune, a great
part of her cargo (being salt-petre) was lost; the principal part of what
remained, which consisted chiefly of pepper, was greatly damaged by
the sea-water, but was got out of the ship by persons sent down by the
Company, and brought to town in other vessels, where a particular process was employed, at: a great expense to the Company, to restore it, in
some degree, and render it marketable. The ship, after being in a great
measure unloaded, was with much difficulty raised out of the water, and
arrived in the port of London, with a small part of the cargo still
remaining on board. The plaintiffs insisted, that she had arrived at her
port of discharge, and had performed her voyage within the meaning of
the charter-party, and that, notwithstanding the misfortune which had
happened, and the loss of part, and the damage done to the rest of the
cargo, they were entitled to be paid the freight of the goods saved, and
the demurrage.  The defendants contended; First, that in the events
which had happened, they were discharged from the payment of any
freight, or demurrage; Secondly, that if they were liable for freight and
demurrage, yet, by certain *clauses in the charter-party, they
were entitled to deduct therefrom the value of the goods lost; [*500]
the loss upon those which were saved in a damaged state; and the
expenses they had been put to in getting those damaged goods to London
and rendering them marketable. A common action of covenant was at
first brought on the charter-party, to which the defendants pleaded; but
afterwards both parties consented to try the questions in dispute between
them in four different feigned issues, which were as follows:c"1. Whether the plaintiffs were, or were not, entitled to any and
what freight or demurrage in respect of the ship and voyage in the
charter-party mentioned?
" 2. Whether the plaintiffs were liable to pay or allow to the defendants any sum or sums of money in respect of the goods and merchandizes which had been shipped on board the said ship, and which had
been lost, or not delivered to the defendants on her arrival in England?
" 3. Whether the plaintiffs were liable to pay or allow, &c. in respect
of a certain quantity of pepper which had been shipped, &c. and which
had been prejudiced, wet, and damnified, before the arrival of the ship
at London?
c" 4. Whether the plaintiffs ought to pay or make satisfaction to the
defendants, for the expences they were at, in saving and bringing to
London certain goods and merchandizes which were taken out of the
ship when she was stranded, or otherwise concerning the said goods?
"9 These issues came on to be tried, before Lord Mansfield, at Guildhall, at the Sittings after last Trinity Term.
Ir There were two clauses in the charty-party on which the defence on
the first issue was founded, viz. —
"t 1.'And as touching the freight to be paid or allowed by the Company, it is agreed, and the Company covenant with the said part-owners,




336   PHILLIMORE ON INTERNATIONAL LAW.
that the Company shall and will, in case and upon condition that the
ship performs her voyage and arrives at London in safety, and the said
part-owners and masters do perform the covenants on their part, and
not otherwise, well and truly pay and allow the freight herein mentioned.(a)
" 2.' It is hereby agreed, that in case the ship does not arrive in
safety in the river Thames, and there make a right delivery of the whole
and entire cargo and landing on board the said ship as aforesaid, the
Company shall not be liable to pay any of the tsums of money herein
before agreed to be paid for freight and demurrage, nor subject to any
demands of the said part-owners or master on account of the said ship's
earnings in freight, voyages for the *Company, or on account
of any other employment, any other law, usage, practice, or
custom, notwithstanding.'(b)
" The following clause was the foundation of the defence on the second
issue:"', And, if any of the homeward-bound cargo shall be lost or undelivered into the said Company's warehouses at the said ship's arrival in
England (except that no such payment shall be made if there happens
an utter inevitable loss of ship and cargo, nor shall any other payment
be made for such goods as shall necessarily perish or be cast into the sea
for the preservation of the ship and cargo, than by an average to be borne
by ship, freight, demurrage, and cargo,) the part-owners and master shall
pay or allow to the Company the prime cost of such goods, and 301. for
every 1001. on such prime cost.'(c)
cc On the third issue they relied on the following clauses:c 1.  But, if any of the homeward-bound cargo, when delivered into
the Company's warehouses in England, shall be found to be prejudiced,
wet, or damnified, by any occasion or accident whatsoever, it shall be lawful for the Company to refuse such goods, and in such case the part-owners
and master shall take them, and allow to the Company the sums which
they are invoiced at, with charges, customs, and duties, and in such case
the Company shall pay no charges or freight for the said goods so prejudiced, wet, or damnified, unless in cases of damaged pepper, which the
part-owners and masters are to allow the Company for at the current price
of sound pepper in London, and the Company are to pay the freight and
charges on such pepper as if it were not damnified.(d)
9c 2. c But the said part-owners shall not be charged with any sum of
money in respect of goods damaged on board the said ship, but such as
shall, by the condition and appearance of the package thereof, or by some
other reasonable proof, appear to be ship-damage; any thing herein contained to the contrary thereof in anywise notwithstanding.(e)
"3.'A provision for paying demurrage to the owners, if the ship
should be dispatched safe from the Malabar coast, and should not make
the passage in a limited time: and which adds, ( and the owners shall not
(a) P. 8, of the East India Company's charter-parties.
(b) P. 11, of the East India Company's charter-parties.
(e) Ibid. pp. 4, 5.                      (d) Ibid. pp. 4, 5.
(e) Ibid. p. 13.




AP PEND IX.                          337
be responsible for any damage that may happen to the homeward-bound
cargo, occasioned by such late dispatch.'(f)
c"The jury having found for the plaintiffs on the three first
issues *(viz., That freight was to be paid for all the Company's [*502]
goods delivered, and demurrage, as specified in the charter-party; 2.
That the plaintiffs were not liable to pay for any goods lost, or not delivered; 3. That they were not liable to pay or allow for any loss on the
pepper,) and for the defendants on the last (viz., That the plaintiffs were to
pay the defendants their proportion of the expenses in saving the goods and
merchandizes, by way of general average, as specified in the charter-party,
and the whole extra expense of bringing the goods from Margate,) a rule
was obtained by the defendants to show cause, why there should not, be
a new trial on all the issues found against them; and the case was argued
this day, by Lee, Davenport, Baldwin and Erskine, for the plaintiffs, and
the Soliciter-General, and Dunning for the defendants.
", The counsel for the defendants relied, as to the freight and demurrage, on the strict terms of the instrument, by which it was stipulated that
neither should be paid for, unless the ship should arrive in safety in the
river Thames, and there make a right delivery of the whole and entire
cargo. If the plaintiffs had proceeded in covenant, such an arrival and
such a delivery must have been averred, and was now necessary to have
been proved to make out the case on the part of the plaintiffs. In a
Court of Law, the stipulations of the deed must appear to have been
exactly complied with j; and, if any relaxation was to be allowed, on principles of equity, recourse must be had to a Court of equity.
c" The same reasoning was equally applicable to the second issue.
" On the third, they insisted, that' ship-damage' was synonimous to'sea-damage,' and meant, damage happening at sea, in contradistinction
to any injury the goods might have received before they were put on board,
not merely damage at sea occasioned by insufficiency in the ship or the
misconduct or negligence of the master or mariners, which was the interpretation contended for on the part of the plaintiffs.  Without any stipulation, the owners and master would have been answerable to the Company for losses arising from those causes. The word' ship-damage,' it
is true, was meant to controul the general words in a preceding part of
the instrument, by virtue of which the plaintiffs would otherwise have
been liable if the goods had been prejudiced or damnified by any occasion
or accident of any sort; but, according to the construction contended for
by the plaintiffs, this prior clause would be totally annulled by the other.
The saving in case of a late departure from the Malabar coast, affords
an additional proof that sea-hazards from weather, storm, &ec. were meant.
For how could a detention beyond the usual season increase the danger
of damage from insufficiency in the vessel (independent of what the weather
might occasion,) or from misconduct in the master or the crew?
*" On the other side, it was insisted, that this sort of instrument ought to receive a liberal construction.  The non-compli- [*503]
ance with the letter of it, in not delivering the cargo in the river Thames,
(f) Ibid. p. 14.




338    PHILLIMORE ON INTERNATIONAL LAW.
was owing to the act of the defendants themselves, in sending their servants on board, who took it out of the ship without any participation with
the plaintiffs. This discharged them from the necessity of performing
strictly that part of the contract (as to which the case of the Sparrow v.
Caruthers, reported in Strange,(g) was in point,) and the discharge might
have been averred in an action of covenant.  That, as to the goods damaged or lost, the charter-party was certainly very confused and ill digested, full of contradictions, owing to the circumstance of different clauses
having been added at different times, without attention to the coherence
and consistency of the whole. But it must be interpreted in a manner
the most consistent with good sense, and the nature and the general
tendency of the whole contract.  The expression of i ship-damage' could
not be used in opposition to damage received before the goods are put on
board, because the owners could never be - answerable for that sort of
injury, and therefore it never could have been thought necessary to introduce words to declare that they were not.(h)  It must mean damage
reeeived on board of the ship, and occasioned by negligence or misconduct; surely not damage arising, as in the present case, from the act of
God, which no human care could prevent. If there were any doubt, the
special jury who had exercised their judgment upon it were certainly
most competent to determine it, no question being more exclusively fit for
their consideration. The owners therefore were by that clause exempted
from  responsibility for any other sort of damage but ship-damage so
understood, and the foregoing words'by any accident whatsoever' were
thereby controuled and restrained. Then, as to the goods lost, this being
the clear meaning of ship-damage, and universally so understood by persons conversant with the subject, it could never be the intention of the
contract, that, though the owners were not to be answerable for goods
damaged, they were for goods lost, by the act of God.  The strict compliance with the words on which the defendants relied as to the goods
lost, was never expected. The cargoes of Indiamen are never delivered
[*504] into the Company's warehouses, but only *into lighters belonging
to the Company.  Edwin v. The East India Company,(i) and
Edwards v. Childs,(k) were cited.
" Lord Mansfield,-' I have no doubt but that, if the delivery at Margate was, in the contemplation of the parties, substituted for a delivery
at London, it might have been averred in an action of covenant,(l) because there can be no material fact in a cause which may not be put
upon record, or given in evidence on the general issue.  The Company
are not liable to any imputation. The part they took, when the calamity
happened, was what humanity and justice required, and can be of no
prejudice to either side. The charter-party is an old instrument, informal,
(g) " T. 18, Geo. 2 Str. 1236."
(h) " It was said that the clause mentioning ship-damage was first introduced
in 1759, when the Ilehester East-Indiaman was lost. The then Solicitor-General
had given an opinion, that the charter-party, as it then stood, would make the
owners liable for losses by storms, and with the express design of preventing that
construction, this new clause was adopted."
i) " Cane. H. 1690, 2 Vern. 210."    (k) "Bane. M. 1716, 2 Vern. 727."
t) "Vide Jones v. Barkley, iufra, T. 21, Geo. 3, p. 684."




APPENDIX.                             339
and, by the introduction of different clauses, at different times, inaccurate,
and sometimes contradictory.  Like all mercantile contracts, it ought to
have a liberal interpretation. In construing agreements, I know no difference between a Court of Law and a Court of Equity.(m) A court of
equity cannot make an agreement for the parties; it can only explain
what their true meaning was; and that is also the duty of a Court of
Law. I told the jury, that the instrument must have a liberal construction, according to the true intention, and I left the construction to them
more than in common cases ought to be done, because the province of
construing written instruments belongs to the Court. On the point of
slhp-damage I had considerable doubts, which I stated fully to the jury.
The Company have thought fit to bring the case before the Court, but,
upon hearing the argument, I am now clear that the verdict was right in
all the issues. As to the first, the Company, by receiving part of the
cargo, have waived all objections concerning the delivery.(n) The principal question is, whether the owners are to pay for the damage occasioned
by the storm-the act of God; and this must be determined by the intention of the parties, and the nature of the contract.  It is a charter of
freight. The owners let their ships to hire, and there never was an idea
that they insure the cargo against the perils of the sea. The Company
stand their own insurers. Words must be construed according to the
subject-matter.  What *are the obligations upon the owners
which arise out of the fair construction of the charter-party? [ 505]
Why, that they shall be answerable for damage incurred by their own
fault, or that of their servants, as from defects in the ship, or improper
stowage; such as mixing commodities together which hurt one another,
&c. If they were liable for damages occasioned by storms, they would
become insurers, not freighters.(o)  Many of the difficulties which have
been raised, are occasioned by the multiplicity of unnecessary words, introduced with a view to be more explicit; an effect which often arises
from the same cause in acts of parliament.  It seems the question had
occurred in the year 1759, and the clause mentioning ship-damage was
introduced in order to fix the risks for which the owners were to be answerable.  That clause rides over all the former part of the charterparty.  As to the other point of the goods lost, the whole is one entire
contract, and must be understood in a manner consistent with itself; and
it never could be intended that the owners should be protected fiom the
lesser loss, and remain answerable for the greater.'
(m) " In the case of Edwin v. The East India Company, Vernon makes the Court
say,'Though the charter-party is so penned, that nothing can be recovered at
law, yet the plaintiffs have a just demand, and ought to be relieved in equity."'
(n) " His Lordship had interrupted the defendant's counsel to ask, whether the
Company could mean seriously to insist that they were to have the use of the ship
and the goods which had been delivered, and not pay for the freight of them."
(o) " There is a distinction in this respect between goods and ship: I for it is in
common experience that the owners of ships are in some sort their own insurers,'
per Lawrence, J. in Beatson v. Schank, 3 East, 233; where it was provided by the
charter-party that in case of the' inability of the ship to execute or proceed on
the service,' an abatement should be made on the freight; and it was held that
inability by reason of disease among the crew, and desertion from apprehension
of it, was inability within the terms of the proviso."




340      PHILLIMORE  ON INTERNATIONAL  LAW.'Willes, Justice, absent.
" Ashurst, Justice, — I am of the same opinion. The consideration, that the owners are not insurers, controuls every branch of the
instrument. If the proviso concerning ship-damage had been wanting,
there might have been some doubt; as the case stands there is none.'
"' Buller, Justice, — I am of the same opinion. There could have been
no doubt on the subject of the first issue, if the parties had gone on in
the usual way, by an action of covenant on the charter-party.  If an act
undertaken to be done is dispensed with by the other party, it is sufficient
so to state it on the record; special pleading being nothing but a bare
narration of facts in a legal form.'
"4 The rule discharged."
[*506]                       *No. 4.
In the Exchequer Chamber.
MARRYAT V. WILSON IN ERROR.(p)
"' A WRIT of error having been brought in this Court on the judgment
given in the Court of King's Bench between these parties, (vid. 8 T. R.
31,) the case was argued early in this term by Rous for the plaintiff in
error, and Gibbs for the defendant; the general line of argument, however, being the same as that in the King's Bench, and much commented
on in the judgment of the Court, it was thought unnecessary to do more
than subjoin in the form of notes to the following judgment whatever
appeared at all new or material.
"The Court took time to consider of their opinion which was this day
delivered by,,"EYRE Ch. J. — The substance of this record having been very
recently stated to the Court, and the record at large being to be found in
the Term Reports, I shall content myself with referring to it, stating so
much of it only as may be necessary to introduce the questions which
have arisen upon it.  This is an action upon policies of insurance set
forth in the first, third, and fifth counts of the declaration.  That in the
first count being a valued policy on one moiety of the ship Argonaut,
Collett master, at and from Bourdeaux to Madeira, and the East Indies,
and back to America, with liberty to touch, stay, and trade at all ports
and places whatsoever or wheresoever on the outward or homewardbound voyage; and this policy is stated and found to have been effected
by the plaintiff for the use of John Collet. The policy in the third count
being a valued policy on goods, neutral property on board the same ship, on
a voyage at and from Bourdeaux to the East Indies, with liberty to touch,
call, and trade at all ports and places or islands whatsoever and wheresoever as well at the Cape as on this or the other side of the Cape of Good
Hope, until her arrival at her port of discharge in Bengal; and this
policy is also stated and found to have been effected for the use of the
said John Collet. The policy in the fifth count being on goods warranted
(p) 1 Bosanquet & Puller's Reports, 430-446.




APPENDIX.                            341
American property ladened on board the same ship for a voyage at and
from Madeira to her last port of discharge in India, with liberty to touch,
stay and trade at all ports, places, and islands whatsoever and wheresoever, as well at, as on this and on the other side of the Cape of Good Hope;
and this policy is stated *and found to have been effected for  *507
the use of the said John Collet and one Anthony Butler.      [507
"' The defendant underwrote all these policies, and a loss has been sustained both of ship and cargo which is admitted to be within the terms
of the policy; but it has been insisted on the part of the defendant that
the voyages described in these policies are illegal voyages, and as such
cannot be made the subject of contracts of this nature, and therefore that
the defendant is not bound by these contracts to make good his proportion
of the loss.
"s' The facts of the case upon which this charge of illegality is founded,
as may be collected from the special verdict in this case, are these:
John Collet and Anthony Butler, on whose account these policies were
respectively effected, appear to have been natural-born subjects of His
Majesty but to have been resident and domiciled within the United States
of America, the latter before the declaration of the independence of the
United States, the former at a period subsequent to the ratification of
such independence.  On the 12th of June, 1795, they became the owners
of this vessel in moities; on the 25th of July, 1795, Collet sailed in her
as master, having a cargo of corn and flour on board, from Philadelphia
for France, with a view of proceeding from thence with the ship, after
the disposal of her cargo there, to Madeira and the East Indies, and from
thence back to the United States.  On the 1st of May, 1796, Collet
arrived with this ship at Brest, and there sold his flour; he afterwards
proceeded to Bourdeaux, where he sold the remainder of his cargo, and
he there shipped on his own account the goods mentioned in the second
of these policies. While the ship remained at Bourdeaux, Collet came
to London, and having procured a credit with the plaintiff in this cause,
he, the plaintiff, purchased here upon his own credit by commission goods
and merchandise of British growth and of British manufacture on account
of Collet and Butler, and these are the goods which are the subject of the
third of these policies.'" The plaintiff by the direction of Collet, and during his stay in London, shipped these goods in the port of London, on the joint account and
risk of Collet and Butler on board three American ships, in which they
were carried from London to Madeira for the purpose of being there reshipped and put on board the Argonaut, and of being carried in that ship,
together with the goods shipped on board her at Bourdeaux from Madeira,
to the British territories in the East Indies, and of being imported into
those territories, and traded, trafficked, and adventured in there; and it
appears that at the time of this loss, Collet and Butler remained debtors
to the plaintiff for the amount of these goods.  On the first of May,
1796, the Argonaut sailed from Bourdeaux with the goods there taken on
board her for Madeira, in order *there to meet, receive, and take   508
on board the goods shipped from London: she arrived at Madeira 
and took those goods on board there, and afterwards sailed from Madeira




342    PHILLIMORE ON INTERNATIONAL LAW.
in the prosecution of her voyage to the East Indies, in the course of which
voyage she was seized by the commander of a squadron of the King's ships
on suspicion of being an illicit trader, and this has been considered
throughout the cause on all sides as a total loss of the ship and cargo.
" It seems to have been admitted on all sides in this cause, that this
voyage and the trade and traffic intended to have been carried on by the
Argonaut with the British territories in the East Indies, is to be considered as illegal and the ship an illicit trader, unless the voyage and the intended trading were legalised by the Treaty of Commerce which was
entered into between Great Britain and the United States of America on
the 19th of November, 1794, which was afterwards ratified by the United
States on the 14th of August, 1795, and by His Majesty on the 28th of
October in that year, and retrospectively confirmed by Parliament in the
37 Geo. III.'s By the 11th article of that Treaty it is agreed that there shall be
a reciprocal and entirely perfect liberty of navigation and commerce between their respectiue people in the manner, under the limitations and on
the conditions specified in the Treaty.
" By the 13th article His Majesty consents that the vessels belonging
to the citizens of the United States of America shall be admitted and
hospitably received in all the sea-ports and harbours of the British territories in the East Indies, and that the citizens of the said United States
may freely carry on a trade between the said territories and the said United
States, in all articles of which the importation or exportation respectively
to or from the said territories shall not be entirely prohibited: provided
only that it shall not be lawful for them in any time of war between the
British Government and any other power or State whatever, to export
from the said territories, without the special permission of the British
Government there, any military stores, or naval stores, or rice.  The
citizens of the United States are to pay no higher tonnage duty than
British vessels pay in the ports of the United States, and they are to pay
the same import and export duties as are paid by British vessels. It is
expressly agreed that the vessels of the United States shall not carry any
of the articles exported by them from the said British territories to any
port or place, except to some port or place in America, where the same
shall be unladen, and such regulations shall be adopted by both parties
as shall be found necessary to enforce the due and faithful observance
of this stipulation.  This article is not to extend to allow the vessels of
the United States to carry on any part of the coasting trade of the British
territories: and for explanation it is added, that vessels going with their
original cargoes or part *thereof, from one port of discharge to
*[509] another, are not to be considered as carrying on the coasting trade.
This article contains some other provisions by which Americans are to
govern themselves in their intercourse with the British territories, but
nothing arises upon that part of the article material to the present subject.
" On the part of Mr. Marryat, the defendant in the action, it has
been insisted by Mr. Rous, who entered very fairly into the real merits
of the case, that according to the true construction of this Treaty,




APPENDIX.                            343
viewing it in all its parts, and attending both to the letter and the spirit
of it, the trade to be carried on between the British territories in the
East Indies and the United States, is a direct and immediate trade from
the United States to the British territories, as well as from the British
territories to the United States, which unquestionably must be direct and
immediate, it being expressly agreed that the vessels of the United
States shall not carry any of the articles exported by them from the
British territories in the East Indies, to any port or place, except to
some port or place in America, where the same shall be unladen; and
consequently that the voyages insured from Bourdeaux and from Maderia
not being protected by the moiety were ex concessis illegal.
"'  Mr. Rous's verbal criticism  upon the word between was ingenious,
and well supported: but in truth there is hardly a word in the English
language less precise in its meaning or more indefinite in its application
than the word et between."   According to the context it is used to
express the strictest local sense of to and from, or the most remote
relation which any one thing can have or bear to another.  For instance,
when we say that the inlet from the Western Ocean to the Mediterranean
is between the coast of Spain and the coast of the empire of Morocco,
it marks geographical lines precisely drawn.  But if we were to say
that the intercourse between the coast of Spain and that of the empire
of Morocco was interrupted by the religious opinions and the habits of
living prevailing in the two countries, the word c" between" would have
no other effect than to point out the countries or nations whose intercourse is spoken of as interrupted by the causes enumerated, and would
mean no more than what is meant by the same word in 11th article of
this Treaty, where the expression is cc between their respective people."
When we leave this narrow ground of argument, and proceed to consider
the whole context of this article, the generality of the expressions, the
most obvious interpretation of those expressions, and all the probable
and possible consequences which may follow from our exposition of this
article, the subject expands itself to an alarming magnitude, and the
argument would take a very wide compass indeed, if it were now to be
entered into for the first time: but after the very elaborate discussion
which this *cause has undergone in the Court of King's Bench, [510]
where a solemn judgment was pronounced at the close of a fourth
argument, and considering that the judgment has now been submitted to
our review upon arguments which, though very ably put, have not
materially varied the state of the questions which have been made and
decided upon by that Court, we do not feel ourselves called upon to
enter very much at large into the subject, and I shall content myself
with stating as shortly as I can the grounds upon which the unanimous
opinion of this Court, that the judgment of the Court of King's Bench
is not erroneous and ought to be affirmed, may be supported.
"c' The language of the 13th Article is that the citizens of the United
States may freely carry on a trade between the said territories and the
said United States, in articles not entirely prohibited.  They are therefore not restricted to trade in articles of the growth, produce, and manufacture of the United States: it is enough that the articles they trade




344   PHILLIMORE ON INTERNATIONAL LAW.
in are not articles prohibited from being imported to the British territories in India, or exported from thence by any body.  If then they propose to trade with the British territories in India in foreign commodities
as they may do, they must use means to furnish themselves with those
commodities.  In the nature of things it must be done in a course of
trade. The obvious course of trade is that they should carry their
native commodities to other countries where they can be exchanged with
the most advantage for articles proper for the East India market, and
that they should then proceed to India in order to carry on a trade there
in those articles.  I find nothing in the treaty which will warrant me
in saying that it was the intention of the contracting parties that the
trade conceded by the Treaty should not be so carried on.  Mr. Rous
found himself obliged to acknowledge that the citizens of the United
States might within the terms of this treaty first import into America
the articles in which they propose to trade with the British territories in
India, and then export them  from America in a direct voyage to the
East Indies, and he could not deny that they might have imported these
articles into America even from London. Indeed it would have been a
most extraordinary state of things if they might have gone to every
other market for the goods they wanted, but that the British market was
excluded.  As to the apparent disadvantage under which the citizens of
the United States would carry on trade with the British territories in
India so conducted, Mr. Rous argued, that so to understand the Treaty
would be only to give the fair and due preferance to the great national
commerce of the East India Company. Whether this trade should have
been conceded under any qualifications or restrictions is one thing, it
having been conceded, now, to attempt to cramp it by a narrow, rigorous,
forced construction of the words of the treaty is another and a very
different *consideration.  We cannot suppose that an indirect
[ 511] advantage was intended to be reserved to the East India Company by so framing the Treaty that the American trade might by construction be put under disadvantage; because this would be a chicanery
unworthy of the British Government and contrary to the character of
its negotiations, which have been at all times distinguished for their
good faith to a degree of candour which has been supposed sometimes
to have exposed it to the hazard of being made the dupe of more refined
politicians. The nature of the trade granted in my opinion fixes the
construction of the grant.  If it were necessary to go farther, strong
arguments may be drawn from the context of this article and the contrast,
which the comparing it with the preceding article will produce.  From
the context it appears that the trade was to befree, subject only to certain specific regulations. The citizens of the United States are put
upon the same footing as to duties with British subjects.  No question
is proposed, no means of ascertaining the fact are provided, where they
come from, though it is anxiously stipulated where they are to go to.
The words c" original cargo" are to be found in the article, and it
was supposed they might be used as a ground to infer that the trade was
to be direct from  the United States.  But "' original cargo" is plainly
set in opposition to the cargo to be taken in in India.  The provision




APPENDIX.                            345
respecting it is that though the coasting trade is not permitted to the
citizens of the United States, they may carry the cargo, which they
originally brought with them, into the ports of the British territories
from one port of delivery to another, for the purpose of a market.  The
word original serves the purpose for which it is used perfectly well, and
it marks a total indifference to the question where the cargo was picked
up.  I have already had occasion to take notice that as to the cargo to
be imported, no other restriction or qualification was in the view of the
contracting parties than that it should consist of articles not expressly
prohibited. But when this article is contrasted with the preceding
article, the true construction of it will be seen in a still clearer point of
view.  The 12th Article is in substance, that it shall be lawful for the
citizens of the United States to carry to any of His Majesty's islands
and ports in the West Indies from  the United States in their own
vessels, not being above seventy tons, any goods or merchandize being
of the growth, manufacture, or produce of the said States, which British
vessels might carry to the islands from  the said States, and that the
citizens of the United States may purchase, load, and carry away in
their said vessels to the United States from the islands, all such articles
being of the growth, manufacture, or produce of the islands, as British
vessels could carry from thence to the said States, provided that the
American vessels carry and land their cargoes in the United States only,
it being agreed that the United States are to prohibit and restrain
*the carrying any molasses, sugar, coffee, cocoa, or cotton in   512]
American vessels,-either fronm His lliajesty's islands or from the [*512
United States, to any part of the world except the United States, and
there is a proviso that British vessels may import from the islands into
the United States, and may export from the United States to the islands,
all articles of the growth, produce, or manufacture of the islands or of
the United States respectively, which by the laws of the said States
might be then imported or exported.'  The trade to be carried on between the citizens of the United
States and the British West India islands, by virtue of this article, is
required to be in goods of the growth, produce, or manufacture of the
islands and United States respectively. This trade in the nature of it
must be immediate and direct.  It could not be in the contemplation of
the contracting parties that it might be circuitous, except indeed within
the limits of the United States and within the range of the British
West India islands, and so far as I take it, it is circuitous.  The contracting parties could not look to so remote a possible case as that a
citizen of the United States might load the native commodities of the
United States in a foreign port, and therefore we are not driven to collect
the meaning of this article from the precision of the language it uses.
Its language is however most precise.  The terminus ci quo and the
terminus ad quem  are designed with as much certainty as would be
required in an indictment for not repairing a particular part of the
King's highway. And to exclude all possibility of misapprehension, to
mark how entirely this trade was to be immediate and direct, a provision
is added that the United States are to prohibit the carrying goods of the
DECEMBER, 1855.-23




346     PRILLIMORE ON INTERNATIONAL  LAW.
produce of the West India islands in American vessels to any port of
the world except the United States. Thus contrasted, those articles
afford an illustration of the internal evidence of the import and true
intent and meaning of each considered separately, and the conclusion
from the whole appears to us to be irresistible that the trade to be
carried on under the 12th Article between the United States and the
British West India islands, is a direct trade, and that the trade to be
carried on between the United States and the British territories in the
East Indies under the 13th Article, may be as circuitous as the enterprising spirit of commerce can make it. There may be reason to apprehend that such an intercourse with the British territories in the East
Indies may prove very injurious to the interests of the East India Company, and to Great Britain in respect of the great national commerce
which is carried on by that Company.  In particular there may be
reason to apprehend that this Treaty will open a door to many of our
own people whom the policy of our laws has shut out from a direct trade
to the East Indies.  In truth it can hardly be expected that the spirit
of commerce, too often found eluding laws made to keep *it
within bounds, that the licri bonus odor should not embark
British capital in this trade.  This ought to have been foreseen, and
therefore I conclude it was foreseen, and that it was found that the
balance of advantage and disadvantage preponderated in favour of the
Treaty.  If not, those who advised it will have to answer for it: the
responsibility is not with us. We are not even the expounders of
treaties. This Treaty is brought under our consideration incidentally as
an ingredient in a cause in judgment before us: we only say how it is to
be understood between the parties to this record. This we are bound to
do; and we have but one rule by which we are to govern ourselves.
We are to construe this Treaty as we would construe any other instrument public or private.  We are to collect from the nature of the subject, from the words and from the context, the true intent and meaning
of the contracting parties, whether they are A. and B., or happen to be
two independent States.  The judges who administer the municipal laws
of one of those States would commit themselves upon very disadvantageous ground, —ground which they can have no opportunity of examining,
if they were to suffer collateral considerations to mix in their judgment
on a case circumstanced as the present case is. It has been urged that
in this instance (at least as to the goods in the third policy) this was a
commerce direct from this country, and that this treaty does not open a
trade between Great Britain and the British territories in the East Indies
to the prejudice of the monopoly vested in the East India Company.
This objection is plausible but not founded.  The circumstance that
this part of the cargo of the Argonaut was procured here, and the share
which the plaintiff Wilson had in procuring it, might have deserved
consideration as evidence of a collusion, by means of which Wilson was
carrying on for himself an illicit trade to the East Indies, which might
have subjected this ship and cargo, or this part of the cargo, to seizure
and confiscation. But this use has not been made of the facts found by
the special verdict: and no other use, consistent with our opinion of the




APPENDIX.                            347
legal effect of the Treaty, could be made of them. For a citizen of the
United States being allowed to trade to the British territories in India,
generally with an exception of a few articles only, as he may take in his
cargo in the ports of his own country, so he may take it in in the ports
of this country as well as any other; and he may employ an agent, and
that agent may be a British subject. It is a lawful agency. It seems
to me impossible to maintain in argument that the subject of a nation
in amity who may trade to the British territories in India, should be
excluded from  one market for his outward investment, when all other
markets are open to him, and when it is distinctly admitted that the
markets of all the world, including ours, circuitously must be open to
him.
*c"  There remains one other topic"of which I am called upon to
take some notice. It is said that Collet, who is solely interested in [I514]
the two first of these policies, and has a joint interest with Butler in the
last, being a natural-born subject of this country, cannot shake off that
character, and become an American so as to entitle himself to the protection of this treaty. He is a British subject trading to the East Indies:
his trade is therefore illicit: the voyages insured are illegal: and the
policies are void. Or, perhaps the objection ought to be put another
way, thus.  The vessels in which only the trade can lawfully be carried
on between the United States and the British territories in India, according to the provisions of the statute 37 Geo. III. c. 97, must be owned by
subjects of the United States, and whereof the master and three-fourths
of the mariners, at least, are subjects of the United States: whereas this
vessel, the Argonaut, was in part the property of a natural-born subject
of this country, and this part-owner was also the master: consequently
she was not owned by a subject of the United States, nor navigated by a
master a subject of the United States, within the true intent and meaning of the navigation laws, and particularly the statute 37 Geo. III. c.
97. The conclusion will be the same. The voyages insured were therefore illegal and the policies void. This is the only point in the case which
has appeared to me to have any difficulty in it.  I must confess that
when I found it stated as a fact in this special verdict that Collet and
Butler were natural-born subjects of HIis Majesty, I felt myself embarrassed, and I could not readily disengage myself.  And when I found
that in the year 1797 there had been a reference from the Privy Council
to the then Advocate-General, and the two law officers of the Crown,
and that they had concurred in opinion that the master of an American
vessel, a subject of the United States domiciled there, but in fact a natural-born subject of Great Britain, was not to be considered as a subject of the United States within the meaning of our navigation laws,
founding themselves upon an opinion of Lord Hardwicke when he was
Attorney-General, and that the Council had adopted and acted upon
that opinion, I felt my diffiulty increase upon me; for, though this was
not a judicial decision, (as in the argument at the bar of the Court
of King's Bench it was supposed to be,) it was certainly of the highest
authority next to a judicial decision: it was a public act of the Executive Government, founded on the advice of eminent and learned men,,




348      PHILLIMORE ON INTERNATIONAL  LAW.
whose situations called upon them  to make themselves well acquainted
with our navigation laws, and must have made them very familiar
with all the questions which had arisen upon those laws: and it was
therefore entitled to very great respect from me.  It may be observed
that this order might have been followed by a judicial decision. It purports to recommend that under the actual circumstances the vessel
should be admitted *to an entry though she was not navigated
according to law.  Notwithstanding the order, and the entry in
consequence of it, the vessel might have been seized and prosecuted in
the Exchequer, and so the question might have been brought to a judicial
decision. It was done in the case of Scott qui tam v. Schwartz, Coin.
677, cited in the argument. By the way, I do not understand upon
what ground the case of Butler was distinguished from  Collet's case,
unless Butler has been expressly discharged from his allegiance by Act
of Parliament, in consequence of our acknowledgment of the independence
of the United States.  They were both natural-born subjects, they were
both adopted subjects of the United States, and it is to be said of both
Nemo patriam  in qua natus est exuere, nec leyeantie debitrum  ejurare
possit. It was observed by Lord Hale, that a natural-born subject of this
country may by foreign neutralization entangle himself in difficulties and
a conflict of duties.  So may the naturalized or denizen subject of
the King of Great Britain.  Yet it is clear, that we and all the civilized nations and States of Europe do adopt (each according to their
own laws) the natural-born subjects of other countries.  So as I take it,
Vattel puts it in the passages referred to. Our laws give certain privileges and withhold certain privileges from our adopted subjects, and we
may naturally conclude, that there may be some qualification of the
privilege in the laws of other countries.  But our resident denizens are
entitled, as I take it, to all sorts of commercial privileges which our
natural-born subjects can claim.  We should consider them as English
in the language of the Navigation Act. The United States do undoubtedly consider their adopted subjects as subjects of the United States
within their laws. And I take it that we should consider their adopted
subjects, if they happen not to be natural-born subjects of the King of
Great Britain, as subjects of the United States within our navigation laws.
To this proposition I take case of Scott v. Schwartz, to be in point, if it
wanted an authority. The case now begins to work itself clear. It
comes to this question: what difference does the circumstance of the
adopted subject of the United States being a natural-born subject of the
King of Great Britain make?  Is there any general principal in the law
of nations (out of which this adoption of subjects seems to have grown)
that in the parent State the adopted subject is incapable of enjoying the
privileges which have been conceded by the parent State to the other subjects of that State which has adopted him? I know of no such disabling
principle. Let us then come to our own municipal law. Lord Hale
says foreign naturalization may involve the natural-born subject in a conflict of duties.  This is eloquence but not precision.  What are the duties
of which there may be a conflict? Our laws pronounce, that if there
should be war between his parent State and the State which has adopted




APPENDIX.                            349
him, he *must not arm himself against the parent State.  Perhaps
they go further and say, that if he is here he may be prevented [516]
from returning to his domicil in the State which has adopted him: that
if he is there, he must on receiving the King's commands under his privy
seal, return hither on pain of incurring a contempt and penalties consequent upon it. Whether the proclamation which has been introduced
into this cause will have the same effect as a privy seal served upon the
party, is a question not necessary to be here discussed.  It cannot have
a greater effect, nor an effect of a different nature, and may therefore be
laid out of the case. Our municipal laws may attach upon him in some
other cases, but I conclude in no instance which by analogy can govern
the present case, because I have heard of no such argument from analogy.
Upon what authority then is it said, that a natural-born subject of the
King of Great Britain shall not trade to the East Indies, though he is
an adopted subject of another country whose subjects in general are
allowed to trade to the East Indies?  Shall it be enough to say the rest
of the King's subjects are not allowed to trade to the East Indies, and
therefore y6u being the King's subject shall not?  He will answer, I
have the privilege which the rest of the King's subjects have not. I am
the King's subject, but I am also the subject of the United States, and
Great,-Britain has granted to the subjects of the United States that they
may trade. He may add, I violated no law of my parent State, in procuring myself to be received a subject of the United States.  She encourages the practice, for she herself adopts the subjects of other States.
Why then are the fruits of my adoption to be withheld from me? If it
be said to him, you a British subject ought not to trade to the loss and
injury of the East India Company who have a monopoly, he may say,
the subjects of the United States may and ought to carry on this trade
under the authority of the laws of this country; under the authority
of the same laws which gave to the East India Company their monopoly.  If the Company sustain a loss, it is damnumn sine injuria.
In short, it being once granted that a natural-born subject of the King
of Great Britain may become a subject of the United States, there can
be no breach of moral, political, or legal duties, no conflict of duties in
claiming or exercising the privileges which belong to that character.
The same train of reasoning, in my judgment, goes to prove that it is
not yet sufficiently established to be now taken for clear law upon the
ground of which we ought to declare these contracts void, that a naturalborn subject of the King naturalized, or otherwise adopted as a subject
by a foreign State, is not to be considered within our navigation laws as
a subject of that foreign State when acting in the character of the master
of a vessel belonging to the subjects of that foreign State.  Such a man
is certainly to many purposes, " of that country or place" *which
are the words of the Navigation Act, and " a subject of the United [517]
States," which are the words of the stat. 37 Geo. III. c. 97.  In point
of title to this character of subject, he is sufficiently so within our navigation laws. I mean that he is sufficiently adopted, according to the
case in Comyns, to be considered a subject of that country within our
navigation laws, supposing his claim not to be repelled by his being a




350   PHILLIMORE ON INTERNATIONAL LAW.
natural-born subject of Great Britain. I am not prepared to say, highly
as I respect the authority of those who held that opinion, that this character of natural-born subjects will control or suspend the legal operation
of that of a subject of the United States.  There is here no conflict of
duties.  Both characters may stand together; and if some political inconveniences, such as those suggested in the argument before us, (though
these seem very remote,) should follow, yet if these inconveniences are
not of consequence enough to prevent the practice of the adoption of subjects by Great Britain and every other State in Europe, we cannot satisfy
ourselves that they ought to control the legal consequences of that adoption.  We are of opinion that there is no error in this judgment, and that
it ought to be affirmed.'                "' Judgment affirmed."(q)
No. 5.
THE JONGE JOSIAS.(r)
"o THIs was a Danish ship, which with several others had been seized
by Admiral Berkley, in the Tagus, on the 24th of February, 1809, and
sent to England for adjudication. In the first instance a claim of territory had been advanced by the Portuguese Consul, but that was withdrawn,
and the question now arose upon a claim which had been given in on
behalf of the master for three eighth parts of the ship, his property, as
protected under the XVIth Article of the Convention of Cintra. The
article provides' that all subjects of France, or of Powers in friendship
or alliance with France, domiciliated in Portugal, or accidentally in the
country, shall be protected; their property, of every kind, moveable and
immoveable, shall be respected; and they shall be at liberty either to
accompany the French army or to remain in Portugal.  In either case
their property is guaranteed to them, with the liberty of retaining or of
disposing of it, and of passing the produce of the *sale thereof
I*518] into France, or any other country where they may fix their residence, the space of one year being allowed them for that purpose.  It is
fully understood, that shipping is excepted from this arrangement, only
however in so far as regards leaving the port, and that none of the stipulations above mentioned can be made the pretext of any commercial speculation.' It was stated in the claim, that the ship entered the port of
Lisbon some time in August 1807, prior to the declaration of hostilities
on the part of England against Denmark, and also prior to the occupation
of Lisbon by the French, and that she remained there unmolested until
she was seized by Admiral Berkley.
", On behalf of the Claimants. —A letter from Admiral Cotton, who
commanded off the Tagus in August 1808, was relied on to show that he
had not acted against these vessels after, or in consequence of the Convention of Cintra; and it was contended generally, that as these -Danish
masters were the subjects of a Power in amity with France, and accident(q) Mr Justice Buller was absent from the 20th, and Mir. Justice Heath from the
24th of April to the end of the term, from indisposition.
(r) 1 Edward's Admiralty Reports, 128-134.




AP P END IX.                          351
ally in the country, they came fairly within the simple construction of
the Treaty, and were entitled to protection under it so long as they remained in port.  That the only exception with respect to shipping related
to their quitting the port, and that it was clear, from the exception itself,
that property of that description was within the intent and meaning of
the contracting parties.
"c For the Captors.-It was urged that the proviso as to shipping must
be taken with reference to the context, and could have this meaning only;
that if any persons included in the preceding part of the article happened
to be possessed of any property in shipping, the protection should also extend to that description of their property. That the article evidently referred to such persons as were adherents to the French cause in Portugal,
and not to persons going there on other grounds and with other views.
That the permission to dispose of the property, and to pass the proceeds
into France, or any other country where they might fix their residence,
showed that the article was not intended to apply to this description of
persons.  That it was an interpretation sufficiently large to admit that it
extended to all persons holding connection with the French during the
time they were in possession of the country, and could not be extended
to cases not in the contemplation of the contracting parties, nor within
the sound interpretation of the words employed in the instrument which
they had constructed.
-a JUDGMENT.
"Sir William Scott.-' I am called upon to decide this question, and
every consideration of public policy and of tenderness for the parties interested, makes it proper for me not to delay giving the opinion of the
Court upon the legality of the claim which has been submitted to its consideration.  In the first instance, a claim* was given by the Por- [*519]
tuguese Government for these vessels, as having been taken in
violation of the territorial rights of that nation. But it has been withdrawn, and consequently there is an end of any protection which these
Danes can derive from a pretension so introduced, it being an established
law that the claim of territorial right can be advanced only by those to
whom the territory belongs; the subjects of other States can do no more
than refer themselves for redress to the neutral Power under whose rights
they hoped to find protection.  The parties, however, have set up a claim
under the stipulations of the Convention of Cintra, which, it is assumed,
are applicable to the property of these Danish masters of vessels.  Now
I think there is a question preliminary even to this, namely, whether the
stipulations of a Treaty can be set up by those who were not parties to it.
The French, who were parties to the Treaty, might undoubtedly, though
they are enemies, contend for that construction which they might allege
was in the intent and meaning of the contracting parties at the time, and
they have a right to demand the application of the Treaty so construed,
to those persons on whom they meant to confer protection. But whether
others who have no rights as parties to that Treaty, but who are indirectly benefited by it, are competent to contend for its fulfilment, is, I
think, more than doubtful. Taking it, however, that these Danish masters




352   PHILLIMORE ON INTERNATIONAL LAW.
are competent to claim under the Treaty, the question then is, whether
the construction here contended for, is that which the Court would be
warranted in adopting. For although the Court might be disposed to put
a favourable interpretation upon the articles of the Treaty, it is bound
to construe them according to their natural and fair meaning, and not
to impose upon the contracting parties stipulations which were never in
their contemplation.  The business of the Court is to expound and explain, not to frame original Treaties. Now it is a feature of the Convention of Cintra, very illustrative of its real character, that it is a Treaty for
the military evacuation of Portugal by the French army, and that the
parties to it are the commanders of the respective armies. That is a circumstance which impresses a strong conviction that this Treaty has no
direct reference to maritime interests, and ought not to receive such an
application, unless it is distinctly expressed.  If there are any articles
pointing to the immunity of these vessels, the Court would be inclined to
give them full effect and not to construe them with a punctilious hesitation and scrupulosity, respecting the competence of the authority under
which they were framed.  But in general, the fact that it was drawn up
by military persons, and for great military purposes, does give the Treaty
a character which is useful as expository of its true meaning.  The maritime department was separate and distinct, and under a distinct authority;
unless, therefore, there are articles that do expressly point to maritime
[:520] objects, it is *reasonable to conclude that they were not in the
contemplation of the parties themselves.  Taking that as a fair
rule of exposition, I am to consider the effect of the XVIth Article of the
Treaty, as applied to the claims of the masters of these Danish vessels,
which were lying in the Tagus at the time; and it would certainly be a
singular circumstance if the French generals had stipulated for the protection of the property of these persons who happened to be upon the
spot, amounting only to a small part of the vessels, without making any
provision for the remaining parts of those vessels, which were equally the
property of the allies of France, though not personally in Portugal at that
time.  The words of the article are these, " that the property of persons
domiciliated, or accidently in the country, shall be protected;" and under
this description it is said, that these persons are to be considered as being
accidentaly in the country, and that therefore they come within the provisions of this article. The words are certainly large, but I must again
refer to what I before observed, that this is a Treaty applicable to military
affairs, to the exclusion of every object of maratime policy.  Under the
terms "domiciliated,'  these Danish masters certainly do not come: do
they then under the other description of persons c"accidentally in the
country?"  If these words stood alone, with the strong disposition I feel
to give them the most favourable construction, I should, though not perhaps without doing some violence to their meaning, be inclined to hold
that these persons, being on board their ships in the port of Lisbon,
might be included under the terms "caccidentally in the country."  I
should under that disposition be inclined to hold, that the word 4" accidentally" applied to all persons in a situation contra-distinguished from
domiciliated, though perhaps more immediaeely to persons attending on




APPENDIX.                            353
the armies, or on visits, or residing there for the purposes of business,
pleasure, or curiosity. It would require, however, all the indulgence,
which I admit the personal circumstances of the case call for, to include
under the description, masters of ships coming merely to the port, and not
to the country. But when I look to the context, I think it results in
the clearest manner, that the words never were intended to convey such
a meaning; for how does the article go on? "vThat they shall be at
liberty to remain in Portugal, or to accompany the French army."  That
is the alternative: now what kind of option is this, what prospect does
the permission to accompany the French army, or to remain in Portugal,
hold out to these Danish masters?  They could only remain by giving up
their vessels and their employment; and as to following the French army,
it is quite ridiculous, when applied to persons so circumstanced. The
article then goes on in the same strain, " that they shall be protected, and
may be at liberty to transfer themselves to France, or any other country,
in which they may wish to fix a residence."  Now these are persons
*who have a fixed residence already in their own country; they  521
have no wish to remove to France, which is entirely out of all [*521
contemplation with them, or to any other country but their own; they
have no intention of disposing of their shares in these vessels, still less
of remaining in Portugal.  Neither the one nor the other of these alternatives can, without a ludicrous perversion of the terms, be applied to
these persons, or to the property of masters of vessels, who come to the
port only to go back again, and it is evident that they were wholly out
of the view of the contracting parties. Then follow the words "c shipping
is included" in this article, which has very justly been described as
clouded in some of that obscurity which hangs over no small portion of
this Treaty. But I do not understand those words as enlarging the description of persons meant to be benefited. The interpretation which I
put upon the words is this: there are a great number of foreign merchants
residing at Lisbon, many of whom are possessed of shipping, and the ships
of such persons who are themselves protected by the preceding part of
the article to which these words must refer, are to be protected also; it
being stipulated that if they send the ships out to sea, they shall " not
carry off their property without being under the view of those who have
a right to guard against any abuse of the indulgence." Under these considerations, and not without considerable pain, I feel myself bound to
construe the Treaty in a manner unfavourable to the claimants, and to
hold that it does not extend to the protection of their property in these
vessels, which I am satisfied was not within the view of the persons who
framed the Convention.  There are circumstances in the case which entitle this unfortunate class of men to the utmost indulgence from  those
who may be ultimately benefited; but at present it is my public duty
to pronounce that their property in these vessels is not protected under
the Treaty.'"




3 4   PHILLIMORE ON INTERNATIONAL LAW.
No. 6.
SUTTON V. BSUTTON.(s)O
Under the Treaty of 1794, between Great Britain and America, and the Act of the
37 Geo. 3, c. 97, American citizens who held lands in Great Britain on the 28th
of October, 1795, and their heirs and assigns, are at all times to be considered,
so far as regards these lands, not as aliens, but as native subjects of Great
Britain.
4"THIs was a bill for the specific performance of a contract; and the
Master having reported against the title, an exception was taken to his
report, which now came on to be argued.
"cThe title of the vendor was derived under a conveyance from  a
citizen of America; and the question was, whether, under the circumstances of this cases and in relation to the property which *was
the subject of the contract, an American citizen was to be deemed
an alien?
" Samuel Strudwiclk, before and at the time of the separation of the
United States of North America from  Great Britain, was settled in
North Carolina, and he continued to reside there, as an American citizen,
till his death in 1794. By his will, dated in that year, he devised to'his good friend Margery, widow of Stephen, lately living at
Fulham in England, his houses and lands in the city of London, in trust
to be sold, when Mr. Vaughan's annuity shall drop in, and the moneys
arising from such sale to be employed as therein mentioned:' and, after
bequeathing two small annuities, he gave the residue of his real and
personal estate to his son William  Francis Strudwick.  A part of this
testator's property consisted of an undivided share of certain tenements
in the city of London, which were the subject of the present suit. A
person of the name of Margery Bourget was considered to be the devisee
referred to in the will: she declined to carry the trust into effect, or to
interfere in the management of the property, and was said to have
died about the year 1806. William Francis Strudwiek, the heir at law
and devisee of Samuel, was an American citizen, and died intestate in
the year 1810, leaving Samuel Strudwick, also an American citizen, his
eldest son and heir at law. In 1819, the last-mentioned Samuel Strudwick sold and conveyed his undivided share of the tenements in the city
of London; and upon this conveyance the title of the vendor depended.
" One of the objections taken to the title was in the following words:
-- That Samuel Strudwick, the vendor, in 1819, of two eighth parts of
the estate, was an alien, and incapable of conveying them, such shares
having been the property of Samuel Strudwick, his grandfather, who
was settled in America at the time of the separation of the two countries
in 1783, and who was alleged to have devised them to his son William
Francis Strudwick, who was an American, and died there in 1810 intestate, leaving the said Samuel Strudwick, the grandson, his heir at law;
and that no proof had been shown that, after the separation, Samuel
(s) 1 Russell & Mylne's Reports, 663.




APPENDIX.                            355
Strudwick, the grandfather, or Willian Francis Strudwick, was a subject
of the King of Great Britain.'
" The question turned upon the construction of the Treaty of Peace
between Great Britain and the United States, signed at London, on the
19th of November, 1794, and of the 37 Geo. III. c. 97., which was
passed for the purpose of carrying the Treaty into: execution.
c" By the first article of that Treaty it was agreed, ( that there should
be a firm, inviolable, and universal peace between Great Britain and the
United States.'
"s The second article, after some regulations relative to the withdrawal
of the British troops, declared,'that the settlers and *traders [523
within the precincts of the posts from which the British troops [523
were to be withdrawn, should continue to enjoy their property of every
kind, and be at liberty to remain there, or to remove their effects, and
to sell or retain their lands and property at their discretion; that such
of them as should continue to reside within the boundary line, should
not be compelled to become citizens of the United States, or to take any
oath of allegiance to the Government thereof, but should be at full
liberty so to do, if they thought proper, and should declare their election
within one year after the evacuation aforesaid; and that all persons who
should continue there after the expiration of the year, without having
declared their intention of remaining subjects of His British Majesty,
should be considered as having elected to become citizens of the States.'
i" The third, fourth, and fifth articles related to the boundaries of the
new States, the navigation of the rivers, &c.; and the sixth, seventh, and
eighth, to the adjustment of the pecuniary claims of individuals.;" The ninth article enabled the subjects of either country to hold lands
in the other, and to sell and devise them as if they were natives. The
terms of it, relative to Americans holding lands in England, were,' that
American citizens, who then held lands in the dominions of His Majesty,
should continue to hold them according to the nature and tenure of their
respective estates and titles therein, and might grant, sell, or devise the
same to those whom they should please, in like manner as if they were
natives; and that neither they, nor their heirs or assigns, should, so far
as might respect the said lands and the legal remedies incident thereto,
be regarded as aliens.'
" And by the tenth article it was stipulated, ( that neither debts due
from individuals of the one nation to the individuals of the other, nor
shares nor moneys which they might have in the public funds or private
banks, shall, even in any event of war or national differences, be sequestrated or confiscated; it being unjust and impolitic that debts and
engagements contracted and made by individuals having confidence in
each other, and in their respective Governments, shall ever be destroyed
or impaired by national authority, on account of national differences and
discontents.'
i" The subsequent articles of the Treaty, down to the twenty-eighth,
contained various stipulations relative to navigation, and the mutual
delivery up to justice of persons charged with murder or forgery. The
twenty-eighth article declared,'that the first ten articles of the Treaty




356      PIHILLIMORE  ON INTERNATIONAL LAW.
should be permanent, and that the subsequent articles, except the twelfth,
(which related to the intercourse with the West Indies, and was to continue in force for two years after the then war,) v should be limited in
their duration to twelve years, to be computed from the day on which
*,524z] the ratifications *of the Treaty should be exchanged, subject to
the renewal of the negotiations at a period therein mentioned;
but if His Majesty and the United States should not be able to agree
on a new arrangement, in that case all the articles of the Treaty, except
the first ten, should then cease and expire together.'
"In 1797, the 37 Geo. III. c. 97, was passed, which is intituled,
An Act for carrying into execution the Treaty of Amity, Commerce,
and Navigation, concluded between His Majesty and the United States
of America.'  It contained the following clauses:"'Sect. 24. And whereas by the ninth article of the said Treaty, it
was agreed that British subjects who then held lands in the territories
of the said United States, and American citizens who then held lands
in the dominions of His Majesty, should continue to hold them according
to the nature and tenure of their respective states and titles therein, and
might grant, sell, or devise the same to whom they should please, in
like manner as if they were natives; and that neither they nor their
heirs or assigns should, so far as might respect the said lands and the
legal remedies incident thereto, be regarded as aliens: be it therefore
enacted by the authority aforesaid, that all lands, tenements, and hereditaments in the kingdom of Great Britain, or the territories and dependencies thereto belonging, which, on the said 28th of October, 1795
(being the day of the exchange of the ratification of the said Treaty
between His Majesty and the said United States,) were held by American
citizens, shall be held and enjoyed, granted, sold, and devised, according
to the stipulations and agreements contained in the said article; any
law, custom, or usage on the contrary notwithstanding.
"'Sect. 25. Provided always, that nothing herein contained shall
extend, or be construed to extend, to give any right, title, or privilege
to any person, not being a natural-born subject of this realm, which
such person would not have been entitled to if this Act had not been.
made, other than and except such rights, titles, and privileges as shall
be necessary for the true and faithful performance of the stipulations in
the said article contained, according to the true intent and meaning
thereof, or to give to any person, not being either a natural-born subject of
this realm, or a citizen of the said United States, any right, title, or
privilege to which such person would not have been entitled if this Act
had not been made.
"' Sect. 27. That this Act shall continue in force so long as the said
Treaty between His Majesty and the United States of America shall
continue in force, and no longer.'
c'This Act was continued by the 45 Geo. III. c. 35, which, after
reciting that the 37 Geo. III. c. 97,  was to continue in force so long as
the said Treaty should continue in force, and no longer, which Treaty,
*5253 or so much of it as relates to the matters cbntained in the said
Act, has now ceased and determined: and it is expedient that




APPENDIX.                            357
the liberty of navigation and commerce between the people of this
kingdom  and the people of the United States of America should continue for a limited time, in the same manner and under the same limitations and conditions as are specified in the said Act,'-enacted that' the
said Act, and every thing therein contained, shall, notwithstanding the
said Treaty has ceased and determined, be deemed and taken to be and
to have been in full force and effect, and shall so continue in force until
the 1st of June, 1806.'
" The 37 Geo. III. c. 97, was subsequently continued from time to
time by the 46 Geo. III. c. 16, and 47 Geo. III. sess. 2, c. 2, and, finally,
by the 48 Geo. III. c. 6, to the end of the then present session of Parliament. That session terminated in the same year; and no Act was afterwards passed to revive or prolong the operation of the Treaty.
" The point argued was, whether the twenty-fourth section of the 37
Geo. III. c. 97, taken in connection with the ninth article of the Treaty,
continued in operation, so as to remove the incapacity of holding and transmitting lands in England which would otherwise have attached on William
Francis Strudwick and Samuel Strudwick, the grandchildren, as aliens.
"' Mr. Bickersteth, Mr. Pemberton, Mir. Tyrrel, Mr. Wright and Mr.
Wood, in support of the objection to the title.
", The Treaty of 1783 dissolved the tie of allegiance which had previously
subsisted between the Crown of England and the individuals who then
became American citizens; they and their descendants, born out of the
British Dominions, were thenceforth aliens; and, accordingly, Doe v.
Acklam,(t) has established, that a person born in the United States since
1783, cannotinherit lands in England. Doed. Auchmuty v. Mulcaster.(u)
William Francis Strudwick, and Samuel Strudwick, the grandson, were
clearly aliens.  The only distinction between the present case and that
of Doe v. Acklam is, that the freehold of the tenement in question was
not in an English subject on the 28th of October, 1795, but in an American citizen.  Now it is true, that, as to such lands, the incapacity of
alienage was removed by the 37 Geo. III. c. 97; and so long as that
statute was in operation, American citizens might hold, grant, sell, or
devise these lands'in the same manner as if they were natives.  But by
the twenty-seventh section the Act is to continue in force only so long
as the Treaty shall be in force, and no longer; and the single question
therefere is, whether the Treaty was or was not in force in 1819. On
this point we have a legislative declaration in 1805.  *The 45 [526
Geo. III. c. 35, says in the preamble,'which Treaty, or so [526
much of it as relates to the matters contained in the said Act (i. e. the
37 Geo. III. c. 97,) has now ceased and determined;' and, among the
matters contained in the said Act, was the stipulation for excluding the
incapacity arising from  alienage; and the same statute declares in the
enacting clause, that,' the said Treaty has ceased and determined.'  By
that statute, and two subsequent Acts, the 37 Geo. III. was revived, both
retrospectively and prospectively; but it finally expired with the session
of 1808.  In 1812 war broke out between the two countries, which con(t) 2 B.&C. 779.                   (u) 5 B. & C. 771.




358   PHILLIMORE ON INTERNATIONAL LAW.
tinued to rage till a new Treaty was concluded in 1814.  It is impossible to suggest that the Treaty was' continuing in force' in 1813; it necessarily ceased with the commencement of the war. The 37 Geo. III. c.
97, could not continue in operation a moment longer, without violating
the plainest words of the Act.  William Francis Strudwick became then
and remained ever afterwards subject to all the incapacities of alienage.
"- It was said before the Master, that the first ten articles of the Treaty
were to be' permanent,' which was construed as synonimous with ( perpetual;' but that is a construction which the twenty-eighth article does
not admit of. The very first article is,' that there should be a firm and
universal peace between Great Britain and the United States;' that is
the first of the articles supposed to be ever-enduring. Yet what became
of it in 1813? There are many of the stipulations of the first ten articles
which could not possibly be observed in a state of war. The word' permanent' is used, not as synonimous with' perpetual or everlasting,' but
in opposition to a period of duration expressly limited.  The greater
number of the articles of the Treaty were to cease at the expiration of
twelve years; the first ten were not to expire then, by the mere lapse of
time, they were to continue so long as a Treaty of peace was in force;
but when war took the place of peace, and the Treaty had no longer any
existence, the ninth article could not continue in operation.," Even if it were to be held, in consequence of the language of the
twenty-eighth article, that the intention of the framers of the Treaty was
to make the ninth article perpetual, there is nothing in the Act of Parliament to give it that endurance.  The Act makes no mention of the twentyeighth article of the Treaty, which remains, therefore, a mere stipulation
of the Crown, and cannot create or extend an exemption from any disability imposed by the law of the land. The continuance of the exemption could not be prolonged beyond the duration of the Act: the Act
was to endure only so long as' this Treaty,' that is, the Treaty of amity,
commerce, and navigation concluded between His Majesty and the United
States of North America, should be in force; and, most unquestionably,
that Treaty was not in force, when His *Majesty and the United
[*527] States were carrying on hostilities against each other both by sea
and land.
"c The construction contended for on the other side would lead to most
inconvenient results. One consequence of it would be, that all the lands
which, on the 28th October, 1795, belonged to Americans, are taken for
ever out of the operation of the general law of England, and may, in all
time to come, be transmitted to aliens by descent, devise, or conveyance.
", Mr. Wigram, in support of the same line of argument, submitted
that the Treaty could not be deemed to be in force, unless it was in force
as a whole; that it could not be in force as a whole, after the most important provisions in it had been broken; and, on the contrary, that it
ceased to be in force as a whole, when the peace, the stipulation for
which constituted the basis of the arrangement, was exchanged for a state
of war.  He cited Vattel,(x) —'We cannot consider the several articles
(x) Book ii. e. 13, s. 202.




APPENDIX.                            359
of the same Treaty as so many particular and independent Treaties: for,
though we do not see the immediate connection between every one of these
articles, they are all connected by this common relation, that the contracting Powers pass them with a view to each other, by way of compenpensation. I should never, perhaps, have passed this article, if my ally
had not granted me another, which, in its own nature, has no relation to
it. Every thing comprehended in the same Treaty has then the force
and nature of reciprocal promises, at least if they are not excepted in due
form.  Grotius says, very well, that all the articles of a Treaty have the
force of conditions, which by a default are rendered null.'
" Mr. Preston and Mr. Dixon, Mr. Tinney and Mr. Garratt, in support
of the title.
" The Treaty contains articles of two different descriptions; sonime of
them being temporary, and others of them being intended to be of perpetual obligation. Of those which were temporary, some were to last
for a limited period; such as the various regulations concerning trade
and navigation; and some were to continue so long as peace subsisted,
but being inconsistent with a state of war, would necessarily expire with
the commencement of hostilities.  There were other stipulations, which
were to remain in force in all time to come, unaffected by the contingency
of peace or war. For instance, there are clauses for fixing the boundaries
of the United States.  Were the boundaries so fixed to cease to be the
boundaries the moment that hostilities broke out? The tenth article provides that debts due to individuals, and moneys which they may have in
the public funds or private banks, shall not be confiscated in the event
of war: that is a stipulation which, from the nature of things, as well as
from the plain import *of the terms, was to be a binding obliga- [*528]
tion in war as wellas peace; for it was only to a state of war that [ 
it was at all applicable; and, in sound construction, a similar force must
be given to the immediately preceding article, on which the present question arises. It was intended to provide for the inconvenience which must
naturally arise from  the division of one empire into two independent
States, the subjects of each of which held property situated within the
territorial limits of the other; and with that view, it declares that Ame.
rican citizens, who then held lands within the dominions of His Majesty,
should continue to hold them, and have power to grant, sell, or devise
them as if they were natives, and that neither they, nor their heirs or
assigns, should, in respect of their lands, be regarded as aliens. The
effect of it is to exclude, and to exclude for ever, the principle of alienage
as to certain persons and certain lands: there is no limitation to its operation; it is not confined to a state of peace, or to the individuals who
then held the lands; it includes their heirs and assigns: they, their heirs
and assigns, are, with respect to such lands, to be considered as natives;
and being considered as natives, their title to hold the lands could not be
affected by the breaking out of war between the two countries.  The
twenty-fourth article tends still further to show that some of the stipulations, and among these the ninth article, were meant to be of perpetual
endurance.'" Now the effect of the twenty-fourth section of the Act of Parliament




360    PHILLIMORE ON INTERNATIONAL LAW.
is to give the force of law to the ninth article of the Treaty; and if that
article, according to the sound construction of the Treaty, was to be of
perpetual obligation, the enactment of the legislature, carrying into effect
that which the King had agreed to do, but which his prerogative was not
competent to accomplish, has declared that Americans who held lands
within the dominions of HIis Majesty on the 28th of October, 1795, their
heirs and assigns, shall in all time to come hold and enjoy them as
natives. It is true that the twenty-seventh section has said, that the
Act shall continue in force only so long as the Treaty of peace continues
in force; but that section must necessarily be confined to those stipulations which were either of limited duration, or were in their nature such
as to be entirely dependent on the existence of peace.
" It has been argued, that recitals contained in the 45 Geo. III. c. 35,
and the two subsequent acts, have put a legislative construction on the
37 Geo. III. c. 95, and have declared that the Treaty, and consequently
the latter Act, had ceased and determined. But the operation of a statute is not to be restrained by the recital of a subsequent statute.  Dore
* v. Gray.(y)  Besides, *the acts of the 45 Geo. III. and the fol[ U2g] lowing years, contemplated only those provisions of the Treaty
which related to commerce and navigation,'and were to expire at the end
of twelve years, unless they were expressly renewed for a further period.
"The ninth article was more beneficial to English subjects than to
American citizens; and any restriction of its fair operation would be a
public mischief, inasmuch as it would naturally lead America to adopt
a similar restriction of the reciprocal privilege granted to subjects of the
British Crown.
"t Suppose that an American citizen who, on the 28th October, 1795,
held lands in England, died, leaving an elder son born in America, and
a younger son born in England. Had the Treaty and the Act not been
made, the younger son, on the father's death would have inherited the
lands: under the Treaty and the Act the eldest son was heir, and as
such entitled to the property.  Is it to be said that, if a war afterwards
break out, his interest is to cease, and a title is to accrue to the Crown,
which never could have had a pretext of claim, if the devolution of the
property had been regulated by the Common Law?
i" Mr. Bickersteth, in reply.
"c The Master of the Rolls.
"'The relations which had subsisted between Great Britian and
America, when they formed one empire, led to the introduction of the
ninth section of the Treaty of 1794, and made it highly reasonable that
the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjoyment of their
landed property, and the privileges of natives being reciprocally given,
not only to the actual possessors of lands, but to their heirs and assigns,
it is a reasonable construction that it was the intention of the Treaty
that the operation of the Treaty should be permanent, and not depend
upon the continuance of a state of peace.
(y) 2 T. R. 365.




APPENDIX.                            361
"' The Act of the 37 Geo. III. gives full effect to this article of the
Treaty in the strongest and clearest terms; and if it be, as I consider
it, the true construction of this article, that it was to be permanent, and
independent of a state of peace or war, then the Act of Parliament
must be held, in the twenty-fourth section, to declare this permanency;
and when a subsequent section provides that the Act is to continue in
force so long only as a state of peace shall subsist, it cannot be construed
to be directly repugnant and opposed to the twenty-fourth section, but
is to be understood as referring to such provisions of the Act only as
would in their nature depend upon a state of peace.,"I am of opinion, therefore, in favour of the title, and consider
that the heirs and assigns of every American who held lands in Great
Britain at the time mentioned in the Act of the 37 Geo. III. are, as
far as regards these lands, to be treated, not as aliens, but as native
ubjects.'
*No. 7.                        [*530]
MALTASS V. MALTASS.(Z)
(Judgment by Dr. Lushingzton)
"'THE present inquiry relates to the personal property of John
Maltass, who died at Smyrna, in the year 1842.  The case comes on
for judgment on an allegation, given in on behalf of a son, propounding
a- will executed in the year 1834; the only evidence in the cause being
the answers of the widow, the other party in the cause.
"' i My attention must be first directed to what I consider the admitted
facts of the case. The deceased was born at Smyrna, of English parents,
who must, I think, be presumed to have been born British subjects. The
deceased is admitted to have passed his boyhood in England for the purpose of his education; he went back to Smyrna where his father was
engaged in trade. The deceased for many years was occupied in commercial
pursuits, and was a member of a firm established at Smyrna, but which
was dissolved a considerable period before his death.  Whether the
deceased, up to the period of his death, or even during the latter years
of his life, was engaged in trade, I find no evidence, save that he
described himself as a British merchant in his will; I have looked to
the estimates of his property during the latter period of his life, I find
some dark indicia that he was engaged in commercial concerns, but
nothing to lead to a legal conclusion that he was engaged in trade at
the time of his death. He married at Smyrna, was constantly resident
there, and died there, leaving a widow and several children.
"  I have to determine, upon these facts, what is the law to govern
the succession to his personalty-the law in this respect being the same,
whether he has died testate or intestate. The first question I propose
to consider is, whether, laying aside the question of domicil, the deceased
was or not a British subject? Now assuming him to have been born of
(z) Robertson's Ecclesiastical Reports pp. 70-81. See also, 3 Curteis, 231.
DECEMBER) 1855.-24




862      PHILLIMORE  ON  INTERNATIONAL  LAW.
parents who were British subjects, the deceased, although born abroad,
would be a British subject, and would owe allegiance to the Crown of
Great Britain, and this, whatever might be the domicil of his parents or
of himself; the only excepted cases that I know of are those of the
peculiar instances of the children of persons whose domicil was in the
United States, prior to the acknowledgment of the independence of
America.  Such are the cases of Doe v. Aclom(a) and Doe v. Mulcaster.(b)
[ "' The next question is, where was the deceased domiciled? for'531] *I take it not to be denied, that the law of domicil must in
some shape govern the succession.  But this inquiry will become
unnecessary if it should turn out that, with respect to this individual
succession, the law of Great Britain and of Turkey is the same; for
when we speak of the law of domicil, as applied to the law of succession, we mean, not the general law, but the law which the country of
domicil applies to the particular case under consideration. Such law
may be totally different as applied to a natural-born subject of the
country, as exemplified in the case of Collier v. Rivaz.(c) There the
testator died domiciled in Belgium; but, by the Belgian law, the succession in that case was not to be governed by the law of Belgium, applicable to natural-born subjects, but by the law of that country, applicable
to an English-born subject dying domiciled in Belgium.
" ('Assuming, therefore, that the deceased died domiciled at Smyrna,
the first point is,-what is the law of Turkey as to British subjects
dying domiciled there?  This depends on the construction to be put on
the Treaties between Great Britain and the Porte.  The leading object
of these was to protect British subjects trading to Smyrna, and, with
this view, to modify the law of Turkey so as to ensure them justice, so
far as could be attained.  It is, I think, perfectly clear, from the Treaty,
independent of all historical facts, that a residence in Smyrna by a
British merchant was contemplated, and, if the contracting parties have
provided for the case of residence, it seems necessarily to follow, that
they must have intended to provide for the case of domicil, if domicil in
Turkey could be acquired by the same means as in other countries.
Judge Story says:-" That place is properly the domicil of a person in
which his habitation is fixed without any present intention of removing
therefrom."  If this be applicable to a domicil in Turkey, such a case
must have occurred in the course of trade; and, therefore, I conceive it
must, in legal contemplation, have been included when the parts of the
Treaty applicable to British subjects trading in Turkey came to be considered. I the more incline to this opinion, because, however short
might have been the residence of British merchants in Turkey in the
earliest times, the fact of their permanent residence for many years is
undoubted, and some of the Treaties bear date long after such permanent residence existed. It never could, I think, be supposed that
the Treaties did not intend to protect British merchants, either com(a) 2 Barnwell & Cresswell, 779.                    (b) Ib. 771.
(c) 2 Curteis, 855.




