Public International Law - Commentary

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Francis Wharton. Commentaries on Law, Embracing Chapters on the Nature, the Source,
and the History of Law; on International Law, Public and Private; and on
Constitutional and Statutory Law (1884).
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History of L; on Intl L, Public & Private; & on Constitutional & Statutory L (1884).
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Wharton, F. (1884). Commentaries on Law, Embracing Chapters on the Nature, the
Source, and the History of Law; on International Law, Public and Private; and on
Constitutional and Statutory Law. Philadelphia, Kay & Brother.
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(Philadelphia: Kay & Brother., 1884)
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COMMENTARIES ON LAW. [CHIAP. IV.
CHAPTER IV.
PUBLIC INTERNATIONAL LAW.
I. OBJECT AND NATURE. IIl. INDEPEINDENT SOVEREIGNTY, ITS

International law is a law accepted by INVIOLABILITY AND INCIDENTS.
civilized nations to determine inter- Such sovereignty essential to civiliza-
national rights, § 118. zation, § 135.
International law part of the common Specific territory essential but not form
law, § 119. of government, § 136.
Not the exclusive product of treaty, Modes of sovereignty, § 137.
§ 120. Sovereignties entitled to political de-
Appeals to consciousness by right, ference, § 138.
§ 121. And to the protection of subjects, § 139.
Based on decisions and on common Recognition dependent on discretion,
consent, § 122. § 140.
Not necessary that there should be a Belligerency may be distinctively re-
court to enforce it, § 123. cognized, § 141.
Devolution of duty on states seceding,
II. HISTORY. § 142.
In primitive times no such law recog- Individuality of parent states remain,
nized, § 124. § 143.
Tendencies in the middle ages, § 125. Mutual responsibilities of states and
Reformation cosmopolitan, § 126. government, § 144.
Grotius the founder of the modern sys- Governments defacto are authoritative,
tem, § 127. § 145.
Development under Louis XI., § 128. Territory inviolable, but modification
Natural law prior to the French Revo- as to self-defence, § 146.
lution, §§ 129. Exception as to semi-civilized or bar-
French Revolution hostile to rights of barous states, § 147.
states, §§ 130. Right to trade secured by law of na-
Congress of Vienna appeals to legiti- tions, § 148.
macy, § 131. Pledges and servitudes of national pro-
Consequences of fall of Orleans dynas- perty, § 149.
ty, § 132. Servitude implied in neutralization,
Modifications by treaty of Paris of 1856, § 150.
§ 133.
Tendencies to absorption of minor IV. AcQUIsTrIoxs OF TERRITORY.
states, § 134. Modes of acquiring, § 151.
184
CHAkP. IV.] PUBLIC INTERNATIONAL LAW.
Land added by accession, § 152. IX. RiHonT To SEA AND RIVER.

Prescription gives title, § 153.
Open sea free to all nations, § 185.
Cession does not divest old laws, § 154.
Belt of sea within cannon-shot terri-
V. TREATIES. torial, § 186.
Coast-line, that on which batteries can
Classification, § 155.
be placed, § 187.
Guaranty treaties, § 156.
Ship protected by flag, § 188.
Treaties distinguishable from contracts,
Exception as to territorial waters, § 189.
§ 157. Ships of war, § 190.
must be duly authorized and rati-
Navigable rivers open to all nations,
fied, § 158.
§ 191.
Only parties bound by, § 159.
Inland seas territorial, § 192.
Pledges granted in, § 160.
Abrogated by war and other limi-
X. RIGHT OF SEARCH AND CONDEMNA-
tations, § 161. I TION.
VI. DIPLOMATIC AND CONSULAR AGNTS. Right of search not to be conceded in

Diplomacy a system of law, § 163. peace, § 194.
Ministers sent from government to Otherwise as to belligerents in war,
government, § 164. § 195.
Belligerents may be represented, § 165. Vessel seized to be taken to prize court,
Sending and reception a matter of dis- § 196.
cretion, § 166. Prize courts to be impartial, and to
Inviolability and extra-territoriality of keep full records, § 197.
embassies, § 167.
XI. PIRACY AND PRIVATEERING.
Privilege extends to journey, § 168.
Classification, § 169. Piracy an offence by law of nations,
Consuls not so privileged, § 170. § 200.
May have jurisdictionin foreign lands, Privateers not pirates, § 201.
§ 171.
Exequatur required, § 172. XII. PACIFIC REMEDIES FOR WRONGS.
VII. INTERVENTION. International wrongs are delicts by law

of nations, § 203.
Permissible in matters disturbing pub-
Extent of delicts still undetermined,
lic peace, § 174.
§ 204.
Objections to European intervention in
Restitution or indemnity, § 205.
America, § 175.
Retortion and reprisal, § 206.
VIII. NATURALIZED AND OTHER REsI- Embargo, § 207.

DENTS: SLAVES. Mediation and arbitration, § 208.
Naturalization now generally accepted,

XIII. WAR AND ITS INCIDENTS.
§ 177.
Foreigners subjected to law of place of War the final appeal, § 209.
residence, § 178. Only states can be parties to, but in-
May be excluded, § 179. volves all subjects, § 210.
Duties pertaining to domicil, § 180. Declaration should be formally made,
Slave-trade no longer allowed, § 181. § 211.
Nor slavery by non-slaveholding states, Provisional governments may be estab-
§ 182. lished, § 212.
185
§118.] COMMENTARIES ON LAW. rCHAP. IV.
Deception and great material destruc- XV. BLOCKADE.

tion allowed, § 213. Blockade must be effective, § 233.
Commerce with enemies prohibited, Notice must be given, § 234.
§ 214. Vessel running may be confiscated,
Booty not permitted, § 215. §235.
Public but not private property may
be seized, § 216. XVI. RIGHTS OF NEUTRALS.
Distinction in this respect as to insur- Trade of neutrals to be protected, § 238.
gents, ( 217. Neutral waters ought not to be invaded,
Conflict as to whether sailing under § 239.
enemy's flag exposes neutral goods Neutrality conditioned by circum-
to seizure, § 218. stances, § 240.
English courts hold that doing business International and municipal neutrality
in a foreign land constitutes com- not convertible, § 241.
mercial domicil, § 219. Policy of the United States is to main-
Seizable property in transitu cannot tain neutral immunities, § 242.
escape seizure by assignment, § 220. Deviation from this policy during the
Guerillas, when internationally sanc- civil war, § 243.
tioned, § 221. Rules of treaty of Washington limiting
On withdrawal of invasion old system neutral rights not of permanent obli-
revives, § 222. gation, § 244.
Jus postliminii is right of owner of cap- Furnishing funds by subjects of neutral
tured property to restoration, § 223. states to relieve belligerents not
Maritime law restores captured property breach of neutrality; and so of loans,
on paying salvage, § 224. § 245.
Belligerent maybe furnished with mu-
XIV. CONTRABAND. nitions of war, § 246.
Articles contraband of war may be for- Belligerent recruiting in neutral state
feited, § 226. a breach of neutrality, § 247.
In cases of conspiracy ships may be So of giving passage to belligerent,
confiscated, § 227. §248.
Question as to dispatches and diplo- Permitting the fitting out and sailingof
matic agents, § 228. cruisers a breach of neutrality, S 249.
Such agents may communicate through Freedom of sale not to be confounded
belligerent lines, § 229. yith liability to confiscation, § 250.
Destination of ship imputed to goods, Coaling forbidden from a constant base,
§ 230. § 251.
I. OBJECT AND NATURE.
§ 118. INTERNATIONAL law is a law generally accepted by

Interna- civilized nations by which international rights and
tional law
is a law ac-
duties are determined. 1 It is to be distinguished
cepted by from the jus gentiun of the Roman law, which was
civilized
nations to the general system of jurisprudence common to the
1 See Johnson v. Falconer, 2 Paine, 601 ; S. C., Van Ness, 1.

18t
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [§ 118.
civilized communities of Italy; while international determine
ut terna-
law is limited to jurisprudence which concerns the tional
international relations of the civilized worl(._ rights.
That international law is not in the strict sense of the
term a "law" is asserted, as we have seen, by the English
analytical school of jurists. 2 According to that school, it is
essential to the constitution of a law that it should be both
prescribed and enforced by a sovereign. International law,
however, is not, it is asserted, so prescribed, and cannot be so
enforced; therefore international law is not, properly speak-
ing, a "law." This position, however, is not accepted by
jurists of the historical school, who hold that law is the pro-
duct of national forces, and may exist without a specific pen-
1 Sir J. F. Stephen, while maintain- other hand, " both" (equity and com-
ing, in his history of Criminal Law, that mon law) " follow the law of nations,
there is no such thing as systematic and collect it from history and the most
international law, but only a body of approved authors of all countries where
usages, admits that: " Where a definite the question is the object of that law.
usage between nation and nation exists, In mercantile transactions they follow
and where there is no special law upon the marine law, and argued from the
the subject to be found in the statute usages and authorities received in all
book or elsewhere, it is undoubtedly maritime countries. Where they exer-
part of the law of England that such cise a concurrent jurisdiction, they both
usage should be enforced as law, and follow the law of the proper forum; in
the works of authors on the subject are matters originally of ecclesiastical cog-
the evidence by which the existence nizance, they both equally adopt the
of such usages is commonly proved." canon or imperial law, according to the
Mr. Austin, also, holds that interna- nature of the subject; and if the ques-
tional law is not properly a law in the tion came before either, which was pro-
technical sense of the term, but is sim- perly the object of a foreign municipal
ply a scheme of morality; and the law, they would both receive informa-
reason given by him is that there is no tion of what is the rule of the country,
sanction by which it is enforced. This and would both decide accordingly."
objection will be hereafter noticed. Blackst. Com., book iii. chap. xxvii.
Jurists of the analytical school ob- Mr. Wheaton (Internat. Law, Part
ject, also, to the theory of there being IV. chap. iii.) declares that "the
a binding standard of international law maritime law of nations, by which the
on the ground that there is no agree- intercourse of the European staes is
ment as to the basis of the standard. regulated, has been adopted by the new
But we might as well object to the bind- communities which have sprung up in
ing character of the common law on the the western hemisphere, and was con-
ground that there is no agreement as sidered as obligatory upon them during the
to the basis on which the common law war of the Revolution."
rests. 2 Supra, § 6 ; infra, § 123.
According to Blackstone, on the
187
119.] COMMENTARTES ON LAW. [CHAP. IV.
alty imposed by a sovereign ;1 and the better opinion, as will

be hereafter seen,' is that to constitute international law as a
rule of action it is not necessary that there should be an
enforcing international tribunal.-In the United States the
question whether there is a definite ascertainable law of
nations is settled by legislation and adjudication. The consti-
tution of the United States gives congress the power " to define
and punish . . . offences against the law of nations." A
Federal statute, passed in the execution of this power, pro-
vides for the punishment of piracy, as " defined by the law of
nations." This has been held by the Supreme Court of the
United States to be sufficient without any further definition.3
The " law of nations," in the opinion of the court, is treated
as a system of jurisprudence in the same way that the English
common law is a system of jurisprudence. The same inference
may be drawn from English statutes reciting the " law of
nations."l-The objects of public international law are three-
fold: (1) It determines national boundaries and other national
prerogatives. (2) It defines and maintains the commercial
rights of persons engaged in international trade., (3) It
settles the privileges of the subjects of each state when abroad,
and points out the way in which these privileges are to be
defended.'
§ 119. According to Grotius, the sources of international
law are "ipsa natura, leges divinae, mores, et pacta."
Interna- The divine law, it may be assumed, is part of the
tional law
law of nations in all ethical matters in which civil-
part of the
common
law. ized countries as a whole agree. This is clear in
respect to marriage, which, by the law of nations,
is monogamous, and legitimacy, which (leaving open the dis-
puted questions of adoption and of legitimation by subsequent
marriage).is conceded to all children born in wedlock. By
the British government, in an answer, in 1753, to the Prus-
I See supra, § 26. see Hartmann, § 15. I desire to express
2 Infra, 123. my peculiar indebtedness in the prepa-
3 U. S. v. Smith, 5 Wheat. 153; in- ration of this chapter to Professor v.
fra, § 452. Holtzendorf's excellent treatise on the
4 Supra, § 26. same topic in the first volume of his
6 For an exposition of the right of Rechts. Encyclopedie (ed. of 1882).
nations to international intercourse,
188
CHIAP. IV.] PUBLIC INTERNATIONAL LAW. [ 119.
sian government, which is declared by Montesquieu to be a
rdponse sans riplique, and which, with this commendation, is
adopted by Sir R. Phillimore as authoritative, the law of
nations is said to be " founded upon justice, equity, conve-
nience, and the reason of the thing, and confirmed by long
usage." This, in the main, coincides with the " natura" and
mores" of the definition of Grotius ; but notwithstanding
the commendation it has received, it is unsatisfactory and
indecisive. It leaves open the question what conditions con-
stitute " equity," " convenience," " the reason of the thing,"
and "0lono usage." We must go further, therefore, if we
would find the authorities on which international law is based.
And these authorities, as will be more fully seen hereafter,
may be found-
(1) In the decisions of the courts of leading nations, so far
as these are concurrent.
(2) In the preponderating sentiment of international jurists,
including under this head the principles on which diploma-
tists in common rest.
International law, as thus settled, is part of the common
law of England and of the United States. Without a statute
on embassies, for instance, a common law court would respect
the privileges of diplomatic agents; and without a statute
defining piracy, a common law court would define piracy in
conformity with the law of nations. Lord Mansfield speaks
to the same effect in a famous judgment: "Lord Talbot," he
says, noticing an unreported case, the decision in which he
adopts, " declared a clear opinion, ' That the law of nations, in its
full extent, was part of the law of England;' . . and . . ' that
the law of nations was to be collected from the practice of dif-
ferent nations, and the authority of writers.'""
So, it has been said by an eminent Pennsylvania judge:
"The principles of the law of nations . . . form a part
2
of the municipal law of Pennsylvania."
The same position is taken by Chancellor Kent,3 and, as has
been seen, by Blackstone.3
I Triquet v. Bath, 3 Burr. 1480. 3 1 Com. 3.
2 McKean, C. J., Resp. v. Long-
champs, 1 Dall. 111.
189
§ 119.] COMMENTARIES ON LAW. [CHAP. IV.
It may then be regarded as settled that international law,

both public and private, is part of our common law, and (sub-
ject to the limitations of our distinctive legislation) will be
enforced as such.
1 1 Whart. Conf. of Laws, § 1. among civilized nations as to their re-
Sir R. Phillimore, i. 525, quotes a ciprocal relations.
judgment of Lord Lyndhurst to the That international law is progressive
effect " that the law of nations is part and adaptative is shown by Hartmann
of the law of England; and conse- (Institutionem des praktischen Volkes-
quently that this offence (exciting a recbt's, 2d ed., 1878), § 2. " Ut mores
revolt against a foreign state) will be gentium mutantur sic, et mutatur jus
tried and punished in England, though gentium." Bynk. Proef.; and see supra
only on such evidence as shall seem § 26. As to change of law in respect
adequate to an English tribunal." to territorial waters to correspond with
The Territorial Waters Jurisdiction extension of range of guns, see infra,
Act (41 and 42 Vict.) recites the " law § 186.
of nations" as determining territorial Heffter divides law (Recht) into
sovereignty." Supra, § 26. guaranteed law and free law, which
As to the authority of writers on in- last is self-perfective and self-enforc-
ternational law, see Phill., op. cit., p. ing. International law, he declares,
62. Grotius is the first of the great belongs to the last category. A civil-
writers in this line, and though obtain- ized state, he argues, cannot reject
ing but little aid from prior specialists, this law without forfeiting its position
his opinions are constantly cited as among other civilized states. It is
laws by the courts. Undoubtedly therefore, so he holds, the freest of
great conflicts of opinion on material laws, as it is not subject to judicial
points have arisen ; but when there compulsion. "Its organ is public
is a great preponderance of opinion on opinion ; its final arbiter is history."
any particular point, that opinion will Blundtschli (Mod. Vilker. Einleit.
be held law in proportion as it ap- 1, 2), virtually following Savigny, ar-
proaches unanimity. " In cases where gues that " Wherever permanent busi-
the principal jurists agree," says Chan ness relations are established between
cellor Kent, " the presumption will be nations, there the mutual convictions
very great in favor of the solidity of of the parties will establish an inter-
their maxims ; and no civilized nation national system. The feeling of this
that does not arrogantly set all ordi- need of law and the sense of what law
nary law and justice at defiance, will should be, belong to all men, but
venture to disregard the uniform sense reaches a higher level with civilized
of the established writers on interna- nations.
tional law." Kent's Con., i. 19. In determining what is the interna-
Savigny, true to his distinctive the- tional law on any incidental point, the
ory of the origin of law from national Roman law is to be entitled to high re-
need and conscience, explains the uni- spect if it determines such point ; and
formity of opinion among civilized na- such also is the case with the ca-
tions on international law by adverting non law, in all matters within its
to a common juridical consciousness range. This, as to the canon law, is
190
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [ 120.
§ 120. International law, whether public or private, there-
fore cannot be permanently established by treaty. Interna-
Even should we suppose that a complete code could tional law
be adopted by all civilized states, such code could nit ethe
be repudiated even by a minority of the contract- product
treaty.
of
ing states. The congress of Vienna was attended

by all the great European powers, and these powers (England
withholding her assent yet making no earnest opposition)
held that it was a part of the law of nations that when a
legitimate sovereign was attacked by his subjects, it is the
right and duty of other legitimate sovereigns to intervene for
his support. Yet, in a very few years, there was not a single
state among those represented in the congress that did not
repudiate its conclusions. Russia sustained the revolt of
Greece against Turkey; France and England sustained the
dismemberment of Holland by the creation of Belgium; and
both Louis Philippe and Napoleon III. were successively re-
cognized by Prussia, Austria, and Russia. No agreement as
to international law by sovereigns can permanently bind the
civilized world, nor is it right that it should. New neces-
sities may of themselves make new laws without the inter-
vention of sovereigns. New necessities may repeal old laws
to which sovereigns had solemnly assented. Nor can the
agreed to on all sides. The canon law son, tempered by equity, and rendered
(as existing before the Reformation, perfect, humanly speaking, by the
and consequently before the Council of most careful and patient industry that
Trent) is the law which, unless altered has ever been practically applied to
by local statute, determines the con- the affairs of civilized man."
dition of marriage both in England and While neither the Roman nor the
the United States; and on the canon canon law are among the specific
law our laws of succession are based. sources of international law, so argues
But to the Roman law, also, English Hartmann (§ 6), following Gunther,
and American jurists constantly ap- i. 32, they have exercised much influ-
peal in all matters within its range. ence on its development, partly be-
Sir R. Phillimore (i. 34) gives as an cause the Roman law is the basis of
illustration the appeals made to the the jurisprudence of most civilized na-
Roman law by the United States in tions and is appealed to by them in
1792 in the controversy with Spain. their international conferences, partly
And he goes on to say: " And to all because the British and American ad-
nations, whatsoever and wheresoever, miralty courts are impressed, though to
this law (the Roman) presents the a less degree, by the same influence.
unbiassed judgment of the calmest rea-
191
121.] COMMENTARIES ON LAW. [CHAP. IV.
world be regenerated by a scheme of a priori legislation, not

springing from the conditions of the particular era and of the
particular wants to be met.' At the same time when a
special rule has been recognized as binding by a series of
treaties, it approaches to general international law in the pro-
portion in which these treaties represent the civilized world
as a whole.2
121. Whether there is a moral sense which can be ap-
pealed to as an arbiter is a question which has been
Apeas tio already discussed.3 It is enough here to say that
ness of the fact that nations, as well as individuals, have
right, uniformly appealed to such a moral
sense. In what
way such moral sense originated is immaterial. It may be
that, as taught by Butler, this morality is implanted by God
in each individual breast. It may be, as we are told by
Spencer, that, as it now exists, it is moulded by descent
through a long series of generations, and takes in each gene-
ration the shape which, on the whole, is most conducive to
public good, the question of its origination being left in abey-
ance.4 But be this as it may, the practice, on the part of
nations, of appealing to such a moral sense in their dealings
with each other is universal. This has been done by the
haughtiest of nations, as weil as by the feeblest ; in periods
the most primitive, as well as the most recent. In the old
testament this appeal is recorded in almost every case in
which we hear of one nation making war on another nation.
Homer's beroes,in the addresses they delivered before their com-
bats, appealed to the moral sense of their audience, whatever it
may have been; even the Roman generals, in their proclama-
tions and negotiations, made the same appeal. We have a
conspicuous illustration to the same effect in our own Declara-
tion of Independence, which is on its face an appeal to the
moral sense of the civilized world to vindicate the righteous-
ness of the Revolution. But we are not alone in taking this
position. In the wars consequent on the French Revolution,
every combatant, in turn, appealed to an international sense as
I Supra, H§ 15 et seq. 3 Supra, §§ 16 et seq.

2 Perels, Int. Seerecht, 1882, 4. 4 Supra, § 106.
192
existing, and endeavored to make it appear that his conduct
could be so explained as to be in conformity with such moral
sense. As hypocrisy is the tribute which vice pays to virtue,
so the manifestoes in that stormy era may be regarded as the
tributes paid by ambition to an international moral sense.
The congress of Vienna strove to justify its action by the
same appeal. Cavour, when leading in the revolt against the
settlement of the congress of Vienna, issued paper after paper
in which the course of Italy was justified on moral grounds,
and the civilized nations of the world were called upon to
approve the righteousness of the uprising. The letters of
secretaries of state to their diplomatic agents in foreign lands,
lands, written for the purpose of being read to the authorities
of the state in which such agents are resident, are appeals of
the same class; and if we take up the volumes containing the
diplomatic correspondence of the United States, as published
from year to year-and what is said in reference to this country
in this respect is applicable to all other countries-we shall find
that by far the greater part of their contents, omitting the
merely narrative portions, consists in appeals to the moral
sense. If the existence of the common law is shown by the
fact that though unwritten, and therefore in a measure unpre-
cise, it is appealed to by all litigants in states in which such a
common law exists, then the existence of a common moral sense
among nations may be shown by the appeals to it made in all
cases in which there are supposed national wrongs to redress
or national rights to vindicate. And whatever may be the
opinion of speculative thinkers, there is no case on record of a
statesman, dealing practically with diplomacy, who has not
over and over again appealed to this moral sense of nations as
an existing fact.'
§ 122. It is not, however, to be supposed that international
jurisprudence does not rest,in a rmeasure,on positive Interna-
law. It does, though the positive law on which it tional law
basedonde-
falls back is not that of a code which remains binding cisions and
until repealed by the body by which it was enacted. consennon
I No more striking example of the of the United States during the late
position in the text can be found than civil war.
that in the diplomatic correspondence
13 193
If we examine the decisions of our courts on any question

of international law, we shall find the ruling to rest on posi-
tive law, though not of a law absolutely and finally im-
posed by a congress of nations. In the first place, a court is
bound by a treaty adopted in conformity to the prescriptions
of the lexfori. If our Federal government,for instance, should
duly execute with a foreign power a treaty providing that
privateering should be illegal as between the two powers, our
courts would be bound to hold the treaty the supreme law of
the land.' In the second place, if our courts and those of
England should unite in declaring any proposition of interna-
tional law to be binding, there is a strong presumption in favor
of the correctness of such a proposition. It is a matter of
regret that the same respect cannot be paid to the decisions of
continental courts, the judges who give such decisions not being
bound by any system of precedent. This defect, however, is
compensated for by the treatises of eminent jurists ;2 and it
may be held to be settled that rules which are adopted by
the weight of authority among jurists, and which are accepted
by English and American courts, are to be regarded as incor-
porated in our public international law. In the third place, a
custom which has been generally adopted among civilized
nations may be regarded as a part of public international law.'
If, for instance, the great majority of civilized states should
denounce the reducing of prisoners into captivity, or the use
of poison as an engine of mischief, we should have a right
to regard the positions so taken as part of public international
law ; and, in fact, it is in this way that public international
law has been in the main built up. There are, however, two
important distinctions to be observed: (1) Rules of public inter-
national law, in order to lose their effect, need not be solemnly
repealed by the parties enacting them. The rules of the con-
gress of Vienna, for instance, ceased to be effective when repu-
diated by even a minority of the principal powers by whom
they had been adopted. (2) Unanimity is not necessary to
establish a rule in public international law. If it were, few
I Infra, § 383. of the Institute of International Law

2 In this connection the proceedings deserve particular study.
3 Supra, § 14.
194
such rules could be established. It would be always a matter
of doubt whether all the states requisite to unanimity had
been consulted, since there will always be some states whose
claims to be recognized as authoritative in such respects are
doubted. And there are no rules of which we can say they
have been adopted either by treaty or by usage on the part of
all states entitled to speak on such an issue. The question is
one of weight of authority ; and this question must be decided
in each country on the concrete case. It may be added that
as between any two countries, a rule may be.adopted, though
not of general acceptance. Common consent, also, may be
inferred from recitals in proclamations of sovereigns, and
from statutes passed by legislative bodies having jurisdiction,
from maritime ordinances, as well as from the decisions of
courts.'
1 The usages which obtain between recht als Rechtsbuch dargestelit"

nations as an aggregate are as much (Nordlingen, 3d ed., 1878). Mr. Ben-
a part of international law as are the tham (Bowring's ed., vol. viii.) has
usages prevalent in a nation a part of given us also some valuable material
national law. In this sense we are to for the same purpose; and Holtzendorff
understand the maxim of Bynker- (op. cit., 1204) refers us to a paper to
shock: " Ipsum jus gentium, quod the same effect by Prof. Katchenowsky,
oritur e pactis tacitis et presumptis of Charkow. From Mancini, also, we
quae ratio et usus inducunt." (Quws. have a treatise entitled " Vocazione del
Jar. Pub., I. iii. c. x.) nostio secolo per la riforma e codifica-
Lord Stowell rests his judgment in zione del diritto delle gente," 1872, and
the Santa Cruz on a " law of habit, a from Bulmerinq an essay on "Kodifi-
law of usage, a standing and known cation des Vblkerrechts," 1874. Holt-
principle on the subject in all civilized zendorit while holding that as to the
and commercial countries." 1 C. Rob. police of the seas, the slave-trade, the
Ad. 61. It was ruled in this case that fisheries, the submarine telegraph, the
custom may modify a treaty. That a diplomatic service, and private inter-
local law of neutrality does not bind national law, there might be codifica-
internationally, see asfra, § 241. tion, maintains that it would be im-
Codification of international law has practicable in respect to annexation or
been proposed in high quarters, but, aggrandizement of states, the recogni-
for the reasons above suggested (see tion of new states, or the intervention in
supra, § 114), it would be difficult to theaffairsofotherstates. Idonotthink
give any code a permanent cosmopolitan that private international law could be
force. But, while this is the case, it the subject of present codification. As
is impossible to be blind to the great to expatriation, or civil status, for in-
value, as independent treatises, of Mr. stance, we are not, by any means, ripe
David Dudley Field's proposed code, for . settlement. See, as to codilica-
and of Bluntschli's " Moderne V(ker- tion, supra, § 114.
195
§ 123.] COMMENTARIES ON LAW. [CHIAP. IV.
§ 123. Mr. Hall, in his treatise on International Law

Not neces- (London, 18b0), declares that " International law
sary to law consists in certain rules of conduct which modern
tho te a civilized states regard as being binding on them in
court to their relations with one another with a force com-
enforce it.
parable in nature and degree to that binding the
conscientious person to obey the laws of his country, and
which they also regard as being enforceable by appropriate
means in case of infringement. These rules," he goes on to
say, "may be considered to be an imperfect attempt to give
effect to an absolute right which is assumed to exist and to
be capable of being discovered; or they may be looked upon
simply as a reflection of the moral development and the ex-
ternal life of the particular nations which are governed by
them." By Mr. Hall, the second view is assumed to be cor-
rect, and in this Mr. Pollock' concurs. This position does not
differ widely from that expressed in the preceding pages in
reference to national law. National law, it is there stated, is
the product of a nation's conscience and needs. 2 It is law
before it is formulated by legislation or judicial decision, just
as custom is law before so formulated, and, when formulated
by judicial decision, is declared to govern cases which occurred
before such decision. It is not, in such cases, declared that
the custom was the custom of everybody, but simply that it
was a general custom ; nor, if it was an established custom,
is it necessary, as we have seen, that it should have existed
from time immemorial. So it is with international law. It
is not absolute, nor can it be pretended, as was once errone-
ously supposed to be the case with the common law, that it
existed at some prior period in perfect symmetry, and only
requires excavation to bring it to light. It is based on the
customary law of nations, just as national law is on the cus-
tomary law of individuals. But it cannot be said that inter.
national law is not law because it cannot be enforced. When-
ever international law becomes an incident in litigation it is
as capable of being enforced as is customary law. When
piracy, for instance, is prosecuted in our courts, they resort
I Essays, etc., 1882. 2 Supra, § 16.

196
to the law of nations to know what it is; and so with
innumerable questions relative to the relation of neutrals to
belligerents, and to the inviolability of national ships and
territory. A prize court, in fact, may be defined to be a court
to enforce the law of nations; and so, in some of its lines of
adjudication, may be held to be the supreme court of the
United States. It is true that, when relating to matters out
of the sphere of litigation, the law of nations cannot be en-
forced by judicial decision. It is not peculiar in this. It is
a part of the common law that a man may defend himself
when attacked, but there is no legal process requiring him to
exercise this right. There are certain rights that can only
be vindicated by force on the part of those aggrieved, and by
the sympathy, if not the aid, of right-minded bystanders.
This is the case with the rights of nations not the subjects of
litigation. It cannot be said that there is no law in this
relation because there is no court to enforce such law. An
aggrieved nation, like an aggrieved individual, may vindicate
its rights by force in all cases in which there is no aid to be
obtained from the courts. And an aggrieved nation will, as
a general rule, find aid, if it be in the right, from other na-
tions, just as an aggrieved individual will, as a general rule,
find aid, if he be in the right, from other individuals.' Nor
is this all. There is no process of formal sequestration, it is
true, by which an offending nation can be placed under the
ban of civilization. But it may be excluded from all diplo-
matic and commercial relations with other states, and in this
way a punishment may be inflicted not unlike the punishment
of exile or of sequestration imposed on individuals.
II. HiSToRY.
§ 124. The primitive idea of nationality was absolute inde-

pendence. It is true that a confederation between Inprimitive
particular states was frequently instituted, to which times no in-
ternational
the particular members composing it were loyal as law recog-
long as they found it convenient; but where there nized.
I See as dissenting from position of and remarks of Lord Coleridge in R. u.

text, 2 Steph. Hist. Cr. Law, 34-6; Keyn, L. R. 2 Ex. D. 63.
197
was no confederacy, absolute independence of such state was

maintained. Each state (lid as it chose; and the only way any
state could enforce right, or resist wrong, was by war. In
some cases this isolation was aided by geographical considera-
tions; in others by artificial demarcation, as in the case of the
Chinese wall. Either all intercourse with foreign states was
to be excluded, or it was to be carried on under the hypothesis
of the subjection of the foreigner to the home-yoke. War and
colonization, among the nations of the old world, were the
only means by which at the outset trade could be pushed out-
side of the national bounds. The influences which tended to
break down this seclusion were (1) the adoption of the Greek
language by the literary classes of all civilized nations; (2)
the acceptance among these classes of Greek philosophy in
the place of the local religions; and (3) the extension of the
Roman jus gentiurn in juxtaposition with the jus civile, by
which the legal rights of distinct nationalities were recog-
nized.' Jewish history gives us, it is true, several illustra-
tions of treaties between the Jews and neighboring nations;
but although there are frequent appeals in the sacred text to
righteousness as the basis of dealing with strangers, the code
laid down in the Old Testament is exclusively provincial, and
contains. no provisions for a system of law to bind all the
nations of the world as a body. The New Testament is cos-
mopolitan, but the New Testament, while enjoining peace and
good-will to all mankind, leaves civil legislation to the ex-
clusive action of the state. In Greece, while the Amphic-
tyonic League established a federal relationship between the
several states of Greece, foreign states, with whom there was
no treaty of friendship, were looked upon as enemies, with
whom no terms were to be kept. By Rome, while as a matter
of jurisprudence, the jus gentium was placed on a wise and
broad foundation, foreign states, not allied by treaty, were
I See on this topic Holtzendorff, Off. chichte des V6lkerrechts, 1848; Ward's
Recht, in Ency., 4th ed., § 2; citing Enquiry into History of Law of Na-
Laurent, Etudes sur 1'histoire de 1'hu- tions, London, 1796 ; Pierantoni, Trat-
man. 1st vol. ; MUller Joehmus, Ges- tato de diritto internazionale, 1881.
198
the object of spoilktion unrestrained by sense of right, or by
rules of international justice.'
§ 125. The genius of ancient Rome, however, both for con-
quest and for organization, destroyed all sovereignty Tendencies
in civilized countries except that established by yinterna-
towards an
Rome itself. There was a law of nations, but it tional sys-
tern in the
was a law Rome dictated. It was not until the middle
dissolution of the R)man empire that independent ages.
sovereignties asserted themselves; and the sovereignties thus
established were based on the distinctions of race, not on those
of territory. Persons belonging to particular races were, in
many instances, governed by their own national laws, no
matter where they dwelt; and hence, within the same terri-
tory, there might be several distinct systems of laws govern-
ing distinct nationalities, just as there are in some states in
the United States a law for the people of the state as a body,
and a law for the Indians who happen to be residents within
the state. This tended to depress mere territorial particular-
ism; and other influences intervened to establish a cosmo-
politan jurisprudence at least in matters of trade and of civil
rights. Civilization was then divided between two great
religions, which, greatly as they differed in other respects, at
least agreed in refusing to be limited by national bounds. So
far as concerns Christian Europe, in the earlier period of the
middle ages, the pope assumed the character of an international
judge, subject more or less to the limitation of councils, which
were international congresses, each sovereign being distinc-
tively represented and entitled to an individual vote. So
supreme was the pope in matters international, that even as
late as 1493, the papal bull, confirming the title of Ferdinand
and Isabella to their discoveries in the new world, was recog-
nized as giving title by all the sovereigns of Europe. In
Europe, also, the German emperor claimed to represent the
emperor of Rome, and to subject all Christian states to at
least nominal subordination. Under these influences the in-
tercourse between separate nationalities was facilitated. Bills
I Sir R. Phillimore, lxviii., quotes valeat neque foedera sancta Gentibus."
appositely on this point the following Phar. x. 471.
from Lucan: "Sed neque jus mundi
199
8 126.] COMMENTARIES ON LAW. [CHAP, IV.
of exchange took their origin, so it is saids in 1250; shortly

afterwards consuls were established in prominent cities for
the purpose of facilitating trade. The peculiar position of the
Jews had a good deal to do in extending this community of
business. The Jews were not recognized as the full subjects
of any particular sovereign. They were in many states sub-
ject to their own personal law ; in all states they were cosmo-
politan and not nitional ; they formed, therefore, as a ubiqui-
tous class of expert business men, an admirable agency for
establishing a cosmopolitan scheme of business law.
§ 126. The reformation, it might at the first glance be sup-
Tenidency posed, would have been likely to have re-established
of the re- insulation among the great European states. The
formation .
to cosmo- international influence of the papacy, which has
politanism. been generally used in the interests of peace and of
free intercourse between states, received a severe shock. The

supremacy of the German emperor ceased to be even a shadow.
Territorial supremacy, therefore, was relieved from what might
have been supposed to have been the two most important
checks by which it had been restrained. But there were ten-
dencies on the other side which did more than take the place
of those thus passing away. The Jews were in a large mea-
sure relieved from proscription, and their office, as the ex-
change brokers of civilization, gave a largely increased im-
petus to international commerce, and almost universal cur-
rency to the rules of trade adopted by them. Protestantism,
also, while it added to the authority of state governments,
which are local, added still more to this authority of the indi-
vidual conscience, which is cosmopolitan. The civilized world
is no doubt an aggregate of independent states, which may
have little in common with each other, but it is also an aggre-
gate of independent consciences, which have a great deal in
common with each other. And then the opening of the East
India passage and the discovery of America, gave to Christian
sovereigns trusts which they held more or less in common,
and for the management of which they were compelled to
adopt common rules.'
I As authors on the Roman Catholic cosmopolitan politics are vindicated,
side, in whose works the claims of Holtzendorff (op. cit.) mentions Vic-
200
§ 127.The work of Grotius, De Jure Belli et Pacis, which
appeared in 1625, is the earliest systematic treatise Grotius,
on public internationil law. Several important cir- thefounder
cumstances contributed to the fulness and fairness dern sys-
of this work. In the first place, the Westphalian tem.
peace, by which the thirty years' war was terminated, estab-
lished a pacification which settled terms of international
relationship between the great states of Germany. In the
second place, a number of treatises had emanated from divines
of both confessions on the duties incident to war, and these
treatises in the main agreed. In the third place, Grotius pos-
sessed remarkable abilities and remarkable experience for the
work of codifying those opinions. But the merit of his work
toria, a Spaniard (1480-1586); Sata, popery." When this wave was at its
also u Spaniard, 1494-1560, who de- height, in 1536, Cromwell, as chan-
nounced unjust war and the slave- cellor of the University of Cambridge,
trade; Franciscus Suarez, a Spaniard secretary of state, and vicegerent in
(1548-1617), who took the same posi- matters spiritual, issued under the
tion ; Balthazar Ayala (1548-1584), a name of the king, a declaration w'hich
Spaniard, who also attacked the prac- stated, inter alia, " that as the whore
tice of reducing into slavery those realm, as well clergy as laity, had re-
taken in battle ; Albericus Gentilis nounced thepope's right, and acknowl-
(1551-1608), a Protestant, who dis- edged the king to be the supreme head
cussed the rights of ambassadors. of the church, no one should hereafter
The pope and the Catholic councils publicly read the canon law, nor
were not the only international arbi- should any degree in that law be con-
ters during the middle ages. It was ferred." Ibid.
towards the close of the middle ages But a reaction took place in the
that embassies from sovereign to sover- reign of Edward VI. and of Elizabeth,
eign were instituted and consuls ap- and the study of the civil as well as
pointed, and that maritime codes, of the Roman law was enjoined on both
binding ships of all nationalities, were universities, in each of which, even in
proposed. the time of Henry VIII., a professor-
In England, the Reformation, as far ship of the civil law had been estab-
as concerns the Roman and the canon lished.
law, was far more radical in its opera- In Elizabeth's time questions of in-
tions than it was on the continent of ternational law were submittdd to
Europe. " The books of civil and canon advocates in Doctors Commons (see
law," said Ayliffe (Ayliffe's Oxford, Hallam, Const. Hist. I. 218) ; and
i. 188), in a passage cited by Sir Cromwell referred to a commission of
R. Phillimore (Int. Law, 3d ed., xxx.), civilians an important question in
" were set aside to be devoured by reference to diplomatic privilege.
worms, as savouring too much of
201
is primarily due to himself. He is in the first rank of pub-

licists both for strong sense, philosophy, and humanity.'
§ 128. The ambition of Louis XIV. seeking to realize the
scheme of French European dominion conceived by
Develop- Richelieu and Mazarin, led to constant appeals to
ment in theRihlean aaildtcosatpelso
time of the law of nations on the part of the allies whose
Louis XIV.
headquarters were at Hague, and whose leader was,
during his whole period of political activity, William of
Orange. Louis XIV. represented force and intrigue. Force
and intrigue were undoubtedly employed by the allies, but
they put their case on certain fixed principles of high political
morality. 2 The sovereignty of small states was to be as much
respected as the sovereignty of great states; the right of
blockade was to be restricted within reasonable limits; the
independence of neutrals was to be rigorously maintained;
contraband of war was to be defined in a way compatible with
the growth of neutral commerce; no one state was to obtain
a dominancy by which the independence of others would be
hazarded. These principles were maintained by the allies in
their contest with Louis XIV., and were virtually incorporated
into the public law of Europe. It is true that the peace of
Utrecht was attacked at the time as yielding to France advan-
tages to which in her then depression she was not entitled.
But that peace gave a final destructive blow to the claim of
any one state to supremacy in the family of nations. Neither
Austria nor France obtained the Spanish crown. The right
of any one state to dominate the seas, and to impose its own
construction on the law of blockade and of contraband of war,
was solemnly and decisively condemned. A settlement of
I Of Grotius's treatise, Sir R. Philli- stantly appeal to civilians during his

more (I. xxii.) says "that no negotiations with the allies, but in
uninspired work has more largely the negotiations preceding the peace
contributed to the welfare of the com- of Utrecht the English ambassadors
monwealth of states. . . Grotius first were directed to follow the advice of
awakened the conscience of govern- the civilians whose opinions had been
ments to the Christian sense of inter- taken. Boling. Corr., I. 4; Phil. Int.
national duty." Law, 3d ed., I. xlvi.
2 Not only did Marlborough con-
202
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [129.
Europe also was made, which assumed that thereafter no one

power was to be permitted to dominate the continent.1
§ 129. To a Swiss, Vattel, we owe a work, appearing in
1758, which is the most lucid exposition of the doc-
. Natural
trine of natural law then prevalent.' Vattel was law as held
much more of a doctrinaire than was Grotius ; and prior to the French
by doctrinaire statesmen, as well as by statesmen Revolu-
whose political interests lead them to maintain the tion.
independence of small states, he is cited as the leading
authority. Citations from Vattel formed part of the lectures
with which George Grenville is said to have so much fatigued
George III. ; and whenever undue interference with the rights
of other states was threatened, or undue attacks on old pre-
rogatives, then Vattel was appealed to. But it was soon seen
that Europe could not be kept in a permanent equilibrium in
which each state would maintain its relative strength. No
treaties, no philosophical speculations, could keep Spain and
Sweden in the position of first-class powers; no guarantees,
no matter how solemn, could make Holland permanently the
rival of England on the high seas, or maintain the supremacy
of Austria in Germany, or prevent Prussia and Russia from
"The treaty of Utrecht," so Mr. tranquillity of its neighbors. For this

Hosack closes his treatise on the rise state of things there is, as all history
and growth of the law of nations, Lon- proves, but one remedy. The notion
don, 1882, "terminated an important of preserving the balance of power in
period of modern history. After the the European system has been derided
decline of the feudal system, and the by many writers in the present age,
rise of the great continental monarchies, and it is true that to maintain a per-.
we find that at three different epochs feet balance is impracticable. But the
three powerful princes threatened the instinct of self-preservation is para-
peace and the independence of Europe. mount among nations as among men,
But Charles the Fifth found a Maurice and we may rest assured that the rise
of Saxony, Ferdinand the Second a of any European power to an exorbi-
Gustavus Adolphus, and Louis the tant degree of power would lead to
Fourteenth a Marlborough to oppose results similar to those that have been
and overthrow their deep-laid schemes again and again witnessed in the past."
of aggrandizement. We may, perhaps, See Seeley's Expansion of England, 77.
conclude from these and from subse- 2 Le droit des gens, on principes de
quent examples that since the estab- la loi naturelle appliqu6s 6 la conduite
lishment of standing armies it is the et aux affaires des nations et des sou-
tendency of some particular state to verains; a new edition, by Pradier-
become too powerful for the peace and Fod6r6, appeared in Paris in 1863.
203
becoming first-class powers, or avert the partition of Poland.