APPEND IX.                            363
posing a house of trade, or carrying on business singly, who for years
together resided in Smyrna, having no other habitation, and without any
intention of quitting Smyrna, or, in other words, domiciled according to
Judge Story's definition.
"'If it be contended, that, at the time of concluding the Treaties,
*neither party thought of British subjects domiciled in Smyrna,
that may perhaps be true, for little indeed was known or thought [*532
of domicil, in the legal *sense of the term, in those early times; but if
the words of the Treaty are sufficient to cover the case, and if the object
of the Treaties was to apply to all British merchants, then the application to a state of circumstances not particularly contemplated, but within
the general scope of the Treaties, would not limit their construction.
It would not be a casus omissus, but simply the use of general terms to
attain a particular object, the particular circumstances which should call
the compact into action not being foreseen; but the general forms
intended to govern all cases falling within the principle, whether seen
or not seen. It appears to me that the passages in the Treaties which I
shall presently cite are so wide in their terms as to comprise all British
merchants resident in Smyrna, and that the only exception (which
proves the universality,) is the case of a British subject becoming a
Mussulman.
"' Perhaps, also, there may be another reason why words distinctly
appropriate to domicil were not used; namely, both parties considered
domicil in that sense all but impossible, because the sense they would
have attributed to it would be a total abandonment of British character.
The reasons why they may have so thought I will presently shortly
discuss.
"' I think, before I close this branch of my subject, that there are
arguments of no small weight leading to this construction of the Treaties.
Even at this day, although so many powerful minds have been applied
to the question, there is no universally-agreed definition of the word
domicil-no agreed enumeration of the ingredients which  constitute
domicil.  This is expressed in the following remarkable language by
Hertius: ~s Verum in iis dej/iniendis mirum est uamcn   sudant Doctores."(d)
Indeed, I think there are no less than fourteen or fifteen different definitions of this word.  The gradation from  residence to domicil consists
both of circumstances and intention; nice distinctions have and must
prevail, such as cannot be defined beforehand.  Hence, if the Treaties
did not apply to domicil, as residence would often become fused into
domicil, British merchants, and, in case of their deaths, their families,
would find themselves suddenly, and contrary to their intention, and to
the presumption of intention, subject to a code of laws wholly contrary
to their religious persuasions, theii feelings, customs, and contemplation
in making arrangements for the we/lfare of themselves and families; and,
be it observed, the law of Turkey would come into operation (if residence became domicil,) not only on property after death, but during
the life; and an individual might be living in Turkey out of the pro(d) 1 Hertius, Oper. s. 4, n. 3, p. 120, (edit. 1716.)




364   PHILLIMORE ON INTERNATIONAL LAW.
tection of any Treaty.  I know not what would be (if the case were
[*533  capable of arising the law  of Turkey applicable *to British
3  merchants so domiciled, but certainly entire subjection to
Turkish laws would be a grievous evil to British merchants of Christian
belief, eudcation, and habits.
"' All these reasons appear to me to operate most strongly in favour
of a liberal and extended construction of the Treaties; in my opinion the
contracting parties never contemplated the anomaly which a contrary construction would lead to.
"' v With regard then to the parts of the Treaties applicable to the question we are now discussing, to wit, whether the Treaties extend to a permanent residence, and not merely to a temporary visit.  The Treaties
commence at an early period, but they are all included in the Treaty of
the Dardanelles (1809.) Now, in the construction of Treaties of this
description, we cannot expect to find the same nicety of strict definition
as in modern documents, such as deeds, or Acts of Parliament; it has
never been the habit of those engaged in diplomacy to use legal accuracy,
but rather to adopt more liberal terms.  I think, in construing these
Treaties, we ought to look at all the historical circumstances attending
them, in order to ascertain what was the true intention of the contracting
parties, and to give the widest scope to the language of the Treaties, in
order to embrace within it all the objects intended to be included.
"' The first begins by stating, " that there had existed a good understanding and an amity between the King of England (Charles II.) and
the Porte. And it was granted to him (Charles II.) that his subjects and
their interpreters might safely and securely trade in these our dominions."
The first article stipulates: " that the English nation and merchants, and
all other merchants sailing under the English flag, with their ships and
vessels, and merchandize of all descriptions, shall and may pass safely by
sea, and go and come into our dominions, without any the least prejudice
or molestation being given to their persons, property, or effects, by any
person whatever."
", At this period one of the objects to be attained, was not simply permission to carry on trade, but protection from the Turkish corsairs and
pirates of that country, and that not merely confined to English merchants,
but extended to all those who should accept the guarantee of the English
flag.
",, Let us look to another part of the Treaty.  The fifteenth article
says: " all Englishmen and subjects of England, who shall dwell or reside in our dominions, whether they be married or single, artizan or merchants, shall be exempt from  all tribute."   These words,"dwell or
reside," clearly contemplate not a temporary but a permanent residence.
I think also that the reference to "married persons" indicates the same
intention, for the residence of persons in that state is generally looked at
as of a more permanent and fixed character than that of mere ordinary
traders.
534  Then it goes on to provide for the establishment of consuls
[534 ] in *the different ports, and " that any dispute between the English themselves shall be decided by their own ambassador or consul;" so




APPENDIX.                            365
that the Treaty contemplates a residence under the protection of national
consuls.
"'Now I do not intend to go through the Treaty in detail: the sixteenth and eighteenth articles relate generally to the privileges granted
to English subjects perfectly distinct from resident Turkish subjects.
The twenty-sixth article provides: "c that in case any Englishman or
other person subject to that nation, or navigating under its flag, shall
happen to die in our sacred dominions, our fiscal and other officers shall
not upon pretence of its not being known to whom the property belongs,
interpose any opposition or violence, by taking or seizing the effects that
may be found at his death, but they shall be delivered up to such Englishman, whoever he may be, to whom the deceased may have left them by
will."  This then, in my opinion, it is perfectly clear, must refer to a
will made according to the law of England, for I am not aware of any
power of testacy by the law of Turkey.  The article goes on: " and if
he shall have died intestate (this means intestate by the law of England)
the property shall be delivered up to the English consul, or if there be
no consul, in that case the property shall be sent over to England in the
next ship." Now this section alone goes the length of saying, not merely
that the property of a person accidentally dying in the Turkish dominions shall be delivered up, but it contemplates the case of a person permanently resident there.  The forty-sixth article contemplates the case
of an Englishman permanently resident in Smyrna.  " If any interpreter
shall die, if he be an Englishman, proceeding from England, all his effects
shall be taken possession of by the ambassador or consul; but if he be a
subject of our dominions, they shall be delivered up to his next heir."
The forty-ninth article speaks of " merchants of the aforesaid nation."
The sixty-first article is to this effect: "c If any Englishman shall turn
Turk, and it shall be represented and proved that, besides his own goods,
he has in his hands any property belonging to another person in England,
such property shall be taken from him, and delivered up to the ambassa.
dor or consul, that they may convey the same to the owner thereof."
"' What is the effect of this article?  If an Englishman turns a Turk,
his property will be governed by the law of Turkey; but if he has in his
hands the property of any Englishman, that will be regulated by the law
of England. So that the case of an Englishman becoming a Turk, and
so becoming subject to the law of Turkey, is contemplated, and "' expressio unius est exclusio alterius."
"' The ninth article of the latter Treaty provides, that English consuls
shall not be named from  among the subjects of the Porte.  Generally
speaking, a consul does not acquire a domicil by residence; *but *535
here a distinction is made between British subjects resident at [535
Smyrna, and those who are not British subjects.' If, then, the Treaty be applicable to British merchants resident or
domiciled, in the ordinary acceptation of the term, in Smyrna, the provisions of the Treaty decide what is to be done in the case of succession
to personal estate, namely, that it is to follow the law of England.
"'  As to the case of Moore v. Budd,(e) I consider that my opinion does
(e) 4 Haggard, 352.




366      PHILLIMORE  ON INTERNATIONAL LAW.
not militate against that case, or the construction of the Treaty with Spain.
This Court was of opinion that the will there propounded was invalid by
the law of Spain, and, though more doubtfully, by the law of England.
It held that the deceased was domiciled in Spain, never mentioning the
Treaty.  Indeed, not even in the argument was the Treaty alluded to,
-no allegation on that point was given in,-no answers were taken; the
King's Advocate of the day declined to argue the point, and not a single
word appears in that case upon the construction of the Treaty.  In my
opinion, then, the effect of the Treaties is, that the law of Great Britain
will operate on property left by a British merchant in the situation of the
deceased;- and I am not aware of any distinction even in the case of an
individual having ceased to carry on trade.
"c  However, I do not wish to conclude myself on this latter point.  I
think the facts of the case, in this respect are meagre; but, in the absence of proof to the contrary, the conclusion I must draw is, that such
is the law of England, as contradistinguished from the law of Scotland;
but I must take care that I do not confuse the case on this point.  I consider the deceased was domiciled in England, and not in Scotland, or in
a colony; for great difficulty would have arisen had the deceased been
domiciled in Scotland, and a new question, if he had been domiciled in
British Guiana.  I take the deceased to be domiciled in England.  The
will last made is a nullity,-it is not properly executed; the will of 1834
must, therefore, receive probate; that will was valid by the law at the
time when it was executed, and nothing that has since passed has had the
effect of revoking it.
9 9'I wish to observe, that I am desirous not to be supposed to have
given an opinion upon any question not necessary to be decided in this
case; my judgment, therefore, does not affect the question of domicil, if
the deceased was, in the legal sense, domiciled in Turkey; and if the law
of domicil does prevail, the law of Turkey, in conformity with the Treaty,
says, that in such case the succession to personal estate shall be governed
by the British law: if he was not domiciled in Turkey, but in England,
then the law of England prevails, proprio vigore.
[*536]   cc tI give no opinion, therefore, whether a British subject can
or *cannot acquire a Turkish domicil; but this I must say,-I
think every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of the Porte.  As
to British subjects, originally Mussulmen, as in the East Indies, or becoming Mussulmen, the same reasoning does not apply to them as Lord
Stowell has said does apply in cases of a total and entire difference of
religion, customs, and habits.
", I pronounce in favour of this will, costs out of the estate''"




APPENDIX.                           367
No. 8.
STATUTES RELATING TO THE RUSSO-DUTCH LOAN.
An Act to carry into effect a Convention made between His Jiajesty and
the King of the Netherlands and the Emperor of all the Russias.( f)
[28th June, 1815.]
WHEREAS by a Convention signed at London on the 19th day of May,
1815, between His Majesty on the one part, and the King of the Netherlands and the Emperor of all the IRussias respectively on the other, the
-following articles, among others, were agreed upon; that is to say, His
Majesty the King of the Netherlands thereby engaged to take upon himself
a part of the capital, and arrears of interest to the 1st of January, 1816, of
the Russian loan made in Holland through the intervention of the House
of Hope and Company, in Amsterdam, to the amount of the twenty-five
millions of florins Dutch currency; the annual interest of which sum,
together with an annual payment for the liquidation of the same as thereinafter specified, should be borne by and become a charge upon the kingdom of the Netherlands; and His Majesty engaged on his part to recommend to his Parliament to enable him to take upon himself an equal
capital of the said Russian loan, vicdelicet, twenty-five millions of florins
Dutch currency; the annual interest of which sum, together with an
annual payment for the liquidation of the same, as thereinafter specified,
should be borne by and become a charge upon the Government of His
Majesty; and the future charge to which his said Belgic Majesty and
His Majesty should be respectively liable in equal shares on account of
the said debt, was to consist of an annual interest of five per centum on
the said capitals, each of twenty-five millions, together with a sinking
fund of one per centum for the extinction of the same, the said sinking
fund being subject however to be increased, on the demand of the Russian
Government, to any annual sum not exceeding three per centum, the
same to be payable till the capital of the *said debt should be {*537]
fully discharged, when the aforesaid charge for interest and sinking fund should wholly cease to be borne by his said Belgic Majesty and
His Majesty respectively; and His said Belgic Majesty and His Majesty
respectively bound themselves, on or before the usual day or days in
each year on which the interest on the said debt should be due and payable, to deposit with the agent of the Russian Government in Holland,
their respective proportions of the said interest and sinking fund, as above
specified: Provided always, that previously to the advance of each successive instalment so to be paid, the said agent shall be authorized to
furnish a certificate to each of the said two high contracting parties, declaring that the preceding instalment had been duly applied in discharge
of the interest, and in reduction of the principal of the said debt, together
with the corresponding payments on account of the Russian Government
on that part of the debt which should remain a charge on the said Government; and it was further agreed, that the Russian Government should
(f) 55 Geo. III. cap. 115.




368      PHILLIMORE  ON INTERNATIONAL LAW.
continue as heretofore to be security to the creditors for the whole of the
said loan, and should be charged with the administration of the same;
the Governments of the King of the Netherlands, and of His Britannic
Majesty, remaining liable and bound to the Government of His Imperial
Majesty, and for the punctual discharge as above of their respective proportions of the said charge; and it was thereby understood and agreed
between the high contracting parties, that the said payments on the part
of the King of the Netherlands, and of His Majesty as aforesaid, should
cease and determine, should the possession and sovereignty (which God
forbid) of the Belgic Provinces at any time pass or be severed from the
dominions of His Majesty the King of the Netherlands, previous to the
complete liquidation of the same; and it was also understood and agreed
between the high contracting parties, that the payments on the part of
the King of the Netherlands, and of His Majesty as aforesaid, should
not be interrupted in the event (which God forbid) of a war breaking out
between any of the three high contracting parties; the Government of
His Majesty the Emperor of all the Russias being actually bound to its
creditors by a similar agreement: And whereas the Commons of the
United Kingdom have resolved that provision be made for enabling His
Majesty to defray the expenses which may be incurred in the execution
of the said Convention: May it therefore please your Majesty that it may
be enacted; and be it enacted by the King's most Excellent Majesty,
by and with the advice and consent of the Lords spiritual and temporal,
and Commons, in this present Parliament assembled, and by the authority
of the same, that the Lord High Treasurer or the Commissioners of the
Treasury of Great Britain, or any three or more of them, for the time
being respectively, shall be and he and they is and are hereby empowered
from time to time, out of the Consolidated Fund of Great Britain, to
cause to be issued such *sums of money as shall be required for
[ 538] the payment of the interest on such part of the capital of the
said Russian loan as is agreed to be borne by His Majesty as aforesaid,
and also for the payment of a sinking fund of one pound per centum, or
not exceeding three pounds per centum, as the case may be, on the said
part of the said capital, for the extinction of the same, as and when the
same may from time to time respectively become payable, and so long as
the same should be payable conformably to the tenor of His Majesty's
engagements, as specified in the said Conventions respectively, and also
such sums as may be required to pay and satisfy all the expenses attending the execution of this Act.
II. And be it further enacted, that the said Lord High Treasurer or
Commissioners of the Treasury for the time being, shall cause to be prepared, and shall lay before both Houses of Parliament, within twenty
days after the commencement of every session, an account up to the
thirty-first day of December then next preceding, of the total sums which
shall from time to time have been issued and applied by virtue of this
Act for paying and satisfying the interest on the said part of the said
loan so agreed to be borne by His said Majesty, on all or any of the said
securities, and towards paying and satisfying the principal thereof (in
case the principal of any of the said securities shall then have been paid)




APPENDIX.                           869
and also for paying the expenses of carrying this Act into execution and
the sinking fund for the extinction of the same; and such account shall
also specify how much of the said part of the said loan has been discharged
and how much remains to be discharged.
III. And be it further enacted, that it shall be lawful for the said Lord
High Treasurer or the Commissioners of the Treasury, or any three or
more of them for the time being, to appoint such officers and clerks as
they may deem necessary for carrying this Act into execution; and to
grant such salaries and compensations to the said officers and clerks, for
their trouble and labour therein, as they may think fit and reasonable in
that behalf.
IV. And be it further enacted, that this Act may be altered, varied,
or repealed, by any Act to be passed in this Session of Parliament.
An Act to enable His iMajesty to carry into effect a Convention made between hIis said Majesty and the -Elmperor of all the Russias.(g)
[3d August, 1832.]
WHEREAS by a Convention made and signed at London on the 16th
day of November, in the year 1831, between His Majesty and   539
*the Emperor of all the Russias, His said Majesty and the said [ 
Emperor of all the Russias, considering that the events which had occurred
in the United Kingdom of the Netherlands since the year 1830, had
rendered it necessary that the Courts of Great Britain and Russia should
examine the stipulations of their Convention of the 19th day of May,
1815, as well as of the additional article annexed thereto, considering
that such examination had led the two high contracting parties to the
conclusion that complete agreement did not exist between the letter and
spirit of that Convention, when regarded in connection with the circumstances which had attended the separation that had taken place between
the two principal divisions of the United Kingdom of the Netherlands,
but, that, on referring to the object of the above-mentioned Convention
of the 19th day of May, 1815, it appeared that that object was to afford
to Great Britain a guarantee that Russia would on all questions concerning Belgium identify her policy with that which the Court of London
had deemed the best adapted for the maintenance of a just balance of
power in Europe, and on the other hand to secure to Russia the payment
of a portion of her old Dutch debt, in consideration of the general arrangements of the Congress of Vienna, to which she had given her adhesion,
arrangements which remained in full force, their said Majesties, being
desirous that the same principles should continue to govern their relations
to each other, and that the special tie which the Convention of the 19th
day of May, 1815, had formed between the two Courts should be maintained, agreed upon and concluded the following articles, among others;
that is to say,
Article I.-In virtue of the considerations above specified, His Britan(g) 2 & 3 Wm. IV. cap. 810




370   PHILLIMORE ON INTERNATIONAL LAW.
nic Majesty engages to recommend to his Parliament to enable him
to undertake to continue on his part the payments stipulated in the
Convention of the 19th day of May, 1815, according to the mode
and until the completion of the sum fixed for Great Britain in the
said Convention:
Article II. —In virtue of the same considerations, His Majesty the
Emperor of all the Russias engages that if (which God forbid) the
arrangements agreed upon for the independence and the neutrality
of Belgium, and to the maintenance of which the two high Powers
are equally bound, should be endangered by the course of events,
he will not contract any other engagement without a previous agreement with His Britannic Majesty, and his formal assent:
And whereas the said Convention has been ratified, and the ratifications
thereof were exchanged on the 21st day of June last: And whereas by the
stipulations of the said Convention of the 19th day of May, in the year
1815, between His Majesty the King of the Netherlands and His late
Majesty the Emperor of all the Russias, to which His late Majesty King
George III. agreed to -be a party, mentioned in the said recited Conven*540] tion of the 16th day of November, *1831, His Majesty the King
[540 ] of the Netherlands, by the first article thereof, engaged to take
upon himself a part of the capital and arrears of interest to the 1st day
of January, 1816, of the Russian loan made in Holland through the intervention of the House of Hope and Company in Amsterdam, to the
amount of twenty-five millions of forins Dutch currency, the annual interest of which sum, together with an annual payment for the liquidation
of the same, as thereafter specified, should be borne by and become a
charge upon the kingdom of the Netherlands; and His Majesty the King
of the United Kingdom of Great Britain and Ireland engaged on his part
to recommend to his Parliament to enable him to take upon himself an
equal capital of the said Russian loan, videlicet, twenty-five millions of
florins Dutch currency, the annual interest of which sum, together with
an annual payment for the liquidation of the same, as thereafter specified,
should be borne by and become a charge upon the Government of His
Britannic Majesty: And by the second article it was provided that the
future charge to which their said Belgic and Britannic Majesties should
be respectively liable in equal shares, on account of the said debt, was
to consist of an annual interest of five per centum on the said capitals,
each of twenty-five millions of florins, together with a sinking fund of one
per centum for the extinction of the same, the said sinking fund being
subject however to be increased, on the demand of the Russian Government, to any annual sum not exceeding three per centum, the same to be
payable- till the capital of the said debt should be fully discharged, when
the aforesaid charge for interest and sinking fund should wholly cease
to be borne by their said Belgic and Britannic Majesties respectively:
And by the third article their said Belgic and Britannic Majesties respectively bound themselves, on or before the usual day or days in each year
on which the interest on the said debt should be due and payable, to
deposit with the agent of the Russian Government in Holland their respective proportions of the said interest and sinking fund as above speci



APPENDIX.                           371
fled: Provided always, that previously to the advance of each successive
instalment so to be paid the said agent should be authorized to furnish a
certificate to each of the said two high contracting parties, declaring that
the preceeding instalment had been duly applied in discharge of the interest and in reduction of the principal of the said debt, together with the
corresponding payments on account of the Russian Government on that
part of the debt which should remain a charge on the said Government:
And by the fourth article it was provided that the Russian Government
should continue as theretofore to be security to the creditors for the whole
of the said loan, and should be charged with the administration of the
same, the Governments of the King of the Netherlands and of His Britannic Majesty remaining liable and bound to the Government of His
Imperial Majesty each for the punctual discharge as above of the respective proportions *of the said charge: And by the fifth article it  541
was thereby understood and agreed between the high contracting [51
parties, that the said payments on the part of their Majesties the King of
the Netherlands and the King of Great Britain as aforesaid should cease
and determine should the possession and sovereignty (which God forbid)
of the Belgic Provinces at any time pass or be severed from the dominions of His Majesty the King of the Netherlands previous to the complete
liquidation of the same; and it was also understood and agreed between
the high contracting parties, that the payments on the part of their Majesties the King of the Netherlands and the King of Great Britain as
aforesaid should not be interrupted in the event (which God forbid) of a
war breaking out between any of the three high contracting parties, the
Government of His Majesty the Emperor of all the Russias being actually
bound to its creditors by a similar agreement: And whereas an Act passed
in the fifty-fifth year of the reign of His late Majesty King George III.
for carrying into effect the said last-mentioned Convention: And whereas
it is expedient that His Majesty should be enabled to carry into effect
the said Convention of the 16th day of November, 1831: be it therefore
enacted by the King's most Excellent Majesty, by and with the advice
and consent of the Lords spiritual and temporal, and Commons, in this
present Parliament assembled, and by the authority of the same, that it
shall be lawful for His Majesty, his heirs and successors, and they are
hereby authorized, considering the circumstances of the separation between
the two principal divisions of the United IKingdom of the Netherlands,
to continue the payments stipulated in the said Convention of the 19th
day of May, 1815, according to the mode and until the completion of the
sum fixed for Great Britain in the said last-mentioned Convention, and
to complete and carry into effect in all other respects the stipulations of
the said last-mentioned Convention, and of the said Convention of the
16th day of November, 1831; and all the powers given by the said recited Act to the Lord High Treasurer, or Commissioners of the Treasury
or any three or more of them, for enabling His Majesty to make the payments required, and to defray the expenses which might be incurred in the
execution of the said Convention of the 19th day of May, 1815, and all
the enactments in the said Act contained, shall be and continue in force,
and shall be extended and applied to the completion and carrying into




372      PHILLIMORE  ON INTERNATIONAL LAW.
effect the stipulations of the said Convention of the 19th day of May,
1815, and of the said Convention of the 16th day of November, 1831.
[*542]  *APPENDIX IV.  (PAGES 117-133.  CHAP. 8.)
RIGHTS OF SOVEREIGNS-CASES RELATING TO.
No. 1.
The columbian government v. Rothschild.(h)
THE bill commenced as follows:",' Complaining, show unto your Lordship, the Government of the
State of Columbia, and his Excellency Don Manuel Jose Hurtado, a
citizen of the said State, and Minister Plenipotentiary from the same to
the Court of His Britannic Majesty, now residing at No. 33, Baker
Street, Portman Square, in the parish of lMary-le-Bone, in the County
of Middlesex.' It stated that the Senate and House of Representatives
of the State of Columbia, having on the 30th June, 1823, decreed that
a loan to the extent of thirty millions of hard dollars, being about
7,500,0001. sterling, should be raised upon the credit, and for the service
of that State, Manuel Antonia Arrubla and Francisco Montoya, citizens
of that State, were, under the decree, appointed Commissioners of the
State for raising the loan, with the most ample powers and authorities
to negotiate and contract for it on such terms as might seem to them
most advantageous to the State, and to pledge, for the redemption of the
principal and payment of the interest, the branches of the revenue of
that State, appropriated for that purpose by the decree: that the Commissioners, in pursuance of the powers and authorities so given to them,
in April, 1824, entered into a negotiation with Lyon Abraham Goldschmidt, since deceased, and Maurice Jacob Hertz, then carrying on
business under the firm of B. A. Goldschmidt & Co., for raising a loan
of 4,750,0001. sterling, on the credit and for the service of the State of
Columbia, and that Messrs. Lyon Abraham Goldschmidt and Maurice
Jacob Hertz, having agreed to be employed in raising it, a memorandum
of agreement, dated the 14th of April, 1824, was executed, by or on
behalf of Arrubla and Montoya, of the one part, and Messrs. Goldschmidt & Co. of the other part; and that in pursuance of a stipulation,
contained in that memorandum, a complete agreement in writing, dated
the 15th of May, 1824, and made between Arrubla and Montoya, on
behalf of the Government of Columbia, of the one part, and Messrs.
[*543] B. A. Goldschmidt & Co., of the other part, was prepared *and
executed, and thereby Arrubla and Montoya, engaged on the
part of the Government of Columbia, to grant a general mortgage-bond
for 4,750,0001. sterling, and to deliver to Goldschmidt & Co., in a pro(h) 1 Symons's Reports, p. 94. (Nov. 1826.)




APPENDIX.                           373
per state for circulation, 23,150 certificates, which were to be signed by
the plaintiff Hurtado; that the mortgage-bond should be consdered as
an absolute, inviolable, and indestructible pledge, mortgage, and security
on all the revenues of the State of Columbia, present and future: that
all moneys, the proceeds of the loan, should be placed at the disposal of
Hurtado, and that his receipts should be a full discharge to Goldschmidt
& Co.; and all arrangements which Goldschmidt & Co. might make with
him respecting the execution of the Agreement, or any other matters or
things proceeding from, or connected with the loan, were thereby
approved of by Arrubla and Montoya, in the name and on the behalf
of the State; and Arrubla and Montoya did thereby, as agents of the
State, and by virtue of the decree and of the powers and authorities
vested in them, bind the State of Columbia, and all the public authorities thereof, which did then or might thereafter exist, or perform faithfully and truly all the therein foregoing engagements and conditions.
c" The bill then stated that the Senate and House of Representatives
of Columbia by a decree dated the 1st of May, 1825, ratified this agreement, and that it was immediately after its execution carried into effect;
that Hurtado advanced and paid to Goldschmidt & Co., on the account
and to the credit of the Government of Columbia, 57,0001. sterling, on
the 1st of May, 1824, 41,0001. sterling in June, 1824, and 20,9271. 2s.
5d. on the 29th July, 1825; and that Goldschmidt & Co. did, at divers
times, during the years 1824 and 1825, on the application and under
the sanction of Hurtado, as the representative of the State of Columbia,
purchase and ship for the use, and on the account and at the risk of the
Government of that State, considerable quantities of shot, muskets,
gunpowder and other military stores, and also of doubloons, dollars, gold
bullion, silver bullion and other treasure, all which stores and treasure
were consigned to the agent for the time being of that State at Carthagena, or elsewhere in South America; and, on occasion of such shipments
being made, the bills of lading and invoices of the articles so shipped
were handed to Hurtado, by Goldschmidt & Co., who placed the costs of
these articles, and the amount of the charges of purchasing and shipping
the same, to the debit of the Government of Columbia, against the proceeds of the loan, and that Goldschmidt & Co. did also, on the credit of
the coming proceeds of the loan, from time to time pay drafts or bills of
exchange drawn, by the Minister of Finance of the State of Columbia,
on Hlurtado, and which were by him made payable at the house of Goldschmidt & Co. and debited the Government of Columbia with the
amount *of the payments; and that they also, during and since  *544
the year 1825, from time to time, in compliance with the stipu- [544
lations in the agreement of the 15th of May, 1824, and by the directions
of Hurtado, purchase up a considerable number of the certificates issued
in respect of the loan, for the sinking fund of the loan, and, with the
amount of the purchase-money paid by them for these certificates, and
of the costs of brokerage for the purchase thereof, they debited the
Government of Columbia against the proceeds of the loan: and, that,
by these dealings and transactions between B. A. Goldschmidt & Co.,




374   PHILLIMORE ON INTERNATIONAL LAW.
and the Government of Columbia, there subsisted an account between
them which had never been settled.
is The bill prayed that an account might be taken of all sums received
by Goldschmidt & Co. for or on account of the Government of Columbia,
and of all sums paid and expended by them, unto, or for the use of the
Government; and that what, on the balance of such accounts, should
appear to be due and owing from the firm, might be paid to Hurtado,
as the representative of the Columbian Government.
" To this bill the defendants demurred for want of equity.
"s The Attorney-General and Mr. Pemberton for the demurrer:c"' No persons appear before the Court in a character which enables
them to sustain this bill. The plaintiffs are described as the Government of the State of Columbia, and Don Manuel Jose Hurtado joins
as a citizen of that State.
"s' There is no mutuality in this case. For suppose it were necessary
for the defendants to file a cross-bill, how are the plaintiffs in this bill
to be described when made defendants?  How is a subpoena to issue
against them? Would it be sufficient to have a subpoena against Don
Jose Hurtado?  Certainly not, for it has been decided that an ambassador does not represent his Government in a Court of Justice.  So far,
therefore, as relates to what is called the State of Columbia, Hurtado
has no right to sue, nor can he be sued.  Even if it were admitted that
a foreign State can sue in equity, surely there must be some mode of
enforcing a cross equity against it. It is, however, doubtful whether a
foreign State can sue in a Court of Equity.  From the books it appears
that the King of Spain has been allowed to bring an action at law.  But
the remedies and the forms of process in a Court of Equity, make it
much more difficult to show how a foreign state can maintain a suit to
enforce an equitable demand.  At law there are no cross equities or
cross-claims.  But where an account is to be taken, or an agreement to
be performed and enforced by the process of a Court of Equity, it is
not easy to see how it can be done.  Suppose, on taking an account at
the suit of a foreign State, the balance is found to be against the plaintiffs, in what manner can the payment of that balance be enforced?
5 In the case of the Nabob of the Carnatic v. The *East India
[ 5'4] Company,(i) an anecdote is mentioned of the King of Spain
being, by the advice of Selden, outlawed to prevent his bringing an
action. But how could the State of Columbia be outlawed? If a Court
of Equity is to entertain a suit at all, it must see that it can enforce
justice, as well on behalf of the defendant as of the plaintiff.' This bill,
indeed, charges that Hurtado, the co-plaintiff, has been the agent of the
State, and is the proper person to receive what is claimed to be due to
the State.  But that, instead of reason why he should be a plaintiff in
such a bill, is a sufficient reason why he should not. Nor indeed does
he submit by the bill, as every accounting party ought to do, to pay the
balance if any should be found due from him on taking the account.  It
is, however of great importance to observe that, in 1824, at the time
(i) 1 Vesey, Jr. 371. See 386 n. S. C. 3 Bro. C. C. 292; 4 Bro. C. C. 180; and
2 Vesey, Jr. 56.




APPENDIX.                           375
when the transaction took place, in respect of which relief is sought by
the bill, there was no such State in existence-no body of persons who
had any right, in this country, to assume to themselves the title which
is now assumed by the plaintiffs in this bill. It was not till 1825,
that the State of Columbia was recognized by the Government of this
country.
"'Another question, therefore, arises upon this bill, whether it is
competent to the subjects of this country to treat with a foreign Government not recognized by the Government of this country? That question came before the Lord Chancellor in the case of the Peruvian Loan,
Jones v. Del Rio. In that case it appeared that the Peruvian Government, which is recognized by this country, contracted with Mr. Kinder
for raising a loan, to be secured on the revenue of that Government.
Some of the parties who advanced money on that loan became greatly
dissatisfied with the transaction, and a bill was therefore filed against
Kinder, Everett, and other persons concerned in it. On an application
to the Court, after that bill was filed, the Lord Chancellor suggested the
objection as to how he could recognize such a transaction, with a
Government not recognized by this country; and whether transactions
of such a nature might not create an interest adverse to the public
interest of the British nation. That objection was not very palatable
to any of the parties concerned in the case; but the Lord Chancellor
insisted on its being argued. In the course of the argument, the Lord
Chancellor made many very strong observations, which showed an
opinion that such transactions could not be recognized in a Court of
Justice. The case was, however, ultimately decided on the ground that
as the plaintiffs sued on behalf of themselves and others, though the
plaintiffs wished to annul the contract which *was the subject of   4
the suit, yet the other parties might not wish to do so; and on [ ]546J
that ground his Lordship dissolved the injunction. In the present case,
the subsequent recognition of the State of Columbia by the Government of this country, could have no effect as to the antecedent transaction which is now brought in question; for, although the Crown has
the right to bind the country by Treaty with a foreign State, that Treaty
does not affect the rights and claims of individuals, unless there be some
express stipulation on the subject.
", Mr. Sugden, Mr. Pepys, and Mr. R. Grant for the bill:c, 1. Assuming that the State of Columbia was not recognized by
the Government of this country at the time when the agreement was
made, it cannot be disputed that, soon afterwards, and before the bill
was filed, it was solemnly recognized by the British Government. On
the 18th of April, 1825, that recognition took place, and from that
time forward the State of Columbia became invested with all the rights
of other independent States, and, as such, can sue and be sued in this
country.  By a Decree of the State of Columbia, made after the recognition by this country, that State has acceded to the agreement which is
the subject of this bill.
"'2. As to the right of a sovereign State to sue in this country,
there can be no doubt what the usage has been in this respect. There




376      PHILLIMORE  ON INTERNATIONAL LAW.
are many bills now on the files of this Court, in which the King of
Spain is plaintiff.  In a recent case the King of Spain v. Mendizabel,
the Lord Chancellor made an order restraining the defendant from bringing an action at law; but it did not occur to any one that it was possible to prevent the plaintiff from having relief in the character of a
Sovereign Prince.  There is no authority against it.  This case is not
to be put on what, or how many, the individuals are, who consitituted
the Government of Columbia. Any Sovereign or State which is known
and recognized by a general appellation, may sue, as such, under that
appellation. No man can deny that at the date of the agreement, the
State of Columbia, though not recognized by this country, was in existence, and therefore it was capable, by the law of nations, of being a
party to a contract.  It might be capable of contracting, and yet be
unable to enforce the contract in a particular country, on account of
particular reasons. But is the recognition of the State by this country
to affect the validity of a contract?  Certainly not; because that recognition is a matter merely of political expediency, depending on reasons
purely political.  What the Lord Chancellor is stated to have said, in
the case of Jones v. Del Rio, must be considered as spoken by his
Lordship in his character of a statesman merely; and it is impossible
not to see that many transactions tending to embroil this country with
a foreign Power, may be liable to great objection in the view of a
*547] statesman, without being at all questionable in a *Court of JusL[547] tice.  The validity of a contract as a contract, does not depend
on the law of any particular State, but on there being parties capable
of contracting.  Where the contract is valid, the contracting parties
must be able to enforce it in a Court of Justice. Every writer on the
law of nations has laid it down that a sovereign independent State is
competent to enter into a valid contract.  Vattel describes it as one of
the attributes of a State.(k)  But this demurrer assumes the existence
of the Government of Columbia as described in the bill; the objection
therefore ought to be by a plea.
"' 3. Don M. J. Hurtado, who joins as a plaintiff in this suit, states
himself to be a citizen and Plenipotentiary of the State of Columbia;
and also describes himself as an individual residing in a particular street
in London. He is so described also in the agreement, and that description gives him, as an individual, all the powers necessary to enable him
to maintain this suit alone. There can be no doubt that he, at least,
has full authority to file this bill.  The moneys in question never found
their way directly to the State of Columbia, but to Hurtado; and, on
the faith of the agreement, he has paid large sums of money to the
defendants.  Therefore, if the Court should be of opinion that the
Government of Columbia, as a Government, cannot sue in this case,
still there is before the Court a plaintiff entitled to sue on the rights
which he has acquired under the contract.
"cc 4. As to the objection that the bill, being for an account, does not
contain any offer to pay the balance if found against the plaintiff, such
(k) Lib. i. cap. 1, s. 4.




APPENDIX.                             377
an offer is not now considered necessary.  The mere filing a bill for an
account enables the Court to do all justice between the parties.'
{"(The Vice-Chancellor said that the Court had originally required
that a bill for an account should contain an offer on the part of the
plaintiff to pay the balance if found against him; but that was not now
considered necessary.)
c" Mr. Hart, Mr. Horne, and Mr. Collinson, appeared for other defendants, but were not called upon to argue the case.
"( The Vice-Chancellor:"' It does not appear to me to be necessary to notice the several
objections which have been made to this bill.(l)
" c A foreign State is as well entitled as any individual to the aid of
this Court in the assertion of its rights; but it must sue in a form
which makes it possible for this Court to do justice to the defendants.
It must sue in the names of some public officers who *are entitled
to represent the interests of the State, and upon whom process [54
can be served on the part of the defendants and who can be called upon
to answer the cross-bill of the defendants.  This general description of
"c The Columbian Government," precludes the defendants from these just
rights; and no instance can be stated in which this Court has entertained
the suit of a foreign State by such a description.'
IC Demurrer allowed."
No. 2.
HULLET AND co. (App.) V. KING OF SPAIN (Resp.)(n)
" Machado, as agent for the King of Spain, receives from the French Government a sum of money, which that Government had agreed to pay to the King
of Spain, in satisfaction of the claims of certain Spanish subjects on France,
Machado brings the money to this country, and deposits a considerable portion
of it in the hands of Hullet & Co. of London. The King of Spain applies to
Machado for the money, and Machado refuses to deliver it on the pretence that
he is bound to pay only to such subjects of Spain as should be found ultimately
entitled to it. Bill in the name of the King of Spain against Machado (out of
the jurisdiction,) and against Hullet & Co., for discovery and payment of the
money into Court. Demurrer to the bill for want of parties, &c., but chiefly on
the ground that it had never been held that a foreign Sovereign could sue in
equity in this country, Order by the Court below, overruling the demurrer,
affirmed by the Lords.
"A foreign Sovereign has a right to sue in this country in equity as well as at
law. In this case the King of Spain is the only party entitled to the money
in the first instance."
cc"Tnu  bill filed 22nd December, 1827, stated the Treaties of 30th
BMay, 1814, 20th November, 1815, and 25th April, 1818, for the
adjustment of the claims upon France of the several Powers who had
been engaged in the French revolutionary war; and also separate Con(1) These objections were, that the agreement was usurious; and that as no
relief was prayed against the defendant Rothsch;ld, the demurrer was, at all
events, good as to him.
(m) 1 Dow & Clark's Reports, 169-177.
DECEMBER, 1855.-25




378     PHILLIMiORE  ON INTERNATIONAL  LAW.
ventions of the 18th March, 1818, and 30th April, 1822, between the
French and Spanish Governments, who had mutual claims on each other
for the adjustment of these claims; and the French Government agreed
to pay the balance to such person as the Spanish Government should
appoint to receive it.  Don Justo Jose de Machado was appointed for
that purpose, and his name was inscribed in the book of the public debt
of France for a sum amounting to about 500,0001. in British money.
"v When the Spanish constitutional war broke out in 1823, Machado
sold out of the French funds, and brought the money to England.
Bills, signed by Ferdinand, were drawn by the Constitutional Government of Spain on Machado in respect of this money, which he refused
to pay, and protested, alleging as his reason, that he held the fund for
such of the subjects of Spain as should be found entitled to it, when the
claims should be duly investigated and ascertained. After the cessation
of the war, the Spanish Government, by decree, dated 21st March, 1824,
appointed boards for ascertaining and adjusting the claims on the fund,
and securing its proper application and distribution; and communicated
this decree to Machado, with much commendation from His Majesty for
his refusal to pay the money *to the order of the Constitutional
Government. The presidents of the boards directed Machado
to deposit the fund in the Bank of England in their name; but this
Machado refused to do, stating that he was ready to pay the persons
entitled when the boards should have settled their claims.
" The bill then stated, that in December, 1824, Machado deposited
about 200,0001. of this money with Hullet, Brothers, & Co., in the name
of his secretary, Achilles de Pereira, who, as the defendants well knew,
had no interest whatever in it, and whose name was employed merely to
prevent any attachment of the money by persons having claims on the
Spanish Government; and the bill charged that both Machado and Pereira were residing in the Netherlands, out of the jurisdiction of the
Court of Chancery, and that the defendants, Hullet & Co., after settling
accounts with Machado, still retained about 100,0001. of this money,
which belonged to the plaintiff, as head of the Spanish Government; and
the bill prayed,'that Hullet & Co., and the said Don Justo Jose de
Machado, when he came within the jurisdiction of the said Court of Chancery, might answer the matters of the said bill; and that an account
might be taken by and under the direction and decree of the said Court
of Chancery, of all and singular the sums of money which had been paid
to or deposited with IHullet & Co. by the said defendant Don Justo Jose
de Machado, in the manner thereinbefore in that behalf stated, and of
the funds brought over by him to this country, as thereinbefore mentioned; and that the amount thereof might be ascertained, and paid over by
Hullet & Co. to the plaintiff, or his agents in that behalf lawfully authorised to receive the same; or otherwise, that iEullet & Co. might be
ordered forthwith to pay the same into the Bank of England, with the
privity of the Accountant-General of the said Court of Chancery, in trust
in the said cause; and that the said defendant Don Justo Jose de Machado might in the meantime be restrained, by the order and injunction of the
said Court of Chancery, from commencing or prosecuting any action or




APPENDIX.                            379
suit-at-law, or taking any steps whatsoever against Hullet & Co,) for the
purpose thereby of obtaining re-payment of the moneys so paid to or deposited with them, ilullet & Co., as aforesaid; and that Hullet & Co.
might also in like manner be restrained from paying over the moneys last
mentioned to the said Don Justo Jose de Machado, or parting with the
same, without the direction of the said Court of Chancery in that behalf;
and that Haullet & Co. might set forth the claims (if any) which they had,
or claimed to be entitled to, upon the said moneys so paid to or deposited
with them  as aforesaid, or upon the said funds so received by the said
Don Justo Jos6 de Machado by virtue of the said Convention of the 30th
day of April, 1822, as aforesaid, and the particulars thereof, and how they
make out the same, and that the said claims might be disposed of
*by the said Court of Chancery;' and the bill prayed process [*550]
against Hullet & Co., and against Machado, when he should come within
the jurisdiction.
A" Machado did not appear, but Hullet & Co. appeared to the said bill,
and on the 31st day of January last filed a demurrer thereto, and they
thereby for cause of demurrer showed that the respondent had not by his
said bill made such a case as entitled him in a Court of Equity to any
relief against them, or either of them; and for further cause of demurrer,
they thereby showed, that the plaintiff had not made the said Achilles
de Pereira a party thereto, nor prayed process against him; neither had
the plaintiff made parties to the said bill, nor prayed process against any
or all of the persons who, according to the statements in the said bill, had
or were entitled to claim a beneficial interest in the moneys in the said
bill mentioned, or any part thereof.
", The demurrer came on to be argued on the 22nd day of March,
1828, before the Lord Chancellor, by whom it was overruled; and
against this order the defendants, Hullet & Co., appealed to the House of
Lords:1 ( lst, Because it has never been held that a foreign Sovereign can
sue in courts of equity in England; and according to the principles of
such Courts, such a plaintiff ought not to be allowed to sue therein, inasmuch as by no possibility can process be issued with effect, or equity done,
or a decree enforced against him.
"', 2dly, Because the pretended rights on which the plaintiff in this
bill relies are rights which he claims merely by virtu6 of his prerogative
as King of Spain; and it is not according to the law or constitution of
England, that an English Court of Equity should be made instrumental
in enforcing in England the prerogative of a foreign Sovereign.
"'3dly, Because the pretended right of the King of Spain to the
moneys sought to be recovered by the bill arises out of a Treaty with
France, which was inconsistent with the existing relations between each
of those countries and His Majesty the King of this country; and an
English Court of Equity, therefore, will not lend its aid to enforce any
such pretended right.
"i e 4thly, Because this is a bill in equity, according to the statement.
of which, not one of the parties before the Court has any right to the:




380      PHILLIMORE  ON INTERNATIONAL  LAW.
beneficial enjoyment of the property which is the subject of the suit, and
no decree could be made upon it which would do complete justice.
" t 5thly, Because the bill does not bring before the Court all the parties interested in the matters of the suit, and in the questions raised by
the statement in the bill, nor any persons who represent those parties or
their interests; and particularly because Achilles de Pereira is not made
a party to the suit, though the bill states that the moneys of which the
plaintiff seeks to obtain possession, were paid to or deposited with these
appellants in the name of the said Achilles de Pereira.',((The cause came on for hearing on the 11th and 18th June,
t[551] 1828; Pepys and Russel for the appellants, Wetherell (AttorneyGeneral) and Horne for the respondent.
" Lord Lyndhurst (Chancellor):-' The French and Spanish Governments had mutual claims on each other, and they agreed to set the
claims of the one against those of the other. What is there fraudulent
in that?'
"c Lord Redesdale: — The French Government was the only one which
had any pretence to say that the money should be paid only to the persons
whose claims should be established.'," Lord Lyndhurst (Chancellor): —  The money was to be paid to the
person whom the king of Spain should nominate; he nominates Machado,
who, as his nominee or agent, does receive it, and now he says he is not
accountable to the King of Spain.  Neither the boards of Commissioners
nor the Spanish subjects had anything to do with it in the first instance.
We cannot presume that the King of Spain will not distribute the money
to those who have claims; we cannot enter into that question at all.  Iachado received the money under the authority of the King of Spain, and
to him he is accountable. Suppose the King of Spain had sent jewels
here to be set, and the jeweller refused to restore them, would the King
of Spain have no remedy at law to recover them or their value? Why
should he not have his remedy here as well as any other foreigner?
When he sues here as a plaintiff the Court has complete control over him,
and may hold him to all proper terms.'
" Lord Redesdale:-__ When the King of Scotland was Earl of Huntingdon, could he not maintain his action here against his steward for the
rents of that earldom?  I am an executor of the Duchess of Brunswick;
can I not maintain an action here in her name for what is due to her?
", Lord Lyndhurst (Chancellor): ( It was decided that a foreign Sovereign might sue at law, and why not in equity? At all events, this was
a bill of discovery, in which the Courts of Equity had a concurrent jurisdiction. As to parties, it must be admitted, because so stated in bill, that
Achilles de Pereira had no interest, and neither the members of the boards,
nor the parties who had claims, had anything to do with the funds in the
first instance.'
C' JUDGMENT.
"Lord Redesdale:-' I do not know whether your Lordships have any
doubt as to this question, but I have none.  I have no doubt but a foreign Sovereign may sue in this country, otherwise there would be a right




APPEN DIX.                         381
without a remedy.  He sues here on behalf of his subjects, and if foreign
Sovereigns were not allowed to do that, the refusal might be a cause of
war.  This was a transaction between the Governments of France and
Spain, and Miachado was the agent appointed by the King of Spain to receive'the money; and if any one had a right to object to pay the *552
money to him in that capacity, or to any one except the parties [552
who might be ultimately entitled, it was the King of France; but the
French Government made no objection, but paid him the money, and he
received it as an agent nominated for that purpose by the King of Spain.
He deposits the money in the hands of the defendants, Messrs. Hullet &
Co.; and one reason —a very slight reason indeed-for their refusal to
bring it into Court, according to the prayer of the bill, was, that it had
been deposited in the name of Achilles de Pereira, Machado's clerk, who
was not made a party. But the defendants well knew that the name of
Achilles de Pereira was employed for the purpose of the deposit by Machado, and that he had no interest in the money, and they even admitted
that he had no interest in it, and acknowledged that the person to whom
they were accountable was Machado. And who was this Machado?-the
agent of the King of Spain, and the defendants knew that the money was
that of the King of Spain. The defendants had nothing at all to do with
these Treaties. They had the King of Spain's money deposited with them
by his agent, and they were bound to answer.
rc"'But supposing other parties had any interest in it, the prayer of the
bill merely was, that the money should be paid into Court, and then
others who thought they had claims might come and set them up; but
that was no reason why the defendants should not make the requisite discovery, and pay the money.  There is no ground for the notion that a
foreign Sovereign cannot sue in the Courts of this country. It appears
to me clear that he can sue, and it would be monstrous injustice if he
could not.  How otherwise could the King of Spain get the money out
of their hands? What had they to do with the due distribution of the
money? That was the business of the Sovereign to whom, in the first
instance, the money belonged, and to the boards which he had appointed
for the purpose.  The defendants cannot honestly keep this money and
refuse to answer, for they do pretend that it is their own money; and is
it not the best and most honest course of proceeding to pay it into Court?
If other persons have claims, it is their business to attend to them, and
not that of the defendants. Yet I doubt very much whether the Court
of Chancery can do more than transfer the money to the King of Spain,
or to the boards appointed by him. The claims of the several parties can
only be settled by their own Sovereign; and although he may be a trustee
for others, it is not by the Court of Chancery here that he can be compelled to execute that trust.  The Sovereign himself is the one who has
to see to that. It is enough for the defendants that they have the money
from Machado, and that he held it as the agent of the King of Spain. It
is sufficiently set forth in the bill, that this Achilles de Pereira has no
interest in it, and so it is admitted by the demurrer. I move, your Lordships, that the judgment of the Court below be affirmed.'




882   PHILLIMORE ON INTERNATIONAL LAW.'*c Lord Lyndhurst (Chancellor): — I see no reason to alter
[*553] the opinion which I gave on this question in the Court below.'
" Judgment affirmed.
i" Sir C. Wetherell (Attorney-General):-' Ought not the King of Spain
to have his costs?'
"c Lord Lyndhurst (Chancellor):-'_ We will not disparage the dignity
of the King of Spain by giving him costs.'"
No. 3.
THE KING OF SPAIN (Apr.) v. HULLET AND WIDDER (Resp.)(n)
"A foreign Sovereign Prince, being declared entitled to sue in the Court of Chancery here in his political capacity, claims the privilege of putting in an answer,
by his agent, or without oath or signature, to a cross-bill, filed against him by
the defendants to his original bill. Held, that he stands on the same footing
with ordinary suitors as to the rules and practice of the Court, and is bound like
them, to answer a cross-bill personally and upon oath.
"The plaintiffs in the cross-bill having put in a full and sufficient answer to the
original bill, which is subsequently amended, obtain an order for a month's time
to plead, answer, or demur to the amended bill, after the plaintiff therein should
have answered their cross-bill; that order is held good, and is accordingly
affirmed."
"c THE material allegations and prayer of the appellant's original bill,
are stated in the report of a former appeal (1 Dow and Clark, 169,)
brought by the respondents against an order of the then Lord Chancellor,
overruling their demurrer to that bill.  The House of Lords dismissed
that appeal, and affirmed the order of the Court below, on the 18th June,
1828, thereby establishing the appellant's right to sue in our Courts of
Equity, as a foreign Sovereign, and in his political capacity.  The respondents, on the 3d of July following, filed their cross-bill in the Court
of Chancery against the appellant and Don Justo de Miachado, who had
also been made defendant to the appellant's bill, but remained out of the
jurisdiction.'" The cross-bill, after reciting the material parts and the prayer of the
original bill, stated, and charged in circumstantial detail, that many of the
allegations in respect of which the respondents were made parties to the
said original bill were not according to the truth, and that the appellant
had in his power, and in the power of his agents, servants and ministers,
various documents and statements, by which, if produced, it would appear
that many of the allegations in said bill were not according to the truth,
and by which also the truth of many other circumstances would appear,
whereby it would be shown that appellant had no title to relief against
these respondents in respect of any of the matters in said bill mentioned:
That the appellant had no right to the fund provided by the Treaties in
the said original bill mentioned; and that the claims of Spanish subjects
on that fund had been adjudicated in Paris, and openly, and with the
(n) 1 Clark and Finnelly's Reports of Cases in the House of Lords, 333. (Aug.
1833.)




APPENDIX.                            383
knowledge of the appellant, sold, and by such sales became the property
of French and British subjects: That His Catholic Majesty had unduly
got possession of a considerable portion of the trust or indemnity fund,
and misapplied it, and that he intended to apply to the *general -*554]
purposes of his Government the money alleged in his bill to be [
deposited with the respondents; and that, as evidence of such intention,
His Catholic Majesty and the assembly of the Cortes, in the year 1823,
enacted that the said fund should be applied to the exigencies of the Executive Government; and the Spanish finance minister accordingly assigned the said fund to divers persons, by drawing bills of exchange
against it, whereby any right assumed by the appellant and Government
of Spain of further dealing with it, was wholly extinguished: That by
the laws of Spain, the moneys in the said original bill mentioned did not
belong to His Catholic Majesty, nor was he entitled to sue for the same;
and that so it would appear, if His said Majesty would set forth the law
of Spain by/which he claimed to have any interest in the said moneys, or
any right to sue for the same: That various despatches, communications,
and orders had been transmitted by the orders and with the privity of
His said Catholic Majesty to the said Justo de Machado, in which it was
admitted, or stated, that His Catholic Majesty had no right, or interest,
or title in or to any moneys in possession of the said Justo de Machado;
and that so it would appear, if all communications or despatches made or
sent to the said Justo de Machado, by, or by the orders of, or with the
privity of His said Catholic Majesty, or any of his ministers or council,
were set forth: That the said moneys, by certain agreements entered into
by His Catholic Majesty, or with his authority, did, as against him, and
all persons claiming under him, belong exclusively to certain persons
having claims under a certain convention, concluded in May, 1823, by
which His Catholic Majesty became bound to make full compensation to
all British subjects for property or vessels belonging to them, which had
been detained or seized by Spanish vessels or Spanish authorities, at any
time after the 4th of July, 1808, down to the date of the said Convention;
and, in particular, that a great part of the said moneys did belong to respondents, for that the Spanish Government seized, or caused to be seized,
subsequently to the 4th July, 1808, two ships, called the Scorpion and
the Vulture, with their cargoes, which belonged to these respondents;
and that the same were sold by the authority of the King of Spain; and
that the whole of the proceeds thereof, amounting to upwards of one million of Spanish dollars, were paid into the royal treasury, and applied to
the use of His Catholic Majesty, and that these respondents had a good
and valid claim against him to the amount of more than 200,0001., which
they were prevented from enforcing against him merely by his royal character.
c" The cross-bill further charged, that there was a special necessity that
the appellant should be compelled to answer upon oath, all the matters
thereinbefore mentioned, inasmuch as the same were material to the respondents' defence in the original suit, *and to produce all writings,
papers, and documents in any way relating to any of the matters [555]
therein mentioned, which then were in the possession of him, or of any




384      PHILLIMORE  ON INTERNATIONAL  LAW.
of his agents, ministers or servants: That His Catholic Majesty had
knowledge, remembrance or belief with respect to all or many of the matters thereinbefore mentioned, and had documents and writings, and other
means of full and perfect knowledge as to the same, within his power;
and that he was bound to use such means, in order to give the respondents the aforesaid discovery, and that, without the production of the
said documents, and the discovery of all the matters by the said cross-bill
enquired after, these respondents could not have justice in the said original suit, the more especially as His said Catholic Majesty intended to
amend his said original bill, and materially to alter the case stated in it,
which these respondents submitted he ought not to be allowed to do till
he should have fully answered their said cross-bill; the discovery thereby
prayed, being such as, besides being essential to their defence to the original bill, would show the untruth of the allegations which the appellant
intended to introduce by amendment into his said original bill.
"6 The cross-bill then prayed, amongst other things, that the appellant
might be ordered to make to these respondents the discovery thereby
sought, and that His said Catholic Majesty might also be restrained from
proceeding in the said original suit, until he should have granted a full
discovery of all the matters of which a discovery was thereby prayed, and
of all the writings, papers, and documents therein mentioned.
" The respondents, in the same month of July, 1828, put in their joint
and several answer to the appellant's original bill. And the appellant
having amended(o) his bill in March, 1830, an order was made in both
causes by the Vice-Chancellor, bearing date the 8th day of May, 1830,
upon the application of the respondents, that they should have a month's
time to plead, answer or demur to the amended bill, after the appellant
should have answered the bill of the respondents.  An application, made
on behalf of the appellant to the then Lord Chancellor to discharge that
order, was refused on the 6th day of July following.
"9 The respondents were subsequently served with two notices of motions
to be made on behalf of the appellant, before the present Lord Chancellor.
One, bearing date 15th January, 1831, was to the effect,' that Don Juan
Escudero, residing in Weymouth-street, in the County of Middlesex,
might be permitted, on behalf and in the name of the appellant, to put in
an answer to the bill of the respondents, the appellant thereby undertaking that the answer so to be put in, and all proceedings consequent
upon it, should be as valid and effectual for the purposes of the said
5 *causes, in such manner as the Court should direct, as if such
answer had been put in personally by the appellant in the ordinary course; or that the said Court would be pleased, under the peculiar
circumstances of the case, to accept the answer of the appellant without
oath or signature.'
" An affidavit of Don Juan Escudero, filed in support of that intended
motion, stated, amongst other things, that he was one of the appellant's
subjects, and appointed by him a commissioner in this country, for the
purpose of recovering from the respondents and others the indemnity
(o) 1 Russ. & Myl. 7.




APPENDI X.                          385
funds mentioned in the pleadings: That deponent had perused and carefully considered the said bill filed by the respondents, purporting to be a
cross-bill, and believed that the appellant had personally little or no
knowledge of the matters contained therein: That, believing it would be
impossible to procure an answer to the said cross-bill from the appellant
personally, inasmuch as deponent conceived it would be, and as he was
instructed by authority, would be considered, both by the appellant and
the Spanish Govornment, inconsistent with the rank and dignity of the
appellant, as a Sovereign Prince, to put in an answer personally and
upon oath in the said Court of Chancery, or in any of the Courts or tribunals of this or any other country, he, this deponent, upon advice of counsel, and after communication with the appellant, was authorized by him
to put in, on behalf and in representation of the appellant, an answer to
the said cross-bill, and also to consent, on the part of the appellant, that
such answer, and all proceedings in the said causes consequent thereupon,
should be as valid and effectual for the object and result of both the said
suits as if the appellant himself had put in the answer in the ordinary
way; and that from the knowledge deponent possessed as to the several
matters contained in the said cross-bill, he had no doubt whatever but that
he could give a full answer and discovery as to all the matters therein contained, if he were permitted so to do by the said Court of Chancery, and
that he was willing if the said Court should think fit so to direct, to put
in a full and complete answer to the said cross-bill, in the place and in
the name of the appellant.
"s The second notice of motion, bearing date the 10th September, 1831,
was to the effect that the aforesaid order of the Vice-Chancellor, of the
8th day of MIay, 1830, affirmed, on appeal, by the Lord Chancellor, the
6th day of July, 1830, might, with the said order of the 6th day of July,
be discharged.
"t An affidavit of MTr. Thomas Browning, filed on the 15th day of November, 1831, in aid of both motions, stated, amongst other things, that
deponent was the solicitor employed in the said causes on behalf of the
appellant, and that on the 30th day of August, 1831, an order was made
by the Court of Chancery in a cause still pending, in which Juan Alvarez
y Mendizabel was complainant, and the said Machado, the respondents,
the appellant, and *others were defendants, whereby these respon- [F557]
dents were ordered to pay into the Bank of England, to the credit  Li
of that cause, the sum of 24,0201., and to deposit certain mining shares,
part of the indemnity fund, or of the produce thereof, alleged in the appellant's bill to have come into the respondent's hands under the circumstances therein stated. The deponent, after setting forth in his affidavit
several communications between himself and the solicitors to the said
Mendizabel, as to a proposed co-operation to enforce the last-mentioned
order, stated that the bill of Mendizabel was dismissed, as against Messrs.
Hullet and Widder, without previous intimation to deponent: that, in
consequence of such dismissal, the said order of the 30th day of August
had not been in any manner acted upon; and that deponent had good
reason for believing that the said Mendizabel had been induced to dismiss
his bill as against the respondents, either in consequence of some bribe




386   PHILLIMORE ON INTERNATIONAL LAW.
given or promised to him by the respondents for that purpose, or in consequence of some fraudulent concert, compromise, or agreement subsisting
between the said Mendizabel and the respondents.
("The respondents excepted to this last affidavit for impertinence, and
their exceptions being referred to the Master, he certified that the whole
of that affidavit was impertinent. The Master's report was subsequently
confirmed by two orders made by the Lord Chancellor, one bearing date
the 15th of March, 1832, referring back to the Master, to expunge the
said impertinence from the affidavit; the second bearing date on the 14th
of May following, disallowing exceptions, filed by the appellant against
the report.
"' By another order of the same 14th of May, 1832, his Lordship having
previously heard the two motions, of which the notices are above stated,
was pleased to declare that he did not think fit to make any order upon
them.
"4 The King of Spain now, by his appeal to this House, prayed for
the reversal of all these orders, viz., the order of the Vice-Chancellor
of the 8th of May, 1830, the order of the then Lord Chancellor of the
6th of July, 1830, affirming the same, and the said three orders of the
present Lord Chancellor of the 15th of March, and 14th of May, 1832.
" The Attorney-General and Sir C. Wetherall, in support of the appeal:' This is a case of first impression.  This is the first time a foreign
potentate has been called upon as a defendant to put in an answer upon
oath. None of the Judges before whom this case came, none of the
Counsel who argued it on either side in the Court below, or who argued
it now here, have been able to find one precedent.  The respondents have
already questioned, by their demurrer, the right of the appellant to sue
as a foreign Sovereign in our Court of Chancery.  But your Lordships
[*558- decided against them, and by that decision it is now established,
[*55811 *that a foreign Sovereign may sue on behalf of his subjects in our
Courts, and is entitled to be considered as a Sovereign Prince to all intents and purposes;(p) the individual is merged in the Sovereign, and he
cannot be called on to put in an answer upon oath as a natural person.
By that decision upon the demurrer, it was declared that the King of
Spain was entitled to an answer to his bill from these respondents.  The
respondents, baffled in their first manoeuvre, next filed a cross-bill, before
they put in an answer to the original bill, with the view that, knowing
their answer would render it necessary for the original bill to be amended,
they might have an answer to their cross-bill before they answered
the amended bill. The order of the Vice-Chancellor, that now first
appealed from, was what they anticipated; that order is wrong.  For, in
the first place, this is not a cross-bill, according to the definition of a
cross-bill, as generally understood, or according to the real principle upon
which alone a Court of Equity allows the right to file a cross-bill, namely,
that the defendant to an original bill may have an answer on oath to his
cross-bill, in order to enable him to make out a complete defence to the
original bill. This House decided that the original bill was the bill of
(p) 1 Dow & Clark, 179.




APPENDIX.                             387
the King of Spain as King.  But the bill of the respondents is not
against the King of Spain, but against t a certain individual claiming the
appellation and title of His Catholic Majesty Ferdinand VII. residing at
the palace of the Escurial, near Madrid," &c.  A  cross-bill should be
filed against the same plaintiff who sued by the original bill.'
"Lord Wynford: —  Has he demurred to the cross-bill?'
i" Lord Plunkett: — The proper way to try that question would be by
demurrer.'
"t Counsel for the Appellant: — We feel a difficulty on that point. We
are now showing that this is not a cross-bill; but if your Lordships decide
against us on that point, then our difficulties will be multiplied.  There
may be a good defence to a cross-bill, without demurring.  If we demurred, we should thereby have admitted the allegations of facts in the
cross-bill, which we do not admit, and therefore we could not demur, for
there is no ground for the allegation therein made, that the King of Spain
is misdealing with the indemnity funds. The practical purpose of a crossbill is admitted by all the authorities on the subject to be for protecting
a defendant from any unjust claim; and many cases may be put in which
a defendant could not put in a complete answer to the original bill essential to his defence, until he had first obtained an answer to the cross-bill
filed by himself. The respondents' bill is not for that purpose; we call
their cross-bill a mockery: it charges that British subjects, and among
them the *defendants, had claims on Spain for piratical attacks *559
on the Scorpion and Vulture ships, in 1808.  This is an imposi-  5591
tion on the Court of Chancery.  Compensation has been already made
for such claims by a Convention with Spain.  If your Lordships decide
this to be a cross-bill, we must submit; but we rely on this part of the
case for the appellant, and entreat your Lordships to look at the whole
of the record before you come to that decision, which may be of dangerous consequence, inasmuch as fraudulent parties may hereafter take advantage of the form. With respect to the rule of practice in the Court
of Chancery, namely, that the identical plaintiff in the original bill must
himself swear to his answer to a cross-bill, we maintain that that is not
a universal nor an inflexible rule. The Court of Chancery dispenses with
it in the cases of peers, corporations, infants, lunatics, married women,
and other persons in the like situations, and these cases furnish an analogy important to be kept in view in the present case. Granting the
existence of the rule, we say there is nothing in the generality of the
practice, nor in the special nature of this case, to require the application
of it here.  Why is exception made in case of a peer?  It is because he
is a hereditary legislator, and it is part of our municipal policy to accept
his word of honour instead of his oath. Will your Lordships require
of the King of Spain, suing here on behalf of his subjects, to do that
which you dispense with in a petty baron of twenty-four hours' creation,
in a simple controversey with one of his fellow subjects? A peer can,
and does take an oath in some cases; but the Court of Chancery dispenses
with his oath in an answer to a cross-bill.  Why cannot this House institute a like rule in the case of a King?  In cross-bills against corporations, the town-clerk swears to the answer for them.'




388    PHILLIMORE ON INTERNATIONAL LAW.
"The Lord Chancellor: — Both Lord Redesdale and Lord Lyndhurst,
in their judgment on the demurrer, said, that the King of Spain was on
the same footing here as his adversary, when he came to sue here, and
the Court of Chancery had complete control over him.'(g)
" The Counsel for the Appellant: —  Those learned Lords said nothing
in the course of the argument, or in the judgment on the demurrer, as
to the King of Spain being obliged to put in an answer on oath.  The
Court of Chancery did not require an oath from Quakers, Moravians, or
Hindoos.'
"' Lord Chancellor:-' Yes; in their cases an oath is required in their
own form; and the question always was, what was the ceremonial that
amounted to an oath?  Here the King of Spain declines an oath, or a
ceremonial equivalent to it.'
[*560]   cc Lords Wynford and Plunkett:-  Where is it laid down that
[ *60] a *Sovereign cannot take an oath?  It is another case whether he
can be compelled to take it.'
"' The Lord Chancellor:-_  A Sovereign can take an oath; our's takes
his coronation oath.'
"c Counsel for the Appellant:-(  But he does not take an oath in cases
of controversey in our Courts, nor in matters external to his kingdom.
It is impossible for the appellant to do so consistently with his independent sovereign character, according to the principles of the law of nations,
as practised between all European States, and his admitted relation to
this country as head of the Kingdom of Spain.  The appellant tenders
an equivalent, as a corporation does.
"' An infant cannot put in an answer, it is put in for him.  So with a
lunatic, who answers by his committee; so with a married woman, who
answers by another. All these rules are of the creation of the Court of
Chancery, which, even in the case of a person who was not a lunatic, controlled its own practice, and appointed a person to put in an answer for
him. The case of corporations is the most analogous to the present case,
which is new, and in which therefore this House can lay down a rule of
practice.
e"  But it is impossible, after examining the history and circumstances
of this case, and the position in which the respondents are placed, to contend that an answer from the King of Spain, upon oath, to the respondents' bill, is in any degree whatsoever necessary, in order to give them
the means and opportunity of defence.'
"t Lord Chancellor: — You are not to assume that the King of Spain
has no knowledge of the matters, of which a discovery is sought by the
bill; suppose he has something in greimio, which no one else can disclose.'
"c Counsel for the Appellant:-c Our impression is, that he cannot take
an oath; the law of nations will not allow the independence of a Sovereign to be lost by taking such oath. The appellant is ready to comply
with all the forms of an answer except an oath. Being allowed to file a
bill as a Sovereign Prince, and in a public character, as trustee for his
(q) 1 Dow & Clark, 174.




APPENDIX.                            389
subjects, he ought not, and cannot now sink the Sovereign in the individual, and put in an answer on oath to what the respondents call a cross-bill.
There is no instance of a foreign Sovereign being made a defendant to a
cross-bill and therefore the Court of Chancery or this House is free to
lay down the rule for the first time, being quite unfettered by practice,
by law, or by Act of Parliament. A corporation supplies an officer who
can put in an answer upon oath; appellant is ready to do the same. He
tenders M. Escudero, or any other officer on his behalf that the Court of
Chancery pleases to call for.  The King of Spain is a foreign corporation,
and offers an individual who is within the jurisdiction, *who is  561]
competent to give all the requisite information, and who can be [561]
dealt with in every way as liable to all the consequences.  He states by
his affidavit that he has more knowledge of these matters than the appellant can have.''" The Lord Chancellor: —' Have you any case in which a sole corporation is allowed to put in an answer to a cross-bill without an oath?'
" Counsel for the Appellant: —tWe have not.  The King of Spain
was allowed to sue as a Sovereign; but now, if your Lordships say he
must swear to an answer, you batter down the right which you raised,
and you nullify the judgment which you formerly gave, for he cannot
swear to the answer were the sum in dispute as many millions as it is
thousands.  If the practical rule to be laid down in the Court of Chancery is, that an accountable agent, trustee, or party resident in England
shall not be compelled to answer until the foreign Sovereign, who has
appointed him, has answered upon oath what may be ordinarily called a
cross-bill (however useless and unnecessary for the purposes of his defence,) the Court of Chancery would in effect be shut against a foreign
Prince, and the grossest frauds may be practised against him with impunity by his own or the accountable agents or parties resident in this kingdom, and within the jurisdiction of this Court.'
" Sir Edward Sugden and Mr. James Russell, for the Respondents:-'The appellant has no right to complain that he is kept to the practice
of the Court. It was by very sharp practice he obtained the order to
amend his bill. That order was first discharged for irregularity, but the
respondents' clerk in Court had incautiously accepted the 20s. costs for
the amendment; and the appellant, discovering that it was then recently
decided that such acceptance was held a waver of the irregularity, again
moved the Vice-Chancellor, who, feeling himself tied down by the order
of the Lord Chancellor in Tarleton v. Dyer,(r) restored the order.  That
is not, however, now the subject of dispute. The first of the orders here
appealed from is acecording to the practice of the Court of Chancery,
which is, that if a man files a bill and after answer amends it, and the defendant to it files a cross-bill in the mean time, the plaintiff is bound to
answer that cross-bill before he can compel an answer to his amended
bill; and the liability to answer his amended bill depends upon his answering the cross-bill.  This order is to that effect, and it has been twice
confirmed, first by Lord Lyndhurst, and again by the present Lord Chancellor.
(r) 1 Russell & Mylne, 1-7.