The peace of Versailles (1783), in which England, France,
Spain, Holland, and the United States united, introduced a
new and most important principle. There is nothing in the
law of nations, so this pacification solemnly attests, which
condemns a revolt of a colony when successful; and foreign
states, interfering in such revolt on behalf of the insurgents,
will be admitted by the offended state as parties to a general
pacification by which the independence of the revolted states
is affirmed. Two conflicting elements become from this time
discernible in the sphere of public international law. The
first is that of humanitarianism, seeking to subordinate all po-
litical communities to a general law based on morality. The
second, while admitting that morality should govern nations
as well as individuals, maintains that there can be no absolute
and universal standard of morality; that what is moral de-
pends more or less upon circumstances; and that when nations
differ in this respect, force must determine.' There is, no
doubt, much truth in the position that nations cannot be
governed by any speculative system of political philosophy;
and that Vattel, so far as he sought to establish a universal
code, failed. At the same time it cannot be denied that in
making morality the final standard for nations, as well as for
individuals, he did a great work. Men have since then dif-
fered as to what was politically moral, but none have under-
taken to vindicate a cause whose immorality they admitted.
§ 130. The French Revolution, in its early enthusiasm, set
French forth a humanitarianism which tended to extin-
Revolution guish all nationalism ; in its later stages, an exalta-
hostile to 2
rights of tion of nationalism which tended to extinguish all
states. humanitarianism. Not only when the Revolution
reached its climax were foreign nations declared to be entitled
to throw off their old governments, but they were forced to
do so; what were called republics were established in Italy
and in Belgium; and finally, under Napoleon, the German
Empire was swept away, and princes from Napoleon's family
1 As the representative of the latter such des neuesten Euopaischan V1-

view is cited J. J. Moser, whose Ver- kerrechts was published in 1778.
204
CHIAP. IV.] PUBLIC INTERNATIONAL LAW. [§ 131.
were placed on the thrones of Spain, of Holland, of West-
phalia, and of Naples. Napoleon dominated the land, and
established the continental system by which all foreign goods
were confiscated, unless received under French permit, while
England controlled the sea, claiming to capture all vessels sail-
ing to French ports. In this collision, neutral rights, on the
continent, almost ceased to exist. Each of the two great com-
batants did what subserved his own interests, and appealed to
the law of nations chiefly as an argument against his adver-
sary, rarely, as a rule, for himself.
§ 131. The congress of Vienna found international law in a
state of chaos. The object of the congress,n of which
Congress
Austria, Prussia, Russia, France, and England took of Vienna
the control, was to constitute by treaty a new and aeact
permanent system of European public law. The
system thus instituted, to which England, however, gave only
a partial and temporary assent, was mutual insurance by the
legitimate sovereigns who were parties to the contract. As a
preliminary measure a partition of Europe was made in such a
way, it was alleged, as best to establish the equilibrium of
power, but really as best to subserve the interests of the prin-
cipal contracting parties. England's colonial conquests were
secured to her; Gibraltar was to be retained by her, and she
received a large portion of the indemnity levied on France for
the expenses of the occupation. The partition of Poland,
iniquitous as it was, and hostile to the principles of legitimacy
the congress was supposed especially to represent,was validated.
Parts of Saxony, which had been loyal to Napoleon to the
end, were given to Prussia, whose alliances with him had
been only temporary. Nothing was done to interfere with
the pretensions of England to a control of the high seas; all
that the congress' did was to establish what was called a
" Holy " Alliance between the four leading continental powers,
by which the equilibrium or balance of power then existing
was to be made permanent. The alliance was not of nations;
it was of sovereigns, and was purely despotic. No matter
how atrocious might be the invasions by a sovereign of his
people's constitutional rights, there was to be no interference
by his allies. But if a nation should rise up to vindicate its
205
g 131.] COMMENTARIES ON LAW. [CHAP. IV.
rights, then the other sovereigns were to intervene. It is

manifest that such a system contained in itself the seeds of
dissolution. It was based on an assumption no longer toler-
able, that of the divine right of kings; and the very monarchs
who claimed to be thus jure divino entitled to rule Europe in
perpetuity-the emperors of Austria, of Russia, and of Prussia
-owed their titles not to legitimacy, but to treaty, to revolu-
tion, or to conspiracy. Wellington and Castlereagh, who
appeared for England, conscious that if legitimacy were the
test, the prince they represented would have no title to the
throne, and that if they should announce that legitimacy was
to rule the world all England would be in a revolt, were care-
ful to say nothing to sanction the legitimistic pretensions.
And very soon the alliance proclaimed by the congress received
a death-blow. It is true that at the congress of Lay bach (1821)
the allies, in the teeth of remonstrances from the English gov-
ernment, undertook to regulate Neapolitan and Spanish affairs,
and in the congress of Verona, in 1822, authorized France to
march troops to support the Spanish king against his own re-
volted subjects. But when the South American dependencies
of Spain and Portugal declared themselves independent, their
independence was recognized by England, Canning, then prime
minister, making the memorable statement, that in this recogni-
tion he had invoked the new world to redress the balance of
the old. Nor, audacious as this appeared, was it a mere personal
or party boast. The tory administration of Wellington, which
succeeded that of Canning, ratified not only these recognitions,
but the alliance with the revolutionary government of Greece
in its revolt against the legitimist government of Turkey.
And as a final shock to the Holy Alliance came the revolution
in France, by which the Orleans family were placed on the
throne, and the consequent support given by France and Eng-
land to the Belgian repudiation of Dutch authority, by which
Belgium, which had been solemnly assigned to Holland by the
congress of Vienna, was made an independent state. The
congress of Vienna, therefore, embodying the reactionary tem-
per of conservatism, seeking to wipe out the work of the
French Revolution, was as ineffective in establishing a perma-
nent system of international law, as had been the revolution
206
CHIAP. IV.1 PUBLIC INTERNATIONAL LAW. [132.
whose action it undertook to correct. The attempt to base a
unity of nations on legitimacy had failed, as had the attempt
to base that unity on the sentimental humanitarianism of
the early French revolutionists, or the military ascendency
of Napoleon I.'
§ 132. The downfall of the Orleans dynasty in 1848 had several
remarkable international effects. The catastrophe, in Conse-
the first place, was induced by two conspicuous acts quences of
fall of the
of Louis Philippe, on which it placed the seal of con- Orleans dy-
demnation. He had alienated not only his Euro- navty.
pean allies, but a large portion of his own subjects, by the
underhand management by which he attempted to place one
of his sons on the throne of Spain ; and he was untrue to the
popular element in the constitution which he had accepted
when called to the throne. His overthrow would not have
been so complete had it not been felt that he had been disloyal,
not only to his own principles, but to the principles of fairness
and self-restraint in dealing with other states. His fall, there-
fore, which there was not a hand among his brother monarchs
lifted to arrest, or a voice in foreign nationalities lifted to
lament, showed that there was a conscience among princes as
well as people, which would resent underhand attempts at
aggrandizement, if not disloyalty to constitutional pledges.
But the consequences of the fall of Louis Philippe were still
more remarkable. The impulse which drove him from the
throne almost revolutionized central Europe. The ruling
family of Austria was saved from deposition, it is true, by the
intervention of Russia, and the king of Prussia was aided in
his efforts to suppress the national movement of 1848 by Rus-
sia and Austria. The Holy Alliance, therefore, in this way
asserted itself by the interposition of Russia as the protec-
tor of the sovereigns of Prussia and Austria from revolution.
But this was the last appearance on the political stage of
Prussia, Austria, and Russia as reciprocal guarantors; and
the exceptional excuses that were given for the interference
of Russia showed that the permanent alliance of the congress
of Vienna had ceased to exist.
I See on this topic, Holtzendorff, ut sur les Elements de droit int., 4th vol.
sup., 1197; Lawrence, Commentaries Pierantoni, Storia del diritto int., 1876.
207
§ 133. The object of the treaty of Vienna was to perpetuate

Modifica- in Europe the dynasties that existed prior to the
tions by French Revolution, and especially to exclude all
treaty of
of Paris of members of the Bonaparte family from political
18 power. The result of the French Revolution of
1848 was to give the presidency of the new republic to Louis
Napoleon Bonaparte, whom Napoleon I. had designated as his
heir; and subsequently, by a coup d'ltat, sanctioned by a popu-
lar vote, Louis Napoleon became emperor, the dynasty being
re-established in his family. It might have been supposed
that the sovereigns whose predecessors had united in putting
the Bonaparte family under the ban would have interfered,
had they the power, to prevent this defiance of the adjudica-
tions of the Vienna Congress. But they had not the power,
and, even if they had, it is questionable whether any one of
them would have had the temerity to undertake a second
war for the establishment of legitimacy in France. The
general acquiescence, therefore, in the restoration of the
Bonaparte dynasty in France signified a general acquiescence
in the repudiation of the duty of intervention in favor of
legitimacy which the Vienna Congress proclaimed. And it
is a remarkable fact that the re-establishment of Napoleonic
imperialism in France, so far from being regarded with anger
or fear, was welcomed by the other great powers. It was
plain that France would not tolerate either of the Bourbon
dynasties ; and the Orleans family in particular had always
been disliked by the courts of Russia and Austria, and had
made itself detestable in England by its intrigues for the
possession of the Spanish throne. The only alternatives,
therefore, were the republic and Napoleonic imperialism.
The republic had already sufficiently exhibited its capacity
for revolutionary propagandism to make it the object of
unqualified dread and dislike on the part of the continental
courts ; and not only was the revival of Napoleonism, which
claimed in its new attitude to be a system of peace, in itself
preferable to republicanism, which was war, but Louis Napo-
leon took the first opportunity to show that his policy was to
be conservative, so far as the established institutions of Europe
were concerned. England had been the most implacable
208
CHIAP. IV.] PUBLIC INTERNATIONAL LAW. [§ 133.
adversary of his uncle, and to England the first French em-
pire had finally succumbed; but in England Louis Napoleon
found a kindly welcome during his exile; he had been re-
ceived as a prince by the English aristocracy, and had served
as a volunteer policeman during some momentary disturbances
in London; he took the first opportunity, when elected presi-
dent, to announce his determination to establish intimate
political relations with England; and outrageous as was the
coup d'dtat, it received the cordial support even of leading
English statesmen. Nor was he less successful in conciliating
the autocratic courts. He found, when he entered on the
presidency, Rome under the control of a popular government
which bad been aided by the French republican authorities;
he withdrew the French troops, and co-operated in the re-
establishment of the pope. It is true that in part from his de-
termination to take a leading position in Europe, in part from
an irrepressible tendency to conspiracy, which was one of the
chief features of his remarkable character, he showed no
reluctance to engage in war; and the first war into which he
entered led to important consequences in the domain of inter-
national law. Turkey, so it was alleged, was threatened with
destruction by Russia, the consequence of which would be the
control by Russia, not only of the mouth of the Danube, but
of the Eastern Mediterranean. England was the state most
exposed to injury by such an aggrandizement of Russia; but
Napoleon III. hastened to ally himself with England in de-
manding a guarantee from Russia of the integrity of the
Turkish possessions. Sardinia, under Victor Emmanuel,
joined in the war which followed, and the alliance was pro-
ductive of important results. It placed Napoleon III. in
intimate relations with the English crown, and won for him
unquestionable popularity with the English people. It ele-
vated Sardinia from an obscure to a conspicuous position in
European politics, and gave to Victor Emmanuel that confi-
dential relationship which afterwards led to an alliance against
Austria. And the war, successful in maintaining the integrity
of Turkey and in ultimately destroying Sebastopol, was closed
by the peace of Paris (1856), in which England, France,
Prussia, Austria, Sardinia, Russia, and Turkey took part.
14 209
Among the articles of this peace, it was stipulated that the

Danube should be open to free navigation, Russia relinquish-
ing her control over its mouth, and England relinquishing the
insignia of universal maritime supremacy. Blockades, unless
actual and effective, were not to be regarded as binding; the
rights of neutrals received additional security; and privateer-
ing was to be surrendered by all the subscribing powers. To
these conclusions all the states of Europe gave in their adhe-
sions. The government of the United States withbeld its
assent on the ground that the measures for the protection of
neutrals were not sufficiently thorough; and afterwards, dur-
ing the civil war, in vain endeavored, by assenting specially
to the provision in respect to privateers, to obtain the benefits
of that provision. 1-The treaty of Paris further provided that,
before war was actually commenced, the combatants should
invoke the friendly offices of an independent state as a medi-
ator. But that this provision was not regarded by the parties
as binding is shown by the great continental wars which fol-
lowed, no one of which was preceded by attempts at arbitra-
tion.2
§ 134. Another important recent tendency to be noticed
is that of the absorption of minor states. At one
tendencyp time it seemed as if the permanent policy of Europe
tion of mi- was decentralization. Germany, which had pre-
nor states, viously been united under an imperial control,
was
split up into a series of independent states, some of them
without appreciable political power. Spain had been stripped
of her colonies, and of her Italian and Flemish dependencies.
From Turkey Greece had been torn; the ancient union of
Denmark and Sweden was dissolved ; Portugal was finally
severed from Spain; England lost her chief American colo-
nies. The reaction to annexation and territorial aggrandize-
ment was first exhibited in the United States, whose territory
was increased by the addition of Louisiana and Florida, to be
followed by that of Texas, California, and Alaska. A still
more important national aggrandizement flowed from the
success of the government in the great civil war, which
I See infra, § 201. 2 Infra, §§ 216 et seq.

210
terminated in 1864. It is true that this war brought no ac-
cession of territory, and that propositions for the annexation
of additional territory have since then been repelled. But
before the war it was always an open question how far par-
ticular states might be entitled, under the constitution, to
secede; and this right had been claimed at the Hartford con-
vention as a constitutional safeguard, and was the basis of
the revolutionary action of the southern states in 1858. Not
only was this claim finally extinguished by the result of the
civil war, but the chief element of domestic dissension was
removed by the abolition of slavery. Hence, as is stated by
Holtzendorff,' it was not until after this war and the extinc-
tion of the element of discord caused by slavery, that the
United States took the position of a leading power. In Eu-
rope, also, there has been a marked tendency to consolidation.
By the congress of Vienna, in 1815, Venice was attached to
Austria, a large portion of Saxony to Prussia, Genoa to Sar-
dinia, and Norway to Sweden; and in each case without con-
sulting the wishes of the population annexed. In 1859 Italy
was united in a kingdom under the house of Savoy. By the
rapid and thorough victories in 1864 of Prussia in the cam-
paign against Austria, all the minor states of North Germany
were absorbed in Prussia; and an imperial system has been
since established, of which Bavaria, Saxony, and Wiirtemberg
are members, and Prussia is the head, while the new empire
has become a maritime power by the acquisition of seaports to
the north. The vast colonial system of England, impaired by
the American Revolution, was increased by new conquests in
India, while in 1878 Cyprus was acquired, and in 1882 a
dominant influence in Egypt. In 1860 France acquired
Savoy, and in 1882 took virtual possession of Tunis and
Madagascar. In 1877 Russia, in teeth of the lesson of Se-
bastopol (by which England and France were supposed to
have taught her at such enormous cost that she must not
interfere with Turkey), proclaimed war on Turkey, and after
a victorious campaign obtained, by the treaty of San Stefano,
of March 3, 1878, considerable accession of territory. This,
however, was reduced by the general pacification effected by the
1 Op. cit., 1199.
211
congress of Berlin, in the fall of the same year, England obtain-

ing in that congress the cession of Cyprus. Russia, also, be-
tween 1836 and 1880, has been vastly increasing her possessions
in Asia. The consequences of these territorial changes are of
much interest in connection with the topic before us. In the
first place, they diminish the probability of war by diminishing
the number of parties by whom war -can be begun. In the
second place, they make the institution of pacific and liberal
reforms more practicable by the diminution of the parties
whose assent is required to a change. In the third place, each
of these territorial changes has been in defiance of the princi-
ple of jure-divino legitimacy, and has hence been a ratification,
if not of a popular scheme of government, at least of the right
to change institutions from time to time as policy requires.
And several important ameliorations of the old rules of inter-
national law have followed this reconstruction of states. By
a convention held in Geneva in 1864 rules were adopted for
the better treatment of wounded prisoners. In 1866 Prus-
sia, Italy, and Austria united in urging the adoption of the
rule proposed by the United States, that private property
should not be the subject of capture at sea; and though this
was not accepted by France or England, its general recognition
may be regarded as only a question of time.' The abolition of
slavery in the United States and in Russia removes any doubt
from the question whether slavery is an offence by the law
of nations. The increase of railroads, with tunnels, by which
even the barriers of the Alps have been removed; the estab-
lishment of telegraphs, by which instantaneous communication
can be had with all civilized states in Europe and America,
have done much to unite these states in a community of inte-
rests, which make war the more unlikely, by making it the
more distressing and the more destructive.
III. INDEPENDENT SOVEREIGNTY, ITS INVIOLABILITY AND

INCIDENTS.
§ 135. The independent sovereignty of states is the basis of
public international law, just as equality in the distribution of
rights is the basis of municipal law. As far as concerns muni-
I Infra, §§ 216 et seq.
212
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [ - 136.
cipal law, in its proper sense, all individuals have the same
rights; so far as concerns public international law in
its proper sense, all nations have the same rights, the Indepen-
prope dent sover-
weak being entitled to the same respect as the strong, eignty of
ttes es-
the small as the great. Important public interests are sentialto
subserved by this equalization of states in the eye of ti in.
the law. If, in order to obtain the rights of indepen-
dence, size and strength were necessary, then small and weak
states would cease to exist. Yet such states have a peculiar
value in the system of the world. They supply to nationalities
distinctive institutions of which they would otherwise be de-
prived. They are non-conductors intervening between great
states and intercepting collisions which would otherwise be of
constant occurrence. If we do not admit such inviolable in-
dependent sovereignty we pave the way for a centralized uni-
versal government which would be destructive of all free
civilization.'
§ 136. A state to be thus independent must be a specific
territory inhabited by a nation permanently subject, Specific
so far as foreign relations are concerned, to a com- territory
essential
I The equality of independent states determining domicil. In the United

is a theory generally accepted by States there are as many distinct domi-
writers on international law, especially cils as there are States. In Germany
by those who belong, as do some of the this is the case with Oldenburg; and the
most eminent, to states not of the first same distinction applies to Austria and
rank for size or population; e. g., Bel- Hungary as to the several states com-
gium and Italy. It is also defended by posing the German empire, to the Con-
Wheaton, Histoire des progr6s an droit federated cantons of Switzerland, and
des gens, Premibre p6riode, § 2. It is to the United Republics of Central and
disputed by Prof. Lorimer (Law of South America. See infra, §254.
Nations, i. 182 et seq.), who argues It is no little credit to England that,
that at the best it can only be regarded however little inclined her leading
as a vague generality. In point of statesmen were to respect the rights of
fact, states of great power and wealth neutrals in the great struggle with
necessarily obtain a great ascendency Napoleon, her courts were in the main
over weaker and poorer states. Euro- true to that leading principle of interna-
pean affairs, for instance, are settled by tional law which asserts the equal in-
the " five powers :" maritime affairs by dependent rights of sovereign states.
maritime nations. See Nys, Le Droit This was eminently the case with Lord
de la Guerre, 101 et seq. Stowell, who during that great conflict
The question in the text is not to be presided in the English admiralty.
confounded with that of sovereignty as
213
but not mon oovernment whose authority is coextensive

form of
govern- with the territory. The political character of the
ment. government is immaterial. It may be an absolute
monarchy, or an oligarchy, or a republic; it may be a federa-
tive or a closely consolidated state; all that is requisite is that
there should be a settled government, coextensive with the
territory governed, capable of entering into binding relations
with foreign powers. Size, power, religious type, have nothing
to do with the question of international rights. " The smallest
republic is as much a sovereign state as is the most powerful
empire."' The test is capacity to bind the nation occupying
the territory under consideration. On this ground Lord
Stowell held that the governments of the North African
states, in existence in his day, were to be regarded as compe-
tent, for the time being, to execute valid treaties, though
their notions of international law were in some important
respects different from those obtaining on the continent of
Europe.' It makes no difference internationally in what way
the functions of a government may have been distributed, if it
has the exclusive power of dealing with foreign nations. For
instance, Austria and Hungary may be in many respects dis-
tinct and sovereign states, and the states of the American
Union are each in some respects sovereign, yet this in no
respect affects the fact that the court of Vienna is the only
international organ of Austria and Hungary, and the Federal
government at Washington is the only international organ
of the United States.
§ 137. To make a state a member of the family of nations
Modes of so as to constitute it one of the factors by which
sovereignty international law is determined, it must be sover-
eign. In this connection the following distinctions have been
taken.
(1) Half-sovereign states, as they have been called, are vassal
states whose suzerainty is vested in a superior power. Mr.
Wheaton places under this category the North American
Indian tribes, to whom, by the supreme court, the status of quasi
I Vattel, Prelim., s. 18; Marshall, C. 2 The Helena, 4 Rob. Ad. 3.

J., The Antelope, 10 Wheat. 66.
214
sovereignty has been assigned; and while the United States

government has not hesitated to wage war on and make trea-
ties with those tribes, it would not tolerate any attempt on
their part to make treaties with foreign states. As European
illustrations of half-sovereign states, may be mentioned
Monaco, which is under the protection of Sardinia; Marino,
which is under papal protection; Transvaal, which is under
the protection of England; and Tunis, which, since 1881, is
under the protection of France. Whether Bulgaria and
Egypt fall under this head are questions still open. And
whether there is such a distinctive group as " half-sovereign"
states has been doubted with good reason.' No matter what
powers such a vassal state may hold in reference to its suzerain,
if it has no power of dealing with foreign states, it is not,
according to international law, a member of the family of
nations.
(2) Confederacy of states (Staaten-bund). The states which
are members of confederacies of this class reserve the right to
negotiate in public affairs with foreign powers, and are bound
to their associates only by treaty to performance of specific
objects which are not inconsistent with the maintenance of
their sovereignty so far as concerns their relation to foreign
powers. As a Staaten-bund are to be regarded the members of
the German empire.
(3) A confederated state (Bundestaat), on the other hand,
absorbs the entire sovereignty of its members, so far as con-
cerns their relations to foreign powers. They may retain
their sovereignty for many domestic purposes; they may be
sovereigns in relation to each other as to many important
particulars; but, as members of the family of nations, they
have ceased to exist. Under this head are to be classed the
United States of America and the Swiss confederacy.
(4) A union of sovereignties, as is the case with Norway and
Sweden, and with Great Britain, which contains the sovereign-
ties of England, Ireland, and Scotland, united under a com-
mon absolute legislature and sovereign.
I Stubbs, Suzerainty, or the rights supra, 1207; Jellinek, Die Lehre von
and duties of suzerain and vassal states, den Staatenverbindungen, 1882.
London, 1882; see Holtzendorff, ut
215
(5) A personal union, in which certain sovereignties are

temporarily united under a common prince. This was the
case with the union of Great Britain with Hanover, during
the reigns of the first four Hanover kings; and with the union
of the empire with Flanders and Spain under Charles V., and
of Castile and Arragon under Ferdinand and Isabella. At
present, the same relations exist between Luxemburg and
Holland. Under such a union the function of declaring the
political relations of the united countries is with the common
prince. It should be observed that the mode in which a state
expresses itself diplomatically has nothing to do with the
question of its reception as a sovereign power. It may
act through committees appointed by legislative bodies, as
was the case with Holland; or through embassies appointed
by the president and senate, as is the case with the United
States; or, as in England, by an embassy appointed by the
sovereign nominally, but virtually by the prime minister, who
depends for his appointment on the action of the house of com-
mons. These questions are not material. The only question
to be determined is whether the functionary speaking for the
state is actually entitled so to speak.'
§ 138. It is a part of the law of nations that a sovereign
state is entitled to deference as such by other sove-
Sovereign- reinties. This deference is shown in various ways:-
ties entitled regte.Ti eeec ssonilaiu,,y:
to political 1. To the chief maoistrate and chief officials of a
deference.
nation. It was on this ground that General Wash-
ington treated it as an indignity for the French ambassador
in the United States to address an appeal to the people of the
United States. The only person whom an ambassador is to
address is the sovereign to whom he is accredited. And to
him all due marks of respect should be paid.?
I Infra, §§ 158, 505. The question of 2 In England prosecutions for libel-

form of government, it will be gathered ing and inviting the assassination of
from what has been said, has nothing foreign sovereigns have been sustained.
to do with that of sovereignty. Every See Phill., ii. 48 (3d ed.) ; R. v. Peltier,
nation has a right to choose the form 28 St. Tr. 530; R. v. Most, L. R. 7 Q.
of government it considers best adapted B. D. 244.
to its condition. Hartmann, § 8.
216
2. To the insignia and marks of the sovereignty of the state.
An insult to these is an insult to the sovereign.'
3. To the relationship of sovereign to subject. The inter-
ference of one state in the affairs of another is a breach of in-
ternational law.
4. To inviolability of soil. No nation has a right to in-
trude on the soil of another, unless when necessary for self-
defence.2
This inviolability precludes the passage of an armed force
of another sovereign through the territories of an indepen-
dent sovereign ; and for a neutral sovereign to give the right
of passage over his soil to the armed force of a belligerent is
a gross breach of neutrality.' But permission to a sove-
reign, not a belligerent, to take his troops over an indepen-
dent state is sometimes given as a. matter of courtesy.4
§ 139. A sovereign is entitled, also, to demand from a
foreign state an indemnity for any wrong which And to
5
his subjects may have suffered from such state. protection
of subjects.
Before, however, a claim of this class can be
pressed, the subject must have been refused relief by the au-
thorities of the state offending. All reasonable efforts on
his part to obtain such relief must be exhausted, before his
sovereign is justified in interposing in his behalf. Nor can he
rightfully ask his own sovereign to redress wrongs inflicted on
him which were incidental to the peculiar system of the country
which he selected as his residence. He should have acquainted
1 Insults to the flag have been re- 2 Infra, §§ 146, 239, 248. As to ter-
garded as grounds for withdrawal of ritorialwaters, see infra, §§ 189 and 240.
an embassy, and where no apology is 3 Infra, § 248.
given, may be cause for war. The re- 4 Mr. Seward, in 1861, offered the
fusal of maritime ceremonials, when British government permission to trans-

established by custom, may lead to port British troops across the state of
grave difficulties. They cannot be ex- Maine, Quebec being then blockaded
acted, however, except within cannon by ice. This, however, was excepted
shot of the shore of the sovereign to to by the state of Maine, and the British
whom such ceremonial is due. They government did not avail itself of the
consist in lowering the flag and salut- offer. A correspondence on the same
ing ships of war, forts, fortifications, topic will be found in Hamilton's
and foreign sovereigns, in their terri- Works, vol. iv. p. 48.
torial waters. All other ceremonials are 6 See Fleeger v. Pool, 1 McLean, 185;
matters of courtesy. 11 Pet. 185.
217
t-, 140.] ]COMIENTARIES ON LAW. [CHAP. IV.
himself with that system before he put himself under its

power. It is only for flagrant wrones, not part of such sys-
tem, and for which the country inflicting will give no satis-
faction, that he can call on his own sovereign to exact redress.
That a military servant of a belligerent is responsible only to
his own s'vereign will be hereafter seen.'
140. The recognition of a state as independent is not neces-
sarv to constitute its independence, nor is its inde-
Recogni-
tion depen- pendence constituted by such recognition. It must be
dent on
discretion. recollected that independent sovereignty may come
about in several ways. A desert country may be
occupied by settlers, no prior civilized state having existed on
the same soil. A colony or a component part of a parent state
may revolt. Several small states may unite to form a large
state. But whatever may be the way in which the new state
may be formed, its recognition depends upon the discretion of
the recognizing state. This recognition may be in several
ways. It may be by formally receiving ambassadors from
the state seeking recognition; it may be by treaty; though it
is not regarded as granted by a license to subjects to trade
with subjects of the state seeking recognition. But whatever
may be the mode of recognition, it is dependent on the dis-
cretion of the state by whom it is made. In some cases-e.
the recognition by France of the United States, and the recog-
nition of the South American republics by England-it may
be made promptly to further a particular political end; in
other cases it may, in the same view, be long delaved. But
in any view it is a matter of grace, to be granted at discretion. 2
Recognition of an insurgent government as an independent
sovereign is not intervention, and is not by itself cause of war;
nor, d fortiori, as will be presently seen, is the recognition of
such insurgent as a belligerent. The rule generally adopted
is, that a government de (teto may be acknowledged by other
states as soon as such government has the power and the in-
I Infra, § 210. Della nazionalitA come fundamento del

2 See on this topic Holtzendorff, ut diretto delle genti, 1851; Esperson,
sup. 120S; citing Spence on recognition II principio di nazionalitA, l6S; Cago-
of Southern Confederacy, 3d ed., 1S62. dan, La Nationalit6, 1879.
Gibbs, Recognition, 1863; Mancini,
218
tention to maintain its independence and to fulfil its inter-
national obligations. A de facto government so established
stands on the same footing as a legitimate government.
§ 141. Recognition of an insurgent government as a bel-
ligerent is to be distinguished from a recognition
of such government as an independent power. The Belliger-
ency may
latter recognition may be deferred until the contest be distinc-
tively
between the insurgents and the parent state is prac- recognized.
tically over; the former recognition is given usually
when the insurgents have a permanent and efficient military
organization, and always when the insurgents are recognized
as belligerents by the parent state.2 The last condition, how-
ever, is not necessary in cases where the insurrection assumes
the position of a civil war, and when the usual conditions of
a civil war exist. During the late civil war in the United
States, the facts that the Federal government had blockaded
the southern ports, and had agreed to an interchange of
prisoners with the southern authorities, were held by the
English and French governments to be grounds, in connection
with the magnitude of the contest, on which the recognition
of the belligerent rights of the southern government might
be placed. This was regarded by the Federal government as
precipitate and partial, though it was at the same time stated
that this recognition released the Federal government from lia-
bility for damages done by the insurgents to British interests.
But the belligerency of the southern forces was virtually ac-
knowledged by the Federal government, which subsequently
withdrew the prosecutions instituted for treason and piracy
which had been instituted against those concerned in the in-
surrection.3
That in the United States questions By recognizing belligerent rights,
of recognition are determined by the neutral powers pronounce no judgment
executive and legislative departments whatever either on the merits of the
of the government, see U. S. -. Palmer, claim or the probability of its ultimate
3 Wheat. 610; The Divina Pastora, 4 vindication. Belligerent recognition is
Wheat. 52. a mere declaration of impartiality."-
2 That a belligerent may be repre- Lorimer's Law of Nations, i. 142.
sented by diplomatic agents. see infra, The rule is thus stated by Mr. Field
§ 165. This question was involved in in his International Code
the Trent case, and the general sense "§ 707. A nation in which an insur-
of European jurists was as stated in rection exists may, without renouncing
the text. See infra, § 228. its claims of jurisdiction over the in-
219
§ 142. When a section of a state revolts and becomes inde-

pendent, it cannot be internationally charged with the obliga-
surgents, or recognizing them as alien That this applies to the question of the
enemies or as having an established recognition of a state government by
government, treat them as belligerents, the Federal government, see Luther v.
and claim from foreign nations the Borden, 7 Howard, 1.
performance of neutral duties. Dr. Woolsey (Int. Law, App. iii.,
" This allows the nation at its option note 19) says, in respect to the English
to invoke the principle that a civil war recognition of Confederate belliger-
creates the same belligerent rights ency:-
against neutrals, as a war between two " There may be a difficulty in ascer-
separate and independent powers. taining when the fact of war begins,
Prize Cases, 2 Black's U. S. Supr. Ct. and this difficulty is the greater in
Rep. 635. And see The Mary Clinton, cases of insurrection or revolt, where
Blatchford's Prize Cases (U. S. Dist. many of the antecedents and premoni-
Ct.), p. 556. tory tokens of war are wanting, where
" Whether rebels cruising on the an insurrection may be of little account
high seas against the property of the and easily suppressed, and where war
parent state can, in any case, be con- bursts out full-blown, it may be, at
sidered as pirates, see Dana's Wheaton, once. Our government has more than
§ 124, p. 196, note 84. once professed to govern its action by
" § 708. When an insurrection ex- the following criteria expressed in Mr.
ists in a nation, and the insurgents Monroe's words relating to the Spanish
have an established government capa- South American revolts : ' As soon as
ble of maintaining relations with other the movement assumes such a steady
nations, any other nation may recog- and consistent form as to make the
nize them as belligerents, without success of the provinces probable, the
recognizing their independence, and rights to which they were entitled by
may assume a position of neutrality." the law of nations, as equal parties to
As to recognition of Confederate bel- a civil war, have been extended to
ligerency see infra, §§ 165, 217-228. them.' But this rule breaks down in
" To the Confederate government several places. The probability is a
was conceded, in the interest of hu- creature of the mind, something merely
manity, and to prevent the cruelties subjective, and ought not to enter into
of reprisals and retaliation, such bel- a definition of what a nation ought to
ligerent rights as belonged, under the do. Again, the success does not depend
law of nations, to the armies of inde- on steadiness and consistency of form
pendent governments engaged in war only, but on relative strength of the
against each other. The Confederate parties. If you make probability of
states were belligerents in the sense success the criterion of right in the
attached to that word by the law of case, you have to weigh other circum-
nations."-Harlan, J., Ford ). Surget, stances before being able to judge
97 U. S. 594. which is most probable, success or
As to recognition by the United States defeat. Would you, if you conceded
of the belligerency of foreign insurg belligerent rights, withdraw the con-
ents, see The Divina Pastora, 4 Wheat. cession whenever success ceased to be
62; The Neustra Senora, ibid. 497. probable ? And, still further, such
220
CHAP. IV.] PUBLIC INTERNATIONAL LAW.. [5 142.
tions of the parent state. By treaty between the two, it is
true, a public debt may be apportioned ; but, apart from
provinces in revolt are not entitled by ade, or, it may be, actual armed con-
the law of nations to rights as equal test.
parties to a civil war. They have pro- " Was there, then, a state of war
perly no rights, and the concession of when the British proclamation of neu-
belligerency is not made on their ac- trality was given to the world, or did
count, but on account of considerations the facts of the case justify the British
of policy on the part of the state itself government in the supposition that
which declares them such, or on grounds such a state of war existed? Here
of humanity. everything depends on facts and, on
" Precedents are to be drawn chiefly opinions derived from facts. We find
from modern times. The revolt of the opinions expressed by eminent men
low countries was hardly an analogous among ourselves in the first half of
case, for they were states having their May, 1861, that war had already begun,
especial charters, not connected with which some of them conceived of as
Spain, except so far as the king of beginning with the attack on Fort
Spain was their suzerain. In our Sumter. We find a number of states
revolutionary war, precedent was not seceding from the Union, whose terri-
all on one side. Great Britain stoutly tory made a continuous whole, which
declared Paul Jones to be a pirate, formed a constitution, and chose public
because he was a British subject under officers, a president among the rest.
commission from revolting colonies, This president made a proclamation
and Denmark agreed to this. In the touching letters of marque and repri-
South American revolutions, the con- sal, and told his congress that two
cessions of belligerent rights were vessels had been purchased for naval
given freely by neutrals, most freely warfare. We find next two proclama-
by the United States; and, as for pro- tions of the president of the United
clamations, our government went so States, one of April 15th, calling for a
far as to issue one, in 1838, 'for the large force of the militia of the states,
prevention of unlawful interference in and another of April 19th, after the
the civil war in Canada,' where no proclamation of the Confederate presi-
civil or military organization had been dent inviting letters of marque and
set up. The true time for issuing such reprisal had become known at Wash-
a declaration, if it is best to issue it at ington, announcing an intention to set
all, is when a revolt has its organized on foot a blockade. On the 6th of
government prepared by law for war May, the southern congress sanctioned
on either element or on both, and when the proclamation concerning letters of
some act, involving the open intention marque, recognized a state of war, and
and the fact of war, has been performed legislated on cruisers and capture.
by one or both of the parties. Here We pass over many acts of violence,
are two facts, the one political, the such as seizures of forts and other
other pertaining to the acts of a politi- public property within the Confederate
cal body. The fact of war is either a states. Intelligence of President Lin-
declaration of war or some other im- coln's blockade reached London on the
plying it, like a proclamation of block- evening of May 2d. Copies of it were
221
treaty, the parent state alone can be called upon to perform

obligations it has incurred. The treaties of the old
Devolution
of duties state, also, do not bind the new state. When, how-
on states ever, there is a union of several states under a com-
seceding.
mon head, then the ag'regate state is bound by
the obligations of its several members, and by their treaties,
as far as consistent. The rule that a revolting and seceding
state is not bound by the obligations of the parent state has
been held not to apply to cases in which the obligation was
especially incurred on the responsibility or for the benefit of the
revolting or seceding state. And "if a nation be divided into
there received between the 5th of May Lincoln's proclamation in question,

and the 11th. On the 13th the queen's they erred in company with our su-
proclamation of neutrality was issued. preme court. (See the 'Alabama
" The president's proclamation of Question,' New Englander for July,
blockade announced a measure which 1t69 ; Black's Reports, ii. 635 et seq.;
might have important international Dana on Wheaton, 374-375; Law-
consequences. It was, in fact, a de- rence's Wheaton, 2d ed. supplem., p.
claration of a state of war on the sea. 13; and Pomeroy's Introd. to Constit.
' He deemed it advisable,' he says, ' to Law, §§ 447-453.)"
set on foot a blockade, in pursuance of The question of recognition of bel-
the laws of the United States and of ligerent insurgents came up in 1850
the laws of nations.' And vessels between the United States and Austria
exposing themselves to penalty for under the following circumstances:
violating the blockade would be ' cap- Hungary was then in revolt, and the
tured and sent to the nearest conve- United States authorized a secret agent
nient port for such proceeding against to proceed to Europe to inquire as to
them and their cargoes, as prize, as the probability of Hungary securing
might be deemed advisable.' Several its independence. In the report of this
neutral vessels were captured between agent, which was laid before congress,
April 19 and July 13, on which last day the rule of Austria was spoken of as
Congress sanctioned the proceedings of " iron." The Austrian government,
the government. The validity of the through its charg6 d'affaires at Wash-
captures came before the supreme ington, Mr. Hillseman, protested
court, and the question when the war against this interference. The action
began became a very important one. of the United States government was
The court decided that the president vindicated by Mr. Webster, who in-
had a right, jure belli, to institute a sisted (1) that there had been no
blockade of ports in the possession of actual recognition of the insurgents,
the rebellious states, and that blockade though sympathy with them was un-
was an act of war. avoidable; (2) that the correspondence
" It would seem, then, that, if the between different departments of a
British government erred in thinking government was not open to foreign
that the war began as early as Mr. diplomatic criticism.
222
various distinct societies, the obligations which have accrued
to the whole, before the division, are, unless they have been
the subject of a special agreement, ratably binding on the
different parts "1
§ 143. A state, also, does not lose its individuality and its
consequent international liability by submitting to
the loss of a portion of its territory, nor by under- Indivdual-
ity of pa-
going a revolution by which its political institutions rent state
remamns.
are radically changed. By such revolution the trea-
ties and other engagements made by it at earlier periods are
not vacated.'
"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." 3 " 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 govern-
ment. The body politic is the same, though it may have a
different organ of communication." 4
The following rules may therefore be accepted:-
1. Cession of a province does not affect the identity or con-
tinuous sovereignty of the parent state.
2. The ceded fraction is no longer affected by the treaties or
obligations of the parent state, though it is affected by local
burdens imposed on it, as well as by its prior international
limits.,
3. The same distinctions exist as to revolted colonies.
§ 144. A state cannot evade liability for the action of its
duly constituted executives on the ground that this Mutual re-
action did not meet with its approval. It is true sponsibility
ofstates
that serious questions may arise as to whether'a par- and gov-
ticular ambassador was duly authorized to act. Such ernments.
questions arose constantly at the beginning of the French
I Phillimore, op. cit., i. 211. To the a Burke, Reform of Represen. in
same effect is Kent's Com., i. 26. House of Commons. The same view
2 Thus each of the " reconstructed" is maintained by Hooker, Ec. Pol.,
states, after the late civil war in this Book I. ; supra, § 86.
country, has been held to be the same 4 Kent's Com., i. 25.
continuous body as " seceded," and 5 Hartmann, § 13; Wildman, i. 173.

as existed prior to " secession." Keith
v. Clark, 97 U. S. 454; see infra, § 593.
223
5 146.] COMMENTARIES ON LAW. [CHAP. IV.
Revolution; and they are not infrequent under our own sys-
tem, in which a treaty to be binding must be ratified by
two-thirds of the senate.' But when an act duly emanates
from an officer authorized by the state to perform it, it cannot
be afterwards repudiated on the ground that it was not in
conformity with the views of the people. So, on the other
hand, the government of a state has to bear the responsibil-
ity, so far as concerns foreign powers, of depredations com-
mitted by its subjects.'
§ 145. Whatever may be thought by the sovereigns taking
part in the Vienna Congress, there is no longer any
meovse doubt that an established defacto government must
facto au: be recognized abroad as binding the state it repre-
thoritative.
sents. There is no existing state, in fact, in which
the principle of dynastic legitimacy can be shown to have
been permanently maintained. Nor can one state be per-
mitted to inquire whether the constitution of another state
has been lawfully adopted, or whether its sovereign has been
duly elected. The constitution or sovereign at the time in
force must be recognized, not only as duly authorized, but as
succeeding to the obligations of its predecessor. And this
rule has been applied to acts done in obedience to the defacto
governments of the insurgent states during our late civil
war.3
§ 146. The international right of transit, by which subjects of
Territory one state (with such conditions as to passport as the
inviolable, visited state may prescribe) may visit and traverse
but qual-
fcation as all other civilized states, is limited to pacific visits.
toef- A state may exclude foreigners whose presence rsnei
it
defence. Asaemyecuefrinr hs
Infra, §§ 158, 502. 3 Ford v. Surget, 97 U. S. 594.

2 Whart. Crim. Law, 8th ed., 4§94, "The law of nations preserves an
283, 310; infra, §§ 178, 210. That a entire indifference to constitutions, so
subject of an enemy is to be regarded long as they do not prevent fulfilment
as an enemy, see infra, § 214. of obligations. Every state is in its eye
That redress for a wrong done by a legitimate." " The question of a state's
foreign sovereign to a citizen may be right to exist is an internal one, to be
sought through such citizen's own gov- decided by those within its borders who
ernment, see Fleeger v. Pool, 1 MeL. belong to its organization." Woolsey,
185; S. C., 11 Pet. 185. Int. Law, §§ 39-40.
224
may regard as prejudicial to its peace;' but for a foreign state
to forcibly seize persons or property on the territory of a
state with which it is at peace, or in any way to interfere
in its domestic affairs, is a gross violation of international
law. 2 On the other hand, any invasion of a friendly territory
by a foreign armed force is forbidden by international law. An
important qualification of this rule exists in cases where a brief
invasion of friendly foreign territory is made for the purpose
of seizing marauders who have made such foreign territory a
temporary refuge. This was the justification of the action of
the British government in 1838 in the seizure and destruction
of the Caroline when in a port of the state of New York,8 and
the same plea was set up more recently by the United States
when it was necessary to pursue and seize on Mexican terri-
tory bandits, who, after plundering the Texas border, fled into
Mexico. The arrest of the Duke of Enghien, when in a country
at peace with France, by the order of Napoleon, would have
been justifiable on the same ground, had a case of necessity
been made out. But there was no such necessity, since there
was no immediate danger to France from the Duke of En-
ghien's presence in his place of refuge, and on requisition from
I This was done in England during any one commonwealth of itself should,
the contest with France, and the pre- to the prejudice of another, annihilate
rogative was claimed by our govern- that whereon the whole world hath
ment during the administration of John agreed." Hooker, Ecc. Pol., i. § 10.
Adams, when the " alien" act was It is on this principle that the civilians
passed. On the same principle rest consulted by the allies based their
the treaties and statutes, excluding right to combine and prevent the con-
Chinese, infra, §§ 264, 435. quest of the Netherlands by France.
2 The independence of small states As to intervention, see infra, § 174.
can be only in this way vindicated. 3 See discussion in Whart. Cr. Law,
" No particular nation," so speaks 8th ed., §§ 283, 943; cf. Phill., op.
Hooker, " can lawfully prejudice the cit., i. 313; Vattel, lib. iii., c. vii. §
same (the law of nations) by their sev- 132; The Virginius Case, pamph., cited
eral laws and ordinances, more than a Whart. Crim. Law, § 487 a; Hall's Int,
man by his private resolutions the law Law, 233. For a notice of the question,
of the commonwealth or state wherein how far the United States would have
he liveth; for as civil law, being the been justified in pursuing and arresting
act of the whole body politic, doth there- Canada marauders in Canada, see 2
fore overrule each several parts of the Dix's Life, pp. 110 et seg.
same body, so there is no reason that
15 225
S147.] COMMENTARIES ON LAW. [CHAP. IV.
France he would have been compelled to seek another asy-

lum.,
It is also to be observed that a sovereign who is cognizant
of the fact that his territory is made the base of hostile opera-
tions against a state with which he is at peace, and takes no
measures to check such operations, is guilty of a gross breach
of international law. 2 Such connivance will justify war being
declared against him, if he were strong enough to have pre-
vented the wrong; or, if he were not strong enough to have
prevented it, will justify entrance into his territory for the
purpose of arresting the offenders and destroying their engines
of mischief. If the wrong has been consummated, then the
sovereign, to whose negligence or incapacity the non-suppres-
sion of the offensive operations is due, is liable internation-
ally for the damage inflicted. 3
§ 147. An exception to the rule just stated is recognized as
Exception to barbarous or imperfectly civilized states. Even
as to semi- in states such as Turkey, Egypt, and China, con-
civilized or .
barbarous sular or mixed courts are established for the trial of
states. cases in which Europeans or citizens of the United
States are concerned. In barbarous states, if justice is to be
administered at all, so far as concerns civilized foreigners visit-
ing such states, it must be by such tribunals. 4 Thejurisdiction
I That for one state to send an armed where the debate in the house of com-
force through the territory of another mons on this point is noticed.
is a violation of the law of nations, see In theU. S. Consular Regulations (ed.
supra, § 138; and see infra, H§ 179, of 1881) the law as to consuls is thus
239, 248. See Davison v. Sealskins, 2 declared: " In Mahometan and semi-
Paine, 324. civilized countries the rights of extra-
2 Infra, §§ 241 et seq. territoriality have been largely pre-
See discussion of Alabama Case in served, and have been generally con-
Whart. Crim. L., Sth ed., §§ 1902 et firmed by treaties to consular officers.
seq.; infra, §§ 243 et seq. To a degree they enjoy the immunities
A detailed statement of the courts of diplomatic representatives, besides
in question is given in Phill., op. cit., certain prerogatives of jurisdiction, to-
i. p. 463 et seq.; see, also, 7 Opin. Atty.- gether with the right of worship, and,
Gen., 342,495; 8 Opin. Atty.-Gen., 380. to some extent, the right of asylum,"
As to consuls in such states, see infra, § 80. These immunities extend to an
§ 170. On the subject of the execu- exemption from both the civil and
tion on board the Beagle, a British criminal jurisdiction of the country to
ship, of a South Sea Islander in 1878, which they are sent, and protect their
see Saturday Review, August 10, 1878, household and the effects covered by
226
is founded not so much on treaty as on tacit consent. Civ-
ilized powers will not surrender the control of the business
relations or of the persons of their subjects to the sove-
reigns of uncivilized or semi-civilized states. On the other
hand, the sovereigns of.uncivilized or semi-civilized states do
not generally desire to take control of the business relations
or even the persons of the subjects of civilized states. This is
eminently the case with the relations of the Turk and the
Christian. The Turk is as averse to tainting himself by mix-
ing up in the afftirs of giaours, as the giaours are to be gov-
erned by the Turk. All that the treaties, for instance with
Musselman powers, determine in this connection is, that the
Musselinan's sovereign does not desire to interfere in the
affairs of foreigners; leaving it to the sovereigns to whom
such foreigners are subject to settle among themselves how
such affairs are to be determined.'
148. The right to trade is secured to each state by the law
of nations. It is true that one state may suspend Right to
business intercourse by embargo with another state, trade
as was done by the United States with England, ecurd by
prior to the war of 1812. It is true, also, that a nations.
state may compel its colonies to trade only with itself, and
that the particular products of a state may be inhibited by
other states, as is the case with opium, and that duties which
the consular residence. Their personal Lawrence's Wheaton, 73, 74, notes.
property is exempt from taxation, The question, on its criminal side, is
though it may be otherwise with real discussed in Whart. Cr. Law, 8th ed.,
estate or movables not connected with § 273; and see Stupp, In re, 11 Blatch.
the consulate. Generally, they are ex- 124.
empt from all personal impositions that Such jurisdiction, however, is limited
arise from the character of a subject or to barbarous or semi-civilized states.
citizen of the country," § 81. "The The William Harris, Ware, 367. Nor,
consular jurisdiction in these countries in England, will a foreign consul be
is both civil and criminal, and has in regarded as entitled as such to admin-
most cases been provided for by the ister the estate of a domiciled subject
stipulations of treaties. The extent of of the country which such consul rep-
its exercise, as well as the penalties resents.
and punishments to be enforced, de- I Some valuable papers on the topic
pend generally upon the laws of his in the text will be found in the Annu-
own country to the exclusion of the ju- aire of the Institute of International
risdiction of all local tribunals." See Law for 1883, pp. 223 et seq.
227
are virtually prohibitive may be laid on the competing pro-

ducts of other states.' But, as a rule, each state has a right,
subject to such drawbacks as it may impose, to send its
products to other lands, and receive their products in ex-
change. No state can be permitted to.fully isolate itself from
the rest of the world. These rules are now recognized by all
civilized states, though they have been only partially accepted
in the East. It was not till the treaty of Nanking, in 1842,
that trade between China and England was officially sanc-
tioned by China, and then it was limited to five ports; nor
was it until 1873 that ministers from Europe and the United
States were diplomatically received in Pekin. Japan remained
absolutely closed until 1853, and the first treaty executed by
Japan was with the United States on July 29, 1858.
149. In the middle ages it was not unusual for a sovereign
Pledges to pledge or mortgage portions of his property to
and servi- secure debts or dowries. This right, however, has
tudes of
national not been of late years recognized. We are not
property. without modern instances, however, of servitudes
or easements in its territory granted by one state to another.
Such servitudes, it is true, cannot be enforced, as can similar
claims when existing among private individuals; but they are
of the nature of treaty duties, to be insisted on as are other
treaty duties. As illustrations may be mentioned the navi-
gation of certain rivers or canals; the non-fortification of
certain points governing the territory of the other contracting
party; the fishing (conceded to the United States and France)
on the waters of Newfoundland. 2
1 Infra, §§ 207, 421. As servitudes, also, "maybe enume-

9 See on this topic, Hartmann, § 62. rated agreements that other nations
As illustrations of hypothecations shall have the right of transit over
may be mentioned that of Ramoken certain rivers or canals ; agreements
and Vlissingen by the Netherlands to that certain obnoxious persons (e. g.,
England in 1585, and of Corsica by pretenders to a throne) shall not be
Genoa to France in 1768. permitted to reside in an adjacent
An instance of servitudes is to be land; agreements (as in the case of
found in those cases in which states Dunkirk) that certain fortifications
are held bound to receive and permit should be destroyed; agreements that
the transit of waters flowing from certain garrisons should be kept in
another state. Phill., op. cit., 389. certain places." Phill., op. cit., 391.
228
§ 150. Instances have been elsewhere noticed of the neu-

tralization of territory by treaty. An interesting
illustration of this is to be found in the treaty of Servitude
April 19, 1850, between Great Britain and the neutraliza-
United States, providing for the neutralization of
any railway or canal that may be constructed across the
isthmus uniting North and South America. A convention
of August 27, 1856, between the same powers, guaranteed the
neutrality of the then proposed Honduras Interoceanic Rail-
way.' The neutrality of the Suez Canal, also, has been agreed
to by all the parties concerned; and the neutrality of Luxem-
burg was guaranteed at a conference on May 11, 1866, between
the leading European states, Luxemburg being required to
destroy its fortifications and maintain a neutral attitude to
all other states.
IV. ACQUIsITIONs OF TERRITORY.

151. The modes of acquiring new territory may be
classified as follows:-
(1) By conquest, e.g., the partitions of Poland; oe of.
the absorption of Silesia by Prussia; the conquest
of Italy by Sardinia, of Alsace by France, of California by
the United States.
(2) By occupation, as was the case with America and
Australia.
(3) By accession (accretion), as where the soil of a state is
increased by deposits from the waters by which it is bounded.
(4) By annexation through treaty or otherwise, as was the
case with the annexation of Savoy by France, and of Louis-
iana, Florida, Texas, and Alaska by the United States.
Whether a territory can be transferred from one sovereign
to another, without the assent of the population of the terri-
tory transferred, has been much discussed. It has been main-
tained that such assent is necessary; but such has not been
the practice. No such vote was taken on the cession of
Florida, Louisiana, or Alaska to the United States; on the
cessions involved in the treaties which determined the north-
1 Lawrence's Wheat., i. 478; Phill., op. cit., i. 309 et seq.

229
S152.] COMMENTARIES ON LAW. [CHIAP. IV.
east and the northwest boundaries between the United States

and England; on the cessions made in the Vienna Congress in
the treaty between Prussia and France in 1871, and in that
between Russia, Turkey, and other powers, in 1878. That the
supreme power of the state, duly authorized to make treaties,
can, without the consent of the ceded population, make such
a transfer, is no longer questioned even in the United States.'
And in any case, whatever may be the right view with re-
gard to territories with a settled population capable of acting
intelligently in respect to such cession, consent cannot be
necessary when there is no such population to be consulted.
No one, for instance, would attempt to impeach the cessions
of Louisiana, of Florida, of California, and of Alaska to the
United States, on the ground that the consent of the inhabit-
ants of the ceded territory was not obtained.2
S 152. As between two conflicting sovereigns land formed
by accession belongs to the adjacent territory, and this is
I Supra, § 134; see Phill., op. cit., occupancy, then a line equidistant
i. 372, where the annexation of Nor- from both settlements should be taken
way to Sweden in 1814 is censured. as the boundary between the two.
2 According to Grotius, the modes of (See Phill., op. cit., 341 ; Johnson
acquisition of territory are as follows :- Mackintosh, 8 Wheat. 543.)
(1) Occupatione derelicti, or occupa- According to Mr. Field (International
tion of desert or savage land, and ac- Code, § 38), territory can be acquired
cession. by occupation in the following cases
(2) Pactionibus, or treaty. only :-
(3) Victoriae jure, or conquest. " 1. When it was previously unoccu-
To constitute title by occupation pied by any other than a savage na-
based on discovery, the occupation tion;
must be (a) authorized by the state " 2. When the nation which previ-
claiming to benefit by it, and (b) must ously occupied it has, without ceding
be permanent. When a settlement is it, renounced the sovereignty which it
thus made, it gives title to all the ter- exercised over it, either expressly, or
ritory necessary for the due enjoyment by abandoning the territory; or,
and protection of the settlement. " 3. When the inhabitants of the ter-
Thus, supposing there are no conflict- ritory overthrow their government and
ing claims based on prior permanent freely join themselves to the occupying
occupancy, a permanent settlement of nation."
unoccupied land at the mouth of a The question as to whether the title
river gives title to all the territory of the settlers of this country is by
which that river and its tributaries discovery or conquest is noticed, supra,
wash. Supposing there is a conflicting § 64.
230
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [§, 15 3.
clearly the case with regard to the accession of soil on the
banks of ocean or river, and the emerging of islands
a short distance from the shore.' When a river di- Land by
vides two states, the following rules, based on the accession
belongs to
determinations of the Roman law in questionsof allu- adjacent
territory.
vion may be accepted:-
1. When a river channel is left dry, the channel is to be
divided between the states holding title to the banks.
2. A division on the same principle is to be made of islands
emerging in the middle of a river.
3. But if not in the middle, then the island belongs to the
state holding title to the nearest bank.2
§ 153. That prescription, and that for a comparatively short
period, may give title to a defacto government there
Prescrip-
can be no question. Louis Napoleon was recognized tion may
as emperor in England almost immediately after the give title.
coup d'itat; and the German government, after the conclusion

of the war of 1870, treated, as permanently established, the
first French administration that was able to make a treaty
which would be likely to bind. Much more difficult are the
questions which may arise when a particular territory is in dis-
pute between two sovereigns, and when one sets up prescrip-
tion. The great preponderance of opinion is to the effect that
long undisturbed possession by a sovereign of a particular
piece of territory gives him a strong primafacie claim to such
I The Anna, 5 Rob. Ad. 332; Blunt- nation owning it while attached to the
schli, § 295. See as to distinctive shore may reclaim it within one year,
view in this country, supra, §§ 22 if it can be restored to the territory of
et seq. the nation so claiming it; but until it
2 See Phil., op. cit., 342 et seq. is so restored it must be deemed to be
In Mr. Field's International Code part of the territory within which it
the distinctions are thus put :- is situated.
" § 43. When land is formed on the I § 45. An island, formed from natu-
shore from artificial causes or by per- ral causes in any water other than the
ceptible degrees, the boundary between sea, belongs to the nation within whose
the adjoining nations is not changed boundary it is formed; or, if it is
thereby. formed upon the boundary of two or
" § 44. If a considerable and distin- more nations, each nation owns so
guishable part of the shore is carried much of the island as lies within its
away by the water, to a place within original boundary."
the boundaries of another nation, the
231
territory. "The general consent of mankind," says Mr.

Wheaton, " has established the principle that long and unin-
terrupted possession by one nation excludes the claim of every
other. Whether this general consent be considered as an im-
plied contract or as positive law, all nations are equally bound
by it, since all are parties to it; since none can safely disre-
gard it without impugning its own title to its possessions, and
since it is founded on general utility, and tends to promote
the general welfare of mankind."'
$ 154. The mere cession of a territory by one sovereign to
another does not, until otherwise ordained, unseat
Cession
doeslnot the old laws of the ceded territory. 2 When terr-
divest old tory is ceded by treaty, rights of property under it
are not determined until there has been ratification. 3
And until possession is taken under a cession, the prior au-
thorities retain police functions, though technically sov-
ereignty ceases when the cession is complete.' And full
sovereignty does not pass until delivery.5 After delivery the
relations of the inhabitants of the ceded territory to their
former sovereigns are dissolved, but not their relations to each
other.' Titles to property are not affected by the cession.'
I Wheaton, i. c. 114, § 5, adopted by Where, however, a nation which has

Phillimore, op. cit., 365. Sir R. Phil- been conquered by another, throws off
limore also cites a striking passage the yoke before it has been perma-
from Burke's Reflections on the French nently fastened by prescription, then,
Revolution, where Burke declares pre- by what is called postliminium, the na-
scription to be " the soundest, the most tion thus reasserting its independence
general, the most recognized title be- is entitled to resume its old national
tween man and man that is known in place. As to jus postlininii, see infra,
municipal or in public jurisprudence; § 223.
a title in which not arbitrary institu- See supra, § 64; Hall's Int. Law,
tions, but the eternal order of things 78-9.
gives judgment; a title which is not 3 Haver v. Yaker, 9 Wall. 32.
the creature, but the master of positive 4 U. S. v. Reynes, 9 How. 127; see
law; a title which, though not fixed in Calvin's Case, 7 Rep. 17; Strother v.
its term, is rooted in its principles in Lucas, 12 Pet. 410.
the law of nature itself, and is, indeed, 5 The Fama, 5 Rob. Ad. 97.
the original ground of all known pro- 5 Ibid., U. S. v. Repentigny, 5 Wall.
perty; for all property in soil will 211.
always be traced back to that source, 7 Strother v. Lucas, 12 Pet. 411;
and will rest there." Leitensdorfer v. Webb, 20 How. 176.
232
OflAP. IV.] PUBLIC INTERNATIONAL LAW. [p 155.
And mere conquest does not set aside even political institu-
tions and officers until such conquest is ratified by treaty.'
V. TREATIES.
§ 155. By Grotius treaties are classified as those which are

in accordance with natural right and justice, and
those which provide for indifferent matters, involV- ifea-
ing no moral issue. Subsequent authors have spoken treaties.
of the same distinction as "constitutive," based on rules of
right, and "regulative," which establish positive rules con-
cerning matters of policy. Hooker expresses the same dis-
tinction by the terms "moral" and "positive." Another
distinction is that between " conventions" which are limited
to particular persons, or to a particular event, and " treaties,"
which are permanent arrangements. A distinctiodf is also
made between treaties which are strictly bilateral, and treaties
which leave it open for other states to come in. In the latter
case, if one state violates the treaty, all others coming in may
have red ress.
So far as concerns their application to international law,
treaties may be divided as follows:-
1st. Those which profess to be interpretative of the law of
nations, and which are entitled to high respect as showing
what in the sense of the parties the law of nations is.
2d. Those which undertake to make new rules for the
amendment of the law of nations, as was the case with the
treaty of Washington of 1871 ; which rules, however, are not
to be regarded as generally authoritative, unless adopted by
all the leading powers, and only bind the consenting parties
when it is so expressly and unreservedly agreed.'
3d. Those which determine some particular fact in dispute
between the nations, and which are of value only as exhibit-
ing the sense of the parties as to a concrete case.3
Clark v. U. S., 3 Wash. C. C. 104; et seq.; Whart. Crim. Law, 8th ed.,
U. S. e. Hayward, 2 Gall. 485. 1904 et seq.
2 As to rules proposed in the treaty 3 See Lorimer's Law of Nations, 43;
of Washington, see infra, §§ 238, 244 infra, § 159.
233
$ 157.] COMMENTARIES ON LAW. [CHAP. IV.
§ 156. We have already incidentally noticed treaties by

which one state guarantees the performance of a
tuariaty duty by another state.' This ma.y be either an
obligatory duty, or a duty involving a cession of
territory. The guarantor is obliged to use all his force to
compel the performance. In many modern treaties to this is
added the provision that litigated questions are to be referred
to an arbiter.'
§ 157. Treaties, in the main, are subject to the same rules
Treaties as as contracts. These may be specified as follows:-
distin- (1) There must be freedom of action. This does
guished
from con- not, in the one case, require that there should be an
tracts. abstinence from all influence. Neither a contract
nor a treaty is abrogated because there was a strong pressure
to exact its signature, nor because its signature was a choice
of evils. " Coactus volui," while it implies a strong pressure,
implies also volition. But while contracts, which are coerced
by physical force, do not bind it is otherwise with treaties.
A treaty is not invalidated by the fact that it is exacted from
a conquered state by a victorious general armed with irresisti-
ble engines of destruction.
(2) There must be a concurrence of minds to one and the
same thing.
(3) The interpretation of obscure terms in a treaty is a
matter of fact, as to which extrinsic evidence may be taken
for the purpose of explaining objective obscurity.
(4) Construction of treaties is a matter of law, to be gov-
erned by the same rules, mutatis mutandis, as prevail in the
construction of contracts and statutes.4
(5) As contracts may be modified and rescinded, so may
treaties
(6) Immoral stipulations are as void in treaties as they are
in contracts.
On the other hand, treaties are distinguished from contracts
as follows:-
1 Supra, §§ 149-50. Infra, §§ 664 et seq.; see Foster v.

J
2 Infra, § 208. Neilson, 2 Pet. 253.
3 Infra, § 593. Infra, § 161.
234
(1) Contracts (unless we regard marriage as a contract) are,
in all cases, the subjects of a suit for debt or damages, or for
a specific thing. But no such suit lies on breach of treaty.
(2) Contracts can only be vacated or rescinded by consent,
or by the action of a court. But this is not necessarily the
case with a treaty. There is no court which can be appealed
to to dissolve it; and when one party violates its terms, the
practice is for the other party to declare it not to be any
longer binding.
(3) While a contract may be annulled on the ground of
fraudulent influence exercised by strength over weakness, such
a reason cannot be set up for regarding a treaty as a nullity,
since all nations are supposed to stand on the same footing
with equal opportunities of detecting fraud. And there are
many cases of finesse and false coloring or suppression of facts
which would avoid contracts, which would not, mutatis mu-
tandis, avoid a treaty. If suppressio veri abrogated treaties
to the extent it abrogates contracts, few treaties would stand.
(4) A treaty based upon a war accepts the results deter-
mined by the war, unless otherwise provided, while a contract
does not necessarily assume the existing relations of the
parties as a basis.'
(5) A consideration is essential to give effect to a contract,
but it is possible to conceive of a treaty which has no con-
sideration. A state, for instance, may, without any detriment
I "The uti possidetis is the basis of A refusal by one party to perform his
every treaty of peace, unless it be share in execution of a treaty releases
otherwise agreed. Peace gives a final the other. With general international
and perfect title to captures without engagements-(e. g., that prohibiting
condemnation; and as it forbids all the use of explosive compounds), the
force, it destroys all hopes of recovery same result does not follow. The treaty
(of vessels) as much as if the vessel was remains, and if one of the parties re-
carried inf'rapraesidia,and condemned." fuses to do his part, be may bemulcted
I Kent's Com., 174, citing The Legal by reprisals. A partial repeal of such
Tender, reported in Wheat Dig. 302; a treaty does not affect other portions
The Schooner Sophie, 6 Rob. Ad. 138. of the treaty. This is the case with
Special treaties between particular some of the settlements of the congress
nations are to be distinguished from of Vienna, which remain in general
international engagements made be- force, notwithstanding some partial
tween several nations to settle some modification.
general question of international law.
235
to itself, enter into a treaty stipulation by which much advan-

tage is gained by another contracting party, but this is never-
theless a treaty.
(6) A contract, if duly executed by an agent with full
powers, binds the principal. This, however, according to
modern practice, is not the case with treaties, which a sover-
eign may refuse to ratify even if signed according to his in-
structions.
§ 158. A treaty to be valid, must be duly executed by a
Treaty party authorized to do so by the sovereigns con-
must be cerned. If the ambassador has exceeded his instruc-
duly autho-
rized, and tions, or if any extraordinary incident has inter-
when requi- sc . ~i
site, must vened such as would justify a principal in refusing
be ratified. ratification to his ag)ent's acts, then ratification may
be refused by the sovereign to whom such treaty is submitted

for his action.'
I Supra, § 144. In the United States peace, he being ignorant of the fact,
a treaty to bind must be approved by has been doubted. Lord Stowell held
a majority of two-thirds of the senate. that the officer actually doing the harm
But, even after such approval, ratifica- might be held responsible, but not his
tion, in the cases put in the text, may superior officer, who was in no way
be refused, so far as concerns foreign concerned in the commission of the
states, by the president. Kliiber, § injury. The Mentor, 1 Rob. Ad. 170;
142; Hartmann, § 46; infra, § 505. see the Ostsee, 9 Moore, P. C. 150.
He may be impeachable in his own That ratification is generally essen-
country for so doing, but as to the con- tial see Lawrence's Wheaton, p. 452.
stitutionality of his action foreign states note 151. Speech of M. Guizot, Moni-
cannot inquire. A treaty, it should be teur, Feb. 1, 1843 ; 1 Ortolan, Diplo-
added, may be tacitly ratified in states matie de la Mer, 85-89.
where there is no constitutional in- That the rule in Great Britain is
hibition in the way. that a treaty does not become abso-
The ratification of a treaty relates lutely binding until it has been rati-
back to the time of signing (Hylton v. fled, see speech of Mr. Gladstone, in
Brown, 1 Wash. C. C. 298); but the parliament, Aug. 10, 1870.
treaty does not impose penal responsi- See, also, 1 Fiore, Nouv. Droit Itern.,
bility on those carrying on the war 476. But ratification may be dispensed
after the conclusion of the peace when with by a secret protocol annexed to
such parties were ignorant of the treaty. the treaty (Lawrence's Wheaton, p.
1 Kent's Com., 171 ; Hylton v. Brown, 454).
1 Wash. C. C. 298. Whether there is That treaties and statutes come in
civil liability on the part of an officer pari passu, see infra, §§ 383, 506.
who makes captures after conclusion of
236
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [§ 16 1.
§ 159. The fact that a majority of civilized states agree to
a particular reform does not make such a reform Only the
obligatory on dissenting states,n though it binds the parties to a
n treaty are
states signing. The agreement by a majority of the bound by
states, for instance, making privateering and the its terms.
slave trade piracy, does not bind states not signing.' It is
argued by Holtzendorff, however, that propositions assented to
by a great majority of powers for the amelioration of the
severities of war (e.g., the neutralization of hospitals) do not
lose their general effect by the dissent of a small minority;
but this position cannot be accepted as a general rule.2 So
far as contains special treaties, only the parties, as a rule, are
bound by them, though a state for whose protection a treaty
is made may, by accepting its benefits, be bound by its pro-
visions.3
§ 160. The securities which are provided for the due exe-
cution of treaties have been classified as follows:- edges
(1) Solemn asseverations of fidelity. In the old granted on
treaties, the " tres sainte et indivisible Trinitb" was treaties.
appealed to; in the treaty of Paris, the name " du Tout-
puissant."
(2) Hostages used by the old practice to be given; and
fortresses or other important sites were left in the hands of
one of the parties until the treaty was fully complied with on
both sides.4
§ 161. Where a war takes place as to the subject-matter of
a treaty, or is in any way induced by the treaty, the
. Treaties
var abrogates the treaty. Stipulations in a treaty abrogated
which do not concern the subject-matter of the war, byesut wr
though suspended I
by the war, revive on its termi- and other
limitations.
nation. Stipulations which concern the mode of
carrying on war (e.g., as to the use of certain modes of war-
fare, or the neutralization of hospitals) continue in force
during war.'
t Infra, § 201; see supra, § 155. 3 Supra, § 155.