390   PHILLIMORE ON INTERNATIONAL LAW.
"''But it is asserted for the appellant that this is not a cross-bill, be5    cause the appellant is described as a certain individual claiming
L       *6 ]  and using the title of e "His Catholic Majesty Ferdinand VII.,
King of Spain, residing at the Palace of the Escurial."  Why, the appellant's own bill describes him so. All that is required for the crossbill is, that he be described by his higher title, to entitle us to ask of
him to do the same justice to us which he asks for himself.  The rule
of practice is laid down in Calvin's case.(s) If the appellant was not described by his higher title, he might demur or plead.  There is no authority to show that a foreign Sovereign sues in any other way than as
an individual; only he must have his higher name.  But if this be not
a cross-bill, why did they not demur, as one of your Lordships observed?
We cannot now go into the question, whether this is or is not a crossbill; or whether we can support the allegations contained in it, or have
good grounds of defence to this suit.  When the cause comes to be heard
on the merits, our clients will absolve themselves before the Court.
"'  The chief question here is, whether the King of Spain can take an
oath?  PWhat prevents him?  Because the King of England cannot take
an oath to matters in our Courts, so, it is argued, cannot the King of
Spain. But he is to take an oath, if he puts himself into that state in
which an oath is required. The Counsel for the appellant says, that the
law of nations forbids it, and they offer a representative for His Majesty,
to swear to the answer.  But our Courts require the oath of the individual who answers.  In the case of the Columbian Government v. Rothschild,(t) the like difficulty arose; the plaintiffs there were described as
the,, Columbian Government," and their counsel being desired to show
who they were, and not being able to do so, the demurrer to the bill was
allowed, on the principle that the plaintiff must describe himself so that
the defendant might come against him by a bill or a cross-bill.  The King
of Spain is bound by the same rule that binds others; there is no distinction between suitors.  If he came here for justice, what is there to entitle him to an exemption from the rules of justice?  The cases of infants
or married women have nothing to do with this case.  As to corporations
aggregate, the officer who has the care of the corporation's documents is
to give the information called for, and the practice is to make him a party
to the bill with the corporation; but the King of Spain is not within that
class of cases.  One of your Lordships asked if there was any instance
of a corporation sole being exempted from the general rule of practice?
No answer was given, because no instance of the sort could be found.
The King of Spain tried to maintain a suit by his agent; he failed; can
[*563] he defend a suit by his agent?  He is bound to defend *as other
[563] suitors do; and the law of England recognises no difference of
rank amongst them.  The law of nations lays down a doctrine to the same
effect, where it says that " the promises, the conventions, all the private
contracts of the Sovereign are naturally subject to the same rules as those
of private persons.(u) But the dignity of the King of Spain, it is said,
prevents him from taking an oath. He may have such dignity and rank
(s) 7 Coke's Reports, 30.                   (t) 1 Simons, 94.
(u) Vattel, B. ii. c. 14, s. 213, and p. 209, of edit. 1193.




APPENDIX.                            391
in Spain, but when he leaves his own kingdom and comes for justice into
this, his pre-eminences do not accompany him.  There is nothing more
inconsistent with royal rank than to be sued at all; but if a King be sued,
he must act like any other individual.  The law is so laid down in Calvin's case, before referred to. The Columbian Government v. Rothschild
is a decision quite in point, and that decision was sanctioned by Lords
Eldon and Redesdale.
"'  As to the orders confirming the Master's report on Mr. Browning's
affidavit, although the counsel for the appellant seems to have abandoned
that part of the appeal, we confidently submit that these orders also were
right; and that the affidavit was wholly impertinent, being obviously filed
in the hopes of exciting a prejudice against the respondents, by introducing, in the form of a statement upon oath, the conjectures of the appellant's solicitor as to matters irrelevant to this cause. WVe submit, therefore, that all the orders appealed from are just in principle, and are in
conformity with the established law and practice of the Court of Chancery.'
"The Lord Chancellor: —  What prevents the King of Spain from
transferring his interest in the subject-matter of the suit to a person who
can put in an answer on oath?'
", Mr. Russell: —  Nothing; his assignee might then file his bill against
the respondents, and make the assignor a party defendant, which would
certainly place the respondents in some difficulty.'
" The Attorney-General, in reply:-' The appellant did not assign his
rights, because he could not foresee that this objection would be raised;
nor could he properly assign these funds, in consequence of the convention and arrangements with the Government of France, to appoint commissioners in Spain for the distribution of them.  The decision in the case
of the Columbian Government v. Rothschild is not in point; for that was
given on the ground that no such Government was known in this country
at the time of the contract there mentioned; and the Judge could not
acknowledge in our Courts a Government which was not recognised by
the Government of our own country.'
" Mr. Russell denied that that was the ground of the decision of the
Vice-(Chancellor.
"cThe Attorney-General:-'-We took that view of the case.
*This is the time to try whether this is a cross-bill, and not at the [*5641
hearing on the merits; can this be a cross-bill which states as a set-off
to our demand the capture of the Scorpion and Vulture?'
"( Lord Plunkett: — Suppose the cross-bill ever so absurd, is that a
reason for not answering it on oath?'
"c Attorney-General:-( It is not a cross-bill, and if it is not, there is
an end to the argument.  But if it is a cross-bill, then we say, do not
compel us to answer on oath, for that will be mockery, as by our original bill we were allowed to sue as Sovereign Prince; and your Lordships
cannot now strip the appellant of that character.  This is like the case
of a bishop suing in right of his see; and the difference between a bishop
suing in that right and in his private right is the same as that between
the King of Spain and Ferdinand Bourbon in this Court.'




392   PHILLIMORE ON INTERNATIONAL LAW.
"' The Lord Chancellor: — Is there any instance to show that ex cornitate in any Court, in this or any other country, a party shall import with
with him the modes of proceeding in the Courts of a foreign country?
In the Court of Common Pleas a foreign Prince was so far recognised as
to be discharged from arrest on giving common bail, by Mr. Justice
Heath; and Lord Ellenborough afterwards said he thought that was
wrong.  That went to the very verge of privilege, but yet not so far as
the appellant asks us to go. Suppose a subject of Spain is suitor in our
Courts, and says he does not like his cause to be tried by a jury upon
oral testimony, &c., can he claim the course of trial of his own country?
Is it not the fair course to submit to the laws of the country where he
sues?'
c" The Attorney-General: — The rules of the Court of Chancery are
of its own creation, and the question is, whether in this case of novelty
and difficulty it may not dispense with an oath. It is a moral impossibility that the King of Spain can answer on oath before a commissioner
from our Court of Chancery, in the face of his subjects; that would be
stripping himself of his sovereignty, as it would be acknowledging a superior.  It would be also unreasonable, as your Lordship allowed him
to sue as a foreign Prince.  We have not abandoned our objections to
any of the orders appealed from, but we submit that the affidavit of MIr.
Browning was material, and pertinent to the motion in support of which
it was made; and that therefore the orders upon that, as well as the other
orders, ought to be reversed, and the appellant allowed to prosecute his
suit, and the respondents compelled to put in their answer to his amended bill.  We again repeat, on behalf of the appellant, the offer made in
the Court below, by which he conceives that he submits to every rule of
justice required by the doctrines and jurisdiction of the Court of Chancery
in this case.'
" Lord Plunkett: —  My Lords, it is not my intention to go into the
*565] reasons upon which I found my opinion that the orders appealed
[ from in this case ought to be affirmed; that I will leave to my
noble and learned friend, with whom I agree, and who will state the
grounds of his opinion.  I now move that the orders appealed from be
affirmed.'
"c The Lord Chancellor:-_ My Lords, I do not see any occasion for
postponing the consideration of the judgment to which I think your Lordships ought to come in this case. The more I see of it, the more I am
inclined to affirm the orders of the Courts below. I took occasion, during
the argument at the bar, to throw out my opinion, that though the King
of Spain sues here as a Sovereign Prince, and is justly allowed so to sue,
yet, beyond that, he brings with him. no privileges that can displace the
practice as applying to other suitors in our Courts. The practice of the
Court is part of the law of the Court; if any instance could be adduced
in which the Court deviated from the general practice, or by which the
Court was divested of the power of applying the universal rule, I should
concede to that, and it would assist me in giving the plaintiff relief. Your
Lordships' decision upon the demurrer did not dispose of this point; but
it is clear to my mind that if the present question had been then mooted




APPENDIX.                            393
before your Lordships, it would have been disposed of in the same way.
One of the grounds of Lord Lyndhurst's decision is, that the appellant
should be on the same footing with his adversary, subject to the control
of the Court, and liable to the rules of practice.  It was impossible to
read the judgment in the case of the Columbian Government v. Rothschild, without seeing that the present Master of the Rolls in giving that
judgment proceeded on the same view of the matter.  The noble and
learned lord who assisted yesterday at the argument, authorized me to
say that he concurred in the decision of the Court below. The reluctance
which the Court below had in coming to that decision was, that there
was an appearance of an advantage being taken by one party.  But it
would be improper to state that in this stage of the proceedings. I concur in the proposition of my noble and learned friend.'
"' The question was then put, and the orders of the Courts below affirmed with costs."
No. 4.
ROTHSCHILD v. QUEEN OF PORTUGAL.(X)
": THIE bill was brought for discovery from the Queen of Portugal as
to the matters stated in the bill, and for a commission to examine
*witnesses in Portugal, and for an injunction to restrain an action [*566]
commenced against the plaintiff by the Queen of Portugal. It appeared
that the Portuguese Government had deposited with the plaintiffs certain
Portuguese bonds, as a security for moneys advanced by them to the Government, and that a contract had been entered into by the plaintiffs with
the Queen's agents in England, by which it was agreed that, on certain
events, the plaintiffs should sell the bonds, and place the produce of the
sale to the credit of their account with the Portuguese Government. The
plaintiffs sold the bonds, but claimed interest on their advances, and set
up that claim in defence to the action; the Queen's agents denying their
right to such interest, on the ground of delay in selling the bonds.  The
plaintiffs now sought by their bill for discovery of certain correspondence,
and other matters in aid of their defence to the action.
"c The Queen demurred to the bill on two grounds, first, that, as a Sovereign, the suit was not maintainable against her; and secondly, that the
plaintiffs had made no case for discovery.
", The leading arguments for the demurrer were, that the defence was
purely a legal question arising out of the contract itself, which must be
proved in the action, or otherwise the plaintiff could not recover. That
the discovery, therefore, was immaterial.  That, moreover, the bill did
not allege, nor did it appear that the Queen could make any discovery which
might not be had aliutnde, or that she had concealed or refused to discover any facts material to the plaintiff's case.  Lastly, that she could
not be made a defendant to this suit, the matter not being of a personal
nature, and that this case differed from that of the King of Spain v. Hul(x) 3 Young & Collyer's Rep. 594, (June 24, 1839.
DECEMBER, 1855.-26




394   PHILLIMORE ON INTERNATIONAL LAW.
let(y) in that respect; for there the King having filed a bill in Chancery
to recover a sum of money, a cross-bill was filed against him, charging
him with personal fraud.
"c Alderson B.-' In this case I expressed at the hearing my opinion
on several points; but before I gave my opinion finally on the whole case,
I wished to have an opportunity of reading the bill, in order to ascertain
whether any part of the discovery prayed by the plaintiff was material to
the question at issue in the Court of Law.  The question there clearly is,
whether the delay in selling the Portuguese bonds deposited as the collateral security for a debt, clearly, under ordinary circumstances, bearing
interest, was such laches, on the part of Messrs. Rothschild, as to deprive
them of the right of charging Her most Faithful lMajesty with such interest in the account current between them.  Now, if the conduct of Her
Most Faithful Majesty, through her lawfully authorized agents, was such
as to induce Messrs. Rothschild, as reasonable men, to suppose that by
*567] such delay they were *acting in conformity to Her Majesty's
wishes, they would justly be entitled to charge her with that interest.  Now, if the letters charged in the bill to have been written by
her authority were so written, I think many of them, at all events, if not
the whole correspondence, very proper to be laid before a jury in order
to prove that fact. Then if so, the bill which prays, amongst other things,
a discovery whether those letters were so written, prays a discovery material to the plaintiffs' defence at law.  It may be true that part of the
discovery prayed goes beyond the discovery to which the plaintiffs are
by law entitled. But this is immaterial upon the present demurrer, which
is a demurrer to the whole bill, and is not confined to the objectionable
parts of it.
"'  I am therefore of opinion that Her Most Faithful Majesty, being a
suitor voluntarily in a Court of English law, becomes subject, as to all
matters connected with that suit, to the jurisdiction of this Court of
Equity. That the discovery prayed by this bill is material to the plaintiffs' defence at law in that suit, and that this demurrer is too large and
must be overruled, and that it must be with costs."
" Demui'rer overruled."
No. 5.
Hilary Term, 7 Victorice.
THE DUKE OF BRUNSWICK V. THE KING OF HANOVER.
Argued before the Master of the Rolls, November 20th, 21st, 22nd, and
23rd, and Judgment given January 13th, 1844.(z)
Pleading —Demurrer- Process- Jtrisdiction —Egity — Sovereign —
Prince- Subject — Void Instrument —State Transactions.
" A bill was filed by Charles Frederick, Duke of Brunswick, against the King of
(y) 1 Clark & Finelly, 333.
(z) Law Journal (Chancery,) vol. xiii. p. 107.




APPENDIX.                               395
Hanover, who was sued as Ernest Augustus, Duke of Cumberland and Tevoitdale,
in Great Britain, and Earl of Armagh, in Ireland. The bill prayed a declaration
that a certain instrument, dated the 6th February and 14th March, 1833, and the
appointment of the Duke of Cambridge as guardian of the fortune and property of
the plaintiff; and of the persons appointed managers under him, and the su bsequent
appointment of the defendant as such guardian, were absolutely void; and that
the defendant was liable to account to the plaintiff for the property and effects of
the plaintiff possessed by the defendant, and that accounts might accordingly be
taken. It stated that in 1830 the plaintiff was the reigning Duke of Brunswick,
and was, in his private capacity, possessed and entitled to real and personal property, of great amount in Brunswick, England, Hanover, France, and elsewhere in
Europe; and that the Duchy of Brunswick bordered on the Kingdom of Hanover;
that in September, 1830, King William IV. of England was King of Hanover, and
the Duke of Cambridge Viceroy of Hanover, acting under the authority of the former; that pending a revolutionary movement, in 1830, in Brunswick, a decree of
the Germanic Diet was made, whereby the plaintiff's brother, Duke William, became Duke of Brunswick; that the plaintiff was thereby dethroned; that by an
instrument, dated in the year 1833, signed by King William IV. and William Duke
of Brunswick, the plaintiff was deprived of the management of his fortune, and
the Duke of Cambridge appointed supreme guardian, with power to appoint administrators of the fortune of the plaintiff, who were to account to the Duke of
Cambridge; that the guardianship was to be considered as legally established in
Brunswick, where it was to have its locality; that the last-mentioned document
was approved of and signed by the Dukes of Cumberland, Sussex, and Cambridge.
The bill then charged, that the last-mentioned document was void; but that nevertheless the Duke of Cambridge possessed himself of the private property of the
plaintiff, amounting to several hundred thousand pounds; that on the death of
King William IV., the defendant was, by some instrument, purported to be appointed guardian of the plaintiff's fortune and property, in the place of the Duke
of Cambridge; that the said appointments of guardians were invalid, according
to the laws, as well of Brunswick and Hanover, as of Great Britain; that the receipts and payments by the Duke of Cambridge and the defendant respectively, on
account of the plaintiff, and the management of his property, constituted a mutual
account, and that the same was still open and running, and, being intricate in its
nature, could only be taken in a Court of Equity; that the plaintiff was resident
and domiciled in England; and that the plaintiff and defendant were respectively
subjects of the Crown of Great Britain and Ireland; that the defendant was a peer
of this realm; and that his title, as such, was His Royal Highness Ernest Augustus,
Duke of Cumberland and Tevoitdale in Great Britain, and Earl of Armagh in Ireland; and that since his arrival in this country, and during his residence here, he
had exercised, and still exercised, rights and privileges as such peer as aforesaid.'The defendant, whilst temporarily resident in this country, was served with,
the process of the Court in this suit, upon which he applied to the Lord Chancellor
to relieve him from such process; but his Lordship refused the application. The
defendant then appeared to the bill, and afterwards filed a general demurrer thereto, for want of jurisdiction and want of Equity;-' Held, that the appearance of the defendant to the bill was no waiver of any defence he might have; and that the refusal of the Lord Chancellor to relieve the
defendant from the process of the Court which had been served on him, had not
the effect of deciding that the defendant was liable to the jurisdiction of the Court.
"Held, that the defendant was exempt from the jurisdiction of the Courts in this
country, for any acts done by him as King of Hanover, or inhis character of Soy.
ereign Prince; but that being a subject of Her Majesty Queen Victoria, he was
liable to be sued in the Courts of this country in respect of any acts and transactions done by him, or in which he might have been engaged as such subject; and
that in respect of any act done by him out of this realm, or any act as to which it
might be doubtful whether it ought to be attributed to the character of Sovereign
Prince or to the character of subject, the same ought to be presumed to be attributable ratherto the character of Sovereign Prince than to the character of subject.
" Held, also, that in a suit in this Court against a Sovereign Prince, who is also a
subject, the bill ought, upon the face of it, to show that the subject-matter of it
constitutes a case in which a Sovereign Prince is liable to be sued as a subject.
"Although with regard to English instruments intended to operate according to
English law, the Court may be able, even on demurrer, in a simple case, to adju



396   PHILLIM ORE ON INTERNATIONAL LAW.
dicate thereon, upon a mere allegation that the instrument is null and void; yet
with regard to a foreign instrument, intended to operate according to a law not
known in England, an allegation that the instrument is void is too vague.'d Semble.-The instrument complained of in the present case was, under the circumstances stated in the bill, connected with political and state transactions,
and was a state document."
THIS case came on to be heard on a demurrer to the plaintiff's bill for
want of jurisdiction and want of equity.
58  *Sir Charles Wetherell, Mr. Pemberton Leigh, and Mr.
Elmsley, appeared in support of the demurrer.
"Mr. Kindersley, Mr. G. Turner, and Mr. Heathfield, contrd."
The statements in the bill and the arguments at the bar having been
embodied by the Master of the Rolls in his judgment, it has not been
deemed proper to repeat them here.(a)
[*569]           *,, Judgment.
"t January 13th, 1844.-The Master of the Rolls: — The bill is filed
by His Serene Highness Charles Frederick William Augustus, Duke of
Brunswick, against His Majesty the King of Hanover, who is sued as
His Royal Highness Ernest Augustus, Duke of Cumberland and Tevoitdale in Great Britain, and Earl of Armagh in Ireland.
"s The bill prays, that it may be declared, that a certain instrument or
writing, in the bill mentioned to be dated the 6th of February and the
14th of March, 1833, and the appointment of His Royal Highness the
Duke of Cambridge as guardian of the fortune and property of the plaintiff, thereby purported to be made, and of the persons purported to be appointed administrators and managers under him, and the subsequent appointment of the defendant as such guardian, are absolutely void and of
no effect; and that it may be declared that the defendant is liable and
ought to account to the plaintiff for the personal estate, property, and
effects, and the rents, profits, and produce of the sale of the real estates
possessed by the defendant, or any person by his order, or for his use, or
(a) The following authorities were cited in the course of the arguments:Calvin's Case, 7 Coke's Rep. 15, b. Nabob of the Carnatic v. East India Company, 1 Ves. jun. 371; s. c. 3 Bro. C. C., 292. The Columbian Government v.
Rothschild, 1 Sim. 94; s. c. 5 Law J. Rep. Chanc. 43. Glyn v. Soares, 1 You. &
Col. 644; s. c. Law J. Rep. (N. S.) Ex. Eq. 49. Stat. 7. Ann. c. 12. 1 Black.
Com. 253. Lockwood v. Coysgarne, 3 Bur. 1676. Viveash v. Becker, 3 Mau. &
Selw. 284. Fisher v. Begrez, 1 Cr. & M. 117; s. c. 5 Law J. Rep. (N. S.) Ex., 13.
Vattel, 1. ii. c. xiv, s. 213. Ib. 1. iv. c. v. s. 55, p. 452. Yattel, c. vii. s. 80, p. 464.
Ib., s. 81, ib. Ib., c. vii. s. 92, p. 470. Ib., c. viii. s. 110, p. 488. Ib., s. 112, p.
490. Ib., s. 113, p. 491. Ib., s. 114, p. 492. Ib., s. 115, p. 493. The Corporation
of Carlisle v. Wilson, 13 Ves. 276. Stat. 1 Geo. I., st. xiii. s. 2. Stat. 13 Will. III.,
c. vi. s. 10. De la Toire v. Bernales, mentioned in 1 How. Sup. 149. Cases of
John Baliol, King of Scotland, summoned by Edward I. of England; and of Edward I. of England summoned by Philip le bel of France, as Duke of Guienne.
Melan v. the Duke de Fitzjames, 1 Bos. & Pul. 138. De la Vega v. Vianna, 1 B.
& Ad. 284; s. c. 8 Law J. Rep., K. B. 388. Hullet v. the King of Spain, 2. Bli.
(N. S.) 31; s. c. 1 Dow & Cl. 169. The King of Spain v. Hullet, 1 Cl. & Fin. 333;
s. c. 7 Bli. 359. Grotius, Law of Nations, b. ii. c. xiv. s. 101. Story on the Conflict of Laws (2nd Edit.,) c. viii. s. 244, p. 322. Earl of Derby v. Duke of Athol,
1 Ves. sen. 292. Novello v. Toogood, 1 B. & C. 554; s. c. I Law J. Rep., K. B.,
181. Co. Lit. (Hargrave's edit.) s. 180. Selden's Table Talk,; Equity," pp. 83,
128, (a) note. Money v. Leach, 1 W. Black. 563.




APPENDIX.                          397
any person having acted or purported to act under any appointment as
administrator or manager under the defendant, since his appointment as
guardian *by virtue of the instrument of the 6th of February [570
and the 14th of March, 1833, including therein the personal estate [* ]
and effects, rents, profits, and produce of the real estate paid or accounted
for to the defendant by the Duke of Cambridge; and that such accounts
may be accordingly taken-the plaintiff offering, on the taking of such
accounts, to make the defendant all just allowances.
"' For this purpose, the bill states that in the year 1830 the plaintiff
was the reigning Duke of the Duchy of Brunswick, and was, in his
private character or capacity, possessed of and entitled to real and personal
property in Brunswick, and in England, Hanover, France, and elsewhere
in Europe, to a very considerable amount; that the Duchy of Brunswick
bordered on the Kingdom of Hanover; and that in the month of September, 1830, His late Majesty King William IV. was King of Hanover,
and His Royal Highness Adolphus Frederick, Duke of Cambridge, was
Viceroy of Hanover, acting under the authority of His late Majesty King
William IV.: that pending a revolutionary movement in Brunswick, a
decree of the Germanic Diet of Confederation was made on the 2nd of
December, 1830, whereby the plaintiff's brother, William, Duke of
Brunswick, was invited to take on himself provisionally the government
of the duchy; and the Diet left it to the legitimate dynasty of the plaintiff to provide for the future government of the duchy; and that in February, 1831, His late Majesty King William IV. and William, Duke of
Brunswick, claiming to be the legitimate agnati of the plaintiff, caused
to be published a declaration, whereby they purported to dethrone the
plaintiff from the throne of the duchy, and declared that the throne had
passed to Duke William; and that after this declaration was made, it
was signed by their Royal Highnesses the Duke of Cumberland (the
present defendant,) the Duke of Cambridge, and the Duke of Sussex;
and that in pursuance of the declaration, William, Duke of Brunswick
took upon himself the government of the duchy, and he had ever since
exercised the rights, powers, and authorities of Sovereign Duke of Brunswick.
"'c The bill then proceeds to state, that early in the year 1833, an
instrument in writing, dated the 6th of February and the 14th of March
in that year, signed by His late Majesty King William IV., and by
William, Duke of Brunswick, was promulgated by them, and was to the
effect following, viz.:-' "' We, William IV., by the grace of God, King of the United Kingdom of Great Britain and Ireland, and of Hanover, Duke of Brunswick
and of Lunenburgh, make known what follows: Moved by the interests
of our house, whose well-being is confided to us, and yielding to a painful, but inevitable necessity, have thought it necessary to consider what
measures the interests (rightly understood) of His Highness Charles, Duke
of Brunswick (the plaintiff,) the preservation of the fortune now in his
hands, the dangers and *illegality of the enterprises pursued by   571
the said Duke, and lastly, the honour and dignity of our house, [571
may require: and after having heard the advice of a Commission, charged




398   PHILLIMORE ON INTERNATIONAL LAW.
by us with the examination into this affair, and after having weighed and
exactly balanced all points of fact and law; and whereas after the dissolution of the Germanic Empire, the powers of supreme guardianship over
the Princes of the Empire, which, up to that period, had appertained to
the Emperor, devolved on the heads of Sovereign States, we, taking into
consideration the laws and customs, by virtue of the rights unto us belonging, in quality of heads of the two branches of our house, have decreed
as follows:c' c  " Article I.-Certain facts, either notorious, or sufficiently proved,
have caused us to arrive at the conviction, that His Highness Duke
Charles is at this time wasting the fortune which he possesses in enterprises alike impossible and dangerous both to himself and other persons,
and is seeking to damage the just claims which certain persons interested,
now or hereafter, may legally have upon his property, we have consequently considered, that the only method of preserving the fortune of His
Highness Duke Charles from total ruin, is to appoint a guardian over
him.
"'CArticle 2.-In consequence of this conviction, we decree that
Charles, Duke of Brunswick, shall be deprived of the management and
administration of his fortune; a guardian shall be appointed, whom we
shall choose by mutual consent from amongst the very noble or noble
male scions of our house, although the right of choice belongs to the legitimate Sovereign of the Duchy of Brunswick, in virtue of his title alone.
"' v "Article 3.-His Royal Highness the Duke of Cambridge, Viceroy
of Hanover, having declared that he will willingly accept such guardianship, we confide the same to His Royal Highness by the present decree,
which he will be pleased to consider as constituting his title to such guardianship.
"'"Article 4.-As His Royal Highness the Duke of Cambridge
cannot, by reason of his position, by himself alone exercise the functions
of guardian, he is authorised to limit himself to the functions of supreme
guardian, and to substitute for the management and administration of the
property one or more persons, who, under oath, will proceed in their own
name, and on their own personal responsibility, to make an inventory of
the same, and to take measures for the preservation and administration
of the fortune placed under the guardianship of His Royal Highness, the
supreme guardian, who is to be at liberty to grant them fees proportionate
to their duties.
It' " d Article 5.-The administrators shall render an annual account
of their management to His Royal Hiigeness, the supreme guardian, who
shall be asked to transmit the same to us, that we may cause the same
*5721 to be settled and approved.  Our confirmation *shall be applied
for in all cases wherein the laws require the consent of the supreme
guardian.
i" c c' Article 6.-The guardianship is to be considered as legally established in Brunswick, where it is to have its locality.
"' " Article 7.-The present decree shall be published in the bulletin
of the laws of the kingdom, in accordance with the usual forms; and all
whom the same may concern are bound to render obedience thereto."




APPENDIX.                           399' This is dated at St. James's, the 6th of February, and at Brunswick the 14th of March, 1833.  It is signed by the King of Hanover,
William  IV., King of England, and by William, the reigning Duke of
Brunswick.
"' To this instrument was subjoined a Note, which was signed by the
defendant, then Duke of Cumberland, and by the Dukes of Sussex and
Cambridge, to the effect following:We,'  We the undersigned, have acknowledged with gratitude the foregoing arrangement adopted by His Majesty, in accordance with His
Highness, the reigning Duke of Brunswick, in the interests well advised
of His Highness the Duke Charles of Brunswick, for the preservation of
the fortune remaining in his hands, for the maintenance of the public
peace in the Duchy of Brunswick and in the Kingdom of Hanover, and
for the honour and dignity of the great house of Brunswick Lunenburgh,
another proof of the foresight of His Majesty and of His Highness for
the well-being of that house; we solemnly attest the declaration by
these presents, signed with our hands, and to which we have placed our
seals.
"' L' London, 6th February, 1833. ERNEST. (L. s.)
Kensington, 3rd February, 1833.  AUGUSTUS FREDERICK. (L. S.)
Hanover, 13th February, 1833.  ADOLPHEUS. (L. s.)"
"' The bill then states, that the plaintiff is advised, as the fact is, that
the said instrument is absolutely void and of no effect; but that nevertheless the Duke of Cambridge accepted the appointment of supreme
guardian of the plaintiffs fortune and property, took possession of the real
estates to which he was entitled in his private capacity at Brunswick,
and took possession of all such parts of the plaintiff's property in Brunswick and elsewhere, of a personal nature, as he could discover, to the
amount of several hundred thousand pounds, in the whole: that he sold
and converted several parts thereof into money, and made certain payments on account of the plaintiff, and of his property; but that after
allowing for such payments, there remained in his hands a very large
surplus unaccounted for; that King William IV. died on the 28th of
June, 1837, and thereupon the present defendant became King of Hanover; and the Duke of Cambridge having resigned his appointment of
guardian by some instrument *in writing, to which the defendant [573
was a party, and which was signed by him and by William Duke [5 ]
of Brunswick, the defendant was purported to be appointed guardian of
the plaintiff, and of his fortune and property, in the place of the Duke
of Cambridge, under the instrument of the 6th of February and the 14th
of March, 1833, and with all the same powers and authorities as were
thereby purported to be conferred on the Duke of Cambridge: that the
Duke of Cambridge accounted for his receipts and payments to the defendant, and paid him the balance; and that the defendant took possession
of the plaintiff's property, and has received large sums of money on account thereof, and has thereout made some payments on account of the
plaintiff; and that a very large balance or surplus, to the amount of several hundred thousand pounds, remains due from the defendant to the




400   PHILLIMORE ON INTERNATIONAL LAW.
plaintiff on account thereof; and that the defendant refuses to comply
with the plaintiff's application, for an account thereof.
" ( The bill charges, that the instrument of the 6th of February and
the 14th of March, 1833, and the appointment of the Duke of Cambridge
as guardian, and the appointment of the defendant as guardian, are wholly
invalid, according to the laws as well of Brunswick and of Hanover, as
of Great Britain; but that under colour thereof, the Duke of Cambridge
and the defendant respectively took possession of the plaintiff's property
on his behalf, and not adversely; that by the law of England, such
appointments of guardians, and all the rights thereby purported to be
given, are void, even if the same were valid by the law of Brunswick;
and that if the same were valid at the time when the same were issued,
having regard to the circumstances and situation of the plaintiff at the
time (which, however, the plaintiff denies,) there is now nothing in the
circumstances, or conduct, or state of mind of the plaintiff to debar him
from the full right and power of enjoyment and disposition of his property.
i"  There is a charge that the receipts and payments by the Duke of
Cambridge and the defendant respectively, on account of the plaintiff,
and the management of his property, constitute a mutual account containing many items as well on the, debit as on the credit side thereof; that
such account is still open and running, and is of an intricate and complex
nature, and can only be taken in a Court of Equity.,',There are also charges relating to the administrators and managers
who were appointed by the Duke of Cambridge, and are alleged to have
accounted to the defendant, and a very long statement of certain proceedings in France, in which it is alleged that the Duke of Cambridge attacked, but failed in an attempt to establish a claim to the plaintiff's property
in that country; a specification of certain property alleged to have been
seized by the Duke of Cambridge and the defendant respectively; and
the *statement of a transaction alleged to have taken place at Oste[*574] rode in November or December, 1830.
"' The plaintiff having, in an earlier part of the bill, stated, that from
a time previous to the Duke of Cambridge resigning the appointment of
guardian, until within a few weeks past, the defendant had been residing
in Hanover, out of the jurisdiction of this Court; and having charged
that the plaintiff was resident and domiciled in England, and that the
plaintiff and defendant were respectively subjects of the Crown of Great
Britain and Ireland, concludes the charging part of the bill by charging,
that the defendant is a Peer of this realm, and that his title as such is
His Royal Highness Ernest Augustus, Duke of Cumberland and Tevoitdale in Great Britain, and Earl of Armagh in Ireland; and that since
his arrival in this country, and during his residence here, he had exercised, and still exercises, rights and privileges as such Peer as aforesaid.,,' It has been stated to me as a fact on both sides, that the plaintiff'
availed himself of a temporary residence of the defendant in this country
to serve him with the process of this Court; and that the defendant before
he appeared to the bill, and consequently before the demurrer was filed,
applied to the Lord Chancellor to be relieved from the process; that the




APPENDIX.                           401
Lord Chancellor refused the application; and that thereupon the defendant appeared to the bill in the usual manner: and upon this state of
things the plaintiff has founded an argument, which, if valid, would make
it unnecessary for me to consider the principal question upon the demurrer. The plaintiff has contended, first, that the appearance of the defendant to to the process ought to be deemed a waiver of any claim to personal exemption from liability to be sued; and secondly, that the refusal
of the Lord Chancellor to relieve the defendant from the process ought
to be considered by me as a decision of the Lord Chancellor, that the
defendant is subject to the jurisdiction of this Court with reference to the
subject-matter of this bill.
c( c As to the first of these points, it would be singular if appearance,
which is the first step towards making a defence, should be deemed an
abandonment or waiver of any defence which the defendant may have.
An appearance may be a waiver of any mere irregularity in the service of
process; but I am of opinion that it is no waiver of such a defence as is
now made, and which the defendant has clearly a right to submit to the
consideration of the Court.  He claims to be exempt from liability to
be sued, but he nevertheless appears, in order that he may, in a regular
manner, inform the Court of the reasons upon which his claim is founded.
As to the other point, it appeared to me very improbable that the Lord
Chancellor, in refusing to stay the process upon a bill, the contents of
which were not regularly known to him, could have *meant to  *575
decide that the defendant was, with reference to the contents of I
the bill, liable to the jurisdiction of the Court. Upon this part of the
case I have, however, thought it right to communicate with the Lord
Chancellor, who has informed me, that in declining to interfere with the
process, he did nothing which could in any way prevent the defendant
from making any defence which was open to him in the usual course of
proceeding; and that he gave no opinion upon the question of jurisdiction in the particular case. It is, therefore, incumbent upon me to consider the defence made to this bill by the present demurrer.
cc' In support of the demurrer for want of jurisdiction, the following
are amongst the principal propositions advanced on behalf of the defendant:-First, he is by the bill admitted to be King of Hanover, a Sovereign Prince, recognised as such by the Crown of England. As a Sovereign Prince his person is inviolable, and he is not liable to be sued in
any Court.  Second, the inviolability of a Sovereign Prince is not confined to his own dominions, but attends him everywhere. Though a
King be in a foreign kingdom, yet he is judged in law a King there.(7 Coke, 15.) Third, his inviolabiliiy is not affected by his being temporarily resident in a foreign kingdom, of which he is a subject. The defendant is not the less a Sovereign Prince, and not the less exempt from
being sued in any Court here, because he is a subject of the Queen and
a Peer of the realm. Fourth, even if the defendant should be held liable
to be sued for some things in this country, he ought not to be held liable
to be sued in respect of the particular subject-matter of this suit, which
is alleged to be matter of State, and not matter of forensic jurisdiction.
Fifth, and finally, even if the defendant should be held liable to be sued




402    PHILLIMORE ON INTERNATIONAL LAW.
here, and if the subject-matter of the suit should be held to be matter of
forensic jurisdiction, yet that it is not matter subject to the jurisdiction
of this Court, but is matter which must be deemed to be subject to the
jurisdiction of some Court of special and peculiar jurisdiction, such as
in this country are proceedings arising in lunacy, bankruptcy and various other matters, which, although proper subjects of forensic jurisdiction, can only be adjudicated upon in Courts specially appointed for the
purpose.
"'On the other hand, the following are amongst the principal propo.
sitions advanced in support of the bill on behalf of the plaintiff: —First,
this ought to be considered as an ordinary suit between subject and subject.  The plaintiff and defendant are lineal descendants of the Princess
Sophia, Electress and Duchess Dowager of Hanover, and as such (4 Ann
c. 4,) are, to all intents and purposes, to be deemed natural-born subjects
of this realm. The plaintiff is domiciled here. The defendant was born
here, is an English Peer, and has taken the oath of allegiance (1 Geo. I.
stat 2, c. 13.) Second, no English subject can withdraw from his allegiance and subjection to the law of the'land.  His becoming a
[*576] Sovereign Prince of another country can make no difference in
this respect: he remains an English subject, and is bound to obey the
laws of England. Third, the law of England affords no authority for
the proposition, that Sovereign Princes, resident here may not be sued
in the Courts here; and there are dicta to the contrary; as in Calvin's
case it is said, that if a King of a foreign nation come to England by the
leave of the King of this realm, (as it ought to be) in this case he shall
sue and be sued by the name of a King; and it is reported, that in the
case of De la Torre v. Bernales, Sir Sohn Leach stated it to be his opinion that foreign Sovereigns could both sue and be sued in this country.
In support of this proposition, reference was made to proceedings in which
John Baliol, King of Scotland, was summoned to answer charges made
against him in the Court of Edward I., King of England; and to proceedings in which Edward I., King of England, was summoned to answer
charges made against him in the Court of Philip le Bel, King of France,
at Paris. But these cases have nothing to do with the question: they
were respectively adopted in virtue of and for the purpose of enforcing
the superiority which Edward I. claimed to have over the Kingdom of
Scotland, and the superiority which the King of France had over the
province of Guienne. Fourth, liability to suit does not necessarily involve
liability to coercion. The defendant, as an English Peer, is by privilege
protected from personal coercion; and even if a Sovereign Prince, without
such peculiar privilege, were a defendant here, this Court has power so
to modify its process as at the same time to do justice to the plaintiff,
and have due regard to the person and dignity of the defendant.  Fifth,
the law of nations, the general law, and the common interest of all mankind, is, that justice should be done all over the world. The right of a
suitor here is not to be impeded by the assertion of an unrecognised privilege in any person against whom  he has a legal demand.  Sixth, the
Queen of En'gland is liable to be sued in a proper form-a form not applicable to a foreign Sovereign; but if a foreign Sovereign were not liable




APPENDIX.                            403
to be sued here at all, he would be placed in a better situation than our
own Sovereign, which, it is said, would be absurd.
" c These propositions are all of them more or less important to be considered on the present occasion, and I have thought it convenient to enumerate them, although I shall not have occasion to observe upon them
all in stating the grounds of the opinion which I have formed on this
demurrer. The general proposition of the defendant is, that by reason
of his character of a Sovereign Prince, he is exempt from the jurisdiction
of any tribunal or Court in this country. His limited or modified proposition, adapted to the specialties of this case, is, that he is exempt from
the jurisdiction of any tribunal in this country, in *respect of  577
acts done in a foreign country, under foreign authority and in no [577
way connected with his own character of English Peer and English subject.  It has been fully established-The King of Spain v. Machado,(t)
Hullet v. the King of Spain, and see Roi d'Espagne v. Pountes,(u) Bulstrode, 822, Hobart, 78, 113, Moore, 850, Barclay v. Russell,(x) Dolder
v. Lord Huntingfield(y)-that a foreign Sovereign may sue in this
country both at law and in equity; and further, that if he sues in a
Court of Equity, he submits himself to the jurisdiction of the Court.  A
cross-bill may be filed against him, and he must put in his answer thereto,
not by any officer, agent, or substitute, but personally, upon his own oath.
The King of Spain v. Hullet, Lord Redesdale(z) considered, that to refuse
a foreign Sovereign the right of suing in our Courts might be a just
cause of war; and the liability of a foreign Sovereign to be sued in a
case where he himself was suing here, was founded upon the principle
that by suing here he had submitted himself to the jurisdiction of the
Court in which he sued. The decision is in accordance with the rules
of the civil law.  The Reconventio is a species of defence, and "a Qui non
cogitur in aliquo loco judiciumn pati si ipse ibi agit, cogitur excipere actiones et ad eundum judicem  mitti." —Digest, 4, j., 2, 22, Corpus Juris
Civilis, p. 131. In the case of Glyn v. Soares, it was supposed that a
person who was not party to an action, but whose agent was, on his behalf, the plaintiff, might be made a defendant to a bill in equity, for discovery in aid of the defence to the action, and on that supposition it was
held that the Queen of Portugal was properly made a defendant to the
bill. Her demurrer was, however, allowed in the House of Lords,(a)
where it was held that such bills of discovery could only be sustained
against parties to the action.  If she had been plaintiff in the action, I
presume that she would have been held to be a proper defendant to the
bill. The case mentioned by Selden in his Table Talk (Law 3,) was
probably of the same sort: there were many suits pending between the
King of Spain and English merchants; a merchant had recovered costs
against him in a suit, and could not get them, and process of outlawry
was taken out against him for not appearing; but the circumstances are
not stated with such particularity as to make it practicable to draw any
(u) Roll. Abr., tit. " Court de Admiraltie" (E) 3; s. c. 1 Roll. Rep. 133.
(x) 3 Ves. 432.                     (y) 11 lb. 283.
(z) 2 Bligh (N. S.) 60.   (a) The Queen of Portugal v. Glyn, 7 C1. & Fin. 40GG




404   PHILLIMlORE ON INTERNATIONAL LAW.
[5781 conclusion from them.  The *cases which we have upon this point
go no further than this, that where a foreign Sovereign files a bill,
or prosecutes an action in this country, he may be made a defendant to
a cross-bill or bill of discovery in the nature of a defence to the proceeding, which the foreign Sovereign has himself adopted.  There is no case
to show that, because he may be plaintiff in the Courts of this country
for one matter, he may therefore be made a defendant in the Courts
of this country for another and quite a distinct matter; and the question
to be now determined is independent of the fact stated at the bar, that
the King of Hanover is, or was, himself plaintiff in a suit for an entirely
distinct matter in this Court.(b),' There have been cases in which this Court, being called upon to
distribute a fund in which some foreign Sovereign or State may have had
an interest, it has been thought expedient and proper, in order to a due
distribution of the fund, to make such Sovereign or State a party.  The
effect has been, to make the suit perfect as to parties, but as to the Sovereign or State made a defendant in cases of that kind, the effect has not
been to compel or attempt to compel, such Sovereign or State to come in
and submit to judgment in the ordinary course, but to give the Sovereign
an opportunity to come in and claim his right or establish his interest in
the subject of the suit. Coming in to make his claim, he would, by doing
so, submit himself to the jurisdiction of the Court in that matter; refusing
to come in, he might, perhaps, be precluded from establishing any claim
to the same interest in another form.  So where a defendant in this
country is called upon to account for some matter in respect of which he
has acted as agent for a foreign Sovereign, the suit would not be perfect
as to parties, unless the foreign Sovereign were formally a defendant, and
by making him a party, an opportunity is afforded him of defending
himself, instead of leaving the defence to his agent, and he may come in
if he pleases; and in such a case, if he refuses to come in, he may perhaps be held bound by the decision against his agent.
"'  There may be other cases in which Sovereign Princes, for the sake
of having a claim or right determined, may have been afforded an opportunity of appearing, and may have voluntarily appeared as defendants
before the tribunals of this country; but save in the case of a cross-bill
or bill of discovery, in aid of a defence, and in the case of a Sovereign
Prince voluntarily coming in to make or resist a claim, it does not appear
how he can be effectually cited, or what control the Court can have over
[*579] him or his rights, and no case has been produced in which it *has
[579 ] been determined that a foreign Sovereign, not himself a plaintiff
or claimant, and insisting upon his alleged right to be exempt from the
jurisdiction of the ordinary Courts, has been held bound to submit to it.
On the other hand, no case has been produced in which, upon the question properly raised, it has been held that a Sovereign Prince, resident
within the dominions of another Prince, has been held to be exempt from
the jurisdiction of the Courts of the country in which he is. In the case
(b) The King of Hanover v. Wheatley, 4 Beav. 78; s. c. 10 Law J. Rep. (N. S.)
Chanc. 253.




APPENDIX.                           405
of Glyn v. Soares, the question was not mooted at the bar, but Lord Abinger took it into consideration, and distinctly expressed his opinion that,
as a general proposition, a Sovereign Prince could not be made amenable
to any Court of judicature in this country; and upon this occasion, the
defendant insists upon it as a general rule, that, in times of peace at least,
a Sovereign Prince is, by the law of nations, inviolable; that obvious
inconvenience, and the greatest danger of war, would arise from any
attempt to compel obedience to any process or order of any Court, by any
proceeding against either the person or the property of a Sovereign
Prince; and, indeed, that any such attempt would be a hostile aggression,
not only against the Sovereign Prince himself, but also against the State
and people of which he is the Sovereign: that it is the policy of the law
(to be everywhere taken notice of,) that such risks ought to be avoided,
and that this view of the subject ought of itself to induce the Court to
allow this demurrer. If a foreign Sovereign could be made personally
amenable to the Courts of a country in which he happened to reside, he
must be subject to the ordinary process of the Courts, and if not protected by any privilege legally established by the law of England, he would
in this country be subject to the execution of writs of attachment and
ne exeat regno, and other processes upon which he might be arrested, and
upon this the counsel for the defendant cited the opinion of Vattel, who
considered it to be a ridiculous notion and an absurdity to think that a
Sovereign who enters a foreign country, even without permission might
be arrested there.-Vattel 4, 7, s. 108, p. 486.,"'It was attempted to meet the force of this argument by alleging
that this Court has authority to modify the means of executing its process and compelling obedience to its orders, so as to suit the rank or dignity of particular defendants; but this allegation was not supported by
any authority or by reference to any known law or practice of the Court.
In the case of the King of Spain, it was stated that his right " in respect
of privilege in the Courts of England was not greater than that of any
of his subjects;" and the Lord Chancellor said, "s the King of Spain sues
here by his title of Sovereign, and so he must be sued, if at all; but
beyond the mere name of Sovereign, it has no effect.  He brings with
him no privileges which exempt him from the common *fare of *580
other svtors."  I am of opinion that the only exemptions from [580
the ordinary effects of the process of this Court are privileges which have
a recognized legal origin, and that no others can be allowed.  To show
that a Sovereign Prince carries his prerogative with him into the dominions of other Princes, reference was made to the case of Engelramo de
Nogent, stated in Fleta, lib. 2, ch. iii. s. 9, p. 68, and cited in Calvin's
case, and also in- Moore, 798. This man was an attendant upon Edward
I., King of England, when in France; he committed a theft there, and
was apprehended for it by the French, but the King of England required
to have him redelivered, being his subject, and of his train, and upon
dispute in the Parliament of Paris, he was sent to the King of England,
to do his own justice upon him; whereupon he was tried before the
Steward and Marshall of the King of England's house, and executed in
France.  At a more recent period, Monaldeschi, an attendant upon




406   PHILLIMORE ON INTERNATIONAL LAW.
Christina, the abdicated Queen of Spain, was by her orders put to death
within her residence in France(c)-a fact in itself atrocious, but which
was not seriously resented by France; and it is said to have been afterwards defended by great authority.  Bynkershoek speaks of it thus:c"Quod factum  Galli quamvis indignabundi impune transmiserunt, ex
impotentia muliebri dicet alter, alter vero ex jure gentium, ut optimum
maxitnumque est;"(d) but I own that, with reference to the present case,
I do not attach much importance to instances of this sort.  The doctrine
or fiction which has been expounded by some writers on the law of nations,
under the name of extra-territoriality, (Martens, 46, Wheatley, 1273,)
if it were carried out to its legitimate consequences, would, as it appears
to me, render it highly dangerous for the Sovereign of any country to
admit within his dominions any foreign Sovereign or even any ambassador of a foreign Sovereign.  It is admitted, that the extent to which the
doctrine should be carried out must be subject to great modifications, and
I do not think that it affords any assistance in the practical consideration
of the question, which are the exemptions or privileges which ought, by
the law of nations, to be allowed to a foreign Sovereign temporarily resident within the dominions of another Prince.
"'Another argument for the defendant was, that a Sovereign coming
from his own dominions into this country, attending the Court of the
Queen, and sitting in Parliament, must be deemed to have come with the
consent of the Queen, and to have been entitled to a safe conduct, which
would have contained a prohibition to sue him in any Court; that there[*5811 fore the defendant *ought to be deemed to have come and resided
Li ]*1 here on the faith of such right, which he is not the less entitled
to, because the letters of safe conduct were not actually applied for and
issued.  This argument assumes that letters of safe conduct, such as
might and lawfully ought to be issued at this time and on the occasion
of such a visit as that made to this country by the King of Hanover,
would have contained a prohibition to prosecute such a suit as this.'c e But the argument for the defendant, which appears to me to be the
most important, was founded upon analogy to the immunities of ambassadors, recognized and declared to be in accordance with the law of England, by the statute of 7 Ann. c. 12. By that statute it was declared
"c that all writs and processes sued forth or prosecuted, whereby the person of any ambassador of any foreign Prince authorized and received as
such by Her Majesty, may be arrested or imprisoned, or his goods distrained, seized, or attached, shall be deemed to be utterly null and void;"
and after a penal clause affecting any person who may sue out any such
writ or process, there is a proviso that no merchant or trader within the
description of the statutes against bankrupts, who puts himself in the
service of any ambassador, shall have or take any benefit by the act.
It is argued that the law of nations and the law of the land having granted
such immunites to ambassadors, the mere envoys and agents of Sovereign
Princes, cannot have refused at least equal immunities to the Sovereigns
(c) Le Bel, Relation de la MAort de Mary de Monaldeschi, &c., Arch. Cur., 2 Ser.
c. 8, 287.
(d) Bynk., Op., ii. 151.




APPENDIX.                            407
themselves, on whose account the immunities to ambassadors were given.
If it be right (as is universally admitted) that ambassadors should have
such immunities, it must d fortiori be right that Princes should have
them; and thus it is argued, that because ambassadors are held to be
inviolable in the countries where they reside, Princes ought also to be so.
But, on the part of the plaintiff, this is denied, and it is said that we must
look at the reason of the law.  An ambassador, who comes into a foreign
State on the business of his Sovereign, which cannot be transacted without
entire freedom and independence on his part, must be allowed privileges
which are in no way required for the protection or accommodation of a
Prince who comes on a visit of pleasure or compliment; and, moreover,
that the immunity of an ambassador does not extend to every suit of
every kind. There are exceptions depending on the peculiar liabilities
or obligations of the person, or on the nature of the transaction, and it
cannot be inferred that because an ambassador is in some or many cases
exempt from suit, that therefore a foreign Prince is exempt from suit in
all cases. The question upon the demurrer is to be determined by that
which may be thought to be the law of nations applicable to the case;
there is no English law applicable to the present subject unless it can be
derived from the law of nations, which, when ascertained, is to be deemed
part of the %common law of England. The law of nations includes
all regulations which have been adopted by the common consent [    ]
of nations, in cases where such common consent is evidenced by usage
or custom.  In cases where no usage or custom can be found, we are
compelled (amidst doubts and difficulties of every kind) to decide in particular cases according to such light as may be afforded to us by natural
reason, or the dictates of that which is thought to be the policy of the
law: "~ Lege deficiente, recurritur a consuetudinem, et deficiente consuetudine, recurritur ad rationem naturalem," and in the case now in question, it does not appear that there have been cases, or that events have
occurred from which any usage or custom of nations can be collected.
"' Bynkershoek, in his Treatise "I De Foro Legatorum," cap. iii. (Op.
2, 150,) discusses the very question which is now under consideration;
he supposes a Sovereign Prince to pass into the dominions of another
Prince, for any cause whatever of business or pleasure.  It is not, he
says, to be supposed that the Prince went there with the intent to put
off his own sovereignty and become the subject of another; yet, what is
to be done, if he commits violence or contracts debts in the country where
he is?  This, he says, will depend on the law of nations, adopted from
reason and mutual consent, and established by usage. If we consult
reason much is to be said on either side. If a Prince, in the dominion
of another, becomes a robber, homicide, or conspirator, is he to escape
with impunity?  If he extorts money, or becomes indebted, is he to be
permitted to carry home his plunder? It is, he says, difficult to admit
that; and yet, on the other hand, is that which reason and the consent
of all nations has granted to ambassadors, because they represent a Prince
and obey his orders, to be refused to the Prince himself, perhaps transacting his own affairs? Is the sanctity of the Prince less than that of
his ambassador?  Shall we compel the Prince himself to answer when his




408      PIILLIMORLE ON INTERNATIONAL LAW.
envoy is free? The learned writer, after in vain searching for precedent,
proceeds thus:-c- Nihil in hoc argumento proficies rebus similiter ia gentibus judicatis, atque ita sola superest ratio quem consulamus; et hac
consultd ego non ausim plus juris tribuere in principem non subditum
quam in legatum  non subditum.  Quare ut extremum est in legato ut
jubeatur imperio excedere, sic et in principe statuerem, si jus hospitii
violet.  In causa seris alieni idem dixerim, nam arresto detinere principem, ut aes alienum  expungat, quamvis forte stricti juris ratio permitteret, non permittit tamen analogia ejus juris qoud de legatis ubique
gentium receptum est.  Si neges ubi de jure gentium agitur ex analogia
disputari posse, ego negaverim hane quiestionem ex jure gentium expediri
posse, cum exempla deficiant quibus consensus gentiumt  probetur, nee
quicquam adeo supersit, quam ut ad legatorum  exemplum ipsos reges et
[*583] principes, *et quidem magis, ab arresto dicamus immunes, et in eo
LI[~     ] h cinteris privatis differre."
I" In a case where there is no precedent, no positive law, no evidence
of the common consent of nations, no usage which can be relied on, where
reasons important and plausible are arrayed in opposition to each other,
and where no clear and decided preponderance is to be found, it seems
reasonable to endeavour to borrow for our guidance some light, however
feeble and uncertain, which may be afforded by analogous cases, from
whence have been derived rules adopted with great, though not perfect
uniformity, by all nations.  It is true that a decision derived from principles supported by analogous cases alone, cannot be entirely satisfactory;
and yet it may be the best, the most satisfactory, which the nature of the
case admits of. It will be more satisfactory in proportion to the closeness
of the analogy between the cases under consideration. It must be admitted, that all the reasons assigned for the immunity of ambassadors are
not applicable to the case of Sovereign Princes; and it has been truly
observed, that an ambassador, if exempt from the coercive power of the
law in the country where he is, may, nevertheless, be compelled to submit to justice by his Prince in his own country; but that if you exonerate the Prince himself, justice fails altogether: but in ultimate effect
the cases come very nearly to the same result.  The Prince, not being
subject to a foreign Power, may refuse to compel his ambassador to do
justice, or may refuse to do the justice declared by a foreign tribunal,
when requested by a foreign Power; and the refusal in either case
becomes a ground of imputation against the Prince who refuses, and may
give rise to those irritations which are so apt to prove incentives of war.
Investigate the subject as we may, considerations of this sort press upon
us.  Whilst a prevailing respect for humanity and justice resides in the
breasts of Princes, and when there is consent as to the means of ascertaining and promoting the ends of justice in particular cases, it is well;
but in the last result of any enquiry on the subject we find that, in the
absence of moral sanctions and of treaty, war and reprisals (i. e., war
again in a particular form) are the sanctions of that which is called the
law of nations. If we hold foreign Princes to be amenable to the Courts
of this country, the orders and decrees which may be made cannot be
executed by the ordinary means-where is the power which can enforce




APPENDIX.                            409
obedience? If accidental circumstances should give the power, and if,
for the supposed purposes of justice an attempt were made to compel the
obedience of a Sovereign Prince to any process, order, or judgment, he,
and the nation of which he is the head, and probably all other Princes,
and the nations of which they respectively are the heads, would see, in
the attempt, nothing but a hostile aggression upon the inviolability [*584]
*which all claim as the requisite of their Sovereign and national
independence.  On the other hand, if the jurisdiction of the Courts
against Sovereign Princes be excluded, we are on the institution of a
claim, very nearly, though not quite, in the state to which we are brought
by the process, order, or judgment on the former supposition. The State
may have to seek redress for the injured subject, and justice is to be requested from a person against whom you have no ordinary power to
enforce it.  It may be refused; acquiescence in the refusal is the abandonment of justice, and pressure after refusal implies an imputation, and
gives rise to discussions and irritations which may again prove incentives
to war.  Justice can be peaceably and effectually administered and ern
forced there only where there is recognized authority and adequate power.
What is to be done in cases where the authority is denied, where there is
no power to enforce it?
" It must be admitted, that the subject is replete with difficulties. The
difficulties of the subject, and the importance of maintaining the legal
inviolability of Sovereign Princes, can scarcely be shown more strongly
than by adverting to the opinions which have been expressed by eminent
jurists, that offences committed by Sovereign Princes in foreign States
ought rather to be treated as causes of war, than as violations of the law
of the country where they are committed, and ought rather to be checked
by vengeance, and making war on the offender, than by any attempt to
obtain justice through lawful means.  Zouch, " Solutio Qumstionis," &c.
(cap. iv. p. 66,) says, " Ad id quod asseritur male curm principibus actuam
iri, si in eorum territoriis, aliis principibus in eorum pernitiemn conjurandi
licentia sit permittenda, respondetur quod talis licentia neutiquam est
permittenda. Sed eos bello prosequi juri gentium consentaneum est; et
si cumr in territoria principis in quem conjurarunt deprehensi sunt, pre-,
senti vindicta uti melius videbitur; juri gentiure convenit disfidare et
pro hostibus declarare unde non expectato judicio cuivis eos interficere impune liceat."  And Bynkershoek (Op. 2, 151,) says, "Quid si enim,
more latronis, invitam in bona in pudicitiam cujusque irruat, nec secus
atque hostis captq grassetur in urbe.  Poterit utique detineri forte et
occludi quamvis per turbam malim quam constitutio judicio."
"' c When great and eminent lawyers, men of experience and reflection,
so express themselves as to show their opinion, that less mischief would
ensue from the unrestrained and irregular vengeance of individuals and
of the multitude, than from attempts to bring Sovereign Princes to judgment in the ordinary Courts of a foreign country where they have offended,
however much we may lament that such should be the condition of the
world, we may be sure of the sense which they entertain of the difficulty
of making, and of the danger of attempting to make foreign Princes
DECEMBER, 1855.-27




410    PHILLIMORE ON INTERNATIONAL LAW.
*  *amenable to the Courts of Justice of the country in which they
happen to be.
"' After giving to the subject the best consideration in my power, it
appearing to me that all the reasons upon which the immunities of ambassadors are founded, do not apply to the case of Sovereigns, but that
there are reasons for the immunities of Sovereign Princes, at least as
strong, if not much stronger, than any which have been advanced for the
immunities of ambassadors; that suits against Sovereign Princes of foreign countries must, in all ordinary cases in which orders or declarations
of right may be sued, end in requests for justice, which might be made
without any suit at all; that even the failure of justice, in some particular cases, would be less prejudicial than attempts to obtain it by violating immunities thought necessary to the independence of Princes and
nations, I think that, on the whole, it ought to be considered as a general
rule, in accordance with the law of nations, that a Sovereign Prince resident in the dominions of another, is exempt from the jurisdiction of the
Courts there.'" It is true, as was argued for the plaintiff, that the common interest
of mankind requires that justice should everywhere be done, and that, for
the attainment of justice, all persons should be amenable to the Courts
of Justice. Such is the general rule; but in cases where either party
has no superior by whom obedience can be compelled, where the execution
of justice is not provided for by treaty, and cannot be enforced by the
authority of the judge, and where an attempt to enforce it by the authority of the State may probably become a cause of war, the same common
interest, which is the foundation of the rule, requires that some exception
should be made to it, and that exception is the general rule with respect
to Sovereign Princes. The question then arises, whether the exception
in favour of Sovereign Princes, and the exemption from suit thereby
allowed, is to be entire and universal, or subject to any and what limitations.
"'  The Act of Parliament relating to ambassadors, professes to be, and
has (1 B. & C. 562,) frequently been adjudged to be declaratory, and in
confirmation of the common law; and, as Lord Tenterden said, it must
be construed according to the common law, of which the law of nations
must be deemed a part.  The statute does not in words apply to the case
in which the ambassador might be a subject of the Crown of England,
but there is an exception to that in the case of bankrupts in the service
of ambassadors, and cases have frequently occurred in which an ambassador has himself been a subject of the sovereign to whom he was accredited; and notwithstanding some differences of opinion on the subject, it
seems to be considered that such an ambassador would not enjoy a perfect
immunity from legal process, but would have an immunity extending
only to such things *as were connected with his office and ministry,
and not to transactions and matters wholly distinct and independent of his office and its duties.  Bynkershoek (Op. 2, 162,) thus expresses his opinion: —, Legatum scilicet manere subditum ubi ante legationem fuit, atque adeo si contraxit aut deliquit subesse imperio cujus
antea suberat; his autem  consequens est nostros subditos, quamvis




APPENDI X.                           411
alterius pricipis legationem accipiant, subditos nostros esse non desinere
neque forum quo semper usi sunt jure subtifugere." And Vattel (book
4, c. 8, sec. 112,) says:-"- It may happen that the minister of a foreign
Power is a subject of the State where he is employed, and in this case,
as a subject, he is unquestionably under the jurisdiction of the country
in every thing which does not directly relate to his ministry." And
after some discussion upon the question, how we are to determine in what
cases the two characters of subject and foreign minister are united in the
same person, Vattel adds, "(Whatever inconveniences may attend the
subjection of a minister to the Sovereign with whom he resides, if the
foreign Prince chooses to acquiesce in such a state of things, and is content to have a minister on that footing, it is his own concern." And
presuming from this view of what is considered to be the law of nations,
that with respect to the immunity of an ambassador, who is a subject in
the country of his residence, it must be distinguished what acts of his were
connected with or required for the discharge of the duties of his ministry,
and what were not; and that, with regard to acts connected with his
ministry, the Courts (considering his character of ambassador) would hold
him to be exempt from suit; but that, with regard to acts not connected
with his ministry, the Courts (considering his character of subject) would
hold him liable to suit.  The enquiry is, whether in like manner, a Sovereign Prince, resident in the dominions of another Prince, whose subject
he is, may not justly and reasonably be held free from suit in all matters
connected with his sovereignty, and his rights, duties, and acts as Sovereign, and yet be held liable to suit in respect to all matters unconnected
with his sovereignty, and arising wholly in the country to the Sovereign
of which he is the subject.
"' ( The first and most general is, that all persons should be amenable
to the Courts of Justice, and should be liable to be sued. A consideration
of the policy of the law creates an exception in the case of Sovereign
Princes. May not a further consideration of the policy of the law create
a modification or limitation of the exception in the case of Sovereign
Princes who are subjects?' ( There are in Europe other Sovereign Princes who, if not now, have
been subjects of the country of their origin or adoption.  Upon such a
question as this, I cannot regard those cases, but they may have their
specialties, of which I am not aware. I cannot venture to say, that a
subject acquiring the character of *a Sovereign Prince in another [587
country, and being recognized as a Sovereign Prince by the Sov- [587
ereign of the country of his origin, may not by the act of recognition in
ordinary cases, and by the laws of some countries, be altogether released
from the allegiance and legal subjection which he previously owed; but
this case must depend on its own circumstances, and I am of opinion,
that it is not contrary to any principle, and not unreasonable to consider
that, in the contemplation of the Courts of this country, the inviolability
which belongs to His Majesty the King of Hanover, as a sovereign Prince,
ought to be and is modified by his character and duties as a subject of
the Queen of England.
"' Previously to his becoming King of Hanover, he always lived in




412    PHILLIMORE ON INTERNATIONAL LAW.
allegiance to the Crown of England, and in subjection to the laws of
England. His accession to the Throne of Hanover was contemporaneous
with the accession of the Queen to the Throne of this kingdom, and since
he became King of Hanover he has been so far from renouncing, or from
showing any desire to renounce, his allegiance to the Crown or his subjection to the laws of England,-he has been so far from admitting it to
be questionable, whether his sovereignty, and the recognition of it by the
Queen, has absolved his allegiance or his subjection to the laws of England-that he has renewed his oath of allegiance, and taken his seat in
the English Legislature, and has claimed and exercised the political rights
of an English subject and an English Peer.
cc v If he came here as King of Hanover only, the same inviolability
and privileges which are deemed to belong to all Sovereign Princes would
have been his, and save in peculiar cases, such as I have before referred
to, he would have been exempt from all suits and legal process. But
coming here, not as King of Hanover only, but as a subject, as a Peer
of the realm, and as a member of the Privy Council, can it be reasonably
said that he is exempt from all jurisdiction, or, in other words, from all
responsibility for his conduct in any of those characters?
"'The law of England admits the legal inviolability of the Sovereign,
requiring, at the same time, the legal responsibility of those who advise
the Sovereign.  Can the law of England, in any individual case, admit
the strange anomaly of an inviolable adviser of an inviolable Sovereign,
of a legal subjection without any legal superiority?  Can any Peer or
Privy Councillor, whatever station he may occupy elsewhere, be permit.
ted to give advice, for which any other Peer, or any other member of
the Privy-Council, might be justly impeached, and yet hold himself
exempt from the jurisdiction of the highest tribunal in the realm?  May
he enter into a contract which any other subject would be compelled to
perform, and yet refuse to answer any claim whatever, either for specific
performance or damages?
*588i] ja*"'cGreat inconveniences may arise from the exercise of any
jurisdiction in such a case.  They arise, perhaps inevitably, from
the two characters which His Majesty the King of Hanover unites in his
own person, and from the claim which he voluntarily makes to enjoy or
exercise concurrently in this country his rights as a Sovereign Prince, and
also his rights as an English subject, Peer and Privy Councillor.  He is
a Sovereign Prince, and, as such, inviolable in his own dominions, and,
I presume, also in the dominions of every other Prince to whom he is
not a subject. Remaining in his own dominions, or in the dominions of
any other Prince to whom he is not a subject, he would (as I presume)
be exempt from all forensic jurisdiction.  But he comes to this country,
where he is a subject, and claims and exercises his rights as such. As
a subject he owes duties correlative to which, not individuals only, but
the country at large, may have legal rights, which are to be respected,
and being legal rights, against a subject, in respect of his acts and
duties as a subject, it seems that they ought, if necessary and practicable, to be vindicated and enforced by the law. Those legal rights
would be nugatory if his inviolability as a Sovereign Prince would admit




APPENDIX.                            413
of no exception or modification. But any contradiction or inconsistency
may be obviated by distinguishing, as in the analogous case of the ambassador, the acts which ought to be attributed to one character or the other;
and it appears to me that, when necessary, it must be the office and duty
of the Courts to make the distinction.
" t'If the distinction can justly be made, why should it not? And why
should not the jurisdiction be exercised so far as the circumstances of
each case will allow? Admitting it to be a general rule, that Sovereign
Princes are not liable to be sued, and that all Sovereign Princes may consider themselves interested to maintain the inviolability which each one
claims, and that any aggression upon it might, in ordinary circumstances,
be a cause of war; yet, observing what is stated to be the law of nations
in the case of ambassadors, conceiving that to be a rule applicable only
to the cases of Sovereigns who are subjects, and think fit actively to exercise their rights as subjects, it cannot have any extensive application,
and is not likely to excite any general interest or any alarm, and having
regard to that which is absolutely required to maintain the relation between Sovereign and subject in any country, I am of opinion that no
complaint can justly, or will probably, arise from any legal proceeding,
the object of which is to compel (as far as practicably may be) a Sovereign
Prince residing in the territory of another Prince, whose subject he is,
to perform the duties of a subject, in relation to his own acts done in the
character of a subject only. And admitting that in ordinary cases it may
happen that the execution of a decree cannot be enforced against a Sovereign Prince, though a subject *of this realm, I do not think, [58J
for that reason, that a plaintiff should be deprived of all means [* ]
of establishing his right in a due course of procedure; nor do I think
that I ought to presume that a Sovereign Prince, who deems it to be
consistent with his dignity and interest to come here and practically exercise the rights of an English subject, will not also deem it consistent
with his dignity and interest to yield willing obedience to the law of England, when duly declared.  And for these reasons I am of opinion, that
His Majesty the King of Hanover is and ought to be exempt from all
liability of being sued in the Courts of this country, for any acts done
by him as King of Hanover, or in his character of Sovereign Prince, but
that, being a subject of the Queen, he is and ought to be liable to be
sued in the Courts of this country, in respect of any acts and transactions
done by him, or in which he may have been engaged as such subject.
And in respect of any act done out of this realm, or any act as to which
it may be doubtful whether it ought to be attributed to the character of
Sovereign or to the character of subject, it appears to me, that it ought
to be presumed to be attributable rather to the character of Sovereign than
to the character of subject.  And further, it appears to me, that in a suit
in this Court against a Sovereign Prince, who is also a subject, the bill
ought, upon the face of it, to show that the subject-matter of it constitutes a case in which a Sovereign Prince is liable to be sued as a subject.
I cannot, therefore, consider the present suit as an ordinary suit between
subject and subject; it is a suit against a defendant who is prima facie
entitled to special immunities; and it ought to appear on the bill that




414     PHILLIMORE  ON INTERNATIONAL LAW.
the case made by it is a case to which the special immunities ought not
to be extended. What is shown is, that the defendant is an English
subject, and may therefore not be exempt from suit in some cases. Is
it shown that this is one of the cases in which the defendant is liable to
be sued?
"c' The object of the suit is to obtain an account of property belonging
to the plaintiff, alleged to have been possessed by the defendant, under
colour of an instrument creating a species of guardianship unknown to
the law of England. It is not pretended that any one act was done, or
that any one receipt, in respect of which the account is asked, was given
in this country. Every act alleged as a ground of complaint was done
abroad in Brunswick, in Hanover, or elsewhere in foreign countries. No
act alleged as a ground of complaint was done by the defendant before he
became King of Hanover; and from the nature of the transactions, and
the recitals in the instrument, there are strong grounds to presume that
it was only by reason of his being King of Hanover that the defendant
was appointed guardian of the plaintiff's fortune and property. It is not
pretended that the instrument has been impeached, or attempted to be
impeached, in the country where alone it has its locality and operation,
F*5901 although *it is alleged to be illegal there, and no reason is given
U[59 1 why the plaintiff has not availed himself of that illegality to obtain relief from it. It is alleged to be null and void here; and upon this
I may observe, that although, with regard to English instruments, intended to operate according to English law, the Court knowing the nature of
the instrument, the relation between the parties to it, and the law applicable to the case, may be able, even on demurrer in a simple case, to
adjudicate thereon upon a mere allegation that the instrument is null and
void; yet that with regard to a foreign instrument, intended to operate
according to a law not known in England, and which, as foreign law, is
to be proved as a fact in the cause, an allegation that the instrument is
void, is too vague.
" But passing that over, and considering the other matters which I
have mentioned, and observing, that notwithstanding the allegation at the
bar, that the instrument complained of is wholly independent of any
political or State transaction, it is in the bill stated, as the sequel to a
political revolution, which resulted in the deposition of a Sovereign Prince,
and the appointment of a successor made under the authority of a decree
of the Germanic Diet by the late King of Hanover and the reigning Duke
of Brunswick; considering also that the instrument stated in the sequel
of these political proceedings (which I must consider to be either wholly
immaterial, or as introduced into the bill for the purpose of showing the
character of the transactions in question,) is stated to have bewe_  executed
also by the late King of Hanover and the reigning Duke of Brunswick;
and considering, further, the objects for which the instrument is purported
to have been executed, connecting those objects with the political transactions stated in the bill, and the transactions alleged to have taken place
at Osterode in 1830, I should, if it were necessary for me to decide the
question, be disposed to think that the instrument complained of is connected with political and State transactions, and is itself what in common




APPENDIX.                             415
parlance is said to be a State document, and evidence of an act of State.
But upon this occasion it is not necessary for me to give any opinion
upon the question, whether the act complained of is or is not an act of
State, or upon the question, which seems to have been raised in France,
whether the Courts of a foreign country ought to take notice of such an
instrument, for the purpose of enabling the guardian under its authority
to possess the property and effects of the plaintiff in such foreign country;
it is not even necessary for me to decide the question, whether, as against
a subject only, this Court could have any jurisdiction to give relief in
respect of acts done abroad, under such a foreign instrument as this.
" 4'The question which I have had to consider is, whether, under the
circumstances of this case, and as against a Sovereign Prince, who is a
subject of the Queen of England, this Court has the *jurisdiction [591]
which is attributed to it by this bill.  And I am of opinion that [591]
the alleged acts and transactions of the defendant under colour or under
the authority of the instrument in question, are no acts and transactions
in respect of which the defendant is liable to be sued in this Court, or in
respect of which the Court has any jurisdiction over him. Let this demurrer, therefore, be allowed.' "
No. 6.
DE HABER V. THE QUEEN OF PORTUGAL."
W ADSWORTH V. THE QUEEN OF SPAIN."
Arzgued before, and judgment given by, Lord Campbell, 28th -lay,
1851.
"s Prohibition-Foreign Sovereign-Immunityfrom Suit —Lord Mayor's
Court of Lonondon-Foreign Attachment — Time at which Defendant
or Garnishee may apply for Prohibition —Necessity of Pleas to Juris.
diction-Application by a Stranger.
DE HABER V. THE QUEEN OF PORTUGAL.(d)
" No English Court has jurisdiction to entertain an action against a foreign Soverign for anything done, or omitted to be done, by him, in his public capacity as
representative of the nation of which he is at the head.
"' Where the Lord Mayor's Court of London has no jurisdiction over the person of
the defendant against whom a plaint has been entered in that Court, the awarding process of foreign attachment against a person having funds in his hands
belonging to the defendant, as a means of compelling an appearance, is an excess
of jurisdiction, for which prohibition will lie.
"Where, therefore, a plaint was entered in the Lord Mayor's Court against the
Queen of Portugal,' as reigning Sovereign and supreme head of the nation of
Portugal,' to recover a debt alleged to be due from the Portuguese Government,
and a foreign attachment had issued, according to the custom of the city of London, the!Court made absolute a rule for a prohibition to restrain proceedings in
the action and in the attachment.
"The same principle was applied to a case where a plaint was entered in the Lord
Mayor's Court against the Queen of Spain, not expressly as reigning Sovereign,
and head of the Spanish nation, but where it appeared by affidavit that the plaintiff's sole cause of action arose upon a Spanish Government bond, purporting to
(d) Law J. Rep. (Q. B.) vol. xx. 488.




416      PHILLIMORE  ON IN'TERNATIONAL LAW.
have been issued under a decree of the Cortes, sanctioned by the Regent of Spain,
in the name of the Queen, then a minor.
"The writ of prohibition may in such cases be granted on the application of the
Queen (the defendant) before she has appeared' to the action in the Lord Mayor's
Court; or on the application of the garnishee, either before or after he has pleaded nil debet.
"Where an inferior Court has no jurisdiction to entertain a suit, it is not necessary
to entitle a party to a prohibition, that he should have there pleaded to the jurisdiction, and that the plea should have been overruled.
" The Court is bound to grant a prohibition where a Court has no jurisdiction, upon
the application of a stranger as well as of a party to the proceedings.
" The process of foreign attachment can only be resorted to where the cause of
action against the original defendant arises within the jurisdiction of the Court
from which the attachment issues."
"C THIs was a rule obtained on behalf of the Queen of Portugal, calling
upon the Mayor and Aldermen of the City of London, and the above
plaintiff, to show cause why a writ of prohibition should not issue to the
Lord Mayor's Court of London to prohibit the said Court from holding
plea or further proceeding in an action entered in the said Court by the
said plaintiff against' Her Most Faithful Majesty Donna Maria da Gloria,
Queen of Portugal, therein described as reigning Sovereign and supreme
head of the nation of Portugal,' and from further proceeding with
[592 ] ~*two foreign attachments issued out of the said Court in the said
action, and made in the hands of Senhor Xavier de Brito and others and
to restrain the said plaintiff De Haber from further proceeding with the
same.
", It appeared by the affidavits upon which the rule was founded, that,
on the 28th March last, the said plaintiff De Haber entered an action in
the said Mayor's Court of London, against' Her Most Faithful Majesty
Donna Maria da Gloria, Queen of Portugal, as reigning Sovereign and as
supreme head of the nation of Portugal,' and upon the same day issued
an attachment in the said Mayor's Court against the moneys, goods, and
effects which then were or which thereafter should come into the hands
or custody of Senhor Xavier de Brito, belonging to Her said Most Faithful Majesty Donna Maria da Gloria, as reigning Sovereign and as supreme
head of the nation of Portugal, upon'an affidavit of the said 3M. de Haber,
which stated' That Her Most Faithful Majesty Donna Maria da Gloria,
Queen of Portugal, as reigning Sovereign and as supreme head of the
nation of Portugal, is justly and truly indebted to him, this deponent, in
the sum of 12,1361. for money had and received by Her said Majesty
Donna Maria da Gloria, Queen of Portugal, for and on behalf of the said
nation of Portugal, for the use of this deponent, and for money taken by
Her said Majesty Donna Maria da Gloria, Queen of Portugal, by and on
behalf of the said nation of Portugal, from this deponent's banker, with
interest thereon.'
" The defendant (the Queen of Portugal) being duly summoned according the the custom of the city of London, did not appear to the above
action.
" The notice of attachment, which was served in the said attachment
upon the said Xavier de Brito by the serjeant-at-mace stated,' That by
virtue of an action entered in the Lord Mayor's Court, London, against
Her Most Faithful Majesty Donna Maria da Gloria, Queen of Portugal,




APPENDIX.                           417
as reigning Sovereign and as supreme head of the nationi of Portugal,
defendant, at the suit of AI. de Haber, plaintiff, in a plea of debt upon
demand of 24,0001., I do attach all such moneys, goods, and effects as
you now have, or which hereafter shall come into your hands or custody,
of the said defendant, to answer the said plaintiff in the plea aforesaid,
and that you are not to part with such moneys, goods, or effects, without
license of the said Court.',,It was further stated that the claim of the plaintiff against Her said
3Most Faithful Majesty (if any) was for money equivalent to the said sum
of 12,1361., which the said plaintiff alleged that he had in the hands of
one Francisco Ferreira, of Lisbon, banker, at the period when Don Miguel
was driven out of Portugal, and which was by the said F. Ferreira paid
over to the Government of Portugal under the decree of some Court in
Portugal, and such cause of action (if any there be) in the said action and
attachment *arose in the Kingdom of Portugal aforesaid, and not [*593]
within the city of London.
"t On. the same 28th day of March last, the said plaintiff, upon the
same affidavit, issued another attachment in the said Mayor's Court against
the moneys, goods, and effects which then were or which thereafter should
come into the hands or custody of William Christy and others, being the
trustees of the London Joint Stock Bank, belonging to Her said Most
Faithful Majesty Donna Maria da Gloria, as reigning Sovereign and as
supreme head of the nation of Portugal.  The notice of attachment which
was served in the last-mentioned attachment was in terms similar to the
one served on the other garnishee. None of the garnishees had pleaded
to the attachment.
"c It also appeared that the plaintiff had previously issued another plaint
in the Mayor's Court for the same debt against' Her Most Faithful Majesty Donna Maria da Gloria, Queen of Portugal,' and also two attachments against the same garnishees, who had pleaded nil habet, and upon
the trial before the recorder those issues had been found for the garnishees, on the ground that the funds in their hands belonged to the
Queen of Portugal in her sovereign capacity.
Cc JUDGMENT.
c Lord Campbell, C. J.-_ We are of opinion that the rule for a prohibition in this case ought to be made absolute. The plaintiff has commenced an action of debt, in the Court of the Lord Mayor of London,
against Her Majesty Donna Maria da Gloria, Queen of Portugal, as reigning Sovereign and as supreme head of the nation of Portugal, and by an
affidavit laid before us it appears that the plaintiff's alleged cause of
action is in respect of a sum of Portuguese money, equivalent to 12,1361.
sterling, which he had in the hands of one Francisco Ferreira, of Lisbon,
banker, at the period when Don Miguel, pretending to the Crown of Portugal, was driven out of that country, and which was by the said Francisco Ferreira paid over to the Portuguese Government, now represented
by the royal defendant. The plaintiff, having entered his plaint, proceeded, according to the custom of foreign attachment in the city of London, as if the defendant were subject to the jurisdiction of the Lord Mayor's




418      PHILLIMORE  ON INTERNATIONAL  LAW.
Court and the- cause of action had arisen within that jurisdiction, and he
sued out a summons for the defendant "c to appear and answer the plaintiff in the plea aforesaid."  A return being made by the serjeant-at-mace
cc that the said defendant had nothing within the said city or liberties
thereof whereby she can be summoned, nor was to be found within the
same," the plaintiff swore an affidavit, in which he stated that the defendant, "c as reigning Sovereign and as supreme head of the nation of Portugal, is justly and truly indebted in him in the sum of 12,1361., for money
had and received *by Her said Majesty Donna Maria da Gloria,
[594 ] Queen of Portugal, for and on behalf of the said nation of Portugal, for his use, and for money taken by Her said Majesty Donna Maria
da Gloria, Queen of Portugal, by and on behalf of the said nation of Portugal from this deponent's banker, with interest thereon." The defendant being solemnly called, and not appearing before the Lord Mayor, the
plaintiff alleged by his attorney, it that Senhor Guillieme Candida Xavier
de Brito, of the city of London, the garnishee, had money, goods, and
effects of the defendant in his hands, and prayed process according to the
said custom, to attach the said defendant by the said money, goods, and
effects, in the hands of the garnishee as aforesaid, so that the defendant
may appear in the said Lord Mayor's Court to answer the plaintiff in the
plea aforesaid."  Thereupon the judge presiding in that Court awarded
an attachment against the defendant as prayed, directed to the serjeantat-mace, which that officer immediately executed, leaving with the garnishee a notice in the terms following:-"-Senhor Guillieme Candida
Xavier de Brito.  March 28th, 1851. Take notice, that by virtue of an
action entered in the Lord Mayor's Court, London, against Her Most
Faithful Majesty Donna Maria da Gloria, Queen of Portugal, as reigning
Sovereign and as supreme head of the nation of Portugal, defendant, at
the suit of Maurice de Haber, plaintiff, in a plea of debt upon demand of
24,0001., I do attach all such moneys, goods, and effect as you now have,
or which hereafter shall come into your hands or custody, of the said defendant, to answer the said plaintiff in the plea aforesaid, and that you
are not to part with such moneys, goods, or effects without license of the
said Court."
"c On the second day of Easter Term this rule for a prohibition was
applied for and obtained on behalf of the Queen of Portugal, cause being
shown against this rule, and a similar rule in a similar action brought
against Her Most Faithful Majesty the Queen of Spain.  Various questions respecting foreign attachments were discussed, which we do not feel
it necessary to determine, as we think that upon simple and clear grounds
there has been an excess of jurisdiction by the Court of the Lord Mayor
of London, against which we are bound to grant a prohibition at the
prayer of the defendant. In the first place it is quite certain, upon general principles, that upon the authority of the case of "4The Duke of
Brunswick v. The King of Hanover," recently decided in the House of
Lords, that an action cannot be maintained in any English Court against
a foreign potentate for any thing done, or omitted to be done, by him in
his public capacity as representative of the nation of which he is the
head, and that no English Court has jurisdiction to entertain any com



APPENDIX.                            419
plaint against him in that capacity.  Redress affecting a British subject
is to be obtained by the laws and tribunals of the country which the
foreign potentate rules, or by the representations, remonstrances, or acts
of *the British Government.  To cite a foreign potentate in a [*595]
municipal Court for any complaint against him  in his public
capacity, is contrary to the law of nations, and an insult which he is entitled to resent.
"'The statute of 7 Anne, c. 12, passed on the arrest of the Russian
Ambassador, to appease the Czar, has always been said to be merely
declaratory of the law of nations, recognised and enforced by our municipal law, and it provides, " that all process whereby the person of any
ambassador, or of his domestic servant, may be arrested, or his goods
distrained or seized, shall be utterly null and void."  On the occasion of
the outrage which gave rise to that statute, Lord Holt was present as a
privy-councillor to advise the Government as to the fit steps to be taken,
and with his sanction seventeen persons, who had been concerned in
arresting the ambassador, were committed to prison, that they might be
prosecuted by information at the suit of the Attorney-General.  Can we
doubt that, in the opinion of that great judge, the Sovereign himself
would have been considered entitled to the same protection, immunity,
and privilege as the minister who represented him?
"'Let us see, then, what has been done by the Lord Mayor of London.  On a plaint being entered in his Court against Donna Maria da
Gloria, as reigning Sovereign and supreme head of the nation of Portugal, for what she had done for and on behalf of the said nation, he summoned her to appear before him, and she being solemnly called and
making default, he, with full knowledge that she was so sued, issues an
attachment against her for this default, to compel her to appear; under
this attachment all her moneys, goods, and effects within the city and
liberties of London are ordered to be seized; if she does not obey the
mandate within a year and a day these funds are to be confiscated, or
applied to the satisfaction of the plaintiff's demand, without any proof of
its being justly due, and she can only get rid of the attachment by giving
bail to pay the sum which the plaintiff may recover, or to render herself
to prison that she may be committed to the Poultry or Giltspur-street
Compter.  The attachment applies not only to all the moneys, goods,
and effects of the Queen of Portugal then in the hands of the garnishee,
but to all that shall thereafter come into his hands or custody.  The process is studiously framed to be applicable to the property of the Queen
"as supreme head of the Portuguese nation." It appears from the affidavit that the plaintiff had entered a former plaint against the Queen of
Portugal, which he suggested was against her in her individual capacity:
that upon an attachment the garnishee pleaded nil habet, and that upon
this issue the jury found a verdict for the garnishee, because all the
funds in the hands of the garnishee were proved to belong to the defendant in her public capacity, as Sovereign of the dominions which she
governs.  *Were the garnishee now to plead nil habet, the ver-  596
diet must be against him, for the funds which he holds belong [596
to the defendant in the capacity in which she is sued. While this attach



420   PHILLIMORE ON INTERNATIONAL LAW.
ment stands, should any money raised by loan, or any munitions of war
purchased for the use of the Portuguese Government, be found within
the city of London or the liberties thereof, they are all liable to be seized
for the benefit of the plaintiff.
"' It may be right that we should mention two authorities which we
have met with in our researches upon this subject, although they were
not referred to in the argument, as they seem at variance with the opinion
we have formed.  Bynkershoek, in his treatise "c De Foro Legatorum,"
cap. iv., discussing the question whether the goods of a Sovereign Power
in a foreign State are liable to be judicially arrested or attached, says,
it In causa civili, cum id inter privatos obtineat, ubicumque arresta frequentantur, ego nullus animadverto, cur non idem obtinere oporteat quod
ad bona externorum  Principum.  Si ab arresto Principis temperemus
ob sanctitatem persona, quis bona Principis in alieno Imperio aeque
sancta esse dixerit?  Usu gentium  invaluit ut bona qum Princeps in
alterius ditione sibi comparavit, sive hbereditatis, vel quo alio titulo acquisivit, perinde habeantur, ac bona privatorum, nee minus quam hmec,
subjiciantur oneribus et tributis."  But this author, who is well known
to have an antipathy to crowned heads and to monarchial government,
admits that other jurists differ from him, and he goes on to cite a decision in his own country which completely overturns his doctrine.  i" In
the year 1668, certain private creditors of the King of Spain arrested
three ships of war of that kingdom, which had entered the port of Flushing, that the pursuers might thus obtain satisfaction for their debt; the
King of Spain being cited to appear at a certain day before the judges of
the Court of Flushing; but upon the remonstrance of the Spanish ambassador, the States-General, by a decree of the 12th of December, 1668,
ordered the authorities in the province of Zealand to liberate the Spanish
ships of war, and to allow them freely to depart, at the same time directing
a representation to be made to the Spanish Government to do justice to
the Dutch citizens, lest it should be necessary to resort to reprisals;"
and there can be no doubt that, according to the law of nations, "- reprisals" would be the appropriate remedy, not a judicial citation before a
municipal Court, to be enforced by seizure of national property.
"'' In Selden's "- Table Talk," (Singer's ed., p. 108,) there are the following words, supposed to be spoken by that profound lawyer himself:
"The King of Spain was outlawed in Westminister Hall, I being of
counsel against him. A merchant had recovered costs against him in a suit,
which, because he could not get, we advised to have him outlawed for not
appearing, and so he was. As soon as Gondimar heard that, he presently
*85971 sent *the money, by reason if his master had been outlawed he
could not have the benefit of the law, which would have been
prejudicial, there being then many suits depending betwixt the King of
Spain and our English merchants."  The fact here stated seems to have
been credited by Lord Chancellor Thurlow, who, in the case of The Nabob of the Carnatic v. The East India Company,(e) observed, i" that the
King of Spain had been once outlawed by Selden's advice, to prevent
(e) 1 Ves. Jun. 386.




APPENDIX.                           421
him from taking advantage of his suit," but he adds, " the outlawry was
bad enough." Others have doubted whether the King of Spain ever was
outlawed in the manner supposed. Legge, in his "Treatise on Outlawry,"
p. 12, alluding to it, says, c" This was a very strange case, if for costs
only, as it does not seem warrantable by law."
"'' Such an extract from an amusing book of anecdotes cannot be considered any authority for the position that a Sovereign Prince may be
sued as such in our municipal Courts, and that property belonging to
him in his public capacity may be seized to compel an appearance.
The statement is in no way authenticated by Selden himself, and is
merely a loose report of what is supposed to have fallen from him in
conversation. It cannot be accurate, as the outlawry is, first, supposed
to have been for non-payment of costs; and, secondly, for not appearing;
and, according to the usual practice, it could not have been in Westminster-hall.  We have caused search to be made for the record, but it
is not forthcoming.  There may, de facto, be judgment of outlawry
against any Sovereign Prince who does not appear after being proclaimed
the requisite number of times at the County Court or Court of Hustings,
no inquiry being made whether the defendant be an alien or a nativeborn Englishman, an emperor or a peasant; but this proceeding is clearly
irregular, and all concerned in it would be liable to punishment.  Till
the statute of 2 Will. IV. c. 39, there could have been no outlawry
except upon a capias, which could not lawfully be sued out against a
Peer or member of the House of Commons, much less against a Sovereign
Prince. After outlawry the outlawed is to be seized wherever he can be
found, and imprisoned in salva et arcta custodia, all his personal property
is forfeited to the Queen of England, and she is entitled to the profits of
all his lands. Such a proceeding is manifestly inapplicable to a foreign
Sovereign, who must be supposed to be in his own dominions, and if he
were in England could not be so sued without a breach of the law of
nations and of our municipal law. The suits alleged to have been
pending between the King of Spain and the English merchants, if there
were any, were probably actions brought by him on bills of exchange,
or arising out of some of the commercial transactions *in which  *598
His Majesty was then engaged.  For such matters a foreign [*598]
Sovereign might and may still sue in our Courts of Justice; but no
authority can be found for his being sued here as a Sovereign.
"t  In the case of ",The Prince Frederick," before Lord Stowell, as
Judge of the Admiralty, the same view of the subject was taken by
that greatest of jurists, although, from a compromise, no formal judgment was pronounced.  There, a Dutch ship of war had been saved from
shipwreck by English sailors, who libelled her for the salvage. Objection being made that the Court had no jurisdiction, a distinction was
attempted that the salvors were not suing the King of the Netherlands,
and that, being in possession of and having a lien upon a ship which
they had saved, the proceeding might be considered in rem.  But Lord
Stowell saw such insuperable difficulties in judicially assessing the
amount of salvage, the payment of which was to be enforced by sale,
that he caused a representation to be made on the subject to the Dutch




422   PHILLIMORE ON INTERNATIONAL LAW.
Government, who very honourably consented to his disposing of the
matter as an arbitrator.  The case of cc The Prince Frederick" is not in
print, but we have had an account of it from the Queen's Advocate.
c"' Notwithstanding the dictum by Bynkershoek, and the outlawry of
the King of Spain, supposed to be related by Selden, we cannot doubt
that the awarding of the attachment in the present case by the Lord
Mayor's Court was an excess of jurisdiction, on the ground that the
defendant is sued as a foreign potentate.  Therefore, the circumstance
that the cause of action, if there were any, arose out of the jurisdiction
of the Lord Mayor's Court need not be relied upon. Nevertheless,
after the strong assertions at the bar that this is immaterial where the
defendant does not appear, we think it right to say that, having examined
the authorities, we entertain no doubt that the process of foreign attachment can only be duly resorted to where the cause of action arose within
the jurisdiction of the Court from which it issues. The garnishee is safe
by paying under the judgment of the Court; but the objection that the
cause of action did not arise within the jurisdiction of the Court, if properly taken, must prevail.  No agreement of counsel to abstain from
making the objection can alter the law of the land, which says, that an
inferior Court can only hold plea where the cause of action arises within
the local limits to which its jurisdiction by character or custom is
confined.
"' We have now to consider whether we can grant the prohibition on
the application of the Queen of Portugal, before she appears in the
Lord Mayor's Court.  The plaintiff's counsel argue that before she can
be heard she must appear and put in bail in the alternative, to pay or
to render. It would be very much to be lamented if, before doing
justice to her, we were obliged to impose a condition upon her which
would be a further indignity, *and a further violation of the law
[*599] of nations.  If the rule were that the application for a prohibition can only be by the defendant after appearance, we should have had
little scruple in making this an exception to the rule.  But we find it
laid down in books of the highest authority, that where the Court to
which the'prohibition is to go has no jurisdiction, a prohibition may be
granted upon the request of a stranger as well as of the defendant himself. (2 Inst. 607, Com. Dig. title c" Prohibition," E.) The reason is,
that where an inferior Court exceeds its jurisdiction, it is chargeable
with a contempt of the Crown as well as a grievance to the party. (Ede
v. Jackson.) Therefore this Court, invested with the power of preventing all inferior Courts from exceeding their jurisdiction, to the prejudice
of the Queen or her subjects, is bound to interfere when duly informed
of such an excess of jurisdiction. What has been done in this case by
the Lord Mayor's Court must be considered as peculiarly in contempt of
the Crown; it being an insult to an independent Sovereign, giving that
Sovereign just cause of complaint to the British Government, and having
a tendency to bring about a misunderstanding between our own gracious
Sovereign and her ally, the Queen of Portugal.  Therefore, upon the
information and complaint of the Queen of Portugal, either as the party
grieved or as a stranger, we think we are bound to correct the excess of




APPENDIX.                            423
jurisdiction brought to our notice, and to prohibit the Lord Mayor's
Court from proceeding further in this suit.'    c" Rule absolute."
No. 7.
i" WADSWORTH V. THE QUEEN OF SPAIN."(f)
" IN this case a similar rule (to that obtained in' De Haber v. the
Queen of Portugal') for a prohibition had been obtained on behalf of
the garnishees. The following were the material facts:-The plaintiff
Wadsworth, on the 30th December, 1850, filed an affidavit in the Lord
Mayor's Court to the effect that the Queen of Spain was justly and
truly indebted to him  in 10,0001., for interest upon certain bonds or
certificates, dated the 10th of December, 1834, and made and entered
into by, or on behalf of Her Majesty the Queen Regent of Spain, in
the name of her daughter Dofia Isabel Segunda, Queen of Spain, by
virtue of the law decreed by the Cortes, and sanctioned by Her said
Majesty the Queen Regent, in the name of her said daughter, and of
the Treaty between the Minister Secretary of State for the Finance
Department of Spain, and M. Ardouin, banker, of Paris, and  *600
*which said interest was due and payable on certain days then [* ]
past.  The plaintiff entered his plaint in the Lord Mayor's Court, alleging that the Queen of Spain, cat the parish of, &c., and within the
jurisdiction of that Court,' agreed to pay to the plaintiff 20001.  Proceedings were thereupon taken according to the practice of that Court,
and notices of foreign attachment were served upon Ivaquin Scheidnagel,
and Messrs. Martin, Stone & Co., bankers, as garnishees,;"l attaching certain moneys of the defendant in their hands. The garnishees, thereupon,
pleaded nil habet to the said attachments, upon which issue had been
joined. The Queen of Spain had never appeared in the Mayor's Court.
The bonds, which were issued and signed by Messrs. Ricardo, as agents
to the Queen of Spain within the city of London, were in the following
form:."' Public debt of Spain. —The bearer of this certificate is entitled to
an annuity of 10 hard dollars, equivalent to 54 francs, at 21. 2s. 6d.
sterling, representing a capital of 200 hard dollars, 1,080 francs, or
421. 10s., sterling, by virtue of the law decreed by the Cortes, and sanctioned by Her Majesty the Queen Regent of Spain, in the name of her
august daughter Dofia Isabel II., the 16th of November, 1834, and of
the Treaty concluded between the Minister Secretary of State for the
Finance Department and M. Ardouin, banker, of Paris, the 6th December, of the same year.  The said annuity will be payable in Madrid,
Paris, or London, at the option of the bearer, half yearly, on the 1st of
May and the 1st of November in each year, on presentation of the
dividend warrant then due; in Paris at the rate of 5 francs 40 cents
per hard dollar, and in London at 4s. 3d. sterling, also per hard dollar.
The bearer has the option of causing this certificate to be definitely con(f) Law Jour. Rep., vol. xx. p. 491.




424    PHILLIMORE ON INTERNATIONAL LAW.
verted into an extract of inscription payable at Madrid.  To this certio
ficate are annexed 40 dividend warrants.  If at the end of twenty years
it should not have been withdrawn from circulation, either by means of
redemption or of conversion into an extract of inscription, forty new
dividend-warrants shall be delivered on the presentation of this certificate with the dividend warrants preceding that which latest became
due.'-(Signed by the Secretary of State for the Finance Department.)
"c The dividend-warrants or coupons annexed, were in the following
form:"i'Dividend-warrant for 61. 7s. 6d. sterling, payable on the 1st of
May, 1841, at the office of Messrs. I. & S. Ricardo & Co., London.
61. 7s. 6d.'" The affidavit in support of the rule stated that Ivaquin Schiednagel,
one of the garnishees, was president of a commission appointed by the
Spanish Government for the management in England of the affairs
relative to the public debt of Spain, and for facilitating the payment of
dividends to the holders, in England, of bonds or other public securities,
and that as such president he received from time to time remittances
from Spain, for the purpose of *-paying the half-yearly coupons
[*601] of such bonds.  That none of the said garnishees had in their
possession or power any moneys, &c., of the Queen of Spain, as her
private property, and unconnected with the Government of her kingdom, and that the said Dofia Isabel was and still is reigning Sovereign
of Spain, and as such entitled to all rights and prerogatives appertaining
to such sovereignty.  That the said bonds were made by the Queen
Regent, in her sovereign character only, and solely on account of the
Kingdom of Spain, and as an act of State in the government thereof,
and not for or in respect of any private or personal debt owing by her,
or by the Queen of Spain, to the above plaintiff; and that the said
Queen of Spain was, at the time of the commencement of the said
action, and still is domiciled in Spain, owing no allegiance to Her Majesty
Queen Victoria.
C' JUDGMENT.(g)
", Lord Campbell, C. J. —  This case nearly resembles that (iDe Haber
v. the Queen of Portugal) in which we have just given judgment, but
differs from it in two particulars.  First, here the plaintiff's affidavit
does not expressly state that the action is brought against the defendant,
as reigning Sovereign, and supreme head of the Spanish nation; and,
secondly, the party applying is the garnishee, after pleading nil habet.
"c' The effect of the first difference is entirely done away with by the
disclosure the plaintiff makes in the affidavit of his supposed cause of
action, which is on a written instrument, commonly called a Spanish
Government bond, in the form of a debenture, entitled," Public debt of
Spain," signed by an officer of the Government of Spain, as contractor,
and purporting to have been issued under a decree of the Cortes sanctioned by the Regent of Spain in the name of her daughter, the present
(g) Law Jour. Rep., vol. xx. p. 499.




APPENDIX.                            425
Queen, then a minor. It is quite clear that no one could pretend, upon
such an instrument, to bring an action against the Queen of Spain, as a
private individual, supposing that she could be sued in the Lord Mayor's
Court for a debt contracted by her in London in her private capacity, she
having, by the constitutional laws of Spain, private property which
would be answerable for such a debt. There is here, therefore, an equal
want of jurisdiction in the Lord Mayor's Court to entertain the suit or
to summon the defendant. Nevertheless, the Lord Mayor did entertain
the suit, summoned the defendant, and, upon her making default in appearing before him, with full knowledge of the alleged cause of action,
awarded an attachment against her, under which money due to her in
her public capacity of Sovereign of Spain, was liable to be seized.
c' There is in this case, therefore, the same palpable excess of jurisdiction pointed out in the case of the Queen of Portugal.
*,'' We have only to consider whether there is before us a [*602]
proper party to pray for a prohibition.  The Queen of Spain
does not make the complaint, and it is only made by the garnishee after
pleading nil habet.
"',The plaintiff's counsel argue that the garnishee could only plead
nil habet; that if the Queen of Spain has any privilege against being sued
in the Courts of this country, she only can take advantage of it; that she
ought to have appeared and pleaded to the jurisdiction; that by her
non-appearance she must be considered as having waived her privilege;
that there has been no excess of jurisdiction, at any rate as far as the
garnishee is concerned; that it must be presumed that the Lord Mayor's
Court will do its duty, and that if it decide improperly, the remedy is a
writ of error, by which the record may finally be brought into this Court.
But we are clearly of opinion, that in a case of this sort, if the garnishee
comes in time, he may be heard in this Court, and a prohibition may be
granted at his instance.  Here there neither was nor could be any personal summons; the defendant could not be required to appear without
a breach of the law of nations.  The plea to the jurisdiction could only
have been pleaded by her in her proper person. The garnishee has an
interest in setting aside an attachment improperly executed, if he has
funds of the defendant in his hands, for, although he would be discharged
according to the law of this country, by payment under the judgment of
the Lord Mayor's Court, the law of Spain may not recognise such a payment; he is prevented from  applying the funds in payment of a debt
which may afterwards become due to himself from the Spanish Government; and at all events he is " a stranger," on whose information and
complaint of the excess of jurisdiction in contempt of the Crown, we
should be bound to correct it by a prohibition. If the record fully discloses the error into which the inferior Court has fallen after there has
been an excess of jurisdiction, a prohibition, and not a writ of error, is
the appropriate remedy.
r'Has the garnishee, then, by pleading nil habet, disqualified himself from coming before us to pray for the prohibition? We think not.
He was bound to put in a plea that he might avoid judgment; and before
the trial of the issue upon that plea, and within a reasonable time after
DECEMBER, 1855. —28




426     PHILLIMORE ON INTERNATIONAL LAW.
pleading it, he applies for a prohibition to prevent further proceedings in
an action which ought never to have been commenced.  Hoc statu, a
stranger might successfully apply for a prohibition, and surely so may
the garnishee. To show that a prohibition could not be applied for till
the objection relied on was specifically made in the inferior Court and
overruled, the plaintiff's counsel mainly relied upon the two cases of
Home v. Lord Camden, and Chesterton v. Farlar.  In the former case,
it was held by the House of Lords, in conformity with the advice of all
the judges, that whether the misinterpretation *by an inferior
[*603 ] Court of a statute, the consideration of which is confessed to be
within its jurisdiction, be a ground for a prohibition, or be not rather a
matter of appeal, in such a case a prohibition will not lie unless it be
made to appear to the superior Court, that the party applying for the
prohibition has, in the inferior Court, alleged the grounds for a contrary
interpretation of the statute on which he applies for the prohibition, and
that the inferior Court has proceeded notwithstanding such allegation.
"' But the opinion of the judges, delivered by Lord Chief Justice
Eyre, on which the House acted, was founded entirely upon the reason
that the inferior Court (the Commissioners of Prizes) had committed no
excess of jurisdiction, and, therefore, that a misconstruction of the Act
of Parliament was rather the subject of an appeal than of a prohibition.
He says i" the complaint made to the Temporal Court is not that the
sentence is wrong, which indeed the Temporal Court had no jurisdiction
to correct if it were wrong, nor is the complaint that the sentence was an
excess of jurisdiction, or in any other respect a ground for prohibiting
the Prize Court to carry it into execution.
"'  In Chesterton v. Farlar, a party who had appealed from the Arches
Court to the Queen in Council, the appeal being referred by her to the
Judicial Committee, while the appeal was pending, and before any proceeding had been taken in that Court, moved the Court of Queen's Bench
for a prohibition, on the ground that a church-rate, on which the suit
had been commenced in the Consistory Court, was bad, as appeared by
the pleadings there.  The Court of Queen's Bench (I think very properly) held that a prohibition could not be granted on this ground, the cause
being before a Court the jurisdiction of which was not denied, no erroneous proceeding having been taken there, and this Court refusing to presume that the Judicial Committee would act incorrectly.  Lord Denman
having pointed out that the Court before which the cause then was had
jurisdiction over it, and had not fallen into any mistake, adds, "c if in the
progress of the cause, the Court should commit any error, if they do anything against common law or Acts of Parliament, we may then interfere."
But in the case at bar, the inferior Court had no jurisdiction to entertain
the cause; and before the prohibition was applied for, the inferior Court
had committed a manifest error, and had clearly exceeded its jurisdiction
by summoning the Queen of Spain, and issuing an attachment against
her.
" Judicial procedure in England would have been liable to great reproach had it not afforded a prompt and effectual remedy at once to put
an end to actions brought in perversion of the ancient and laudable cus



APPENDIX.                            427
tomn of foreign attachment in the city of London, and in violation of the
universal law by which all civilized nations are bound. It gives us great
satisfaction, therefore, to be able, consistently with the decisions of our
predecessors, and the *principles by which they have been guided, [*604]
to grant the relief which is prayed.  If we had entertained any
grave doubt upon the subject, we should have directed the applicant to
declare in prohibition; but being clearly of opinion that there is an excess of jurisdiction in the Court below, of which he is entitled to complain
before us, it is our duty simply to make the rule absolute.'
"c lRule absolute."
No. 8.
DECISIONS IN THE FRENCH COURTS.
Tribunal D u Havre.
(Correspondence Particuli(re.)
Audiences des 10, 23, et 25 IaWi.
AFFAIRE DE ME BLANCHET, AVOCAT, CONTRE LE PRESIDENT DE LA RE-.
PUBLIQUE D'HAITI. (h)
c" A L'AUDIENCE du 10, Me Blanchet a replique.  Apres de nouveaux
details sur l'importance et l'etendue de ses travaux, il continue ainsi:sV " Vous avez et6 payI, m'a-t-on dit! I1 est vrai que la commission
instituae par le president Boyer a fait un savant calcul d'economie politique, pour etablir que j'avais trop regu, puisque la somme qui lui avait et6
payee avait et6 superieure au traitement des membres du corps legislatif;
mais cette decision inspir6e par le president Boyer est ridicule.'
c Dans la consultation de Me Isambert, on a fait un autre argument.
Voyez Finjustice de Me Blanchet; il accuse le president d'etre ingrat,
de ne pas rdcompenser les travaux qu'il a demand6s; et il a donn6
10,000 franc spour l'infortune des hommes de couleur, sans qu'aucune demande lui ait et6 adressee.  Me Blanchet repond nemo liberalis nisi
liberatus.  Me Isambert sait mieux que personne que je n'ai pas et6
paye; il en a la conviction. (Me Isambert fait un geste n6gatif.) Me
Blanchet lit alors un passage d'une lettre de cet avocat du 10 D6cembre,
1826, oui il est dit qu'il s'interposera pour que Me Blanchet soit traite
honorablement.  Donc i. cette 6poque Me Isambert pensait que Me Blanchet n'avait pas ete convenablement r6tribul6.  II est vrai qu'il peut avoir
deux consciences, l'une comme homme priv6, l'autre comme jurisconsulte at homme public.
t Me Isambert se 1lve et demande que Me Blanchet soit tenu de lire
la lettre toute entiere, afin qu'il n'en altere pas les dispositions [*605]
*comme il l'a fait pour les documens lus 5 l'audience du 3 Mai, L
qu'il a positivement refuse de communiquer.
(h) Gazette des Tribunaux, May 27, 1827. Num6ro 554.




428    PHILLIMORE ON INTERNATIONAL LAW.,, Me Blanchet lit la lettre ainsi congue:",' Mon cher confr6re. —Je ne puis vous communiquer les pi6ces que vous
me demandez par votre billet d'heir; elles ont et6 destinees au prasident
seul et au ministre des affaires 6trangeres, oiu l'on poursuit l'affaire diplomatiquement.  Elles ne mn'appartiannent pas, et ne doivent pas voir le
jour.  Si le conflit est 61eve, vous aurez tous vos moyens de d6fense.
" cJe vous dirai seulement qu'on a 6te prodigieusement etonn6 que
vous ayez appel6 le sieur Jean-Pierre Boyer devant les Tribunaux, tant
comme particulier que comme president d'un etat souverain, pour un
travail confidentiel que l'on dit vous avoir 6te confi6 sur les lieux, et que
vous ayez obtenu d'un juge du Havre la permission de saisir des propri6t6s d'un gouvernement sur un simple expos6.
"'Je crains tellement le d6bat public pour la cause que nous d6fendons tous, qu'en trouvant mal fond6e, en la forme, la demande dont vous
avez saisi le Tribunal du Havre, j'ai desire un arbitrage.
"c' Le pr6sident parait fort pique contre vous; vous l'6tes contre lui.
Un d6bat de cette nature ne peut qu'etre affligeant, comme vous le disait
M. le general Roche, dans mon cabinet.' c Mon vif desir est que vous soyez traite honorablement de vos travaux.  J'ai parl6, il y a long-temps, de ma maniere de voir a ce sujet, h
M. D —, notre ami commun.  J'accueillerai avec le plus grand plaisir,
et je m'empresserai d'appuyer de toutes mes forces les demandes, qui auront pour but d'arriver a une conclusion agreable aux deux parties.'
" Me Blanchet arrive A la question de competence.  I1 reproduit et d6veloppe ses argumens pour prouver qu'il est ne et qu'il est reste Frangais.
II serait Frangais quand meme il serait n6 sur le territoire d'Haiti, depuis
la reconnaissance d'independance, et quoique son pere ait et6 l'un des
auteurs de la constitution, et l'un des fondateurs de cette ind6pendance.
La preuve que la France l'a conside6r  comme tel, c'est qu'elle l'a fait
elever Ba ses frais, bien que Haiti se ffit separe de la mere-patrie.
c, Me Blanchet se trouvait exclu cornme blanc de la naturalite Haiatienne;
mais, a-t-on dit, n'etes-vous pas un homme de couleur?(i)
", Quoiqu'il soit Evident qu'il n'est pas homme de couleur, Me Blanchet
ne s'en defendrait pas s'il l'etait; il a combattu lui-meme ce pr6jug6; il
cite une foule de citoyens recommendables qui *sont de sang
[ 6O6] mle8: M. le general Roche, M. le docteur Fournier.  Il en cite
d'autres, auxquels il reconnait un vrai talent; mais "a l'egard de ceux qui
sont en Haiti, il s'abstiendra de dire leurs noms, parce que ce serait les
exposer a l'animadversion du president Boyer.
" Au reste, quand une goutte imperceptible ou apparente de sang Africain coulerait dans les veines du demandeur, il n'en serait pas moins
Frangais, et en droit d'actionner le president. Mais il repousse la qualification d'homme de couleur, pare que son acte de naissance, du 21 plu(i) " Quelques contestations se sont 61ev4es sur la realit8 de cette interruption,
rapportee par la Gazette des Tribunaux: mais tous les doutes ont dui cesser depuis
que Me Isambert a publiquement declare que c'etait lui qui l'avait adressee a Me
Blanchet. Ainsi la Gazette des Tribunaux a ete, selon son usage, parfaitement
exacte."




APPENDIX.                             429
viose an VI., n'en fait pas mention, comme le prescrivaient les r~glemens
coloniaux.
"' On a,' ajoute Me Blanchet,' dans la consultation et'a laudience,
insiste sur ce que j'aurais regu 2,500 gourdes (12,500 fr.) sur mes travaux.
Je n'en ai regu que 500. Les 2,000 gourdes de surplus auront peut-etre
et6 portees dans les comptes d'Haiti, et gardees par le president Boyer
pour se les approprier.',, M. le president observe que dans la consultation de Me Isambert, il
est dit que cette somme a ete payee sur la cassette du president.
"' Dans cc cass' repond Me Blanchet,  il ne penut se dispenser d'en produire la quittance.'
cc Me Isambert demande a repondre sur les insinuations que Me Blanehet s'est permises contre lui a l'audience.  Cette reponse est necessaire,
parce que Me Blanchet ne lit pas exactement les documens dont il fait
usage.
" MI. le president. —  Le Tribunal verrait avec regret que deux hommes
honorables se livrassent i l'audience a des personnalites; peut-etre Me
Blanchet, plaidant dans sa propre cause, a pu se servir de quelques expressions qu'il eut pu adoucir; mais le Tribunal n'a rien entendu qui
necessitat une reponse.'
" Me Isambert. —  Si telle est l'opinion du Tribunal, n'6tant ici que
conseil, je ne prendrai pas la parole.  J'attendrai que Me Blanchet ait
publie textuellement le plaidoyer d'aujourd'hui; alors je pourrai r6pondre
a ce qui paraitra l'exiger, en regrettant que ces explications ne soient plus
de nature "a se passer entre nos amis communs.'
"( A l'audience du 23, M. Lizot, procureur du Roi, a porte la parole.
c" Ce magistrat, apres avoir retrace en peu de mots les faites de la cause,
se hate d'aborder les hautes et importantes questions qu'elle presente a
r6soudre.  Ii rappelle que la r6publique d'HaYti oppose'a la demande de
Me Blanchet, 10 l'incomp6tence des Tribunaux Frangais; 20 l'insaisissabilite des marchandises arretees, et que de plus elle r~elame la suppression
des ecrits du proces comme irrev6rens, injurieux,. diffamatoires, soit envers
elle, soit envers son president.
" I1 pense que par cette derniere pr6tention la republique ne s'est point
rendue irrecevable a proposer l'incompetence, parce *que les deux [*607
demandes sont d'une nature entierement diff6rente; qu'elles peu-  607
vent subsister ensemble, parce que l'effet de l'une n'a aucun rapport avec
l'effet que l'autre doit produire; que d'ailleurs l'abandon de ses moyens
ne se presume pas.
"4Arrivant La la question d'incompetence, il etablit que Me Blanchet
est naturel Frangais, et qu'en cette qualite il peut se prevaloir des dispositions de l'art. 14 du Code Civil; il convient que le demandeur ne peut
se dire Frangais, par cela seul qu'il est ne Frangais a Saint-Domingue,
avant l'emancipation; car il r6sulterait de ce systelme que tous les
habitans de Saint-Domingue, nes avant l'ordonnance royale, seraient
encore Frangais.  I1 convient encore que l'independance a le meme
effet que la conquete; que, comme elle elle soumet au nouvel 6tat les
rsujets de l'ancien.
"t Mais,' ajoute M. le procureur du Roi,'la metropole, dent le




430   PHILLIMORE ON INTERNATIONAL LAW.
nouvel etat se detache, ne perd que ce que la puissance nouvelle a voulu
acquerir ou a reellement acquis.  Ce qu'elle rejette ne subit ni changement ni incorporation. Qu'a done acquis Haiti, colonie Frangaise,
depuis des siecles? Lors de la revolution de 1791, les noirs ne s'arreterent dans leur fureur que lorsqu'ils n'eurent plus de maitres a massacrer
ou h proscrire.  Ceux qui echapperent vinrent en France, ou chercherent
un asile sur d'autres terres hospitaliares.  Ces Europeens, qui ne pouvaient rester sans danger sur le sol de Saint-Domingue, de6j teint du sang
de leurs fr~res, dans des temps plus calmes, furent encore declare6 incapables de toute fonetion publique.  Haiti les a toujours rejetes de Ison
sein; ils n'ont pas ete un seul instant soumis "a la domination 6trangere.
Frangais quand il s'agissait de les proscrire, ils soent encore Frangais
quand il s'agit de les defendre.
cc Me Blanchet revint en France, en 1800, avec son pere; il a fait ses
6tudes "a Paris, ouh il a e6t inscrit sur le tableau des avocats.  11 est done
Frangais comme tous les anciens colons expulses. En vain dirait-on,
tardivement d'ailleurs, qu'il est d'origine Africaine; cette pretention
invraisemblable devrait etre prouvee autrement que par des assertions.
"' Francais, son arriv6e en Haiti, Me Blanchet n'apoint perdu sa
qualite par la naturalisation acquise en pays etranger. La naturalisation
est un fait, qui ne se peut operer que d'aprds les lois du pays dont on
doit devenir sujet.  Or, Me Blanchet n'a rempli ni pu renmplir les conditions imposees par la constitution Haitienne; il n'a ni la couleur ni la
residence voulue; il est done encore Frangais.
CC  Mais il a accept6 des fonctions'a l'etranger!  Sans doute; mais
sont-elles du nombre de celles qui font perdre la qualite de Frangais?
S'est-il expose k contrarier les int6rets de son pays?  Ces fonctions sontelles incompatibles avec les devoirs de fidelite envers la patrie?  I1 fut
defenseur public, ce qui equivaut i la qualite d'avocat en France; mais
nulle loi representee ne dit que *pour etre avocat ia Haiti il faille
08 tre I-aitien.  Le ministere public pense que pour appliquer le
2e ~ de l'art. 17 du Code il faut que le Frangais ait rempli une sorte de
magistrature, que cet article a un but politique, et ii tire argument d'un
avis du conseil d'etat, du 21 Janvier, 1812.
cc C On dit encore: cc II a fixe un 8tablissement sans esprit de retour."
Mais, s'il en eft ete ainsi, s'il eit voulu fixer son existence en Haiti,
n'aurait-il pas accepte les hautes fonctions, les faveurs qui lui etaient
offertes? Par sa jeunesse et ses talens ii euft ete entraine dans la carriere
brillante qui lui etait ouverte.  Son refus prouvait l'esprit de retour; il
voulait revenir en France, oii il avait laisse des amis, des souvenirs
honorables, oui on le considere encore comme Frangais, inscrit sur le
tableau des avocats de Paris, dans cette France que les etrangers visitent
avec envie et ne quittent qu'a regret, et qu'un Frangais n'abandonne
jamais pour patrie;,,  La question la plus d6licate de ce proc~s,' continue le ministere
public, C est celle de savoir si la republique Haitienne est, dans l'espece,
justiciable des Tribunaux de la France.  Habitue, commne Frangais, i
respecter les actes de la volonte royale comme magistrat, a les faire
respecter, vous n'attendez pas de nous, Messieurs, que nous r'voquions




APPENDIX.                             431
un  seul instant en doute l'independance du gouvernement d'Hai'ti.
Nous examinerons, en droit rigoureux, si un etat etranger peut, dans
certains cas, subir la juridiction de nos Tribunaux.' Le magistrat ktablit
une distinction lumineuse entre le gouvernement qui agit comme depositaire de la puissance publique et dans l'exercice de cette puissance, et:
le gouvernement agissant dans l'exercice de son int6ret priv6, comme
corporation, comme personne morale.
cc' Dans l'exercice de son droit public exterieur avec d'autres nations,
de son droit public interieur avec ses sujets, vouloir tracer des r~gles h
un etat qui use de seos droits, serait rompre l'egalit6, violer son independance; mais lorsqu'il forme des obligations civiles, lorsqu'il se lie lorsqu'il s'engage comme les particuliers dans un interet purement priv6,
c'est alors qu'il devient individu soumis aux memes lois.  Or, l'art 14
du Code Civil est positif; s'il est'vrai de dire que les gouvernemens
peuvent etre, dans certains cas consider6s comme personne morale, il doit
etre appliqu6, dans toute sa rigueur, sans examiner si la disposition
legislative regle ou non le droit des gens ou le droit civil.  En France,
l'etat est soumis a la juridiction des Tribunaux quand il s'agit de regler
ses int6rets prives; ii est assimile alors au simple particulier.  Aussi
a-t-il fallu une loi sp6ciale pour le dispenser de la caution exigee dans
Flart. 2185 du Code Civil.
i" En vain, lorsqu'il s'agit d'interets prives, on objecterait les droits
de souverainet&e, d'independance des nations, parce que ces droits ne sont
point compromis; ils n'existent pour les gouvernemens qu'en taut qu'ils
agissent dans l'exercice de leur puissance *publique, qui seule ne [*609]
peut se soumettre a des maitres; mais ce principe est sans cons6quence dans l'obligation privee de sa nature. Aussi Kluber dit-il que
c'est comme nation que les gouvernemens sont hors la juridiction des
Tribunaux, parce qu'alors ils rentrent dans l'6tat de nature.
"'Lorsque la r6publique d'Haiti traduit des Franaais devant les
Tribunaux, sans contredit on peut exiger d'elle la caution judicatum
solvi (art. 16., Code civil,) uniquement parce que ce mnot etranger
s'entend de tout demandeur qui n'est pas Frangais, et dans ce cas, nulle
atteinte ne serait portee ni a sa dignite, ni a son independance, parce
qu'alors elle n'agirait point dans l'exercice de sa puissance publique.
"',L'objection tir6e de ce que, lors de la discussion du Code, on
retrancha un article relatif aux ambassadeurs, fortifie la distinction qui
droit dominer cette importante matiere, en ce que l'ambassadeur, repr6sentant sa nation dans l'exercice de sa puissance publique, ne pourrait,
sans violation du principe de l'6galite et de l'independance, etre soumis
a la juridiction privee.
" Apres avoir pose cette base fondamentale de sa discussion, le
ministire public examine les diverses objections faites par la republique,
objections dont il trouve la solution par voic de consequence, et r6sumant
ses principes avec force et concision, il conclut encore sur cette seconde
question en faveur de Me Blanchet.
c Une derniere question se pr6sente, c'est celle de savoir si M~e Blanchet
a pu saisir-arreter les marchandises de la r6publique d'Haifti.




432   PHILLIMORE ON INTERNATIONAL LAW.
c" Le minist/re public se demande qui les avait empreintes du sceau
de l'insaisissabilite?  Ce n'est point l'ordonnance d'emancipation; il
n'existe et on n'invoque aucun traite qui les excepte du droit commun;
elles sent alors, comme propriet6 ordinaire, regies, quant a la saisissabilit6, par les art. 557, 558, du Code de procedure.  I1 se peut que dans
l'intention de la r6publique elles eussent une destination certaine.  Mais
ou en est la preuve legale pour les tiers qui ne voient et ne peuvent
voir que le proprietaire actuellement saisi?  Cette volonte, d'ailleurs,
pent changer, et on ne pent dire que de plein droit toutes les propriet6s
Haitiennes, sur le sol Frangais, soient destinges au paiement de la dette
des 150 millions.
i'  Les fonds publics 1Frangais sont excepte&s des regles ordinaires, il
est vrai, mais les exceptions soent de droit 6troit; il a menme fallu une
loi speciale pour deroger au droit commun, et il n'existe, en France,
aucune loi qui declare insaisissables les marchandises d'Haiti.'
", Quant a la question de suppression d'6crits, qui a et6 convertie en
une demande en rdserve, le ministere public pense qu'il faut surseoir k
statuer jusqu'a la discussion du fond, parce qu'alors, seulement, on
pourra juger du merite des faits allegues dans la demande.
610    *"Apres ces conclusions, le defenseur de la republique a pro[*610] duit la petition de Me Blanchet pour etre nomme defenseur
public i HaYti, p~etition dans laquelle il reconnait qu'il revient dans son
pays.
t4 Me Blanchet repond que cette petition ne change rien aux principes
du droit que la loi Frangaise lui confere, qu'elle n'est d'aucune importance, et que les adversaires la connaissent depuis long-temps.
" A l'audience du 25, le Tribunal a prononce son jugement par lequel
il considere Me Blanchet comme Frangais d'origine, ayant conserv6 cette
qualit6; mais declare les Tribunaux Frangais incompetens, parce que
l'art. 14 du Code ne regit que les rapports des particuliers entre eux, et
sous ce point de vue m6me contient une exception au droit commun,
exception qui doit etre restreinte dans les termes rigoureux de la loi.
" Relativement aux reserves, le Tribunal ayant egard, la position out
se trouvait Me Blanchet et aux injures a lui prodigu6es dans les journaux et meme dans les journaux d'Haiti, a deboute le president de la
rxpublique de sa demande; mais il a condamnen6 Ie Blanchet aux depens.




APPENDIX.                              433
(From the Gazette des Tribunaux, May 3, 1828. Num6ro 855.)
Tribunal De Ire Instance (]re Chanmbre.)
(Prdsidence de M. Moreau.)
Audience du 2 Mlai.
AFFAIRE DE LA MAISON BALGUERIE, DE BORDEAUX, CONTRIE LE GOUVERNEMENT ESPAGNOL.(Io)
AFFAIRE DE MM. TERNAUX, GANDOLPHE ET COMPAGNIE, CONTRE
LA REPUBLIQUE D' HA'I. (/)
M. LE PRESIDENT Moreau a prononce6 le jugement suivant dans
l'affaire Balguerie:"' Attendu que le droit de juridiction est une emanation de la souverainet;
"'Attendu que l'art. 14 du Code civil ne peut etre applique6  un
souverain 6tranger, d'abord parce qu'il ne dispose que pour les
obligations contractees envers un Frangais par un individu 6tranger, et
encore parce qu'on ne pourrait l'etendre aux souverains *6trangers
sans porter atteinte au droit qu'a tout gouvernement indepen- [1]
dant d'etre soul juge de ses actes;," Attendu, en fait, que l'opposition form6e par ]a maison Balguerie
entre les mains d'Aguado, a pour cause 1'ex6cution d'un trait6 passe
entre S. M. catholique en cette maison pour l'affrbtement d'un certain
nombre de navires destines 3 transporter les troupes du gouvernement
espagnol;
",Qu'un pareil traite est 6videmment un acte d'administration publique, et noe peut, sous aucun rapport, etre consid6r6 comme contrat
prive;
"' Attendu, d'un autre cote, que les deniers sur lesquels l'opposition
a ete formee, sont des deniers publics destines au paiement de l'emprunt
royal espagnol, et qui ne pourraient etre saisis sans entraver la marche
de ce gouvernement;
"' Qu'admettre une personne priv6e a saisir en France les fonds d'un
gouvernement etranger, serait violer, les principes sacres du droit des
nations, et s'exposer ainsi h des represailles funestes;
"'Attendu, enfin, que les jugemens des Tribunaux Fran9ais etant
sans autorite hors du royaume, le gouvernement espagnol ne pourrait pas
etre force de s'y soumettre, et par consequent de reconnaitre la validite
du paiement qui serait fait par Aguado;,D'ou il suit que le Tribunal est incompetent.
"'Fait main lev6e de l'opposition,' etc."
(k) Gazette des Tribunaux, 19th and 26th April.     (1) lb., 26th April.




434   PHILLIMORE ON INTERNATIONAL LAW.
Tribunal Civil de la Seine (Ife Chambre.)
(Pr6sidence de M. de Belleyme.)
Audience du 16 Avril.
S. A. MEHEMET-ALI, VICE-ROI DBEGYPTE, ET M. SOLON, AVOCAT.-FONDATION D UNE ECOLE D'ADMINISTRATION PUBLIQUE EN EGYPTE.DEMANDE EN 100,000 FRANCS DE DOMMAGES-INTERETS.(m)
" CETTE affaire, qui promettait des rev6lations sur le gouvernement
du vice-roi et sur les relations de la France avec l'Egypte, avait attire a
l'audience une grande affluence de curieux.
t" S. A. Mehemet-Ali, vice-roi d'Egypte, 6tait representde par M. Odiion Barrot, qui, comme on sait, a fait recemment un voyage en Orient,
et qui mieux que personne, en sa qualite de frere de notre consul-general
en Egypte, pouvait donner au Tribunal des explications sur le veritable
6tat des choses en Egypte.
612 Voici dans quelles circonstances le vicc-roi d'Egypte avait h
[6121 se *defendre devant le Tribunal de la Seine contre une demande
en 100,000 francs de dommages-int6rets:ec M. Solon, dont le nom 6tait d'un heureux augure pour donner 3
1'Egypte des legons d'administration et de civilisation, avait 6t6 choisi
par l'intermediaire de M. Macarel, conseiller d'Etat, et d'Artim-Bey,
secretaire de S. A. le pacha d'Egypte, pour aller fonder au Caire une
ecole d'administration publique. Il 6tait dit que M. Solon resterait pendant huit ans au service du vice-roi.  II devait recevoir 15,000 francs
de traitement par an et un logement digne de sa mission et dans le voisinage de l'6cole.  Au mois d'aoft, 1845, M. Solon, a la suite de quelques
difficultes avec le vice-roi, quitta 1'Egypte et revint en France.  II a
pretendu que le vice-roi lui avait signifi6 un cong6 sans motif, et qu'il
avait duf ceder a la toute-puissance du pacha.  De retour en France, M.
Solon a fait pratiquer des saisies-arrets entre les mains de deux negocians de Marseille, sur los valeurs et marchandises qu'ils pouvaient avoir
pour le compte du gouvernement Egyptien.  Depuis, ces saisies-arrets
ont ete d6noncees au gouvernement Egyptien en la personne d'ArtimBey, representant et mandataire du pacha.  De plus, M. Solon a fait
assigner le gouvernement Egyptien devant le Tribunal civil de la Seine,
pour le faire condamner a lui payer 100,000 francs de dommages-interets, tant pour six ann6es de traitement que pour frais de voyage en
Egypte et de retour en France.  Un jugement par d6faut dont nous avons
rendu compte, l'an dernier, a accueilli la demande de M. Solon.
" S. A. le vice-roi a form6 opposition au jugement rendu contre lui
par le Tribunal de la Seine. Aujourd'hui, il pretendait que le Tribunal
de la Seine etait incompetent.
I M. Odilon Barrot, avocat de S. A. MeI6hmet-Ali, vice-roi d'Egypte,
s'exprime ainsi:"c C'est un gouvernement itranger qui est assigne devant vous, et qui
(m) Gazette des Tribunaux, May 3, 1828. Num6ro 855.




APPENDIX.                             435
l'est pour une action personnelle, a raison d'un acte essentiellement gouvernemental.  Poser ainsi la question, c'est assez vous dire que le debat est
hors du droit civil ordinaire, et qu'il a son siege dans le droit des gens. I1
s'agit, en effet, de savoir si on peut traduire un gouvernement etranger devant les Tribunaux Frangais pour un acte de sa souveraincte. L'independance des Etats, les conditions de la souverainete, les principes incontest6s
du droit des gens, no permettent pas qu'on soutienne d'aussi 6tranges
principes.  Aucune discussion n'est possible a cet 6gard.  Tous les
auteurs qui se sont occupes du droit des gens, Montesquieu, Vatel, Puffendorf, tons ont consacr6 le principe de l'independance des gouvernemens, et soutenu que la juridiction d'un etat ne pouvait apprecier les
actes d'un gouvernement 6tranger.  La juridiction decoule de la souverainete.  Pour que les Tribunaux Frangais fussent competens, il faudrait
admettre que la juridiction existe independamment de la souverainet6.
A cet egard, les principes soent si evidens que le vice-roi ne pourrait
*accepter pour juge un Tribunal de France sans abdiquer sa sou- [*613]
verainet.                                                        613,,  Je vais vous exposer rapidement leos faits qui ont donn6 naissance
au proc~s actuel.
"'C M. Solon, avocat, ancien conseiller de prefecture a Montauban, a
accept6 la mission d'aller au Caire, en Egypte, en qualit6 de professeur
d'administration publique; M. Solon est entre au service du gouvernement Egyptien avec de grands avantages mat6riels. I1 devait recevoir
15,000 fr. par an. Doe plus, M. Solon avait au Caire une vaste maison a
sa disposition, et ind6pendamment de tous les avantages que la munificence
eclairee du pacha sait si bien prodiguer, 3I. Solon avait a remplir en
Egypte une mission glorieuse et digne de tenter la plus noble ambition,
d'exciter les sentimens les plus elev6s d'un grand coeur, les pens6es les
plus vastes d'un esprit 6minent.  Si le vice-roi a arrache l'Egypte par
la force de sa volonte et l'energie de son gouvernement a l'anarchie militaire, s'il a pu asseoir dans ce pays une securite telle qu'une femme peut
traverser le desert et faire sans danger le voyage de la Palestine, s'il a
r6ussi au milieu des conflits Europeens a assurer sa puissance et a fonder
une dynastie, il y avait une chose qui n'etait au pouvoir ni de sa force
ni de son genie,-c'etait d'improviser et de creer des hommes eclaires et
capables par leurs lumieres de conduire l'Egypte en la soutenant dans
les voies de la civilisation oui il la faisait entrer.  Voila pourquoi M6hmet-Ali s'est adresse6   la France, a laquelle appartiennent toutes ses
sympathies, et oui il envoie des 6lbves destines un jour ia concourir aussi a
l'oeuvre glorieuse qu'il se propose.,"'M. Macarel, que le Tribunal connailt et que nous honorons tous,
avait ete charge par Artim-Bey, le secretaire du vice-roi, de chercher un
homme digne de cette mission.  MI. Macarel choisit N. Solon.  M. Solon
ne pouvait ambitionner un plus noble rble que celui qui lui 6tait offert.
Preparer par l'enseiguement un peuple entier'a la civilisation, transporter
dans l'Orient, en instruisant les jeunes Egyptiens qui devaient plus tard
regir les destinees de leur pays, les idees de la France, la civilisation de
l'Occident, c'etait la plus belle et la plus sainte mission.
"'Quand on sait pour quels motifs futiles, pour quelles causes subal



436   PHILLIMORE ON INTERNATIONAL LAW.
ternes M. Solon a renonce i ce sacerdoce, on le regrette pour lui, pour
sa destinee, pour sa gloire.  M. Solon a abandonn6 l'Egypte et renonc6
a sa mission, parce que le vice-roi l'a pri6 de quitter le palais qu'il habitait pour le ceder au cherif de la Mecque, au chef de la religion musulmane, que le sultan traite d'egal a' egal.  Le vice-roi a offert a M. Solon
de venir habiter le palais qu'occupait le ministre des affaires etrangeres.
Ce n'etait pas assurement une demeure indigne de M. Solon.  Cependant
il a resist6 a tout,-sommations des ministres, invitations du vice-roi.
Seulement Nie6hmet-Ali a dui alors lui laisser cette alternative, ou
] *de quitter le palais ou de quitter l'Egypte.  M. Solon a prefr8e quitter l'Egypte.
"', M. Solon a insinue qu'il avait et6 renvoy6 du Caire parce qu'il y
professait en plein Orient des doctrines qui etaient plus ou moins en harmonie avec les r6gles qui dominent le gouvernement Egyptien. Alors
mSme que l'insinuation de M. Solon serait exacte, le Tribunal Frangais
aurait-il de droit d'appr6cier cet acte du gouvernement de Mehemet-Ali.
Ii serait assez etrange de voire faire une enquete ordonn~e par un Tribunal Frangais pour savoir de quelle faqon on enseigne au Caire et en
Egypte l'administration publique.  Il suffit de poser cette hypoth8se pour
faire ressortir combien il est exorbitant de faire juger par un Tribunal
Frangais le service d'un fonctionnaire qui s'est soumis a un gouvernement etranger.
"' En resume, je vous ai demontre que le Tribunal etait incompetent
sous deux rapports, la qualit6 de la partie assignee et la nature de l'acte
soumis i votre appr6ciation.  Quelle est la qualite de la partie assignee?
C'est un gouvernement etranger qui est assign6 devant vous directement
pour un acte administratif,. pour avoir destitu6 un fonctionnaire, un agent
de son autorite.
"' e Quelle est la nature de I'acte def6r8   votre justice?  C'est un acte
d'un gouvernement etranger.
"', En vertu de quelle loi, M. Solon peut-il fonder son action contre le
gouvernement Egyptien? En vertu de larticle 14 du Code civil? Mais
il s'agit dans cet article d'etrangers residens, il ne s'agit pas d'un gouvernement etranger.' Sous le double rapport de la qualite de la partie assignee et de la
nature de l'acte, l'incompetence du Tribunal est, je crois, d6montree.'
"c M. Solon pr6sente sa defense en ces termes:"'  La presence de mon contradicteur me place dans un singulier embarras. Comment pourrai-je m'expliquer sur sa plaidoirie en presence de rapports si bienveillans et si confidentiels qui m'ont attache a M. le consulgen6eral de France (M. Adolphe Barrot?)  Oh! oui, sans doute, on a eu
raison de le dire, la cause est grave, car si elle int6resse l'Egypte et les gouvernemens etrangers, elle interesse bien davantage encore l'ind'pendance
du pays et l'inte6et d'un grand nombre de nos compatriotes. Que le Tribunal veuille done songer aussi a la cause de ces Frangais et les defendre
contre un d6ni de justice aussi caracterise que celui qu'on veut lui faire
consacrer.
"' Je suis parti en 1844.pour l'Egypte, ajoutant foi a la reputation si
extraordinairement usurpee du pacha.  J'acceptai la mission grande,




APPENDIX.                             437
nationale et philanthropique qui m'6tait offerte. Je ne fis aucune difficult6 sur les conditions, et je partis apres avoir obtenu une ordonnance
royale qui m'autorisait a executer le contrat que je venais de former avec
M6hemet-Ali.  Arriv6 en Egypte, je fus surpris du singulier accueil qui
me fut fait: on parla hauternent de mystification, et il n'y eut pas une
seule voix *qui voulut prendre au serieux le contrat qui m'amenait
en Egypte.  Moi qui, de bonne foi, venais pour former des horn- [
mes a la connaissance du droit administratif, je proposai de me charger
de quelques jeunes gens qui seraient plus tard places dans les ministeres.
Tout me fut accordS.  Il en coutait peu, et d'ailleurs des reserves etaient
faites pour l'avenir, reserves qui devaient empecher le succes de mes
soins.  Bientot arriva l'epoque oui les 6leves qu'on m'avait confi6s devaient etre examines, et c'est alors que le pacha ne sut plus deguiser sa
pens6e; mes 6leves furent admirables.  L'examen fut brillant, trop
brillant, et les sujets payerent cher les eloges qui leur furent prodigues.
Quant a moi, je fus vivement interpelle par le secretaire du pacha, qui
me dit que la pacha n'entendait pas ainsi l'administration publique que
j'6tais eharge d'enseigner, et que j'aurais di me borner a donner a mes
Sleves quelques notions sur les successions.
"' Les successions, grand Dieu! repondis-je au secretaire du pacha,
mais elles sont rteglees par le Coran, et tout infidele qui se permet
d'expliquer les saintes ecritures de l'Islamisme merite la mort.  " Ah i
c'est juste!" me dit mon interlocuteur.  Telle fut la seule reponse qui
me fut faite.  Je me trompe.  On me fit une reponse plus categorique.
Mes jeunes gens furent sacrifi6s.  On leur refusa toute esp6ce de grades,
et ils durent deplorer avec moi les tristes consequences de mes enseignemens.," Des ce moment s'accomplissait cette prediction qu'on trouve consign6e dans un ouvrage publi6 rdcemment par M. Schoelcher, sous le
titre de L'Egypte en 1845.
"'On lit dans cet ouvrage, page 61, chapitre VI.-:-,, Il y a trois ou quatre ans a peine, M6h6met-Ali a fait venir de
France un jurisconsulte, M. Solon, pour etablir au Caire un cours de
droit administratif. C'est encore une de ces jongleries sur lesquelles il
comte pour tromper l'Europe. A quoi servirait un cours de droit
administratif dans ce pays otu r~gne le bon plaisir, et auquel on no veut
pas donner d'administration parce qu'on vent conserver l'arbitraire.  Le
vice-roi a confi6 cinq eleves'a M. Solon, et au bout de la premiere annee
il a voulu lui enlever le meilleur, pour en faire, qLuoi?-le chef d'une
buanderie.  M. Solon paralit homme a ne pas conserver de role dans la
grande comedie Egyptienne.  I1 exigera probablement l'organisation
definitive de son ecole avec ses consequences serieuses, et comme on ne
voudra pas lui accorder, il y a lieu de croire que la toile tombera avant
pen sur l'intermede qu'on lui avait confie.",( Il me fut impossible,' dit M. Solon,' de ne pas voir oui on voulait
en venir.  Cependant je tins bon.  Je demandait de nouveaux 61lves;
on m'en donna qui savaient a peine epeler les mots.  Ils me demanderent de les faire nommer lieutenans, en declarant qu'ils partiraient
touns si je ne pouvais leur obtenir de grades.  La condition etait rigou



438    PHILLIMORE ON INTERNATIONAL LAW.
reuse, impossible; je ne pouvais m'y soumettre, et je vis partir tous mes
*616] nouveaux eleves, qui *furent chercher leur grade ailleurs.
Cependant, ma resignation fatiguait le pacha, et il me fit encore
donner six 6leves qui me faisaient aussi des conditions. Je ne pouvais
plus y tenir, et pour faire cesser cet 6tat de choses reellement insupportable, je fis un rapport qui etait d'ailleurs obligatoire a Me6hmet-Ali.  Je
lui demandai, avec tons les egards possibles, l'organisation de son ecole.
Je passai sous silence tous mes justes griefs. Je consentis a ne pas
parler de faits de la plus haute gravite; je voulais rendre impossible tout
mauvais proced6.
"', Je connaissais bien mal les hommes auxquels j'avais affaire.  Mes
6gards furent pris pour de la faiblesse. On repoussa toute demande
d'organisation. On se mit a me tourmenter pour mon logement, qu'on
voulut me faire quitter malgre les promesses formelles qui m'avaient ete
faites.  J'ecrivis que jetais pret a quitter ce logement; je me bornai a
demander quelques jours.  Je regus alors une lettre d'Artim-Bey qui
contenait la phrase la plus inconvenante.  Enfin, apres une correspondance que je regrette de ne pouvoir faire connaltre aujourd'hui au
Tribunal, je regus un ordre de depart. J'etais remercie. Je fus chez
le consul-general de France, M. Barrot, frEre de mon honorable adversaire; je lui demandai son appui pour faire executer mon contrat: tout
fut inutile J'avais affaire'a un prince et'a des conseillers qui ne comprennent pas la justice.  Je ne pus meme  obtenir que des arbitres fussent
charges de prononcer sur ma reclamation.'c, C'est alors que je fis donner assignation a Mehemet-Ali devant Mi.
le consul-general de France pour assister au dGp&t de mon contrat, et je
partis pour la France.  Arrive a Marseille, et porteur de mon contrat
revetu de la formule ex6cutoire, je fis saisir les marchandises du pacha
dans l'entrepot de Marseille.  J'ai demand6 plus tard au Tribunal de la
Seine la validit6 de la saisie.  Le Tribunal, jugeant par difaut, il est
vrai, a accueilli ma demande, et c'est sur l'opposition du pacha d'Egypte
que le Tribunal est appele a statuer.'
"xiM. Solon s'attache a repousser l'incomp6tence soutenue au nom du
pacha d'Egypte.'Je conviens,' dit-il,'qu'on ne peut pas faire une
saisie dans le domicile d'un ambassadeur, ni sur un prince en passage
sur le territoire national.  Mais si un prince fait des affaires en France,
s'il a sur notre territoire des marchandises, des meubles, etc., tous ces
objets  soent saisissables.'   M. Solon cite Martens, Vatel, Kliiber,
Weathon, etc.
",'De quoi s'agit-il?  D'une saisie fait au pr6judice de Mh6nmet-Ali,
h Marseille; au prejudice du pacha faisant le commerce, ayant ses courtiers, ses consignataires, et 6tant sans nul doute soumis' ce titre aux
lois de douanes. Pourquoi done,' dit M. Solon,' ne pourrais-je pas de
meme exercer des poursuites sur les denrdes, sur les marchandises qu'il
a en France, a raison de son negoce, car il est incontestable que MihmmetAli, tout en 6tant pacha en Egypte, est en meme temps negociant.
*617    *  aintenant, Messieurs, permettez-moi d'arreter votre
[*617] attention sur un point assez delicat de cette affaire.  Vous savez
que Mlhemet-Ali n'est plus un souverain comme il l'a ete.  Le trait6




APPENDIX.                             439
de 1840 l'a soumis' la Porte, l'a force de reconnaitre la souverainete du
sultan. S'il est souverain encore, ce n'est qu'un souverain sous-ordre;
c'est pourquoi il s'appelle le vice-roi.  II n'a pas, il ne peut avoir le
privilege de la souverainete; il cherche bien h l'avoir tout entiere, mais
ce n'est la qu'une pretention. On se rappelle la courtoisie dont IbrahimPacha, le fils de Me6hmet-Ali, vice-roi d'Egypte, a ete lFobjet dans son
r6cent voyage en France et son s6jour a Paris.  Quand Ibrahim fut retu
aux Tuileries, il y fut pr6sente par l'ambassadeur Ottoman.
4 Je rappellerai encore que le droit des gens et le droit international
qui reglent les relations entre les puissances chretiennes, est tout a fait
diff6rent de celui qui regit les rapports de l'Europe avec les peubles
d'Orient.,"Le droit international a e6t fonde par les puissances chr6tiennes a
l'6poque des croisades et contre les Musulmans.  Quant a ceux.ci ils
ont des principes tellement incompatibles avec ceux de l'Europe, que
tous les auteurs sont d'accord pour reconnaltre ces differences essentielles
qui ne permettent pas aux chr6tiens de se laisser juger par les magistrats
Musulmans.  On reconnait bien que l'empire Ottomam cherche i rentrer
dans notre droit international, mais jusqu'ici ce rapprochement est loin
d'etre complet.',N M. Solon cite Weathon, Histoire du Droit des Gens, et Schmalz,
Du Droit des Gens, ainsi que les traites de 1542 et 1740, qui ne permettent pas aux magistrats Musulmans de juger un chretien s'il n'est assist6
d'un repr6sentant du consulat.
"'  Je le demande,' dit M. Solon,' quel serait done le juge que me
donnerait mon honorable contradicteur?  Des juges Musulmnans, le gouvernement du pacha, je n'en veux pas, car ils ne connaissent d'autres
principes que celui-ci: 1e gouvernement, toujours le gouvernement, tout
vient de lui et toute revient a lui!
"' Sachez-le done, Messieurs, le gouvernement de M6hemet-Ali ne doit
jamais rien perdre.  C'est en vertu de ce droit odieux qu'au retour de
l'arm6e de Syrie on faisait payer aux soldats qui avaient et6 blesses et
faits prisonniers les armes que l'ennemi leur avait enlev6es.  C'est ainsi
qu'on osait faire payer a un pharmacien les onguens et compresses
employees pour panser les blesses, parce qu'il n'avait pas retire de quittances; c'est ainsi qu'on faisait prayer au frere les impositions du freire
absent; c'est ainsi qu'un de nos compatriotes, M. Gregoire, ayant ete
indignement batonn6, le ministre coupable, qui s'etait permis cette
infamie, fut recompens6 au lieu d'etre puni: le coupable fut promu
a des fonctions importantes dans le ministere des finances.  C'est ce
mime fait qui a determine le depart de M. de Lavalette, notre consulg6n6ral, et, par suite, la nomination de M. Adolphe Barrot.
4 "'Oh! qu'il est a deplorer que mon contradicteur n'ait [*618]
connu l'Egypte qu'au milieu des fetes preparees sur son passage;
combien il est d regretter qu'on lui ait laisse ignorer les malheurs des
pauvres habitans de l'Egypte, il saurait pourquoi je n'ai pas voulu me
soumettre i cette justice a la Turque.  Non jamais, je n'accepterai les
juges d'Egypte, et si la justice du pays me manquaitje n'humilierais pas
la robe d'avocat que je porte jusqu'a me soumettre au jugement du pacha.