2 Thus the United States refuses to 4 See as to hypothecations, supra,
be bound by the rule adopted by Eu- § 149.
ropean powers as to privateering, infra, 5 Holtzendorff, ut supra, 1228, citing
§ 201. Tronci, Saggio filosofico giuridico sulle
237
A treaty, also, may be abrogated under the following cir-

cumstances:-
(1) When the parties mutually consent.'
(2) When continuance is conditioned upon terms which no
longer exist.
(3) When either party refuses to perform a material stipu-
lation.
(4) When all the material stipulations have been performed.
(5) When a party having the option elects to withdraw.
(6) When performance becomes physically or morally im-
possible.
(7) When a state of things which was the basis of the
treaty, and one of its tacit conditions, no longer exists.'
convenzione internazionali, 1864; Kent (Commentaries, v. i. p. 420)

Probst, Die Lehre vom Abschluss Ver- says : " As a general rule, the obliga-
tr5,ge, 1882 ; Jellinek, Die rechtliche tions of treaties are dissipated by hos-
natur der Staatenvortrdge, 1880 ; and tilities. But if a treaty contain any
see, further, Hartmann, § 56. stipulations which contemplate a state
1 Supra, § 157. of future war, and make provision for
2 See, fully, Hartmann, § 56. such an exigency, they preserve their
In most of the old treaties were in- force and obligation when the rupture
serted the " clausula rebus sic stanti- takes place. All those duties of which
bus," by which the treaty might be the exercise is not necessarily sus-
construed as abrogated when material pended by the war subsist in their full
circumstances on which it rested force."
changed. To work this effect it is not On the question of the effect of war
necessary that the facts alleged to have on treaties, see, further, Field's Code
changed should be formal conditions. Int. Law, § 905, citing Bluntschli,
It is enough if they were strong in- § 718; Society for the Propagation of
ducements to the party asking abro- the Gospel v. New Haven, 8 Wheat.
gation. 464; the debate in the house of com-
The maxim, " Conventio omnis in- mons, on the declaration of Paris, of
telligitur rebus sic stantibus," is held 1856 ; Speeches of Sir George Lewis
to apply to all cases in which the and Mr. Bright, of March 11 and 17,
reason for a treaty has failed, or there 1862 ; and of the Earl of Derby, of
has been such a change of circum- Feb. 7, 1862 ; Dispatch of Mr. Marcy
stances as to make its performance to Mr. Mason, of Dec. 8, 1856; Philli-
impracticable except at an unreason- more's Int. Law, iii., App. 21; Dana's
able sacrifice. Wheaton, note 143, p. 352.
238
CHAP. IV.] PUBLIC INTERNATIONAL LAW. L§, 16 3.
VI. DIPLOMATIC AND CONSULAR AGENTS.
§ 163. In its larger sense diplomacy includes the interna-

tional political intercourse of states; and all foreign Diplomacy
ministers engaged in conducting such intercourse, a system
. of law.
e. g., secretaries of foreign affairs, as well as ambas-
sadors, are held to be internationally diplomatic agents. In its
narrower sense the term diplomacy designates the intercourse
of foreign ambassadors with each other and with the courts to
which they are accredited.' But while diplomacy is a system
of law, its success is largely dependent on tact and concilia-
tory temper. 2-The old usage was to send special embassies to
effect particular ends. In the seventeenth century, however,
the practice of permanent embassies became among the great
powers universal, and these embassies embraced a numerous
suite. Gradually a distinctive science, that of diplomacy,
thus grew up. This science embraces not merely the rules of
I Hartmann, § 31. tives. British consuls, in the main,

2 In Lorimer's Treatise on the Law of have been peculiarly kind and con-
Nations (1883), p. 286, we have the fol- ciliatory in their bearing to the com-
lowing: " The extent to which a na- munities in which they reside; and,
tion enjoys that indefinable power with the exception of Mr. Crompton,
which is known by the name of pres- there has been no British minister in
tige, and the due employment of which the United States of late years who has
often supersedes the necessity for an not done whatever good temper and
appeal to more formidable factors, de- tact could do to cultivate friendly re-
pends as much on the sympathetic and lations between the two nations. The
conciliatory manners of its official rep- contrast between the recent attitude of
resentatives as on the reputation of foreign ministers in this country and
its soldiers for valor or its citizens for their early attitude, is very marked.
wealth. Our transatlantic descendants Mr. Hammond, British minister to the
have always been specially mindful of United States during Washington's
this fact; and it has often occurred to presidency, took no pains to maintain
me that their astuteness in this respect friendly relations with the then Fede-
may have something to do with the ral administration, while Genet, the
greater good-will that is shown to them French minister at the same time, took
than to ourselves by continental na- particular pains to insult that admin-
tions." istration. The consequence was that
So far as the United States are con- while Hammond did nothing to soothe
cerned, they have no reason to com- the still prevalent hostility to England,
plain of the want of "conciliatory Genet almost plunged us into a war
manners" on the part of recent British with France.
diplomatists and consular representa-
239
international law, public and private, but the details of cere-

monies which have been adopted and become settled in diplo-
matic intercourse. Officers of various grades are thus em-
ployed. Merely business and commercial details are placed
in the hands of the consuls or syndics (syndici); while sec-
retaries and interpreters are employed for other parts of the
work. Embassies, in their technical sense, have the following
specific duties: 1. Conducting negotiations with the state
where they are accredited ; 2. Examination of the legal
and political relations of the state they represent with the
state to which they are accredited, and the collection and for-
warding of information in regard to matters of business or
political interest to the state represented ; 3. promotion of
friendly relations between such powers.'
§ 164. A diplomatic agent represents exclusively the gov-
ernment by which he is commissioned, and is to
Mntierm address exclusively the government to which he is
govern- sent. He represents the government commission-
ment to
governing him as speakingnz for the country as an aggregate,
_
ment.
whatever may be his personal antecedents and pre-
dilections; and it is at least an indiscretion on his part to
speak of himself or the administration he represents as the
organ of a party as distinguished from the whole country
from which he comes. 2 On the other hand, he can officially
address on political matters, in the country to which he is
accredited, exclusively the established government of that
country; and for him to appeal to the people as against the gov-
ernment, or even to express his views as to the politics of such
country through the press, is an indecorum which will justify
I Holtzendorff, ut supra, 1229, citing 1881 ; Lewy, des consulats et des am-
Mirus, Gesandschaftsrecht, 1847; Mar- bassades, 2d ed., 1S76.
tens, Manuel Diplomatique on pr6cis 2 This was made by Ar. Webster and
des droits et des fonctions des agents Mr. Calhoun the ground for the rejec-
diplomatique, 1822; Grenville Mur-tion by the United States Senate of
ray, Droits et devoirs des employds di- Mr. Van Buren as minister to Eng-
plomatique, London, 1853; Esperson, land. Whether Mr. Van Buren's official
Diritto diplomatics, 1872; Heffter, § course is open to this interpretation
200; Bluntschli, § 159; Pradier-Fo- may now be well questioned.
dere, Cours de droit diplomatique,
240
his dismissal by such government.' A fortiori, "if ambassa-
dors should be so regardless of their duty, and of the objects
of their privilege, as to insult or openly attack the laws or
government of the nation to whom they are sent, their func-
tions may be suspended by a refusal to treat with them, or
application can be made to their own sovereign for their re-
call ; or they may be dismissed and required to depart within
a reasonable time."2
§ 165. It does not follow, however, that a government may
not receive political agents from insurgents in a
foreign country with which such government is at Benliger-
ents and
peace; and this position is strengthened when such, Insurgents
n may be re-
insurgents are recognized as belligerents by the presented.
government against which they revolt.3 For some
time before the recognition by France of the independence of
the United States, the United States had political agents in
Paris who had a quasi recognition from the French govern-
ment; and there is now a general acquiescence among European
publicists, in the position that Messrs. Mason and Slidell, sent
during the late civil war by the Confederate government to
France and England, were at least diplomatic representatives
to such an extent as to entitle them to a free passage on the
high seas on neutral ships. Even when representing bellige.
rents such agents may be sent, not on a belligerent, but on a
pacific mission.'
§ 166. A state to whom an ambassador is sent may object
(1) to any diplomatic intercourse whatever with the State
state sending; or (2) to the particular person sent. receiving
The first objection is one of great seriousness, and sending
may constitute a casus belli. The second objec- haeeio
I This view was taken by Mr. Jeffer- with agents of insurgents in a state
son in Genet's case, in 1797. with which the United States are at
2 1 Kent's Com., 38. peace. Ex. Doc. 20, 39th Cong., 1st
s Infra, §§ 228-9; supra, § 141. sess.; cited Dana's Wheat., note 41;
4 See Abdy's Kent, 135; Dana's Mr. Seward to Mr. Bigelow, March 13,
Wheat., note 121. On the other hand, 1865, Dip. Corr. 1865, pt. 3, 378; but
Mr. Seward has declared that it is the see, contra, supra, § 141, for Hillseman
practice of the United States not to correspondence. As to case of Ma-
hold official or unofficial intercourse son and Slidell; see infra, § 228.
16 241
tion-that to the person of the ambassador-if not frivo-

lously or impertinently used, cannot be the ground of offence.
Of such refusals to receive particular persons we have nume-
rous illustrations. The United States have refused to receive,
or have requested the recall of persons who have improperly
interfered in politics in the United States. Sovereigns, also,
have refused to receive ambassadors who were their own sub-
jects; nuncios of the pope have been refused on the ground
that they would exercise a special religious influence preju-
dicial to the welfare of the state to which they were sent. The
pope, on the other hand, has refused to receive cardinals as
ambassadors. Women are not excluded from the post, some
of the most creditable treaties having been negotiated by
women.-The benefit to be derived from permanent embas-
sies is illustrated by the tenacity with which the Western
powers have insisted on the establishment of such missions
at Pekin.-It should be added that a minister may be ac-
credited by a formal power plenipotentiary, or, as is the case
with chargis d'affaires, by informal correspondence with sec-
retaries.'
§ 167. The inviolability of an ambassador is an essential to
Inviola- diplomatic intercourse. He represents the dignity
bility and and sovereignty of his own state, and an attack on
extra-terri-
him is an attack on that state.' The privilege ex-
toriality of
embassies, tends to the ambassador's suite, to the servants of
the embassy dwelling in the same hotel, to its hotel and its
furniture, to its correspondence, and to its couriers when en-
gaged in its service. This involves exemption from local law.
If the parties so priviledged abuse their privilege, the proper
course, under such circumstances, is to dismiss the offending
I "A nation may refuse to receive, § 187, note d; Dana's Wheaton, § 251,
as public agent, any one who is per- note 137.
sonally objectionable, on informing "Dana's Wheaton, § 210, allows
the government by which he is sent the refusal, if the motives are alleged.
that the refusal is for personal reasons; But the above rule should seem to be
but the reasons need not be more par- sufficient."-Field's Code of It. Law,
ticularly stated. 2Phill. Int. Law, 149. § 99.
" Several cases of refusal on perso. See Hartmann, § 38.
nal grounds are mentioned in Kltiber,
242
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [§167.
minister, with the proofs of his guilt.1 The prevalent view, so
far as concerns civil process, is that the doctrine of extra-terri-
toriality does not apply (1) in cases where, from the nature of
the case, no other jurisdiction exists than that in which the
embassy holds its seat, e.g., suits for real estate ; (2) in cases
where the ambassador sues, and the claim against him is set
up by way of set-off; (3) in cases in which the ambassador
voluntarily submits to a hearing before arbitrators, in the
same sense in which a sovereign may agree to an arbitration;'
(4) in cases where the ambassador, with the consent of his
government, submits himself to the jurisdiction ; (5) in cases
where the ambassador is a citizen or subject of the state to
which he is accredited, or when he is at the time in the ser-
vice of such state; (6) in cases where the ambassador.engages
in trade, and the suit is brought in respect to such trading
engagements. 3 This extra-territoriality protects ambassadors,
also, from prosecutions for crime. No matter how heinous a
crime committed by a diplomatic agent within the state to
which he is accredited may be, that state cannot institute
against him proceedings to try him for the crime. The only
remedy is to send him home to his own sovereign, who alone
has jurisdiction over him. 4 But the better opinion is that
taking refuge in an ambassador's hotel does not protect a
subject from arrest in such hotel on a criminal charge under
order of the judex situs.-The privilege of extra-territoriality
no longer gives the ambassador, as was once supposed to be
the case, the power to execute penal discipline upon his sub-
ordinates, although this privilege was at one time claimed.5
I That the privilege does not exist El. 94; Valarino v. Thompson, 3 Seld.
when the ambassador is a subject of 576.
the state to which he is accredited, see 4 Phillimore, ii. 202. In England
Hartmann, § 38. and in the United States, foreign min-
2 An ambassador, also, cannot be isters are protected from arrest by
compelled to testify in a court in the statute. Whart. Crim. Law, 8th ed.,
state of his embassy. The privilege is § 282.
one of the sovereign, which the am- s According to Hartmann (§ 38), the
bassador cannot waive. servants and family of an ambassador
3 See Phill., ii. 222, 3d ed. As retain the forum which they possessed
questioning the last limitation, see before the beginning of his diplomatic
Magdalena Nay. Co. v. Martin, 2 El. & service. " If the state he represents
243
As a matter of courtesy, he is entitled to receive his goods

duty free. He is obliged, however, to pay taxes fixed in cor-
pore on specific articles he may purchase.
gives him jurisdiction over his family the territory of which they pass in
and suite, and this is accepted by the company with him, to the same extent
state receiving him, then the jurisdic- as is his person. The extent of this
tion would follow; but except in this privilege in the early law of England
case the ambassador has no jurisdic- is discussed on its historical side by
tion, least of all of a criminal order." Mr. Hosack, in his work on the Rise
Ibid., citing Wildman, i. 126; Grotius, and Growth of the Law of Nations,
ii. c. 18; Bynk. F. L. xv. London, 1882. See Taylor v. Best, 14
That extra-territorial privilege in C. B. 487.
this respect cannot be waived by im- The privilege does not extend to a
plication, see U. S. v. Benner, 1 Bald. person taken into the service of the
234. minister, and belonging to a nation by
That there may be a voluntary sub- the law of which such person is inca-
mission to the arbitrament of a court, pable of making such contract of ser-
see Taylor v. Best, 14 C. B. 487. vice, or prohibited from making it. 9
"A public agent is not subject to the Opinions of U. S. Attorneys-General, 7,
jurisdiction of the nation, within the where it is said that such a privilege
territory of which he resides or exer- would enable the minister to employ
cises his functions, for official acts " any discntented wife, . . . re-
done under the direction of the govern- bellious child, . . . the soldiers of
ment of his nation. a garrison, . . . the sailors from
" Halleck (p. 243) states this rule as a ship, . . . or a felon."
applicable to consuls. Perhaps it That a public minister cannot punish
should be restricted to those agents members of his family beyond the limit
who have been expressly received by of domestic chastisement, see Halleck,
the nation in which they exercise their Int. Law, 220.
functions. See Guide Pratique des That the nation of a public minister
Consulats, vol. i. p. 10."-Field, Code cannot deprive him of his privileges as
of Int. Law, § 108. a returning minister without his con-
That secretaries of foreign legations sent, see Torlad6 v. Barrozo, 1 Miles
are thus privileged, see Cabrera, Ex (Philada.), 366, 385, where it was held
parte, 1 Wash. C. C. 232; and so of that the institution of an action of
attach6s, U. S. v. Benner, 1 Bald. 234; trover to recover the archives of the
and of domestic servants, U. S. v. La- mission, by the chargl of a newly re-
fontaine, 4 Cranch, C. C. 173; see as cognized government against his pre-
to requisites for prosecutions in such decessor, did not, ipso facto, divest the
cases, Whart. Crim. Law, 8th ed., §§ defendant of such privilege.
1821, 1899. That a public minister may import
According to Mr. Field (Int. Code, free of duty goods for himself and
144), the members of the family, offi- family, see Lawrence's Wheat., 416.
cial and personal, of a public minister That bearers of despatches to or from
are exempt from the jurisdiction of the a public minister, provided with pass-
nation to which he is sent, or through ports, or other evidence of their cha-
244
§ 168. An ambassador travelling on his way to the country
to which he is accredited, through a third
n
country,
Privilege
pursuing for this purpose a natural and proper route, extends to
is entitled to the same privilege as when travelling journey.
through the country to which he is accredited. It may be
that such country is in a state of war with the third power.
This does not destroy the ambassador's right of transit; but
if a convenient route is pointed out to him which will not
embarrass an occupying army, he must take this route, and
cannot be permitted to insist on carving out a route of
his own.-Even after an ambassador has been recalled by his
own government, and leaves debts in the country to which he
was accredited, the better opinion is that he is exempt from
process; though it is an open question whether his creditors
with specific liens may not retain his goods without judicial
process.'
§ 169. By the congresses of Vienna and Aix-la-Chapelle four
distinct kinds of embassies were recognized:-
1. " Ambassadeurs," leates,
1.~ ~ nAbsaer,and uncios of the
eaeadnniso h tionassca-
of em-
pope. These are regarded as the personal represen- bassies,
tatives of the sovereign by whom they are sent.
2. Ministers plenipotentiary and envoys.
3. Ministers resident.
4. Charg6s d'affaires, who are appointed by the minister of
racter, have the same privileges as of Texas), was arrested in New York,
members of his family accompanying on his return from France to Texas, on
him, for such length of time as may be an alleged debt. The court discharged
necessary to enable them to perform him from arrest, and held that the
their duties as such, see Field's Code want in his case of a passport made no
of Int. Law, § 157; Heffter, § 204; difference in the case.
Lawrence's Wheaton, p. 417; 2 Phill. The line of transit may be pre-
Int. Law, 196, § 186; and infra, § 228. scribed by the nation through whose
1 Wheaton, Elements, i. 103 ; Bar, § territory the minister may pass at its
115; Hartmann, § 38. As to right of option. Field's Code Int. Law, § 136;
belligerent to arrest in a neutral ship see 2 Phill. Int. Law, 186-189. The
diplomatic agents of the other bellige- limitation here stated was maintained
rent, see infra, §§ 228-9. by the government of France in the case
In Holbrook v. Henderson, 4 Sandf. of Mr. Soule, in 1854. See Lawrence's
619, General Henderson, minister from Wheaton, p. 422, note; Halleck's Int.
Texas to France (before the annexation Law, p. 234.
245
( 170.] COMMENTARIES ON LAW. [CHAP. IV.
foreign affairs, while the three classes first above named are
accredited nominally or actually by the sovereign.1
These classes have the same privileges; the object of the
classification is only to settle precedence. Among represen-
tatives of the same class, priority of appointment determines
rank.2
170. Consuls, not being regarded as the embodiment of the
sovereignty of their state, but merely business
Consuls notn
so privi- agents, are not in civilized states entitled to the
leged. prerogatives of extra-territoriality and inviolability.
Sometimes, however, by special arrangements between two
powers, consuls are invested with permanent diplomatic func-
tions, and, if so, they are entitled to the privileges above
mentioned. Consuls, also, in barbarous or semi-barbarous
states, charged as they are with judicial functions, are to be
regarded as investing with extra-territoriality the place where
their flag is planted. 3 A consul's papers are protected from
interference by the local authorities. A consul, also, is interna-
tionally entitled to protection in his usual functions, e. g., the
taking of acknowledgments; the solemnization of marriages
among his countrymen; the administering of oaths in matters
relative to the affairs of the land he represents; the attesting of
commercial and shipping paper; the conducting of investiga-
tions directed by the home government, provided he does not
1 See Hartmann, § 35; Phillimore Envoys include ministers plenipo-

(3d ed.), ii. 248. tentiary, envoys ordinary and extra-
2 " Ambassadors include papal leg- ordinary; also, the internuncios of the
ates and nuncios. The distinction, pope. Bluntschli, § 173, note.
stated in the books, that ambassadors According to Vattel, " the secretary
represent the person of the sovereign of the embassy (not that of the ambas-
by whom they are sent, while the other sador) having his commission from his
classes of ministers represent their sovereign, is a sort of public minister.
principal only in respect to the par- But it is hardly necessary to recognize
ticular business committed to their this as a fifth class."
charge (Protocol of the Congress of Fiore (Nouv. Dr. Intern., vol. ii. p.
Vienna, Art. II.), seems now to amount 612) holds with some others to the
to nothing more than saying that they opinion that consuls are a class of
are the highest class of public minis- diplomatic officers, but this is a dispute
ters. Dignities peculiar to their rank about rather name than function.
are mattir of etiquette, not necessary Field, Code of Int. Law, § 112.
to be defined in a code." 3 Supra, § 147.
246
in this, way invade the rights of the country in which he
resides. The statutes of the United States authorize consuls
to receive the protests of ship officers, and to issue copies and
certificates thereof, which shall be admissible in evidence in
the courts of the United States. They are authorized, also,
in absence of parties interested, to take charge of the effects
of stranded vessels; to administer the estates of American
citizens dying within their consulates; to discharge seamen
cruelly treated; to provide for destitute seamen, and to re-
claim deserters. By a consular convention between France
and the United States in 1778, consuls are allowed to exercise
police over merchant vessels of their respective nations, and
to determine disputes as to wages of seamen in such vessels.'
I As to perjury before consuls, see sents the subjects of his sovereign

Whart. Crim. Law, 8th ed., § 276. when there is no special diplomatic
On the general power of consuls, see representative of such sovereign; Ger-
Holtzendorff, ut supra, 1234, citing non v. Cochran, Bee, 209); but though
Manuel des Consuls, 1837-43; Quehl, a public agent his authority is ordi-
das Preussiche und Deutsche Consu- narily limited to commercial matters.
larwesen, 1863; De Clercq et de Val- While he is permitted to interpose
let, Guide pratique des consulats, 1880; claims for the restitution of property
Kbnig, Handbuch des Deutschen Kon- belonging to the subjects of his own
sularswesen, 1878 ; Abbott, U. S. country, he cannot ordinarily be re-
Consuls Manual, 1863; U. S. Consular garded as in any sense the diplomatic
Regulations, Washington, 1881. representative of his sovereign. (The
Mr. Lorimer gives the consular rules Anne, 3 Wheat. 435.) But he may
for England in detail, and then pro- iilstitute proceeedings in rein, on behalf
ceeds to say (Law of Nations, i. 315) : of the subjects of his sovereign, with-
" Notwithstanding the care with which out special authority. (The Bello Cor-
these various documents for their (con- runes, 6 Wheat. 152.)
suls) guidance have manifestly been The United States courts have juris-
formed, her majesty's consuls complain diction of suits against consuls (St.
that, in consequence of the want of Luke's Hosp. v. Barklay, 3 Blatchf. 259;
these consular treaties which conti- Bixby v. Janssen, 6 Blatchf. 315; Git-
nental states are in the habit of con- tings v Crawford, Taney, 1); and they
tracting with each other, they are cannot be sued in the state courts, nor
placed at a great disadvantage, as can they waive their privilege in this
compared with their foreign colleagues, respect. (Naylor v. Hoffman, 22 How.
when seeking to determine their duties, Pr. 510; Valarino v. Thompson, 3 Seld.
powers, and privileges ;" he adds, as a 576.)
specimen of the privileges granted by Consular jurisdiction in barbarous
foreign treaties, the consular treaty and semi-civilized states is discussed
between France and Italy. supra, § 147; Whart. Conf. of Laws,
In the United States a consul repre- introductory chapter, §§ 15 et seq. And
247
So far as concerns the right to bold property as a neutral

against a belligerent, it has been held that a consul of a neutral
see Asser, Administration de la Justice consul rights and privileges necessary

en Egypte, in the Revue de droit int. ii. to the performance of the duties of the
564; Martens, Kousularwesen in Orient, consular office ; and, generally, a con-
1874; Mancini, Reforme Judiciare en sul may claim for himself and his
Egypte, 1875; Rnault, Etude sur le office, not only such rights and privi-
projet de r6forme judiciare en Egypte, leges as have been conceded by treaty,
1875 ; Brauer, Die Deutschen Justizge- but also such as have the sanction of
setze in ihrer Anwendung auf die amt- custom and local law, and have been
liche Thatigkeit der Konsuln, etc., enjoyed by his predecessors, or by con-
1879. In modern practice a distinction suls of other nations, unless a formal
is taken between consuls-general, vice- notice has been given that they will
consuls, and local-consuls. Thetwofirst, not be extended to him." § 77: " A
when endowed with diplomatic func- consul may place the arms of his gov-
tions have the privileges of inviolability. ernment over his doors. Permission to
In the United States consular regu- display the national flag is not a matter
lations, as revised in 1881, it is stated of right, though it is usually accorded,
(§ 75) that " a consular officer in civil- and it is often provided for by treaty.
ized countries now has, under public . . . The jurisdiction allowed to
law, no acknowledged representative consuls in civilized countries over dis-
or diplomatic character as regards the putes between their countrymen is
country to which he is accredited. He voluntary and in the nature of arbitra-
has, however, a certain representative tion, and it relates more especially to
character as affecting the commercial matters of trade and commerce. A
interests of the country from which he consul, however, under public law, is
receives his appointment, and there subject to the payment of taxes and
may be circumstances, as, for example, municipal imposts and duties on his
in the absence of a diplomatic repre- property in the country or on his trade,
sentative, which, apart from usage, and generally to the civil and criminal
make it proper for him to address the jurisdiction of the country in which he
local government upon subjects which resides. It is, probable, if he does not
relate to the duties and rights of his engage in business, and does not own
office, and which are usually dealt real estate, that he would not be subject
with through a legation." In § 76. to arrest or incarceration, except on a
"Although consuls have no right to criminal charge, and in the case of the
claim the privileges and immunities of commission of a crime, he may either
diplomatic representatives, they are be punished by local laws, or sent back
under the special protection of inter- to his own country." § 78 : " The
national law, and are regarded as the privileges of a consul who engages in
officers both of the state which ap- business in the country of his official
points and the state which receives residence, are, under international law,
them. The extent of their authority is more restricted, especially if he is a
derived from their commission and their subject or citizen of the foreign state."
exequatur; and it is believed that the It is added that inviolability of the
granting of the latter instrument, with- consular archives is secured by trea-
out express restrictions, confers on the ties with Austro-Hungary, Belgium,
248
state loses his privileges as againsta belligerent by doing busi-

ness as a merchant in the place to which he is accredited;
and, as a general rule, a consul doing business as a merchant
in the seat of his consulate merges his consular, so far as
privilege is concerned, in his mercantile status.'
§ 171. We have already seen that there are cases in which
consuls of civilized countries exercise jurisdiction Consuls in
over citizens of such countries in barbarous lands. specified
cases have
It is now to be observed that there are cases in which jrisdicv
consuls in civilized lands have jurisdiction over tou in
ltization
2
specific lines of litigation given
n
them by treaty. in foreign
lands.
Thus by consular convention of 1778, between the
United States and France, consuls of each country, as has
been already noticed, are permitted to exercise police over all
vessels of their respective countries, " within the interior of
the vessel," and to adjudicate questions concerning wages
arising in such countries. Treaties to the same effect have
been negotiated with other countries ; and congress, by the
Denmark, France, Germany, Greece, secured absolutely by convention with

Mexico, Portugal, and Sweden; while France, and, except for defence of per-
inviolability of the consular office and sons charged with crime, by conven-
dwelling (but not as an asylum) is tions with Austro-Hungary, Belgium,
secured by treaties with Belgium, Italy, and Salvador. In such case
France, Germany (of consuls, not the testimony may be taken in writing
citizens), and Italy. Exemption from at his dwelling." By treaties with
arrest, except for crimes, is secured by many states, consuls not owning real
convention with Belgium, Germany, estate or doing business in the country
Netherlands, and Italy. " In Austro- of the consulate are exempt from taxa-
Hungary and France he is to enjoy tion. By some treaties, also, consuls
personal immunities ; but in France, have the right to take depositions, and
if a citizen of France, or owning pro- have jurisdiction of disputes in vessels
perty there, or engaged in commerce, of the United States.
he can claim only the immunities 1 1 Kent's Com., 44, 62; 2 Phill.,
granted to other citizens of the country 336; The Falcon, 6 C. Rob. Ad. 194;
who own property, or to merchants. The Hope, Dods. Ad. 226; infra, § 219.
In Austro-Hungary, if engaging in By the act of congress, of August 18,
business, he can be detained only for 1856, U. S. Stat. at Large, ch. 127,
commercial debts. . . . In Great American consuls in particular places
Britain, Netherlands (as to colonies), are forbidden to engage in trade. The
Nicaragua, and Paraguay, they are law in respect to consuls is discussed
regarded as appointed for the protec- with great fulness in the fourth vol-
tion of trade." Exemption from obli- ume of Lawrence's Com. sur Wheaton.
gation to appear as a witness "is $ Supra, §§ 147, 170.
249
statute of June 11, 1864, made provision for the support of

the jurisdiction thus given to foreign consuls.' By statute,
also, our consuls abroad have power to administer oaths in
certain cases, and to acknowledge papers; and perjury be-
fore a consul abroad is punishable as such in a Federal
court before whom the offender is brought.2 In this country,
also, it has been held that a foreign consul, received as such
by our government, may, without special authority, appear
for a citizen of his country in a case in which the latter,
though absent, is interested.
§ 172. A consul cannot enter on his duties without the per-
mission of the state within whose limits the con-
Exequatur
required to sular functions are to be exercised; supposing such
consular
functions, state to be civilized. This permission is usually
granted by an " exequatur," which may be recalled
on due grounds. The announcement of the appointment of a
consul is by lettres de provision.-In old times a distinction
was taken between consules electi and consules missi; the latter
being generally subjects of the appointing state, while for
consules electi this was not necessary. Consules electi, also, are
generally unpaid, and are allowed to engage in business, which
is refused to consules missi. But the tendency among Euro-
pean states is to restrict consular appointments to consules
missi, with settled fees, and exclusion from business.
VII. INTERVENTION.
§ 174.On the subject of intervention two extreme views
Interven- have been announced. On the one side it was main-
tion per- tained by Burke, in his letters on a Regicide Peace,
missible in B ,,
matters that a nation, such as England, holding a com-
which dis-
turb pubiic manding position in Europe, is justified in inter-
peace. vening to put down propagandist anarchy in another
land; and it was declared by the members of the Holy Al-
liance, in 1815, to be the duty of the "Christian sovereigns"
who took part in that alliance, to unite to repress any Euro-
pean outburst against legitimacy. This position, however,
I See Lawrence's Wheaton, note 73. 3 The Bello Corrunes, 6 Wheat 152.
2 See Supra, § 170, note; Whart.
Crim. Law, 8th ed. §§ 273-6.
250
has been long repudiated. The chief instance of interference
of this class is that of Russia to protect Austria from revolu-
tion in 1848; and since then France witnessed the overthrow
of the old equilibrium in Germany without protest; and
neither Austria nor Russia interfered to prevent the democra-
tization of France. On the other side, it cannot be said that
the opposite extreme, that of the laissez faire, in reference
to foreign states, has acquired unqualified acceptance. In
the United States the doctrine of non interference has been
generally adopted as an axiom in political economy; yet in
the United States there is a general acceptance of the position
taken in this respect by Mr. Monroe, under the advice of Mr.
J. Q. Adams, so far as it assumes that no European power is to
be permitted to interfere forcibly in the domestic affairs of
American sovereignties;' and in the further position that the
control of a canal across the Isthmus of Panama is not to pass
into.the hands of any one European power. Mr. Gladstone,
and the leading members of his cabinet, are adherents of the
laissezfaire school ; but by Mr. Gladstone's administration an
attack on Egypt, and an at least temporary occupation and
reorganization of Egypt have been justified, on the ground
that this was necessary to the preservation of European com-
merce and peace. In semi-barbarous countries, settlements by
civilized states have never been regarded as interfering with
sound international jurisprudence. England has indefinitely
extended her Indian empire, has taken possession of Cyprus,
and has acquired at least a temporary dominancy in Egypt.
France has occupied Algiers and Tunis, and has obtained con-
trol of Madagascar. We may, therefore, hold to the follow-
ing positions:-
(1) The application of influence by one state over another
to mould the latter's political action, is not contrary to the
law of nations., provided that force is not threatened.
(2) The application of force, or its threat, to induce a change
by another state, either of its political constitution or of its
political action as to a third state, is a violation of the law of
nations. 2
I See as to qualifications infra, § 175. bered, disclaimed, when waging war
2 Great Britain, it should be remem- against the French Republic, any de-
251
(3) It is, however, open to the successful party to insist, on

the conclusion of a war, on guaranties which may involve
some modifications of the policy of the party vanquished.
sign thereby to interfere in the domestic According to General Washington,

affairs of France. The ostensible reason ''no government ought to interfere
was that the decree of the national with the internal concerns of another,
convention of November 19, 1792, was except for the security of what is due
virtually a declaration of war. See to themselves." Sparks's Life and
Phill., op. cit., i. 561. This decree was Writings of Washington, xi. 382.
a bombastic resolution to give aid to "As regards the citizens of the re-
" tons les peuples que voudront recognized state, any interference with
convrir leur liberte." See article by the action of the local law would be a
Mr. Oscar Browning, in Fortnightly Re- positive breach of the law of nations.
view for Jan. 1883,where the diplomatic Even in the case of a partially recog-
history of this period is reviewed, nized and partially protected state,
and where the mistakes of the British such interference is forbidden. Lord
as well as the French governments Dufferin's interposition on behalf of
in this respect are pointed out. Midhat Pacha (July, 1881) was wholly
In Lord John Russell's despatch, unofficial in form, however peremptory
addressed, in 1860, to Sir J. Hudson, it may have been in substance. When
British minister at Turin, justifying Lord Granville's attention was called
the interference of the king of Sardinia to the persecution of the Jews in Rus-
in aid of the insurrection at Naples, sia, and the alleged sympathy of the
occurs the following remarkable pas- Russian government, in the house of
sage: " That eminent jurist, Vattel, lords (Feb. 9, 1882) he declined, with
when discussing the lawfulness of the the approval of Lord Salisbury, to in-
assistance given by the United Pro- terfere officially." Lorimer's Law of
vinces to the Prince of Orange, when Nations, i. 334.
he invaded England and overturned Mr. Webster, in his letter of April
the throne of James II., says: 'The 21, 1841, to Lord Ashburton, speaks as
authority of the Prince of Orange had follows : " The salutary doctrine of
doubtless an influence on the delibera- non-intervention by one nation with the
tions of the States General, but it did affairs of others, is liable to be essen-
not lead them to the commission of an tially impaired if, while the govern-
act of injustice; for when a people from ment refrains from interference, inter-
good reasons takes ep arms against its op- ference is still allowed to its subjects,
pressor, it is but an act of justice and individually, or in masses;" adding,
generosity to assist brave men in the defence that " the United States have been the
of their liberties.' " Ann. Reg. 1860, p. first among civilized nations to enforce
294, Pub. Doc. It must be remembered the observance of the just rules of neu-
that at the time the States General in- trality and peace, by special and ade-
tervened in English affairs, there was quate legal enactments against allow-
no armed resistance to the authority of ing individuals to make war on their
James II. This is a dangerous prece- own authority, or to mingle themselves
dent, and would sustain almost every with the belligerent operations of other
form of aid given to foreign insurgents. nations."
252
(4) A nation whose conduct is a menace to its neighbors
may be assailed by them, and compelled to alter its policy
so as to remove the menace. The case is analogous to that of
abatement of nuisances by private action. The doctrine of
laissez faire gives to my neighbor the right to conduct his
business in the way he thinks best. But if he drop a stone
on the highway, in front of my house, I am entitled to remove
it by force.'
(5) The intervention of organized bodies of men from a
neutral state on the side of either belligerent in a pending
war, is prohibited by international law. It should be remem-
bered, however, that a neutral state may say: "I will not put
a strict watch on my subjects in this relation; to attempt to
close my ports for this purpose would impose an intolerable
burden and expense; but if harm is done by any negligence
in this respect, I will be liable to the injured state for the
damage." A state, also, may impose a tighter curb.on its sub-
jects in this respect than does the law of nations. The same
observations apply, rutatis mutandis, to the permission by a
neutral sovereign to fit out armed vessels in his ports for
belligerent use.2
(6) It is within the international power oF a state, or a league
I Lord Bacon thus forcibly puts the Sir R. Phillimore (op. cit., i. 555)
doctrine stated in the text : " Neither credits the United States with taking
is the opinion of some of the school- the lead in enunciating sound princi-
men to be received, that a war cannot ples of international law in the statutes
justly be made but upon a precedent of 1794 and 1818. It was not until
injury or provocation; for there is no 1819 that the British statute was pass-
question but a just fear of imminent ed. So little, indeed, was this statute
danger, though there be no blow given, respected in England, that though
is a lawful cause of a war." Essay on there were several English expeditions
Empire. And see supra, § 146. organized to take part in wars pending
It is only on this ground that the in- in Portugal, in Spain, and in Poland,
terference of France, Russia, and Eng- "no public prosecution of an offender
land between Turkey and Greece, re- against the provisions of the statute,"
sulting in the independence of Greece, according to Sir R. Phillimore, " ap-
can be sustained. The continuance pears to have been formally conducted,
of the struggle between Turkey and by order of the government, in a court
Greece, it was said, imperilled the peace of justice, until the period of the re-
of the Levant. cent American civil war ; that is, nearly
2 See infra, §§ 241 et seq. fifty years after the passing of the act."
253
of states, to guarantee the independence of another state

whose continued independent existence may be regarded as
essential to international peace.
(7) Intervention may properly take place at the request of
both parties to a civil war.1
(8) Recognition of the independence of an insurgent is not
by itself intervention.'
(9) Intervention can no longer be defended on the ground
that it is necessary to maintain the balance of power. The
United States form by far the most powerful nation in Ame-
rica, and could overrun at any time Mexico and the countries
immediately to the south of Mexico; yet this would not jus-
tify an offensive alliance between these countries against the
United States. Great Britain is unquestionably master of the
seas, yet this would not justify a combination of other powers
to wage war on Great Britain. It is only when a great power
uses its preponderance of strength to crush its neighbors that
a war by them against it can be sustained. If the balance of
power is to be perfectly preserved by war, war would never
cease, since the slightest preponderance obtained on one side
would require from the other rectification by renewal of war.
It was in part on these grounds that the United States re-
fused in 1852 to unite with France and England in a conven-
tion binding the three governments to renounce forever the
intention of annexing the island of Cuba. The proposition
was urged by the English ministers "both on account of their
own interests, and on account of those friendly states in South
America as to the - present distribution of power' in the
American seas." 3 The United States government replied that
such an alliance contravened its settled policy. It also re-
fused in 1861, on the same ground, to enter into alliance with
England, France, and Spain for the purpose of obtaining re-
I This was given by France and Eng- 2 Supra, § 140.