440    PHILLIMORE ON INTERNATIONAL LAW.
cc Me. Odilon Barrot replique dans l'int6ret du pacha d'Egypte, commence ainsi:c"' Mon adversaire a abuse de la reserve qui m'etait commandee dans
cette affaire en venant apporter a votre barre certains faits, certaines
inductions contrel esquels je dois protester avec le d6menti le plus formel.
Ma position personnelle dans ce debat, m'interdit d'entrer dans des
explications sur les faits dont vous a parle M. Solon.  Je n'ai pas a
d6fendre aujourd'hui le gouvernement Egyptien que mon adversaire
vient d'attaquer.  Ii a pretendu que le gouvernement de Meh6met-Ali
n'etait pas une souverainete, parce que le vice-roi paie un tribut i la
Porte.  Cela est vrai, mais ce n'est pas la la question qui s'agite entre
nous en ce moment.'
", Me. Odilon Barrot soutient que M. Solon a trait6 avec M6hemet-Ali,
comme avec un souverain etranger, puisqu'il a demande et obtenu
l'autorisation du gouvernement Frangais pour entrer au service du gouvernement Egyptien.  cMon adversaire,' dit-il,'a si bien compris que
le d6bat etait entre lui et le gouvernement Egyptien, qu'il a assign6 en
la personne du ministre des affaires etrangeres du vice-roi.'
"c Me. Odilon Barrot, apres avoir resum6 sa premiere discussion sur la
question de competence, termine ainsi:",'Cette question est d'une grave importance, non seulement pour
vous, Monsieur (l'orateur s'adresse a M. Solon,) mais encore pour tous
les Frangais qui s'honorent eux memes, et qui honorent la France en
consacrant leur intelligence au d6veloppement de la civilisation naissainte
de l'Orient. Mais qu'on y songe, si le vice-roi se voit en butte aux
attaques des Frangais qu'il prend a son service, s'il se voit traduit pour
des actes de son pouvoir devant des Tribunaux Frangais, il r6poussera
loin de lui les representans de notre pays.'
c M. l'avocat du Roi Mongis a pris la parole en ces termes:"'  On vous l'a dit, Messieurs, la question est grande, mais la simplicite est presque toujours l'attribut de la grandeur.  A ce titre, nous
croyons le debat facile h pr6ciser, et nos conclusions ne se feront pas
attendre.
"' Le Tribunal est-il competent pour statuer entre M. Solon et S. A.
Mehemet-Ali?',' Et d'abord, sur quel point s'agite la question de competence? I1
se mblerait, a entendre l'une des parties, qu'elle vous demande
[*619] *simplement'a faire un acte conservatoire ou a saisir en vertu
d'un titre depuis long-temps passe en force de chose jugee.  On vous
cite des auteurs qui ont reconnu saisissables les biens de toute nature
appartenant meme a des souverains sur un sol etranger.'' Mais la difficult6 n'est pas 1: ce que l'on vous demande, c'est ce
titre mgme qui manque a M. Solon; c'est la condamnation dont il a
besoin pour agir contre son adversaire; c'est la consecration du fond
meme de son droit, sans en apprecier les limites.,,('Et c'est ici que se presentent deux graves questions pr judicielles,
tirees, la premiere de la qualit6 de l'une des parties, la seconde de la
nature du contrat.
",'Sur la premiere question, celle de souverainet6, elle a e6t d6battue




APPEND IX.                             441
par le defenseur de Mehemet-Ali, avec l'autorit6 de cette voix grave et
severe qui se prete si bien aux grandes considerations d'ordre public.
Nous nous en ref6rons sur ce point a ce qui a ete dit, ne voulant pas
l'affaiblir en le rep6tant.  Nous ajoutons soulement quae M. Solon a rendu
l'argumentation plus puissante contre lui en reconnaissant qu'il avait
traite avec le vice-roi d'Egypte en meme temps qu'avec Mehemet-Ali,
avec le prince souverain, inseparable, selon lui, du simple particulier, et
pour tout dire en un mot, la nature des institutions qui r6gissent l'Orient
rendait cette confusion inevitable, car It tous les pouvoirs reposent dans
une seule main, et c'est l1 qu'il est encore permis aux princes de dire:
L'Etat, c'est moi.
La nature du contrat ne r6siste pas moins a la competence, car Ai.
Solon n'a pas fait une marche, il a accepte une fonction publiquej il
s'est mis au service d'une puissance: il ne relive que d'elle seule, quant
ia la remuneration qu'elle a pu lui accorder.
" r Et voyez, Messieurs, combien ceci est frappant!  Supposez un
Francais acceptant des fonctions du prince en France, 1a oui vous avez,
comme on dit, plenitude de juridiction, est-ce a vous que ce fonctionnaire viendrait demander le reglement de son honorable salaire? Non,
uneautre juridiction devrait etre saisie. Eh quoi! alors que la fonction
relive d'un prince etranger, libre, independant, alors que la difficult6
grandit de toute la puissance d'une question de droit international, c'est
a votre barre que le fonctionnaire etranger trainerait une souverainet6
etrangere?
i' Cela est impossible.
"' Si M. Solon pretendait qu'il a fait un march6 et non pas accepte une
fonction, nous lui repondrions avec une lettre adressee par lui a M. le
garde-des-sceaux de France, lettre par laquelle " au moment," dit-il " d'accepter une fonction a' l'etranger il en demande l'autorisation a son gouvernement naturel, afin de ne pas perdre sa qualite de Frangais."
"'  La question ainsi precisee, Messieurs, nous ne croyons pas devoir
alarmer vos esprits par un apergu des graves difficultes des complications de toute nature que pourrait entrainer l'execution de votre jugement, s'il etait favorable aux vneux du demandeur, *Ces diffi- [*620
cultes sont d'une telle nature, cependant, qu'elles out pese pour [62
beaucoup dans la fixation de la jurisprudence qui, pour le dire en passant,
est a peu pres unanime et constante dans le sens des principes que nous
defendons.  C'est quelque chose, en effet, dans le doute, que cet adage:
Salus populi, suprenma lex esto!'
"'A  M. l'avocat du Roi fait remarquer en peu de mots qu'en agitant
longuement la question de savoir si S. A. etait ou non un souverain independant, on n'a fait tout au plus que reculer la difficulte.  En effet, en supposant que le vice-roi relevat de la Porte, pour la ratification du contrat
dont il s'agit, cette ratification a eu lieu tacitement, et, en tous cas, le
proces engage contre le Porte ellemnme n'en serait peut-etre que plus
difficile.
"' B Messieurs,' dit en terminant M. l'avocat du Rtoi,  puisque l'on a
beaucoup eleve ce debat, puisque l'on a cru devoir de parti et d'autre
apprecier d'une manieire bien differente l'attitude et les droits de l'Egypte
DECEMBER. 1855. —29




442   PHILLIMORE ON INTERNATIONAL LAW.
envers les nationaux Frangais, qu'il nous soit permis de ne pas rester tout
a fait etranger a ces appreciations.   I1 est digne de la magistrature
Frangaise de rendre hommage a un prince qui vient apprendre en France
a gouverner les hommes selon la loi, qui vient demander a la France de
combler l'ablme qui separe encore l'Orient de l'Occident, la barbarie de
la civilisation, le despotisme de la libert6, l'arbitraire de la legalite.  Et
vous ne voudrez pas, Messieurs, que ce prince, qui s'est montr6 plein
d'admiration pour vos lois, parce qu'elles sont egales pour tous, puisse
croire qu'il s'est trompe, et que vos lois, en respectant la liberte des individus, se plaisent h violer l'independance des nations et la souverainet6
des princes.'
Le Tribunal, conformement it ces conclusions a rendu le jugement
dont voici le texte:"'  Attendu que selon les principes du droit des gens, les Tribunaux
Frangais n'ont pas juridiction sur les gouvernemens etrangers, a moins
qu'il ne s'agisse d'une action k l'occasion d'un immeuble possed6 par eux
en France comme particulier, ce qui emporte attribution territoriale et
execution.
cc  Attendu qu'en matiere de declinatoire le juge doit avant tout consulter les termes de la demande;,'Attenda que l'action de Solon est une action personnelle qu'il
motive sur un pr6tendu engagement, dont la rupture lui aurait cause un
prejudice;
"'Attendu que toutes les expressions de la demande lui donnent le
caractere personnel et r6velent qu'elle est dirig6e contre le gouvernement
Egyptien, et non contre un particulier;
"'Attendu que pour apprecier cette demande, il ne faudrait pas examiner un acte particulier ayant pour cause un interet prive; mais un
acte administratif et gouvernemental, intervenu entre un gouvernement
et un fonctionnaire, auquel il a ete conf6re un emploi et une mission dont
[*62] le demandeur a dfi peser les consequences *qu'il serait en outre
necessaire de rechercher les causes de la rupture qui motive
i'action; que de pareilles appreciations ne sauraient appartenir a la juridiction Frangaise.
"' Attendu que la demande ne tend pas seulement a faire valider des
saisies-arrets pratiquees sur des merchandises appartenant soit au gouvernement Egyptien, soit a Mehemet-Ali personnellement, mais d'abord et
avant tout, prejudiciellement, a obtenir contre ce gouvernement la somme
de 100,000 francs de dommages-interets.
"'IRegoit S. A. M(ehemet-Ali opposant au jugement rendu par defaut,
le 25 Aouit 1846, et faisant droit, declare ledit jugement non avenu;
"' Se declare incompetent sur la demande introduite par M. Solon, et
le condamne aux depens.'"




APPENDIX.                              44$
APPENDIX V. (PAGES 141-2, s. cxxvii.)
EMBASSY.
No. 1.
Instrument of Subrogation.(n)
"C X. LES ministres des puissances qui ont le droit d'ambassade, peuventils le mettre en exercice?
" Ils ne le peuvent pas d'eux-memes; mais quelquofois leurs maitres
leur en confrent le droit, et alors ils en usent comme delegues.
" Gustave-Adolphe, Roi de Suede, ayant et6 tue6  la bataille de Ludzen, le 16 Novembre, 1632, le senat de Stockholm chargea du gouvernement de toutes les affaires le chancelier Oxenstiern.  Celui-ci nomma en
consequence Hugues de Groot (Grotius) a l'ambassade de France, et lui
fit expedier des lettres de creance en son nom.  Le Cardinal de Richelieu,
qui regnait alors sous le nom de Louis XIII., fit beaucoup de difficulte
de l'admettre: il pretendait que le pouvoir general du chancelier ne
s'etendait pas *jusqu'ai donner a un autre lecaractere repr6sentatif,
et que le senat de Suede pouvait seul conf6rer ce caractere a Groot. [22
Ces raisons triompherent d'abord; mais le chancelier de Suede, passant
en France, representa au cardinal que le roi ne pouvait pas rejeter son
ambassadeur, sans porter atteinte aux traites qu'il avait faits avec le roi
lui-meme, et pour lesquels on n'avait pas conteste la suffisance de ses
pouvoirs.  Cette consideration fi'chit le ministre: Groot fut agree, et on
le traita, dit Wicquefort (liv. i., sect. 3.)'comme ambassadeur du Suide,
et non du chancelier qui lui avait donne sa commission, en vertu de la
procuration qu'il tenait du senat.'
", Quelque temps apres, le Comte de Pegnarande, ambassadeur d'Espagne, nomma des ministres pour les negociations de Munster: voici
les termes de la commission qu'il leur fit expedier:'d'autant qu'il a plu
au Roi d'Espagne, mon seigneur, nous donner pouvoir et autorit6, par
ses lettres du 25 Fevrier, 1645, de traiter paix ou treve avec les hauts
et puissans seigneurs, etats des Provinces-Unies, lesquelles lettres commencement ainsi....; c'est pourquoi, en vertu du pouvoir et autorite
que Sa Majeste nous a donn6, par lequel je puis me faire assister d'une
et de plusieurs personnes, et par lequel ii m'est permis de me les substituer, subroger et de les nommer, je nomme et constitue par ces presentes
frere Joseph de [Bergagne, archeveque de Malines, Diego de Soavadra et
Antoine Lebrun..., tous et chacun d'eux, plnipotentaires a la paix
universelle de Munster, auxquels j'aifait passer et fais passer la meme
autorite et le meme pouvoir'a moi attribues par Sa Majeste, et les substitue " moi; afin qu'au nom et de la part de sadite Majeste, ils puissent negocier et conclure tous traites de paix ou de treve, ou tous, ou
bien chacun d'eux en particulier, tant en mon absence qu'en ma presence.'
" Wicquefort (ibid.) remarque que ces ministres furent regus et traites,
(n) Merlin, R6pertoire de Jurisprudence, tit. Ministre Public, vol. x. s. 10, p. 256.




444    PHILLIMORE ON INTERNATIONAL LAW.
non comme ambassadeurs du Comte de Pegnarande, mais comme plenipotentiaires du Roi d'Espagne.
~ II en serait de meme aujourd'hui en France, si un regent deputait
des ministres dans une cour etrangere. Ces ministres ne seraient pas
consideres comme envoyes par le r6gent, mais par le roi lui-mreme, et ce
serait Sa Majeste qui parlerait dans leurs lettres de creance.
"C'est ainsi que, pendant la regence du Duc d'Orleans, le Cardinal
Dubois ne negociait a La Haye la triple alliance de 1717, qu'en vertu
de lettres de creance, de pleins pouvoirs et meme d'instructions officielles
redig6es au nom du roi mineur.
" Il est vrai (comme l'atteste Wicquefort a l'endroit cite) que, pendant
la detention des rois Jean et Frangois I, le Dauphin Charles et la
Duchesse d'Angou!eme s'attribuaient, en vertu de la regence qui leur
avait e6t decern6e, le droit d'envoyer en leur nom des ambassadeurs aux
[*6231 cours etrangeres.  Mais c'est qu'alors *les regens gouvernaient
[   dans une forme differente de cello qui a 6t6 etablie depuis.  V.
l'article Re'gence.
"P Dans le temps que l'Espagne avait i Naples un vice-roi, i Milan un
gouverneur, et u Bruxelles un gouverneur-gkneral, elle laissait a ces
officiers le droit de traiter en leur nom, par ambassadeurs, avec les autres
puissances.
"cLe premier Avril, 1524, il fut conclu entre le pape, la ville de
Florence et l'Empereur Charles-Quint, un traite dans lequel celuici
n'etait repr6sente que par Gattinara, plenipotentiaire du Comte de Lannoy, vice-roi de Naples.
"' Dans le meme siecle, le Due d'Albe, successeur du Comte de Lannoy, deputa ia Rome le Marquis Trevico.
" En 1562, Don Pedro d'Aragon, vice-roi de Naples, fit complimenter
Charles IX. sur son exaltation, par un ministre que le nouveau pape
accueillit tres-bien.
"'En 1577, Don Juan d'Autriche, gouverneur des Pays-Bas, envoya
des ambassades solennelles i l'empereur, aux princes d'Allemagne et au
Roi d'Angleterre.
" En 1588, il se tint en Flandre un congres de ministres espagnols et
anglais; et, quoique leas lettres de creance des premiers en fussent signees
que du Due de Parme, gouverneur-general des Pays-Bas, cola n'arreta
pas les conferences.
"c Dix ans apres, le Cardinal Albert d'Autriche, successeur du Due de
Parme, envoya une deputation aux villes anstatiques.
"Pour le gouverneur de Milan, il etait tellement respecte dit Wicquefort,' que, dbs qu'il arrivait dans son gouvernement, tons les princes
voisins le faisaient complimenter par leurs ambassadeurs, et il repondait
a leur civilit6 en leur envoyant les siens.'
9" Cependant, en 1646, Caumartin, ambassadeur de France aupres des
Cantons Suisses, se trouvant avec Casati, ambassadeur du gouverneur de
Milan, lui contesta la qualite qu'il s'attribuait; il pretendit que, n'ayant
point de lettres de creance du Roi d'Espagne, on ne pouvait pas le considerer comme ministre de ce prince; et qu'en consequence, les cantons
ne devaient pas lui donner audience dans leur assemblee gtn6rale.




APPEND IX.                            445
Casati reclama vainement la possession du gouverneur de Milan, de
traiter par ambassadeurs avec toutes les cours voisines, et le traitement
que son pere et ses deux freres avaient eux-memes regu en cette qualite,
quoique leurs lettres de creance ne fussent signees que de lui; les raisons
de Caumartin l'emporterent, et l'assembl e ge6nrale ne voulut pas donner
audience a Casati, quoiqu'on la lui efit promise.
" De nos jours encore, nous avons vu le besoin et l'usage placer quelquefois un corps diplomatique aupres de ces officiers principaux a qui,
dans l'eloignement, le souverain donnait diff6rens titres. Ainsi, avant la
conquete de la Belgique, Bruxelles avait encore des Ministres etrangers,
r6sidant pres du gouverneur-g6neral des Pays-Bas autrichiens.
"Les mernes motifs autorisent les gouverneurs Europeens en [*624]
*Am(erique "a envoyer des ambassadeurs pres des nations sauvages,
a en recevoir d'elles, et a se deputer respectivement des officiers avec ce
caractere public.
" Nos grandes compagnies de commerce en Asie et en Afrique, envoyaient et recevaient pareillement des d6putes, qui, pour en imposer davantage, ne manquaient pas de prendre le titre d'ambassadeurs; on a donn6
ce titre i des lieutenans d'infanterie, a des facteurs de comptoir, h un
capucin.
"s Mais on sent bien que, pour agir ainsi, il fallait que ces compagnies
en eussent regu du gouvernement l'autorisation expresse et speciale."
No. 2.
An Act for preserving the Privileges of Ambassadors, and other publick
Ministers offoreign Princes and States.(o)
WHEREAS several turbulent and disorderly persons having in a most
outrageous manner insulted  the person of His Excellency  Andrew
Artemonowitz Mattueof, Ambassador Extraordinary of His Czarish
_Majesty, Emperor of Great Russia, Her Majesty's good friend and ally,
by arresting him, and takcing him  by violence out of his coach in the
publick7 street, and detaining him  in custody for several hours, in contempt of the protection granted by Hler Majesty, contrary to the law of
nations, and in prejudice of the rights and privileges which ambassadors
and other publick ministers, authorized and received as such, have at all
times been thereby possessed of, and ought to be kept sacred and inviolable; be it therefore declared by the Queen's most excellent Majesty, by
and with the advice and consent of the lords spiritual and temporal, and
commons, in Parliament assembled, and by the authority of the same, That
all actions and suits, writs, and processes commenced, sued, or prosecuted
against the said ambassador, by any person or persons whatsoever, and
all bail bonds given by the said ambassador, or any other person or persons on his behalf, and all recognizances of bail given or acknowledged
in any such action or suit, and all proceedings upon or by pretext or
colour of any such action or suit, writ or process, and all judgments had
(o) 7 Anne, cap. 12.




446   PHILLIMORE ON INTERNATIONAL LAW.
thereupon, are utterly null and void, and shall be deemed and adjudged
to be utterly null and void, to all intents, constructions, and purposes
whatsoever.
II. And be it enacted by the authority aforesaid, that all entries, proceedings, and records against the said ambassador, or his bail, shall be
vacated and cancelled.
[*625] *III. And to prevent the like insolencies for the future, be it
[*625] further declared by the authority aforesaid, that all writs and
processes that shall at any time hereafter be sued forth or prosecuted,
whereby the person of any ambassador, or other publick minister of any
foreign Prince or State, authorized and received as such by Her Majesty,
her heirs or successors, or the domestick, or domestick servant of any
such ambassador, or other publick minister, may be arrested or imprisoned, or his or their goods or chattels may be distrained, seized, or
attached, shall be deemed and adjudged to be utterly null and void to
all intents constructions, and purposes whatsoever.
IV. And be it further enacted by the authority aforesaid, that in case
any person or persons shall presume to sue forth or prosecute any such
writ or process, such person and persons, and all attorneys and solicitors
prosecuting and soliciting in such case, and all officers executing any
such writ or process, being thereof convicted, by the confession of the
party, or by the oath of one or more credible witness or witnesses,
before the Lord-Chancellor, or Lord-Keeper of the Great Seal of Great
Britain, the Chief Justice of the Court of Queen's Bench, the Chief
Justice of the Court of Common Pleas for the time being, or any two of
them, shall be deemed violators of the laws of nations, and disturbers of
the publick repose, and shall suffer such pains, penalties, and corporal
punishment, as the said Lord-Chancellor, Lord-Keeper, and the said
Chief Justices, or any two of them, shall judge fit to be imposed and
inflicted.
V. Provided, and be it declared, that no merchant or other trader
whatsoever, within the description of any of the statutes against bankrupts, who hath or shall put himself into the service of any such ambassador or publick minister, shall have or take any manner of benefit by
this Act; and that no person shall be proceeded against as having arrested
the servant of an ambassador or publick minister, by virtue of this Act,
unless the name of such servant be first registered in the office of one
of the principal secretaries of state, and by such secretary transmitted
to the sheriffs of London and Middlessex for the time being, or their
under sheriffs or deputies, who shall, upon the receipt thereof, hang up
the same in some publick place in their offices, whereto all persons may
resort, and take copies thereof without fee or reward.
VI. And be it further enacted by the authority aforesaid, that this
Act shall be taken and allowed in all Courts within this kingdom  as a
publick Act; and that all judges and justices shall take notice of it
without special pleading; and all sheriffs, bailiffs, and other officers and
ministers of justice, concerned in the execution of process, are hereby
required to have regard to this Act, as they will answer the contrary at
their peril.




APPENDIX.                              447
*No. 3.                         [*626]
Memoir of the French Minister (1772) on the Privileges of Ambassadors
"NO. III.
" le'moire que le ministre de France fit remettre aux ambassadeurs et
ministres ettrangers re'sidant a Paris, en Fdvrier, 1772.(p)
t L'IMMUNITE des ambassadeurs et autres ministres publics, est
fond6e sur deux principes; (1) sur la di gnite du caracte're representatif
auquel ils participent plus ou moins; (2) sur la convention tacite qui,resulte de ce gu'en admettant un ministre etranger, on reconnait les
droits que l'usage, ou, si l'on veut, le droit des gens lui accorde.
" Le droit de representation les autorise a jouir, dans une mesure
determin6e, des prerogatives de leurs mailtres. En vertu de la convention tacite, ou, ce qui est la meme chose, en vertu du droit des gens, ils
peuvent exiger qu'on ne fasse rien qui les trouble dans leurs fonctions
publiques.
"'  L'exemption de la juridiction ordinaire, qu'on appelle proprement
immunite, decoule naturellement de ce double principe.  Mais l'immunit6 n'est point illimitee; elle ne pent s'etendre qu'en proportion des
motifs qui lui servent de base.
rt r II resulte de 1 (1) qu'un ministre public ne peut enjouir gu'autant
que son maitre en jouirait lui-me ze;
"'4 (2) Qu'il ne peut en jouir dans le cas ohi la convention tacite entre
les deux souverains vient d cesser.
"  Pour eclaircir ces maximes par des exemples analogues h, l'objet de
ces observations, on remarquera:
"'(1) Qu'il est constant qu'un ministre perd son immunit6, et se
rend sujet a la juridiction locale, lorsqu'il se livre i des manceuvres qui
peuvent etre regardees comme crime d'Etat, et qui troublent la securite publique.  L'exemple du Prince de Cellamare constate ces maximes
a cet egard.
"'(2) L'immunite ne peut avoir d'autre effet que d'ecarter tout ce
qui pourrait empecher le ministre public de vaquer / ses fonctions.
"', De 1l, il resulte que la personne seule du ministre jouit de l'immunite, et que ses biens pouvant gtre attaques sans interrompre ses
fonctions, tous ceux qu'un ministre possede dans le pays oul il est accrddite, sont soumis'a la puissance territoriale, et *c'est par une [*627]
suite de ce principe, qu'une maison ou une rente qu'un ministre  627
etranger possederait en France, seraient sujettes aux memes lois que les
autres h6ritages:
"'(3) La convention tacite sur laquelle l'immunit6 se fonde, cesse
lorsque le ministre se soumet formellement a l'autorit6 locale, en contractaut par-devant un notaire, c'est-h-dire en invoquant l'autorite civile du
pays qu'il habite.
"' Wicquefort qui, de tous les auteurs, est le plus ze61e pour la defense
(p) De Martens, Causes C6lebres, t. ii. p. 112.




448    PHILLIMORE ON INTERNATIONAL LAW.
du droit des ministres publics, et qui s'y livrait avec d'autant plus de
chaleur qu'il defendait sa propre cause, convient de ce principe et avoue:
c  Que les acmbassadeurs peuvent etre forces de remplir les contrats
gu'ils ont passe's par-devant notaire, et qu'on peut saisir leurs meubles
pour prix de loyer des maisons, dont les baux auraient ete passes de cette
maniere. (T. I. p. 416.)
c"'(4) L'immunite 6tant fondee sur une convention, et toute convention etant reciproque, le ministre public perd son privilege, lorsqu'il en
abuse contre les intentions constantes de deux souverains.
" (C'est par cette raison qu'un ministre public ne peut pas se prevaloir
de son privilege pour se dispenser de payer les dettes qu'il peut avoir
contractees dans les pays oui il r6side:
"', (1) Parce que l'intention de son maitre ne peut point etre qu'il
viole la premiere loi de la justice naturelle, qui est anterieure aux privil!ges du droit des gens;
"' (2) Parce qu'aucun souverain ne vent, ni ne penut vouloir que ces
pr6rogatives tournent au detriment de ses sujets, et que le caractere public
devienne pour eux un piege et un sujet de ruine:
"', (3) On pourrait saisir les biens mobiliers du prince meme que le
ministre represente, s'il en poss6dait sous notre juridiction; de quel droit
les biens du ministre seraient-ils done except6s de cette regle?
"' (4) L'immunite du ministre public consiste essentiellement'a la
faire considerer comrnme s'il continuait k resider dans les Etats de son
maitre.
"', Rien n'empeche done d'employer vis-a-vis de lui les moyens de
droit dont on userait s'il se trouvait dans le lieu de son domicile ordinaire.
" (5) II en resulte qu'on penut le sommer d'une maniere legale, de
satisfaire, ses engagemens et de payer ses dettes, et Bynkershoek decide
formellement, p. 186, que ce n'estpaspeu respecter la maison d'un ambassadeur que d'y envoyer des officiers de justice, pour signifier ce dont il
est besoin de donner connaissance a l'ambassadeur.
"'  (6) Le privilege des ambassadeurs ne regarde que les biens qu'ils
possedent comme ambassadeurs, et sans lesquels ils ne pourraient exercer
les fonctions de leur emploi.
1 "'Bynkershoek, p. 168, et 172, et Barbeyrac, p. 173, sont de cet
[*628] *avis, et la cour de Hollande a adopte cette base dans l'ajourne[628 ] ment qu'elle fit signifier en 1721 k l'envoy6 de Holstein, apre's
avoir accorde' saisie de tous ses biens et effets, autres que meubles et equipages, et autres choses appartenantes d son caracte're de ministre.-Ce
sont les termes de la cour de Hollande du 21 Fevrier, 1721.
c "'Ces considerations justifient suffisamment la regle qui est regue
dans toutes les cours, qu'un ministre public ne doit point partir d'un
pays sans avoir satisfait ses cr6anciers.,"Lorsqu'un ministre manque a ce devoir, quelle est la conduite B
tenir? c'est la seule question essentielle que la matiere puisse faire naitre.
Elle doit se decider par un usage conforme aux diff6rentes maximes qu'on
a etablies ci-dessus.
"' On ne parlera point de l'Angleterre, ou l'esprit de la legislation,
borne6' la lettre de la loi, n'admet point de convention tacite, ni de pr6



APPENDIX.                               449
somption, et ohi le danger d'une loi positive dans une matiere aussi delicate, a jusqu'ici empech6 de fixer lMgalement les prerogatives des ministres publics.
"' Dans toutes les autres cours, la jurisprudence parait a peu pros egale,
les proced6s seuls peuvent differer.
"' A  Vienne, le mar(chalat de l'empire s'arroge, sur tout ce qui ne
tient pas a la personne de l'ambassadeur et'a ses fonctions, une juridiction proprement dite, dans une etendue qu'on a quelquefois envisag6e
difficile i concilier avec les maximes ge6nralement regues.  Ce tribunal
veille d'une maniere particuliere sur le paiement des dettes contractees
par les ambassadeurs, surtout au moment de leur d6part.
"'  On en a vu l'example, en 1764, dans la personne de M. le Comte
de Czernicheff, anibassadeur de Russie, dont les effets furent arret6s jusqu'a ce que le Prince de Liechtenstein se fut rendu sa caution.
"'' En Russie un ministre public est assujetti a annoncer son depart
par trois publications.  On y arreta les enfans, les papiers et les effets de
M. de Bausset, ambassadeur de France, jusqu'a ce que le roi out fait son
affaire des dettes que ce ministre avait contractees.
" A la Hlaye, le conseil de iollande s'arroge une juridiction proprement dite dans les Etats ou les interets des sujets se trouvent compromis.
"'En 1688 un exploit fut signifi6'a un ambassadeur d'Espagne en
personne, qui en porta des plaintes (Bynkershoek, p. 188;) les Etats
jugerent qu'elles etaint fondees, en ce qu'il n'aurait fallu remettre l'exploit qu'aux gens de l'ambassadeur.' c A Berlin, en 1723, le Baron de Posse, ministre de SuBde, fut arret6
et garde, parcee qu'il refusait de payer un sellier, malgre les avertissemens reite6rs du magistrat.
"t (A  Turin, le carosse d'un ambassadeur d'Espagne fut arret6 sous le
regne d'EMANUEL.  La cour de Turin se disculpa i la verite de cette
violence; mais personne ne reclama contre les *proc6dures qui
avaient ete faites pour condamner l'ambassadeur i payer ses [*629]
dettes.
"' Ces exemples paraissent suffire pour etablir en principe qu'un
ministre 6tranger pent etre contraint "a payer ses dettes.  Ils constatent
meme l'extension qu'on a quelquefois donnee au droit de coaction.
"'  On a soutenu qu'il suffisait d'avertir le ministre de payer ses dettes
pour justifier, en cas de refus, les voies judiciaires et meme la saisie des
effets.
"'c Grotius, liv. ii. chap. 18, dit: que si un ambassadeur a contractse
des dettes et qu'il n'ait point d'immeubles dans le pays, ii faut lui dire
honnetement de pa-yer; s'il le refusait, on s'adresserait d son maitre,
apre's quoi on en viendrait aux voies que l'on prend contre les de'biteurs
qui sont d'une autre juridiction.
i" Or ces voies sont les procedures l6gales qui tombent sur les biens de
l'ambassadeur, autres que ceux qui sont imme'diatement n6cessaires'a
l'exercice de ses fonections, ainsi qu'on l'a d'j  observ6.,'L'opinion la plus mod6r6e est, qu'il convient dans tons les cas de
s'abstenir, autant qu'il est possible, de donner atteinte a la d6cence qui
doit environner le caractere public; mais le souverain est autoris6 i em



450   PHILLIMORE ON INTERNATIONAL LAW.
ployer l'espece de coaction qui n'emporte aucun trouble dans ses fonctions,
et qui consiste a interdire a l'ambassadeur la sortie du pays, avant qu'il
ait satisfait k ses engagemens.
"'cC'est dans ce sens que Bynkershoek conseille d'employer contre
les ambassadeurs des actions qui emportent plus une defense qu'une
ordre de faire telle ou telle chose.  Ce n'est alors qu'une simple defense,
et personne n'oserait soutenir qu'il soit illicite de se d6fendre contre un
ambassadeur, qui ne doit pas troubler les habitans en usant de violence
et emportant ce qui appartient a autrui.
"'  Cette maxime est encore plus de saison, lorsque des circonstances
particulieres et aggravantes chargent le ministre du reproche de mauvaise
foi et de manceuvres repr6hensibles.
" Lorsqu'il viole lui. mme ainsi la saintete de son caract~re et la
securite publique, il ne peut point exiger que d'autres le respectent.
"ccPour appliquer ces maximes au cas particulier de M. le Baron de
Wrech, ministre plenipotentiaire du Landgrave de Hesse-Cassel, il suffit
de rappeler sa conduite depuis son arrivee'a Paris, et surtout depuis huit
mois.
"  Les voies indecentes qu'il avait adoptees pour se procurer de l'argent,
ayant et6 supprim6es, il s'est livre a toutes sortes de manceuvres, que
les menagemens qu'on a pour son caractere empechent de caracteriser.
"'  On se contentera de remarquer, que tout conduit a penser que ce
ministre a formn  le dessein de frustrer ses creanciers en sortant du royaume; et cette circonstance suffit pour autoriser.a prendre
[*630] contre lui les memes mesures qu'on prendrait, s'il etait effectivement sorti du royaume, apres avoir depos6 son caractere par la remise de
ses lettres de rappel.
"  Le ministere des affaires etrangeres l'a fait exhorter par le magistrat charge de la police, et l'a exhort6 lui-meme, a faire honneur a ses
engagemens.
"' Des-lors les'poursuites qu'on pouvait fai're contre lui devenaient legitimes, pourvu qu'elles ne passassent pas les bornes indiquees plus haut.
"  Le Marquis de Bezons se trouvait mgeme dans un cas plus particulier; le Baron de Wrech avait contracte avec lui par 6crit; ii avait promis de fournir caution bourgeoise pour l'ex6cution du bail de la maison.
Le Baron de Wrech avait done contract6 l'engagement d'assujettir indirectement cette execution a la juridiction territoriale dans la personne de
sa caution.  I1 est vrai qu'il n'a pas juge6  propos de remplir cette obligation; mais comme il est assurement le garant de son propre fait, le
Marquis de Bezons pouvait, selon les regles de l'equite et du bon sens,
s'en prendre a lui-meme; et il ne peut etre admis ia se faire un titre de
la mauvaise foi meme qui caracterise le refus d'ex6cuter cette clause de
la convention.
" c C'est d'apres ces considerations que, sur les plaintes multiplites des
creanciers du Baron de Wrech, le ministre des affaires etrangeres crut
devoir suspendre l'expedition du passeport que ce ministre demanda pour
sortir du royaume, en alleguant des ordres du Landgrave son maitre, jusqu'a ce que les intentions de ce prince fussent connues par le canal du
ministre qui reside de la part du roi auprbs de lui.




APPENDIX.                             451
cI1 permit en meme temps au Marquis de Bezons de faire valoir ses
droits par les voies 16gales, et il en prevint le Baron de Wrech.
"c C Ce ministre s'6tant neanmois plaint qu'on s'etait prevalu de cette
permission pour forcer sa porte, pour lui signifier l'exploit de la vente de
ses meubles, et tout acte de violence devant etre banni des procedes en
pareil cas, on n'a pu s'empecher de blamer cet exces, et on a cru devoir
suspendre toute poursuite ulterieure. Mais, afin de coneilier la protection que le roi doit a ses sujets, avec les egards dus au caractere public,
et afin de remplir tons les proced6s que les regles du droit des gens peuvent dieter, le ministere des affaires etrangeres vient de defrer au Landgrave lui-meme la conduite de son ministre.'c' (e prince pourra d'autant moins trouver a redire'a la conduite qui
a e6t tenue avee son ministre, qu'un fait recent a mis en evidence le sentiment qu'il avait lui-meme sur l'immunite.  Ii fit en effet emprisonner,
il y a quatre ou cinq ans, le Comte de Wartensleben, ministre de Hollande, pour le forcer de rendre compte d'une fondation dont il etait l'executeur.  L'entreprise sur la personne d'une ministre public fut ia la verit6
condamnee; mais les Etats ge6nraux ne contesttrent pas la juridiction
du *Landgrave; et, dans le cas oiu se trouve le Baron de Wrech,
les principes que ce prince a soutenus, ne lui permettront pas de [*631]
soustraire son ministre aux mesures capables d'assurer les droits des
sujets du roi, ni de les priver du seul gage qu'ils aient de l'execution de
leurs conventions avec lui.'
"c La' Gazette de France' ayant publi6 ce memoire dans une de ses
feuilles, le Baron de Wrech en porta plainte au Due d'Aiguillon; qui
toutefois se contenta de lui faire la reponse suivante.
NO. IV.
cc Lettre du Due d'Aiguillon au Baron de Wrech ministre de Hesse- Cassel
ad a cour de France; du 23 Janvier, 1772., r JE ne perds pas un moment, Monsieur, pour repondre a la lettre
que vous m'avez fait l'honneur de m'ecrire le 22 de ce mois.
"' C'est avec une peine bien vive que j'apprends que l'on a inser6
dans la gazette de...   un ecrit relatif a votre position et qui vous
soit injurieux. Je m'empresse, Monsieur, de vous d6clarer que je
desavoue tout ce qu'on peut avoir publie sur cette affaire, qui par sa
nature et par les mesures que le roi a juge a propos de preudre doit etre
tenue secrete.  Je ne puis done qu'applaudir au parti que vous avez pris
de demander justice contre la publicite donnee a cette affaire et vous prie
d'agreer l'assurance de ma haute consideration.
"''Versailles, le 23 Fevrier, 1772.
(; " LE DUI  D'AIOUILLON.'
t" Ce ne fut que lorsque la Landgrave de Hesse-Cassel eAt fait son
affaire des engagemens pris par le Baron de Wrech, que celui-ci obtint
ses passeports, et put quitter Paris."




452   PHILLIMOIRE ON INTERNATIONAL LAW.
No. 4
Ambassador.- Civil Jurisdiction, &c,
TAYLOR V. BEST, DROUET AND SPERLING.(q)
Ambassador-Secretary  of  Legation-Privilege —Exemption, from
Suit —Attorning to Jurisdiction-Stay of Proceedings.
" An action having been brought against a foreign minister and other co-contractors, the minister entered an appearance, and allowed the action to proceed
till issue joined, and got a rule for a special jury. He then applied to the
Court to stay all proceedings against him, on the ground that he was exempt
fiom suit in this country; but the Court refused to do so (as he had not been
interfered with in his person or his goods,) on the ground that he had attorned
to the jurisdiction by his voluntary appearance.
" A secretary and councillor of legation of a foreign Sovereign, appointed by him,
and having charge of the executive of the legation, and acting in the absence
of the ambassador as charge d'Affaires, is a public minister to whom the privileges of ambassadors apply.
"A foreign ambassador does not lose his privilege of exemption from suit, by
trading in this country although his domestic servants do, under the limitation
in the 7 Anne, c. 12, s. 5.
"Qucere.-Whether an ambassador can be brought unwillingly into the Courts of
this country by process not affecting either his person or his goods."
"THIS action was brought against the defendants as directors of a
[4632] society formed in Belgium  and London for working the Royal
-[    ] s*Nassau Sulphate of Barytes Mines, to recover deposits paid by
the plaintiff on shares in the said society. Before the writ issued in
June, 1853, M. Drouet, who was Secretary of Legation of the King of
the Belgians, instructed his attorney to write to the attorney for the
plaintiff, to ask if a writ was to be issued, and if it was, to direct that
it should be sent to him; and after the writ was issued M. Drouet
directed his attorney to enter an appearance, which he did accordingly.
M. Drouet was abroad from June till the beginning of December on the
duties of his office, and in the mean time the action proceeded.  M.
Drouet pleaded the general issue by his attorney.  Notice of trial was
given for the 20th of December, and a special jury was obtained on the
application of M. Drouet.  On M. Drouet's return  to England in
December, his attorney took out a summons to stay all proceedings, or
to strike out his name from the proceedings in the action, on the ground
of his privilege as a public minister. The summons was heard before
Talfourd, J., who ordered proceedings to be stayed till the 5th day of
the next term.
" Willes (Jan. 12) moved for a rule nisi, on behalf of M. Drouet,
upon affidavits of the foregoing facts, calling on the plaintiff and the
other defendants to show cause why all the proceedings should not be
set aside, or further proceedings stayed, or M. Drouet's name struck
out; or if the rule should not be made absolute, why M. Drouet should
(1) Law Journal, vol. xxiii. p. 89. (Common Pleas.)




APPENDIX.                            453
not be at liberty to withdraw his plea, and plead his privilege as a public
minister.'"M. Drouet in his affidavits stated his appointments as second and
first Secretary of Legation and public Minister, and alleged that'he is
the duly-appointed and acting Councillor of Legation of His Majesty
the King of the Belgians at the Court of St. James's, and that he has
the full charge of the executive of the said legation, subject to the
direction of His Excellency Sylvan Van de Weyer, the Minister Plenipotentiary of His said Majesty the King of the Belgians, and that in
the absence of the said minister he is required to act, and has acted and
does act as charge d'affaires to his said Majesty at the said Court.'
cc In Lord Coke's time a notion seems to have prevailed that ambassadors and public ministers might be sued upon contracts made during
the time of their embassy in the country where they were serving. But
since that time the publicists have changed their opinion, and it is now
settled in France, England, America and Holland, that ambassadors are
not subject to the jurisdiction of the country to which they are sent,
in matters of debt, nor as to any criminal charges, except those of the
gravest kind.  The passage in Coke, 4 Inst. 154, where he says that
ambassadors may have to answer for contracts good jure gentium, has
since been reprobated. It is commented upon in 2 Stephen's' Commentaries,' 479. The authorities, which are all collected in *, Wildman's Institutes of International Law,' show that for the pur- [*633]
poses of suit an ambassador is in a state of exterritoriality. The Law
of Nations on the subject is declared by the statute 7 Anne, c. 12. The
secretary of an embassy has the same powers as a public minister.
Vattel, b. 4, c. 9, s. 122.
", The Court having granted a rule nisi,
", Montagu Chambers and' Pearson (Jan. 30) showed cause.-In this
case the Court is called upon to interfere under the general Law of
Nations or under the statute 7 Anne, c. 12, to set aside the proceedings
in the action as against M. Drouet, on the ground that he is privileged
from being sued in the Courts of this country.  There is no authority
in the books for this course of proceeding; and the proposition contended
for on the other side, that an ambassador or minister cannot be sued on
any occasion, is not maintainable. On the contrary, it may be affirmed,
on the strength of numerous authorities, that an ambassador has not in
all cases the privilege to be exempt from the jurisdiction of the criminal
or civil Courts of the country to which he is sent.  Vattel, in his' Law of Nations,' b. 4, c. 7, gives several instances in which ambassadors may be dealt with for criminal acts; and so in Bac.' Abr.' tit.' Ambassadors,' cases are cited where it was held in England that ambassadors had lost their privilege and were subject to punishment. The
Bishop of Rosse's case, temp. 13 Eliz., and the case of Don Pantaleon
Sa.(r)  It being clear, therefore, that in certain cases ambassadors are
amenable to the criminal jurisdiction, the next question is, whether they
are ever amenable to the civil jurisdiction of the country in which they
(r) 5 Howell's St. Tr. 460.




454   PHILLIMORE ON INTERNATIONAL LAW.
are resident. Now Vattel, b. 4, c. 8, says that an ambassador may,
with the consent of his Sovereign, voluntarily submit to the civil jurisdiction, and moreover (sec. 114,) that' should a minister (as it has often
been the case) embark in any branch of commerce, all the effects, goods,
money, and debts, active and passive, which are connected with his
mercantile concerns, and likewise all contests and lawsuits to which they
may give rise, fall under the jurisdiction of the country.' This passage
supports the authority of Lord Coke, 4 Inst. 153, which, it is said on the
other side, more recent authors have called in question. Lord Coke
says:  But if a foreign ambassador, being pro-rex, committeth here any
crime which is contra jus gentium, as treason, felony, adultery, or any
other crime which is against the Law of Nations, he loseth the privilege
and dignity of an ambassador, as unworthy of so high a place, and may
be punished here as any other private alien, and not to be remanded
to his Soveraigne but of curtesie. And so of contracts that be good
jure gentium he must answer here.' Molloy,' De Jure Maritimo,' b. i. c.
10, s. 16, *citing Grotius, cDe Jure Belli et Pacis,' lib. ii. c.
18, s. 9, notices this passage of Lord Coke's, and states in the
margin that C An ejectment hath been brought and left at the house of
an ambassador, and it was allowed good, and conceived no breach of their
privilege, in the case of M. Colbert, for York House, Mich 28 Car. 2,
in Banco Reg.'
", [Maule J.-' There is nothing there to show that there was any
intention to disturb Colbert in his possession.']
"Wicquefort, in the 27th and the 28th chapters of his work on c The
Ambassador and his Functions,' which treat of the inviolability of
ambassadors, nowhere states that they cannot be sued, Yet Bynkershoek,'De Foro Legatorum' (c. 16,) seems to think that Wicquefort has gone
too far in the assertion of the privileges of ambassadors, and says,' Scilicet in regionibus ubi ob bona convenimur, et ex eorum arresto
forum  sortimur, nullus dubito, quin et legatorum  bona arresto detineri,
etper hoc ipsi in jus vocari possint.  Bona, dico, sive immobilia, sive
mobilia, dummodo neque ad personam  ejus pertineant, neque tanquam
legatis possideat, uno verbo, sine quibus legationem recte obire potest.'
In Burlamaqui's'Principles of Politic Law,' part 4, c. 15, s. 12, s. 8,
it is said, that if a foreign minister has contracted debts, and his
master, on application, refuses to do justice, then the creditor may seize
the effects of the ambassador. By the laws of Holland and other
countries where the Civil Law prevails, land of an ambassador has been
taken adfundandam jurisdictionem.  The privilege of an ambassador
cannot be greater than that of the Sovereign whom he represents; and
foreign Sovereigns have been held to be subject to the jurisdiction of
the civil tribunals of this kingdom.  For instance, in the case of The
Emperor of Brazil v. Robinson,(s) the Court of King's Bench compelled
a foreign potentate, plaintiff, to find security for costs in a cause arising
out of commercial transactions, on the ground of his being resident
abroad-see also Rothschild v. the Queen of Portugal.(t)  Such being
(s) 5 Dowl. P. C. 522.                 (t) 1 W. Black. 471.




APPENDIX.                            455
the state of the general law, the next question arises on the statute 7
Anne, c. 12., which is entitled'An Act for preserving the Privileges
of Ambassadors, and other public Ministers of foreign Princes and
States.' That Act was passed for a particular occasion, and does not
apply to all cases. It is notorious, that it was made to please the Czar
Peter, as the Court of King's Bench noticed in the case of Triquet v.
Bath.(u)   The preamble recites,'that several turbulent and disorderly
persons had in a most outrageous manner insulted the person of the
Ambassador Extraordinary of His Czarish Majesty, Emperor   635]
*of Great Russia, Her Majesty's good friend and ally;' and then [    ]
the 1st section enacts that call actions and suits, writs and processes
commenced, sued, or prosecuted against the said ambassador shall be
null and void,' &c. Then the 3rd section provides, that all processes
whereby the person or goods of a minister or his domestic servant may
be arrested or seized, shall be void. The 5th section shows that the
legislature had an exception in their mind which would apply to ministers
who entered into trade; for it provides that no person, subject as a
trader to the Bankrupt Laws, who should put himself into the service of
any foreign minister, should have the benefit of the Act. The Act was
held to apply only to domestic servants whose employment required
attendance at the house of an ambassador. —Wigmore v. Alvarez(x) and
Evans v. Higgs.(y) In Novello v. Toogood,(z) where an ambassador's
servant lived in a house away from the ambassador's, and let part of it
in lodgings, it was held that his goods in that house, not being necessary
for the convenience of the ambassador, were liable to be distrained for
poor-rates.
"[Maule J.-c This gentleman is not a servant of the ambassador,
but a minister appointed by his Sovereign.']
" He had not the character or functions of a minister, except in the
absence of the ambassador.  He ought, at all events, to have negatived
in his affidavit that he was a trader, as was done in the case of Hopkins
v. Dobeck(a) and Malachi Carolino's case.(b)
",[Willes, for the defendant Drouet, intimated that he did not claim
protection as a servant of the ambassador, but as a public minister.]
{" It is clear that the defendant as a director of this company was a
trader, both within the meaning of the Bankrupt Law (Deacon and De
Gex's Bankruptcy, vol. i. p. 40,) and under the Winding-up Act. In
Re the Madrid and Valencia Railway Company, exparte James,(c) a
company formed for the purpose of making a railway in Spain, with a
board of directors both in Madrid and London, the affairs of which were
to be regulated by the commercial law of Spain, and two-thirds of the
capital was to be subscribed by English shareholders, was held to be
within the scope of the Winding-up Act as to the English shareholders.
Again, even though the Court should be of opinion that this action will
(u) 3 You. & C. 594.
(x) Fitzg. 200.                         (y) 2 Str. 797.
(z) 1 B. & C. 554; s. c. 1 Law J. Rep. K. B. 181.
a) 3 Term Rep. 97.                              (b) 1 Wils. 78.
(c) 19 Law J. Rep. (N. s.) Chanc. 260.




456   PHILLIMORE ON INTERNATIONAL LAW.
F*636] not lie against the defendant Drouet, that is no reason for setting
Li ] *aside the proceedings.  There is no pretence for saying that
M. Drouet's person or property is in danger.  In Pilkington v. S'tanhope(d) the Court of Chancery ordered a bill against an ambassador to
be stayed only for a year and a day, unless the defendant should return
sooner. Even where it clearly appears, on affidavit in an action of debt,
that there is no debt, the Court will not stay proceedings.  Smith v.
Curtis.(e)  Lastly, the defendant Drouet, by entering an appearance,
has submitted to the jurisdiction of the Court.
cc Byles, Serj., appeared for the defendant Best, and objected to the
striking out of Drouet's name.," Hannen showed cause for the defendant Sperling.' M. Drouet is
not entitled to have his name struck out in this action. He is clearly
liable to the jurisdiction of this Court with respect to matters of trade
in which he has chosen to engage.  Martens, in his' Pr6cis du Droit de
Gens,' lib. 7, c. 5, s. 217, expressly confines the privilege of an ambassador's goods to those which belong to him in his capacity of ambassador,
and excepts those which belong to him in any other quality. Wheaton,
in the' Elements of International Law,' p. 3, c. 1, s. 16, says that the
"c exemption from the jurisdiction of the local tribunals and authorities
does not apply to the contentious jurisdiction which may be conferred on
those tribunals by the minister voluntarily making himself a party to a
suit at law.'  So, also, in Kliiber,' Droit des Gens,' p. 2, tit. 2, s. 1,
c. 3, s. 210,-where the exception of goods held otherwise than in the
capacity of ambassador is also recognized. The privilege of the minister
cannot be greater than that of the Sovereign whom he represents. Now,
in Calvin's case,(f) it was said that the king of a foreign nation who
shall have come into England shall sue and be sued by the name of
king; and the case of The Duke of Brunswick v. the King of Hanover,(g) shows that a foreign Sovereign may be sued in our Courts.
When the last-mentioned case was carried, by appeal, to the House of
Lords, tha-t question was not determined, but Lord Brougham and Lord
Campbell seem to have been clearly of opinion that a foreign Sovereign
may be amenable to the tribunals of this country with respect to matters
of a private character. The case of Wadsworth v. the Queen of Spain(h)
was decided in favour of the immunity of the Queen, on the ground
that the debt which was the subject of the proceedings was incurred in
her public and not in her private capacity. The statute of Anne
[637] *was only a declaratory Act, declaring the Law of Nations, and
therefore the commentaries of the foreign jurists are authorities upon
the question in this country. In the case of the privilege of peers,
which is in some respects analogous, it did not extend to exempt them
from  proceedings by original writ.  If there was anything in this case
to affect the validity of the summons, it has been cured by pleading
over.
(d) 2 Vern. 317.
(e) 2 Dowl. P. C. 223.                          (f) 7 Rep. 156.
(g) 6 Beav. 1; s. c. 13 Law J. Rep. (N. s,) Chanc. 107.
(h) 20 Law J. Rep. (N. s,) Q. B. 488.




APPENDIX.                            457
c" Willes, in support of the rule. — There is no analogy between the
proceedings of foreign Courts ad fundandam jurisdictionem  and the
proceedings in this country.  The difference is pointed out in Story's' Conflict of Laws,' s. 546. Vattel does not in reality support what
Lord Coke says in the 4th Institute. He discusses the question, and
says that the exception does not apply to debts contracted during the
continuance of the embassy.  M. Drouet, as Secretary of Legation,
appointed by his Sovereign, has the same privilege as an ambassador.'
(Vattel.)
cc [Jervis, C. J. —We are bound by the Law of Nations on that
point to consider him as a privileged person.'],c As to Calvin's case, Lord Coke is only speaking of titles of foreign
nobles, who are only esquires here, but he adds that Baliol, King of
Scotland, was a king in England. The case of The Duke of Brunswick v. the King of Hanover was a case of a family compact; and the
peculiarity of it was that the defendant was both a foreign Sovereign
and a subject of this country.  The principle which governed that case
is not applicable here. Nor is Wadsworth v. the Queen of Spain appli.
cable.
t" [Jervis, C. J. — The foundation of an ambassador's privilege seems
to be that he is to be deemed to be still abroad.  But in the present ease,
M. Drouet has attorned to the jurisdiction.']
cc [Maule, J. — Suppose a foreign Sovereign in this country were
desirous to have some question decided by the Courts of this kingdom,
could he not do so?']
" The jurists lay it down that, as the privilege of the ambassador is
the privilege of his Sovereign, he cannot waive it.  So it was said also
in Barbuit's case,(i) where it was also said that an ambassador does not
lose his privilege by trading, though his servant would do so.
cc [Maule, J. — That means, that if an ambassador should become a
tallow-chandler, he shall not thereby lose the privileges of an ambassador; but it does not decide that he cannot appear.']
It Triquet v. Bath shows that entering an appearance is no waiver.
The principle is, that a public minister is not to be molested. Now,
issuing a writ has been held to be of itself a molestation.  Gibbons v.
Vouillon.(k)                                      "c Cur. adv. vult.
*c' Judgment was now delivered as follows:-                 *638
" Jervis, C,. J. — I am  of opinion that the rule in this case
ought to be discharged.  There is no doubt that the defendant M.
Drouet fills the office of a public minister, such as the privilege contended forwill attach to; and I think it equally clear that if the privilege do attach, as it undoubtedly does attach to the character of minister,
it is not, in the case of a minister, interfered with or abandoned by the
circumstance of trading, as it would be if the claim were set up in
respect of the privileges of a servant of the ambassador, under the
statute of Anne.  If an ambassador or minister violate the character in
(i) Cas. temp. Talbot, 281.
(k) 8 Comn. B. Rep. 483; s. c. 19 Law J. Rep. (N. a,). P. T 4.
DEcEMBER, 1855.-30




458      PHILLIMORE  0-N  INTERNATIONAL LAW.
which he is delegated to this country, by entering into commercial transactions, that raises a question between the country to which he is sent
and the country from which he is sent; but he does not thereby lose any
privilege to which he may be entitled, the privilege being a general
privilege, and the limitation attached to the privilege, by reason of
trading, being confined by the statute of Anne to the case of servants of
the ambassador,-who may lose the privilege. I am reminded that the
case referred to, Barbuit's case, in the time of Lord Chancellor Talbot,
is an authority on that subject. Admitting, therefore, that the applicant
in this case is a person entitled to the general privilege, which he has
not lost by any trading transactions into which he may have entered,if such be established to the satisfaction of the Court,-the question is,
whether he is entitled, under all the circumstances of the case, to the
privilege which he now claims. Now, although it is admitted that no
process against person or goods can be available against the person or
goods of ar ambassador or minister, no case has been cited to show that
an application like this, to stay all the proceedings in an action against
such a person, is available in the Courts of this country. On the contrary, it appears on examination, that in the case of servants,-and the
same principle must apply with reference to mninisters,-the practice has
been, not to stay all proceedings, but to relieve the person of the servant
from the vexation of service of process, or of bail; and the appiications
have hitherto been,-as far as I can understand them, —where the party
has been arrested, to discharge him from the arrest on entering a common appearance. The case of Crosse v. Talbot(l) recognizes the old principle. That was a motion, on behalf of the defendant, to set aside a
bail-bond given upon his arrest, and that common bail might be accepted
for him; and he obtained a rule to show cause: and the rule was afterwards discharged, on the ground that he did not bring himself strictly
within the privilege as the servant of an ambassador. The Court held,
that to be privileged he ought to be a domestic *servant, and
really to exercise the duties of his office, and that his being a
mere nominal servant was not sufficient.  The reporter adds, " A great
many cases have since been determined upon the same principle; but it
was in those cases held that the idea of a domestic servant was not confined to his living in a foreign minister's house provided he was a real
servant, and actually performed the service."  Therefore, the reporter
states, as far as his knowledge went, a great many cases had been determined on that kind of application, which was not to stay all proceedings,
but to discharge a bail-bond on entering a common appearance, so as to
let the proceedings go on.  I mention this, not with reference to the
general principle of the case, but with respect to the form of application.
No case has been produced to the Court of an application where the
personal iliberty of the defendant has not been interfered with; and,
further, I am  not aware of any case in which, an action having been
brought against several defendants-after the case has advanced, as this
has done, up to the time of trial-it has been allowed, upon the appli(1) 8 Mod. 288.




APPENDIX.                            459
cation of one defendant, to stay all proceedings.  If that were permitted,
it would follow that all the other defendants having been put to considerable expense, proceedings would have to be begun de novo, and what
had been expended in the progress of the suit would become utterly
useless. It is sufficient to say that I am not aware of any such application having been made. But, apart from the form of this motion, it
seems to me that this rule should be discharged upon the merits of the
case. It is an action against four defendants; the writ was sued out
against M. Drouet, as one of four joint contractors. There is no doubt
that the plaintiff was bound in the first instance to sue them all, or he
would have been subject to a plea in abatement, and the other defendants
would have contested the point of jurisdiction, without minding whether
Drouet was the subject of the suit or not.  The writ being issued,
nothing is done to interfere with the free exercise of the minister's functions, or with his comfort or dignity in this country; but knowing or
apprehending that a writ is to be issued, he gives instructions to an
attorney in whom he has confidence to write to the attorney for the
plaintiff, to ask if a writ is to be issued, and if it is, then to beg that it
may be sent to him. He, therefore, solicits the action against him; and
voluntarily entering an appearance, he voluntarily submits to the jurisdiction of the Court.  Now, it seems to me that, under these circumstances, the defendant (Drouet) cannot now be allowed to complain that
a suit has been instituted against him.
",It is contended, and perhaps it is undoubted, that an ambassador
or minister has a privilege from suit, or, at all events, from such suits as
ultimately result in the taking of his person, or of his goods necessary
for his state or comfort; and that he cannot *be compelled, in   640
invitum or involuntarily, to enter into litigation in a country in [640
which he is resident; but it is admitted by all the foreign jurists, that
where suits can be founded without attacking the personal liberty or
comfort, or interfering with the personal privileges of the individual,
they may proceed. Various passages have been cited to show that in
countries where the Civil Law prevails, and where jurisdiction can be
founded by a proceeding in rem in the first instance, the action may proceed where there are houses or land, that are immovable, and may be
taken to found the jurisdiction. All movable goods, too, which are unconnected with the comfort or dignity of the minister may be taken for
that purpose. When we consider the effect of such proceeding, and what
may be done in such case by a minister if he pleases, there seems to be
little distinction between that proceeding and the present; because,
although it is perfectly true that where the Civil Law prevails, you may
proceed by attachment or writ, and incidentally establish the means of
litigation between the parties, without interfering with the person of the
defendant, yet if the defendant choose, either for the purpose of protecting his goods, or of investigating the question in dispute, to appear, the
suit, which was originally in rem, is turned into one in personam; and
it is a daily practice in Scotland, that goods, which were originally taken
for the mere purpose of founding the jurisdiction, are held as a pledge
or security for the fruits of the judgment, if judgment be ultimately




460   PHILLIMORE ON INTERNATIONAL LAW.
obtained.  If, therefore, you have a right in Holland or elsewhere, by
taking goods, to found jurisdiction, and a minister may come in if he
please, and turn the suit into a suit in personam, he could not then object to the jurisdiction of the Courts. It seems to me that there is no
distinction between that case and the case now before us, where the writ
was not even served upon the defendant, and where no step was taken to
interfere with his person or to disturb his comfort, but where a writ was
issued to which he voluntarily appeared, submitting himself to the jurisdiction of the Court.  I am not affected by what was so strongly urged
in the course of the argument, namely, that the privilege, being the privilege of the Sovereign, cannot be abandoned by the minister; because
when the authorities referred to come to be examined, they do not show
that a minister may not submit to the jurisdiction for the purpose of
having the matter in dispute investigated; but that the sacred character
of the person of the ambassador cannot be abandoned by his own voluntary act, and that by interfering with his person or taking the goods
necessary to his position, you interfere with the privilege of his master.
But that is not the case here.  For aught that appears here, M. Drouet
was sued only for the purpose of ascertaining the liability of others, he
being a necessary party to the action. If he had not chosen to take the
step by which he attorned to the jurisdiction *of this Court, the
[*641] case might have gone on to judgment, and nothing might have
been done in execution to affect him.  If, as the fruits of the judgment,
a ca. sa. or fL. fa. had been issued against him, then, of course, the statute of Anne would have applied, and this Court would have interfered
to protect him. It seems to me, therefore, under these circumstances,
that this Court ought not to interfere on behalf of a party who has submitted to the jurisdiction, and, in fact, courted it.'
"' Maule, J. -  I think, on the ground that M. Drouet has appeared in
this action, and allowed it to go through certain stages, this application
ought to fail. It is a grave question whether an ambassador, or public
minister-which M. Drouet undoubtedly is-is so far protected as not
to be liable in any manner, supposing him to object to the jurisdiction.
That question is not decided by any legal determination in this country,
nor, as far as judicial determinations go, do we find it so determined
elsewhere. With respect to mere cases in which a special application
was made under the 5th section of the statute of Anne, they were cases
in which servants of ambassadors who had been sued and arrested were
discharged on common bail.  Now, there is a great distinction between
an ambassador and theadomestic servant of an ambassador.  The ambassador has a privilege; and the privilege of his domestic Servant is
not the privilege of the servant himself, but of the ambassador, and
is based on the ground that the arrest of the domestic servant might
interfere with the comfort or state of the ambassador.  Where these
are not interfered with at all, the ambassador is not interfered with
by the suit; and the servant has no privilege except that which arises
from the privilege of the ambassador. It is an important point, and one
fit to be very gravely considered when it fairly arises, whether an ambassador is liable to be sued by process not affecting his person or his goods;




APPENDIX.                            461
whether by such a process he can be brought, unwillingly, into the
Courts of this country, and have his rights determined on, perhaps even
so as to interfere with his comfort.  A man could not stand by and without care allow a suit to be determined on which the decision would be
binding upon him; and, therefore, it may well be questioned whether the
privilege of the ambassador is not as extensive as the text of Blackstone
alleges it to be. But it is not necessary to decide that point in the present case, because, whatever the extent of the privilege may be, I think
where a person voluntarily appears in an action, and allows it to go on
without interposing, to an advanced stage, and where there has been no
interference with his person or property, and where the action may be
carried out with full effect, without interfering at all with such person,
-to such a case as that, I think we should do wrong to extend the privilege of ambassadors.  I therefore, agree with my Lord Chief Justice,
that this rule should be discharged.'
*" Cresswell, J. — I agree with the opinion of my Brother [*642]
Maule, and for the reasons which he has assigned.'
" Williams, J. concurred.                   " BRule discharged."
No. 5.
THE EMPEROR OF BRAZIL V. ROBINSON AND OTIIERS.(VM)
"' MARTIN showed cause against the rule nisi obtained by W. H.
Watson, for compelling the plaintiff to find security for costs, on the
ground of his being resident abroad.  He cited The Duke de Mondelano
v. Christin. That was an application to compel the plaintiff to give
security for costs. IHe was the Ambassador from the Court of Spain. There
Lord Ellenborough said-'- Considering that an ambassador is the immediate representative of the crowned head whose servant he is, it would
hardly be respectful in the first instance to exact such a security, unless
there were pregnant reasons for believing it to be necessary.' The ground
therefore on which the opinion of the Court in that case proceeded was,
that the ambassador was the representative of a crowned head. The
Court would not compel that representative to find security for costs, and
therefore, a fortiori, would not the Court compel the crowned head itself
to find security for costs.  The present rule must therefore de discharged.
"' W. H. Watson, in support of the rule, contended that the case cited
on the other side was perfectly distinguishable from the present. There
the Spanish Ambassador was resident within the jurisdiction of the Court,
and there was no suggestion in the affidavits, on which the application
was founded, that the plaintiff was about to remove from the jurisdiction.
Here, however, the plaintiff was entirely out of the jurisdiction, and therefore no reason existed for placing him in a better situation than any other
plaintiff who was resident abroad.
"Williams, J.-' If the ambassador could not be compelled to find
security for costs, I do not see how I can compel his Sovereign to find
(m) The Emperor of Brazil v. Robinson, 5 Dow. 522.




462   PHILLIMORE ON INTERNATIONAL LAW.
such security.  I do not, therefore, think I am authorised to interfere by
compelling the plaintiff to find security for costs. The present rule must
therefore be discharged. If it is desired, the application may be renewed
in the full Court.'                           c" Rule discharged."
*64 " W. H. Watson afterwards renewed his application in the full
C[#431 Court, and stated that it appeared from the affidavits on which
he moved, that the action was on a charter-party, for not duly delivering
certain wood shipped by the Emperor from Brazil to this country. His
Imperial Majesty, therefore, having engaged in commerce, must be subjected to the same liabilities as any other commercial person. If the proceeding had been in respect of any matter connected with his political
rank, the case might have been different.
" Martin showed cause in the first instance, and again cited the Duke
de Montellano v. Christin.
"Lord Denman, C. J. —' I think that the case cited in opposition to
this application is clearly distinguishable from the present.  There, the
ambassador was in this country merely in his political capacity, and
there was no reason to suppose that he was desirous of leaving the country, or going out of the jurisdiction. Here, however, the Emperor appears
to have engaged in a commercial transaction, and to be resident out of
the jurisdiction. I see no reason, therefore, for exempting him from the
necessity of finding security for costs, to which any other person bringing such an action would be subjected. The present rule must consequently be made absolute.'
cc Littledale, J., Patteson, J., and Coleridge, J., concurred.
" Rule absolute.'
No. 6.
LAW OF UNITED STATES OF NORTH AMERICA.(n)
Ad ~ 1525. UNDER the confederation, an exclusive power was given to
Congress of' sending and receiving ambassadors.' The term' ambassador,' strictly construed, (as would seem to be required by the second
article of that instrument,) comprehends the highest grade only of public
ministers; and excludes those grades which the United States would be
most likely to prefer whenever foreign embassies may be necessary. But
under no latitude of construction could the term'ambassadors,' comprehend consuls. Yet it was found necessary by Congress to employ the
inferior grades of ministers, and to send and receive consuls. It is true,
*644] that the mutual appointment of consuls might have *been proL[ C]1 vided for by treaty; and where no treaty existed, Congress might
perhaps have had the authority under the ninth article of the confederation, which conferred a general authority to appoint officers for managing
the general affairs of the United States. But the admission of foreign
consuls into the United States, when not stipulated for by treaty, was
nowhere provided for. The whole subject was full of embarrassment
(n) Story on the Constitution of the United States, (Amer. 2nd Edit.,) vol. ii.
pp. 356, et seg.




APPENDIX.                            463
and constitutional doubts; and the provision in the constitution, extending the appointment to other public ministers and consuls, as well as to
ambassadors, is a decided improvement upon the confederation.
"~ 1560. The next section of the second article is:' He (the president) shall from  time to time give to the Congress information of the
state of the Union, and recommend to their consideration such measures
as he shall judge necessary and expedient.  He may, on extraordinary
occasions, convene both houses, or either of them; and, in case of a disagreement between them, with respect to the time of ajournment, he may
adjourn them to such time as he shall think proper.  He shall receive
ambassadors and other public ministers.  He shall take care that the
laws be faithfully executed; and shall commission all the officers of the
United States.'
" ~ 1565. The next power is to receive ambassadors. and other public
ministers. This has been already incidentally touched. A similar power
existed under the confederation; but it was confined to receiving' ambassadors,' which word, in a strict sence, (as has been already stated,)
comprehends the highest grade only of ministers, and not those of an
inferior character.  The policy of the United States would ordinarily
prefer the employment of the inferior grades; and therefore the description is properly enlarged, so as to include all classes of ministers. Why
the receiving of consuls was not also expressly mentioned, as the appointment of them is in the preceding clause, is not easily to be accounted for,
especially as the defect of the confederation on this head was fully understood. The power, however, may be fairly inferred from other parts of
the constitution; and indeed seems a general incident to the executive
authority.   It has constantly been exercised without objection; and
foreign consuls have never been allowed to discharge any functions of
office, until they have received the exequatur of the pres;2' nt.  Consuls,
indeed, are not diplomatic functionaries, or political representatives of a
foreign nation; but are treated in the character of mere commercial
agents.
" ~ 1568. As incidents to the power to receive ambassadors and foreign
ministers, the president is under stood to possess the power to refuse
them, and to dismiss those who, having been received, become obnoxious
to censure, or unfit to be allowed the privilege by their improper conduct,
or by political events.  While, *however, they are permitted to  645
remain as public functionaries, they are entitled to all the immu- [645
nities and rights which the Law of Nations has provided at once for their
dignity, their independence, and their inviolability.
t ~ 1569. There are other incidental powers belonging to the executive
department, which are necessarily implied from the nature of the functions which are confided to it.  Among these must necessarily be included the power to perform them without any obstruction or impediment
whatsoever.  The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of
his office; and for this purpose his person must be deemed, in civil cases
at least, to possess an official inviolability. In the exercise of his political powers he is to use his own discretion, and is accountable only to




464    PHILLIMORE ON INTERNATIONAL LAW.
his country and to his own conscience.  His decision in relation to
these powers is subject to no control, and his discretion, when exercised,
is conclusive. But he has no authority to control other officers of the
Government in relation to the duties imposed upon them  by law, in
cases not touching his political powers.
c" ~ 1658. The next clause extends the judicial power ( to all cases affecting ambassadors, other public ministers, and consuls.' The propriety of
this delegation of power to the national judiciary will scarcely be questioned
by any persons, who have duly reflected upon the subject. There are
various grades of public ministers, from ambassadors (which is the highest
grade) down to common resident ministers, whose rank, and diplomatic
precedence, and authority, are well known, and well ascertained in the
law and usages of nations. But whatever may be their relative rank
and grade, public ministers of every class are the immediate representatives of their Sovereigns.  As such representatives, they owe no subjection to any laws, but those of their own country, any more than their
Sovereign; and their actions are not generally deemed subject to the
control of the private law of that State, wherein they are appointed to
reside. He, that is subject to the coercion of laws, is necessarily dependent on that Power, by whom those laws were made.  But public ministers ought, in order to perform  their duties to their own Sovereign, to
be independent of every Power, except that by which they are sent; and,
of consequence, ought not to be subject to the mere municipal law of
that nation, wherein they are to exercise their functions.  The rights,
the powers, the duties, and the privileges of public ministers are, therefore, to be determined, not by any municipal constitutions, but by the
law of nature and nations, which is equally obligatory upon all Sovereigns and all States.  What these rights, powers, duties, and privileges are, are inquiries properly belonging to a treatise on the Law of
Nations, and need not be discussed here. But it is obvious, that every
[*6461 question, in *which these rights, powers, duties, and privileges
CLi J8 are involved, is so intimately connected with the public peace,
and policy, and diplomacy of the nation, and touches the dignity and
interest of the Sovereigns of the ministers concerned so deeply, that it
would be unsafe that they should be submitted to any other than the
highest judicature of the nation.,, ~ 1659. It is most fit, that this judicature should, in the first instance,
have original jurisdiction of such cases, so that, if it should not be exclusive, it might at least be directly resorted to, when the delays of a procrastinated controversy in inferior tribunals might endanger the repose,
or the interests of the Government.  It is well known, that an arrest of
the Russian Ambassador in a civil suit in England, in the reign of Queen
Anne, was well nigh bringing the two countries into open hostilities;
and was atoned for only by measures which have been deemed, by her
own writers, humiliating.  On that occasion, an act of Parliament was
passed, which made it highly penal to arrest any ambassador, or his domestic servants, or to seize or distrain his goods; and this act elegantly
engrossed and illuminated, accompanied by a letter from the Queen, was
sent by an ambassador extraordinary, to propitiate the offended Czar.




APPENDIX.                            465
And a statute to the like effect exists in the criminal code established by
the first Congress, under the Constitution of the United States.
" ~ 1660. Consuls, indeed, have not in strictness a diplomatic character. They are deemed as mere commercial agents; and therefore partake of the ordinary character of such agents; and are subject to the
municipal laws of the countries where they reside. Yet, as they are the
public agents of the nation to which they belong, and are often entrusted
with the performance of very delicate functions of State, and as they
might be greatly embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, state and national, it was thought highly expedient to extend the original jurisdiction of the Supreme Court to them
also. The propriety of vesting jurisdiction, in such cases, in some of
the national Courts seems hardly to have been questioned by the most
zealous opponents of the Constitution.  And in cases against ambassadors, and other foreign ministers, and consuls, the jurisdiction has been
deemed exclusive.
cc ~ 1661. It has been made a question whether this clause, extending
jurisdiction to all cases afecting ambassadors, ministers, and consuls, ineludes cases of indictments found against persons for offering violence to
them, contrary to the statute of the United States punishing such offence.
And it has been held that it does not. Such indictments are mere public
prosecutions, to which the United States and the offender only are parties;
and which are conducted by the United States for the purpose of vindicating their own laws and the Law of Nations.  They are  *647
*strictly, therefore, cases affecting the United States; and the [47
minister himself, who has been injured by the offence, has no concern in
the event of the prosecution, or the costs attending it.  Indeed, it seems
difficult to conceive how there can be a case affecting an ambassador, in
the sense of the Constitution, unless, he is a party to the suit on record,
or is directly affected and bound by the judgment.
" ~ 1662. The language of the Constitution is, perhaps, broad enough
to cover cases where he is not a party, but may yet be affected in interest.
This peculiarity in the language has been taken notice of in a recent
case, by a Supreme Court.'If a suit be brought against a foreign minister,' (said Mr. Chief Justice Marshall, in delivering the opinion of the
Court,)' the Supreme Court alone has original jurisdiction; and this is
shown on the record.  But, suppose a suit to be brought which affects
the interest of a foreign minister, or by which the person of his secretary
or of his servant, is arrested. The minister does not, by the mere arrest
of his secretary, or his servant, become a party to this suit; but the
actual defendant pleads to the jurisdiction of the Court, and asserts his
privilege.  If the suit affects a foreign minister, it must be dismissed;
not because he is a party to:it, but because it affects him.  The language
of the Constitution in the two cases is different. This Court can take
cognizance of all cases' affecting' foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record.  But this
language changes, when the enumeration proceeds to States.  Why this
change? The answer is obvious. In the case of foreign ministers, it
was intended, for reasons which all comprehend, to give the national




466   PHILLIMORE ON INTERNATIONAL LAW.
Courts jurisdiction over all cases by which they were in any manner
affected.  In the case of States, whose immediate or remote interests
were mixed up with a multitude of cases, and who might be affected in
an almost infinite variety of ways, it was intended to give jurisdiction in
those cases only to which they were actual parties.'"
[*648]                         *No. 7.
DECISIONS IN THE FRENCH COURTS.
Consul, when Diplomatic Agent.
Tribunal Civil de la Seine (I  Chambre.)
(Prdsidence de M. Barbou.)
Audience du I De'cembre.
DROIT INTERNATIONAL.-CONSUL ETRANGER.-INVIOLABILITE DES
AGENS DIPLOMATIQUES.(o)
Les relations internationales ne peuvent etre entrave'es dans un inte'ret
prive'.
Le dde'cret du 13 ventose an II., qui consacre l'inviolabilite' des agens diplomatiques, s'appligue a tous les agens diplomatiques sans distinction,
alors me'me qu'il s'agit d'un agent diplomatique non accredite en
France, et qui traverse le territoire pour se rendre a son poste.
I" UN decret du 13 ventose an II. garantit en principe l'inviolabilit6
des agens diplomatiques sans distinction. Cependant M. Begley, consul
des Etats-Unis prbs le gouvernement Sarde, a la residence de Genes, a
ete arrete dernierement a Paris au moment oui, traversant cette ville il
se rendait a son poste, et il a 6te incarcdre dans la maison pour dettes en
vertu d'une ordonnance rendue sur la requete de M. Piedana, creancier:de
M. Begley. Aux termes d'un jugement emportant contrainte par corps,
et rendu par un tribunal des Etats-Unis, M. Begley demandait aujourd'hui sa mise en liberte en se pr6valant de sa qualite d'agent diplomatique.
t"Me Dubrena, avocat de M. Begley, a pr6tendu, en invoquant la loi
du 13 ventose an II., que la qualit6 d'agent diplomatique qui appartient
h nI. Begley aurait df le mettre a l'abri d'une arrestation, car cette
qualit6, inseparable de la personne, la suit dans tous les lieux ou elle
r6side, et meme dans le pays oui l'agent n'est pas accredit6 et oiu il n'exerce pas ses fonctions.  L'avocat etablissait la qualite d'agent diplomatique de NI. Begley en lisant une lettre de M. le ministre des affaires
6trangbres adressee'a M. le procureur du Roi, et dans laquelle, protestant
contre l'arrestation et l'incarceration de M. Begley, il reconnait ia M.
Begley la qualit6 de consul des Etats-Unis a GOenes.
649  " Me Baroche, au nom de M. Piedana, creancier incarcerateur,
[*649] *a soutenu que le d6cret du 13 nivose an II. ne pouvait s'appliquer qu'aux agens diplomatiques accredites en France, et non aux agens
(o) Gazette des Tribunaux, December 2, 1840. Numero 4755.




APPENDIX.                             467
sans caract~re officiel qui peuvent traverser le territoire.  II a soutenu,
en second lieu, qu'un consul, comme M. Begley pretend l'etre ne saurait
etre consider6 comme un agent diplomatique inviolable aux termes du
decret de nivose an II.  I1 ajoutait que le passeport delivre A M. Begley
ne lui accordait d'autre titre que celui de citoyen des Etats-Unis.,"Le Tribunal, sur les conclusions conformes de M. l'avocat du Roi,
Gouin, a prononc6 en ces termes:"' Attendu que les relations internationales ne sauraient etre entravees
dans un interet priv6;
", Attendu que sous la denomination generale d'agens diplomatiques
se trouvent compris tous les agens ayant caractere officiel emane d'un
souverain 6tranger pour servir d'intermediaire dans les relations de nation
a nation;
"' Attendu que Begley, en reproduisant une lettre du ministere des
affaires etrangeres de France, qui lui reconnait la qualite de consul des
Etats-Unis h Genes et de porteur de de6pches diplomatiques, justifie
suffisamment de sa qualite d'agent diplomatique;
"'  En ce qui touche la demande afin d'execution provisoire du present
jugement;
"' Attendu que l'execution provisoire doit etre fondee par un titre;
"' Attendu que Begley, en justifiant de sa qualit6 d'agent diplomatique qui seule doit faire ordonner sa mise en libert6, justifie du seul titre
qui puisse etre exige en pareille matiere;
"' Ordonne la mise en liberte de Begley, et l'execution provisoire da
jugement sur minute et avant l'enregistrement.'"
-Wfe of Ambassador.
Cour Royale de Paris (Iure Chambre.)
(Prdsidence de M. Simonneau.)
Audience du 21 Aout.
AMBASSADRICE.-IMMUNITES DE  L AMBASSADEUR. —ACTION  PERSONNELLE.-INCOMPETENCE DES TRIBUNAUX FRAN9AIS.(p)
1~ La femme d'un ambassadeur jouit-elle des immunites attachees a la
personne de l'ambassadeur et a l'h6tel de l'ambassade?  (Oui.)
20 Les personnes quijouissent de ces immunites peuvent-elles y renoncer,
et peut-on exciper contre elles d'actes qui impligueraient cette renonciation. (Non.)
*" Que la femme d'un ambassadeur jouisse des immunites  650
attachees h la personne de son mari, c'est ce qui ne peut etre   501
douteux, car les immunites couvrant toutes les personnes de la suite de
l'ambassadeur et qui habitent l'hotel de l'ambassade, k plus forte raison
doivent-elles proteger la femme et les enfans de celui-ci. Mais ce qui
faisait difficult6 dans l'espece, c'etait, d'une part, que la Baronne de
(p) Gazette des Tribunaux, August 22, 1841. Num6ro 4982.




468   PHILLIMORE ON INTERNATIONAL LAW.
Pappenheim n'habiterait pas l'hotel de l'ambassade, circonstance que le
Tribunal de commerce avait consideree comme etablie et qu'il avait visee
dans son jugement; et, d'autre part, que la Baronne de Pappenheim
avait form6e opposition au jugement qui l'avait condamn6e au paiement
des traites et avait elle-meme cite son adversaire devant le Tribunal,
d'oui l'on tirait contre elle la consequence qu'elle en avait reconnu la
competence.
9"Mais sur le premier point, le fait de l'habitation s6paree de la
IBaronne de Pappenheim ffit-il justifie, ne la privait pas du droit de
tirer les consequences resultant de son domicile de droit h l'hbtel de
l'ambassade, la femme ne pouvant avoir d'autre domicile que celui de
son mari.
" Sur le second point, la citation par elle donn6e devant le Tribunal
de Commerce pour voir statuer sur l'opposition par elle formec au jugement au fond, etait d'autant moins une reconnaissance de la competence
du Tribunal, qu'en meme temps appel etait interjete par elle du jugement sur la comp6tence.
"cc La Cour a prononc6 en ces termes.
"' La Cour,
c cConsid6rant que le Baron de Pappenheim  est ministre du Grand
Due de Hesse-Darmstadt, residant en France; qu'a ce titre il jouit des
immunit6s accordees par le droit international aux ministres des puissances etrangers; que la Baronne de Pappenheim, sa femme, jouit des
memes immunites; que ces immunites sont d'ordre public; que ceux
qui en jouissent comme representant leur gouvernement ne peuvent y
renoncer, et qu'on ne peut exciper contre eux d'aucun acte par lequel ils
auraient consenti a s'en d6pouiller;
cc  Qu'ainsi le Tribunal de Commerce 6tait incompetent pour connaitre
d'une action personnelle dirigee contre la Baronne de Pappenheim; que
cette incomp6tence etant d'ordre public, elle peut etre proposee en tout
etat de cause, et ne saurait etre couverte par le consentement que l'appelante aurait donne a plaider devant le Tribunal;
"cc Annulle le jugement comme incompetemment rendu.'
cc (Plaidans: Mes Devesvres, pour la Baronne de Pappenheim, appelante, et Maud'heux pour Tircin, int.-Conclusions conformes de NM.
Berville, premier avocat-gen6ral.")




APPENDIX.                              469
*APPENDIX VI. (PAGE 258. Ss. clxii. cclx.) [*6511]
CONSULS.
No. 1.
Treaty respecting Consuls, between the United States of North America
and France (14th November, 1788.)
Convention entre le Roi Tre's- Chretien et les Etats- Unis de l'Ame'riqe,
l'effet de determiner et fixer lesfonctions et pr'rogatives des Consuls
et Vice-Consuls respectifs, signee i Versailles le 14 Novembre, 1788.(q)
SA Majeste le ~Roi Tres-Chretien, et les Etats-Unis de l'Amerique,
s'6tant accordds mutuellement par l'article XXIX. du trait6 d'amitie et
de commerce conclu entr'eux, la liberte de tenir dans leurs Etats et ports
respectifs, des Consuls et Vice- Consuls, agens et commissaires, et voulant
en consequence determiner et fixer, d'une maniere rdciproque et permanente, les fonctions et prerogatives des Consuls et Vice- Consuls qu'ils
ont juge convenables d'etablir de preference, Sa Majeste Trs.-Chrktienne
a nommr  le Sieur Comte de Montmorin de St. Herent, Mar6chal de ses
camps et armees, chevalier de ses ordres et de la toison d'or, son conseiller en tous ses conseils, ministre et secretaire d'Etat et de ses commandemens et finances, ayant le departement des affaires etrangeres; et
les Etats-Unis ont nomme le Sieur Thomas Jefferson, citoyen des EtatsUnis de l'Amerique, et leur ministre plenipotentiarie aupres du Roi,
lesquels, apres s'etre communique leurs pleinpouvoirs respectifs, sont
convenu de ce qui suit:Article I.
"Les Consuls et Vice- Consuls nommes par le Roi Tres-Chretien et les
Etats-Unis seront t6nus de presenter leurs provisions selon la forme qui
se trouvera etablie respectivement par le Roi Tres-Chretien dans ses
Etats, et par le Congres dans les Etats-Unis.  On leur delivrera sans
aucuns fraix l'exeguatur necessaire A l'exercice de leurs fonctions, et sur
l'exhibition qu'ils seront du dit exequatur; les gouverneurs, commandans,
chefs de justice, les corps tribunaux ou autres officiers ayant autorite
dans les ports et lieux de leurs consulats les y feront jouir aussitot et
sans difficulte des pre6minences, autorite, et privileges accord6s reciproquement, sans qu'ils puissent exiger des *dits Consuls et Vice- [#652]
Consuls aucun droit sous aucun pretexte quelconque.
Article II.
"c Les Consuls et Vice-Consuls et les personnes attachdes "a leurs fonctions, savoir, leurs chanceliers et secretaires, jouiront d'une pleine et
entiere immunite' pour leur chancellerie et les papiers qui y seront
renfermes. Ils seront exemts de tout service personnel, logement des
gens de guerre, milice, guet, garde, tutelle, curatelle, ainsi que de tons
(g) Miruss, vol. ii. pp. 330-7




470      PHILLIMORE ON  INTERNATIONAL LAW.
droits, taxes, impositions et charges quelconques, h l'exception seulement
des biens meubles et immeubles dont ils seraient proprietaires ou possesseurs, lesquels seront assujettis aux taxes imposees sur ceux de tous
autres particuliers, et a tous egards ils demeureront sujets aux loix du
pays comme les nationaux.  Ceux de dits Consuls et Vice-Consuls qui
feront le commerce seront respectivement assujettis, a toutes les taxes,
charges et impositions etablies sur les autres negocians.  Ils placeront
sur la porte exterieure de leurs maisons les armes de leur souverain, sans
que cette marque distinctive puisse donner aux dites maisons le droit
d'asile, soit pour des personnes, soit pour des effets quelconques.
Article III.
"Les Consuls et Vice-Consuls respectifs pourront etablir des agens
dans les diff6rens ports et lieux de leurs departemens  ou  le besoin
l'exigera; ces agens pourront etre choisis parmi les negocians nationaux
ou etrangers, et munis de la commission de l'un des dits Consuls.  Ils
se renfermeront respectivement k rendre aux commergans, navigateurs
ct batimens respectifs tous les services possibles, et a informer le Consul
le plus proche des besoins des dits commergans, navigateurs et batimens,
sans que les dits agens puissent autrement participer aux immunit6s,
droits et privileges attribues aux Consuls et Vice-Consuls, et sans pouvoir,
sous aucun pretexte que ce soit, exiger aucun droit ou emolument quelconque des dits commergans.
Article IV.
" Les Consuls et Vice-Consuls respectifs pourront etablir une chancellerie oui seront deposes les deliberations, actes et procedures consulaires,
ainsi que les testamens, obligations, contrats et autres actes faits par les
nationaux ou entr'eux, et les effets delaisses par mort ou sauves des
naufrages. Ils pourront en consequence commettre h l'exercice de la
dite chancellerie des personnes capables, les recevoir, leur faire preter
serment, leur donner la garde du s9eau et le droit de sceller les commissions, jugemens et autres actes consulaires, hinsi d'y remplir les fonctions
de notaire et greffier du consulat.
Article V.
"'Les Consuls et Vice-Consuls respectifs auront le droit exclusif de
recevoir dans leur chancellerie, ou a bord des batimens, *les
declarations et tous les autres actes que les capitaines, patrons,
edquipages, passayers et ne'gocians de leur nation voudront y passer meme
leur testament et autres dispositions de derniere volontb, et les dispositions
des dits actes duement legalises par les dits Consuls ou Vice-Consuls, et
munis du s9eau de leur consulat, feront foi en justice comme le feraient
les originaux dans tous les tribunaux des Etats du Roi Tres-Chretien et
des Etats-Unis.  Ils auront aussi, et exclusivement, en cas d'absence
d'executeur testamentaire, curateur ou heritiers legitimes, le droit de
faire l'inventaire, la liquidation, et de proceder a la vente des effets
mobiliers de la succession des sujets ou citoyens de leur nation qui
viendront' mourir dans l'etendue de leur consulat.  Ils y procederont




APPENDIX.                              471
avec l'assistance de deux negocians de leur dite nation, ou a leur defaut,
de tout autre h leur choix, et feront deposer dans leur chancellerie les
effets et papiers des dites successions, sans qu'aucuns officiers militaires,
de justice, ou de police du pays, puissent les y troubler, ni y intervenir
de quelque maniere que ce soit; mais les dits Consuls et Vice-Consuls
ne pourront faire la delivrance des successions et de leur produit aux
h6ritiers l6gitimes, ou a leurs mandataires, qu'apres avoir fait acquitter
toutes les dettes que les defunts auront pu avoir contract6es dans le pays,
a l'effet de quoi les cr6anciers auront droit de saisir les dits effets dans
leurs mains, de meme que dans celles de tout autre individu quelconque,
at en poursuivre la rente jusqu'au payement de ce qui leur sera legitimement df, lorsque les dettes n'auront 6t6 contractees par jugement, par
acte ou par billet dont la signature sera reconnue, le payement ne pourra
en etre ordonne qu'en fournissant par le creancier caution suffisante et
domiciliee de rendre les sommes induement pergues, principal, interets et
fraix; lesquelles cautions cependant demeureront duement d6ehargees
apres une annee, en tems de paix, et deux, en tems de guerre, si la
demande en decharge ne peut etre form6e avant ces delais contre les
heritiers qui se pr6senteront.  Et afin de ne  pas faire injustement
attendre aux heritiers les effets du defunt, les Consuls et Vice-Consuls
feront annoncer sa mort dans quelqu'une des gazettes qui se publient
dans 1'6tendue de leur consulat, et qu'ils retiendront les dits effets sous
leurs mains pendant quatre mois, pour r6pondre a toutes les demandes
qui se presenteront: et ils seront tenus, apres ce dMlai de delivrer aux
heritiers l'excedant du montant des demandes qui auront et6 formees.
Article VI.
", Les Consuls et Vice-Consuls respectifs recevront les declarations, protestations et rapports de tous capitaines et patrons de leur nation respective pour raison d'avaries essuyees a la mer, et les capitaines et patrons
remettront dans la chancellerie des dits Consuls et Vice-Consuls les actes
qu'ils auront fait dans d'autres *ports pour accidens qui leur seront   65
arriv6s pendant leur voyage.  Si un sujet du Roi Tres-Chrktien et [54
un habitant des Etats-Unis, ou un etranger, sont interesses dans la dite
cargaison, l'avarie sera regl6e par les tribunaux du pays, et non par les
Consuls et Vice-Consuls, mais lorsqu'il n'y aura d'interess6s que les
sujets ou citoyens de leur propre nation, les Consuls ou les Vice-Consuls
respectifs nommeront des experts pour regler les dommages et avaries.
Article VII.
"Dans le cas ou, par tempete ou autres accidens, des vaisseaux ou
batimens Frangais echoueront sur les cates des Etats-Unis, et des vaisseaux et batimens, des Etats-Unis echoueront sur les cOtes des Etats de Sa
Majeste Tres-Chrdtienne, le Consul ou le Vice-Consul, le plus proche du
lieu du naufrage, pourra faire tout ce qu'il jugera convenable, tant pour
sauver le dit vaisseau ou batiment, son chargement et appartenances, que
pour le magazinage et la sfirete des effets sauves et marchandises.  II
pourra en faire l'inventaire, sans qu'aucuns officiers militaires, des douanes,
de justice ou de police du pays, puissent s'y immiscer autrement que pour




472   PHILLIMORE ON INTERNATIONAL LAW.
faciliter aux Consuls et Vice-Consuls, capitaine et equipage du vaisseau
naufrag6 ou echoue, tous les secours et faveurs qu'ils leur demanderont,
soit pour la c6l6rite et la sfret6 du sauvetage et des effets sauves, soit
pour eviter tous desordres.  Pour prevenir meme toute espece de conflit
et de discussion dans les dits cas de naufrage, il a 6t6 convenu que lorsqu'il ne se trouvera pas de Consul ou Vice-Consul pour faire travailler au
sauv6tage, ou quo la residence du dit Consul ou Vice-Consul, qui ne se
trouvera pas sur le lieu du naufrage, sera plus eloignee du dit lieu que
celle du juge territorial competent, ce dernier fera proc6der sur le champ
avec toute la c6elrit6, la sfiret6 et les precautions prescrites par les loix
respectives, sauf au dit juge territorial h se retirer, le Consul ou ViceConsul lui fera rembourser les fraix, ainsi que ceux du sauvetage.  Les
marchandises et effets sauves devront etre depos6s'a la douane ou autre
lieu de suret6 les plus prochain avec l'inventaire qui en aura e6t dress6
par le Consul ou Vice-Consul, ou en leur absence par le juge qui en aura
connu pour les dits effets et marchandises etre ensuite d6livr6s apres le
prel6vement des fraix, et sans forme de procbs, aux proprietaires, qui,
munis de la mainlevee du Consul ou Vice-Consul le plus proche, les r6clameront par eux-memes, ou par leurs mandataires soit pour reexporter
les marchandises, et dans ce cas celles ne payeront aucune espoce de
droits de sortie, soit pour les rendre dans le pays, si elles n'y sont pas prohibees; et dans ce dernier cas les dites marchandises se trouvant avariees,
on leur accordera une mod6ration sur les droits d'entree, proportionn6e
au dommage souffert, lequel sera constat6 par le proces verbal dress6 lors
du naufrage ou l'6chouement.
[*655]                       *Article VIII.
"c Les Consuls ou Vice-Consuls exerceront la police sur tous les batimens de leurs nations respectives, et auront a bord des dits batimens tout
pouvoir et juridiction en matiere civile dans toutes les discussions qui
pourront y survenir; ils aurout une entiere inspection sur les dits batimens, leurs 6quipages et les changemens et remplacemens i y faire, pour
quel effet ils pourront se transporter a bord des dits batimens toutes les
fois qu'ils le jugeront necessaire; bien entendu que les fonctions ci-dessus enoncees seront concentrees dans l'interieur des batimens, et qu'elles
ne pourront avoir lieu dans aucun cas qui aura quelque rapport avec la
police des ports ou les dits batimens se trouveront.
Article IX.,"Les Consuls et Vice-Consuls pourront faire arreter les capitaines,
officiers, mariniers, matelots et toutes autres personnes faisant partie
des 6quipages des batimens de leurs nations respectives qui auraient
deserte des dits batimens, pour les renvoyer et faire transporter hors du
pays. Auquel effet les dits Consuls et Vice-Consuls s'adresseront aux
tribunaux, juges et officiers compktens et leur feront, par ecrit, la demande
des dits deserteurs, en justifiant par l'exhibition des regltres du batiment
ou rM1e d'equipage, que ces hommes faisaient partie des susdits equipages.  Et sur cette demande, ainsi justifi6e, sauf toutefois la preuve
contraire, l'extradition ne pourra etre refusee, et il sera donne toute aide




APPENDIX.                              473
et assistance aux dits Consuls et Vice-Consuls pour la recherche, saisie
et arrestation des susdits d6serteurs, lesquels seront mime detenus et
gardes dans les prisons du pays,'a leur r6quisition et a leurs fraix, jusqu'a ce qu'ils aient trouv6e occasion de les renvoyer.  Mais s'ils n'etaient
renvoyees dans le d6lai de trois mois, a compter du jour de leur arret,
ils seront elargis, et ne pourront plus etre arretes pour la meme cause.
Article X.
" Dans le cas oui les sujets ou citoyens respectifs auront comnmis quelque crime ou infraction de la tranquillite publibue, ils seront justiciables
des juges du pays.
Article XI.
i" Lorsque les dits coupabtes serontpartie de l'e~quipage de l'un des bMtimens de leur nation, et se seront retires a bord des dits navires) ils pourront y etre saisis et arretes par l'ordre des juges territoriaux: ceux-ci en
previendront le Consul ou Vice-Consul, lequel pourra se rendre i bord
s'il le juge a propos: mnais cette prbvenance ne pourra en aucun cas retarder l'execution de l'ordre dont il est question. Les personnes arret6es
ne pourront ensuite etre mises en libert6 qu'apres que le Consul [*656
ou Vice-Consul en *aura e6t prevenu, et elles lui seront r6mises, [65
s'il le requiert, pour etre reconduites sur les batimens oui elles auront Ot6
arret6es ou autres de leurs nation, et etre renvoy6es hors du pays.
Article XII.
cc Tous dcffirens et proces entre le sujets du Roi Tres-Chrftien dans
les Etats-Unis, ou entre les citoyens des Etats-Unis dans les Etats
du Roi Tres-Chretien, et notamment toutes les discussions relatives aux
salaires et conditions des engagemens des equipages des bhtimens respectifs, et tous diff6rens de quelque nature qu'ils soient, qui pourraient
s'elever entre les hommes des dits equipages, ou entre quelques uns d'eux
et leurs capitaines, ou entre les capitaines de divers bttimens nationaux,
seront termine's par les Consuls et Vice- Consuls respectifs, soit par un
renvoi par devant des arbitres, soit par un jugement sommaire, et sans
fraix. Aucun officier territorial, civil ou militaire, ne pourra y intervenir,
ou prendre une part quelconque t l'affaire, et les appels de dits jugemens
consulaires seront portes devant les tribunaux de France ou des EtatsUnis qui doivent en connaltre.
Article XIII.," L'utilite gen6rale du commerce ayant fait 6tablir dans les Etats du
Roi TrBs-Chretien des tribunaux et des formes particulieres pour acce16rer
la decision des affaires de commerce, les n6gocians des Etats-Unis jouiront
du benefice de ces etablissemens et le Crongres des Etats-Unis pourvoira
de la manidre la plus conforme a ses loix, a l'etablissement des advantages equivalens en faveur des n6gocians Frangais pour la prompte expedition et d6cision des affaires de la meme nature.
Article XIV.
",Les sujets du Roi Tres-Chretien et les citoyens des Etats-Unis, qui
DECEMBER, 1855. —31




474   PHILLIMORE ON INTERNATIONAL LAW.
justifieront authentiquement etre du corps de la nation respective, jouireont en consequence de l'exemtion de tout service personnel dans le lieu
de leur etablissement.
Article XV.
" Si quelqup'autre nation acquiert, en vertu d'une convention quelconque, un traitementplus favorable relativement aux pr6emiences, pouvoirs,
autorites et privileges consulaires, les Consuls et Vice-Consuls du Roi
Trbs-Chretien ou des Etats-Unis reciproguement y participeront, aux
termes stipules par les articles II., III. et IV. du traite d/amiti6 et de
commerce conclu entre le Roi Tr~s-Chretien et les Etats-Unis.
Article XVI.
i" La presente convention aura son plein effet pendant l'espace de douze
ans, h compter du jour de l'echange des ratifications, *lesquelles
[*57 ] seront donn6es en bonne forme et echangees de part et d'autre
dans l'espace d'un an, ou plus tot si faire se peut.:"En foi de quoi, nous Ministres Pl6nipotentiaires avons sign6 la
pr6sente convention, et y avons fait apposer le cachet de nos armes.
"cFait h Versailles, le;14 Novembre, mil sept cent quatre-vingt-huit.: (L. S.)  Le Comte de Montmorin de St. Herent.
" (L. S.)  Th. Jefferson."
No. 2.
Spain.- Ordonnance respecting Foreign Consuls.
Ordonnance de S. N. Catholique relative aux Consuls et Vice- Consuls
etrangers en Espagne, publie'e 2 Madrid le 8 Mai, 1827.(r)
", ART. I. Aucun consul ou vice-consul etranger ne pourra exercer dans
le port d'Espagne de sa residence, aucun acte de juridiction, attendu que
ce droit appartient aux autorites locales, desquelles ils reclameront au
besoin la protection qu'on doit leur accorder d'apres la loi.
-" Art. II. Aucun consul ou vice-consul etranger ne sera empechb  par
les autorites locales de recevoir et 16galiser des protestations d'avarie et
autres documens extra-judiciaires qui appartiennent l son emploi, lorsqu'ils emaneront des sujets de sa nation.
"c Art. III. Dans les affaires contentieuses et dans toutes les autres
oit ils auront a solliciter le pouvoir coircitif des autorites locales, ou il
faudra employer quelques formalites judiciaires, la representation des
consuls et vice-consuls Strangers se bornera uniquement h celle de simples
agens des sujets de leurs nations respectives.
" Art. IV. Les autorites locales abregeront, autant que cela sera compatible avec la droite administration de la justice, le cours judiciaire et
la conclusion des procbs et des contestations qui s'eleveront parmi les
sujets des autres nations, afin de leur eviter les prejudices, que les lenteurs
pourroient apporter.
(r) Miruss, vol. ii., Appendix, app. 360-1.




APPENDIX.                            475
cc Art. V. Les autorites observeront tres-exactement les trait6s et les
conventions en vigueur entre l'Espagne et les autres nations, *658
*relativement aux demandes et droits deduits par les sujets  658
6trangers.
" Art. VI. La juridiction particuli;re que les autorit6s locales exerceront
dans ces cas sera exactement regl6e sur la loi 6, du titre II., livre 6, de
la Novissima Recopilacion.
", Art. VII. Les consuls et vice-consuls etrangers jouiront en Espagne
du caractere et de la consideration publique que leur assigne la meme loi.'" Art. VIII. Encourront le m6contentement du Roi les autorites qui,
par leur omission et leur negligence, donneroient lieu b ce qu'on introduise le moindre abus, soit en tolerant aux consuls ou vice-consuls la
latitude qu'ils n'auroient pas dans leurs fonctions privatives, soit en
depouillant les Tribunaux de celles qui leur appartiennent, au pr6judice
du pouvoir supreme du Roi notre Seigneur et de la juridiction qu'il a
daigne leur d6elguer.'l Madlrid le 8 Mai, 1827.
" Signe: LOuIs-LOPEZ BALLESTEROS."
No. 3.
Prussian Rescript, relating to the Authority of English Consuls in
matters of Sea Protests of English Subjects.
"'K. Preuss. Re script vom  28 August, 1834, betreffend die Befugniss der Englischen Consuln zur Aufnahme von
See-Protesten.(s)
" rDEM  Koniglichen Kommerz- und Admiralitiits-Kollegium  wird
in Bezug auf die in dessen Bericht vom 27 Mai d. J. begutachtete
Frage:
"In wiefern den Englischen Konsuln in Fillen, woes nur
auf das Interesse Englischer Unterthanen ankommt.,
die Aufnahme von Seeprotesten zu gestatten ist?
von dem  Justizminister, im  Einverstindnisse mit den Kbniglichen
Ministerien fiir die Gesetzrevision, so wie der Finanzen und der auswirtigen Angelegenheiten Nachstehendes hierdurch eriffnet.
"'  Es unterliegt keinem  Bedenken, dass nach den Grundsaitzen des
Vblkerrechts diejenigen Rechte, welche den in England angestellten
Preussischen Consuln diesseits verliehen und ihnen von der Englischen
Regierung zugestanden worden sind, auch den in Preussen fungirenden
Englischen Consuln von Preussiseher *Seite bewilligt werden  *659
miissen.  Von diesem  Gesichtspunkte ausgegangen kommt es [659
lediglich auf die Untersuchung der Frage an: c" Welche Befugnisse in
Betreff der Seeproteste den P r e u s s i s c h e n  C o n s u 1 n nach den
f ii r s i e gegebenen speciellen Verordnungen zustehen?"
i Das Consulats-Reglement vom 18 September, 1796, hat in diesert
Beziehung ausdriicklich Folgendes festgesetzt:
(s) Miruss, vol. ii., Appendix, pp. 360-6.




476   PHILLIMORE ON INTERNATIONAL LAW.
it "(1) Bei Havarie oder kleinen Seeschiden soll der Consul die
am  Schiffe vorgefallenen Schiden und die zum Besten der Reise, des
Shiffs and der Ladung verwendeten Kosten verificiren.  Insbesondere
soil er hierzu bei kleinen oder ordentlichen und bei partieuliren
iHavarien verpflichtet sein, insofern bei diesen der Schaden nicht in's
Grosse geht.
i (2) (Was aber grosse  gemeinschaftliche oder ausserordentliehe
Havarien betrifft, so gilt fiir diese, so wie fuiir Strandungen, bei welchen ein
Schiff verungliickt, dasjenige, was bereits in der Assecuranz.Ordnung vom
18 Februar, 1766, dahin festgesetzt ist; i" dass die von Sechiffen erlittenen
Schiden am Orte, wo das Ungliick sich zugetragen, von kunsterfahrenen
Taxatoren oder  in  deren Ermangelung  von  glaubhaften Miinnern
gewiirdigt werden, diese aber ihre Taxe avor der Ortsobrigkeit oder vor
Notar und Zeugen o d e r auch v o r d e m  C on s u l beschw6ren, dass
geborgene Waaren ebenmdssig von einer der niimlichen Beh6rden taxirt
werden, und dass die Schiffer nach einem unterwegs in einem Nothfalle
zur Rettung des Schiffes gethanen Seewurf d e m C o n s u 1 den Schaden
und den Betrag der geworfenen Giiter nebst der ganzen Bewandniss des
Nothfalles genau und umstiindlich angeben sollen."
"' Nach diesen Bestimmungen erscheint es nicht zweifelhaft, dass
den P r e u s s i s c h e n C o n s u l n das Recht zusteht, Seeproteste und
damit verkniipfte Taxen aufzunehmen, und zwar ohne Riieksicht darauf,
ob an ihren Residenzorten Seegerichte vorhanden sind oder nicht.
"' Allein in Ansehung des Strandungsfalles wird im ~ 3, sub. A des
Consulats-Reglements noch besonders disponirt:
c Derselbe (der C on s ul) hat auch dafiir zu sorgen, dass von der
dortigen Obrigkeit, oder, Falls sich dieselbe etwa damit
n icht befass e n sol1 t e, von ihm selbst, nicht allein dem Sehiffer
und dem Schiffsvolk eine solenne Erklirung oder Deposition von allen
und jeden Umstanden  des Ungliicksfalles abgenommen, und solche
gebiihrend protokollirt, sondern aueh iiber Alles, was geborgen ist, ein
genau richtiges Inventarium aufgenommen werde."
"',AusdenWorten: von der Obrigkeit, oder, Falls sich
dieselbe  damit nicht befassen  sollte, von ibm  selbst,
k6nnte man die Folgerung ziehen, dass die Be-fugniss der Consuln zur
Aufnahme von Seeprotesten und den damit zusammenhbngenden Akten
nur dann eintrete, wenn Seegerichte nicht vorhanden *sind, und
[*660] dass daher die allegirten Vorschriften des A. L. R. so wie des
Consulats-Reglements iiberhaupt die Seegerichte als die zur Aufnahme
der in Rede stehenden Verhandlungen eigentlich a u s s e h 1i e s s l i c h
c o m p e t e n t e Beh6rde constituirten, und die Consuln nur eventualiter
an deren Stelle setzten.
Allein abgesehen davon, dass diese Auslegung dem  deutlichen
Wortsinn jener Allegate nicht entsprechen wiirde, so ist auch zu erwigen,
dass das Consulats-Reglement nicht sowohl die Befugnisse, als die
Verpflichtungen der Consuln hat festsetzen wollen.
c Es folgt daher aus den Worten:
Der C o n s u 1 s o 11 dafiir sorgen, dass von der Orts-Obrigkeit oder,




APPENDIX.                             477
Falls dieselbe sich nieht damitz zu befassen pflegte, v o n i h m s e 1 b s t,
eine solenne Deposition der Schiffsleute aufgenommen werde,
Nichts weiter, als dass der Consul nicht absolut, sondern nur in
Ermangelulg von Seegerichten v e r p f 1 i c h t e t s e y, eine Erklirung
der Schiffsmannschaft iiber den Strandungsfall aufzunehmen.   Eine
solche bedingte V e r p f 1 i e h t u n g der Consuln zur Aufnahme der in
Rede stehenden Akte schliesst nicht aus, dass die B e f u g n i s s hierzu
u n b e d i n g t sey; sie modificirt diese Befugniss nur insofern, als
demzufolge der Consul die Schiffer, welche sich an die Seegerichte
wenden wollen, nicht n6thigen kann, die Erklirung iiber die Umstinde
der Strandung vor ih m abzugeben.
c  Hierzu kommt nun noch, dass das A. L. R. hinsichtlich  der
Assecuranz- und Havarie-Gesetze fast ginzlieh der Havarie-Ordnung
vom 18 Februar, 1766, gefolgt ist, wie sich dies theils aus dem Entwurf
zum A. L. R. Th. I. Abth. II. Tit. III. Abschn. 9, S. 208, ergiebt,
theils auch schon daraus hervorgeht, dass sehr viele (insbesondere aber
die hier einschlagenden) Bestimmungen der llavarie-Ordnung fast
w6rtlich in das A. L. R. iibergegangen sind (of. ~~ 197, 231, folg.
Havar.-Ordn.) Dass aber auch das Consulats-Reglement in Ansehung
der Hiavarien von den Dispositionen der Havarie-Ordnung nicht hat
abweichen wollen, ist um deswillen unzweifelhaft, weil dasselbe ausdriieklieh sagt, das in Betreff der grossen gemeinschaftlichen oder ausserordentlichen Havarie die Vorschriften der Havarie- Ord n ung
gelten sollten.  Die letzteren stimmen nun mit den Dispositionen des
A. L. R. wie erwiihnt, vollkommen iiberein, und beschriinken insbesondere die Befugniss des Consuls zur Aufnahme von Seeprotesten nieht
auf den Fall, dass keine Seegerichte zugiinglich seyn sollten.'~ 9Wenn aber hiernach  anzunehmen ist, dass den Preussisehen
Consuln im Auslande und also auch in E n g 1 an d ein unbedingtes
Reeht zusteht, Seeproteste Preussischer Schiffer aufzunehmen, so kann
auch nach dem oben aufgestellen Grundsatze des V6lkerrechts [661
*den Englischen Consuln in Preussen eine gleiche Befugniss in [     ]
Ansehung Englischer Schiffer nicht versagt werden.
"c In Gemiissheit vorstehender Entwickelung ist von dem  Herrn
Minister der auswiirtigen Angelegenheiten unterm  23. d. M. eine Note
an den K6nigl. Grossbritannischen Gesandten hierselbst erlassen, und
darin namentlich auf die Folgerungen niher hingewiesen worden, welche
sich daraus ergeben, dass das qu. Recht der Englischen Consuln zur
Aufnahme giiltiger Seeproteste, wie schon in der obigen Frage selbst
angedeutet ist, auf diejenigen Fiille beschriinkt bleiben muss, in welchen
der Seeprotest von dem Capitain eines Englischen Schiffes eingelegt wird
und nur Englishche Unterthanen dabei betheiligt sind.'
" Vergl. v. K am p t z Jahrbiicher fUr die Preussische Gsetsgebung,
Rechtswissenschaft und Rechtsverwaltung.  Band 44, S. 75.
"Allgemeines Landrecht fiir die Preussischen Staaten,
Theil II., Tit. 8, ~ 1843."




478    PHILLIMORE ON INTERNATIONAL LAW.
No. 4.
Greece — Consular Regulations.
BARON DE MARTENS is Of opinion that the judicial functions of the
Consul are very clearly set forth in the Regulations of the Kingdom of
Greece.(t)
c" Les navires Grecs entres dans un port etranger ne peuvent etre ind6finiment consid6res comme lieux etrangers, et la protection qui leur est
accordee ne saurait dessaisir la juridiction territoriale pour tout ce qui
touche l'int6ret de I'Etat dans les ports duquel ils se trouVent.
" Admis dans un port etranger, ces navires seont done soumis aux lois
de police qui regissent le lieu oui ils sont regus; et les gens de leurs equipages sont egalement justiciables des tribunaux du pays pour les delits
qu'ils y commettraient, meme a bord, envers des personnes etrange'res d
l'quipage, ainsi que pour les conventions civiles qu'ils pourraient contracter envers elles.
" Cependant ii est de droit commun, independamment des traites particuliers et sans qu'ils soient necessaires, que toutes les discussions relatives aux salaires et conditions d'engagement des gens de mer, et toutes
[*662] les contestations entre les gens de l'equipage, *ou entre eux et
leurs capitaines, ou entre les capitaines de divers batiments nationaux, soient terminees par les consuls.
c' Ii est egalement reconnu que la juridiction territoriale n'est pas comp6tente h l'egard des delits qui se commettent a bord entre hommes de
l'equiTage; et que dans ce cas, comme il s'agit de la discipline interieure
du navire, l'autorite locale ne doit pas s'ingerer, toutes les fois que son
secours n'est pas reclam e, ou que la tranquillite du port n'est pas compromise (ce principe est egalement reconnu en France par une decision du
conseil d'Etat, approuvee le 20 Novembre, 1806, et par une ordonnance
du 29 Octobre, 1833.)
"' Les consuls connaissent done de tons les diff6rends survenus, dans le
ressort de leur departement, entre les capitaines, matelots et autres individus embarques sur les navires de commerce de leurs pays, sauf aux
consuls i permettre aux plaignants de recourir a qui il appartiendra,
suivant les circonstances, dans le cas ou ils ne pourraient rendre justice
par eux-me mes.
c"Les consuls ne peuvent juger definitivement en matiRre criminelle
que les affaires ouf il n'y a pas lieu de prononcer des peines afflictives.
" Les peines de simple correction seront prononcees par eux conform6ment aux lois sur la police de la navigation.  Mais s'il s'agissait d'un
crime ou delit commis par quelques gens de mer, ou il peut echoir des
peines qui, suivant les lois de la police sur la navigation, sont censees
afflictives, les inculp6s seraient arretes et renvoyees en Grece par le premier batiment Grec, etc.  L'inculpe, dans ce cas, serait accompagne
d'une expedition des pieces de la procedure, adressee a l'autorite Grecque
du lieu de la destination.
(t) De Martens, Guide Diplomatique, t. i. pp. 245-6, n.




APPENDIX.                             479
"c Si le prevenu s'est enfui du navire, son arrestation definitive et sa
detention sont des actes de pouvoir qui ne peuvent etre ex6cutes que par
les agents de l'autorite locale.  Dans cette circonstance le consul transmet sa demande par 6crit aux officiers competents, qui, apres avoir prevenu la justice, lui donneront aide pour faire les recherches necessaires
et operer l'arrestation de l'inculp6 d'apres les formes etablies dans le lieu
ou prescrites par les traites.
"c Les consuls exercent amicablement la juridiction sur les negociants et
entre nationaux.
" La juridiction commerciale des consuls, pour causes ktrangeres h la
criminalit6 sera reglee d'apres le code de commerce Frangais, admis en
Gr ce."
*No. 5.                         [*663]
DECISIONS IN THE FRENCH COURTS.
Tribunal Civil de la Seine (IVme Chambre.)
(Pr6sidence de M. Perrot de Chezelles.)
Audience du 4 Aoit.
CONSUL ETRANGER. -ARRESTATION  PROVISOIRE.-SA ISIE  CONSERVATOIRE. (u)
"c I. LE COMTE D'ABAUNZA, Marquis de Fuente Hermosa, Consul de
l'Uraguay, habite, depuis plusieurs annees, la France en cette qualit6,
et s'y est marie.
Il est poursuivi par M. Abrassart, marchand de meubles, pour une
creance s'elevant a; plus de 5,000 fr.
"N M. Abrassart, se fondant sur les dispositions de la loi de 1832, relative h la contrainte par corps h l'6gard des etrangers, a obtenu de M. le
president du Tribunal une ordonnauce, en vertue de laquelle il a fait
arr'ter et incarcerer son debiteur.
"i M. d'Abaunza a forme une demande en main-levee de l'ecrou, et la
4e Chambre avait a statuer sur le mn6rite de cette demande.
" Me Jules Favre s'est presente pour la soutenir dans l'interdt de M.
d'Abaunza,,, Il a developpe a cet effet plusieurs moyens:" l1o M. d'Abaunza, comme consul, est inviolable, et ne peut etre soumis k la contrainte par corps.
it 20 II est etranger sans doute, mais, depuis plusieurs ann6es il a etabli
son domicile en France, et c'est seulement h l'etranger non domicilid que
s'applique la loi de 1832.
cc3~ On ne peut l'assimiler i un debiteur forain, et des-lors, une saisie
conservatoire ne pouvait etre pratiquee "a son prejudice.
"i Me Bochet, avocat de 3I. Abrassart, a combattu ces divers moyens.
(u) Gazette des Tribunaux, August 6, 1842. Num6ro 4783.




480   PHILLIMORE ON INTERNATIONAL LAW.
et 11 a soutenu, en premier lieu, qu'il fallait, quant h l'inviolabilite de
la personne, distinguer entre les ambassadours et les consuls: les premiers
seuls sont inviolables quand ils ont 6te regus et accredites, les seconds ne
le sont pas.
" En second lieu, pour etre affranchi de la contrainte par corps l'Ntranger doit avoir obtenu du gouvernement l'autorisation d'6tablir son domicile en France.
664]   *"En troisieme lieu, le debiteur etranger, qui peut d'une
664   moment  l'autre quitter le sol qu'il habite pour transporter sa
residence ailleurs, est un veritable debiteur forain, et comme tel soumis
aux dispositions de l'article 822, du Code de procedure civile.
N M. le substitut Meynard de Frank, reproduit et discut6 avec me'thode
et clarte les divers argumens des parties.
i" S'appuyant de l'autorite de Merlin et de celle de la jurisprudence,
il a fait ressortir la diff6rence de position qui existe entre les ambassadeurs, ministres, envoyes, residens, charges d'affaires, et les consuls.
"( Les consuls des nations etrangeres,' a dit ce magistrat,'sont en
France ce qu'ils sont dans tous les Etats de 1'Europe, des protecteurs,
quelquefois juges de marchands de leur nation, d'ordinaire meme des
marchands que l'on envoie non pour representer leur prince aupres d'une
autre Puissance souveraine, mais pour proteger leurs compatriotes en ce
qui regarde le n6goce, souvent aussi pour connaitre et decider des diff&rends qui peuvent s'elever entre eux au sujet de ces sortes d'affaires.
"'I1 n'y a pas de consuls, meme parmi ceux a qui des traites expres
attribuent la qualit6 de juges, qui aient, B l'instar des ambassadeurs, le
caractere representatif, d'oiu decoule essentiellement l'independance de
l'autorite locale.,"'Aussi, quoiqu'il soit de regle constante qu'un ambassadeur ne peut
etre traduit devant les Tribunaux du pays out il reside comme-tel pour
raison des dettes qu'il a contractees envers les habitans de ce pays, il est
certain qu'il en est autrement des consuls, qui tous les jours sont cites
dans nos Tribunaux a, la requete des Frangais envers lesquels ils se sont
oblig6s.'  (Aix, 14 Aofit, 1829.-Paris, 26 Mars, 1840.-28 Avril,
1841.)
"c M. l'avocat du Roi s'explique ensuite sur la seconde question relative a la mani~re dont l'etranger doit avoir son domicile etabli en France
pour echapper "a la contrainte par corps.
" Analysant et combinant d'une part les dispositions des lois de 1807
et de 1832 sur la contrainte par corps, de l'autre les diverses decisions des
Cours sur l'application de ces lois, le ministere public en conclut que
l'autorisation du gouvernement n'est pas rigoureusement.necessaire, et
quil' appartient aux Tribunaux d'apprecier les circonstances d'aprcs lesquelles l'6tranger doit etre considere comme ayant, ou non, son domicile
en France.  (Cassation, 20 Aout, 1811.-6 Fevrier, 1826.-15 Mars.
1831.)
"M. l'avocat du Roi estime que, dans l'espece, M. d'Abaunza qui
reside en France depuis 1833, qui s'y est marie, qui y est attache comme
consul de l'Uraguay, justifie suffisamment qu'il y a son domicile, et que
sous ce rapport, il doit etre affranchi de contrainte par corps.




APPENDI)IX.                            481
cc I1 ne saurait, par la mnme raison, etre considere comme un debiteur
forain, et des-lors la saisie conservatoire pratiquOe sur lui est nulle.
*" Apres en avoir d6liber6, le Tribunal: —
" Attendu que si les agens diplomatiques jouissent de certaines immunites, c'est parce qu'ils representent leur gouvernement vish-vis d'un autre gouvernement, mais que les simples consuls ne peuvent,
sous ce rapport, pretendre a aucune assimilation, puisqu'ils ne sont que
des fonctionnaires de16gu6s pour proteger et regler les interets priv6s de
leurs nationaux;
4 c Qu'ainsi  la  qualite  d'agent  consulaire, que reclame Carlier
d'Abaunza, ne saurait l'affranchir de l'exercice des poursuites dirigees
contre lui par Abrassart;
",Attendu  que la residence prolongee d'un etranger et meme son
mariage en France ne sauraient lui faire obtenir les droits resultant de
l'6tablissement du domicile, qui ne peut avoir lieu que dans les termes
prevus par l'article 13, du Code civil, c'est-ia-dire avec l'autorisation
royale;
"'Que, suivant les termes de l'article 16, de la loi du 17 Avril,
1832, un 6tablissement du commerce ou la propriet6 d'immeubles sur le
territoire Frangais, qui supposent dans ces deux cas une longue residence,
n'ont pour effet que de mettre l'etranger a l'abri d'une arrestation provisoire, mais ne l'affranchissent pas de la contrainte par corps exerc6e
dans les termes de l'article 14, de la mutme loi, et qui est la consequence
de la qualite d'etranger.
"'  Deboute Carlier d'Abaunza de sa demande afin de rmise en liberte
et de nullit6 d'ecrou, etc.'"'
Cour Royale de Paris (II2T;e C(hambre.)
(Presidence de M. Simonneau.)
Audience du 28 Avril.
LIQUIDATEUR CHARGE DE GERER. —-ACTES DE GESTION. —ACTION PElRSONNELLE. —QUALITE DE CONSUL.-CONTRAINTE PAR CORPS.(x)
1~ Le liquidateur d'une societea, charge' en outre de ge'rer et administrer
l'etablissement social sous sa responsabilite personnelle, est-il personellement tenu et par corps des engagemens par lui souscrits?  (Oui.)
2~ La qualite de consul d'une Puissance e'trangere dont ce liquidateur
serait revetu, le soustrairait-elle i la contrainte par corps?  (Non.), AINSI juge par l'arret suivant:"' La Cour, en ce qui touche l'appel principal.
*c"  Considerant qu'Hermann  Delong n'a pass e6t seulement  666]
nomme liquidateur, mais qu'il a 6t6 charge de gerer et administrer  666
l'etablissement sous sa responsabilite personnelle; qu'il a accepte cette
double mission et a fait des actes de gestion.
(x) Gazette des Tribunaux, May 9, 1841. Num6ro 4390.




482   PHILLIMORE ON INTERNATIONAL LAW.
"' En ce qui touche l'appel incident de Boul16 et Filon.
"'cConsiderant que, quand Delong justifierait de sa qualit6 de consul,
~ette qualite ne lui donnerait pas le caractere d'agent diplomatique, et
qu'il ne jouirait pas des immunites aceord6es a ce titre; que par consequent, Delong pent etre soumis k la contrainte par corps.
"'  Confirme sur l'appel principal, infirme sur l'appel incident.'
"(Plaidans: Me Poulain pour Hermann Delong appelant, et Me
Durand-St-Amand pour Boulle et Filon, int.)
Appeal in the Case of D'Abuanza.
Cour Royale de Paris (Ilmne Chambre.)
(Pr6sidence de M. Algier.)
Audience du 25 Aout.
CONSUL.-CONTRAINTE PAR CORPS. —DOMICILE DE L ETRANGER DEBITEUR FORAIN.(y)
10 Les consuls etrangers, sans mission  diplomatique, ne participent
point aux> immunite's dont jouissent les ambassadeurs ei envoye's des
Puissances e'trangeres; en tous cas, ils ne peuvent exciper de leur
gualite' devant les Tribunaux qu'autant qu'ils ont regu l'exequatur du.
gouvernement Fran9ais.
2~ Une residence prolongee en France, un e'tablissement par mariage,'ne suffisent pas pour constituer en faveur de'e'tranger un domicile
le'al de nature a l'affranchir de la contrainte par corps; le domicile
exige' par l'article 14, de la loi du 17 Avril, 1832, ne pent e'tre acquis
gu'aux conditions imposees par l'article 13, du Code civil.
3~ L'e'tranger non domicilie en France, et qui n'ypossede ni immeuble,
ni e'tablissement, peut e'tre conside're comme de'biteur forain dans le
lieu me'me oi il a e'tabli sa residence, et est des-lors passible de saisie
conservatoire.
"c M. CARLIER D'ABAUNZA, Marquis de la Fuente Hermosa, Espagnol
de naissance, habite Paris depuis 1833. Il n'a obtenu'a aucune epoque
l'autorisation du roi d'etablir son domicile en *France; mais
[*667] il s'est mari6 a Paris, et a continu6 d'y resider sans interruption.
Sans profession jusqu'alors, M. Carlier d'Abaunza a et6 pourvu en 1840
du titre de consul-gen6ral de la republique orientale de l'Uraguay, et
quoiqu'il  n'ait point encore obtenu d'exequatur du gouvernement
Frangais, il serait en ce moment, d'aprbs sa pretention, charge des fonctions de ministre plenipotentiaire de l'Uraguay, en l'absence du titulaire.
C'est dans ces circonstances que M. Carlier d'Abaunza a e6t incarce6r
provisoirement en qualit6 d'6tranger, et que le mobilier garnissant son
appartement a et6 frappe d'une saisie conservatoire, a la requete de M.
Abrassart, son tapissier, creancier d'une somme assez importante pour
travaux et fournitures de son etat.
(y) Gazette des Tribunaux, September 5 and 6, 1842. Numero 4809.




APPENDIX.                              483
c Sur la demande en condamnation et en validite de la saisie form6e
par le cr6ancier, M. d'Abaunza a form6 reconventionnellement une
demande en nullite de l'ecrou et de la saisie conservatoire, se fondant 1~
sur la qualit6 de consul-general de l'Uraguay, et sur l'inviolabilit6 qu'elle
doit assurer' sa personne; 2~ sur sa residence prolong6e en France et
le domicile de fait et d'intention qu'il soutient y avoir acquis; 30 enfin,
sur l'exageration du prix des fournitures et la dissimulation des h-comptes
payes.
" Sur ces contestations, dont nous avons deja rendu compte dans la
Gazette des Tribunaux, lorsqu'elles se sont pr6sentees en premiere
instance, est intervenu le jugement suivant:"c'Attendu que si les agens diplomatiques jouissent de certaines
immunit6s, c'est parce qu'ils representent leur gouvernement. vis-a-vis
d',un autre gouvernement, mais que les simples consuls ne peuvent, sous
aucun rapport, pr6tendre a aucune assimilation, puisqu'ils ne sont que
des fonctionnaires del1gu6s pour prot6ger et regler les int6rets prives de
leurs nationaux;'i Qu'ainsi la qualite d'agent consulaire que reclame Carlier d'Abaunza
ne saurait l'affranchir de l'exercice des poursuites dirig6es contre lui par
Abrassart;
"', Attendu  que la residence prolongee  d'un  etranger, meme son
mariage en France, ne sauraient lui faire obtenir des droits r6sultant de
l'etablissement du domicile, qui ne peut avoir lieu que dans les termes
prevus par l'art. 13, du Code civil, c'est-h-dire avec l'autorisation royale;
"  Que suivant les termes de l'art. 16, de la loi du 17 Avril, 1832,
un etablissement de commerce ou la propri6t6 d'immeubles sur le territoire Frangais, qui supposent dans ces deux cas une longue r6sidence,
n'ont pour effet que de mettre l'etranger a l'abri d'une arrestation provisoire, mais ne l'affranchissent pas de la contrainte par corps exerc6e
dans les termes de l'art. 14, de la meme loi, et qui est la consequence
de la qualite d'etranger.
"c'En  ce qui touche la saisie conservatoire formee sur le mobilier
d'Abaunza;
"'c Attendu que sa qualite d'etranger etant etablie, le sieur Abrassart
*avait le droit de former une saisie conservatoire sur le mobilier  *668
de son debiteur, qui doit etre consider6 comme debiteur forain;
"' Le Tribunal deboute Carlier d'Abaunza de sa demande en nullite
d'ecrou; le condamne par corps a payer A Abrassart la somme de 2,700
francs, a laquelle le Tribunal reduit le montant des fournitures faites;
declare la saisie conservatoire bonne et valable, etc.'
"Appel.
"Me Jules Favre, pour M. Carlier d'Abaunza, a soutenu que soit
comme consul, soit comme 6tranger domicili6, le sieur Carlier d'Abaunza
etait affranchi de la contrainte par corps prononcee par la loi du 17
Avril, 1832.
"' La personne des agens diplomatiques,' a dit le defenseur,'est
inviolable.  C'est un privilege qui resulte de leur caractere meme, et
de l'autorite qui leur est conf6ree par leurs lettres de creance.  Les
publicistes donnent pour raison de cette inviolabilit6 qu'on pourrait leur




484   PHILLIMORE ON INTERNATIONAL LAW.
imputer des crimes s'ils pouvaient etre punis pour des crimes; qu'on
pourrait leur supposer des dettes s'ils pouvaient etre arret6s pour dettes.
I1 faut done suivre vis-a-vis des ambassadeurs les regles tir6es du droit
des gens, et non celles qui d6rivent du droit politique.'  (V. Wicquefort; M. Pardessus, 1448; et un decret de la Convention du 13 ventose
an II.)
i" Ce principe pose, le d6fenseur s'efforce de prouver que le titre de
consul-g6neral, doent est revetu son client, suffit pour assurer l'inviolabilite
de sa personne, ind6pendamment de l'exequatur qu'il avoue n'avoir point
encore ete obtenu par M. Carlier d'Abaunza.
" En second lieu, Me Jules Favre s'appuie sur l'autorit6 de Merlin pour
soutenir que les Tribunaux out plein pouvoir pour decider d'apres les
circonstances, si la residence prolongee d'un etranger en France n'equivaut pas au domicile exigie par les lois do 1807 et de 1832 pour affranchir
l'etranger de la contrainte par corps.  II cite par induction deux arrets
de la Cour de Cassation des 20 Aouft, 1811, et 6 F6vrier, 1826, un arr t
de la Cour de Paris du 15 Mars, 1831.
"' Enfin,' dit le d6fenseur,' si l'habitation continue de l'etranger suffit
pour lui conf6rer un domicile suffisant au point de vue de la contrainte
par corps, on ne peut, sans torturer le sens de la loi, considerer 1'etranger
dans le lieu mneme de sa residence comme un debiteur forain.'
GMe Bochet, pour M. Abrassart, a reproduit les argumens de la
sentence.
- " M. Carlier d'Abaunza,' a dit le d6fenseur,' se pr6vaut d'immunit6s
auxquelles il n'a aucun droit. S'il a le titre de consul de l'Uraguay, il
n'en a jamais exerce6 lgalement les fonctions, en supposant qu'il les ait
jamais exereees, par la raison que le gouvernement *Frangais lui
a refuse l'exeguatur.  En  effet, M. le ministre des affaires
etrangeres a certifi6 cc fait dans une lettre adress6e, a l'occasion du
proces, a M. le procureur du Roi, et a ajoute que M. d'Abaunza n'avait
aucun droit aux privileges dent jouissent les agens diplomatiques.  Soutenir que le refus d'exequatur est chose indifferente, et que les seules
lettres de creance, dent M. Carlier penut  tre porteur, suffisent pour lui
assurer les immunites des envoyes des Puissances 6trangeres, c'est dire
qu'un  gouvernement etranger aurait le droit d'installer chez nous, et
malgre nous, un de ses nationaux, et de l'affranchir des lois qui r6gissent
tous les strangers en France.
" ( D'ailleurs,' ajoute le defcnseur,' un consul n'est pas un agent diplomatique. (V. Yattel, Droit des Gens, liv. 4, ch. 5: ordonnance de
1681; cassation, 13 vendemiaire an IX; Aix, 14 Aout, 1829; Paris,
28 Avril, 1841.')
"- Sur le second moyen, le defenseur invoque l'autorit6 de tous les
auteurs, Merlin excepte et deux arrets de la Cour de Paris, des 16 Aoft,
1811, et 2' Mai, 1834, pour etablir qu'en matiere de contrainte par corps
le seul domicile dont puisse exciper l'etranger en France, est celui qu'il
acquiert conformement a l'article 13, du Code civil, O'est-a dire avee
l'autorisation du roi.  II soutient, par les memes motifs, que l'6tranger
qui n'a pas de domicile legal en France, et qui n'y possede ni immeubles
ni ktablissement de commerce, doit etre assimil6 au debiteur forain.




APPENDIX.                             485
" La Cour, sur les conclusions conformes de MI. l'avocat-general Boucly,
a statu6 en ces termes:"''Considerant que si Carlier d'Abaunza a requ de la republique de
1'Uraguay une commission de consul-gen6ral a Paris, il est certain qu'il
n'a pas obtenu l'exequatur du gouvernement du roi; que debs-lors il n'est
pas fond6 h pratendre aux prerogatives et immunitds qui peuvent appartenir aux consuls;,,Considdrant que l'appelant no justifie pas qu'il soit domicili6 en
France;
",  En ce qui touche la saisie foraine:
"'Adoptant les motifs des premiers juges,'c (Confirme.'"
*APPENDIX  VII.  PAGE 438.                  [*670]
INTERNATIONAL RELATIONS OF FOREIGN SPIRITUAL POWERS WITH THE
STATE.
No. 1.
Memoir of D'Aguesseau upon the Royal Jurisdiction over a Cardinal
who is a French Subject.(z)
Pre'cis du Memoire sur la Juridiction Royale.
c SI la nature n'a point fait naitre un cardinal independant de l'autorit6 du roi, la religion ne le soustrait pas davantage a la puissance de
son prince.
" Doe quelque privil6ge que la Cour de Rome ait voulu flatter les ecclesiastiques pour se les assujettir entierement, le droit est certainement du
c'te des princes, soit que l'on considbre que les eccl6siastiques ne cessent
pas d'etre honmmes et citoyens en devenant eccl6siastiques, soit que l'on
examine la nature de la puissance seculiere, qui seroit imparfaite si elle
n'6toit pas universelle, par rapport a la fin pour laquelle elle est etablie,
et qui ne se suffiroit pas pleinement h elle-meme, s'il falloit qu'elle Mfit
obligeo de demander la punition d'un de ses sujets a une autre puissance.
", Si le droit naturel est pour les princes, il n'y a que le droit divin
qui ait pu y deroger; et ce droit divin ne peut se trouver que dans l'ancienne on dans la nouvelle loi.
", Or, ni l'une ni l'autre ne donnent aucune atteinte au pouvoir des
princes sur les ecclesiastiques dans les matieres temporelles.
" Au contraire, l'une et l'autre le confirme, et surtout la loi nouvelle,
la doctrine et l'exemple de JBsus-Christ, la conduite des Apotres, les
maximes qu'ils ont enseign6es sur l'obeissance due aux princes, l'interpretation des peres de l'Eglise, la tradition la plus pure et la plus ancienne,
la soumission des plus grands eveques, des patriarches, des Papes memes,
sont autant de preuves eclatantes qui font voir que le droit des princes a
plutot ete augmente que diminu6 par les principes du Christianisme, et
(z) (Euvres de D'Aguesseau (ed. Paris, 1788,) t. v. p. 337.