land as the excuse for intervening be- 3 It is now known that Mr. Adams's
tween Holland and Belgium, though administration, when Mr. Clay was sec-
the request to intervene was with- retary of state, opened negotiations for
drawn by Holland before the act of the purchase of Cuba. Phill., op. cit.,
intervention. i. 601.
254
dress for injuries supposed to have been sustained by the con-
tracting parties.'
(10) But intervention may justly take place to ward off
intervention ; in other words, there may be cases in which a
sovereign may be justified in saying to another sovereign
proposing to interfere in a war, civil or otherwise, "if you
intervene in this quarrel, I will intervene to keep you off." 2
§ 175. At the congress of Verona, which was the culmina-
tion of the Holy Alliance, it was proposed by Aus- Objections
tria, Russia, and Prussia, that there should be an to Euro-
peau inter-
intervention by France in Spanish affairs, for the vention in
purpose of assisting the Spanish king in putting America.
down the liberal movement in his domains. England pre-
sented a solemn protest against such intervention; and as it
was not unlikely that this interference would be extended to
the suppression of the revolt of the Spanish colonies in
America, this led to a suggestion by the British ministry
that the United States should remonstrate against such inter-
ference. In response to this suggestion, Mr. Monroe, then
president, in his message of 1823, declared, speaking for the
United States,3 " that we could not view any interposition for
the purpose of oppressing them (the South American states
which had revolted from Spain, and whose independence, we,
1 The recapitulation by Sir R. Phil- produced a lavish expenditure of life
limore of the various reconstructions in the siege of Sebastopol, from which
of Europe in recent times will be found it is difficult now to see any good re-
peculiarly interesting. See Phill., op. sult. It did not prevent Russia from
cit., i. 589 et seg. fighting a single-handed war with Tur-
2 Among more recent illustrations of key in 1879, and making what con-
war to preserve the balance of power quests she pleased; and even suppo-
may be enumerated the quadruple alli- sing the independent existence of Tur-
ance of England, France, Spain, and key as a European power was thereby
Portugal in 1834 to expel Don Carlos prolonged, that prolongation can only
from Spain, and the alliance of 1854 be temporary.
between England, France, and Turkey Mr. Seward's argument against Brit-
for the purpose of defending Turkey ish and French intervention in the late
against Russia. As to the first of these civil war will be found in his letter to
alliances, it placed on the Spanish Mr. Adams of Aug. 18, 1862. 5 Sew-
throne a dynasty utterly worthless and ard's Works, 352 et seq.
incapable of holding the kingdom on s For " Monroe Doctrine" in Austra-
which it was forced. As to the second, lia, see London Spectator, Dec. 8, 1883,
it added vastly to England's debt, and p. 1575.
255
in common with Great Britain, had acknowledged), or con-

trolling, in any manner, their destiny by any European power,
in any other light than as a manifestation of an unfriendly
disposition towards the United States." The proposed inter-
vention in South America by the allied sovereigns having
been thus opposed by the United States as well as by Great
Britain, was not further pressed; and, under such circum-
stances, a resolution offered in the house of representatives,
protesting against such intervention, was withdrawn. Mr.
Monroe, in his message, declared, in addition, " that the
American continents, by the free and independent conditions
which they have assumed and maintained, are henceforth not to
be considered as subjects for future colonization by any Euro-
pean power." Mr. J. Q. Adams was then secretary of state,
and was responsible for this portion of the message. In
1825, when president, he addressed a special message to
congress in reference to the Panama Congress, in which he
states that " an agreement between all the parties repre-
sented at the meeting, that each will guard by its own
means against the establishment of any future European col-
ony within its borders, may be found desirable." And he
then gave the following significant exposition of Mr. Monroe's
declaration: " This was more than two years since announced
by my predecessor to the world as a principle resulting from
the emancipation of both the American continents." The
house of representatives was at the time, however, in strong
opposition to Mr. Adams's administration, and was peculiarly
indisposed to unite in approving of so distinctively adminis.
tration a measure as the congress of Panama. With this was
mingled a growing distrust in the permanency of the govern-
ments of the various South American republics with which
it was proposed to combine. But whatever may have been the
motives, the house expressed an emphatic disapproval of the
administration project. The United States, so it was resolved
by a party majority, " ought not to become parties" with the
South American governments "to any joint declaration for
the purpose of preventing the interference of any of the
European powers with their independence or form of govern-
256
ment; or to any compact for the purpose of preventing colo-
nization upon the continent of America." In 1848 the ques-
tion was again brought up by Mr. Polk, then president, who
in a message to congress stated that the government of Yuca-
tan had offered the protectorship of that country successively
to Great Britain, the United States, and Spain, and called on
congress to take measures to prevent any part of the Ameri-
can continent from being subjected to the control of any Eu-
ropean power. The Yucatan movement towards a protector-
ship, however, was so ephemeral that no congressional action
towards its prevention was necessary, and it became also
plain that congress as a body was not disposed to pass any
measure tending to affirm the position taken by Mr. Polk.
The debate in the senate was marked by a masterly speech on
intervention, by Mr. Calhoun, in the course of which he
stated, as one who had been a member of Mr. Monroe's
cabinet, that the position taken by Mr. Polk " goes infinitely
beyond Mr. Monroe's declaration. It puts it in the power of
other countries on this continent to make us a party to all
their wars," since, whenever any such power becomes involved
in internal warfare, and the weaker side appeals to us for aid,
we would be bound, according to Mr. Polk's doctrine, "to
give them support for fear the offer of the sovereignty of the
country may be made to some other power and accepted."
"To lay down the principle," justly remarks Dr. Woolsey,
when commenting on Mr. Polk's message, "that the acquisi-
tion of territory on this continent, by any European power,
cannot be allowed by the United States, would go far beyond
any measure dictated by the system of balance of power, for
the rule of self-preservation is not applicable in our case;
we fear no neighbors. To lay down the principle that no
political systems unlike our own, no change from republican
forms to those of monarchy, can be endured by the Americans,
would be a step in advance of the congresses at Laybach and
Verona, for they apprehended destruction to their political
fabrics, and we do not. But to resist attempts of European
powers to alter the constitution of states on this side of
the water, is a wise and just opposition to interference. Any-
thing beyond this justifies the system which arbitrary govern-
17 257
ments have initiated for the suppression of revolutions by

main force."' But this does not apply to the recognition on
the part of European powers of belligerent insurgents in this
country, or even expressions of sympathy with such insur-
gents. England at an early period of their revolt recognized,
in full accordance with the United States, the independence
of the Spanish South American colonies; and the United
States were prompt not only to recognize the independence
of Greece and of Belgium, but, in the case of Greece, to ex-
press sympathy as well as to extend assistance to the furthest
limits of neutral obligation.3
I Woolsey, Int. Law, § 147. American continent have a right to

2 Supra, § 141 ; infra, §§ 240 et seq. secure for themselves a republican gov-
3 Mr. Seward, in 1868, when secre- ernment if they choose, and that inter-
tary of state, projected a treaty with ference by foreign states to prevent the
the United States of Colombia, and enjoyment of such institutions deliber-
" was so desirous of securing some ately established is wrongful, and in
satisfactory arrangement with that its effects antagonistical to the free and
government," so writes Mr. Baker, his popular form of government existing in
biographer (Diplom. Hist. of War, p. the United States." (Diplom. Hist. of
34), "that he sent Mr. Caleb Cush- the War, 427.) A striking speech on
ing, as . special agent, to join our min- this topic by General Dix will be found
ister at Bogota in the negotiations. A in Dix's Life, i. 217, in which he says
treaty embodying the Monroe doctrine that the protests of Presidents Monroe
was agreed upon and signed by the and Polk " are sustained by an undi-
ministers." The treaty was rejected vided public opinion, even though they
by the senate of Colombia, and "for may not have received a formal response
unknown reasons failed to receive the from congress." This is true so far as
approval of the senate of the United it concerns the arbitrary interference
States." (Appleton's Cyclop., 1869, pp. of European sovereigns in American
108, 704; Secretary Evarts's Report, affairs, or the attempt of any European
March 8, 1880; Ex. Doc. No. 112, Senate, power to obtain the control of the
46th Cong. 2d sess.) Mr. Seward's pro- Isthmus of Panama. But the doctrine
test against French interference,in 1863, should not be extended so as to pre-
in Mexican affairs, though sustained in clude a European power from receiving
the house of representatives, was passed for its own purposes (e. y., for coaling
over, no doubt with the assent of the steamers) a cession of territory in South
administration, without action in the America.
senate. And Mr. Seward, in his letter For an article on the Monroe doctrine
to Montholon, of December 6, 1865, does in relation to the lsthmian Canal, see
not place his objections to French in- North American Review for June, 1880,
terference in Mexico on the ground of and see same Review, December, 1881
the Monroe doctrine, but on the ground South. Law Rev. N. S. vi. 729.
that " the people of every state on the
258
VIII. NATURALIZED AND OTHER RESIDENTS-SLAVES.
§ 177. Until the middle of the present century, the pre-
valent doctrine was that allegiance could not be
divested or repudiated. No matter how long a turanza
party may have been absent from his native land, generally
accepted.
no matter how solemnly he may have abjured his
native allegiance, no matter how sacred may have been the
ties he may have formed in his new home, his allegiance of
birth was held to continue; and this doctrine was held in the
United States as well as in England.' It is now, however,
generally agreed that personal expatriation is in accordance
with the law of nations; and there are no civilized nations
which do not now grant naturalization in some shape to proper
applicants. Treaties, also, are in existence between the prin-
cipal states of Europe and the United States by which the
rights of naturalized citizens are reciprocally respected.
Difficulties, however, arise in cases of conflict between natu-
ralizations, and in respect to naturalization fraudulently ob-
tained in order to elude conscription or taxation. By some
states naturalization is only granted on the production of a
release from the original allegiance. This, however, is not
the rule in the United States, where emigrants are naturalized
without any such certificate; nor is it consistent with our
institutions that such a condition should be prescribed.
The following conclusions may be considered as settled:-
(1) A naturalization obtained fraudulently, not for the
purpose of transferring allegiance and residence, but for the
purpose of evading some duty to the native state, may be
treated as void by the latter state, should the party natural-
ized return to its shores.
(2) A legitimate child takes its father's nationality, an ille-
gitimate child that of the mother.'
(3) Between particular states the duties and privileges of
naturalization are regulated by treaties. Among these treaties
'.Whart. Conf. of Laws, § 5, and 2 See infra, §§ 256 et seq., 432

cases there cited. As to constitutional
limits, see infra. § 431.
259
may be mentioned that of 1868 between Germany and the

United States.'
(4) It should be added that France holds to the permanent
allegiance of her subjects more strongly than do other
European states,.insisting in many instances that they cannot
divest themselves of this allegiance even when settled in a
foreign land. 2
(5) The naturalization of the husband, according to the old
view, carries with it the naturalization of the wife, though it
may be doubted whether this rule obtains in states where
married women have the capacity of independent action, and
where the husband insists, against his wife's wishes, she
refusing to accompany him, upon crossing the seas to accept the
nationality of a foreign land under conditions entirely different
from those under which the marriage was solemnized. It is
otherwise if she accompany him, and it is clear that the
naturalization of a father carries with it the naturalization of
his minor children whom be takes with him.
( 178. In most civilized states (the rule as to barbarous
Foreigners and semi-civilized states having been already con-
subjected sidered)4 a foreigner is entitled to the immunities
to law of
place of of citizens, though he is in most jurisdictions com-
residence. pelled to give security on bringing suit, and can-
not act in a fiduciary capacity without giving bond. In
some states an alien is prevented from acquiring real estate
beyond a certain limit. But there is no limitation on the
acquisition of personal property (mobilia), and under the con-
stitution of the United States a foreigner has the special
privilege of suing in the Federal courts. When a foreigner is
indicted for a crime, he cannot, by our practice, set up his
alienage as a defense, although by the English common law
1 See on this topic the enumeration As to naturalization in the United

of treaties in Whart. Conf. of Laws, States by statute and by annexation,
chap. i. see infra, §§ 431 et seq.
2 That marriages of Frenchmen in a That naturalization creates political
foreign land will be declared void if status, see infra, 262.
not solemnized according to home laws, 3 Whart. Conf. of Laws, H§ 8 et seq.
see Whart. Conf. of Laws, 2d ed., §§ Infra, § 262.
151, 162, 173, 185. 1 Supra, § 147.
260
he is entitled to a jury of which a portion should be of a
race speaking his own language. An interesting question
arises when a foreigner is indicted for a political offence which
he is required to commit by his own sovereign. In such a
case the command of the foreign sovereign is no defence. If
the defendant, in such a prosecition, is convicted in violation
of' the law of nations, it is the duty of the executive to inter-
fere with a pardon. If this is impracticable, the question is
one for international adjustment. A foreigner cannot say
that he is not bound to obey the laws of the state where he is
sojourning. But if the act for which he is convicted is one
enjoined by his own sovereign, then that sovereign must be
held responsible.'
I See, on the above topic, Whart. no one would have pretended that
Con. of Laws, §§ 819, 820; Whart. Cobbett, while residing in the United
Crim. Law, 8th ed., §§ 269, 281, chap. States, was not liable to be indicted
i.; Holtzendorff, op. cit., 1215 ; Bonfils, for all offences, political or otherwise,
De la competence des tribunaux made indictable in the place of his
frangais 6l'egard des Estrangers, 1865; residence. The same position has
Ueber die Fehler des Franz. Civilrechts been repeatedly taken by the British
bezuglich der Fremden. As to compul- government in respect to citizens of
sion by sovereign as a defence, see the United States who, when residing
supra, § 144: infra, § 210; Whart. in Ireland, have been engaged in con-
Crim. Law, 8th ed., §§ 94, 283, 310; spiracies against the British govern-
Ford v. Surget, 97 U. S. 594, cited ment. The question, however, may
infra, § 210. As to conflicts of criminal be merely of the meaning of words,
jurisprudence, see infra, §§ 350 et seq. since Sir R. Phillimore, in the next
Sir R. Phillimore (op. cit., 445), page to that from which the above
differing in this respect from Heffter passage is cited, says: "All strangers
(§ 58), holds that, " as a general pro- commorant in a land owe obedience, as
position, a man can have only one subjects for the time being, to the laws of
allegiance." But I must agree with it." That the home sovereign has
Heffter in holding that a mere resident allegiance due him from such persons
in a state owes, for the time being, is maintained by all civilized states,
allegiance to such state, and may be there being no such state which does
guilty of treason to such state if, as a not maintain its right to levy taxes on
private person, he wages war against such persons, and to hold them re-
it, or renders comfort to its enemies. sponsible for all offences committed by
Cobbett, for instance, when in the them against its sovereignty. Whart.
United States, was never naturalized, Crim. Law, 8th ed., §§ 269 et seq., 281;
nor did he ever restrain himself from Phill., op. cit., 455; Van Wyck,
declaring that he was and meant to De delictis extra regni territ. com-
continue to be a British subject; yet miss., Utrecht, 1839. As to commer-
261
§179.] COMMENTARIES ON LAW. [CHAP. IV.
§ 179.It is within the constitutional power of a sovereign

to exclude foreigners, either as a class or specially from his
cial domicil, see infra, § 219. That Wildman's International Law, p. 59;
residence establishes belligerent char- Law Lib., vol. lii. p. 42.
acter, see Johnson c. Falconer, 2 Paine, " After the attempt to assassinate
601; S. C., Van Ness, 1. the emperor of the French on the 14th
It has been held in England, that of January, 1858, the French minister
where a foreigner in England is guilty of foreign affairs represented that
of a breach of neutrality in conspiring plots to assassinate the emperor had
against his native country, the English been formed in England, and asked
government will undertake the prose- that England should provide for the
cution, and will not leave it to the re- punishment of such offences. In ac-
presentatives of the foreign state. See cordance with the request, Lord Pal-
debate in the house of lords, March, merston, being prime minister, on the
1853. 8th of February introduced a bill for
The following citations are from the punishment of conspiracies formed
Fields's Code of Int. Law, 2d ed., p. in England to commit murder beyond
87:- her majesty's dominions; but the bill
" In 1799, certain English subjects was rejected, and the ministry imme-
were prosecuted for publishing a libel diately resigned. The bill was opposed
upon Paul I., emperor of Russia. by some from an unwillingness to
They were convicted and punished by interfere in any way with the right
fine and imprisonment. State Trials of asylum; but the controlling reason
(Howell), vol. xxvii. 627-630. evidently was a feeling that the French
"In 1803, Jean Peltier, a French government had used too dictatorial a
refugee, was prosecuted for a libel on tone in demanding the passage of such
Napoleon Bonaparte, then first consul a law. Annual Register, 1858, pp. 5,
of the French Republic. He was con- 33, 202; Annuaire des deux Mondes,
victed, but the breaking out of war pre- 1857-8, pp. 32, 110, 420; cited in
vented his receiving judgment. State Lawrence's Wheaton, p. 246, note.
Trials (Howell), vol. xxviii. 530-619 " The same application was made to
(see R. v. Most, cited supra, § 138). Sardinia, and a law was passed there
" Woolsey (International Law, § 79) making it a special offence to conspire
says: 'A nation has a right to har- against the lives of sovereigns, al-
bor political refugees, and will do so, though the punishment originally pro-
unless weakness of political sympathy posed in the bill as introduced by
lead it to a contrary course. But such the ministers, was mitigated by the
persons may not, consistently with the chambers. M. Cavour sustained the
obligation of friendship between states, measure, both on political grounds
be allowed to plot against the person and because he deemed it important
of the sovereign, or against the insti- that Sardinia, under the circumstances
tutions of their native country. Such in which she was placed, should not
acts are crimes, for the trial and pun- act in opposition to the views of France.
ishment of which the laws of the land Annuaire de deux Mondes, 1857-8, p.
ought to provide, but do not require 216."
that the accused be remanded for trial As to effect of annexation on alle-
to his native country.' See, also, giance, see infra, § 433.
262
shores.1 This right, which is called in the books the Droit de
renvoi, was exercised by England in 1792, under an
act of parliament called the alien act; and a similar Forei ner
act was passed by our own congress during the ad- cluded on
general or
ministration of John Adams. The constitutionality special
of such a statute was at the time questioned; but grounds.
there can be little doubt that as an exercise of the war power
or as a means of suppressing insurrection, it may be sustained.
The constitutionality of the Chinese exclusion act of 1880,
may be defended on the ground of the general right of the
Federal government to regulate commerce and emigration. It
is proper, however, that the ground of such non-reception or
expulsion should be notified to the nation whose citizens are
thus repelled.2
§ 180. A domiciled resident, even though not naturalized,
has duties laid on him greater than those imposed Duties per-
on transient visitors. He becomes liable to local taining to
taxation, and he is so far steeped in the jurispru- domicil.
dence of the country of his domicil that by it his family rela-
tions are determined, and his personal estate is distributed
after his death. 3 A modified grade of domicil, as will be here-
after seen, has been held in England to attach to persons who
I Lorimer, Law of Nations, i. 344. See as to Chinese emigration, infra,

2 " It is a received maxim of inter- §§ 264, 435; Whart. Con, of Laws, 2d
national law, that the government of a ed., Introduction; and on the general
state may prohibit the entrance of topic Holtzendorff, ut sup., citing Nicot,
strangers into the country, and may Etude historique sur le naturalisation,
therefore regulate the conditions under 1868; Westlake, De la naturalisation
which they shall be allowed to remain et de 1'expatriation, 1868; Munde,
in it, or may require and compel their Bancroft Naturalization, 1868; Marlitz,
departure from it." Phil. Int. Law, i. Recht der Staatsgeh6rigkeit, in Hirth's
407. And see supra, § 146. Annalen, 1875; Desfontaines, De l'Emi-
According to Martens, the sovereign gration, 1880; De Folleville, Trait6 de
has a right to forbid foreigners to enter la naturalisation, 1880. As to quaran-
his dominions, without express permis- tine, see Sir S. Baker, International
sion first obtained, even if such entry Rules of Quarantine, 1879. As to police
be not prejudicial to the state; butno exclusions under the Federal constitu-
European power now refuses in time of tion, see infra, §§ 425, 486, 565.
peace to grant permission; nor is it s See as to discussion whether domi-
even necessary for such subject to ask cil or nationality, impresses these
permission. Martens's Law of Nations, characteristics, Whart. Con, of Laws,
Bk. 3, ch. 3, § 2. 2d ed., §§ 32 etseq.; infra, §§ 254 et seq.
263
sojourn in a foreign country for the purposes of trade, and who,

when such country becomes a belligerent, have been viewed as
impressed with its nationality.'
§ 181. It was held by Lord Stowell, in 1817,2 and subse-
Slave trade quently by the supreme court of
the United States,
nolonger that the slave trade is not piracy by the law of
allowed. nations, nor, in itself, illegal.'
At that time slavery
was recognized by law in the United States and in Russia, as
well as in minor states, and, though the slave trade was piracy
by statute law in the United States and in England, it had
not been declared illegal by France, and it was tacitly sanc-
tioned by Brazil. Since then, however, the conditions have
changed. In 1818, a year after Lord Stowell's decision, the
slave trade was made illegal in France, and there is no por-
tion of the civilized world in which it is now sanctioned.5
This, taken in connection with the abolition of slavery in the
United States and in Russia, leads us to the conclusion that,
by the law of nations, the slave trade is no longer legal. To
steal goods on the high seas is an offence against the law of na-
tions, and so is the exportation of stolen goods. If this is the
case with the stealing of goods, why not with regard to the
stealing of men? Even if, as in the case of England and the
United States, such an offence be not larceny, it is indictable
as abduction; and, aside from this reasoning, since by all
civilized states the slave trade is now a criminal offence, we
may hold that, by the consent of all nations, it is now an
offence internationally.6 If this be the case with the forcible
abduction and transportation of persons of African descent, it
is also the case with regard to the capturing and reduction
into slavery of persons of other races. This, however, does
not preclude the temporary detention and incarceration of
1 Infra, § 219; see Wildman, ii. 40; sia, and Russia, states which had pre-
Hartmann, § 85. As to donicil gener- viously taken no action in this rela-
ally, see infra, §§ 254 et seq. tion, entered into a convention making
2 The Louis, 2 Dod. Ad. 240. the slave trade piracy.
The Antelope, 10 Wheat. 66. 6 See, to this effect, Heffter, § 32
Infra, §§ 280-452. Phillimore, op. cit., 406 et seq.
s In December, 1841, Austria, Prus-
264
CHAP. IV.] PUBLTC INTERNATIONAL LAW. [5 182.
prisoners of war, provided they are treated in conformity with
the conditions of military law.
§ 182. It is also settled that slaves, on reachinr a non-
slaveholding state, will be regarded as free, and
will be released from imprisonment and discharged Nor slavery
by non-
by the proper authorities on the making of due slaveliold-
application.2 g states.
I R. o. Serva, 1 Den. C. C. 104, does By the constitution of the United

not necessarily conflict with the po- States, as originally adopted, power
sition in the text. In that case a Bra- was given to congress, after the expi-
zilian slaver, the Felicidada, was cap- ration of the year 1808, to prohibit the
tured and taken possession of by offi- importation of slaves. By the act of
cers and seamen of a British cruiser. congress of March 2, 1807, the impor-
The crew of the Felicidada rose on and tation of slaves after Jan. 1, 1808, was
killed the British officer and men hav- made a criminal offence, subject to se-
ing charge of the vessel. Subsequently vere penalties, which were increased,
the Felicidada was recaptured by a and the prohibition extended by the
British vessel and the crew brought to acts of April 20, 1818, and May 15,
England, where they were tried for 1820.
murder. It was held by a majority of The position taken by Sir W. Scott,
the judges that the English courts had in the Amedie, 1 Acton, P. C. 240, is
no jurisdiction of offences committed on that English tribunals will hold the
the Felicidada, and this can only be slave trade illegal when prohibited by
sustained on the ground that the slave the municipal laws of the country to
trade is not piracy by the law of na- which the parties belonged, but not
tions. But this was before the abo- otherwise. And in the Diana, 1 Dods.
lition of slavery in the United States 95, where a Swedish vessel, carrying
and Russia, and before the stringent slaves from Africa to the West Indies,
British statute of 1845. Brazil, also, Sweden not having then prohibited the
has now by statute provided that every slave trade, was captured by a British
child born of slave parents after Sep- cruiser, she was restored to the owner
tember 28, 1871, shall be free, and on the above ground. In The Louis, 2
Spain has pledged itself to abolish sla- Dods. 210, as above stated, it was fur-
very in Cuba. Phill., op. cit., 436. ther decided that the right of visitation
There is, therefore, no longer a civilized and search, on the African seas, did
state by which slavery is avowedly not exist in time of peace, unless as
tolerated. between nations authorizing by treaty
In June, 1873, Sir Bartle Frere con- such right. See Buron v. Denman, 2
cluded with the sultan of Zanzibar a Exch. 167; rev. 8 C. B., N. S., 861;
treaty by which the latter prohibited Madrose v. Willes, 3 B. &. Ald. 353.
slavery in his territory, and Russia, 2 The Negro Case, 20 How. St. Tr.
in the same year, secured similar en- 82, and other cases cited; Phill., op.
gagements from the emir of Bokhara cit., 334. " The state of slavery," said
and the khan of Khiva. Judge Story, long before the late civil
As to right of search of slaves, see war, "will not be recognized in any
infra, §§ 194 et seq. country whose institutions and polity
265
IX. RIGHT TO SEA AND RIVER.

§ 185. It is now settled that the open sea is free to all
nations; but that this freedom is to nations as such,
Open sea
free to all and not to individuals stripping themselves of their
nations. nationality. On the one side, all persons and prop-
erty sailing under a particular flag ought, as we shall presently
see, to be as free from molestation as if they were on the soil
of the state which the flag represents. On the other side,
this privilege is not extended to individuals not authorized
to carry particular national flags. A ship traversing the seas
on its own mission of good or evil may be spoken, and, if
it does not bear the flag of any sovereign acknowledged as
such, may be seized and brought to a prize court to determine
the legality of its cruise.-So far as concerns the rules of the
sea, many points have been settled by treaty; others by the
usage of seafaring nations. It is properly suggested by Holt-
zendorff, also, that, in respect to sub-marine telegraphs, rules
should be adopted by treaty; and that by treaty, also, limi-
tations should be placed on the excessive and wanton destruc-
tion of young fish and seal.'-By the treaty of Constanti-
nople, in 1809, between Russia, England, and the Porte, the
strait of the Dardanelles was constituted a mare clausum
under the control of the Porte. This rule was ratified by the
five great European powers in the treaty of the Dardanelles,
July 10, 1841, and in 1878 was referred to as binding in the
treaty of Berlin. How far the stretches of sea that are be-
tween the capes on the Atlantic coast are part of the terri-
torial waters of the United States will be hereafter discussed. 2
Whether a title to exclusive use of fisheries or of navigation
on the open sea may be inferred from a tacit convention with
prohibit slavery." Story, Conf. of Perels, Das internat. offent. Seerecht,

Laws, p. 97. As to abolition of slavery, 1Sb2, § 4.
see supra, § 20; infra, §§ 584 et seq. TPhe sources of maritime law have
I Holtzen., ut supra, 1220, citing been already noticed, supra, §§ 124 et
Ortolan, Regles internat., 2d ed., 1853; seq., and are discussed in detail by
Bischoff, Grundriss eines positiven Perels in the work just noticed-a
internationalen Seerechts, I68; De work of peculiar merit.
Burgh, Elements of Maritime Intern. Infra, § 192.
Law, 1868 ; Plocque, De la mer, 1870;
266
OHAP. IV.] PUBLIC INTERNATIONAL LAW. [§ 186.
other nations has been much disputed. It is affirmed by

Vattel,' but denied by Wheaton.' Certainly one nation may
by treaty with another nation preclude itself from fishing on
or navigating certain portions of the high seas. But such a
treaty cannot be inferred from mere non-user of the right;
and a convention, to be binding, should be in express terms
and deliberately sanctioned. The exclusive dominion by
Denmark over the sound may be now regarded as abandoned.'
§ 186. For some time after the introduction of cannon in
marine warfare a belt of three miles, being the sup- Bet of sea
posed range of a cannon-ball, was held to belong, in within
a qualified sense, to the territory of the adjacent shot hdto
state. It has been generally held that the waters torial.
be terri-
within this belt are considered part of the territorial
waters of the state, so far as to give the state jurisdiction of
offences committed against its own subjects or property within
such range, or of offences which disturb the peace of such ter-
ritorial waters. Whether the English and American courts
have common law jurisdiction of these waters has been dis-
cussed in another work; and how far the English statute
attempting to settle the doubt is to be respected extra-terri-
torially, is also there considered.4 It is sufficient here to say
that if the rule amounts to anything, it amounts to the asser-
tion that every sovereign state has a right to protect itself
from any offensive operations which may be undertaken from
a base sufficiently near its shore to enable its shore to be
molested. This is reasonable; and the effect of the rule would
be to extend the belt over which police or punitive jurisdiction
could be exercised for the purposes of self-defence, or revenue
protection, from three to nine miles, the present extreme
range of cannon-balls. But this would not authorize the in-
terferencewith ships of other nations peaceably passing through
such belt. All that the extension of the belt to nine miles
would, in this view, effect, would be the vesting in each state
of police jurisdiction over such a portion of the sea washing
its coast as could be made the basis of operations against its
1 Droit des Gens, t. i. 1. i. c. xxiii. 3 See Phill., op. cit., i. 256.

Int. Law, i. p. 228. 4 Whart. Con. of Law, 2d ed., § 818.
267
§186.1 COMMENTARIES ON LAW. [CHAP. IV.
revenue or its shores.' Were it otherwise, the peace and

security of a neutral coast might be disturbed by naval con-
flicts within the range of cannon-shot from the land, which
invasion of neutral rights is in conflict with the settled rules
of international law.2 Nor is this all. Miscreants desirous of
avenging themselves on parties dwelling on the shore, might
escape liability by going four miles from land, and there pour-
ing hot shot into that enemy's house; and if this were not
done to gratify hatred, it might be done to levy black mail.
In any view, every sovereign should be entitled to exercise de-
fensive police jurisdiction over that portion of the sea from
which as a base shot could be poured on his shores.'-The
United States, following the precedent of Great Britain,
have made it an offence to tranship foreign goods within four
leagues of the coast;' and this has been held by the supreme
court of the United States to be consistent with international
law.' But it is argued by Sir R. Phillimore, that a statute of
this class cannot be enforced against foreign states, unless by
adopting a similar provision, they have incorporated it into
the law of nations.' At the same time a state cannot be
'IThe extension, says Perels (op. cit., the rule is, the margin of the sea within
5), of the line depends upon the reach of the landforces, or from which the
range of cannon-shot at the particular land can be assailed." (Field, Int. Code,
period. It is, however, at such period 2d ed., § 29.)
the same for all coasts. To this effect 4 That a seizure of vessels engaged
is cited Martens, Pricis., i. p. 144; in an illegal trade is not limited to a
Blunschli ,§ 302; Heffter, § 75; Kliiber, range of three miles from shore, see
130 ; Ortolan, i. 153; and Schial- Church v. Hubbart, 2 Cranch, 187.
tarella, Del Territorio, p. 8. According 6 Church v. Hubbart, 2 Cranch,
to Gessner, " les droits des riverains 187.
ont 6t6 augment6s par 1'invention des 6 Phill., op. cit., i. 276.
canons ray6s." As far as a state can In R. v. Keyn (L. R. 2 Ex., § 63)
protect itself, so far does its jurisdiction the defendant was a foreigner com-
extend. (Kent, i. 29.) According to manding a foreign ship on a voyage
Ortolan (op. cit., i. p. 158), " La plus from one foreign port to another; and
forte port~e de canon selon le progrs the defendant's ship ran negligently,
commune de 'art k la chaque 6poque." it was alleged, into a British ship,
Infra, § 239. about two miles from Dover, causing
" Inasmuch as cannon-shot can now the death of a passenger on the latter
be sent more than two leagues, it seems ship. It was held by amajorityof one
desirable to extend the territorial limits of the court of crown cases reserved,
of nations accordingly. The ground of that the central criminal court, before
268
expected to permit the waters surrounding it, at least within
cannon shot of the shore, to be the site of smuggling adven-
tures, and of the illegal transfer of goods; and so far as this
limit goes, it should be entitled to enforce its rights against all
intruders. It would seem right, therefore, that for the two
which a conviction of manslaughter territorialsovereigntyof her majesty, andfor

was had, had no jurisdiction, because, the purpose of any otfence declared by this
prior to 28 Hen. VIII., c. 15, the ad- act to be within the jurisdictionof the ad-
miralty had no jurisdiction to try miral, any part of the open sea, within one
offences on board foreign ships, and marine league of the coast measured from
that the central criminal courts, under low-water mark, shall be deemed to be open
the statute, had only jurisdiction of sea within the territorialwaters of her ma-
cases which the admiralty had prior to jesty's dominions." This statute in one
28 Henry VIII. Sir R. Phillimore and place apparently makes the test to
Sir F. Kelly, who were members of the consist in the protection of subjects, in
majority, went further and held, that another place falls back on the marine
consistently with international law league. So far as concerns persons in-
English criminal law could not be exer- jured on shore, the former is on prin-
cised within the limits in question. A ciple the test ; and it may also be ar-
statute was consequently passed, in gued to be the test in reference to
1878, called the Territorial Waters Act, belligerent cruisers undertaking to can-
providing that " an offence committed nonade each other within cannon shot
by a person, whether he is or is not a of the shore. So far as concerns inju-
subject of her majesty, on the open ries at sea, inflicted by a foreigner on a
sea within the territorial waters of subject, the question is still open. See
her majesty's dominions, is an offence remarks on R. v. Keyn, in Whart.
within the jurisdiction of the admi- Conf. of Laws, 2d ed., § 818 ; 2
ral, although it may have been com- Steph. Hist. Cr. Law, ch. xvi. ; Perels,
mitted on board or by means of a foreign § 13.
ship;" and it was declared in the pre- As sustaining the views of the text,
amble of the statute that " the rightful see Hautefeuille, i. 232 ; Calvo, i. p.
jurisdiction of her majesty, her heirs 309; Azuni, i. p. 75.
and successors extends, and has always The latter author pertinently re-
extended, over the open seas adjacent to marks, in speaking of the position taken
the coasts of the United Kingdom, and by the lord chancellor in the house of
of all other parts of her majesty's do- lords that the right of passage through
minions, to such a distance as is necessary the narrow seas was a "concession,"
for the defence and security of such do- that this right of unmolested passage
minions." It is, however, further pro- rests on the principle of the freedom of
vided that ',the territorial waters of the seas, provided the peace of the ad-
her majesty's dominions, in reference jacent shore be not infringed; and he
to the sea, means such part of the sea adds that the clai of Great Britain,
adjacent to the coast of the United if good as to the Strait of Dover, would
Kingdom, or the coast of some other be equally good as to the Strait of Gib-
part of her majesty's dominion, as is raltar.
deemed by internationallaw to be within the
269
purposes of defence against aggression and prevention of in-

terference with its trade, a state should have jurisdiction over
the seas washing it as far as cannon shot extends.'
§ 187. The true coast line varies with the object for which
the line is assumed. In treaties regulatingZ! fisheries
Coast-linen
internation- the low-water line is usually taken, while the Roman
ally that on law accepts the high-water line as the standard in all
which bat-n
teries could cases.2 Wheaton takes a very uncertain test: that
be placed. of navigability. In the English territorial waters
act, the limit, as we have seen, has been placed at "low-water
mark." But this has no extra-territorial force; and in view
of the object of the limit it may well be argued that to the
line on which a battery could be built on the shore the coast
extends. 3
§ 188. A ship, according to the preponderance of opinion,
is part of the country whose flag she bears.4 This, supposing
I Infra, §§ 239-241. This is declared tion of the sea actually occupied by a

to be the rule of international law in fleet riding at anchor is within the do-
a decision of the supreme court (Ober- minion of the nation to which the fleet
tribunal) of Prussia of Nov. 28, 1866, belongs, so long as it remains there;
cited by Perels, § 5. that is, for all purposes of jurisdiction
"It is probably safe to say," says over persons within the limits of the
Mr. Hall (Int. Law, 127), " that a state space so occupied." " This proposi-
has the right to extend its territorial tion," however, he continues to say,
waters from time to time at its will " is of course not to be considered with-
with the now increased range of its out reference to the place of anchorage :
guns; though it would undoubtedly be a French fleet permitted to anchor in
more satisfactory that an arrangement the Downs, or an English fleet at Cher-
upon the subject should be arrived at bourg, would only have jurisdiction
by common consent." over the subjects of the respective
2 L. 96 pr. D. de V. S. " Litus est countries which happened to be within
quousque maximus fluctus a mari per- the limits of temporary occupation of
venet." There are several other pas- the water." Phill., op. cit., 291.
sages to the same effect. It is not necessary, as we shall see,
3 See to this effect Perels, op. cit., § to defend this position by the danger-
5; Bynkershoeck, De dom. maris, cap. ous and unauthorized assumption that
2. See Hudson v. Guestier, 6 Cranch, the sea on which a ship rests is part of
281, overruling Rose v. Himely, 4 the territory of her nation. It is suffi-
Cranch, 241. cient to say that the sea is free to all,
4 Infra, § 308. See authorities cited and that a vessel traversing it is sub-
in Whart. Con. of Laws, § 356. This ject only to the nation to which she
rule is extended by Sir R. Phillimore belongs. Perels, § 12.
to cover a fleet at anchor. " The por-
270
the flag to be genuine, would as much preclude the hostile
intrusion of foreigners on the ships of a nation as Ships
the principle of territoriality precludes the hostile protected
intrusion of foreigners on the- soil of a nation.' by flag.
But this assumes the genuineness of the flag. A piratical
vessel may undoubtedly be visited, searched, and seized ;2 and
if there is any question as to the flag, this question can be
solved by a visitation.-We must a fortiori reject the assunp-
tion of some eminent writers, that national rights over the
sea are to be extended to an area within cannon range of each
ship of such nation.3 This fiction is as unnecessary as it is mis-
chievous. It is unnecessary, since the absolute freedom of a
Supra, § 146. of a private ship within the limits of