486   PHILLIMORE ON INTERNATIONAL LAW.
que ce qui n'dtoit auparavant qu'un droit humain et naturel, est devenu,
depuis l'etablissement de la religion, un droit divin, et un prdcepte positif
de la loi nouvelle.
" De ces principes, il est ais6 de conclure que si l'Eglise a quelque
privilege en cette matiere, elle le tient tout entier de la grace
*et de la protection des souverains, qu'ils peuvent l'accorder ou
ne pas l'accorder, l'Ntendre ou le limiter ia leur gre, le r6voquer, le suspendre, le temperer comme il leur plait.
"' Ainsi l'on fait sentir les empereurs Romains, auteurs de ce privilege,
soit par les termes dans lesquels ils l'ont accord6, soit par les exceptions
ou les restrictions qu'ils y ont ajoutees, et surtout, par la c6lebre distinction du crime ecclesiastique et du crime commun ou purement politique.
"4 L'Eglise a applaudi aux loix de ses empereurs, et surtout a celles
de Justinien, qu'elle a canonis6es, pour ainsi dire, en les inserant dans
les collections de ses decrets.
"O Ces loix ont surv6cu a la destin6e de l'Empire  Romain; la France,
surtout, les a regues et observees sous la premiere race de nos rois, comme
1'Eglise l'a reconnu elle-meme dans un concile tenu en ce tems, et comme
des historiens dont le temoignage n'est pas suspect, puisqu'ils etoient
eveques, l'attestent 6galement.  Si dans la suite, et principalement vers
la seconde race de nos rois, la piete des princes, l'interet du clerg6 l'autorite des eveques qui s'attribuoient jusqu'au droit de deposer les empereurs;
le mauvais usage, si on l'ose dire, que nos rois avoient introduit de se
rendre eux-memes accusateurs des 6veques coupables de Leze-Majest6 (ce
qui r6pandoit une suspicion general sur tous les Tribunaux seouliers,)
out paru ebranler les anciennes maximes, et donner lieu aux defenseurs
de la juridiction eccl6siastique d'en avancer de nouvelles, que les premiers siecles de l'Eglise avoient ignorees; si les fausses decr6tales qu'une
imposture trop heureuse fit paroitre en ce tems-la, appuyerent et consacrerent en queique maniere cette nouvelle doctrine; si la t6merite des
compilateurs des loix ecclesiastiques et politiques, alla jusqu'a' alterer et
a tronquer les loix des empereurs, en les citant d'une maniere infiddle;
on a bientot reconnu et la fausset6 des principes, et le danger des consequences de ce privilege abusif; on a senti qu'il tendoit d'un c8t6 a faire
jouir les clercs d'une impunit6 pernicieuse i la soci6te, et de l'autre a
les rendre sujets du Pape qui pretendoit s'eriger par la, une monarchie,
meme temporelle, sur les ecclesiastiques r6pandus dans tous les Etats
des princes Chretiens.' On s'apergut done du piege qu'on avoit tendu i la pie6t des princes
sous le voile de la religion. On revint ia la sagesse et ia la simplicite de
l'ancien droit.  Ce retour fut marque par plusieurs traits 6clatans, et
entr'autres par des lettres d'abolition qu'un Arche6veque de Bourges fut
oblig6 d'obtenir du roi, pour avoir avance dans des statuts synodaux, que
les clercs ne pouvoient etre ni poursuivis, ni punis civilement ou extroordinairement, par un juge s6culier.
" Ainsi on retablit pleinement la distinction que les empereurs Romains
avoient faite entre le crime ecclesiastique et le crime politique.
[*672] Les Papes mmos fure.nt oblig's d  donner lieu au.r6tablisse



APPENDIX.                              487
ment de cette distinction, en reconnoissant qu'il y avoit certains cas enormes qui faisoient perdre aux coupables le privilege clerical.
" C'est surtout au crime de Lkze-Majeste qu'on peut appliquer cette
regle, quoique la moderation de nos rois les ait souvent portes a attendre
le jugement du Tribunal Ecclesiastique, avant que de faire condamner,
dans les Tribunaux seculiers, les clercs accuses de ce crime.
"Les eveques n'ont rien qui les distingue en cette matiere des ministres d'un ordre inf6rieur.
" C'est une vWrite reconnue par ceux memes qui sont le plus opposes
en ce point h l'autorite des rois, puisque les principes ge6nraux qu'ils
etablissent, comprennent les moindres clercs, comme ceux du premier
ordre, et que c'est pour cette raison, qu'on a donne au privilege dont il
s'agit le nom de privilege clerical.
" Aussi les princes se sont toujours maintenus dans 1 possession de
connoitre des crimes commis par les eveques, comme de ceux qui avoient
6te commis par d'autres ecclesiastiques.
(" On peut rapporter les preuves de cette possession / quatre tems principaux.
",Le premier, depuis la venue de Jesus-Christ, Jusqu'au rogne des
enfans de Constantin.
" Le second, depuis ce rigne jusqu'au commencement de de la seconde
race de nos rois.
", Le troisieme, depuis la seconde race, jusques vers le commencement
de la troisieme.
" Et le dernier, depuis la troisieme race jusques a present.
" De ces quatre tems, le troisieme seul est douteux, i cause des mauvaises maximes qui commencerent h s'introduire alors, sur l'autorite des
princes, et sur celle du Pape.
"On trouve dans les trois autres des preuves certaines du droit des
princes.  Plusieurs exemples d'eveques, de patriarches, de Papes memes,
juges par les empereurs, ou par les Tribunaux seculiers, l'etablissent;
les exemples memes des jugemens ecclesiastiques rendus sur des crimes
publics dans ces deux premiers tems, la confirment, puisqu'on voit que
c'est par l'autorite des princes que les e6vques en ont ete etablis juges.
-" Sans parler de tout ce qui s'est passe sous les empereurs Romains,
et sous les deux premieres races de nos rois, on trouve pres de vingt
exemples d'6vedques accuses dans des Tribunaux sdculiers, six ou sept
eveques condamn6s'a des peines lgeres, a la verite, mais qui ne prouvent
pas moins pour cela, l'autorit6 legitime de la Puissance qui les condamnoit.
6" S'il y a plusieurs proces criminels commences coentre des eve'ques qui
n'ayent pas et6 suivis d'un jugement d6finitif, la religion des princes, la
conjoncture des tems, les pr6tentions des Papes, par rapport aux jugemens canoniques qui retardoient les jugemens  s6eculiers, parce
qu'ils devoient les pr6cider en ont ete les principales causes, sans [673
qu'on en puisse tirer aucune consequence contre le droit incontestable
des rois.
" Si l'on passe de la personne des dveques a celle des cardinaux,




488    PHILLIMORE ON INTERNATIONAL LAW.
le privilege des derniers ne paroitra pas mieux etabli que celui des
premiers.
"On ne penut les considerer que comme ministres de l'Eglise, ou
comme ministres d'un prince etranger.
t"Si on les envisage dans leur etat ecclesiastique, ils ne sent que
diacres, pretres, ou eveques, et par consequent ils ne peuvent de droit
avoir de plus grand privilege que ceux qui sent dans le meme degre de
la hierarchie.  L'honneur qu'ils ont d'etre consacres au service de la
premiere Eglise, d'etre 4 present les electeurs des Papes, et les conseillers nes du Souverain Pontife, pent bien les distinguer dans l'ordre de
la puissance ecclesiastique, mais non pas les soustraire h une puissance
d'un autre genre, c'est-a-dire, I l'autoritM temporelle des rois; et quelqu'
61eves qu'ils soient, peuvent-ils preftendre avoir plus de privilege que le
Pape meme, qui tant qu'il n'a pas r6uni la qualite de prince temporel
I celle de chef de l'Eglise, a et6 soumis a la puissance des empereurs.
i" Si on les considere dans leur etat politique comme ministres d'un
prince 6tranger, l'engagement qu'ils contractent avec lui n'etant que
d'un droit purement civil et positif, ne peut rompre les noeuds naturels
et indissolubles qui attachent un sujet I son souverain; toute autre
obligation doit ceder'a ce premier devoir; souvent et presque toujours,
ce que les cardinaux doivent au roi n'est point incompatible avec ce
qu'ils doivent au Pape; mais si ces deux engagemens se trouvent contraires, celui que Dieu meme I forme, doit l'emporter sur celui qui est
l'ouvrage de l'homme.
" Ainsi le supposerent autrefois nos peres, lorsqu'ils faisoient jurer
aux cardinaux de revenir de Rome, aussi-tot que le roi les rappelleroit
aupres de lui.
" Ainsi le Parlement l'a-t-il encore declare de nos jours, lorsqu'il
regut ]e Procureur General, appellant d'une bulle d'Innocent X., qui
defendoit aux cardinaux de sortir de l'etat ecclesiastique, sans la permission du Pape.:" Ainsi l'ont souvent reconnu les Papes memes, lorsqu'ils ont suppos6
qu'un cardinal pouvoit commettre un crime de Leze-Majest6, contre son
prince naturel, et par consequent qu'il ne cessoit point d'etre sujet pour
devenir celui du Pape; car il n'y a qu'un sujet qui puisse commettre un
crime de Leze-Majest6.
9"I1 ne faut done pas s'etonner apres cela, si depuis meme que cardinaux sont parvenus au point de grandeurs oui nous les voyons aujourd'hui,
on n'a point doute en France que le roi ne ffit en droit de leur faire faire
leur proces, lorsqu'ils commettroient un crime, et surtout un crime de
Leze-Majest6.
[*674   Le Cardinal de Constance fut accuse sous Louis XI., et
[*674] condamn6e I une amende.
"'Le Cardinal Ballue fut accuse et arret6 prisonnier sous le meme
prince.  Dans toute negociation qui se passa, sur ce sujet, entre le Pape
et le roi, la France soutint hautement les memes maximes qu'elle
soutient encore aujourd'hui, le pouvoir supreme des rois dans les
matieres temporelles, etabli par le droit divin, tant sur les ecclesiastiques,
de quelque Etat gu'ils soient, que sur les laics, Ia distinction du delit




APPENDIX.                            489
commun, et du cas privilegie, dejl si ancienne dans le royaume, qu'on
ne se souvenoit point d'avoir jamais vu pratiquer le contraire; enfin
l'atrocite du crime de Lkze-Majeste, qui fait cesser toute exemption, et
tout privilege.
" Le Cardinal de Chatillon fut non seulement accus6, mais condamn6,
sous le regne de Charles IX., par un arret celebre du Parlement, et si
la peine ne paroit pas repondre au titre de l'accusation; il n'en faut
accuser suivant toutes les apparences, que la conjoncture du tems dans
lequel l'arret fut rendu; mais la competence du Tribunal n'en est pas
moins bien etablie.
"4La mort du Cardinal de Guise, et la detention du Cardinal de
Bourbon sous Henri III., donnarent occasion d'examiner a fond cette
matiere; et trois grands prelats, le Cardinal de Joyeuse, le Cardinal
d'Offat, l'Eveque du Mans, justifi-rent la conduite d'Henri III., par des
principes qui sont encore plus veritables, quand on les a appliques h une
accusation instruite dans toutes les formes.
" Le Cardinal de Sourdis decre6t de prise de corps par le Parlement
de Bourdeaux sous les yeux de Louis XIII., et avec l'approbation
expresse de ce prince; enfin le Cardinal de Retz accus6 par ordre du roi,
en vertu d'une commission adressee au Parlement, sont autant d'exemples
qui prouvent la possession de nos rois et de nos magistrats sous leur
autorite.
"' Si des considerations de politique, si des raisons d'Etat, et souvent
des conseils inspires par des int6rets particuliers, ont suspendu quelquefois ces grandes et importantes affaires, l'autorit6 du roi n'y a souffert
aucun prejudice; puisqu'apres tout, il ne faut pas etre moins competent
pour instruire un proces que pour le juger, et pour decreter un coupable,
que pour le condamner.
" Ainsi la qualit6 de cardinal n'effagant point les engagemens naturels,
y ajoute encore ceux de la reconnoissance, et un cardinal qui viole les
uns et les autres, merite d'etre poursuivi, et comme rebelle h l'6gard de
son prince, et comme ingrat k l'egard de son bienfaiteur.
" Si la place qu'il tient dans le Sacre College lui attribue, outre cela,
la qualite d'eveque d'un diocese etranger, cette qualit6 ne peut lui
donner un privilege plus grand quo la dignite meme de cardinal; k la
verite, s'il commettoit une faute comme Eveque d'Albano ou d'Ostie, il
n'auroit que le Pape pour juge; mais *des le moment qu'il s'agit
d'un crime de Leze-Majest& commis dans le royaume, le roi seul  675
peut venger sa majest6 meprisee; et il aviliroit ce caractere auguste,
qu'il n'a requ que de Dieu, s'il etoit oblige d'aller demander justice
contre un sujet infidele, a un prince 6tranger."
DECEMBER, 1855. —32




490      PHILLIMORE  ON INTERNATIONAL LAW.
*No. 2.
CORRESPONDENCE OF THE ENGLISH SECRETARY OF STATE FOR FOREIGN
AFFAIRS, RESPECTING THE AFFAIRS OF ROME, PRESENTED TO PARLIAMENT 15TH JUNE, 1849.
No. 1.
Viscount Palmerston to the Marquis of AXormanby.
"Foreign Office, January 5, 1849.
"t (Extract.)
"i IN regard to the present position of the Pope, I have to observe
that no doubt it is obviously desirable that a person who in his spiritual
capacity has great and extensive influence over the internal affairs of
most of the countries in Europe, should be in such a position of independence as not to be liable to be used by any one European Power as
a political instrument for the annoyance of any other Power; and in
this view it is much to be wished that the Pope should be sovereign of a
territory of his own.
i" On the other hand, if it be admitted as a general principle that
questions and differences between the people and the sovereign of each
State should be left to be settled by those parties without the interference
of any foreign armed force, it is not easy to see, in the peculiar position
of the Pope with regard to his subjects, what should make the Roman
States an exception to this general rule.
", The main circumstance in which the relations between the Pope and
his subjects differ from the relations which subsist between other sovereigns and their subjects, is that the Pope does not reign either by hereditary right or by the choice of the people whom he governs, but that
he is elected by the College of Cardinals, a body which is not in its
constitution national, which is I believe self-elected, and of which about
a half are not natives of the State for which they choose the sovereign.
"i These circumstances would seem to render it the more incumbent on
the Pope to give to his subjects the requisite securities for good government, and these circumstances would also appear to render it the less
justifiable for any foreign Powers to use armed interference in order to
assist the Pope in maintaining, if he were so disposed, a bad system of
government.
[*676]                      *No. II.
Viscount Palmerston to the Marquis of Normanby.
" Foreign Office, January 28, 1849.
" (Extract.)
t"WITi regard to the proposal made by Austria to France for a
combined military action by Austria, France, and Naples, for the pur



APPEND IX.                           491
pose of re-establishing the Pope in the Roman States, your Excellency
will say that Her Majesty's Government concur with the Government
of France in viewing with much regret this announcement of the
wishes and intentions of the Austrian Government.  Her Majesty's
Government do not pretend to pass judgment in respect to those differences between the Pope and his subjects which led to the retirement of
the Pope to Gaeta; but Her Majesty's Government would upon every
account, and not only upon abstract principle but with reference to the
general interests of Europe, and from the value which they attach to
the maintenance of peace, sincerely deprecate any attempt to settle the
differences between the Pope and his subjects by the military interference
of foreign Powers.
c It appears to Her Majesty's Government, as at present informed,
that those differences are not of such a nature as to preclude the hope
that they might be accommodated by the diplomatic interposition of
friendly Powers, and it is needless to observe how much better such a
mode of settlement would be than an authoritative imposition of terms
by the force of foreign arms.
" With respect to the attitude which Great Britain would in any case
assume in regard to these affairs, your Excellency will say that the
attitude of this country would be that of observation, and that Great
Britain could take no part in such matters beyond expressing, if it
should appear to be necessary, the opinion which Her Majesty's Government might entertain thereupon.
" These affairs, however important in their bearing upon the general:
interests of Europe, do not immediately affect any direct interests of'
Great Britain; and whatever turn therefore these affairs may take, Her'
Majesty's Government do not foresee that it is likely that the course of
these events would afford to the British Government any just reason for;
departing from that passive and observant attitude which the position
of Great Britain in regard to these affairs seems naturally to point out."
*No. III.                       [*677]
Prince Castelcicala to Viscount Palmerston.
"Londra, 2 Felbbrajo, 1849.
"o LE tribolazioni che soffre il sommo Pontefice, piofugo dalla sua capitale e rifugiato in Gaeta, contristano a ragione tutto l'brbe  Cattolico, e
destano l'ansieta e'I desiderio universale di vedere Sua Santith. prestamente restituita alla indipendenza ed alla dignitt primiere.
"I1i Governo di Madrid ha creduto in tal circonstanza prendere una
iniziativa tuttaffatto Cattolica; ha proposto la riunione di un Congresso
onde regolare diffinitivamente i gravi casi di Roma; ha invitato all' uopo
i Governi di Francia, Austria, Due Sicilie, Portogallo, Baviera, Sardegna,
e Toscana, presso i quali tutti il culto dominante e il Cattolico;: ed ha
indicato come possibil sede delle Conferenze, Madrid o qualunque altra
citta Spagnuola sul littorale del Mediterraneo.
Di siffatte cose il Duca di Rivas, Ambasciadore di Spagna presso la.




492   PHILLIMORE ON INTERNATIONAL LAW.
Corte delle Due Sicilie, diede con nota de' 2 dello scorso Gennaio participazione al Governo di Sua Maesth Siciliana.
" Sua Santitt intanto, cui per le convenevoli vie diplomatiche si era
dal Gabinetto Spagnuolo fatta la simil participazione, osservava esser
meglio spediente che il Congresso si' riunisca presso la sua persona, come
principalmente interessata nello affare; osservava che Madrid o qualunque altra citta di Spagna sarebbero forse eccentriche, e mal risponderebbero
alla urgenza delle circostanze ed alla indispensabil rapidita di comunicazioni; ed incaricava il suo Nunzio a Madrid di manifestare a quel Governo
tali sue osservazioni.
"T I1 Re delle Due Sicilie ha applaudito al nobil pensiero di un Congresso,
cui seopo sara di restituire al Capo della Chiesa Cattolica lo indipendente esercizio delle sue altissime e sacrosante funzioni.  Conformandosi
pero, circa la sede delle conferenze, a' desideri espressi da Sua Santith
ha offerto Napoli per punto di riunione, Napoli che delle citta d'Italia
e or la piui tranquilla, ch' e vicinissima a Gaeta, e che or racchiude in
se la maggior parte de' Cardinali del Sacro Collegio e de' piu distinti personaggi della Corte Romana.
", Oltracci6, Sua Maesta Siciliana ha creduto necessario, e formalmente
domanda la intervenzione nello enunziato Congresso dell' Inghilterra,
Russia, e Prussia; la presenza di tali Grandi Potenze essendo troppo
reclamata in una discussione la quale (oltre l'importantissimo oggetto della
*678 igione) potra potentemente *influire su le cose politiche e su la
concordia delle Due Sicilie e della Italia intera.
" I1 Sottoscritto, Inviato Straordinario e Ministro Plenipotenziario della
Maesta Sua presso Sua Maesth Britannica, nel far quindi d'ordine del
son Governo a sua Eccellenza il Visconte Palmerston, Principal Segretario di Stato al Dipartimento degli Affari Esteri, la sopracennata narra.
zione, e nel pregare l'Eccellenza sua di una risposta all' uopo, non omette
rimarcarle che la premura spiegata del Re delle Due Sicilie par la intervenzione dell' Inghilterra e una pruova della fiducia che Sua Maestb
ripone ne' sentimenti amichevoli di un antico alleato, ed e un giusto
omaggio che rende alla saviezza del Gabinetto de St. James.
"' Il Sottoscritto, &c.
"' (Firmato)    CASTELCICALA."
No. IV.
Viscount Palmerston to Prince Castelcicala.
"Foreign Office, February 10, 1849.
" THE undersigned, &c., has the honour to acknowledge the receipt of
the note which Prince Castelcicala, &c., addressed to him on the 2nd
instant, giving an account of what has passed with reference to a proposition
made by the Court of Madrid, that the principal Roman Catholic Powers
should take into their consideration with a view to their settlement the
affairs of His Holiness the Pope, and calling the attention of the undersigned to the fact that the Cabinet of Naples considers it necessary, and
formally demands that England, Prussia, and Russia should take part in
the proposed deliberations, the matter to be treated of, independently of




APPENDIX.                           493
its religious bearing, being one calculated to have a great influence of a
political character.
" The undersigned has the honour to state to Prince Castelcicala in
reply, that the Government of His Sicilian Majesty only does justice to
the Government of Her Majesty in supposing that Her Majesty's Government would feel great pleasure in contributing, as far as they might probably be able to do so, to bring about such an amicable arrangement of
the differences existing between the Pope and his subjects as might enable
the Pope to return to Rome, and might also restore permanent contentment and tranquillity to the Roman States.
" Her Majesty's Government, however, have not received any specific
application on this subject from the Pope; and until *such appli- *679
cation is made, they are unable to say what steps, if any, Her [6791
Majesty's Government might think it expedient to take in regard to
these matters.
" The undersigned, &c.
"' (Signed)    PALMERSTON."
No. V.
Viscount Palmerston to the Marqzuis of Normanby.
"Foreign Office, March 9, 1849.
" (Extract.)," ALTHOUGH Great Britain has not so direct an interest as France has
in the ecclesiastical and political questions which arise out of the present
relations between the Pope and the people of the Roman States, the British
Government nevertheless cannot view those matters with indifference.
Great Britain is indeed a Protestant State, but Her Majesty has many
millions of Catholic subjects; and the British Government must therefore be desirous, with a view to British interests, that the Pope should
be placed in such a temporal position as to be able to act with entire
independence in the exercise of his spiritual functions. Great Britain is
so far distant from Italy that the political events of the Italian Peninsula
cannot have the same direct bearing upon British interests which those
events must exert upon the interests of nearer States; but still as those
events must always have a powerful influence upon matters involving questions of peace or war in Europe, the British Government must necessarily
watch those events with much attention and anxiety.
" The present condition of the relations between the Pope and the
people of his States has therefore been looked at with deep solicitude by
Her Majesty's Government.  It would have been the earnest wish of
Her Majesty's Government, both on general principles and with reference
to the particular circumstances of the case, that the differences between
the Pope and his subjects should have been adjusted by negotiation, either
between the Pope and his subjects directly, or by means of the interposition of friendly P owers. A direct negotiation between the Pope and his
subjects seems now to have been rendered impossible by the course of




494      PHILLIMORE  ON INTERNATIONAL  LAW.
events at Rome, and by the tendency of those counsels which there is reason to think are suggested to the Pope by the persons who surround him at
Gaeta.  But Her Majesty's Government do not see, even in the recent
[*680] occurrences at Rome, any *reason for giving up the hope that
the diplomatic interposition of friendly Powers might still, without any actual employment of military force, bring about such a settlement of differences as would enable the Pope to return to Rome and to
resume his temporal authority; and Her Majesty's Government, deprecating as they do, on principle, the employment of a foreign military
force to settle internal dissensions in a State except in extreme and peculiar cases, would greatly rejoice if the Powers to whom the Pope has
now appealed for assistance to extricate him from his difficulties, were to
try the effect of their moral influence at Rome, before they resorted to
any other more active measures.
"It seems to Her Majesty's Government that a strong and unanimous
manifestation of the opinion of those Powers in support of order on the
one hand, and of constitutional rights on the other, would bring to reason
the minority who now exercise paramount authority at Rome; and would
give courage and confidence to the majority whe have been hitherto intimidated and overborne; and if Great Britain had been invited to be, a party
to these negotiations, and if an invitation to that effect had been accepted
such would have been the course which IHer Majesty's Government
would have recommended that the parties to the transaction should
pursue.
"Her Majesty's Government have learnt with much pleasure that
France has been included in the invitation addressed by the Pope to
some of the Catholic Powers, requesting them to take an active interest
in the present condition of his affairs; and Her Majesty's Government
hope that if there is to be a concert among any of the Powers of Europe
in regard to those affairs, the French Government will not decline the
invitation to be a party thereto.  There are many very obvious reasons
why in several points of view-it would be desirable that these matters
should not be disposed of without the participation of France.
"' Your excellency says that the French Government would have preferred that Sardinia should have been invited to take part in these deliberations.  Her Majesty's Government are entirely of the same opinion.
c" The participation of Sardinia would mitigate the foreign character of
the negotiation, and if a contingency were to arise which should lead to
the employment of any military force within the Roman Territory, Piedmontese troops would for many evident reasons be better suited for such
purpose than the troops of Austria or of any State not belonging to the
Italian Peninsula.
"s The opinion then of Her Majesty's Government upon the points on
which the Government of France has wished to have it is, that it would
be desirable that France should be a party to the proposed deliberations,
and that Sardinia should take part in them also; that it would be desirable that every endeavour should be made to bring about a settlement
between the Pope *and his subjects by negotiation and by moral
[*811  influence before resorting to the employment of force; and that




APPENDIX.                             495
one condition of the reinstatement of the Pope ought to be that he
should engage to maintain in their main and essential provisions the constitutional and representative institutions which he granted to his subjects last year."
No. VI.
The.Marquis of Normanby to Viscount Palmerston.-(Received
March 9.)
"Paris, March 8, 1849.
"t My Lord,' I HAVE the honour to transmit the copy of a note I have received
from  the Apostolic Nuncio, inclosing one which has been addressed
by the Cardinal Antonelli to the Representatives of all friendly Powers,
requesting them to co-operate for the purpose of re-establishing Papal
authority at Rome.
"I have, &c.
"' (Signed)    NORMANBY."
Inclosure 1, in No. VI.
The Apostolic Nuncio to the Marquis of 1Normanby.
"Paris, ce 6, Mars, 1849.
"M. le Marquis,
"c PAR suite des graves kv6nemens qui successivement se sont
accomplis i Rome, le Trls Saint Pere s'est trouve dans la necessite
d'adresser a toutes les Puissances amies du St. Siege une invitation
formelle de cooperer au retablissement de l'autorite du Gouvernement
Pontifical comme seul moyen d'arreter l'anarchie qui opprime les Etats
de l'Eglise; et je suis charg6 par ordre expres de Sa Saintete de transmettre ci-joint a votre Excellence la copie de la note de son Eminence
M. le Cardinal Secretaire d'Etat, en vous priant, M. l'Ambassadeur, de
la porter "a la connaissance du Gouvernement de Sa Majest6 Britannique,
et d'y joindre vos bons officeds pour l'accomplissement des vues du Tros
Saint Pere.
" Sa Saintete aime a esperer qu'elle trouvera dans les dispositions des
Puissances amies un secours efficace qui puisse satisfaire aux vceux, aux
prieres reiterees de l'immense majorite de ses fideles *sujets, *682
demandant tous d'etre soulages des violences et des oppressions [* ]
dont ils sont l'objet de la part d'une faction audace et impie.
("Le Saint Pere qui a ete tres touche de l'interet et des sympathies
que Sa Majeste la Riene d'Angleterre, votre Auguste Souveraine, a bien
voulu lui temoigner par la lettre qu'elle lui a adress6e au mois de Janvier
dernier, est comfortd de la pensee que le Gouvernement de Sa Majeste,
qui s'interesse vivement  l' ordre et a la paix de l'Europe, voudra dans
les circonstances actuelles preter le meilleur concours pour faire cesser




496   PHILLIMORE ON INTERNATIONAL LAW.
un'tat de choses si nuisible k la paix g6ndrale et au bonheur des peuples,
et appuyer de sa puissante influence le concours reclame pour le retablissement du pouvoir legitine du Saint Pere dont independance est plus
que jamais necessaire pour l'exercice de son autorit6 dans le Monde
Catholique.
i" Veuillez, M. le Marquis, je vous prie, transmettre le plus promptement possible ma communication Ba votre Gouvernement, et recevez, &c.
-  "(Signe)    R. ARCHEVEQUE DE NICEE,
"  Nonce AApostoliUue."
Inclosure 2, in No. VI.
GCardinal Antonelli to the Representatives of Fore!ign Powers.
Gaeta, 18 Febbrajo, 1849.
"cLA Santith di nostro Signore, fino dai primordii del suo Pontificato,
non ebbe altro in mira che di prodigare beneficenze verso i suoi sudditi
a seconda dei tempi, provvedendo ad ogni lor miglior bene. In fatti
dopo aver pronunziato la parola del perdono a coloro che per delitti
politici o erano esuli o giacevano nel carcere, dopo aver eretta la Consulta
di Stato ed istituito il Consiglio de' Ministri, accordata per la imperiosa
violenza delle circostanze la istituzione della Guardia Civica, la nuova
legge per una onesta liberta della stampa, ed infine uno statuto fondamentale per gli Stati di Santa Chiesa, aveva egli ben diritto a quella
riconoscenza che i sudditi devono ad un Principe, il quale non ii riguar.
dava che come suoi figli, e non prometteva loro se non un regno di
amore.  Ma ben altro fu il ricambio che ritrasse da tanti beneficii e
condiscendenze loro prodigate.  Dopo brevi dimostrazioni di plauso,
guidate pero da chi gia aveva nel seno le piui ree intenzioni (dimostrazioni
che il Santo Padre con i modi tutti proprii del paterno suo cuore procurb
di far cessare) ben tosto sperimentb l'amaro frutto della ingratitudine.
Violentato egli dalla sfrenatezza di una fazione ad impugnarsi in una
guerra contro 1' Austria, si trovo costretto di pronunciare una allocuzione
n68  el Concistoro dei 19 Aprile dello scorso anno, con la quale
dichiaro al mondo intero che il suo dovere ela sua coscienza nol
consentivano.  Tanto basto perche prorompessero le gi~ predisposte
machinazioni in aperte violenze all' esercizio del suo pieno e libero potere,
costringendolo alla divisione del Ministero di Stato in ecclesiastico e
civile, divisione che non mai riconobbe.
" Si confidava pero il Santo Padre che ponendo ai diversi Ministerii
persone idonee ed amanti dell' ordine, fossero le cose per prendere
migliore andamento, e si arrestassero in parte quei mali che gih minacciavano sciagure.  Ma un ferro micidiale, brandito da mano assassina,
tronco le concepite speranze con la morte del Ministro Rossi.  Da questo
delitto menato in trionfo, si inaugurb impudentemente ib regno della
violenza; si circondo di armati il Quirinale, lo si tento d'incendio, si
esplosero colpi contro gli appartamenti ove dimorava il Sommo Pontifice,
e si ebbe il dolore di vedere che uno dei segretarii ne rimanesse vittima;




APPENDIX.                            497
volevasi infine col cannone aprire a viva forza il suo palazzo, laddove non
cedesse ad ammettere il Ministero che gli veniva imposto.
" Con una serie di fatti si atroci, come a tutti e ben noto, avendo
dovuto soccombere all' impero della forza, si vide il Pontefice nella dura
necessith di allontanarsi da Roma e da tutto lo Stato Pontificio, a fine di
ricuperare quella liberta che gli era stata tolta, e di cui deve godere nel
pieno uso della suprema sua potesta.  Per disposizione della Divina
Provvidenza riparatosi a Gaeta, ed ospitato da un Principio eminentamente Cattolico, circondato da un gran del Sagro Collegio e dai Rappresentanti di tutte le Potenze con le quali e in amichevoli rapporti, non
tardo un momento a fare sentire la sua voce ad annunziare coll' atto
Pontificio del 27 Novembre prossimo passato i motivi della temporanea
separazione dai suoi sudditi, la nullit/h e la illegalith di tutti gli atti
emanati dal Ministero estorto dalla violenza, ed a nominare una commissione governativa purche assumesse la direzione dei pubblici affari durante
l'assenza dai suoi Stati.
", Per nulla apprezzandosi la emanazione de' suoi voleri, e procurandosi
con mendicati pretesti di eludere la loro forza presso la classe inesperta,
si passb dagli autori delle sagrileghe violenze ad attentati maggiori,
arrogandosi quei diritti che al Sovrano solo si appartengono, con l'istituzione di una illegittima rappresentanza governativa col titolo di provvisoria e suprema Giunta di Stato.  Contro il quale gravissimo e sagrilego
misfatto il Santo Padre solennemente protesto, con l'altro suo atto del 17
Dicembre prossimo passato, annunziando non essere quella Giunto di
Stato se non una usurpazione dei sovrani poteri, ne avere percio alcuna
autorita.
"c Si aspettava egli che tali proteste richiamassero ai doveri di fedelth
e di sudditanza i traviati, ma invece un nuovo e piiu mostruoso atto di
palese fellonia, di vera ribellione colmb la sua amarezza.  Tale fu la
convocazione di un' assemblea generale *nazionale dello Stato [
Romano, per stabilire nuove forme politiche da darsi agli Stati
della Santa Sede. Laonde con altro Moto Proprio del 10 dell' ora
decorso Gennajo protestb contro quell' atto, e lo condann6 qual enorme e
sagrilego attentato commesso in prejudizio della sua independenza e
sovranith meritevole dei gastighi comminati delle leggi si divine come
umane, e vieto ad ognuno de' suois udditi il prendervi parte, avvertendoll che chiunque osa attentare contro la temporale sovranitia dei Sommi
Pontefici Romani, incorre nelle censure e specialmente nella scommunica
maggiore, pena nella quale dichiaro essere incorsi coloro eziandio che
in qualunque modo e sotto mentito pretesto hanno violata ed usurpata la
sua autorith.
" Come si accogliesse dal partito, simile protesta e si autorevole condanna, bastera l'accennare che si tento ogni sforzo per impedirne la
divulgazione, si sottopose a gastighi chi osasse istruirne il popolo, chi
non secondasse le loro mire, tuttavia ad onta di si maudita violenza la
maggiorita dei sudditi rimase fedele al proprio Sovrano, e si espose a
sagrificii ed a pericoli ancora della vita, piuttosto che mancare al dovere
di suddito e di Cattolico.  Inasperito maggiormente il partito medesimo
nel vedere contrariati i loro disegni, raddoppiarono in mille modo la




498    PHILLIMORE ON INTERNATIONAL LAW.
violenza ed il terrore, senza riguardo alcuno a condizione o grado, ma
volendosi consumare ad ogni costo questo eccesso di fellonia si ricorse
pure alle arti le pii vili e mercenarie.  Cosi passando di eccesso in
eccesso, con abusare delle stesse beneficenze concesse dal Pontefice, e
specialmente convertendo nella piu ributtante licenza la liberth della
stampa, dopo le piu inique malversazioni per premiare i loro complici e
non piu tollerare la presenza degli onesti e timorati, dopo tanti assassinii
commessi sotto la loro egide, dopo aver disseminato ovunque la ribellione,
il mal costume, la irreligione, dopo aver sedotta tanta gioventui incauta,
non piui rispettando i luoghi sagri e gli asili di pace e di solitudine, ne'
i luoghi stessi di pubblico insegnamento per convertirli in covili della piiu
indisciplinata milizia raccolta da profughi e scelerati di estere contrade,
si vuol ridurre la capitale del mondo Cattolico, la sede dei Pontefici, in
una sede di empieth, atterrando, se fosse possibile, ogni idea di sovranita
in chi dalla provvidenza e destinato a reggere la Chiesa universale, e che
appunto per esercitare liberamente, questa sua autorita. su tutto l'orbe
Cattolico, gode di uno stato come patrimonio della Chiesa; alla quale
vista di desolazione e di strage non pub il Santo Padre non rimanere
profondamente addolorato, commosso altresi dal grido de' suoi buoni
sudditi, che reclamano il sue ajuto, il suo soccorso per essere liberati dalla
piu atroce tirannia.
" La Santita Sua, corn' a palese, poco dopo giunta in Gaeta, sotto ii
giorno 4 Dicembre prossimo passato, diresse la sua voce a tutti li Sovrani
coi quali e in relazione, e dando lor parte del sueo allontanamento dalla
capitale e dallo Stato Pontificio, e delle *cause che lo provocarono, invocava ii loro patrocinio per la difesa dei dominii della
Santa Sede. Ed e pure di dolce soddisfazione il manifestare di avere
presso che tutti amorevolmente corrisposto, prendendo la piiu viva parte
alle sue amarezze, alla penosa sua situazione, offrendosi pronti in suo
favore, ed esternando al tempo stesso sensi ossequiosissimi di devozione
e di attaccamento.
" Nella espettativa di si felici e generose disposizioni, mentre Sua Maestb
la Regina di Spagna aveva con tanta sollecitudine promosso un Congresso
delle Potenze Cattoliche per determinare i mezzi onde prontamente ristabilire il Santo Padre ne' suoi Stati, e nella sua piena liberti ed indipendenza, proposizione alla quale avevano prestato adesione varie Potenze
Cattoliche, e stavasi in attenzione di quella delle altre, e pur d'uopo con
dolore riferire, che le cose dello Stato Ponteficio sono in preda di un incendio devastatore per opera del partito sovvertitore di ogni sociale instituzione, che sotto speziosi pretesti di nazionalita ed indipendenza nulla
ha trascurato di porre in opera per giungere al colmo della loro nequizia.
I1 decreto, detta fondamentale, emanato nel di 9 corrente, dall' Assemblea Constituente Romana offre un' atto che da ogni dove ribocca della
pih nera fellonia e della piu abominevole empieta.  Con esso dichiarasi
principalmente decaduto il Papato di fatto e di diritto dal governo temporale dello Stato Romano, si proclama una repubblica, e con altro atto
si decreta l'abbassamento degli stemmi del Santo Padre. Sua Santith
nel vedere cosi vilipesa la suprema sua dignitia di Pontefice e Sovrano,
protesta in faccia ai Potentati tutti, ed a tutti i singoli Cattolici del mon



APPENDIX.                              499
do universo, contro questo eccesso d'irreligione, contro si violente attentato di spoglio degli imprescrittibili e sagrosanti suoi diritti.  Quindi
laddove non si accorresse con un pronto riparo, giungerebbe il soccorso
allorquando gli Stati della Chiesa, ora interamente in preda de suoi acerrimi nemici, fossero ridotti in cenere.
"c Pertanto avendo il Santo Padre esauriti tutti i mezzi che erano in
suo potere, spinto dal dovere che ha al cospetto di tutto il mondo Cattolico di conservare integro il patrimonio della Chiesa e la sovranitia che vi
B annessa, cosi indispensabile a mantenere la sua piena liberth ed independenza come capo supremo della Chiesa stessa, e mosso altresi dal
gemito dei buoni che reclamano altamente un ajuto, non potendo piti oltre
sopportare un giogo di ferro ed una mano tirannica, si rivolge di nuovo a
quelli stesse Potenze, e specialmente a quelle Cattoliche che con tanta
generosit2 di animo, ed in modo non dubbio hanno manifestata la loro
decisa volonth di esser pronte a difendere la sua causa, nella certezza che
vorranno con ogni sollecitudine concorrere con il loro morale intervento,
affinch6 venga egli restituito alla sua sede, alla capitale di quei dominii
che furono appunto costituiti a mantenere la sua piena liberta ed indipendenza, e garantiti *eziandio dai trattati che formano la base [*686]
del diritto pubblico Europeo.
E  poiche l'Austria, la Francia, la Spagna, ed il Regno delle Due
Sicilie si trovano per la lora posizione geografica in situazione di potere
sollecitamente accorrere con le loro armi a ristabilire nei dominii della
Santa Sede l'ordine manomesso da un' orda di settarii, cosil il Santo Padre,
fidando nel religioso interesse di queste Potenze figlie della Chiesa, domanda con piena fiducia il loro intervento armato per liberare principalmente lo Stato della Santa Sede da quella fazzione di tristi che con ogni
sorta di sceleraggine vi esercita il piu atroce despotismo.
" Per tal modo solo potra essere ripristinato l'ordine negli Stati della
Chiesa, e restituito il Sommo Pontefice al libero esercizio della suprema
sua autorita, siccome lo esiggono inperiosamente il sagro ed augusto suo
carattere, gl' interessi della Chiesa universale, e la pace dei popoli; e
cosi potra egli conservare quel patrimonio che ha ricevuto nell' assunzione del Pontificato per trasmetterlo integro ai suoi successori.  La causa
e dell' ordine e del Cattolicismo. Per la qual cosa ii Santo Padre si confida chementre tutti le Potenze con cui si trova in amichevoli relazione,
e che in tanti modi nella situazione in che e stato gettato da un partido
di faziosi, gli hanno manifestato il loro piu vivo interesse daranno un'
assistenza morale all' intervento armato, che per la gravit'a delle circonstanze ha dovuto invocare, le quattro Potenze di sopra accennate non indugieranno un momento di prestare l'opera loro richiesta rendendosi cosl
benemerite dell' ordine pubblico e della religione.
II1l Sottoscritto, Cardinale Pro-Segretario di Stato di Sua SantitS, interessa per tanto vostra Eccellenza affinch& si compiaccia portare questa
nota il pii sollecitamente possibile a cognizione del suo Governo; e nella
fiducia di benevola accoglienza, ha l'onore, &c."




500     PHILLIMORE  ON INTERNATIONAL  LAW.
No. VII.
Viscount Palmerston to the Marquis of Normaniby.
"Foreign Office, March 27, 1849.
" My Lord,
" I HAvE received your Excellency's dispatch of the 8th instant, transmitting to me the copy of a note which your Excellency had received
from the Apostolic Nuncio, inclosing the copy of the note which has
been addressed by Cardinal Antonelli to the Representatives of all friendly
s*6871 Powers, requesting them to *co-operate for the purpose of re-establishing the Papal authority at Rome.
" I have to instruct your Excellency to say to the Nuncio that Her
Majesty's Government have received and have attentively considered
the communication which he has made to them through your Excellency
and that you are instructed to express to him the deep regret with which
Her Majesty's Government have witnessed the differences which have
arisen between the Pope and his subjects, the assassination of Count
Rossi, the departure of the Pope from his capital and States, and the
proclamation of a Republic at Rome.
a" The British Government is for many obvious reasons not desirous of
taking an active part in any negotiations which may result from the
application which the Pope has addressed to some of the Catholic Powers
of Europe, whose territories are nearer than Great Britain in Geographical proximity to the Italian Peninsula. But the British Government
will be much gratified if the result of those negotiations should be such
a reconciliation between the Pope and his subjects as might enable the
former with the free good-will and consent of the latter to return to his
capital, and there to resume his spiritual functions and his temporal authority. But it is the opinion of Her Majesty's Government that such a
reconciliation could scarcely be effected, or if effected for the moment,
could never be permanent, unless the basis upon which it was founded
were to be that the Pope should engage to maintain the Constitutional
and Representative system of Government which he granted last year to
his subjects, and unless the separation between the spiritual authority
and the temporal powers and institutions of the State were so clearly and
so distinctly established as to put an end to those manifold grievances
which the mixture of the spiritual with the temporal power has for so
long a period of time produced in the Roman States.  The great importance of admitting laymen to administrative and judicial functions in the
Roman States was pointed out to the late Pope by the memorandum presented in 1832 to the Roman Government by the Representatives of
Austria, France, Great Britain, Prussia and Russia, and the events which
have happened since that time, not only in the Roman States but in the
rest of Europe, have tended to make it still more important that such a
reform should be carried out into full and complete execution.
" Your Excellency will give the Nuncio a copy of this despatch.
"I am, &c.
" (Signed)    PALMERSTON."




APPENDIX.                             501
*No. 3.                         [*688]
Regulations of the College of Cardinals after the Death of Martin V.
(A. D. 1431.)(a)
" NoI tutti e singoli Cardinali infrascritti giuriamo e promettiamo a Dio
ed a' suoi Santi, e promettiamo alla Santa Chiesa, che se qualcuno di noi
sara eletto Papa, subito dopo la sua elezione giurera e promettera sinceramente, schiettamente ed in buona fede di fare osservare ed adempiere
efficacemente i capitoli infrascritti, e di dame ai Cardinali, nel termine
di tre giorni dopo la coronazione, una Bolla a perpetua memoria del fatto,
che abbia forza di decretale e di costituzione, a cui in pcrpetuo si debba
osservanza inviolabile, ne si possa contravvenire senza l'espresso consenso
della maggior parte dei Cardinali presenti in Curia, del quale consenso
faranno testimonianza le firme loro:
"cI. Ii Papa riformera la Curia Romana nel capo e nelle membra,
qualunque volte e quante il Collegio dei Cardinali ne lo richiegga, ed
osservera la riforma come legge, ne potrh senza il consiglio ed il consenso
della maggior parte dei Cardinali trasportare la Curia fuori di Roma, da
luogo a luogo, da provincia, a provincia, da patria in patria.
"II. I1 Papa celebrera o fara celebrare il Concilio generale solennemente e nelle debite forme nel luogo e tempo da stabilirsi per consiglio
dei Cardinali, e riformera in esso o fara riformare la Chiesa universale
circa la fede, la vita ed i costumi, cosl rispetto ai chierici secolari e regolari, come ai religiosi e militari, e tanto riguardo ai Principi temporali,
quanto alle comunita, in tutto cib che appartenga al giudizio ed alle
provvisioni della Chiesa.
"lIII. II Papa non creera nuovi Cardinali se non a' termini della
forma e degli ordinamenti sanciti nel Concilio di Costanza, i quali avra
obbligo di osservare, se per consiglio e consenso della maggior parte dei
Cardinali non sembri opportuno fare diversamente.
" IV. I Cardinali avranno il diritto di esporre liberamente il proprio
parere al Papa: non potrh il Papa fare violenza, ne permettera sia fatta
nella persona o nei beni loro, ne fara alcuna mutazione allo stato e provvisione loro se non in forza di espresso consiglio e consenso della maggior
parte, ne potra condannare alcuno, se non sia convinto pel numero dei
testimoni scritto nella costituzione di Silvestro Papa.
it,. I1 Papa non occupera in modo alcuno, ne permettera sieno
*occupati i beni dei Cardinali, Prelati ed altri cortigiani morti in
Curia, ma permetterl che secondo il diritto e La consuetudine, [*689]
che si osserva in molti regni e regioni, se ne faccia uso secondo la volontO
del defunto, lasciando alla coscienza di ognuno di legarli come piui gli
aggrada, eccettuati soltanto quei religiosi, i quali abbiano fatta abdicazione della propria volonta, i beni dei quali passeranno a chi spettino per
consuetudine, diritto o privilegio: non occupera cosa alcuna, quanto ai
diritti dei cappelli dei Cardinali defunti, ne permettera che da altri sieno
(a) Lo Stato Romano of Farini, vol. iv. pp. 322-5.




502    PHILLIMORE ON INTERNATIONAL LAW.
usurpati, ma lascieri liberi i Cardinali di trasferirli negli eredi testati o
intestati, abolito qualsivoglia altro abuso.
c"VI. Il Papa ricevera obbedienza dai feudatarii, vicarii, capitani,
governatori, senatori, castellani e da tutti gli uffiziali della citta di Roma,
non solo per se e suoi successori, ma per tutto il ceto dei Cardinali con
tutti e singoli i capitoli opportuni, per modo che, vacando la Sede, le
citta, terre, luoghi, castella e fortezze sieno consegnate a mandato dei
Cardinali liberamente e senza veruna contraddizione.
" VII. II Papa permettera che i Cardinali ricevano liberamente la
meta di tutti i singoli censi, diritti, rendite, proventi ed emolumenti
qualunque della Romana Chiesa, secondo la concessione di Niccolb IV.,
che osservera in tutto e per tutto; non dara alcuna elle terre della
Chiesa Romana in vicariato, feudo od enfiteusi; non muover! guerre, ne
fark alleanza con qualsivoglia re, principe temporale o comunita; non
imporra nuove gabelle, o nuovi dazi sulla citta di Roma, ne accorder'
ai re o ad altro signore temporale o comunita esenzione alcuna o altro
contro la liberth ecclesiastica sul clero, chiese o beni spettante alle chiese
e luoghi pii senza causa ragionevole e senza il consiglio e consenso della
maggior parte dei Cardinali.," VIII. Non alienera il Papa diritto alcuno in qualunque luogo esso
spetti alla Chiesa di Roma, ne conformerk, nb approvera le alienazioni
fatte dei diritti spettanti alle altre chiese, religioni ed ordini militari
senza il consenso e consiglio della maggior parte dei Cardinali.
", IX. In tutti i casi, finalmente, nei quali sieno richiesti per legge il
consiglio ed il consenso dei Cardinali, dovra di questo consiglio e consenso constare nelle bolle e lettere apostoliche tanto per la menzione
espressa del consiglio e consenso prestato, quanto per la firma dei Cardinali."
AFTER the contents of this volume had gone to press, the author
obtained from Greece various pamphlets and essays relating *to
L[  ]t 1 the question of the Encyclic of Pope Pius IX. to the Greek
Church, and the Reply of the Patriarch of Constantinople.
The following catalogue contains the titles of these works, namely:On behalf of Rome:1. Confutazione di Antimo Patriarca  Scismatico Costantinopolitano,
Roma: Tipografia della Civilth Cattolica, 1854.
2. La Civilta Cattolica, anno quinto (No C.,) seconda serie, vol. sesto.
Roma: Co' tipi della Civilta Cattolicia, Via del Quirinale, Num. 36.
20 Maggio, 1854.
On behalf of the Greek Church.
(In the Greek and Italian languages.)
1. Enciclica dell' una Santa, Cattolica, ed Apostolica Chiesa agli Ortodossi di ogni Regione.   Edita a Costantinopoli, nel 1848, dalla




APPENDIX.                              503
nazionale Tipografia del Patriarcato, e tradotta del Dr. Giorgio
Marcoran. Ristampata a (orfih: 1848.
2. Sopra alcuni Passi dell' Allocuzione di Pio IX. nel Consistoro Segreto
del 19 Dicembre, 1853.  Osservazioni di Giorgio Marcoran.  Corfu;
Tipografia Mercurio, A. Tersachi e T. Romeo, 1854.
3. All' Articolo del Drs. G. B. Scandella, su 1' Enciclica di Pio IX. agli
Orientali, inscrito nel potafoglio Maltese, del 25 Maggio, 1848.
Risposta di Giorgio Marcoran, Corcirese.  2a edizione, con giunte.
Corfi: Tipografia Mercurio, A Tersachi e T. Romeo, 1853.
(In the Italian language only.)
4. Risposta all' Articolo della Civilta Cattolica (Quadermo C., 20
Maggio, 1854) sulla Confutazione di Antimo Patriarca e sopra alcune
Osservazioni di Giorgio Marcoran. Corfti; Giugno, 1854.
(In the Greek language only.)
5. EyxsvYsto Ti'tr~ lath AY'agC  KXOoxit   zet Awoa'oroA:q EAo'ticS E-o'r'oAn,
gtpos Taov Ar rvoaov OpOoeotov;.  Ev K1.7TwTSVov7iohEl, EX T115 Ha
7-1prosacX1s   Tov fevov5 Tvoroypczpoi5.  1848.








INDEX.
The pages referred to are those between brackets [    ].
A.                    Embassy lodged in Assembly of
Abbe de Mably, 76.                     States General, ib. Of the United
Abbott (Lord Chief Justice,) on Mer-    States of North America, ib.  Of
chant Ships and Seamen, 100, 198.    Swiss Confederation, 137.  Towns
Abdication of Sovereign, Ambassa-    subject to Authority of Country
dor's Mission ended, 232.           wherein situate, having Right of
Act, final, of the Congress of Vienna    Embassy, ib. Right of Embassy in
(1815,)astoLanguageofTreaties,53.    Usurper, 138. Sovereign abdicatAct of State of foreign Government,   ing, no Title, ib. Leslie, AmbassaDecision of British Courts as to    dor of Mary Queen of Scots, Case
Proof of, 114.                      of, 139. Opinions of English CivilAgents employed by Governments,   ians on certain Questions propoundStatus of, 223. See Ambassadors.   ed to them regarding, 140. Right
Provisional Consular, 257.          of Embassy, during Minority of SoAiguillon (le Duc d',) French Minister,   vereign, lodged in Regency, 141;
Memoir of, on the Rights of Ambas-    during incapacity of Sovereign, ib.;
sadors, 200.                        during Vacancy of Throne, ib.;
Aix la Chapelle, Congress of, 31, 45.    Minister delegating Right of EmProtocol (separate) signed at, 31.   bassy, ib. Spanish Ambassador noProtocol, signed at, as to Maritime    minates public Ministersto negotiate
Ceremonials, 44. Rules of Prece-    Treaty of Munster, 142. Right of
denuce of foreign Ministers agreed    Embassy in Viceroy of Province,
at, 51. Peace of (1748,) 53,70. Of    142; in European  Governors of
(1668,) 67. Hostages stipulated for,    American or Asiatic Dependencies,
as late as Peace of (1748), 68.    143; in great Companies of EuroTreaty of (1748), 78. Protocol of   pean States, ib.; in rebellious Sub(1818,) 217.                        jects, ib.
Albericus Gentilis. See Gentilis.    Right to Receive, 147. Inherent in.
Alexander II., 277.                   all States, ib.  No Obligation to,
Allgemeines  Landrecht, &c., 209.   send or receive, 148. State bound!
Birgerliches Gesetzbuch, 208.       to give Audience to Ambassador, ib.
Alliance, who may contract, 60.       May refuse Ambassador sent for: a
Alternat, Use of; among States, 49.   mischievous Purpose, ib.   DulyAlphonso (King of Arragon,) 313.      commissioned  Ambassador,  1;49.
Ambassador.                           Cannot refuse Ambassador ona the
Antiquity and Universality of his    Ground of Sex, ib.  Instances- of
Rights, 134.  Who may send, 135.    Ambassadresses, 150.  Statel  may.
Treaty between Turkey and Russia   refuse to receive one of its own Sub(1774,) ib. Rights of States under   jects as a foreign diplomatic Agent,
Protection, ib. Of confederal States,   ib. Exile appointed Ambassador to
collectively, individually, 136.  Of    his own Country, 151.  Criminal
Republic of Seven United Provinces,   152. No Objection that. Ambassa.
])ECEMBER, 1855. —33




506    PHILLIMORE ON INTERNATIONAL LAW.
dor appointed is not a Native of the  mare, at the Court of France, for
Country which sends, 152. Rankor    Conspiracy, 184. Ambassador cornBirth of Ambassador no Ground for    mitting Assault, 185. Recognition
Refusal, ib. State not bound to re-    of Minister by Government concluceive Papal Legate or Nuneio, armed   sive on Judicial Tribunal, ib. Priwith injurious Powers, 153. Exist-    vileges of Ambassador extend to his
ence of a State of War no Ground      Suite, 186. Inviolability of Ambasfor Refusal of Ambassador for Pur-    sador in Transit through a third
pose of Audience, ib. State refusing  State, ib.
to receive  resident Ambassador   Eixterritoriality.-Civil Jurisdiction,
within its Territories, 154.          Exemption of Ambassador from,
General Status of, 156. Inviolability    190. As to Exemption of personal
of, 157. Injuries to, ib. Ambassa-    Property, 192.  Of real Property,
dor under Protection of State to    ib. Dwelling-house of Ambassador,
which he is sent, ib. Offence against    193. Ambassador becoming a TraPerson of, ib. Ambassador waiving     der, Exceptions as to personal ProPrivileges, 158.  Sovereigns may      perty, ib. Ambassador acting as a
waive Rights due to them in Person    Trustee or Executor, 194. Ambasof Ambassador, 159. Ambassador    sador becoming Plaintiff in a Cause
no such Power, 161. Rights of In-    in Court of foreign Country, 195.
violability applicable to all Societies,    Liable to counter Demands, ib. De160. Inviolability of. acknowledged    fensive Jurisdiction of Ambassadors,
by Israelites, 161. Clothed with a    ib.  Privileges of Exterritoriality
religious Characterbythe Egyptians,    extended to Wife of Ambassador,
ib. Passages relating to the Jus le-    196; to his Family, ib.; to his Suite,
gationis from the Digestof Justinian,    ib. Waiving Privileges, ib. Right
164. Criminal Jurisdiction with re-    of Secretary of Legation to Privigard to Legate and his Suite, 165.    leges, 197. Of Secretary to the EmCivil Jurisdiction ditto, ib.  Resi-    bassy, ib. Decisions on Statute 7
dent Ambassadors, 167. Inviolabi-    Anne, c. 12, as to Privileges of Amlity, Middle Ages, ib.                bassadors, &c., from Arrest or ProiExtent of Inviolability, 170. To what    cess, 198. Minister's Passport reClass of Diplomatic  Agents, ib.    fused for Non-payment of DebtsHousehold  of Ambassador, 171.    Case of Baron de Wrech at French
What Subject Matter, ib. Period of    Court, 200. Practice of Great BriCommencement, ib. Over what Pe-    tain in relation to, 201. Decisions
riod extended, ib. Not affected by    on Exceptions to the general Rule,
the breaking out of War, 172.        ib. Ambassador of Peter the Great,
Inviolability- Criminal Law.-Case      Czar of Muscovy, arrested in Lonof the Dutch Ambassador for Mal-    don for Debt, 205. Statutes passed
administration oftestamentaryTrust,    by, and Decisions of North Ameri173. Case of Ambassador of Mary    can United States respecting, 206.
Queen of Scots, 176. Case of Men-    Law of France as to Privileges and
doza, Spanish Ambassador, for Con-    Exterritoriality  of Ambassadors,
spiracy, 177. Case of L'Aubespine,    207; of Spain, ib.; of Portugal, 208;
French Ambassador, for Conspiracy,    of Russia, ib.; of German Powers,
ib. Case of one of the Retinue of    ib.; of the Netherlands, 209; of DenDue de Sully, French Ambassador,    mark, ib.  Ambassador's Exempfor Murder, 178. Case of Inoyosa    tion from Taxation, and Duties upon
and Colonna, Spanish Ambassadors,    Articles imported for his own use,
for Libel, 179. Case of M. de Bass,   ib. Different Nations have different
French Minister to Cromwell, for    Regulations respecting, 210. RoConspiracy, 180. Case of Gyllen-    man Law in regard to Immunity not
burg, Swedish Ambassador, for Con-    extended to real Property, ib.; nor
spiracy, 181. Case of the Earl of   to Personalty unconnected with amHoldernesse, English Ambassador    bassadorial Character, ib.; seldom
to Venice, 181. Case of M. Van    to Tolls, Postage, &c., ib. House
Joey, Dutch Ambassador, 182. Case    of Ambassador inviolable, ib. His
of Da Sa, Brother to the Portuguese    Carriage, 211.  Hotel of, Asylum
Ambassador in England, for Murder,   for Offenders, ib. Case of Ripper183. Case of the Prince of Cella-    da, Minister of Philip V., Refugee to




INDEX.                               507
Hotel of English Ambassador at Ma-    ib. When Diplomatic Agent of the
drid, 212. Ditto, Springer, Swedish    second or third Class, 230; of the
Merchant, Refugee to Hotel of Eng-    fourth Class, ib. Custom in republic
lish Ambassador at Stockholm, 213.    States, ib. Rule of Etiquette between
Purchase of Residence for Ambas-    diplomatic Agents at same Court, ib.
sador in foreign Country, ib.         Alteration of Ceremonies by SoveReligion.-Ambassador's Rightto ex-    reign of F6reign Court, 231.
ercise the Rights of his own Reli-   Mission of, 231. May be altered in
gion,  ib.   Confined  to  himself,   its Character, ib.; suspended, ib.;
his Suite, and fellow  countrymen,    closed, ib. Causes which alter, 232;
214. Language in which religious    suspend, ib.; end, ib. Custom  on
Service to be performed, ib.  By    Recall of Ambassador, 233. Death
Chaplain in the Hotel of Ambassa-    of, ib.
dor, sanctioned  by international  America, North.
Usage, on certain Conditions, ib.   United States of —Decision in as to
Protestant Chapels of Ambassador    Recognition of States, 26. Case in
at Vienna ordered by Joseph II. to    Supreme Court of, respecting Treaty
be closed, ib.                        of Peace with Great Britain, 108.
Different Classes of Public Ministers,    Regulations as to Consuls put forth
216. All enjoy privileges, 218. Le-    by, 259.
gates a latere distinct from Nuncios,   Central and Southern.-Republics in,
218, 440, 441, 442.                   Members of the Community of States,
Ordinary and Extraordinary, 219.    59.
Diplomatic Agents of the first Class,   D)ependencies. —Jes legationis granted
ib.; of the second Class, ib.; of the    to European Governors of, 143.
third Class, ib.; of the fourth Class,  Anne 7, cap. 12. Decisions on this
220. Ceremonial Honours due to, ib.    Statute as to Privileges of AmbasStates may confer what Rank they    sadors from Arrest and Process, 198.
please upon their Ambassador, 222.  Amiens, Peace of, 21.
Not restricted as to Number, Sex,  Annuaire des deux Mondes, 396.
Religion, &c., ib. May be accredited   Annual Register. See Register.
to various States at the same Time,  Appendix. See Contents of, at End of
ib. Power to negotiate with foreign    this Volume.
States without Appointment to any  Ariosto, Orland. Fur., 287.
particular State, ib. May be accre-  Arundel (Lord,) Letter by, to Mr.
dited by a third State to mediate    Plumptre on the Bull "'In Ccen.
between two other States, ib. Status    Domini,"330. Letter to,on Ditto,ib.
of mere Agents, 223i of Deputies,  Apocrisarius, 167.
ib. Cardinal Ambassador, double  Asylum, Ambassador's Hotel used as,
Allegiance of, 278. Where triable,    211.
438, 439, 440.                      Audience of Ambassador at foreign
Instructions.-Letters of Credence. —    Court, &c., 229.
Character of Ambassador recognized  Austria,Recognition of Title of, in 1806,
on production ofthem, 225. Towhom     30. Attempt of, to open the Naviaddressed, 226. Nature of Contents,    gation of the Scheldt, 38. Reasons
ib. One Letter may suffice for sev-    ofwithdrawingher Ambassador from
eral Ministers of the same Rank,    Rome in  1814, ib. Treaty with
ib. Minister sometimes furnished      Ottoman Porte for Equality of Rank,
with several, ib. Rank of Minister    49. Enactment of as to Privileges
changed, fresh Letters required, ib.    of Ambassador, 208. Complaint of
Full Power for negotiating, a sepa-    Emperor of, respecting Correspondrate Instrument, ib. Full Power    ence with French King as to German
founds the Authority of Minister as    Princes in Alsatia, being in French
Representative of his Sovereign, 227.    Language, 53. Treaty of Alliance
May be general or special, ib. Extent    with France, ib. Guarantee of, that
of; when special, 228. When granted    the Successors to British Throne after
to several Persons, ib.               Death of Queen Anne should be
Arrival. —Audience, 229.  Notifica-    Members of the Church of England,
tion of Arrival, ib. Audience with    75. Law of, as to Privileges, &c., of
Sovereign may be public or private,    Ambassadors, 208. Papal Relations
ib. Letters of Credence delivered at,    with Rome, 371.




508   PHILLIMORE ON INTERNATIONAL LAW.
B.                   Bristol, Bishop of, Plenipotentiary at
Peace of Utrecht, 222.
Bacon (Lord,) 113.                    British Government. See Great BriBacon's (Matthew) Abridgment, 79.   tain.
Baden, Treaty of (1714,) 52.          Broom's Legal Maxims, 79,
Baldwin's (American Reports.)  See  Buckingham (Duke of,) Libel against,
Reports.                              by Inoyosa and Colonna, Spanish
Balguerie, Affaire de la Maison, de    Ambassadors, 179.
Bordeaux contre le Gouvernement  Bull, In Ccena Domini. See In Ccena
Espagnol, 126.                        Domini.
Barbary, Ordonnances of France, re-  Bulle Circumscriptionum, 397.
specting Consuls in, 259.           Bullarii Romani Continuatio, S. PontiBarbeyrac, 109, 111, 266.               ficum  Clementis XIII., Clementis
Barbuit, Case of, in Chancery, 263.     XIV., Pii VI., &c., collegit And.
Bartolus, 46.                           Adv. Barberi, tom. 1-10, in 7 vols.,
Bass (M. de,) Case of; 180.             folio. Rom.: 1835-45. Tom. 1, 2
Bavaria, Provisions of, as to exemption  3, Clemens XIII.; tom. 4, Clemens
of Ambassadors from ordinary Juris-    XIV.; tom. 5-10, Pius VI. 330.
diction of Tribunals of, 209. Papal  Bullarium  Magnum Romanum, a B.
Relations with Rome, 395.             Leone Magno, usque ad S. D. N.
Belgians, Case of the Secretary of Le-    Benedictum XIII., cura et studio L.
gation of. See Drouet, M.             et A. M. Cherubini, edito novissima,
Belgium, Recognition of Independence,   juxta exemplar Romce, 19 tom. in 16,
24. MemberofCommunityofStates,    folio. Luxemb.: 1727-58, 330.
59. Separation of, from Holland, 78.  Burke, Tracts on Popery Laws, 105,
Papers, Letters of Austria, Russia,    418. Speech on Bill for the Relief
Prussia, and England, respecting, ib.    of Protestant Dissenters, 284.
Benedict XI., 319, 321.               Burleigh (Lord,) State Papers of, 139,
Bentinckl (Lord George,) Motion of, in    176, 178.
the House of Commons respecting  Burn's Ecclesiastical Law (ed. PhilliDebts due from foreign States, 11.    more,) 275, 414.
Berlin, Treaty of 66.                 Burrow's Reports. See Reports.
Berne and Freyberg, Cantons of, Pays  Butler's Historical Memoirs of the Rode Vaud, hypothecated to, by House    man Catholics, 420.
of Savoy, 69.                       Bynkershoek, De Dominio Maris, 39,
Berne, (City of,) in Switzerland, v.    40. Questiones Juris Publici, 39,
Bank of England, 225. See List of    40, 44, 49, 143, 144, 149, 150, 151,
Cases cited.                          152, 210, 279, De Foro Legatorum,
Berthold, Duke of Zahringen, 307.       117, 120, 121, 122, 124, 131, 134,
Bingham's Reports, 26. Antiquities of    135, 150, 151, 157, 158, 159, 160,
the Christian Church, 288.            164, 165, 167, 172. 174, 175, 176,
Bishops, Powers of, 278.                181, 188, 189, 191, 192, 193, 194,
Blackstone, Commentaries, 46, 174,    195, 196, 197, 210, 216, 217, 225,
205.                                  227, 261, 278. De Relig.  PereBodinus, De Republica, 46.              grina, 283, 279. De Cultu Religionis
Boniface (St.) Archbishop of Mayence,    Peregrinae apud veteres Romanos,
293; the Eighth, 305, 312, 318, 320.    279.
Bossuet, Declaratio Cleri Gallicani,
336.                                                C.
Botschafter, 216.
Bougeant (PBre,) Histoire du Trait6  Cabinetof scarce and celebrated Tracts,
de Westphalie, 357.                   5, 76.
Bourbon, House of, 22.                Cadiz, Governor of, Arrest of Dutch
Bowyer's Readings, 82, 325.             Consul by, 260.
Boyer's Annals of Queen Anne, 205, Coesar, de Bello Civili, 145.
206.                                Calliers (De,) 15.
Bramhall's (St. Just.,) Vindication,  Cambray, Peace of.-League, of, signed
288.                                  by Margaret of Austria in the Name
Brazil, Regulations of, respecting Con-    of Charles V., 149.
suls, 259.                         Camden's Elizabeth, 121, 139, 177, 178.
Breslau, Treaty of, 66.               Campo Formio, Peace of, 25.