2 Infra, §§ 194 et seq. another nation, and in that case, con-
As sustaining the position in the current with such nation."
text may be cited Vattel, ii. p. 80; " A vessel at sea is considered as
Hautefeuille, ii. 287; Heffter, § 78; part of the territory to which it be-
Bluntschli, § 317. longs when at home. It carries with
Mr. Webster, writing to Lord Ash- it the local legal rights and legal juris-
burton, August 8, 1842, says : " Every diction of such locality. All on board
merchant vessel on the seas is right- are endowed and subject accordingly."
Swayne, J., Wilson c. McNamee, 102
fully considered as part of the territory
to which it belongs. The entry, there- U. S. 572; S. P., Maclachlan, Merch.
fore, into such vesse4, being neutral, Ship., 3d ed., 64, 65, 140.
by a belligerent, is an act of force, and " If the decks of our whole shipping
is primafitcie a wrong, a trespass whichwere measured, it would be found that
can be justified only when done for many acres of England are continually
some purpose allowed to form a suffi- afloat; and of the whole area of Eng-
cient justification by the law of na- land, including the towns, these acres
tions." are unquestionably the most valuable,
Mr. Field, in his International Code,and probably the most populous. The
mere fact of their being afloat, so long
§ 309, states the rule as follows : " The
extra-territorial jurisdiction of a na- as they float, either on English waters
tion, exclusive or concurrent, extends or on the high seas, which are the
over the following places:- common property of all nations, can
" 1. All the land or water included obviously have no effect on their jural
within the lines of its fleets or armies,character. An English ship and its
exclusive in respect to its own mem- crew, in such circumstances, is as
bers, and concurrent with that of the much under the local jurisdiction of
nation owning the territory, in respect England as if it were lying in a Lon-
to members of that or of any other na- don dock." Lorimer, Law of Nations,
tion. 253.
" 2. All ships bearing its national 3 See to this effect De Cussy, i.
character, exclusive except in the case 147; Bluntschli, § 318.
271
%G
ship from the claim of any other nation than that to which
she belongs, follows from the very fact of the openness of the
sea to all legitimate visitors; and it is mischievous because
(1) it assumes that the sea may become territorial property;
and (2) it may lead, if it be admitted to its full extent, to
conflicts between vessels of different nationalities, when sail-
ing or anchored within cannon shot of each other; conflicts
not only as to their rights of navigation, but as to their rights
of fishing. 1-The prerogative of inviolability does not extend
to ships which, in a period of war, are fitted out in violation
of neutrality in a neutral port ;2 nor does it extend to vessels
which have committed depredations on shore, and which have
been pursued over the territorial limit ;3 nor, as we shall pre-
sently see, does it extend to pirates.
§ 189. Merchant vessels, however, are so far subject to the
law of the port that, if they commit any breach of
Exception.
as to terri- the port law, they are liable to the port authorities
wtra. and if a subject of the state to which the port be-
longs is unlawfully detained in one of such vessels,
a habeas corpus lies for his release, if the vessel is within the
territorial jurisdiction of the court issuing the writ.'-An
important distinction, however, is taken between misconduct
whose effects are confined to the vessel in which it takes
place, the parties concerned being all connected with the
vessel, and offences which disturb the peace of the port, or in
which one at least of the parties is not connected with the
vessel. The latter are subject to the law of the port; the
former not. 5 The exception has been extended to all terri-
torial waters ;1 and this is undoubtedly correct if the object
of the exception be to preclude foreign vessels within such
territorial waters from disturbing the peace of the shore, or
interfering with the revenue laws of the mainland.7 By
I This view is more fully illustrated 6 Wh. Con. of Laws, §§ 357, 817;
by Perels, § 6. see Phill., op. cit., i. 485 et seq.; Law-
2 Phill., op. cit., i. 481 ; Vattel, I. i. rence, iii. 435.
c. xix. s. 216. 6 Perels, § 13.
3 Heffter, § 80; Bluntschli, § 342. 7 See supra, § 186. The English law
4 1 Op. Atty.-Gen. U. S., 25, 55; as to territorial waters is discussed in
this is sustained by Sir R. Phillimore, 2 Steph. Hist. Cr. Law, ch. xvi.
op. cit., i. 482.
272
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [, 19 0.
treaties with China, Japan, and Turkey, these countries give
consuls of civilized states jurisdiction over the ships of such
states wherever such ships may be.'
§ 190. The sovereignty of the flag of foreign ships of war
is not only conceded in England, where the rule in
respect to merchant ships is sometimes contested, Ships of
but it is held to apply to port as well as at sea.
The rule, says Judge Story, in an opinion adopted by Sir R.
Phillimore,2 is not founded on any notion that a foreign sove-
reign has an absolute right, in virtue of his sovereignty, to
an exemption of his property from the local jurisdiction of
another sovereign when it comes within his territory ; for
that would be to give a 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
home 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 are implied only from the
general usage of nations, they 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 are other vessels." But, unless
withdrawn, it is presumed to be conceded. And it is now
settled that foreign ships of war and boats, the particular
property of a foreign sovereign, are not liable to process,
though the ships or boats be at the time of the cause of
action on the territorial waters of the state of process.3-A
state, it should be added, is internationally entitled to exclude
from its ports the ships of war of other nations, or to limit
their stay ; and this right has been exercised by neutral states
as to belligerent cruisers.4 When such a foreign ship is per-
ISupra, § 147. tended in such cases to packet boats,

2 Santissima Trinidad, 7 Wheat. the property of foreign sovereigns,
283, cited Phill., op. cit., 477; see The Parlement Beige, L. R. 4 P. D.
Hall, Int. Law, 164. 129 ; 5 P. D. 197 ; see The Pizarro, 10
3 A ship of war was held exempt N. Y. Leg. Ob. 97.
from admiralty process for salvage in 4 Twiss, i. § 158 ; Wheaton, i. 124;
The Constitution, L. R. 4 P. D. 39. Perels, § 14. As to invasion of neutral
Extra-territoriality was held to be ex- waters, see infra, § 239.
18 273
mitted to enter a port, it is totally exempt, while in such port,from

the operation of the police of the mainland. The qualified juris-
diction exerted by the territorial authorities over merchant ships
cannot be exerted over ships of war.' If there is misconduct on
the part of a foreign ship of war in a harbor, she can be ordered
out, and this without any breach of international courtesy. 2
Even the officers and marines of a foreign ship of war, when
permitted to visit the shore on service, have been held to be
exempted from territorial jurisdiction. But this applies only
to cases where the foreigners confine themselves to their duty
in the part of the territory they are permitted to visit. If
permission be refused, the exemption ceases. And they may
be punished, when this is necessary, under the laws of self-
defence.-From the position of the absolute extra-territori-
ality of ships of war, their right, at the discretion of their
commanders, to render an asylum to fugitives from the shore
logically flows; and this has been emphatically declared by
the British government in reference to fugitive slaves, whom
it has declined to surrender. The same view would be appli-
cable to political fugitives. But it would be a gross impro-
priety for the commander of a foreign ship of war in a harbor
to refuse to surrender an ordinary criminal, not a political
refugee, to the authorities of the shore. 4
§ 191. The congress of Vienna adopted a resolution to the
effect that the free use of the Rhine and its tributaries
Navigable
rivers should be given to all nations whose territory it at
should be .
open to all any point washes. The same rule was adopted in
nations. respect to the Danube by the Paris treaty of 1856,
and by the treaty of Berlin of 1878; and in South America
in respect to the La Plata. The better view is, that all navi-
gable rivers should be open without toll to ships of all nations,
subject to police control, and to such limitations, in times of
war, as are proper as war measures. When a river is entirely
I Phill., § 344 ; Sir W. Harcourt in Ortolan, i. 178. The authorities are

Times of Nov. 4, 1875 ; Twiss, i. § 158; carefully examined by Perels, § 14.
Heffter, § 79 ; Perels, § 14; Bluntschli, Perels, ut supra; Foelix, § 547.
§ 321. See authorities collected in Perels,
2 The absolute extra-territoriality of § 14, viii.
ships of war is also maintained by
274
in the territory of a particular state, then the public control
of the entire river and jurisdiction of offences committed on
it, belong properly to such state.' By the treaty of Versailles,
of 1783, by which the independence of the United States was
recognized, it was provided in article 8, that " the navigation
of the river Mississippi shall forever remain free and open to
the subjects of Great Britain, and the citizens of the United
States." But the United States having purchased Louisiana,
on April 30, 1803, from France, and Florida from Spain, on
February 22, 1819, acquired possession of the banks on both
sides of the Mississippi. and the treaty of Ghent, of December
24, 1814, no doubt for this reason, omitted all reference to the
rights of British subjects to the navigation of the river. Since
then the exclusive control of the river by the United States,
so far as concerns foreign states, has been conceded inter-
nationally ;2 though, subject to police supervision, and to the
right to impose pilotage and quarantine regulations, the free
navigation of this and of other navigable rivers within the
United States, is, by the law of nations accepted by the United
States, open to all ships of foreign sovereigns. The right freely
to navigate the St. Lawrence, was for many years the subject
of, controversy between Great Britain and the United States;
the United States insisting on the right of free passage over
this river, the lakes by which it is fed being in large part
bounded by the United States. This right, however,was resisted
by Great Britain. " It is difficult to deny," says Sir R. Philli-
more," "that Great Britain may have grounded her refusal upon
strict law; but it is at least equally difficult to deny, first,
that in so doing she put in force an extreme and hard law;
secondly, that her conduct with respect to the navigation of
the St. Lawrence was inconsistent with her conduct with
respect to the navigation of the Mississippi. On the ground
that she possessed a small tract of domain in which the
Mississippi took its rise, she insisted on her right to navi-
I On this topic Holtzendorff, ut supra, Du regime conventional des fleuves,

1223, cites Wurm, Briefe iiber die Frei- 1870. As to pilotage and wharfage,
heit der Flussschiffart, 1858 ; Caratheo- see infra, § 424.
dory, Du droit int. concernant les- 2 See Phill., op. cit., i. 242.
grands cours d'eau, 1861 ; Engelhard, Phill. Int. Law (3d ed.) 245.
275
gate the entire volume of its waters; on the ground that she
possessed both banks of the St. Lawrence where it disem-
bogued itself into the sea, she denied to the United States the
right to 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, were the pro-
perty of the United States." The question, however, was set-
tled with the withdrawal, in the reciprocity treaty of June 5,
1854, of the exclusive claims of Great Britain. This treaty,
it is true, ceased to exist on January 18, 1865, by action of
the government of the United States, in pursuance of a right
reserved in this treaty ; but the exclusive navigation of the
river has not since then been insisted on by Great Britain.'
I Lawrence's Wheaton, n. 114, p. was taken by Grotius (Lib. II. c. ii. §

361. 12), but the great weight of authority
As regulating rights to navigable since Vattel is that the state through
rivers, see treaties of the United States which a river flows is to be the sole
with Argentine Confederation, 10 U. judge of the right of foreigners to the
S. Stat. at L. 1005 ; with Mexico, ib. use of such river. Wheat. it. Law, i.
1031; with Bolivia, 12 ib. 1003; with 229 ; Vattel, I. i. s. 292.
Paraguay, ib. 1091. On the other hand, when the free
Mr. Field (International Code, § 55) navigation of a river is conceded, this
states the rule as follows :- carries with it the right to use the
' A nation, and its members, through shores so far as this is necessary to the
the territories of which runs a naviga- use of the river.-Phil., ut sup., i. 225;
ble river, have the right to navigate Wheat. Hist. of Law of Nat. 510.
the river to and from the high seas, Lord Stowell (Twee Gebreders, 3
even though passing through the terri- Rob. Adm. 336), speaking of a claim
tory of another nation, subject, how- to riparian use, said, "It is a claim
ever, to the right of the latter nation to which can only arise on portions of
make necessary or reasonable police the sea, or on rivers flowing through
regulations for its own peace and safety. different states ; the law of rivers flow-
Message of President Grant to the Con- ing through provinces of one state is
gress of the United States, December, perfectly clear. In the sea, out of the
1870 ; and treaties there cited." reach of cannon shot, universal use is
By the Roman law a free passage is presumed; in rivers flowing through
given to all parties over all navigable conterminous states, a common use of
rivers with the use of the shore (jus the different states is presumed. Yet,
littoris) for unloading cargo and an- in both of these, there may, by legal
choring vessels. (i. 1-5, Inst. ii. 1.) possibility, exist a peculiar property
A distinction, however, was taken be- excluding the universal or the common
tween the sea, which was " res com- use." For a recapitulation of treaties
munes" and navigable rivers, which regulating the use of navigable rivers
were " res publicae." The same view passing through several European
276
§ 192. An inland sea or lake belongs to the state in which

it is territorially situated. As illustrations may be Inland seas
mentioned the inland lakes whose entire body is territorial.
within the United States and the sea of Azov. Those por-
tions of the sea which are bounded by several European states
were at one time claimed to belong in common to the states
by which they are bounded ; but this claim is not now allowed.
The fact that both shores of an arm of the sea, as in the case
with Magellan's Straits, have, subsequent to its adoption as a
public highway, been under the possession of a single power,
does not change its public character. Nor, it is now finally
settled, can a strait which separates two or more countries
(e g., the British Channel or the Sound) be placed under their
joint control, so as to put other countries at a disadvantage.
A distinctive rule has been adopted in reference to the Dar-
danelles and the Bosphorus, which, even in times of peace,
are closed to the ships of war of all European nations, a
rule only deviated from in cases of peculiar courtesy. Since
1871, the merchant ships of all nations have equal rights on the
Black Sea.'-As inland seas may be enumerated the Thracian
Bosphorus, belonging to the Turkish empire, and Long Island
Sound. In the same category are to be placed the channels
forming the entrance to the Baltic, so long as both sides re-
mained under the sovereignty of Denmark. But although
sovereignty may be claimed over such straits so as to give
such police jurisdiction over offences committed on them as
heretofore existed,2 vessels navigating the high seas cannot
be precluded from passing through them. We are told, in-
deed, by Sir R. Phillimore that the British crown has an
states, see Phillimore, op. cit., 228 et the Black Sea is neutralized, and by a
seq. That nations which are separated subsequent convention Russia and Tur-
by a navigable river have each juris- key limited their naval force on the
diction to the middle of the stream, see Black Sea. By a treaty of March 13,
The Fame, 3 Mason, 147; supra, §§ 1871, it is provided that Ithe Black
22, 23. Sea remains open, as heretofore, to the
I Holtzendorff, ut supra, 1222, refer- mercantile marine of all nations." For
ring to Twiss's " Territorial Waters" in specification of treaties referring to
the Nautical Magazine, 1878; Stork, Turkey and the Black Sea, see Phill.,
Jurisdiktion in Kiistengewitssern. op. cit., 295 et seq.
Under the treaty of Paris of 1856, Supra, § 186.
277
exclusive right to the Bristol Channel between Ireland and

Great Britain, and to the channel between Scotland and
Ireland.1 But Perels, in the able work already referred to,2
says, after repeating this statement, that this supposed supre-
macy is incontested only among English publicists, and is
elsewhere denied. To the same general effect writes President
Woolsey.'-Great Britain, also, has " immemorially claimed
and exercised exclusive property and jurisdiction," says Sir
R. Phillimore, " over the bays or portions of the sea cut off
by lines drawn from one promontory to another, and called the
King's Chambers. . . . In time of war, at least, the Solent,
or the portion of the sea which flows between the Isle of Wight
and the mainland, might, I think, be justly asserted to belong,
as completely as the soil of the adjacent shores, to Great
Britain."' Chancellor Kent, in discussing the above questions,
maintains that, " considering the great extent of the line of
the American coast, we have a right to claim, for fiscal and
defensive regulations, a liberal extension of maritime jurisdic-
tion; and it would not be unreasonable," he further argues,
"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 Nan
tucket to Montauk Point, and from that point to the capes
of Delaware, and from the south cape of Florida to the Mis-
sissippi. . . . 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 ' the
chambers formed by headlands, or anywhere at sea within the
distance of four leagues, or from a right line from one head-
land to another.' " But this extension of maritime jurisdic-
tion " for domestic purposes connected with our safety and
welfare" over the " waters on our coasts," " though included
Op. cit., i. § 189. s On this question may be studied

2 Perels, § 5, p. 40. the arguments delivered in 1877 before
SInt. Law, § 56. the Halifax commissioners under the
4 Phill., ut sup., i. 285. treaty of Washington.
278
within lines stretching from quite distant headlands," is thus
commented on by Dr. Woolsey: "Such broad claims have
not, it is believed, been much urged, and they are out of
character for a nation that has ever asserted the freedorn of
doubtful waters, as well as contrary to the spirit of the more
recent times."' It would seem more proper to adopt the test
of cannon shot heretofore given, and that of capacity to
smuggle by ship's boats, as already stated ;2 and to say that a
nation should have such police jurisdiction as may be neces-
sary for the purpose of warding off attack from marauders
and smugglers, and for the purpose of precluding annoyance
to the shore from naval conflicts by belligerent cruisers. This
virtually coincides with the test of defensibility from the shore,
which would, in case of waters whose headlands belong to the
same sovereign, exclude all bays more than eighteen miles in
diameter, assuming the range of cannon-shot to be nine miles.
But this should be made to yield to usage. If a particular
nation has exercised dominion over a bay, and this has been
acquiesced in by other nations, then the bay is to be regarded
as belonging to such nation.'
X. RIHT OF SEARCH AND CONDEMNATION.
§ 194. The right of a war ship to compulsorily visit and

search a merchant ship may be viewed (1) as a Right of
right to be exercised in peace; (2) as a right to be search not
S.I . . to be con-
exercised in war. As a right to be exercised in ceded in
peace it cannot be conceded without placing the con- peace.
trol of the high seas in the hands of the state which has a pre-
ponderance of naval power. If the right can be exercised in
one case, it can be exercised in all cases, and the position that
the flag of a nation protects its shipping from intrusion would
be set at naught.4 There is no merchant ship, if this right be
conceded, that would not be liable to be stopped on the high
seas and subjected to the annoyance and damage of having its
papers searched by an armed cruiser; and not only would the
I Woolsey's Int. Law, § 56. Tel. Co., L. R. 2 Ap. Ca. 419, cited
2 Supra, §§ 186 et seq. Phill., op. cit., 290.
See arguments of Lord Blackburn 4 As to the policy of the United States
in Direct. U. S. Cable Co. v. Anglo-Am. in this respect, see infra, § 242.
279
commerce of states which do not maintain a large navy be at

the mercy of the power whose navy rules the seas, but innu-
merable provocations to war would be given. It is said that
this prerogative is essential to clear the seas of pirates. But
the prerogative is an impertinent intrusion on the privacy of
individuals as well as on the territory of the state whose do-
mains are thus invaded; and the evil of sustaining such a
prerogative is far greater than the evil of permitting a pirate
for a few hours to carry a simulated flag. Pirates, in the
present condition of the seas, have been very rarely arrested
when setting up this simulation. They are now, in the few
cases in which they appear, readily tracked by other means;
and the fact that in some instances they are caught when
carrying a false flag no more sustains the right of general
search of merchant shipping than would the fact that con-
spirators sometimes carry false papers justify the police in
seizing every business man whom they meet and searching his
correspondence. In the very rare cases in which an apparent
pirate is seized and searched on the high seas under a mistake,
the vessel being a merchant ship, the defence must be, not pre-
rogative, but necessity, only to be justified on the grounds on
which is justified an assault made on apparent, but unreal
cause.'-It may be added that basing the right to search a
vessel on the assumption of piracy is a petitio principii, equiva-
lent to saying that the vessel is to be searched because she is
a pirate, when it is for the purpose of determining whether she
is a pirate, that she is searched. The searching, as is the case
on issuing a search warrant in an ordinary criminal practice,
should be at the risk of the party searching, and only on
probable cause first shown; not for the purpose of inquiring
whether there is probable cause. 2-The right of British cruisers
to search a foreign vessel for British sailors was claimed by
the British government prior to the war of 1812 between
I See to this effect Gessner, 12th ed., tion is to be exercised at the risk of the
303; Kaltenborn, Seerecht, ii. p. 350; visiting cruiser as an extra-legal pre-
Wheaton, Right of Visitation, London, rogative. Ortolan, iii. 258.
1842; see to the contrary Phillimore 2 See infra, § 200. As to neutral
iii. pp. 147-8; Heffter, 164; Calvo, ii. rights, see infra, § 236.
p. 656. Ortolan holds that the fune-
280
Great Britain and the United States. The right was not
abandoned by Great Britain at Ghent, but it has never since
been exercised. It is now virtually surrendered.' "I cannot
think," says Sir R. Phillimore, " that the claim of Great
Britain was founded on international law. In my opinion it
was not."-The right to visit and search on certain conditions
has frequently, it should be added, been given by treaty, in
which case it is determined by the limitations imposed by the
contracting states.3-Independent of the right of search, a
ship, whether public or private, has a right to approach
another on the high seas, if it can, and to hail or speak it,
and require it to show its colors ; the approaching ship first
showing its own.4
I See correspondence between Lord There is now no question that this

Ashburton and Mr. Webster-Wheat. concession was as hasty as it was ill-
Hist. Int. Law, 737. judged; but if it be pressed as proof
2 Phill., op. cit. (1879), 445. of the abandonment of opposition to
8 See Specifications in Gessuer, 12th the right of search by the United
ed., 305; and see infra, § 242. States, the following replies may be
16
4 Ortolan, 1 g. Int. et Dip. de la- made:-
Mer, 233, etc., Field's Int. Code, § 62. (1) The treaty was the resilt of a
By the slave trade treaty of May 20, proposal made by Mr. Seward at the
1862, between the United States and height of the late civil war, shortly
Great Britain, the right of police search after the Trent complication, and,
for ten years was granted to Great being on its face limited to ten' years,
Britain over the whole coast of Cuba, may be regarded as part of a system of
to a distance of thirty leagues from provisional settlement with Great
shore. This concession made by Mr. Britain of the disputes arising from the
Seward probably without considering civil war. The very fact of its tempo-
the consequences, not only recognized rary character precludes it from being
a right of search in times of peace, but an authority after the period prescribed
extended this right to our own coast, by its own limitations.
the Keys of Florida being within thirty (2) After the period so designated
leagues from Point Yeacos or Mantan- has been reached, we fall back on an
zas. It appears from a letter of Mr. unbroken line of authorities to the
Perry, minister at Madrid (U. S. effect that the concession of this right
Diplom. Cor., 1862, p. 509), that the to Great Britain is incompatible with
Spanish minister expressed surprise our traditions and our interests.
that the United States, " after com- When Mr. Wilberforce, in 1818, sug-
bating the principle so long," " should gested such a concession to Mr. J. Q.
have yielded now a right so exceed- Adams, the answer was : "my coun-
ingly liable to be abused in practice;" trymen will never assent to such an
and this surprise may still be ex- arrangement." A convention to this
pressed elsewhere than in Spain. effect signed by Mr. Rush and Sir
281
195 b.] COMMENTARIES ON LAW. [CHAP. IV.
§ 195. What has just been said refers exclusively to the

Otherwise right of search during peace. The right, on the
as to belli- other hand, of a belligerent cruiser, in times of war,
rnwar. to visit and search neutral merchantmen for goods
contraband of war, is conceded on all sides, oppres-
sive as is this right to neutrals, and undue as is the advantage
it may give to the belligerent with superior naval power.'
195 b. The right must be regarded as limited as follows:-
(1) No neutral ship should be searched on its way
Search in between two neutral ports.
war.
(2) The right can only be exercised by a bellige-
rent while war is actually raging.
(3) It cannot be exercised within the territorial waters of a
neutral state.
(4) It must be exercised by the commanding officer 2 of the
Stratford Canning was amended by the to Cuba, and with hostile purposes."
United States Senate, so as to be inap- Priv. Cor., p. 477.
plicable to the American coasts, and 1 See Heffter, § 168; Bluntschli, S
was then rejected by England. General 819; Phillmore, iii. § 325 ; Perels, § 53.
Jackson, in 1834, through the then In the Trent case, the right of a belli-
secretary of state, informed Sir Charles gerent to arrest and remove from a
Vaughan, the English minister, that neutral ship diplomatic agents sent by
' the United States were resolved never the opposing belligerent to the state to
to be a party to any convention on this which the agents were sent, came into
subject." Mr. Webster, in a despatch question. See infra, § 228; suipra,
to General Cass, declared, in terms § 165.
the most solemn, that our government Mr. Hall sums up the duties of a
would not " concur in measures which, captor as follows (p. 652):-
for whatever benevolent purposes they (1) He must conduct his visit and
may be adopted, or with whatever capture with as much regard for per-
care or moderation they may be ex- sons and for the safety of property as
ercised, have a tendency to place the the necessities of the case may allow.
police of the seas in the hands of a (2) He must bring in the captured
single power." See Lawrence's Right property for adjudication, and use all
of Visitation and Search, 94-117; reasonable speed in doing so. " De-
Diplomatic Hist. of the War, 1884, pp. struction involves compensation." The
13, 52, 419. And Mr. Webster, when Zee Star, 4 Rob. Ad. 71 ; The Leucade,
secretary of state in 1851, said: "I Spinks, 217.
cannot bring myself to believe that (3) The captor, in bringing in the
those governments (England and vessel, must use due care, and is liable
France), or either of them, would dare for damages his want of care causes.
to search an American merchantman As to general policy in respect to
on the high seas, to ascertain whether search, see infra, §§ 242 et seq.
individuals may be on board bound
282
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [§ 195 b.
belligerent ship, and through the agency of an officer in uni-
form.'
(5) It must be based on probable cause; though the fact that
this cause turned out afterwards to be a mistake, does not of
itself make the arrest wrongful.
(6) Contraband goods cannot be seized and appropriated by
the captor. His duty is to take the vessel into a prize court,
by whom the question is to be determined.'
(7) Supposing the right exists, a belligerent cruiser is jus-
tified in enforcing it by all means in his power.4
(8) In case of violent resistance to a legitimate visitation,
the vessel so resisting may be open to condemnation by a
prize court as prize. But this is not the case with mere
attempt at flight. And there should be no condemnation of
a neutral vessel whose officers, having no reasonable ground to
believe in the existence of the war, resisted search.'
(9) The right of search, so it is held by the powers of con-
tinental Europe, is not to be extended to neutral ships sailing
under the convoy of a war ship of the same nation. This
view, however, has not been accepted by Great Britain.. But
in any view, the commanding officer of the convoy must give
assurance that the suspected vessel is of his nationality, under
his charge, and has no contraband articles on board7-The
English admiralty have gone so far as to hold that when a
I Lushington, Prize Law, § 25. visitation, when the commander of the

2 As to what constitutes probable convoy gives verbal assurance that the
cause, see Lushington's Prize Law, ship in question is a ship of his nation,
§ 94. and is not liable to search. Lushing-
3 As to what is contraband, see ton, Prize Law, Int., viii-., note ; Field's
ifra, §§ 226, 238, 240. Code of Int. Law, § 866.
4 See Holtzendorff, ut supra, 1254; Twiss (Law of Nations, Part II., §
Lawrence on Visitation and Search, 96) maintains it to be a clear maxim
1858. of law that " a neutral vessel is bound,
Phill., iii. §§ 3661f; Wildman, ii. in relation to her commerce, to submit
122; Field's Code Int. Law, § 871. to the belligerent right of search." It
6 Perels, § 56; Ortolan, ii. 272ff; is not competent, therefore, he insists,
see Gessner, 12th ed., 318. for a neutral merchant to exempt his
7 When a neutral merchant ship is vessel from the belligerent right of
under convoy of an armed public neu- search, by placing it under the convoy
tral ship, it is not subject, according of a neutral or enemy's man-of-war.
to the rule adopted in Italy, and in See Kent's Com., i. 154.
some cases recognized by treaty, to
283
195 b.] COMMENTARIES ON LAW. [CHAP. IV.
fleet of Swedish merchantmen was sailing under convoy of a

Swedish ship of war, and the convoying ship resisted, under
order of the Swedish government, search instituted by British
cruisers, this justified the condemnation of the whole fleet.
The resistance of the convoy, so it was held, was the resistance
of all the ships convoyed.' This doctrine has been sustained
by an opinion of the supreme court of the United States, so
far as it implies a right in a belligerent to search for contra-
band of war, but not for subjects or seamen. 2 -Itf a vessel is
captured without probable cause, damages may be had from
the captor.3
(10) The right to visit involves the right to detain for the
purpose of visitation. 4
(11) The falsification of papers by a merchant ship, searched
by a belligerent, gives strong ground for condemnation ;5
though this presumption may be overcome by proof of acci-
I The Maria, 1 Rob. Ad. 340; The 3. " Carrying papers which, in any
Elsabe, 4 Rob. Ad. 408. respect material to the question of con-
2 The Nereide, 9 Cranch, 388, 428 traband, are inconsistent with each
The Marianna Flora, 11 Wheat. 2. other, or with the declarations of the
s The Ostsee, 9 Moore, P. C. 150 master to the visiting officer.
The Maria, 11 Moore, P. C. 271; The 4. " Withholding from the visiting
Thompson, 3 Wall. 155; The Dashing officer any papers material to the char-
Wave, 5 Wall. 170. acter of the ship, contents, or voyage.
In Lushington's Prize Law, §§ 124- 5. " Spoliation of papers of any kind,
163, as adopted in Field's Code of that were on board the ship.
Int. Law, § 879, it is stated that a The commander of a visiting ship is
private ship may be detained by a bel- responsible in damages for the wrong-
ligerent on the following grounds of ful acts of all under his command,
suspicion, if not explained to the satis- whether he himself be present or ab-
faction of the commander:- sent, when they are committed. He is
1. Carrying no passport or proper not exonerated by being under a supe-
license. rior officer, unless the latter was actu-
2. " Carrying any false or simulated ally present and co-operating, or issued
passport or other papers affecting the express orders to do the act in ques-
character of the ship, contents, or voy- tion." Field's Code Int. Law, § 8SS,
age, such as certificate of registry, sea citing Lushington's Naval Prize Law,
letter, charter-party, logs, builder's S7; The Mentor, 1 Rob. Ad. 179; The
contract, bill of sale, bills of lading, Diligentia, 1 Dodson, 404; The Acteon,
invoices, manifest, clearance, muster- 2 id. 48; The Eleanor, 2 Wheaton, 345.
roll, shipping articles, bill of health, 4 Lushington, Prize Law, § 53.
etc. 5 The Hunter, 1 Dods. 480.

284
dent or sudden terror. And even throwing papers overboard
is open to explanation, and, without other proof, does not
conclusively show that the cargo was enemy's property.
The Pizarro, 2 Wheat. 227. require it to lie to, but the moment
1 Kent's Com., 158, Holmes's Note, the mistake is discovered, all pro-
citing The Ella Warley, Blatch. Pr. ceedings must cease. (Q§ 54, 195.)
204, and other cases in same volume; In the third place, the right of search
The Johanna Emilie, Spink's Prize C. must be exerted in such a way as to
12. And see remarks by Mansfield, C. attain its object, and nothing more.
J., in Bernardi v. Motteux, Dougl. 581. Any injury done to the neutral vessel
"The right of search," according to or to its cargo, any oppressive or in-
Dr. Woolsey (Int. Law, § 190), "is sulting conduct during the search,
by its nature confined within narrow may be good ground for a suit in the
limits, for it is merely a method of court to which the cruiser is amenable,
ascertaining that certain specific viola- or even for interference on the part of
tions of right are not taking place, and the neutral state to which the vessel
would otherwise be a great violation belongs."
itself of the freedom of passage on the Mr. Seward, in his letter to Lord
common pathway of nations. In the Lyons of December 26, 1861 (on the
first place, it is only a war right. The Trent case), says: " Whatever dis-
single exception to this is spoken of in putes have existed concerning a right
§ 194, viz., that a nation may lawfully of visitation or search in times of peace,
send a cruiser in pursuit of a vessel none, it is supposed, has existed in
which has left its port under suspicion modern times about the right of a bel-
of having committed a fraud upon its ligerent in time of war to capture con-
revenue laws, or some other crime. traband in neutral and even friendly
This is merely the continuation of a merchant vessels, and of the right of
pursuit beyond the limits of maritime visitation and search, in order to de-
jurisdiction with the examination con- termine whether they are neutral and
ducted outside of these bounds, which, are documented as such according to
but for the flight of the ship, might the law of nations."
have been conducted within. In the According to Mr. Field:-
second place, it is applicable to mer- " No ship is subject to visitation by
chant ships alone. Vessels of war, a ship of another nation, except in the
pertaining to the neutral, are exempt following cases
from its exercise, both because they "1. A private or other unarmed ship
are not wont to convey goods, and be- within the territorial limits of the na-
cause they are, as a part of the power tion by whose public ship the visitation
of the state, entitled to confidence and is made;
respect. If a neutral state allowed or " 2. On the high seas, in the cases
required its armed vessels to engage in provided in the next article.
an unlawful trade, the remedy would " Ortolan, above cited; Fiore, Nouv.
have to be applied to the state itself. Dr. Int., vol. ii. p. 489, etc. See Law-
To all this we must add that a vessel rence's Wheaton, pt. iv. ch. iii. § 18.
in ignorance of the public character of " The territorial limits would be ex-
another, for instance, suspecting it to tended by article 28 to three marine
be a piratical ship, may without guilt leagues; and it does not seem necessary
285
196. When a vessel is seized as a prize the following rules

should be observed :-
(1) Peculiar care should be taken of ship and cargo, and the
Vessel ship's papers placed in custody so that they may
seized not be tampered with. They should be placed under
should be
taken to seal, being first attested by the signature of the
prize court. Z)Z
proper officer of the captured ship.'
(2) An officer, with a suitable crew, should be detached and
placed in command of the prize, to be taken to a home or other
friendly port.
(3) When in port perishable goods may be at once sold; and
so of a prize ship incapable of repair, the proceeds to await the
determination of the suit.
(4) The destruction of the prize ship is only permitted when
she could not be brought to port without great danger, or
when by retaining the prize the safety of the captor would be
imperilled. 2
(5) Unless otherwise provided by treaty, the proper court to
determine the validity of a capture is a prize court appointed
to recognize the right of pursuit beyond " The presence of the convoying ship
that distance. is a sufficient assurance of nationality,
" The effect of these rules would be Wildman, Int. Law, vol. ii. p. 121.
to require ships to show their true Perhaps this should be extended to
colors at sea, and to allow armed ships armed ships; and if so, the clause as
to visit in case of a breach of this rule, to convoy should be omitted." Field's
confining the visitation, however, to Code of Int. Law, §§ 64-65.
the purpose of ascertaining the charac- 1 The captor must send in as wit-
ter of the offender, and his identity. nesses to the prize court such persons
See the subject discussed in Ortolan, from the captured vessel as may ex-
R6gles Int. et Dipl. de la Mer, vol. i. plain the case most fully. See Act of
p. 233, etc. Congress of June 30, 1864, § 1 ; Field's
"Visitation in time of war is pro- Code Int. Law, § 878.- It is the duty of
vided for in book second. the captors, immediately upon arrival
" If a private or other armed ship. in port, to deliver, upon oath, all the
being upon the high seas, not under papers of the captured vessel into the
convoy of an armed ship of its nation, registry of the prize court. The Diana,
does not show its colors in response to 2 Gall. 93; see Jecker -. Montgomery,
an armed ship of another nation duly 13 How, 498; S. C., 18 How. 111 ; The
requiring it, or if there be probable Sir William Peel, 5 Wallace, 517; The
cause for believing that it shows false Falcon, Bl. Pr. Ca. 52.
colors with intent to mislead an armed 2 Perels, § 157 ; Lushington, Prize
ship of another nation, it may be com- Law, §§ 90, 96.

pelled to submit to visitation.
286
CHIAP. IV.] PUBLIC INTERNATIONAL LAW. [ 196.
by the captor's state; and the establishment of international
prize courts, though very desirable, can only be effected by
treaty,and would probably be altended by many complications.
(6) Prize courts of neutral states may adjudicate prize ques-
tions brought before them, provided the same rights be given
to each belligerent.1
(7) The proceedings are to be in conformity with the prac-
tice of the court of trial, but in subordination to the settled
2
rules in this respect of international law.
(8) The taking to the prize court should be prompt, though
a bonafide delay in this respect, caused by the peculiar con-
ditions of the case, does not expose the captor to liability as a
trespasser.3
(9) The prize court must be the court of the sovereign of
the captor sitting in his territory or in the territory of his
ally. " The prize court of an ally cannot condemn. Prize or
no prize is a question belonging exclusively to the courts of
the country of the captor." 4 But a prize court may take juris-
diction over prizes lying in a neutral port,5 and of property
captured on a vessel although such vessel was not brought
under its cognizance.'
I Orlotan, ii. p. 309; Perels, § 58. see Jecker -. Montgomery, 13 How.

9 Perels, § 59 : That captures at sea 498 ; The Arabella, 2 Gall. 368.
belong primarily to the sovereign, and Vessels engaged in the fisheries are,
the proceeds are to be distributed, after by international law, according to the
due condemnation by a prize court, preponderance of opinion, exempt
according to the laws imposed by such from capture. See Martin's Precis,
sovereign, see The Banda Booty, L. R. § 322.
1 Ad. & Ec. 109; The Siren, 7 Wall. 0 The Advocate, Blatch. Pr. Ca. 142,
152, and other cases cited ; 1 Kent's and other cases in same volume.
Com. (Holmes's Note), 102. The legislation of the United States
3 Jecier c. Montgomery, 18 How. in reference to prizes is to be found in
111 ; Fay c. Montgomery, 1 Curtis, the following statutes:-
266. 1. Act in respect to right of salvage
4 1 Kent's Com. 104, citing Havelock in case of reprisals, March 3, 1800.
v. Rockwood, 8 T. R. 268; Oddy v. 2. Supplementary act of Jan. 27,
Borill, 2 East, 475 ; Glass v. Sloop 1813.
Betsey, 3 Dallas, 6. 3. Act simplifying process of seizure,
6 The Herstelder, 1 Rob. Ad. 114; March 25, 1862.
Hudson v. Guestier, 4 Cranch, 293; 4. Sections 2, 6, and 12 of the act
Williams v. Armroyd, 7 Cranch, 423;
287
§ 197.1 COMMENTARIES ON LAW. [CHAP. IV.
§ 197. Judges of prize courts should remember that, though

Prize courts appointed by the sovereign by whose officers the
should be capture was made, their duties are those of arbiters
atritl ain of international issues, as to which their minds
keep full should be kept clear of the influence of national
records.
interest. Aside from this prejudice, the natural
tendency of judges to extend their jurisdiction tempts prize
judges to add new links to the chain of precedents by which
the rights of belligerents, as distinguished from those bf neu-
trals, are maintained. Such temptations should be rigorously
repelled. It should be considered that the costs and delays,
in a practice moulded by belligerents in their conflicts with
neutrals, are so ruinous that it in most cases would have
been better for the neutral had his goods been captured and
appropriated without condemnation, than that they should
be condemned and then appropriated.' And it should be
chiefly kept in mind that it is agreed by all civilized nations
that it is the duty of a prize judge to follow, not the policy
which may seem for the moment best for his country, but the
of July 17, 1862, in reference to the United States is referred to as the court
U. S. Navy. of the third instance, and at the same
5. Act regulating prize procedure, time as the court of the last resort.
March 3, 1863. Mr. Seward, in his letter to Lord
6. Act regulating prize procedure Lyons, of Dec. 26, 1861, agreeing to
and distribution, 1864. the surrender of Messrs. Mason and
This legislation is classified and Slidell, accepts as binding the follow-
translated in the report of M. Bul- ing passage from a letter of Mr. Madi-
merincq on Maritime Prizes, Ghent, son, when secretary of state, to Mr.
1880. Monroe, minister in England: "When-
In the United States it is settled ever property found in a neutral vessel
that there is to be no recognition of the is supposed to be liable on any ground
jurisdiction of neutral ports in prize to capture and condemnation, the rule
cases. See Kaltenborn Seerecht, ii. in all cases is, that the question shall
389, in which work the jurisdiction and not be decided by the captor, but be
procedure of the prize courts of the carried before a legal tribunal, where
United States are detailed with gene- a regular trial may be had, and where
ral accuracy. The district court is in the captor himself is liable to damages
this work spoken of as the court of the for an abuse of his power."
first instance, the circuit court as the I See this strongly set forth by Holt-
court of the second instance. In a zendorff, ut supra, 1255, citing Deane
learned disquisition on the same topic on Neutrals, 1852; Katchinowski,
by Martitz, under the title of " Prisen- Prize Law, 1866; Barboux, Jurispru-
gerichte," the supreme court of the dence du conseil des prizes, 1868.
288
law which such civilized nations have adopted as a system by
which they are all to be bound. 1-A judgment of a prize
court sustaining the validity of a capture must contain or be
accompanied by a statement of the grounds on which it is
founded. 2
XI. PIRACY AND PRIVATEERING.
§ 200. Piracy is agreed on all sides to be an offence by the

law of nations, though as to what piracy is all states
resort to their own particular law to determine. It Piracy an
offence by
is generally understood, however, that the term the law of
nations.
covers all robbery, or attempts at robbery, or other
I Mr. Wheaton, after noticing Lord such sentence is not evidence of mere
Stowell's claim to absolute superiority inferences of fact that may be drawn
from national prejudice, argues that from it, when such facts could and
it was impossible for that eminent should be distinctly stated. Fisher v..
judge to divest himself of principles Ogle, 1 Camp. 418.
necessary to the development of a great That the courts of a neutral nation
maritime nation such as England. have no jurisdiction to decide a prize
(Wheat. Hist. 711.) On the other question as between belligerents, see
hand, Chancellor Kent (1 Com. 8) de- McDonough v. Dannery, 3 Dal. 188;
clares that " there is scarcely a decision Findlay v. The William, 1 Pet. Ad.
in the English prize courts at West- 12; Moxon u. The Fanny, 2 Pet. Ad.
minster, on any general question of 309. That the jurisdiction of the cap-
public right, that has not received the turing power is exclusive, see The
express approbation and sanction of Estrella, 4 Wheat. 29.8; though a neu-
our national courts." tral power to whose ports a prize is
As an instance of undue extension brought may inquire whether its own
of jurisdiction in the United States, neutrality has been violated by the
see the Springbok case, elsewhere criti- captor (The Estrella, 4 Wheat. 298;
cized. Infra, § 233. The Gran Para, 7 Wheat. 471). But
Field's Code Int. Law, §898, citing prize courts have no jurisdiction of
Treaty between France and Peru, captures on land by land forces (U. S.
March 9, 1861, Art. xxv., 8 De Clereq, v. Bales of Cotton, 25 Law Rep. 451);
201. It has been ruled that the sen- nor even when the capture is made by
tence of a prize court condemning a naval officers on shore (Six Hundred
vessel is not conclusive as to any mat- and Eighty Pieces of Merchandise, 2
ter of fact which was the ground of Sprague, 233; Alexander's Cotton, 2
condemnation, unless that matter of Wall. 404) ; otherwise, it is said, as to
fact be clearly and certainly stated in goods taken by officers of a public ves-
the judgment as a ground of condemna- sel from a warehouse on the shore of a
tion. Ibid. ; Hobbs r. Henning, 17 C. captured port (103 Casks of Rice,
B. N. S. 791 ; 11 Jurist, N. S. 223; Blatch. P. C. 211); and so of goods
Christie v. Secretan, 8 T. R. 192; Bol- thrown overboard by the enemy at sea
ton v. Gladstone, 5 East, 155. And (The Victory, 2 Sprague, 226).
19 289
§ 200.] COMMENTARIES ON LAW. [CHAP. 1V.
forcible plunder, by marauders on the high seas, animofurandi,

and all murders by the same; accessories, as well as princi-
pals, being comprehended within the definition.' To piracy
the doctrine of asportation applies, and if property seized in
port be carried away on the high seas, animo furandi, this is
piracy. 2-The questions of the right to compel a vessel to hoist
her flag, and that of the right of search, are elsewhere distinc-
tively considered.3 The right of a man-of-war to compel a
ship, over whom any suspicion hangs, to hoist her flag, and,
in case of such suspicion continuing and appearing to be
well grounded, to search the ship's papers, has been held to
be a necessary consequence of the right to seize pirates. But
this, as has been seen, is an extra-legal prerogative to be exer-
cised at the risk of the ship making the search. 4
I See more fully, Whart. Crim. Law, "marauders," which seems necessary
8th ed., §§ 1860 et seq.; and as to ju- to distinguish piracy from revolt.
risdiction, Whart. Conf. of L., §§ 815, Sir T. Twiss goes still further : " The
842; infra, § 350. As to piracy, under maintenance of the peace of the sea is
the Federal constitution, see infra, § one of the objects of that common law
452. (of nations), and all offences against
Judge Story, in U. S. v. Smith, 5 the peace of the sea are offences against
Wheat. 153, says, " Whatever may be the law of nations, and of which all
the diversity of definitions in other nations may take cognizance." Twiss,
respects, all writers concur in holding i. § 170. This is quoted without dis-
that robbery or forcible depredations approval by Perels, § 12; but it can-
upon the sea, amino furandi, is piracy." not be sustained. If " maintenance of
But we have to resort to the common the peace of the sea" is to be inter-
law to determine what " robbery" is, preted in the same way as we would
and so, in a measure, to determine the interpret " maintenance of the peace
meaning of " forcible depredations," of the land," this would give to
which, I suppose, would include par- every ship the right to visit and ar-
tially executed attempts. In the At- rest every other ship whose conduct is
torney-General v. Kwok-a-Sing, L. R. disorderly, which would be productive
5 P. C. 179, the offence was defined as of endless conflicts and oppressions.
"robbery within the jurisdiction of the 2 Magellan Pirates, 1 Spink Ecc. &
admiralty." But Dr. Lushington, in Ad. 81, cited at large, Phill., op. cit.,
the case of the Magellan Pirates, 1 i. 500.
Spink Ec. & Ad. 81, introduces a new s Supra, §§ 194 et seq.
term: " Piratical acts," he tells us, 4 Supra, § 194 ; see Perels, 5 12;
" are robbery and murder upon the high Renault, Revue de Droit Int. xii. 251;
seas." Murder, not animofurandi,would Orlotan, ii. 258 ; Gessner, 12th ed.,
be piracy by Dr. Lushington, but not 303. That probable cause is in such
by Judge Story. No one of these au- case an excuse for seizure, see The
thorities introduces the qualification of Palmyra, 12 Wheat. 1.
290
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [g 201.
§ 201. A privateer is a vessel armed by private subjects of
a belligerent state, sailing under permissive letters Privateers
from the proper authorities of such state, authoriz- notpirates.
ing it to attack vessels belonging to the other belli-
gerent. Such vessels are not per se piratical,' " Even if they
exceed," says Sir R. Phillimore, " the limits of their commis-
sion and commit unwarrantable acts of violence, if no piratical
intention can be proved against them, they are responsible to
and punishable by the state alone from which their commis-
sion was issued.2 It would be difficult,," he adds, " to main-
tain that the character of piracy has been stamped upon such
a vessel by the decision of international law."' Chancellor
Kent speaks emphatically to the same effect, declaring that
" the weight of authority undoubtedly is, that non-cominis-
sioned officers of a belligerent vessel may at all times capture
hostile ships, without being deemed by the law of nations
pirates." It is the settled law of the United States, he states,
".that all captures made by non-commissioned captors are made
for the government."' By the principles of international law,
the employment by a belligerent of a navy of privateers is as
legitimate in marine warfare as is the employment of armed
volunteers and partisans in land warfare;' and a state when
at war has as much a right to commission privateers at sea as
it has to commission militia on land.' It is true that priva-
teers appropriate their booty to themselves, which is not the
case with bodies of volunteers accepted as a part of a military
force on land.7 But on the other hand, those manning ships
of war are entitled to a large share of prize money; and
privateers may, by their commissions, be placed under the
same limitations as ships of war. And in any view, this
argument against privateering would be met by putting priva-
I See Mr. W. B. Lawrence's sum- seph, 1 Gall. 545. On the other hand,
mary in North American Review, July, Mr. Field's proposed code, § 741,
1878, p. 21; Whart. Crim. Law, 8th would prohibit privateering.
ed., § 1864. 6 See § 221.
2 Phill., op. cit., i. 503. 6 See to this effect Ortolan, ii. 58:
3 Phill., op. cit., 504; and he cites to Perels, § 30.
this effect, Ortolan, pp. 260-1. " Bluntschli, Seebeuterecht, 87, 88;
4 Kent's Com., i. 96; citing The Dos Caumont, p. 703; see Bluntschli,
Hermanos, 10 Wheat. 306; The Jo- V1k. Recht, 3d ed., pref. 46, § 669.
291
§ 201.] COMMENTARIES ON LAW. [CH AP. IV.
teers on the same footing as to prize money with ships of

war. This difficulty being removed, and privateers being sub-
jected to naval control, it is hard to see what greater objec-
tions exist to the commissioning of the commanders of priva-
teers than to the issuing of commissions to particular officers
to raise troops for local defence. In this way, in fact, as is re-
marked by Perels, an author of eminence already cited, the
necessity of large navies is avoided, as a sovereign with a
mercantile marine can readily, by issuing privateering com-
missions, so harass his enemy's commerce as to equalize the
conflict with such enemy though possessing a far superior
naval force. The retention of resources which would punish
an assailant is one of the best ways of preventing an assault.
The United States government having elected, wisely or
unwisely, not to maintain a large navy, can only keep its
position on the high seas by holding in reserve the right
to commission privateers when necessary.' But it is the
better view that the vessel of a neutral state cannot set up
as a protection a commission for a belligerent;2 and it has
been held in this country, that it is a breach of our neutrality
system for the subject of a neutral state to contribute to
fit out or man a foreign belligerent ship. 3-At the peace
I This is strongly put by Perels. manded by private persons, but acting
2 See Perels, § 34, p. 187; Wheaton, under rules from the supreme author-
His. 2, 379. ity, rather than to one raised and acting
3 Henfield's Case, Whart. St. Tr. 49; without license, which would resemble
Guinet's Case, ib. 93; Villato's Case, a privateer without commission. The
ib. 185; Williams's Case, ib. 652. commission, on both elements, alone
In the president's message of De- gives a right to the thing captured,
cember 4, 1854, the position is taken and insures good treatment from the
that the right to commission privateers enemy. ' " The right," he adds, " to
is the only means by which vessels employ this kind of extraordinary na-
with comparatively small navies can val force is unquestioned. Nor is it at
be able to maintain themselves against all against the usage of nations in
great maritime powers. times past to grant commissions to pri-
According to Dr. Woolsey (Int. Law, vateers owned by aliens."
§ 121) " a private armed citizen or pri- Mr. Jefferson, in a letter dated July
vateer is a vessel owned and officered 4, 1812, vindicating privateering, says;
by private persons, but acting under " Were the spoils less rigidly exacted
a commission from the state usually by a seventy-four-gun ship than by a
called letters of marque. It answers to privateer of four guns; and were not
a company on land raised and com- all equally condemned ? . . . In
292
CHAP. IV. 1 PUBLIC INTERNATIONAL LAW. [§ 201.
of Paris, on the close of the Crimean war, an agreement was
reached by the parties there represented, pronouncing priva-
the United States every possible en- Revolutionary war, volunteer local
couragement should be given to priva- troops, in periods of great emergency,
teering in time of war with a commer- frequently took the field, and were
cial nation. We have tens of thousands recognized as belligerents, though
of seamen that without it would be without commission from the sovereign.
destitute of means of support, and " Privateers" falling under the head
useless to their country. Our national of No. (4), however, must be regarded
ships are too few in number to give em- as mere adventurers in search of
ployment to a twentieth part of them, plunder, and the recognition of such
or retaliate the acts of the enemy." as belligerents, if not prohibited by the
Coggeshall's American Privateers (N. law of nations, is prohibited by the
Y. 1856), in which work is given an distinctive laws of the United States.
interesting exposition of the privateer- This distinction is taken by Mr. But-
ing service of the United States in the ler-Johnstone in his Handbook of Mari-
war of 1812. time Rights (London, 1876), 12.
It must be recollected that under the By Swift, a privateer is defined to be
general term " privateers" are enume- an armed vessel, belonging to one or
rated the following - more private individuals, licensed by
(1) Naval officers taking charge of government to take prizes from an
merchant vessels and cruising under enemy.
the direction of their sovereign in time In Wilhelm's Military Dictionary,
of war. (2) Officers of merchant vessels, (Phil. 1881), the name " Partisan" is
subjects of a belligerent state, cruising stated to be given to " small corps de-
under commission from their sovereign tachedfrom the main body of an army, and
in time of war. (3) Volunteer officers acting independently against the enemy.
of merchant vessels, cruising against In partisan warfaremuch liberty is allowed
the enemy of their sovereign, but with- to partisans." But if so in military, why
out any commission from their sover- not in naval warfare? The objection
eign. (41 Subjects of neutral states is to the plunder of private property on
taking out, for the purpose of preying the high seas, against which the
on the commerce of one belligerent, United States have always remon-
commissions for this purpose from the strated, not to the particular agency
other belligerent. employed.
Of these Nos. (1) and (2) do not In McCulloch's Commercial Dic-
technically fall under the head of tionary, London,. 1882, privateers are
" privateers" according to the position defined to be " ships of war fitted out
taken by the British government in by private individuals to annoy and
1870, as stated in the text. If so, it is plunder the enemy. But before com-
hard to see how officers of merchant mencing their operations, it is indispensable
ships, volunteering as cruisers for that they obtain letters of marque and
their sovereign, can be regarded as pi- reprisalfrom the government whose subjects
rates by the law of nations. In the they are, authorizing them to commit hostili-
final uprising against Napoleon in Ger- ties, and that they conform strictly to the
many numberless parties of such vol- rules laid down Jbr the regulation of their
unteers took part; and in our own conduct. All private individuals attack-
293
§201.] COMMENTARIES ON LAW. [CHAP. IV.
teering to be piracy. During the American civil war, when

much injury was done to United States shipping by southern
privateers, Mr. Seward proposed to accede to the Paris decla-
ration, but this was objected to by England and France, who,
by this course, virtually cancelled any pretension on their
part to treat privateering as piracy by the law of nations.
The United States government subsequently withdrew its
offer to accede to the treaty of Paris in this respect, though
it took at the same time the position that it would consent
to the abolition of privateering if coupled with the recogni-
tion of the position that private property of an enemy, not
contraband of war, is not open to capture at sea.'-But be
this as it may, the objections urged to privateering are ob-
viated, as we have seen, by putting privateers under naval
control, and placing their rights to prize money under the
direction of prize courts. When thus limited, there are many
reasons why there should be, at present, no international pro-
hibitions of privateering. It is not desirable that the control
of the sea should be secured by sovereigns who adopt the un-
wise and exhaustive policy of keeping up enormous permanent
navies. To such a monopoly there is even a greater objection
than there is to giving a particular great corporation (e.g., the
East India Company) the monopoly of a particular trade.
The monopoly of such a corporation is not necessarily im-
moral, and has no extraterritorial effects. But the monopoly
ing others at sea, unless empowered by That the belligerent privateers were
letters of marque, are to be considered not pirates, see argument of Harlan, J.,
pirates." in Ford u. Surget, 97 U. S. 619; citing
At the close of the late civil war the Dole ,. Ins. Co., 6 Allen, 373; Plant-
United States government declined to er's Bank v. Union Bank, 16 Wall.
prosecute for piracy the officers of Con- 483; Dole v. Ins. Co., 2 Cliff. 394; Fi-
federate privateers, on the ground that field v. Ins. Co., 47 Penn. St. 166; and
to do so would be to countenance the other cases. And see Bulloch's Secret
position that privateering was piracy Service of the Confederate States in
by the law of nations. See letters of Europe, cited above.
Mr. Bolles, solicitor of the navy, in That one nation cannot, without vio-
the Atlantic Monthly for July and lating the law of nations, send out
August, 1872. These articles are dis- privateers from neutral ports, see Tal-
cussed in Sir A. Cockburn's review of bot v. Jansen, 3 Dal. 133; Moodie
the Geneva Arbitration, and in Mr. The Betty, 3 Dal. 288, note.
Bulloch's work on the Secret Service 1 Spain and Mexico were not parties
of the Confederate States (New York, to the peace of Paris.
1880), vol. ii. pp. 116 et seq.
294
of naval power on the seas can only be secured by oppressive
and exhaustive taxation, and when it is secured, it dominates
the world. Were the claims of the great naval powers to
seize private property on the high seas abandoned, this mono-
poly would be less prejudicial. But, directed as it is to the
appropriation of such spoils, it is virtually, if conceded, a
monopoly to powers of a particular class, to seize whatever is
afloat on the waters which their prize courts may condemn.
The suppression of privateering, therefore, is not called for in
the interests of peace. Such suppression would only add
another stimulus to the increase of naval armaments already
bearing so oppressively on the old world; and the effect would
be to force on this continent a competition in the ruinous
race for naval supremacy in which at present the maritime
powers of Europe are engaged. And it should' also be ob-
served that a privateer navy is the militia of the seas, consist-
ent as is the militia of the land with industrial pursuits,
adding to the wealth and comfort of the community when
war does not exist. When the calamity of war does come,
then there will be enough shipping and sailors disengaged
from their prior employments to man such militia fleets. It
is no doubt a choice of evils. But as long as the seizure of
belligerent private property on the high seas is countenanced
by the European marine powers, so long it is better for the
United States to hold the right to turn their merchant service
into naval service in case of war, than for them to overburden
the country by an enormous navy in times of peace. It is
also to be observed that if the restrictions above proposed be
adopted, it is hard to see in what respect privateering would
differ from the system of volunteer naval war adopted by
Prussia in the Franco-German war of 1870. "She invited
ship-owners to lend their ships for the war for a remuneration.
The crews were to be hired by the owners, but were 'to enter
the Federal navy for the continuance of the war, wear its
uniform, acknowledge its competency, and take oath to the
articles of war.' In case these ships destroyed or captured
ships of the enemy, certain premiums were to be paid to the
owners for distribution among the crews. The French govern-
Inent complained to Lord Granville about this decree, alleg-
ing that it was under a disguised form the re-establishment
295
' 201.] COMMENTARIES ON LAW. [CHAP. IV.
of privateering; but Lord Granville, after consulting the then

law officers, Sir Travers Twiss, Sir R. Collier, and Sir John
Coleridge, replied: They advise me that there are, in their
opinion, substantial differences between the proposed naval
volunteer force sanctioned by the Prussian government, and
the system of privateering which, under the designation of
"Ila course," the declaration of Paris was intended to suppress,
and that her majesty's government cannot object to the decree
of the Prussian government as infringing the declaration of
Paris."' To the same effect is the opinion of Bluntschli.
" Nothing," declares that eminent publicist, "prevents a state
from forming a body of volunteers to be employed as a part of
the auxiliary force of its army; so a maritime nation may,
with entire propriety, reinforce its fleet by adding vessels pre-
viously employed in commerce. An appeal may even be made
to all the forces of the nation-to a sort of naval Landsturm-
to combat the enemy."'
I Mr. Lawrence in North Amer. Rev. when the president (Mr. Pierce), on
for July, 1878, p. 32; citing Solicitors' July 14, 1856, declined to accede to
Journal, vol. xxii. p. 523. See, also, these propositions, Mr. Marcy, then
Twiss, Duties in Time of War, p. 423. secretary of state, said that the United
2 Revue de Droit Int., vol. ix. p. 552. States were willing to accept the aboli-
It is stated that the late " Confederate tion of privateering " with an amend-
government," owing "to the disabili- ment which should exempt the private
ties to which their privateeis were ex- property of individuals, though belong-
posed in foreign ports," discontinued ing to belligerent states, from seizure, or
privateering, and its cruisers " claimed confiscation by national vessels in mari-
the right of public ships-of-war, and time war." This, however, was not
were commanded by officers commis- acceded to by England, and the propo-
sioned by the Confederate state." sition, in Mr. Buchanan's administra-
North Amer. Rev., ut supra, p. 31. tion, was withdrawn. Since then,
Mr. Seward's circular of April 24, however, things have changed. " Eu-
1861, proposing to abolish privateer- rope seems once more on the verge of
ing, shows on its face that the propo- quite general wars. On the other
sition was a mere temporary expedient hand, a portion of the American people
induced by the exigencies of the civil have raised the standard of insurrec-
war. He recites the propositions of tion, and proclaimed a provisional
the Paris congress, (1) that privateer- government, and, through their or-
ing be abolished; (2) that neutral gans, have taken the bad resolution to
flags should cover enemy's goods; (3) invite privateers to prey upon the
that neutral goods should not be liable peaceful commerce of the United States.
to capture under enemy's flag; and Prudence and humanity combine in persuad-
(4) that blockades must be effective. ing the president, under the circumstances,
He then calls attention to the fact that that it is wise to secure the lesser good
296
XII. PACIFIC REMEDIES FOR WRONGS.
§ 203. Not every international quarrel is ground for a

formal application for redress. One sovereign, for Interna
instance, may treat another with supercilious con- tional
wrongs
tempt; but if so, unless there is something to sus- must be
delicts by
tain a demand for an apology, the only remedy is the law of
suspension of intercourse. Nor can one nation com- nations.
plain internationally because it is distanced in the race for
international eminence by another; nor because its products
have lost a market by the legislation of such other nation.
The wrongs for which international redress can be had must be
intentionally committed or attempted by force against the dig-
nity of the offended state, or against the property or persons
of its subjects. They must be delicts by the law of nations.
§ 204. If the question is dependent on a treaty, it is easily
settled. Where a treaty says that neither party Extent of
shall permit the coaling of steamers of a power such de-
licts still
at war with the other party, then such coaling at undeter-
the ports of the neutral, if negligent or malicious, mined.
offered by the Paris congress, without wait- ize the issuing of letters of marque and
ing indefinitely in hope to obtain the greater reprisal, it not being "necessary;"
one offered to the maritime nations by the but that such a step should be held by
president of the United States." This Mr. Seward to be the duty and right of
proposition was not entertained by the government shows that his circular
England and France, and that it was of April 24, 1861, must have been re-
a mere transient impulse of Mr. Sew- garded by him, if regarded at all, as
ard, and was speedily withdrawn, if recalled. It certainly was never acted
not forgotten, is illustrated by his let- on by any European power.
ter of July 12, 1862, to Mr. Adams, in Citizens of the United States are for-
which he says, " This transaction will bidden by statute to take part in the
furnish you a suitable occasion for in- equipment or manning of privateers
forming Earl Russel that since the Oreto to act against nations at peace with
and other gun-boats are being received the United States. Act of June 14,
by the insurgents from Europe to 1797, and April 24, 1816. Treaties
renew demonstrations on national com- making privateering under such cir-
merce, congress is about to authorize cumstances piracy have been nego-
the issue of letters of marque and tiated with England, France, Prussia,
reprisal, and that if we find it neces- Holland, Spain, and Sweden. See
sary to suppress that piracy, we shall letter of Mr. Marcy, of April 28, 1854,
bring privateers into service for that and president's declaration of neu-
purpose, and of course, for that pur- trality, of April 20, 1818.
pose only." Congress did not author-
297
may be a delict. But when there is no treaty limitation ,

then the questions arising under this head may be beset with
much difficulty. Four rules, however, may be regarded as
settled : (1) The fact that a state imposes on its subjects
severer restrictions as to neutrality than are imposed by the
law of nations does not make such self-imposed restrictions
the standard between itself and belligerents, it being bound
to belligerents, not (if there be no treaty) by its municipal
law, but by the law of nations.' (2) A state, by taking a lax
view, in its domestic legislation, of the duties of neutrals,
does not incorporate such rules into the law of nations ; and
yet it may expose itself, if it complains of other nations
taking equally lax views, to the retort that the act complained
of is one which its own legislation sanctions. (3) Incapacity
on the part of the state by whose subjects the injury was
inflicted to prevent the injury is no defence. A state is
bound to suffer the consequence if it permits its subjects to
invade the rights of another state. (4) A state, which, by its
own negligence, exposes itself to the fillibustering attacks of
the subjects of another state, may lose the right to recover.2
§ 205. Restitution or indemnity may be voluntarily made
Restitution by one state to another in case of admitted injuries,
or indem- as in the case of the payment by Great Britain to
nity. the United States of losses incurred by the depreda-
tions of the Alabama; and of the restoring by the United
States to Great Britain of Messrs. Mason and Slidell, taken
by Admiral Wilkes from the Trent.3 To restitution and
indemnity apology is added when properly due.'
1 Infra, § 241; see Whart. Crim. who had entered the vessel on various
Law, 8th ed., § 1901. pretences in New York. The vessel
2 See infra, §§ 240 et seq. was pursued by a United States cruiser,
8 See, for other illustrations, Hart- and seized, with those on board her,
mann, § 90; Phillimore, ii. 46. in British waters. The vessel and the
4 As illustrations of restitution, in men were surrendered by the United
cases of invasions of neutral rights, States government to the British au-
may be mentioned the following : In thorities, with an apology for the in-
1863, the Chesapeake, a passenger vasion of territory.-In 1864 the Con-
boat running between New York and federate steamer Florida was seized by
Portland, was seized and diverted to a United States cruiser in the harbor
their use by a party of Confederates, of Bahia, belonging to Brazil. Repa-
298
§ 206. Retorsion and reprisal bear about the same relation
to arbitration and war, as the personally abating a
nuisance does to a suit for its removal. States as Retorsion
andrcprisal
well as individuals have a right to protect them-
selves when injustice is done them by removing the cause of
offence; and that in disputes between nations this right is more
largely extended than in disputes between individuals, is to be
explained by the fact that in disputes between nations there are
not the modes of redress by litigation which exist in suits be-
tween individuals.-" Retorsion" and " reprisal" are often used
convertibly ; though the difference is that " retorsion" is reta-
liation in kind, while "reprisal" is seizing or arresting the
goods or trade of subjects of such state as set-off for the inj uries
received. Under this head fall embargoes, and what are called
pacific blockades (blocus pacifique), by the former of which trade
is forbidden with the offending state; by the latter of which a
port belonging to the offending state is closed to foreign trade.
These acts approach in character to war, to which they gene-
rally lead ; yet technically they are not war, and there are cases
where the remedy has been applied without war resulting.'
ration was demanded; and, though Wheaton, after noticing embargoes
the Florida could not be restored, hav- and sequestrations, to be hereafter con-
ing foundered, her crew was given up sidered, specifies the following modes
to Brazil, and an apology tendered. of reprisal:-
See Dana's Wheaton, notes 207 and 1. Taking forcible possession of the
209; Hall's Int. Law, 544. thing in controversy, by securing to
On the topic in the text may be con- one's self by force, and refusing to the
sulted Le Droit de la Guerre, par Er- other nation, the enjoyment of the
nest Nys, Brussels, 1882, pp. 27 et seq., right drawn in question.
in which mediation is historically ex- 2. Exercising the right of vindictive
amined. retaliation (retorsiofacti), or of amicable
1 Holtzendorff, ti supra, 1238, citing retaliation (rtorsion de droit); by which
Sanford's Law of Special Reprisals, last the one nation applies, in its trans-
1858; Wurm's Selbsthillfe der Staaten actions with the other, the rule of con-
in Friedenzeiten. Perels (§ 30) cites as duct by which that other is governed
an illustration of reprisal, the action under similar circumstances. Law-
of the British government in 1861, in rence's Wheaton, Elements of Intern.
seizing, as an indemnity for the pillage Law, pt. IV., ch. i. § 1; Dana's
of a stranded British ship, several Bra- Wheaton, § 290: citing Vattel, liv. II.
zilian merchant ships. ch. xviii.; Kliiber, Droit des Gens Mo-
The evils attending reprisals are dernes de 1'Europe, § 234; see, also,
well exhibited in Nys's Le Droit de la Wildman's International Law, i. 187;
Guerre, Brussels, 1882, pp. 40 et seq. Halleck's Intern. Law, 297.
299
§ 207. Hence it is in the power of a state to shut its ports to

the shipping of another state with whom it has a
supposed cause of offence; and this is regarded as
an international right. This course was taken by Mr. Jef-
ferson's administration towards England ; and the right was
conceded by both England and France. A belligerent, also,
may lay an absolute general embargo on its own ports as
against vessels of all nationalities. But neutral vessels enter-
ing such a port in defiance of such an embargo are not open
to confiscation in the same way as is a vessel running a block-
ade. Repulsion, not confiscation, is the remedy.'
§ 208. The practice is now prevalent, in cases of a controversy
between nations which does not from the nature of
Mediation
now usu- things necessarily involve war, to ask an indepen-
allpd to dent nation to act as arbitrator; and in some in-
avert war, stances the offer of arbitration is made by a state
Arbitration
friendly to both of the litigants. Arbitration was
declared by the peace of Paris, in 1856, to be the proper course
in all cases of international disputes ; though the principal
parties to that peace were afterwards very far from following
the rule they themselves laid down. But arbitrations, especi-
ally in cases of disputed boundary, are often efficacious, and
each year adds to the confidence felt in them as an honor-
able and effective mode of doing justice and of avoiding war.
Of arbitration, it is only necessary here to say that it is gov-
erned by the terms of the treaty prescribing it, and when these
terms are not precise, by the usages adopted in international
law, and when these fail, by common law rules in respect to
arbitrations of private litigations.2
XIII. WAR AND ITS INCIDENTS.
§ 209. War is the final and often the essential appeal for the
redress of national wrongs. A weak state may ap-
War tbe
final pear to court ruin by declaring war against a power-
appeal. ful aggressor; yet submission may be less destructive
Perels, § 52. Edmunds, in North Am. Rev., Jan.

2 As to the Geneva arbitration, see 1879, p. 1, in which the question whe-
infra, §§ 244 et seq. As to the fishery ther arbitrators are to be unanimous
award of 1878, see article by Senator is discussed.
300
than war, and there are few instances in modern history in
which the heroic resistance of a weak state to the aggressions
of an invader has not gradually obtained for it effective allies.
It must, also, be recollected that a state is not subject to
punishment as such. It may be insulted and assailed; its
ports may be seized, its cities burned, and heavy contributions
may be levied on it; but tried, convicted, and executed as a
criminal it cannot be.'
§ 210. It must be remembered that only states can be par-
ties to a war. A band of marauders, which, with-
states
out incorporation into the army of a specific sove- Only
can be
reign, undertakes to perform acts of war, subjects Parties to
~war -but
its members to 11 indictment for murder or robbery, involves
subjects.
all
as the case may be. Whether, however, when an
insurrection exists, the insurgents are to be treated as bellig-
erents, is a difficult question, dependent upon the extent to
which the organization of the insurgents has acquired local
authority and permanence. That a foreign government should
recognize insurgents as belligerents is not a matter which the
government revolted from can treat as a cause of war.' But
however this may be, all the subjects of a sovereign are ordi-
narily parties to a war he declares. " When the sovereign of
a state declares war against another sovereign, it implies that
the whole nation declares war, and that all the subjects of the
one are enemies to all the subjects of the other."3
§ 211. Unless a declaration of war is made as soon as war
is determined on and overt acts of war are begun,
not only might a partyZnspringing an attack have an Declaration
of war
unfair advantage, but neutrals might be greatly should be
injured. It is part of the law of nations, therefore, femal
that a declaration of war should precede an attack;
I Phill. Int. Law, 3d ed., i. 5. As t court of the United States that mill-
"coercion of a state " see infra, § 378. tary action, even by an insurgent
2 See this question discussed, supra, soldier, does not render him liable in
§§ 140 et seq. a civil court when the insurgent gov-
3 Kent's Com., 156. Infra, § 214. ement is recognized as belligerent.
That the Confederate states in the Ford e. Surget, 97 U. S. 594 ; see
late civil war were belligerents, see Whart. Cnn. Law, 8th ed., §§ 94,
supra, § 141 ; infra, § 217. 283, 310; and see supra, §§ 144, 178,
It has been held by the supreme infra, § 221, for other authorities.
301
but this rule is by no means generally followed,' nor is there any

fixed prior notice required. In recent times, the fact that one
nation intends war against another is known from the nature
of the preparations, as soon as these preparations take specific
shape; and the formal declaration is not issued until its con-
tents are generally understood. A declaration of war, also,
may be implied : as where an act of hostilities takes place
which can be explained on no other hypothesis. A declara-
tion of war, also, may be conditional, that is to say, war is
declared unless a certain condition, called an ultimatum, is
performed on the other side. In cases of civil war, also, when
the party in power has not as yet acknowledged the insur-
gents as belligerents, it cannot be expected that a declaration
should be formally made by the party in power.' Nor is this
necessary under the constitution of the United States.3
§ 212. An invading army is authorized, according to inter-
Provisional national law, to appoint officials for
the purpose of
govern- determining matters relative to the occupation.
ments mayn
be estab- This does not vacate the authority of the local
lished. courts as existing at the time of the invasion. It
simply establishes by their side a tribunal which in all matters
relative to the occupation is supreme so long as the occupation
is in force. The occupying authorities, however, have inter-
nationally no right to call upon the subjects of the occupied
territory for military service, or for a betrayal of political
secrets, though requisitions may be imposed, and a strict sub-
mission to military police exacted. 4
I That declarations of war are fallen world acknowledges them as belliger-

into disuse, and that wars in modern ents, and the contest as a war."-
times usually begin by a surprise at- Field's International Code, § 709.
tack, see article in London Spectator of Infra, § 454.
December 8, 183, p. 1573. 1 As to military provisional govern-
2 Prize Case, 2 Black, 635. ments during the late American civil
" Where the party in rebellion oc- war, see Milligan ex parte, 4 Wal. 2;
cupy and hold in a hostile manner a Ford v. Surget, 97 U. S. 594. In Texas
certain portion of territory, have de- e. White, 7 Wall. 700, such govern-
clared their independence, have cast ments were sustained.
off their allegiance, have organized As to such governments generally,
armies, have commenced hostilities see Leitensdorfer v. Webb, 20 Howard,
against their former sovereign, the 176; Cross v. Harrison, 16 How. 164.
302
§ 213. Deceit, so it is held, when exercised by military

officers for the purpose of misleading an enemy, is
not inconsistent with the law of nations. The oeit al-nd
concoction of false news and of despatches contain- so of great
material
ing traps, and the use of spies, have been resorted to destruc-
by the most meritorious of generals. Great mate-
tion.
rial destruction of an enemy's property is permitted, also,

when the object is to impair his belligerent capacity, and it
has been considered allowable to burn towns and devastate a
country when necessary to drive an enemy from the field, and
to flood the land, when by this way the enemy would lose his
supplies. The same remarks may be made as to the destruc-
tion of railroads and telegraph lines by which the enemy
obtains supplies and information. But the destruction ought
not to exceed what is necessary under the peculiar circum-
stances of the case. A destruction of a line of road may be
justifiable, but not the deliberate destruction of depot build-
ings which could not be used for military purposes. There
is also a general acquiescence in the neutralization of hospitals
and ambulances.' The general sense, also, of civilized nations
forbids the wanton destruction of public buildings, of objects
of art, and of great international enterprises, such as subma-
rine telegraphs and tunnels, or canals between distinct states.
The only feasible limitation as to the use of arms is that pro-
posed by the Petersburg convention of Nov. 29, 1868, con-
demning the use of explosive hand firearms. The Russian
government, however, failed in its effort at the Brussels con-
ference of 1874 to obtain action of other European govern-
ments on this topic.2 The test with regard to warlike agencies
is detriment. Whatever would cripple an antagonist in his
warlike movements is allowed. But the crippling must be
direct, not indirect. Soldiers acting as such may be slain
That provisional courts may be estab- Bernard, Laws of War, 1856; Lieber's
lished by an invader, see U. S. v. Rei- Codification, 1860; Bluntschli in Holt-
ter, 4 Am. Law Reg. 534. zendorff's Jahrbuch, 1871, p. 270;
' Bluntschli, 3d ed., § 586. Morin, Les lois relatives 4 la guerre,
2 See Holtzendorff, ut supra, 1242; Las vol. ii., 1872.
leyes de la guerra, etc., 1857; Montague
303
in open field, but this must be in avowed warfare, all private

killing, and of all private persons not enrolled in an army
being murder. Nor is it allowable to burn private property,
unless it directly contributes to the support of the enemy's
army. In case of excesses of this kind being committed on
one side, the right of reprisal belongs to the other.
1 As an illustration of the ameliora- improvement in this respect, may be

tion wrought in the last few years may noticed the contrast between the con-
be mentioned the contrast between the duct of the German army in the cap-
Franco-German war of 1870, in which ture of Paris, in 1871, and that of the
pillage and maltreatment of prisoners British army in the capture of Wash-
were scrupulously avoided, with the ington in 1814. By the Germans, not-
Peninsular war of 1812-3. In a letter withstanding the fact that they were
from Captain Bowles, of the Guards (a fired on from private houses, the public
relative of Lord Malmesbury, and in buildings of Paris were scrupulously
constant intercourse with Wellington), preserved; by the British, the capitol
to Lord Fitzharris, April 7, 1812 (Mal- and the president's dwelling-house at
mesbury Correspondence, i. 264), we Washington were destroyed, though
have the following statement in respect the place was only taken on a sudden
to the capture of Badajoz : " Lord raid, and the invaders were compelled
Wellington was extremely anxious immediately to retreat, and though
that asfew prisoners [italics as in text] there was no pretence that there had
should be made as possible, but our been any invasion of the laws of war
men could by no means be induced to by the inhabitants of the captured
do anything but plunder the instant the city. It may be said that the burning
affair was decided." After the fall of St. of a portion of the city of Columbia by
Sebastian, Capt. Bowles (Sept. 30, Sherman's army, during the late civil
1812) writes (ib. 383) : " After gaining war in this country was a similar
possession of the town, and driving the atrocity. But the answer is (1) that a
garrison into the castle, the usual careful perusal of the evidence on both
horrors commenced, and every species sides will lead to the conclusion that
of enormity was committed, and Ciu- the fire was started by stragglers not
dad Rodrigo and Badajoz were imi- under the military control of either
tated and surpassed, and Herod coom- army ; (2) the burning of the city was
pletely out Ileroded." Yet St. Sebastian not only expressly prohibited by Gene-
was a Spanish town; the French were ral Sherman but expressly disavowed ;
in the citadel; and with the Spaniards whereas the burning of Washington
the English were supposed to be in was expressly ordered by the British
alliance. The conduct of the English commander and expressly avowed.
was not probably in any respect more That this difference is a difference not
atrocious than the French in these of nationality but of era, is shown by
frightful campaigns. It is to prevent the humanity and forbearance which
such atrocities that the recent conven- marked the progress of British arms in
tions between belligerents have been Egypt in 1882. That such acts of
framed. As another instance of the devastation are not only useless but
304
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [§21-4.
§ 214. It has been already stated that when war exists

between two sovereigns, all the subjects of one are commerce
at war with all the subjects of the other.' Nor is between
belliger-
this war limited to matters military. There can- ents pro-
not be war in battle with peace at commerce. It hibited.
has therefore been held that business contracts between the
subjects of one belligerent state with the subjects of another
are void, as tending at least to swell the resources of one or
the other of the belligerents; and in such case it makes no
difference when such contracts were made, and where they are
to be performed.' It has been argued, however, that this rule
does not apply to-a case which does not involve the transfer of
property or credit from one belligerent to another.3 And it cer-
tainly does not apply to ransom bills necessitated by war, and
not instruments of ordinary commerce.' A contract made
before the war, however, is only suspended during the war,
and revives when peace is announced.6 License from the home
detrimental to the goverment directing C. C. 484; U. S. v. Grossmeyer, 9 Wall.