INDEX.                                509
Canning (Mr.,) Speeches of, 24. On    bus, 89.  De Invent., 92.  Phil.,
the Independence of South America,    145. In Verrem, 189.  De Leg.,
16, 17; on the Address of the King's    281, 282, 283. De Div., 283.
Speech on Opening of Session (1822,)  Civilians, Opinions  of, on  certain
19. Reply to Remonstrance of Span-    Questions relating to Privileges of
ish Minister on Recognition of South    Ambassadors, 139. On Ambassador
American Republics, 22. Adminis-    aiding in Treason against Sovereign
tration of, 53.                      to whom sent, 176.
Canon Law. See Corpus Juris Canon-  Civil Jurisdiction, Exemption of Amici.                                  bassadors from, in  Countries to
Caraffa, Papal Legate; Henry II. of    which accredited, 190.
France absolved from Obligation of  Clarendon  (Lord) Remarks of, in
Oath by, 67.                          House of Lords, as to Treaty beCardinal Ambassador, double Allegi-   tween Austria and the Porte (July
ance of, 278, 437.                    22, 1853,) 65.
Cardinals, how appointed, 431, Rank  Clement V., 305, 321, 322, 335.
of, 436. Where triable for Offences,        VI., 334.
437. See Papacy.                    - -   VII., 67.
Carriage of Ambassador, Privilege of  Clementinte.  See Corpus Juris CaExterritoriality applies to, 211.     nonici.
Cases (cited.) See List at Commence-  Clothaire, Constitution of 300.
ment of this Volume.,               Code. See Roman Law. Napoleon,
Castille, Council of, 212.              207.  De  Commerce  (French),
Castro's (Gabriel Pereira de,) 386.     259.
Cellamare, Caseof, for Conspiracy, 184.  Coke's Reports, 415. See Reports.
Ceremonials, Maritime, 39.            Coke (Lord,) Institutes, 154, 174.
Certificates, Consuls granting, 254.  Colletta, Storia del Reame, di Napoli,
See Consuls.                          386, 387.
Chace (Judge of American Court,)  Collier's  Ecclesiastical  History  of
Opinion of, respecting the Construc-    Great Britain, 303, 417, 418.
tion of Treaty of Peace with Great  Collision of Treaties, 111. See TreatBritain, 108.                         ies.
Chalmers, Collection of Opinions, 115.  Colonna (Spanish Ambassador,) Case
Charlemagne, 295.                       of, for Libel against Duke of BuckCharges d'Affaires, Class of Ministers,   ingham, 179.
220, Ceremonials due to, ib. Let-  Colours, Orders of British Crown to
ters of Credence of, to whom ad-    Ships of War as to, 43. Penalty for
dressed, 226. Arrival of, at foreign    hoisting prohibited Colours, ib. Case
Court, notified to Minister for For-    of the Master of the Steamship Lord
eign Affairs, 230.                    of the Isles, for carrying illegal CoCharles I., 154.                        lours, ib.
-  1I., Ambassador of, rejected by  Comity, with respect to commorant
France, 138.                 Foreigners, 4.
- VI. (Emperor,) 75.              Comyns, 174.
VIII., 341.                   Concordata, German, 344. See PaCharles-le-Martel, 293.                 pacy. History of, 358.
Chateau Cambresis, Peace of (1559,)  Confiscation of Debts due to British
67.                                  Subjects by French Governments
China, Consuls in the five free Ports of,    13.
274. Powers of Ditto, ib.          Confirmation of Treaties, Modes of,
Christian Countries, modern Consul-   65.
ates in, 240.                      Congress of Vienna.  See Vienna.
Christianity.  See Church-Religion.  Congresses, at which Sovereigns and
Christina, ex-Queen of Sweden, 131.     Representatives have met, 45.
Chrysostom (St.,) 278.               Consolato del Mare, 236.
Church (Christian,) Connection with  Constantine, Patriarchate of. See ReState, 281. Collegium licitumn, 285.             ligion.
Under Constantine, 286. Identity         —, Church under, 286. Diof, with State, 297.  Collision be-    vision of the Roman Empire by, into
tween, and State, 302. See Religion.    four Prefectures, ib.
Cicero, de Officio, 57, 85. De Fini-  Constantinople, English Ambassadot




510   PHILLIMORE ON INTERNATIONAL LAW.
at, Case of, 180. Patriarchates of,    ment of Vice-Consuls, 256. Consuls
287.                                  not to dismiss Vice Consuls without
Consuls.                                Sanction of Secretary of State, ib.
Historical Introdtuction, 235. Cha-    Statutes relating to Powers of, 257.
racter and Functions imparted to,    List of Vice-Consuls to be transmitib. Institution of Consulates, ib.    ted by, to Secretary of State each
Modern Consulates in Christian Coun-    Year, ib. Granting Passports, ib.
tries, 240.  Not strictly speaking    Fees of, Order as to, ib. Powers of,
Public Ministers, ib.  Entitled to    also to be found in Statute, 6 Geo.
special Protection, ib. Not entitled    III. c. 78, ib. Power given to, by
to Privileges, &c.,of a Representative    the Statute, 12 & 13 Vict. c. 62, to
of State, ib.  Not furnished with    facilitate Marriages of British SubCredentials,  except  when   also    jects, ib.  Provisions relating to,
Charges d'Afaires, 241. Cannot    and Vice-Consuls, contained in Merenter upon their Duties without Per-    chant Seamen's Act (7 & 8 Vict. c.
mission of Sovereign to whom de-    112,) 258. Ditto in Merchant Shipputed, ib. Amenable to criminal    ping Act (17 & 18 Vict. c. 104,) ib.
and civil Jurisdiction  of foreign    Regulations respecting, promulgated
State, ib. Subject to Payment of    by foreign Powers for the Direction
Taxes, 242. Places of Worship in    of their Subjects, ib.
their House, rarely  accorded, ib.   Decisions of Municipal Tribunals as
No Claim  to foreign Ceremonial,   to Privileges of, 260. Arrest of the
and no Right of Precedence, ib.    Dutch Consul by the Governor of
Arrest and Imprisonment of, 242.    Cadiz, ib. Claim of the Dutch for
Case of Imprisonment of Mr. Prit-    Privileges of Ambassador to their
chard, British Consul at Tahiti, by   Consul at Genoa, refused by Senate,
French Commandant, 243.  Privi-   ib. Quarrel between Republic of
leges of, 244. Extent of their Jur-    Venice and Papal Government, on
isdiction, 245. Refusal of State to    account of Outrages on Consuls of
receive, no Breach of International    Republic, 261.
Law, ib. Entitled to same Privi-   (France) Decision of the Cour Royale
leges as his Predecessor, 246. State    de Paris (1833,) in the Case of M.
bound to give Notice of its Intention  Carlier d'Abaunza, Consul General
to alter Privileges to, ib. Authority    of Uruguay, as to Exemption from
of; derived from  Instruments ap-    Arrest, 262. Decision of the Cour
pointing, &c., ib. Consul trading,    Royale of Aix (1843) in the Case of
ib.  Natives of the foreign State     M. Soller, ib.
sometimes appointed, ib.  Consuls   (United States of North America),
General sometimes appointed, ib.    Civil Tribunals  of, promulgated
Extent of their Functions, ib. Con-    same Doctrines as that of France in
suls and Vice Consuls under their    Case of M. Soller, 263.
Control, ib. Appointment of Vice-   (England), Barbuit's Case in ChanConsuls, who by, ib.  Who they    cery, Agent of Commerce from King
correspond with, ib. Treaties rela-    of Prussia. Decision of Lord Chanting to, List of, 249. Usage of Na-    cellor as to Privilege from Arrest,
tions derived from said Treaties, ib.    263, 264.
Treaties illustrating Status of Con-   Triquet and Others v. Bath.-Desuls, ib.                               cision of Lord Mansfield (1764,)
Ditties and Powers of, 252. Law of       as to Privileges of Secretary of
United States respecting Consuls,       Foreign Ambassador, 266.
ib. (British) Authority and Powers     Heathfield v. Clifton.-Decision of
entrusted by British Government to,     Lord Mansfield (1767), as to Priib. General Institutions issued by      vileges of Ambassador's Retinue,
Great Britain as to, 253. Exequa-       ib.
tur to, ib. Privileges of, 254. Ad-    Clarke v. Cretico.-Decision of Sir
vice and Assistance to be given to      J. Mansfield (1808,) Claim of DeBritish Subjects by, ib. Directions     fendant to Exemption from Arto, respecting  Offenders seeking      rest, as Consul General from the
Refuge on board of British Ships,       Sublime Porte, 267.
255. Precedence between Consuls    TViveash v. Becker.-Decision  of
and naval Officers, ib.  Appoint-       Lord Ellenborough (1814), that a




INDEX.                                 511
resident Merchant in London, who          PASSAGES REFERRED TO.
had been appointed and acted as    Corpus Juris Canonici.
Consul to the Duke of Oldenburg,  Decreti Prima Pars.              Page
not  privileged   from   Arrest,    Dist. xv. c. i. s. 1,           315.
268.                                   "  xxii.. i.           325, 430.
Consul resident abroad, and Plain-      "  xxiv. c. iii.             430.
tiff in a Suit, considered by Eng-     "  xxv. c. vi. s. 1,         44:4.
lish Courts exempt from  giving        ". c. lviii.              444.
Security for Costs, 269.               " xi. c. xiii.               430.
Tribunals of International Law. —             lxxi. c. v.              430.
Doctrine held by, 269.  Case of the      "  lxxiv. c. vi.              430.
Indian Chief, Decision of Lord Sto-      "  lxxix. c. iii. v.          430.
well (Prize Court, 1800), Claim for   Decretalia.
Exemption of Cargo, Property of    Lib. I. t. xxxiii. c. 6, (Solitae) 309.
American Consul, from  Rights of         "   I. t. vi. c. 34, (VenerabiBelligerent, 269.  Same Doctrine                   lem)                308.
promulgated  by Prize  Courts in         "   I. t. xxx. or, X., 1. i. 30.
United States, ib.                                 (De Off. Leg.)     440.
Consuls in  the Levant.-Status of         "   I. t. xxx. c. 8, or, c. viii;
Consuls in Mahometan Countries,                    X. (Ib.)           440.
271. Jurisdiction of, ib. Directions     "   I. t. xxx. cc. 3, 4, 6, 9, or,
for the Guidance of, 273.  Statute                 c. iii. iv. vi. ix. X.
of 6 & 7 Vict. c. 94, as to Jurisdic-              (Ib.)               440.
tion of Her Majesty in Countries out' "  II. t. i. c. 13 (Novit ille) 311.
of her Dominions,.272; in China,         " III. t. xxxviii. c. 20, or, c.
275.                                               xx. X, (De Jure PaConsuls, Vice.  See Consuls.                         tron.)              440.
----  General.  See Consuls.               "   V. t. xxxiii. c. 23, or c.
Consulates; Modern, in Christian Coun-               xxiii. X. (De Privitries, 240.  See Consuls.                          leg.)               440.
Convention, as to Greece (30th April,  (Sexti Decret.)
1833,) 12; between Great Britain,    Lib. I. t. xv. c. 1, or, c. i. VI.
King of the Netherlands, and Rus-                  (De Off. Leg.)      440.
sia (19th May, 1815,) 101. Ditto,        "  II. t. xiv. c. 2, (ad ApostoGreat Britain and Russia, 103. See                 licae)              312.
Treaties.                                " III. t. xxiii. c. 3, (Clericis
Coppi, Annuali d'Italia, 361 —365.                   Laicos.)            319.
Correspondence respecting the Arrest  (Clementinarum.)
of Mr. Harwood (the Vienna Corres-    Lib. II. t. ix. (De Jurejuranpondent of the Morning Chronicle,)                 do)                 322.
by Austrian Authorities, 3; respect-     "  II. t. xi. c. 2, (De Sentening the Affairs of Rome, 1849 (pre-                ti& et re judicat&)  322.
sented to Parliament 1851,) 447;  (Extravagantes.)
between Viscount Palmerston, the               Joan xxii. t. v. (Si FraMarquis of Normanby, and Prince                  trum)                 323.
Castalcicala (laid before Parliament  (Extravagantes Comm.)
1849,) as to armed  Intervention,    (Lib. I. t. i. c. 1, De Consuetu448.  International Language in                    dine)               323.
which written, 52.                            I. t. viii. (Unam Sanctam) 320.
Corpus Juris Canonici, 305. Decretals         III. t. xiii. (Quod Olim)   319.
inconsistent with the Independence           V. t. vii. c. 2.          321.
of States, viz., Venerabilem, 308:  Cotton's (Sir R.,) Remains, 179.
Solitae, 309; Ad Apostolice, 312;  Council of Trent.  See Trent.
Clericis Laicos, 319; Quod Olim,  Councils, CEcumenic or General, Diib.; Unam  Sanctam  and  Meruit,    vision of, 314
321; Romani Principes, 322; Pas-  Cour Royale of Aix, Decision in the
toralis, ib.; Si Fratrum, 323; De       Case of, M. Soller, 262.
Consuetudine, ib. General Remarks  Cour Royale de Paris, Decision of, in
on Decretals, 324. Bull, In Ccena    the Case of M. Carlier D'Abaunza,
Domini, 329.  Provision  of; 331.    Consul General of the Republic of
See Papacy.                            Uruguay, 261.




512   PHILLIMORE ON INTERNATIONAL LAW.
Cracow, Debates on, 101.                Duchies of, 75. Law of, as to PrivilCranch's (American) Reports, 27. See    eges of Ambassadors, 209. RegulaList of.                             tions of, respecting Consuls, 259.
Credence, Letters of, 225.  Public    Papal Relations with, 406.
Character of Minister recognized on  De Pamiers, 361.
Production of, 226. To whom ad-  De Pradt, 337, 339, 340, 341, 342, 343,
dressed, ib. Nature of Contents of,    358, 359, 363, 369, 370, 371, 396,
ib. Same Letters may suffice for    397.
several Ministers of same Rank, ib.  Deputies appointed by Governments to
Minister furnished with several, ib.    foreign Countries, Status of, 223.
Full power not inserted in, &c., ib.  De Real, 184.
Not granted to Consuls except when  De Salute (Papal Bull,) 399.
also Charges d'Affaires, 241.       De Torcy, Me6moires, 227.
Criminal Law, Exemption of Ambas-  Dethronement of Sovereign, Ambassasadors from, in foreign Countries,    dor's Mission ended, 232.
173.                               Deutsch oder Russisch, Pamphlet, 297.
Cromwell, 48. Ambassador of, admit-  Digest. See Roman Law.
ted by France, 138.                 Dionysius Halicarnassensis, 283.
Crusaders, the, respect Character of  Diplomatic  Agents.  See Ministers
Ambassadors, 168.                     (Public,) Ambassadors, &c.
Cajacius, Jacobus, 160.               Dirksen, Manuale Latinatis fontium
Cyprian, (St.,) De Unitate Eccles., 641.    Juris Civilis Romanorum, 338.
CzirAky, Conspectus Juris Publici Reg-  Dod's Roman Catholic History, 420.
ni Hungarite, 375.                  Dodson's Admiralty Reports, 26, 272.
See Reports, List of.
D.                   Dolder v. Bank of England, 25. See
Cases, List of, referred to.
D'Abaunza (M. Carlier,) Decision of  Domat, 79.
Cour Royale de Paris, in the Case  Domiciled Foreigners, Rights and Liof, 261.                              abilities of, 6.
Dallas's American Reports, 109. See  Donellus, De Jure Civili, 79, 84, 85, 88,
Reports, List of.                     91.
D'Aguesseau, 278, 362.                Dresden. Treaty of, 66.
D'Aleth, 36.                          Drouet (M.,) Secretary of Legation of
Dante, Inf., 287.                       the King of the Belgians, Actions
Death, of Sovereign, Ambassador's Mis-    brought against him  in  English
sion ended, 232; of Ambassador, du-    Court on Commercial Transaction,
ring Mission, 233.                    202.
Debates, on Affairs of Greece and Don  Dubois (Cardinal,) Treple Alliance of
Pacifico, 3; on Foreign Enlistment    La Haye (1717,) negotiated by, duBill, 27.                             ring the Minority of the Duke of OrDebts of a State, 1, 8. Letter of Lord    leans, 141.
Palmerston on, 9. Confiscation by  Duck, de Usu et Auctoritate Juris CiFrench Government of, due to British    vilis, 27, 46, 52.
Subject, 13.                       Du Cange (Apocrisarius,) 167, 339.
De Bass (M.,) Minister from France to  Dumont, 20, 73.
Cromwell, Case of, for Conspiracy,  Dunkirk, Destruction of the Port of,
180.                                 87.
Decisions, of Municipal Tribunals  Dupin, de Ant. Eccles. Disciplina, Diss.
(France and England,) as to Privil-    Historiie, 290.
eges, &c., of Consuls, &c., 260. Of  Durand de Maillane's Dictionnaire de
International Tribunals, ditto, 269.    Droit Canonique, 314, 329, 334, 340,
Of American Courts, 263, 270.         344, 350, 360, 429, 431.
Decretalia. See Corpus Juris Canonici.  Dutch Consul, arrested by the GoverDecretum. See lb.                       nor of Cadiz, 260.
De Maistre, 327.                      Duties, Import, Exemption of AmbasDenmark, Claims to maritime IEonours    sador from, 209.
with respect to Ships entering the
Baltic, 44. Treaty with Russia with                  E.
respect to Ditto, 45. Treaties with
European Powers with reference to   Ebenders, Was ist ein Bischof? 373.




INDEX.                                513
Ecclesiastical Titles. See Titles.       proved, 114. Relations of Papacy
Edward's Admiralty Reports, 26. See    with, 358. See Papacy.
Reports, List of.                   Foreigners, their Right to Protection,
Egyptians, clothed Functions of Am-    3.  Difference between domiciled
bassador with religious Character,    Foreigners and Visitors, 6.
161.                                Fox (Charles James,) Speech of, on
Eichhorn, Kirchenrecht, 338, 344, 345,    the Russian Armament (1792,) 55.
348, 371, 373, 374, 394, 395, 398,  France, her Conduct in Conflict be399.                                   tween  Great Britain  and North
Elizabeth (Queen,) Excommunication       American Colonies, 18.  Recogniof, 416.                               tion of Consulate of, by Great BriEllenborough (Lord,) 114, 133, 260,    tain, 21. Revolutions of, 23. Claims
268.                                   of maritime Honours in a Portion of
Embassy, 134-190. Secretary to, dis-   the  Mediterranean, 44.   Claims
tinct from general Suite, 197.  See    Precedence in  Rank  over other
Ambassador.                            States, 49. Guarantees Succession
England, Commonwealth and Protec-    of Princess Sophia to British Throne,
torate of, 21. Papal Relations with    after Death of Queen Anne, 75.
Rome, 412. See Great Britain.          Treaty between, and Htanse Towns
Enlistment (Foreign) Bill, Debate on,    (1716) as to Places of Worship in
27.                                   the House of their Consuls, 242.
Ensign. See Colours.                     Law of, as to Privileges and ExterEnvoys, what Class of Ministers, 219.    ritoriality of Ambassadors, 207. OrEquality of States, Rights incident to,    donnances of; respecting Consuls in
1, 33.                                 Christian Countries, 258; respecting
Eugenius IV., 336.                       Consuls in Barbary, 259.  Papal
Evans' Translation of Pothier, 94.       Relations with, 358.
Evidence, Acts of foreign State only  Francis I., absolved from  Obligation
proved by an examined Copy on Oath,    of Oath by the Papal Legate Caraffa,
114.                                   67. Ambassadors of, to Venice and
Exequatur of Consuls, 241-253.  See    Constantinople, arrested and exeConsuls.                               cuted passing through Milan, 187.
Exmouth (Lord,) Demand for Compen-  Francis II., 344.
sation from the Dey of Algiers for  Frankfort, Decree  of the  Diet of
Injuries done to British Consul, 242.    (1338,) 335.
Exterritoriality, Rights to, by Sover-  Frederick I., of Prussia, Assumption
eigns, 123.  See Sovereigns.  Of    of royal Title, 29. Secured Safety
Ambassadors, 156, 190. See Ambas-    of Papal Legates, 168.
sadors.                              Frederick II., 312.
Extravagantes. See Corpus Juris Can-  Full Power, 226. See Ambassadors,
onici.                                 Letters of Credence, &c.
Eybel, Was ist der Papst? 373.         Fynn's British Consul Abroad, 240,
242, 245, 247, 253, 273, 274.
F.
G.
Farini, Lo Stato Romano, 429-431.    Gains, 81.
Fees, Consular, Order  in  Council  Gallison's (American) Reports, 289.
(1851) regulating, 257.                See Reports, List of.
Felix V. (Pope,) 336.                  Garden (De,) Traite de Diplomatie,
Fen6lon, 55.                             131, 171, 172, 173, 175.
Ferdinand, of Arragon, 277.            Gazette des Tribunaux, 126, 127, 196,
Ferreira (Pinheiro,) 220, 223.           262.
Flag. See Colours.                     Gelston v. Hoyt, Case of, 27.  See
Flassan, 88, 130, 240.                   Cases, List of.
Fleury, Hist. Eccles., 329.            Genoa, Claims of maritime Honours
Fcelix, 118, 134, 189, 207, 208, 209,    in the Ligurian Sea, 44.  Dutch
240, 269.                              Consul at, Claims to ambassadorial
Forcellini, Lexicon, 167.                Privileges for, refused by Senate,
Foreign, Enlistment Bill, Debate on,    260.
27. Spiritual Powers, international  Gentilis (Albericus,) 129, 134, 160,
Status of, 287. States, Acts of, how   161, 163, 195, 196.




514   PHILLIMORE ON INTERNATIONAL LAW.
George II., 272.                         Lib. II. t. iii. 13.           295.
III., Proclamation  of, as to     "   II. t. xi.                 55.
Flags and Colours carried by Ships,     "   II. t. xi. 12, 13.    65, 227.
&c., 43. Right of sencling Embassy,     "   II. t. xii.               55.
vested in Prince of Wales, during       "   II. t. xiii.               55.
Incapacity of, 141, 272.                "   II. t. xiii. 1.            67.
George IV., Statute of (Year 6, c. 78,)   "   II. t. xiv.                67.
as to Powers of Consuls, 257.           A   II. t. xiv. 1.             60.
German Protestant States, Papal Re-       "   II. t. xv. 5.             55.
lations with, 401.                      "   II. t. xv. 8-12.           61.
Germany, Emperors of, Titles of, 28.      "   II. t. xvi.            55, 79.
Giannone, Ist. de Napoli, 329, 387.           II. t. xvi. 1.             80.
Gibbon's Decline and Fall of the Ro-          II. t. xvi. 10.           109.
man Empire, 52.                         "  II. t. xvi. 13.             86.
Giesler, Lehrbuch  der Kirchenges-        "   II. t. xvi. 20.        88, 96.
chichte, 348.                           "   II. t. xvi. 25. s. 2.      99.
Gioberti, Introduzione  allo  Studio      "   II. t. xvi. 29.           111.
della Filosofia, 380.                   "  II. t. xvii. 18, 19.        62.
Government, Debts of, 1.                  "   II. t. xviii.             134.
Grant (Sir Winm.,) Judgment of, as to     "   II. t. xviii. 1.          157.
Debts of a State, 13.                   "   II. t. xviii. 2.          144.
Great Britain, Conflict between, and      "   II. t. xviii. 3.     148, 154.
North American Colonies, 18. Her        "   II. t. xviii. 4-5, 117, 157, 174.
Refusal to recognize Republic of                                      175,
Ditto (1792), 21.  Claims of mar-       "  II. t. xviii. 4-6.          99.
time Honours in the narrow  Seas,       "   II. t. xviii. 4, 7.       175.
44.  Treaties with Holland as to        "   II. t. xviii. 5-1.    188, 191.
maritime Honours, 45. Convention        "  II. t. xviii. 6.           172.
(1815) with the King of the Nether-     "   II. t. xviii. 8. 2.       212.
lands and Russia, as to the Russo-          II. t. xviii. 9.          171.
Dutch Loan, 102.  Convention with       "   II. t. xviii. 10.         124.
Russia (1831,) as to  ditto, 103.       "   II. t. xx. 44, 3.         278.
Treaty with Sweden (1666,) forbid-      "   II. t. xx. 48.             61.
ding the lending the Ships of the       "   II. t. xxii. 14.          277.
one for the Use of Enemies of the       "   II. t. xxv.                 3.
other, 112. Powers entrusted by, to     "   II. t. xxvi. 4-4.         278.
Consuls, 253. Subjects of, Advice       "  III. t. ii.                  1.
and Assistance to be given to, by       "  III. t. ii. 1, 2.           14.
Consuls, 254.  See Consuls.  Ships      "  III. t. ii. 5.               5.
of, Protection on board of, 255.        "  III. t. ii. 7.               7.
Greece, Debates on Affairs of, 3. Re-      "  III. t. xx. 33.            86.
cognition of Independence of, 24.       "  III. t. xxi. 16.           232.
Papers relative to the Affairs of, ib.  Grotius, de Imperio Summarum PotesTreaty  of Guaranteeship  (1832)              tatum circa Sacra, 281-291.
concerning, 77. Member of Corn-   -, Tract. de. Leg., 291.
munity of States, 59. Regulations  Guarantee,  Treaties  of,  70.   See
of, respecting Consuls, 259.  Care     Treaties.
of Religion  committed to Magis-  Guideckens (Col.,) English Ambassatrates, 282. Papal Relations with    dor at Stockholm, 213.
Rome, 401.                           Gunther, 33, 49, 50, 69, 118.
Gregory IX., 305.                      Gustavus, Adolphus, 141.
the Great, (Pope,) 292, 449,  Gyllenburg  (Swedish  Ambassador,)
450.  Decretals of.  See Corpus Ju-    Case of, for Conspiracy, 181.
ris Canonici.
Gronovius, 277.                                          H.
Grotius, de Jure Belli et Pacis.
Haggard's (Admiralty) Reports.  See
PASSAGES CITED FROM.              Reports, List of.
Reports, List of.
(Prolegomena.)               Page  Hale's Pleas of the Crown, 174-183.
Proleg. 51.               315.  Hallam's  Constitutional History  of
Lib. I. t. iii. s. 13.        277.    England, 131.




INDEX.                                515
Hanau (Gazette de,) 404.                 210, Use of, as an Asylum for ReHanover, Title of King of, recognized,    fugee Offenders, 211. Purchase of,
30.   Treaty  of (1725,) between       for Ambassador, sometimes sancGreat Britain and Prussia, 73. Pa-    tioned by Nations, 213.  Ambaspal Relations with Rome, 397. Oath    sador's Right to enjoy Rites of his
of Allegiance to be taken by Roman     his own religion within Precincts
Catholic  Bishops  in,  Form  of,    of, 214.
400.                                 Huber, 124.
Hansard's Parliamentary Debates, 12,  Hubertsburg, Treaty of, 66.
101, 106.                            Huberus, 155, 175.
Hanse  Towns, Treaty  with France  Huc (M.,) Voyage dans le Thibet, 301.
(1716,) as to Places of Worship in  Hume (Mr.,) Motion in House of CornHouse of Consul, 242, n.               mons, (1834,) respecting  RussoHaslang, Count (Bavarian Ambassa-    Dutch Loan, 105.
dor,) Claims of Privileges by Persons, as Servants of; 199.                            I.
Heffters, 1, 3, 15, 27, 28, 33, 36, 55,
657 118, 120, 122, 124, 131, 134,  Ihering, Rudolph, 162.
135, 151, 153, 154, 156, 167, 172,  In Ccena Domini (Papal Bull,) 329.
210, 217, 219, 221, 223, 225, 226,    Papers relating to, 330.
237, 240, 263.                       India, British Governor General of,
Hegel, 25.                               143.
Henry II., 67.                         Innocent III., 307.
III., 298, 313.                -_     - IV., Frederick II., deposed
IV., 298.                         by, 302.
VI., 307.                      Inoyosa and Colonna (Spanish AmbasVII., 154.                        sadors,) Case of, for Libel against
-   VIII., Excommunication  of,   the Duke of Buckingham, 179.
416.                                 Institutes.  See Roman Law. Coke's,
Hermann Delong, Case of, 262.            154, 174.
of Luxemburg, 303.           Instructions  for Ambassadors, 225.
Hertslet's Commercial Treaties, 58,    See Ambassadors.
102, 213.                            Insults to States, 35.  To outward
Hesse, Elector of, Refusal by five great    Insignia of States, 37. To neutral
Powers to recognize his Title  of    Flag of Ditto, 38.
King, at Congress of Aix la Chapelle,  International Law, Decisions of Tribu31.                                    nals of, as to Privileges of Consuls
Hesse Cassel (Landgrave of,) Ambas-    and Ambassadors, 269.
sador of Holland at Court of, ac.  Internuncio, what Class of Minister,
cused of Maladministration of a        219.
testamentary Trust, 173.             Interpretation of Treaties, 79.  See
Hesse Cassel, Passport to Minister of,    Treaties.
at France, Refused for Nonpayment  Inviolability of Ambassadors, 160. See
of Debts, 200.                         Ambassadors.
Hilliger, 123.                         Ireland, Union with, Proclamation of
Hoey (M. Van), Case of, 182.             George II., with respect to Colours,
Hoffmann, 64.                            to be carried by Merchantmen of
Holdernesse (Earl of,) English Am-    United Kingdom, 43.
bassador to Venice, Arrest of, by  Israelites, Inviolability of Ambassadors
Austrians, 181.                        acknowledged by, 161.
Holland, Guarantee of, for Succession
to British Throne after Death of                      J.
Queen Anne, 75.
Holstein, Duke of, Envoy Extraordi-  James II., Recognition of Son of, renary of, 194.                          sented by Great Britain, 21.
Honour and Respect, Marks of, be-  Jarry (M.,) le President, 127.
tween States, 33.                   Jenkins (Sir Leoline,) Life of, 43, 45,
Hooker's  Ecclesiastical Polity, 289,    86.
318.                                Jenkinson, (Mr., afterwards Earl of
Hostages, 68.                            Liverpool,) Defence of the Conduct
Hotel of Ambassador, Inviolability of,    of Great Britain (in 1758,) respect



516    PHIILLIMORE ON INTERNATIONAL LAW.
ing the Protestant Succession to  Leo III., 296.
British Throne, 76.                  -  X., 67.
Jerusalem, Establishment of Bishopric  Leopold II., (Emperor of Austria,) 53.
of, 427.                           Lequeux, Manuale Compendium Juris
Jervis (Lord Chief Justice,) Decision    Canonici, 287, 296, 340, 351, 359,
of, in the Case ofM. Drouet (Belgian    360, 361, 368, 371.
Minister,) 202.                    Leslie (Bishop of Ross,) Ambassador
John IV., (King of Portugal,) Ambas-    of Mary Queen of Scots, 139, 165,
sador of, admitted by England, 138.    176, 177, 222.
-  XXII., 325.                       Letters of Credence. See Credence.
Joseph II., Emperor of Austria, 215,  Levant, Consuls in, Status and Juris299.                                 diction of, &c., 271. Statutes, relatJulius IT., 57, 67, 277.                ing to, 272.
Junius, Letters of, 34.              Libels on States, 35.
Jurisdiction  (Civil,) Exemption  of Liege, Bishop of, 198.
Ambassadors from, 191; of Her  Liverpool (Earl of) Remarks of, in
Majesty in Countries out of her    Discourse on the Conduct of Great
Dominions, 272.                      Britian in respect to neutral Nations,
76.
K.                   Livy, 282.
Locre, Legislation Civile, 207.
Kainardgi, Treaty of 1774 between  London Merchants, Petition  of, to
Turkey and Russia, 135.            Lord of the Isles (Steamship,) Case of
Kaltenborn, Grundsatze des Praktis-    House of Commons, 17. (n)
chen Europaischen Seerechts, 240.    the Master of, for wearing illegal
Kent, Commentaries of, 240, 252.        Colours, 43.
King (the) v. Benson, Case of. See  Lorieux, cited 302.
Cases, List of.                    Louis XI., 186, 277, 341.:Klinkhammer, 58.                          XII, 31.
Kluber, 15, 27, 29, 33, 39, 41, 49, 51,    XII., 359.
652 55, 59, 60, 61, 62, 63, 65, 66, 68,    XIV., 532 150 359, 361.
69, 72, 118, 120, 124, 130, 131, 134,    XVI., 53.
135, 141, 147, 156, 157, 171, 172,  Louisa of Savoy, 150.
175, 188, 193, 216, 217, 220, 222,  Lyons, Councils of, 314.
223, 227, 231, 279, 399.
Knapp's Privy Council Reports, 14.                    M
Koch, 53, 58, 295, 296, 297, 298, 299,
301, 303, 335, 336, 345, 368, 432.    Mably, Droit Public, 27, 28.
L.                   Mackintosh  (Sir J.) Miscellaneous
Works, 19. Speech on the RecogniL'Aubespine  (French Ambassador,)   tion of Spanish American States, 20,
Case of, for Conspiracy, 177.         21, 34.
Laybach, Congress of (1821,) 45.      Madrid, Treaty of (1526,) between
La Haye, Triple Alliance of (1717,)    Francis I. and Charles V. confirmed
141.                                  by Oath, 67.
Lamnberty, Memoires, 227.             Manilla, the Case of, 26.
Language employed in Treaties, &c.,  Mansfield (Lord,) 198, 266, 267.
52.                                 Marca (Petrus de,) de Concordantia
Languedoc, Negotiation  by France    Sacedotii et Imperii sui de Liberta(1704,) through Mediation of Eng-    tibus Ecclesie Gallicanae, 350.
land, with Reformers of, 145.       Marechale de Guebriant, sent to Poland
Laurent, Hist. du Droit des Gens, 283.   to conduct the Princess des GouzaLeber, Pieces relatives A l'Histoire de    ques, 150.
France, 329.                        Maritime Ceremonials, 39. To whom
Legate (Papal) Provincial, 196. A       paid, ib. What they consist of ib.
latere, distinguished from Nuncios,    Who can claim them, 40. In open
218-440.  Missi or Nuntii, 441.    Sea, 41. Manner of paying by difNati, 442.                            ferent Ships, ib.  Ordonnance of
Legation, Secretary of, Privileges of    King of France with respect to, 42.
Exterritorialty to, 197.              Regulations as to Colours, 43. BriLeibnitz, 286, 335.                     tish Merchant Vessels must salute




INDEX.                                 517
Ships of the Navy, 44. In particu-  Miltitz, 235, 237, 238, 239.
lar Seas, distinguished from  open   Minerva, The, 43.
Seas, ib.  Claim of Venice to mari-  Ministers, Public, three Classes of, 51.
time Honours in the Adriatic, 44;    Regulations for the Reception of,
of Geneva in the Ligurian Sea, ib.;    instituted by the United States of
of France in Portion of the Mediter-    North America in 1783, 52.  Priviranean, ib.; of Denmark, with re-    leges of, See Ambassador. Different
spect to Ships entering the Baltic,    Classes of, 216. Class distinguished
ib.; of Great Britain, with respect    by ceremonial Honours, 220. Rank
to Ships in the narrow  Seas, 44.    of, how determined, 222.
Treaties relating to, 45.            Miruss, 134, 147, 151, 153, 155, 157,
Martens (De,) Droit des Gens, 1, 12.    168, 170, 172, 188, 192, 210, 212,
28, 29, 33, 39, 40, 41, 46, 48, 51, 55,    217, 218, 219, 222, 223, 225, 226,
64, 73, 75, 118, 120, 124, 125, 129,    227, 228, 229, 230, 231.
130, 131, 134, 135, 147, 149, 157,  Mission of Ambassador, when altered,
172, 193, 214, 218, 219, 220, 221,    231; when suspended, 232; ended,
222, 223, 225, 226, 227, 228, 229,    ib.
230, 241, 246, 258, 263.  Causes  Modern Consulates in Christian CounCSlebres, 5, 15, 18, 30, 38, 131, 177,    tries, 240.  See Consuls.
181, 182, 185, 187, 201, 208, 213,  Molesworth, Sir W., Speech of, on CraRec. de Traite, 53,130, 250. Nouv.    cow, 101.
Rec. 174, 274, 364. Droit des Gens,  Monaldeschi, put to death by Christina,
33, 37, 238, 242, 245, 246. Manuel     ex-Queen of Spain, 131.
Diplomatique, 51. De la Religion  Montesquieu, De l'Esprit des Lois, 160,
et du Culte, 279. Le Guide Diplo-    175, 281, 286.
matique, 236, 240, 242, 259.         Moser, Die Gesandten nach ihren Rech—.-  (De) et De Cussy, 12, 24, 41,    ten und Pflichten, 222.
42, 45, 51, 52, 240, 246.            Mihlenbruck, 79, 95.
Marten V. 335.                          Miiller's, Furstenbund, 304.  ReichMartin (H.,) Histoire de France, 363.    stagstheatorum unter Friedrich III.,
Martin's (American) Reports, 109. See     345.
Reports, List of.                    Municipal Tribunals, Decisions of, in
Mason, Vindicime Ecclesike Anglicanm,     Cases respecting Privileges of Am290.                                   bassadors and Consuls, 259.
Maule (Mr. Justice,) Decision of, in   Munro, President, Message of (DecemCase of M. Drouet (Belgian Minis-    ber 1833,) 18.
ter,) 204.                           Munster, Peace of (1648,) 67. PriviMecklenburgh  (Duke  of,)  Title of    leges of Ambassadors waived at ConGrand Duke recognized, 31.             gresses of, 197.  Treaty of, Public
Meisel, Cours de Stile Diplomat, 31.      Minister appointed by Spanish AmMendoza (Spanish Ambassador,) Case        bassador to negotiate, 142.
of, for Conspiracy, 177.             Muratori, Annali, 295.
Mensch (De,) Manuel Pratique des  Muscovy, Ambassador of Peter the
Consulats, 259.                         Great, Czar of, arrested in London
Merchant Seamen's Act (7 & 8 Vic.    for Debt, 205. Duke of, 397.
cap. 112,) Provisions in, relating to
Consuls, 258. Shipping Act (17 &
18 Vic. c. 104,) as to Powers of                      N.
Consuls, 258.
Merlin (Ministre Public,) 136, 137,  Napoleon, Emperor, Title of, Recog138, 141, 142, 143, 144, 145, 149,    nition of, 28.
152, 154, 155, 168, 172, 188, 189,  Native, The (Schooner,) Case of, for
193, 195, 207, 210, 211, 217, 218,    Contempt in not saluting H. M. S.
219, 220, 230, 231.                    Semiramis, 43.
Milan, Governor of, Ambassador ap-  Naval officers, Precedence  between
pointed by, refused by Swiss Can-    Consuls and, 225.
tons, 143.                           Navy.  See Royal Navy.
Miles' (American) Reports.  See Re-  Netherlands, the Privileges as to Amports, List of.                        bassadors of, 209.
Milman  (Dean,) History  of Latin   Newspapers, referred to: The Times,
Christianity, 300, 304, 327.           11; Guardian, 367; Telegraph, 325;




518       PHILLIMORE  ON  INTERNATIONAL LAW.
Gazette des Tribunaux (French,)  Palmerston (Lord,) Circular of, respect262.                                 ing Debts of Foreign States, 9. ReNeyron, (P. J.,) de Vi Fcederum, 64.    ply of, to Lord L. Bentinck's Motion
Nimeguen, Treaties of, written in the    respecting British Bondholders, 11.
Latin Language, 52.                Papacy, Increase of, after Death of
Noodt, (Ger.,) de Dissert Relig. ab Im-    Charlemagne, 298. Roman Church
perio, Jure Gentium, 279, 355, 356.    under Constantine, 299. Claims of
Norfolk (Duke of,) putto death for Con-    the Pope, 309.  Decretals in the
spiracy, 176.                         Corpus Juris Canonici, and PrinciNorway and Sweden, Papal Relations    ples contained therein at variance
with, 406.                            with International Law, 307. InNovellae of Justinian.  See Roman    ternational Status of, between the
Law.                                 Period of Promulgation of the Canon
Nuncios, distinguished from Legates d    Law, and the Council of Trent, 334.
latere, 218.                          Height of Papal Power, ib. Pragmatics and pragmatic Sanctions, be0.                     ginning of, 337.  Concordata between the Roman See and IndepenOath, once taken as a Security for Per-    dent States, 337. International Reformance of Treaty, 67. Of Allegi-   lations of Rome with the Church of
ance to be taken by Roman Catholic    France,338. Pragmatic ofSt.Louis,
Bishops in Hanover, Form of, 400.     339. German Concordata with the
I(Ecumenical Councils, Nature of, 314.    See of Rom e,343. The Council of
Subdivision of, ib.                   Trent, and its Effect upon InternaOfficers, Naval.  See Royal Navy.       tional Relations, 348.  After the
Oldenburgh, Duke of, Title of, recog-    Treaty of Westphalia, 352. Internized, 31.  Claim  of Consul of,    national Relations of, with foreign
(Becker,) forExemption from Arrest,    States in which a Roman Catholic
268.                                  Church is established, during Period
Orleans (Duke of,) Triple Alliance of    of Reformation and present Time,
La Haye (1717,) negotiated by Car-    358. Relations of, with France, 358.
dinal Dubois, during Minority of,    Monitorio di Parma, 365. Relations
141.                                  of, with Austria, 371; with Spain,
(Duchess of,) Treaty between    376; Portugal, 382; Two Sicilies,
France and England negotiated by,    387; Sardinia, 390; Tuscany, 393;
150.                                  Bavaria, 395. International RelaOtho (Prince,) Treaty of Guarantee    tions of, with foreign States in which
that Greece shall form a monarchical    a Protestant Church is established,
independent State, under Sovereign-    397; with Prussia and Hanover,
ty of, 77.                            397; with German Protestant States,
the Great, 298, 307.               401; with Saxony, 405; with DenOttolan, 240.                           mark, 406; with Sweden and NorOttoman Porte, Treaty with Austria for    way, ib.; with Wurtemburg, ib.;
Equality of Rank, 49. Ancient Max-    with Switzerland, 407. International
im of, with respect to Language of    Relations of, with States in which a
Treaties, 54. Papal Relations with    Branch of the Catholic Church not
Rome, 411.                           in communication with Rome is esOppenheim, 15, 25, 29.                  tablished, 410. Relations of, with
Oxenstein (Chancellor,) Government    Russia, 411; the Porte, ib.; Greece,
of Stockholm  devolved upon, after    ib.; England, 412. The Electors,
Death of Gustavus Adolphus at Lut-    Ministers and Courts of the Pope
zen (1632,) 141. Nominates Gro-    considered in their Relation to fortius as Ambassador to France, who    eign States, 428. Who can be electwas refused by Richelieu, 142.        ed as Pope, 429. Who can elect,
430. How elected, 433. Advice and
P.                     Assistance to the, as to temporal
Government  of Kingdom,  435.
Pacca (Cardinal,) Memoire del, 369,    Courts of, and foreign States, ib.
370, 371.                             Legates of the, 440. Deposition of,
Packman, Lehrbuch des Kirchenrechts,    443. Cardinals of, how appointed,
284, 321, 326, 430.                   431.  Where triable for Offences,




INDEX.                               519
437. Pio Nono and Louis Philippe,    1815,) respectingRusso-Dutch Loan,
445. England and Rome, 448.           106. Speech respecting Case of Mr.
Papal Government, Quarrel with Re-    Pritchard, British Consul at Tahiti,
public of Venice (1364,) on account    244.
of Outrages on Consuls of Republic,  Penalty, for carrying prohibited Col361.                                  ours by Ships, 43.
Papers, Parliamentary:-Correspon-  Pendant.  See Colours.
dence respecting Arrest of Mr Har-  Pepin d'Heristal, 293.
wood, Correspondent of Morning  Pepin-le-Bref, 298.
Chronicle, by the Austrian Authori-  Peray (M. Michael du,) 342.
ties at Vienna (1852-3,) (laid before  Personality ofAmbassador, Exemption
Parliament 1853,) 3. Debates in    from  Civil Jurisdiction of foreign
Parliament on the Affairs of Greece    Country, 191.
and the Claims of Don Pacifico (June,  Peter the Great, Czar of Russia, As1850,) 3. Petition of London Mer-   sumption of Title of, 29.
chants, presented to House of Com-  Philip of Swabia, 307.
mons by Sir J. Mackintosh, 17. -- II., Order of, with respect to
Treaty of Amity, Commerce and    maritime Honours, 41.
Navigation between His Majesty and      III., of France, 318.
the United Provinces of Rio de la  -     IV., the Handsome, 319.
Plata (signed Buenos Ayres, Feb. 2,  Phillimore's (Burn's,) Ecclesiastical
1825, presented to Parliament, May,    Law, 275, 413.
16, 1825,) 24. Papers relative to  Phillipp's Kirchenrecht, 296, 311, 313,
the Affairs of Greece (published in    321, 335, 336, 346, 362, 371, 373,
London, 1835,) ib. Report from the    374, 394, 398, 399, 400, 401, 402, 403.
Select Committee on Consular Es-  Philippines, Spanish Govenor of the,
tablishments, laid before Parliament    143.
10th  Aug.,.1835, 240.  Papers  Pierre Pithou, 360.
laid  before Parliament respecting  Pio Nono and Louis Phillippe, 445.
Her Majesty's Jurisdiction in the  Pius IX., 296.
Levant (1845,) 271. Papers laid  Plank, Geschichte der Christlich-kirchbefore Parliament as to Bull In    lichen Gesellschaftsverfassung, 292.
Coend Dominsi, Requisition of the  Poland, Treatywith Prussia (1773,) 53.
Attorney  General Seguier, 330.    Pledged Crown Jewels to Prussia, 69.
Correspondence relating to the Af-  Polybius, 282, 283.
fairs of Rome (1849,) presented  Pomponius, 164.
to Parliament 14th April, 1851, 447.  Pope, how elected, 433. Advice and
Correspondence between Viscount    Assistance to, in the temporal GoPalmerston, the Marquis of Norman-    vernment of Kingdom, 435. Roman
by, and Prince Castalcicala, laid be-    Courts and Foreign States, ib. Defore Parliament June 15, 1849, 448.    position of,. 443.  Pio Nono and
Pappenheim (La Baronne de,) 196.        Louis Philippe, 445.  For other
Paris, Treaty of, 66.                   Matters connected with, see Papacy,
Parliamentary Papers, 374, 375, 377,    &c.
380, 381, 382, 383, 384, 385, 386,  Popery Law, Tracts on the (byBurke,)
389, 390, 392, 393, 394, 399, 400,    418.
401, 402, 404, 405, 406, 407, 408,  Portalis (Jean Etienne,) 281, 304, 334.
410, 411.  See also Papers.                (Vicomte Frederic,) 282, 327,
Parma, Monitorio de, 365.               334, 356, 410, 428.
Paschal, (Pope,) Restoration of City of  Porte, Ottoman.  See Ottoman Porte.
Rome to, 295.                       Portugal, Revolt of, from  Spain, 20.
Pater Patratus, 163.                    Law of, as to Privileges and ExterPatriarchates of Constantinople, &c.   ritoriality of Ambassadors, 208. PaSee Religion.                        pal Relations with Rome, 383.
Pauli, Jos. de Riagger, Institutiones  Pothier, Evans' Translation of, 79Jurisprudentike Eccclesiasticae, 373.    89, 90, 98, 109.
Pays de Vaud, Hypothecation of, by  Power, full, 222. See Ambassadors,
the House of Savoy, 69.               Credence, Letters of, &c.
Peel (Sir R.,) Speech of, on Debates on  Powers of Consuls, 252. See Consuls.
Cracow, 102. Remarks on Despatch  Pragmatic Sanction, 74, 337. See Paof Lord Castlereigh (13th February,    pacy.




520   PHILLIMORE ON INTERNATIONAL LAW.
Prsemunire, Statutes relating to, 413.    trines, &c., 281. Influence of reliPrecedence, between Consuls and na-    gion, ib. Collegium licitum of the
val Officers, 255.                   Church, 285. Connexion between
Perfectures, Division of the Roman    Church and State, identical with
Empire into, by Constantine, 287.    Connexion between the Church and
Prendergast, Law relating to Officers   the Roman Empire, 286. The Roof the Navy, by, 43.                 man Empire under Constantine, diPritchard (Mr.,) British Consul at Ta-    vided into four Prefectures, 287;
hiti, Arrest of, by French Command-    Prefectures divided into Dioceses
ant, 243.                            or Vicariates, ib.  Ecclesiastical
Privileges, of British Consuls, 254.    Patriarchates of Rome, ConstanProclamations, insulting, Right of    tinople, &c., ib.  The  Tendency
Redress for, 35.                     and  Object of Christianity, 288.
Property of Subjects liable to Debts of    Church  under Constantine, 289,
State, 14.                           299; during  Time of Pepin  le
Protection, Right of Citizens to, in    Bref, 293;  of Charlemagne, ib.
foreign Countries, 3; on board Bri-   Identity of Church and State, 296.
tish Ships to Refugees, 255.          Growth of Authority and Pretension
Protestant Succession  in England,    of the Pope after Death of CharleTreaties of Guarantee relating to,    magne, 298.   Collision between
71, 75. States (German,) Papal    Church and  State, 302.  Rights
Relations with Rome, 401.            claimed bytemporal Sovereign, Jura
Provisoes, Statutes of, 413.            magestatis circa sacra, 302. Claim
Prussia, Enactments as to Privileges,    of Roman Pontiff to Title of Pope,
&c., of Ambassadors, 209. Regula-    to the Exclusion of all other Bitions as to Consuls put forth by, 259.    shops, 302. The Corpus Juris CanoPapal Relations with Rome, 397.      nici, 305. See Papacy and Corpus
Puffendorf, 79, 80, 95, 96, 109, 117.   Juris Canonici, &c.
Putman, J. L. E., 52.                Report, Parliamentary.  See Papers.
Putter, 168.                         Reports of Cases. See List of Reports
Puttlingen (De.) 208.                   at Beginning of this Volume.
Pythagoras, 161.                     Republics (South American,) Recognition of by Great Britain, 22.
Q.                            (French,) ib.
(great,) their Rank among
Quadruple Alliance (1718,) 52.          States, 51.
Quintilianus, 87, 96, 111.           Respect and Honour, Marks of, between States, 33.
R.                  Responsales, 167.
Revolution, French (1791,) 59.
Radstadt, Peace of, 53.               Revue Etrangere, 208.
Ranke, 294, 295, 369.                Rhine, Confederation of, Assumption
Ratification of Treaty, 65.             of new Titles by old Potentates, 30,
Ravenna, Archbishop of, 167, 295, n.;  Richard I., Captivity of, in Austria,
Exarchate of, 294.                    186.
Rayneval (De,) Instit. de Droit de la  Richelieu (Governor of France,) ReNature et des Gens, 279.             fusal to receive Grotius as AmbassaRechberger, Euchiridion, Juris Eccle-    dor to France, 142. Arrest of Elecsiastici Austriaci, 373.             tor Palatine, 186.
Recognition of States, 15. Occasion  Rights incident to Equality of States.
for its Application, 16.  Of two      See Equality.
Kinds, virtual and formal, 17. Of  Rio de la Plata, Treaty between and
Titles of Dignity, 27.               Great Britain, 22.
Recr ance, Lettres de, 233.          Ripperda (Duke of,) Case of, 212.
Register, Annual, 38, 243, 244, 274,  Robertson's (Ecclesiastical) Reports.
275, 380.                            See Reports.
Reiffenstuel, Jus Canon Univ., 329.    Robespierre, 286.
Religion and the State, 278.  How   Robinson's (Admiralty) Reports. See
connected with the State, 279. Right    Reports.
of State to superintend within its  Rodolph, Emperor, 313.
territorial Limits all religious Doc-  Rome, ancient, 162. When Christian




INDEX.                                 521
Church planted, 286. Divided into     Digest, Lib. L. t. vii. 8.     194.
four Prefectures byConstantine, 286.                L. t. vii. 17.   165.
Pope of. See Papacy.               "                L. t. xvi. 1.     85.
Roman Catholics, Report from  Com-                    L. t. xvi. 6.     94.
mittee on Regulation of, in foreign                 L. t. xvi. 50.    85.
Countries, 364.                                     L. t. xvi. 126.    87.
Church.  See Religion —Pa-         "          L. t. xvi. 195.    92.
pacy.                                               L. t. xvi. 219.    95.
Law, with respect to Ambassa-      "          L. t. xvii. 2.   149.
dors, 165.                              "           L. t. xvii. 34. 83, 90.
Passages referred to:-  L. t. xvii. 45.   111,
Page        "          Lt. xvii. 67.    90.:Digest,  Lib. I. t. ii. 2.  283.        "          L. t. xvii. 81.    108.
I. t. iii. 3.   122.       "          L. t. xvii. 114. 83, 90.
I. t. iii. 17.   94.       "          Lt. xvii. 172.    94.
1. t. iii. 23.   83.    Codex, Lib. I. t. ii. 19, 23, 26. 285.
I. t. iii. 24.   85.       "          I. t. iii.       285.
I. t. iii. 26.   88.                  I. t. xiv. 12.    82.
". t. iii. 27, 28.   89.  "        II. t. iii. 29.   159.
I.  tiii. t2 xxxix. 5.    92.
I. t. iii. 37, 38.   83.    "        IV. t. lxi. 8.    210.
I. t. vii. 1, 1.  92.                IV. t. lxiii. 3-4. 154.
"  II. t. xiv. 1, pr. 56-82.           V. t. xiii.        92.
II. t. xiv. 5.   60, 81.             IX. t. xxxv. 5,     36.
II. t. xiv. 27, 4.  111.    i         XI. t. xxix.        8.
II. t. xiv. 39.   94.    Institutes,  Lib. IV. t. iv.    36.
II. t. xv. 9.    108.      Novells,   Lib. VI. cc. ii., iii. 167.
II. t. xviii. 1.    160.                 CVII. c. i.     90.
III. t. i. 1, s. 5.    149.   " CXXIII. c. xxv., xxvi. 167, 441.
III. t. iv. 1.    285.        "        CXXXI. t. c. i.   315.
IV. t. ii. 12.    191.  Ross, Bishop of. See Leslie.
V. t. i. 22.     195.  Royal Honours, 46.
V. t. i. 24, 26.   160.  -    Navy, Ships of, Contempt in
Ad        V.V t. i. 28.    196.    British Merchant Vessels to pass
it        V. t. iii. 20, s. 6.  86.    without making required Salutes, 43.
"'        V. t. iii. 23.    86.    Precedence between Officers of and
I"      VIII. t. ii. 23.    92.    Consuls, 225. Colours to be carried
X. t. iv. 19.     94.    by Ships of. See Colours.
XII. t. i. 20       89.  Raynaldus, 335.
"  XIV. t. vi. 7, s. 3.   97.  Rousset, Supplement, 67, 111.
XVI. t.i. 8, 14.     97.  Russia, Recognition  of Peter the
"           XVIII. t. i. 21.  94.    Great's Title as Emperor, 29. Treaty
"    XVIII. t. i. 33.       94.    with Denmark with reference to mar"      XIX. t. ii. 15, s. 4.  90.    itime Honours, 45. Claims with
4"      XIX. t. ii. 18.     90.    France and Spain Precedence over
"     XXIV. t. i. 5.        97.    other States, 49. Convention with
i"    XXIV. t. i. 52.       90.    Great Britain and King of Nether"    XXVII. t. i. 13, 2.    94.    lands (1815,) Russo-Dutch  Loan,
"   XXVIII. t. i. 21.       91.    101. Treaty  with  Great Britain
"      XXX. t. xxxix. 6.    91.    (1831) ditto, 103. Enactment of, as
"    XXXII. t. i. 69.       84.    to Disputes against Members of EmXXXIX. t. i.           196.    bassy, 208. Law as to Privileges,
"   XXXIX. t. ii.          196.    &c., of Ambassadors, 209. Regula"   XXXIX. t. iii.         196.    tions as to Consuls put forth by, 259.
"     XLIV. t. iii. 2.      92.    Papal Relations with Rome, 411.
c"      XLV. t. i. 38, 18.    93.  Russell (Lord John,) Speech of, De"      LXLV. t. i. 80.      89.    bates. on " Cracow," 101.
"    XLVII. t. x. 18.       36.  Russo-Dutch Loan, Conduct of Great
"    XLVII. t. 22.         285.    Britain with respect to the, 101..
L. t. i. 25.     118.    Conventions entered into respecting,
L. t. vii. 4.   149.    101, 103. Motion of Mr. Hume in
DECEMBER, 1855.- 34




522   PHILLIMOIRE ON INTERNATIONAL LAW.
the House of Commons in 1847, re-    Status of, ib. Sovereignty of State
specting, 105. Ditto of Lord Dudley   may be invested in one or more InStuart in 1854, 106.                  dividuals, 118. Rights of, at Home,
Rutherforth, 79, 80, 837 84.            119; abroad, ib. To redress in forRyswick, Treaty of, 52, 67.             eign Courts of Justice, ib. Jurisdiction of foreign Courts over Suite of,
S.                     while in foreign Country, 120. Exemption of, from ceremonial JurisSa (Da,) Brother of Portuguese Am-    diction, 121. Privileges of Exterribassador, Case of, for Murder, 182.    toriality extended to moveable Effects
Saalfeld, 27, 28, 240.                  of foreign Sovereigns, 123. Exempt
Sails, Salutes by, 44.                  from Custom Duties, ib. The like
Salutes. See Maritime Ceremonials.      Goods destined for foreign Sovereign
Sardinia, Papal Relations with Rome,    or his Family in Transit through
390.                                 foreign Countries, ib. Distinction
Sauter, Fundam Jur. Eccl. Cathol., 338.    between moveable and immoveable
Savigny (R. R.,) 79, 81, 90, 91, 92, 94,    property of, 124. Case of the King
95, 116, 295, 300, 352.               of Prussia in the Matter of the SucSavoy, House of, hypothecated the Pays    cession to the Principalityof Orange,
de Vaud to the Cantons of Berne and   124. Practice of English Courts in
Freyburg, 69.                         favour of Exemption of Sovereigns
Saxony, Papal Relations with Rome,    in Matters of private Contract, 125.
405.                                  Decisions in French Courts, 126.
Scheldt, Attempt to open the Naviga-    Disputes between two Sovereigns as
tion of, by Emperor of Austria, 38.    to the Right of Ownership of private
Schmalz, 27, 28, 62, 63.                Property, where to be tried, 129.
Schmauss, 20, 51, 52, 53, 67, 68, 70,    Nations may invoke the Arbitration
73, 74, 76, 242, 335, 386.            of third Country, 129.  How  far
Schoell, Archives Historiques et Po-    Armies of a Nation may be employed
litiques, 368.                        in vindicating the private Rights of
Schram, Institutiones Juris Ecclesias-    their Sovereign, 130.  Family of
tici Publici et Privati, &c., 373.    the Sovereign, 130. Rights of SoSchroeckh, J. M., Christliche'Kirchen-    vereign cease on his civil as well as
geschichte, 302, 345, 346.            natural Death, 131. Deposition or
Scots (Mary Queen of,) Case of, 38,132,    Abdication of, ib. Foreign Sove139, 165, 176, 222.                   reign becoming Suitor in the Courts
Scott, Sir William, 112.                of another Country, 132. Right of
Sea, occupied by Fleet, 40.             Embassy, during Minority of SoveSecretary of State, Approval of, neces-    reign, lodged in Regency, 141. May
sary to the Appointment of Vice-    waive Rights due to them in the PerConsuls, 256. Vice-Consuls cannot    son of their Ambassador, 159.
act without Sanction of, ib. Consul  Spain: claims, with France and Rusto  transmit List of Vice-Consuls    sia, Precedence over other States,
under him to, 257.                    49. Becomes Guarantee for SuccesSemiramis, H. M. S., Complaint against    sion to British Throne, after Death
Master of the Native, for passing     of Queen Anne, 75. Proceedings
without saluting, 43.                 against Ambassador of, in English
Seneca, 97.                             Court, 201. Law of, as to Privileges,
Shakespeare, 310, 312.                  &c., of Ambassadors, 207. RegulaSimon's Reports, 26. See Reports.       tions promulgated  by, respecting
Sismond de Sismondi, 393.               Consuls, 258. Relations with Rome,
Solon (M.,) Case of, 127.               376.
Soller (M.,) Case of, 262.            Spiritual Powers, foreign.  See PaSophia.(Princess,) Succession to British    pacy.
Throne, 75.                         Spittler, Geschichte des Papsthums,
South American Republics, Mr. Can-    318.
ning's Reply to Spanish Minister of,  Springer, (Swedish merchant,) Case of,
on Recognition of; 22-24.             213.
Sovereigns, Assumption of new Titles  Stanhope (Lord,) English Ambassador
by, 27. Rights of, Subjects of Inter-    at Madrid, 212.
national Law, 117.  International  State Papers, 23. See Papers.




IND EX.                                523
States, North American, Recognition         25 Hen. VIII. c. 21.  (Conof, by France, 21. Regulations of,            cerning  Peter's  Pence
as to Ceremonials instituted for Re-          and Dispensations)       414.
ception  of foreign  Ministers, 52.       28 Hen. VIII. c. 13.  (IreLaw of, relating to Exterritoriality          land.)  An Act against
of Ambassadors, 206.                          the Authority of the BiStates, Rights of, incident to Equality,        shop of Rome             414.
1. To protect their Citizens in for-      28 Hen. VIII. c. 16.  (As to
eign Countries, 4. Debts of, 8. Pro-          Dispensations and Licenperty of Subjects liable to Debts of,         ces heretofore obtained
14. Marks of Honour and Respect               from the See of Rome) 414.
between, 33. Right of; to maintain        28 Hen. VIII. c. 19.  (Ireand preserve Reputation, 35. What             land.)  The Act of FaActs have been considered an Inva-            culties                  414.
sion of such Right, ib. Right of to           1 Eliz. c. 1, s. 36.     316.
confer what Titles of Dignity they            5 Eliz. c. 1.            316.
please, 36. Insignia of; Insults offer-      13 Eliz. c. 2.            31;.
ed to, 37.  Competency of, to re-  12 & 13 Will. III. c. 2.             76.
nounce Rights, 46. Rules with re-              7 Anne c. 12.      198, 266.
gard to Precedency at Conferences,         26 Geo. III. c. 84.         426.
46. Right of, to International Pri-        55 Geo. III. c. 115.        102.
vileges not affected by Change of           3 Geo. IV. c. 110.          44.
Constitution, 48. Rank of, 49.              6 Geo. IV. c. 23.          272.
Status of Consuls, Treaties illustrating,     6 Geo. IV. c. 78.          257.
249. International, of foreign spirit-      6 Geo. IV. c. 87.     257, 275.
ual Powers, 277.                            6 Geo. IV. c. 108.          44.
2 & 3 Will. IV. c. 81.         102.
STATUTES REFERRED TO.    Page.    3 & 4 Will. IV. cc. 50. 53.           44.
37 Edw. III. st. 1, c. 1.   413.          4 Will. IV. c. 13.          44.
38 Edw. III. st. 2.         413.               5 Vict. c. 6, s. 1.    427.
13 Rich. II. st. 22 c. 2.   414.           6 & 7 Vict. c. 94.        272.
16 Rich. II. c. 5.          414.           7 & 8 Vict. c. 112.       258.
2 Hen. IV. c. 3.           414.           8 & 9 Vict. c. 87, s. 10.   44.
3 Hen. V. st. 2, c. 4.     414.         11 & 12 Vict. c. 108.      419.
32 Hen. VI. c. 1.  (Ireland)             12 & 13 Vict. c. 62.        257.
all Statutes against Pro-           13 & 14 Vict. c. 111.       213.
visions in England and              14 & 15 Vict. c. 60.  (An
Ireland to  be kept in                    Act to prevent the Asforce                   414.              sumption  of certain
2 Edw. IV. c. 3.           414.              ecclesiastical Titles in
7 Edw. IV. c. 2, (Against                    respect of Places in the
Bulls from Rome)        414.              United Kingdom)    4214.
10 Hen. VIII. c. 5. (An Act              14 & 15 Vict. c. 99,       114.
against  Provisors  to              17 & 18 Vict. c. 104,   44, 258.
Rome)                   414.  Stephen II. (Bishop of Rome,) 294.
23 Hen. VIII. c. 20. (An Act       Stephens (Blackstone,) 175, 205.
restraining payment of         Story, American Constitution, 79, 110,
Annates to the See of            151. On the Conflict of Laws, 13, n.
Rome)                   414.  Stowell (Lord,) Judgment of; in the
24 Hen. VIII. c. 12.  The            Indian Chief, 269.
great Statute forbidding       Strype, 131.
Appeals to Rome, under         Stuart (Lord Dudley,) Motion of, in
Pain of Prcemunire)    414.    House of Commons (1854,) respect25 Hen. VIII. c. 19. (Act of         ing Russo-Dutch Loan, 106.
the Submission of the          Suarez, 79.
Clergy, and the Restraint      Suite, of Ambassador, Exemption of,
of Appeals)             414.    from  Civil Jurisdiction of foreign
25 Hen. VIII. c. 20.  (Act           Country, 196.
for Nonpayment of First-       Sully (Due de,) French Ambassador,
fruits to the Bishop of          Case against one of Retinue of, for
Rome)                   414.    Murder, 178.




524    PHILLIMORE ON INTERNATIONAL LAW.
Sweden, Treaty with England (1666,)    be positive and clear, ib.  What
112. Papal Relations with Rome,    may be the lawful Subject of, ib.
406.                                  Cannot contain Engagements inconSwitzerland, Alliance with  France,    sistent with those made with other
(1777,) 67. Papal Relations with    States, ib. Ditto Engagements conRome, 407.                           trary to Morality and Justice, ib.
Invalid on the ground of physical
T.                     Impossibility, 65. Ratification of,
by Government of contracting
Tahiti, Arrest of Mr. Pritchard, British  Country, 65. Confirmation of, ib.
Consul, at, 243.                      Adhesion  by new  Sovereigns to
Talbot (Lord Chancellor,) Judgment    old Treaties, 66. Renewal of, ib.
of, in Barbuit's Case, 264.           Modes of confirming and securing
Taparelli, P. Luigi, 288, 290, 291.     Performance of, ib. Confirmation
Taxes, Exemption  of Ambassador    by Oath, 67. Hostages, 68. Pledges,
from, 209.                           ib.
Taylor's Law of Evidence, 115.         Guarantee. —That a State shall mainTelegraph Newspaper(Oct. 1853,) 325.   tain a particular Status towards
Ternaux  (M. M.,) et  Compagnie,    other Powers, 70. That it shall do
Affaire de, contre la Republique    a particular Act, 71. To defend
d'Haiti, 126.                        the  particutlar  Constitution  or
Teschen, Treaty of, Guaranteeship of    Rights of a Country, ib. To defend
Russia (1799,) 66-74.                 particular Constitution or Territory
Theodosius II., 292.                    generally against all Attacks, foThomassinus, Vetus et Nova Eccles.   reign or domestic, ib. Of France,
Discipl., 427.                        Sweden, &c., at the Peace of WestThuanus, Histor. sui Temporis, 329,    phalia (1648,) 72. Ditto confirmed
348, 350.                            by Treaty of Hanover (1725) beThurloe's State Papers, 180.            tween Great Britain and Prussia, 73.
Tindal, 181.                            Austria and Prussia's Intervention
Titles of Dignity, Recognition of, by    (1792) in the War of French RevoStates, 27. Assumption of new, 28.    lution, ib. Of France and Russia
Right of States to confer, 36. Eccle-    for Succession to the Kingdom of
siastical, an Act to prevent the As-    BavariabyTreatyof Teschen(1779),
sumption of; in Great Britain, 420.    74.  Between Austria and Spain,
Treaties, Language of, 52. Right of    &c., as to Succession to Throne of
every independent State to enter    Austria, commonly called the Praginto, 56. Value and Utility of; 56.    matic Sanction, ib. Of the Great
Treaty, breaking  the  State, 57.    European Powers, with reference to
Writers upon, ib. Subject of, ib.   the Duchies of Denmark, 75. For
Object of; 58. Parties to, ib. Period    the Succession to the British Throne
of Time when contracted, ib. Cer-    after Death of Queen Anne, ib. Of
tain international Engagements not    France, Great Britain, Russia, and
strictly Treaties, 59.  Considered    Bavaria, concerning  Greece, 77.
with reference  to  Occasion and    As to the Separation of Holland and
Object of, 60. Whether contracted    Belgium, 78.
for definite or indefinite Period, ib.   Interpretation of, 70. What is meant
Who may contract, ib. As to States    by interpretation, 80. Distinction
professing different Religions, 61.    between Laws and Covenants or
Subordinate Corporations in a State    Treaties, 81.  Interpretation, aucannot enter into a Treaty with a    thentic, 82. Usual, 83. Doctrinal,
foreign State, 62. Reciprocal Consent    ib. Grammatical, ib. Literal, 84.
of both contracting Parties indispen-    Construction of Words, ib. To be
sable to the Validity of, ib. Differ-    drawn from  Consideration of the
ence between private Contracts and    whole Instrument, 85.  Different
public Treaty with respect to Consent    Meanings to same Term in a Treaty,
of Parties, ib. As to the Considera-    86. Technical Words to be contion for, 63. Revoking Consent to,    strued according to technical Meanib. How consent expressed or sig-    ing, 86. Doubt as to Intention by
nified, 64. Declaration of Consent    Uncertainty, or Impropriety of Lanneed not be in Writing, 64. Must    guage, 87. Logical Interpretation,




INDEX.                               525
87.  General Rules for, ib. Rule    and  Interpretation  of  Treaties,
of considering the Ground of, or    115.
Reason for Treaty, 88.  Rule of   Treaties (particularly referred to)comparing Treaty in dispute with    Treaty of Amity, Commerce and
other Treaties, ib. Rule of having    Navigation between Great Britain
Regard to the Consequences of a    and the United Provinces of Rio de
particular Construction, 89. Where   la Plata (Feb. 2, 1825,) 24. ProProvision or Clause capable of two    tocol S6par6 of five great Powers
Significations, ib. Where Provision    at Congress of Aix-la-Chapelle (11
or Sentence conveys two Meanings,    Octobre, 1818) as to Recognition
ib. Ambiguity in Terms of Treaty,    of New Title by Elector of Hesse,
90. Usual Clauses, though not ex-    31. Treaties as to Salutes by Guns,
pressed, held to be contained in, ib.    40. Act (final) of the Congress of
UncertaintythroughIncompleteness    Vienna (1815) as to Language used
of Language, ib.  Ambiguity of   for Treaties, 53. Treaty of Teschen,
single Expressions, 91. Ditto from    1779, 66, 74. Treaties confirmed
general Construction, 92. General    by Oath, 67. Treaty of Westphalia
Rules applicable when Doubt arises    (1648,) 72, 352. Of Hanover (1725)
from both Causes, 93. Doubts from    between Great Britain and Prussia,
Impropriety of Expression, 94. Ex-    73. Between France, Great Britain,
tensive Interpretation, 96. Restric-    Russia, and Bavaria (1832) as to
tive Ditto, 98. Cause of Contract    Greece,  77.   Between  Austria,
ceasing, Obligation ceases, 90. In-    France, Great Britain, Prussia, Holfluence of Necessity upon the Per-   land, and Belgium (1839,) relative
formance of the Obligation, 100.   to Belgium, 78.  Convention beTreaties concluded to preserve Ba-   tween Great Britain and the Netherlance of Power liable to Change,   lands (1814,) as to Restoration of
100. Conventions entered into by    Colonies, 101. Ditto between Great
Great Britain with the Netherlands    Britain, the King of the Nether(1814) and Russia (1815,) with re-   lands, and  Russia (1815,) as to
spect to the Rtusso-Dutch Loan,    Russo-Dutch Loan, 102. Treaty be101-2. Rule of Interpretation when    tween Great Britain  and Russia
unforeseen  and  unprovided  for    (1831,) as to Russo-Dutch Loan,
Events occur, Eadem  Ratio Jus,    103. Between France the Hanse
107. Provisions in Treaty in ex-    Towns (1716) as to Places of Worpectation of particular Events, ib.    ship in Houses of Consuls, 242.
Provisions  or Agreement not to       Treaties relating to Consuls, &c.
extend to Things not contemplated,    (See List of,) 247-251. Of Peace
108. Examples as to Limit or Ex-    between Great Britain and China
tension of Agreement expressed in    (1842,) 274.  Of Passau (1552,)
Treaties, how construed, ib. Things    405. Peace of Augsburg, ib. Confavourable and things odious, how     vention between the Pope of Rome
construed, 109.                       and the Canton of St. Gall (1845,)
Collision of,-Rules regarding, 111.    as to the Reorganization of the
stipulation permissive, yields to one    Bishopric of St. Gall, 407.
that commands, ib.  Ditto, to be   Trent, Council of, international Status
performed at any Time yields to    of Papacy between Period of the
one to be performed forthwith, 112.    Promulgation of the Canon Law
Prohibitory  Stipulation  preferred   and, 334. Period of, and. its Efover one which is imperative, ib.    fect upon international Relations,
Particular  has Precedence over    348.
general Stipulation, ib. Prohibition   Tribunal Civil de la Seine, 261.
with Penalty attached, Preference   Turkey, European, her Claim to Rights
over that which has not, ib. Rule    as Member of the Community of
derived from Consideration of Dates    Nations, 59.
of Treaties, 113. More considerable  Tuscany, Papal Relations with Rome,
of two Duties to have Preference, ib.    393.
Effect of War and subsequent Peace  Twiss (Dr.,) Duchies of Schleswig and
upon existing Treaties, 115. Cases    Holstein, 72, 75. Letters Apostolic,
decided in the British and American    420.
Courts, involving the Construction   Two Sicilies (The,) Treaty with Hol



526   PHILLIMORE ON INTERNATIONAL LAW
land (1753,) 247. Papal Relations                  W.
with Rome, 393.
Wachsmuth, 161.
U.                   Walter's Kirchenrecht, 286, 310, 321,
325, 397.
Ulpian, 5'7.                         Ward, Law of Nations, 134, 139, 154,
United Netherlands, Recognition of    168, 174, 175, 177, 184, 187, 217,
Republic of, by Spain, 20.           313, 314.
States, Laws of; as to Consuls. Warnk6nig, Inst. Juris, Romani PriSee Consuls.                         vati, 56, 285.
Universities of Europe, Expositors of Washington's  (American)  Reports.
international Law, 318.              See Reports, List of.
Utrecht, Treaty of, (1713,) 52, 59, 87. Weimer (Duke of,) 31.
Bishop of Bristol, Plenipotentiary at Wellesley (Lord,) Speech in the I-Iouse
Peace of, 222.                       of Lords on the Motion for a Committee to inquire into the State of
V.                     the Laws affecting Roman Catholics
(April, 1812,) 282.
Valentinian III., 292, 356.          Wenck, Cod. J. G., 29, 53, 68, 242, 247,
Valin, 240.                            2b0.
Van Espen, 372.                      Westphalia, Treaty of (1648,) 58, 66.
Van Hoey (M.,) Dutch Ambassador at    Peace of, Guarantees at, 73, 217.
France, Case of, 182.                Papacy from the Time of, 352.
Vattel, 1, 3, 4, 8, 15, 27, 28, 29, 32, 33, Wheaton, Elements, 27, 33, 39, 52, 55,
35, 36, 37, 39, 46, 47, 48, 55, 57, 60,    72, 137, 147, 148, 154, 188, 193, 197,
61, 62, 63, 64, 65, 66, 67, 68, 69, 70,    209, 221, 225, 226, 228, 229, 230,
72, 80, 84, 85, 93, 96, 99, 107, 109,    240. History, 53, 72, 73, 75, 134,
110, 113, 117, 134, 135, 136, 137,    137, 219, 221, 225, 226, 228, 229,
141, 142, 148, 153, 155, 156, 157,    240. DroitInternational, 231. Re158, 159, 172, 174, 187, 192, 193,    ports, See Reports, List of.
196, 197, 210, 216, 217, 219, 220,  Whitworth (Mr.,) 206.
221, 223, 225, 226, 231, 238, 241,  Wicquefort, 134, 142, 152, 154, 160,
247, 260, 279.                       165, 174, 180, 187, 196, 197, 210,
Venerabilem  (Decretal,) 308.  See    213, 224, 240, 260, 261, 266.
Corpus Juris Canonici.             Wife of Ambassador, Privileges of
Venice, Claims of, to maritime Hon-    Embassy extended to, 196.
ours in the Adriatic, 44. Republic  Wildman, 79, 87, 88, 134, 240.
of, Quarrel with Papal Government  Wolff, 84.
(1364,) on account of Outrages on  Wortley (Mr. Stuart,) Speech of, in DeConsuls of Republic, 261.            bates on Cracow, 102.
Verona, Congress at (in 1825,) 46.    Wrech (Baron de,) Minister of France
Vesey's Reports. See Reports, List of.   from  Landgrave of Hesse Cassel,
Vesey and Beame's Reports. Ditto.       Case of, 200.
Vice-Consuls. See Consuls.           Wurtemburg, Papal Relations with
Viceroy possesses Right of Embassy,    Rome, 406.
142.
Vienna, Congress of, Recognition of
Titles at, 30. Treaty (of 1725 and                  Z.
1738,) 52.  Treaty of (1815,) 59.
Treaty of, between  Austria  and  Zacharia, 70.
Spain (1725,) 74. Actof, 9thJune,  Zea, (M.,) Spanish Minister, Reply of
(1815,) 130. Congress of, (1815,)    Mr. Canning to the Remonstrance
217, 222.                            of, respecting Recognition of South
Virg. A-En., 282.                       American Republics by Great BriVoltaire, Essaie sur les Mceurs et   tain, 22.
l'Esprit des Nations, 314.         Zouch, 41, 118, 121, 134, 143, 145,
Von Houtheim, de Statu Ecclesim et    148, 149, 151, 174, 177, 183, 189,
legitima Potestate Roman&, 373.       284.




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