them, is shown by the fact that the 72; Stevenson v. Payne, 109 Mass. 378;
wanton destruction of the public build- Hyatt v. James, 2 Bush, 463; Noblom
ings at Washington in 1814 almost v. Milborne, 21 La. An. 641; Rice v.
extinguished the party which had pre- Shook, 27 Ark. 137.
viously urged the concessions to Eng- That domicil and not prior nation-
land on which a pacification could be alty determines whether a person is in
based. this sense an enemy, see Bell v. Reid,
As to action of the International 1 Maule & S. 726.
Military Commission, at St. Petersburg, 3 Kershaw v. Kelsey, 100 Mass. 561.
agreeing to prohibit the use in time of 4 1 Kent, 68.
war of all explosive projectiles weigh- 6 McConnell v. Hector, 3 Bos. & Pul.
ing less than four hundred grammes, 113; O'Mealy v. Witson, 1 Camp. 482;
see Army and Navy Journal, New Stiles v. Easley, 51 Ill. 275; Seymour
York, November 28, 1868. v. Bailey, 66 Ill. 288.
To use poison in war is an offence Under this rule the British admiralty
by international law. Fiord, ii. 279; has gone so far as to vacate a contract
Field, Code, etc., § 754. Bluntschli, for the sending of supplies to a British
§ 560, takes strong ground against colony temporarily in the enemy's
explosive musket balls and chain-shot. hands. Bella Guidita, 1 C. Rob. 307.
Supra, § 210. Trade conducted through the medium
Abdy's Kent, 294; Wheat. Int. of ships of truce, or " cartel ships," as
Law, 356; Anthan v. Fisher, 2 Doug1. they are called, is strictly prohibit-
649; Scholefield v. Eichelberger, 7 Pet. ed. The Carolina, 6 C. Rob. 336; see
586; Phillips v. Hatch, 1 Dillon, 571; Whart. on Cont., §§ 473 et seg.
Crawford v. The William Penn, 3 Wash. Nor can there be any business inter-
20 305
S214.] COMMENTARIES ON LAW. [CHIAP. IV.
government will validate business intercourse with an enemy,'

but sailing by a neutral vessel under an enemy's license has
been held ground for forfeiture by the other belligerent.2 A
license, however, to be valid must come either directly or in-
directly from the supreme authority,' and must not have been
obtained by misrepresentations. 4 Whether a subject of a state
can be separated from the state so far as to enable him to be
regarded as concerned in a war only when contributing to it,
or whether every subject, active or passive, is to be regarded
as an enemy of that state's enemy, is a question much dis-
cussed. The great weight of authority goes to the latter
view, which is concurred in by Martens, Kent, Wheaton,
Woolsey, Lawrence, Phillimore, Twiss, Halleck, and Hall.
That a subject of a state only participates in its wars when
aiding them is maintained by Bluntschli and Fior6, but this
view has no support in England and the United States.'
course between the districts actually prohibit commercial intercourse, but

occupied by opposing belligerent armies such intercourse may go on, unless
after notice of occupation, whether such specially prohibited, and as far as not
business is forbidden by proclamation so prohibited; which seems to be an
or not, unless such business be author- opinion rather than a statement of law;
ized by agreement of the belligerent for precedent and practice, and the
nations, or by the military authority opinions of jurists are the other way.
having command of the frontier. Field's Dana's Wheaton, note 158, p. 400.
Code Int. Law, § 921; citing Blunt- That the rule in the text applies to
schli, Droit Int. Codifi, § 674; Lie- civil war, see Semmes v. Ins. Co., 36
ber's Instructions, 86; Hennen v. Conn. 543; 13 Wall. 158; Whart. on
Gilman, 20 La. An. 241; Graham v. Cont., § 474.
Merrill, 5 Coldwell (Tenn.), 622; Bank 1 Woods v. Wilder, 43 N. Y. 164.
of Tennessee v. Woodson, 5 id. 176. 2 The Alliance, Blatchford Prize Ca.
That a declaration of hostilities in- 262; The Alexander, 8 Cranch, 169;
volves an interdiction of all commercial The Caledonian, 4 Wheat. 100.
intercourse with the enemy, on the part a Halleck, Int. Law, 675-690; Man-
of the subjects of the belligerent na- ning, Law of Nations, § 123; Wildman,
tion, without express license, see Law- Int. Law, ii. 245-266; 1 Kent's Com-
rence's Wheaton, Elem. of Int. Law, mentaries, 163; 1 Duer on Insurance,
pp. 544, 551, § 13; Dana's Wheaton, 594-619; Hautefeuille, tom. i. p. 19;
§§ 309, 315; Barrick v. Buber, 2 C. B. Woolsey's Int. Law, § 147 ; Philli-
N. S. 563; Esposito v. Bowden, 7 E. & more's Int. Law, iii. 249, 613; cited in
B. 769 ; Phillips v. Hatch, 1 Dillon, Field's Code of Int. Law, § 921.
571 ; cited Field, ut supra. 4 Dana's Wheaton, note 198, p. 504.
According to Heffter (§§ 122, 123), a 6 See Hall. Int. Law, 58.
declaration of war does not of itself

306
5 215. It was at one time held that the body of a soldier on
the battlefield could be rifled of whatever valuables
were on it, and that it was within the range of power Bo"t not
of a commander, upon taking a fortified place by
assault, to give it up for a limited time to plunder. These
views now no longer obtain. Whosoever despoils a corpse of
personal property (not arms) is indictable for larceny; and the
soldier who seizes by force valuables from inhabitants of a
belligerent territory is indictable for robbery. And the right
to expose a captured city to storm is no longer recognized in
international law.1
§ 216. It is within the power of an invading army to seize
upon and appropriate all money or provisions held
by the enemy for public purposes. As to private not Public but
private
property, important distinctions are to be taken. property
can be
Provisions necessary for the support of the invading seized.
army may be seized, upon the price fixed officially for
such provisions being offered or promised; and the prevalent
opinion is that in cases of necessity provisions may be seized
without payment of price or promise to pay. When subjects
of one belligerent are at the time of breaking out of the war
residing in the dominions of the other belligerent, they are
not, in ordinary practice, molested. In the Franco-German
war of 1870 all Germans were at the outset ordered out of
Paris. This is undoubtedly within the power of a belligerent.
But no such measures should be taken except when required
by public safety; and in any view, the property of such per-
sons, unless personally taking the part of the state of their
residence, should not be disturbed. And it has been held by
the supreme court of the United States, that upon the break-
ing out of a war the United States government is not entitled
to seize and confiscate goods found in its territory belonging
to the enemy, unless authorized by congress, and in subordi-
nation to the limits congress imposes.2
I But see Cote v. U. S., 3 N. & H. 64. 5 Blatch. 231. It has been held that the
I Infra, § 455; Brown v. U. S., 8 act of congress declaring war against
Cranch, 110; U. S. v. Shares of Stock, Great Britain did not work such con-
307
217.1 COMMENTARIES ON LAW. [CHAP. IV.
§ 217. Whatever we may say on this point, the right to

capture and confiscate private property of insurgents is gene-
fiscation. The Juniata, Newberry, 352. property here, it can at once be said,
In Brown v. U. S., ut. sup., the right to knowing the risk he might run in the
confiscate debts was asserted; and Ware event of a war. Why should he not
v. Hylton, 3 Dal. 199, was relied on as incur the risk ? He should incur it,
authority. But the better view is that say the older practice and the older
the property of the inhabitants of an authorities. He should not, says the
invaded country should not be taken by modern practice, although interna-
an invading army without remunera- tional law in its rigor involves him in
tion. (U. S. v. Stevenson, 3 Benedict, it. He should not, according to the
119 ; Bluntschli, § 657.) In the United true principle of justice, because his
States Articles of War, of 1863, 6 2, relation to the state at war is not the
art. 37, it is said: " The United States same with the relation of his sovereign
acknowledge and protect, in hostile or government; because, in short, he
countries occupied by them, religion is not in the full sense an enemy."
and morality, strictly private property, To this it may be added that when a
the persons of the inhabitants, especi- foreigner invests property in a country
ally those of women, and the sacredness with the permission of its government,
of the domestic relations. Offences to there is an implied understanding that
the contrary shall be rigorously pun- his title thereto will be respected un-
ished." To the effect that private pro- less divested by his personal act.
perty cannot be seized by an invading As sustaining the right of seizure of
army, unless contraband, see Kent's private property in an enemy's coun-
Com., i. 93 et seq.; U. S. v. Homeyer, 2 try, see The Venus, 8 Cranch, 253; The
Bond, 217; Transactions of the National Ann Green, 1 Gall. 274; The Lilla, 2
Association for the Promotion of Social Sprague, 177; The Friendschaft, 3
Science, 1860, pp. 163, 279 ; id., 1861, Wheat. 15 ; 4 Wheat. 105. That this
pp. 126, 748, 794; id., 1862, pp. 89, does not impress with belligerency a
896, 899 ; id., 1863, pp. 851, 878, 884; neutral on motion to leave bona ide
id., 1864, pp. 596, 656; id., 1868, pp. belligerent territory, see The Venus, ut
167-187; Hautefeuille, Droits et De- supra; The St. Lawrence, 1 Gall. 467.
voirs, i. 340-44 ; Martens, Essai surles That neutrals and citizens are to be
Armateurs, s.45; and other authorities allowed a reasonable time, after break-
given in Field, ut sup. Heffter (V6lker- ing out of war, to withdraw from a
recht, s. 130, 132, 139, 140, 175, 192) belligerent country, see The Sarah
holds that war gives only actual pos- Starr, Blatch. Pr. Ca. 650; The Gen-
session, but not the legal property in eral Pinckney, ibid. 668.
such captures. In Mitchell v. Harmony (13 Howard,
Dr. Woolsey (Int. Law, § 118, note), 115) it was held that private property
after noticing Hamilton's argument could only be taken by a military com-
against confiscation (Hamilton'sWorks, mander in cases of necessity, for public
vol. vii., 19th Letter of " Camillus"), use, to prevent it being used as contra-
adds, speaking of the confiscation of band of war or falling into the enemy's
the private property of the subject of hands. This, in the late civil war,
an enemy, " The foreigner brought his was held to be the case with cotton,
308
rally claimed, and the exercise of this power by congress is, as
we will see, permitted, under certain limitations, by
the constitution of the United States.' But such Distinction
in this
seizure, unless of contraband of war, cannot be at respect as
to insur-
the discretion of a commanding officer. It must be gerts.
in accordance with a law of confiscation to be adopted
by congress.2
§ 218. On the question of how far goods at sea are liable
to seizure by a belligerent, we have the following
theories_ Conflict of
opinion as
(1) Neutral flags do not protect goods belongingZ! to to whether
sailing
belligerents; but belligerent flags do not necessarily under an
impart their character to the goods on board the emy's
ship. This is the English view as acted on during exposes
the Napoleonic wars, and the effect was to expose goods seizure.
to
all neutral ships to the inspection of English
cruisers.
(2) As a matter of reprisal, the French government took
the position that, if either the vessel or the cargo belonged to
a belligerent, this would sustain a capture by the other bel-
ligerent.
(3) It is maintained by recent high German, Italian, and
American authorities, that the flag imparts its character to
which, as one of the chief military sup- the humane maxims of the modern law
ports of the Confederacy, was regarded of nations, which exempt property of
as contraband. Alexander's Cotton, non-combatant enemies from capture
2 Wall. 404. In this case, Chief Jus- or booty of war." To same effect see
tice Chase, giving the opinion, de- Lamar v. Browne, 92 U. S. 194.
clared that the right of capture " may " In respect to real property the ac-
now be regarded as substantially requisition by the conqueror is not fully
stricted to 'special cases' (citing Chan- consummated until confirmed by a
cellor Kent) ' dictated by the necessary treaty of peace, or by the entire sub-
operation of war;' and as excluding, mission of or destruction of the state
in general, 'the seizure of the private to which it belonged." Clifford, J.,
property of pacific persons for the sake U. S. v. Huckabee, 16 Wall. 434.
of gain.' " In U. S. v. Klein, 13 Wall. 1 Infra, §§ 467, 471.
128, he says : " No titles were divested 2 That the Confederate forces in the
in the insurgent states, unless in pur- late civil war were regarded as both
suance of a judgment rendered after belligerents and insurgents, see infra,
due legal proceedings. The govern- § 455.
ment recognized, to the fullest extent,
309
the cargo: "free ships, free cargo; belligerent ships, bellige-

rent cargo."
(4) The rule proposed by the Paris conference of 1856 went
still further, providing that free ships make free goods, with
the exception of contraband of war; but that the fact that a
flag is belligerent does not expose to capture the cargo it
covers. " Neutral ships protect the goods of belligerents;
neutral goods cannot be seized on board belligerent ships."'
The English practice is to hold that goods laden before the
war, are exempt from seizure.2
In France the claim to seize goods of a belligerent on
neutral ships was for a long time contested, though it was
accepted during the Crimean war ;3 while it has been on
several occasions approved by our Federal courts.4 It has
been also held that an insurance made on goods thus exposed
to capture is void.5 But it is hard to defend these rulings on
principle. The capture of ships belonging to an enemy may
be regarded in the same light as the occupation of territory
belonging to an enemy; a ship being part of the territory of
the state to which she belongs.' But the better opinion, as
we have seen, is that an invading army occupying a territory
belonging to an enemy has no right to seize and confiscate
goods, if not contraband of war, belonging even to the sub-
jects of such enemy. On the same reasoning, a belligerent
cruiser, in capturing an enemy's ship, has no right to seize
and confiscate goods on such vessel even belonging to a sub-
ject of such enemy. And if the claim to seize such goods
is too generally acquiesced in to be disputed, it ought not to
be extended so as to comprehend the seizure of enemy's goods
on neutral ships, or of neutral goods on enemy's ships.7 To
1 Holtzendorff, ut supra, 1253, citing The Julia, 8 Cranch, 181; The

Vedari, Del rispetto della proprieta Nereide, 9 Cranch, 388; The Ariadne,
privata, etc., 1867; Bluntschli, Beute- 2 Wheat. 143; The Caledonia, 4
recht, 1878; Perels, § 35 ; Yeaman, Wheat. 100.
Observations on International Prize Ogden u. Barber, 18 Johns. 87;
Law, 1867. Craig v. Ins. Co., 1 Peters, C. C. 416.
2 The Vrow Elizabeth, 5 C. Rob. 10. Supra, § 188; infra, § 308; Whart.
For order of council justifying such sei- Conf. of Laws, 2d ed., § 356.
zure, see 1 Spinks, Ec. & Ad. App. p. ix. See supra, §§ 191, 194 et seg.
3 Lawrence's Wheat., note 228.
310
give the rule the scope assigned to it by English courts is to
put property on the seas, in time of war, under the control of
the belligerent having the greatest naval force.'
I In the Nereide (9 Cranch, 388), Rev. Ap., 1872; Wheaton, Dana's

the Supreme Court of the United States notes, 158, 171. Mr. Jefferson (letter
took the position that an enemy's goods to Genet, July 24, 1793) and Messrs.
at sea could be seized wherever they Pinckney, Marshall, and Gerry, when
were found, but that a neutral's goods addressing the French government,
could not be seized though sailing argued that France could not, in ac-
under an enemy's flag. It was admit- cordance with her own antecedents,
ted by the court that this rule had dispute the rule as against England.
been much contested, and had been See Lawrence's Wheat., note 192
modified by various treaties and con- Dip. Corr. U. S., 1861, pp. 143, 251
ventions ; but it was then said that, Field's Int. Code, § 246.
even conceding that free ships made In Mr. Seward's letter to Lord Lyons,
free goods, this did not imply the con- of December 20, 1861, he states : " It
verse that enemy's ships should make had been settled by correspondence
enemy's goods. But the United States that the United States and Great
government, in its diplomatic corre- Britain mutually recognized as appli-
spondence, has vigorously maintained cable to this local strife (the civil war)
the rule that a neutral flag protects those two articles of the declaration
enemy's goods, not contraband of war; made by the congress of Paris of 1856,
and, so far as The Nereide conflicts namely, that the neutral or friendly
with this view, it must be regarded as flag should cover enemy's goods not
qualified by the more recent decision, contraband of war, and that neutral
above referred to, that a ship is part goods not contraband of war are not
of the territory of the state to which liable to capture under an enemy's
she belongs. Supra, § 188. flag."
The particular point ruled in The Mr. Fish, in 1870, when secretary of
Nereide is that neutral property laden state, expressed to Baron Gerolt, the
knowingly on board a belligerent Prussian minister, the hope that " the
cruiser does not lose its neutrality government and people of the United
even though the cruiser forcibly re- States would soon be gratified by seeing
sisted capture, if the neutral owner of the principle" of the immunity of
the goods did not aid in the resistance. private property at sea, " universally
An opposite view of this point was recognized as another restraining and
taken in The Fanny, 1 Dods. 443. In harmonizing influence imposed by
The Nereide, it was held by the major- modern civilization on the art of war."
ity of the judges that the right of By a treaty executed in 1871, between
neutrals to carry on their trade in an the United States and Italy, it was
enemy's ships is not affected by the stipulated that private property of
fact that the latter ships are armed. either nationality should not be seized
The Nereide, 9 Cranch, 441. (Story, by the other unless when contraband
J., diss.) of war, or for blockade breach. This
As sustaining the ruling in The view is contested by Mr. Hall, § 147.
Nereide, see 2 Kent's Com. 125 ; an See for a survey of authorities, Blunt-
article by Mr. Pomeroy in North Am. schli, Das Beuterecht, 1878 ; Moderne
311
§ 219.Assuming, in accordance with the English view, that

an enemy's goods are liable to seizure wherever they may be
V1kerrecht Int., p. 45, § 296; Perels, in it during war without being affected
§ 35. To the same effect is a resolu- with the penalty of confiscation. The
tion adopted in 1878 by the Institute British have unjustly extended the
of International Law. doctrine to cases where a neutral has
The English claim of a right to cap- traded between ports of the enemy
ture not only goods on board the mer- with a cargo taken in at a neutral
chant ships of states with which she is country.' He is 'as clearly satisfied
at war, but the sailors on board such that the colonial trade between the
ships, has been vigorously combated mother-country and the colony, where
by Prince Bismarck. See Perels, § 35. that trade is thrown open merely in
"The declaration of Paris, 1856," war, is liable, in most instances, to the
says Dr. Woolsey (Int. Law App., iii., same penalty. But the British have
note 25), " by which the neutral flag extended their doctrine to all inter-
covers enemies' goods, destroyed the course with the colonies, even from or
force of the rule of 1756, for the new to a neutral country, and herein, it
rule protects neutral trade in innocent seems [to him], they have abused the
articles between two hostile ports, rule.' There seems to be reason for
whether such trade had been opened such a difference. To open coasting
to neutrals in time of peace or not. trade to neutrals is a confession of
The rule is expressed in the most gene- iuability to carry on that branch of
ral terms. But, although this rule is trade on account of apprehensions
obsolete, and has gone into history from the enemy's force, and an invita-
for the most part, the United States, tion to neutrals to afford relief from
not being a party to the above-men- the pressure of war. It is to adopt a
tioned declaration, may yet be under new kind of vessel, on the ground
the operation of the old British law that they cannot be captured. The
in regard to coasting and colonial belligerent surely has the right to say
trade. Here two questions may be that his attempts to injure his enemy
asked, the one touching the lawful- shall not be paralyzed ii this manner.
ness of coasting trade proper, the other But he has no right to forbid the
touching the conveyance by neutrals neutral to carry his own goods from
of their goods, brought out of foreign hostile port to hostile port, when he
ports, from one port of the enemy to might have done it before. Every
another. Our government has con- right of innocent trade, then, enjoyed
tended for the right of neutrals to by the neutral in peace, should be
engage in both descriptions of trade, allowed after the breaking out of the
if we are not in an error, while some war; but new rights, given to them on
of our publicists hold the first to be account of the war, may be disregarded
reasonably forbidden, the other to be by the belligerent as injuring his in-
allowed. Judge Story says (Life and terests.
Letters, i. 285-289) that, in his pri- " Hautefeuille remarks, on the other
vate opinion, ' the coasting trade of side, that the sovereign who can inter-
nations, in its strictest character, is so dict can also permit a certain kind of
exclusively a national trade, that neu- commerce. But this is begging the
trals can never be permitted to engage question. Can he, by such privileges,
312
found, it becomes an interesting question to determine what

persons are to be regarded as " enemies" in this
sense. Subjects of a sovereign at war with England ongt hold
are unquestionably, on the English hypothesis, ene- that doing
n business in
mies whose goods are open to seizure at sea; and as a foreign
subjects are to be regarded all domiciled residents. stitutes
The English courts, however, have gone further, and omircial
have held that a person who has acquired a com-
mercial domicil in a land is in this sense a subject; and
the rule that to domicil the intention to permanently remain
is essential, is so far stretched in prize cases as to treat as
domiciled in a land persons residing in such land for the pur-
poses of business.' This view appears to be sanctioned by the
high authority of Chancellor Kent.2 "This same principle,"
he says, "that for all commercial purposes the domicil of the
party, without reference to the place of birth, becomes the test
of national character has been repeatedly and explicitly ad-
mitted in the courts of the United States." " If he resides"
(here "domicil" and "residence" are treated as convertible,
restrain his enemy from annoying him Johnson v. Falconer, 2 Paine, 601
-privileges which are nothing but and cited in Whart. Con. of L. § 70.
taking the neutral trader into a kind As to domicil generally, see afra,
of partnership ? Suppose that he hired § 254.
war-vessels from a neutral sovereign, 2 Kent's Com., i. 75; and see Parlin
would that exempt them from capture ? v. U. S., 1 N. & H. 174; The Cheshire,
Most other continental writers have 3 Wall. 231; The Amy Green, 1 Gall.
condemned the rule of 1756, as Ortolan, 274.
Kaltenborn, Heffter, in a qualified way, That the property of a trading firm
and Gessner." established in an enemy's country is
As differing from the text, see The liable as prize, though some of the mem-
Hart, 3 Wallace, 559; S. C., Bl. Pr. Ca. bers have a neutral residence, see The
379. That by international law, ene- William Bagaley, 5 Wall. 377; though
mies' goods are protected by neutral this does not affect the separate pro-
flag, see Schwartz v. Ins. Co., 3 Wash. perty of partners having a neutral
C. C. 117. residence, ibid.; The Sally Magee, Bl.
That shipping goods in an enemy's Pr. Ca. 382; The Aigburth, ibid. 69,
ship gives presumption that the goods 645.
belong to an enemy, see The London That mere residence in a belligerent
Packet, 1 Mason, 14; The Amy War- nation may impress the character of
wick, 2 Blatch. 635. belligerency, see The Gray Jacket, 5
1 McConnell v. Hector, 3 Bos. & P. Wall. 370; The Pioneer, Bl. Pr. Ca. 2,
115; The President, 5 C. Rob. 248; 22, ; The Prince Leopold, ibid. 89,
647; The Lilla, 2 Sprague, 177.
313
§ 219.1 COIMENTARIES ON LAW. [CHAP. IV.
which, if the latter term be regarded as defining the rule,

would largely extend belligerent rights) "in a belligerent
country, his property is liable to capture as enemy's property,
and if he resides in a neutral country, he enjoys all the privi-
leges, and is subject to all the inconveniences of the neutral
trade."" Sir Robert Phillimore, on the other hand, evidently
accepts this position with reluctance;2 though it is reaffirmed
by Mr. Dicey, who states the distinction to be as follows: "A
commercial domicil is such a residence in a country for the
purpose of trading there as makes a person's trade or business
contribute to or form part of the resources of such country,
and renders it, therefore, reasonable that his hostile, friendly,
or neutral character should be determined by reference to the
character of such country.-When a person's civil domicil is
in question, the matter to be determined is whether he has or
has not so settled in a given country as to have made it his
home.-W hen a person's commercial domicil is in question,
the matter to be determined is whether he is or is not residing
in a given country with the intention of continuing to trade
there."3 This is clearly put; and if we accept the position
that an enemy's goods may be seized at sea wherever found,
gives us at least a line of demarcation readily understood and
easily applied. It is, however, to be regretted that the term
"domicil" should be adapted to conditions so different as resi-
dence with intention to establish a permanent home, and resi-
dence with intention to engage in business. The rejection
of this distinction renders still more objectionable the claim
of belligerents to seize an enemy's goods at sea. If by an
"enemy" is to be considered any one who by his business con-
tributes to the resources of an enemy's country, it would be
hard for any goods on the high seas, in.any way related to a
belligerent country, to escape the meshes of the net of the
other belligerent.4 And even were we to hold that a com-
I To this he cites The Chester, 2 2 Phill., iv. p. 169.

Dall. 41; Maley t. Shattuck, 3 Cranch, 3 Dicey on Domicil, p. 345; see,
458; The Venus, 8 Cranch, 253. To further, Whart. Con. of Law, § 70.
the same effect, see The William Baga- 4 That a principal who does business
ley, 5 Wall. 377; The Cheshire, 3 through an agent in a foreign land is

Wall. 231. "sufficiently invested with the na-
314
mercial " domicil" of this kind stamps the party accepting it
with the political character of the country in which he does
business, the more reasonable view is that if he engage in such
business in times of peace, this " domicil," if not adopted as
final, ceases when the sovereign of such country enters into a
war which could not have been contemplated by the party
when he engaged in the business.' But where a merchant
elects to put his goods in a country engaged in war, he im-
presses such goods, according to the English view, with the
political character of such country; and this "allows a mer-
chant to act in two characters, so as to protect his property
connected with his house in a neutral country, and to subject
to seizure and forfeiture his effects belonging to the establish-
ment in the belligerent country."2
tional character by the residence of his In a letter from Mr. Hoffman to Mr.
agent," is asserted by Chancellor Kent Evarts, dated at St. Petersburg, April
on the authority of The Anna Catha- 14, 1879 (Foreign Relations U. S. 1879,
rina, 4 C. Rob. 107; and of The San 913), we have the following:-
Jose Indiano, 2 Gallis. 268; The Venus, " It appears that an American citi-
S Cranch, 253. zen residing in Turkey suffers injury
1 This is the position taken by Mar- from the Russians, then at war with
shall, C. J., in The Venus (8 Cranch, Turkey. The treaty of 1832 applies
253), dissenting in this respect from exclusively to Americans residing on
the majority of the court, who held to Russian territory. I am unable, there-
the English view. Chancellor Kent fore, to bring this case within the pur-
(Com., i. 79) and Mr. Duer (Ins., i. view of the treaty.
498) vindicate the dissenting opinion of "On the other hand, I find it laid
the chief justice; Chancellor Kent say- down in the books that the property of
ing " there is no doubt of its superior a foreigner residing and doing business
solidity and justice." And even by on a belligerent's territory, is, so far
the English courts a person doing busi- as the other belligerent is concerned,
ness in a land in which he is not natu- hostile property, and may be treated
ralized is allowed, on the breaking out like that of a native. He pays taxes,
of war, a reasonable time to leave such may be called upon for military ser-
land, and dissolve his business rela- vice, and contributes in various ways
tions. The Gerasimo, 11 Moore, P. C. to the strength of the country of his
88 ; The Ariel, ib. 119; see, for parallel residence.
cases in this country, The William " Baptiste Guillem was a French cook,
Bagaley, 5 Wall. 377; The Gray Jacket, residing in Mexico at the commence-
5 Wall. 370. ment of our war with that country.
2 1 Kent's Com., 81 ; citing The Port- He left it immediately on the breaking
land, 3 C. Rob. 41; The Jonge Klas- out of the war, on his return to France,
sina, 5 C. Rob. 297; The San Jose, 2 and was captured by our fleet with his
Gallison, 265. property. In the opinion delivered by
315
§ 220. Assuming that goods at sea are liable to be seized

Seizable by an enemy, it is settled that while in transitu they
property cannot be assigned in such a way as to relieve
cannot es- them of such liability. " When war is existing or
cape seizure
by assign- impending, the belligerent rule applies, and the
ment. imedntebliertr
ownership of the property is deemed to continue as
it was at the time of the shipment until actual delivery ;"I
though this right ceases when the property reaches its desti-
nation. 2 On the same principle, it has been held that property
on the ocean cannot be burdened with liens so as to elude
captors.3 Even a bona fide mortgagee not in possession has
been held to have no title which he can set up against cap-
ture.4
Chief Justice Taney (United States v. United States we have always refused
Guillem, 8 Howard), he says:- to admit the claims of foreigners domi-
" The hostile character which his ciled in the southern states during our
domicil in Mexico had imposed upon war for damage to their property. An
him and his property had therefore exception was made in favor of British
been thrown off, and as soon as he subjects, but this exception was spe-
sailed from Vera Cruz he recovered the cially secured to them by the treaty of
character of a French citizen, and as Washington, and we were supposed to
such was entitled to the rights and have received an equivalent for it. In
privileges of a neutral in regard to his France damage done to property in
property, as well as in his person. Paris during the commune was paid
"Had he not left Mexico, therefore, for; but this I take to have been upon
his property would have remained hos- the principle that the municipality is
tile property, and he would not have liable for the acts of a mob and for in-
been entitled to the rights and privi- juries committed by the authorities in
leges of a neutral. putting down the mob."
" Mr. Dutilth, an American citizen, As to the domicil which determines
resided in Holland in 1794, when Great national character, see The San Jose
Britain was at war with Holland. His Indiano, 2 Gall. 268; 1 Mason, 38;
property was captured, part of it be- The Mary Clinton, Bl. Pr. Ca. 556;
fore he went to Holland, and part dur- The Sarah Starr, Bl. Pr. Ca. 69.
ing his residence there. The former 1 Anna Catharine, 4 C. Rob. 112;
was restored to him ; the latter was The Frances, 1 Gallison, 453 ; 8 Cranch,
condemned, upon the ground that while 335; Sally Magee, 3 Wall. 451.
he was a neutral resident of Holland 2 The Baltica, 11 Moore, P. C. 141
his property was hostile property (the Baltazzia u. Ryder, 12 Moore, P. C.
Hannibal and Pomona, Lords, 180 a), 168.
and the same principle was laid down 3 The Frances, 8 Cranch, 335, 359;
by Mr. Justice Washington in the case Sally Magee, 3 Wall. 451.
of Venus (8 Cranch). 4 The Hampton, 5 Wall. 372.
"If I am not mistaken, too, in the

316
§ 221. It is necessary, in order to place the members of an

army under the protection of the law of nations, Guerillas,
that it should be commissioned by a state. If war wlen inter-
were to be waged by private parties, operating ac- nntioand.
cording to the whims of individual leaders, every
place that was seized would be sacked and outraged; and war
would be the pretence to satiate private greed and spite.
Hence, all civilized nations have agreed in the position that
war to be a defence to an indictment for homicide or other
wrong, must be conducted by a belligerent state, and that it
cannot avail voluntary combatants not acting under the
commission of a belligerent.' But free-booters, or detached
bodies of volunteers, acting in subordination to a general
system, if they wear a distinctive uniform, are to be regarded
as soldiers of a belligerent army.2 This was accorded to the
partisans of Marion and Sumter in the American Revolution,
they being treated as belligerents by Lord Rawdon and Lord
Cornwallis, who were in successive command of the British
forces in South Carolina; by Napoleon to the German inde-
pendent volunteers in the later Napoleonic campaigns; and
by the Austrians, at the time of the uprising of Italy, to the
forces of Garibaldi.' There must, however, be a military
uniform, and this test was insisted on by the government of
the United States in its articles of war issued in 1863, and by
the German government in its occupation of France in 1871.4
I See supra, §§ 144, 178, 210. sidiary forces, camp followers, etc.
2 See Bluntschli, 3d ed., §§ 512, 570. But ununiformed predatory guerilla
Mr. Field, in his proposed code, bands are regarded as outlaws, and
thus speaks:- may be punished by a belligerent as
§ 736. The following persons, and robbers and murderers. Halleck, Int.
no others, are deemed to be impressed Law and Laws of War, 386, 387;
with the military character:- Heffter, Droit International, § 126; 3
1. Those who constitute a part of Phillimore's Intern. Law, § 96; Lie-
the military forces of the nation; and, ber's Instructions for the Government
2. Those who are connected with the of Armies of the United States, section
operations thereof, by the express iv. But if employed by the nation,
authority of the nation. they become part of its forces. Hal-
3 Lawrence's Wheaton, Elem. of Int. leck, p. 386, § 8 ; adopted by Field,
Law, p. 627, pt. iv., ch. ii. § 8; Dana's ut supra.
Wheaton, §356; Bluntschli, Droit Int. Fior6, as cited by Field, says that the
Codifi6, § 569, cited by Field, ut sup. army, which may consist of regulars,
The same privileges attach to sub- volunteers, mercenaries, troops of al-
317
§ 222. When an invading army withdraws, the condition

of things existing before the occupation is restored.
drawal of By the Roman law this restitution, so far as the
an inva-
. d return of groods is concerned, is spoken of as postlini-
system is nium. to be discussed in the next section. After the
revived.
withdrawal of military government, at the close of
the late civil war, it was held that the authority of the civil
courts revived.' When an invader withdraws from an in-
vaded foreign country, that country is left to the reorganiza-
tion of its own institutions. 2
( 223. Thejus postliminii, or right of postliminy, as it some-
Jus post- times is called, is the right of the owner of recap-
Uinii is tured goods to be restored to their possession. If,
right of the
owner of for instance, my goods are seized by foragers of an
recaptured .
property to invading army, and these foragers are promptly
be restoed driven back and the goods taken from them by an
session. armed force of my own country, I am entitled to
have my goods restored to me.3 There are, however, several
qualifications of this right:-
(1) It cannot be exercised in the territory of a neutral state,
lies, etc., must be organized, disci- military organization, and for political
plined, and subjected to the command reasons, without motives of private
of the public authority. Fiord, Nou- gain, take part in hostilities existing
veau Droit International, v. ii. p. 277. between belligerents, are not to be
" As to the status of franc-tireurs dur- treated as criminals. unless after being
ing the Franco-German war, 1870, required by the enemy to lay down
Count Bismarck declared to the French their arms or to join the regular mili-
government that 'only men who can tary forces within a reasonable time,
be recognized within gunshot, as sol- they fail to do so.'" Field, § 7S 7.
diers, shall be considered and treated Bluntschli, § 570, treats as belli-
as such;' and 'that all those who, gerents such volunteer bodies as those
not being on all occasions and at a which Garibaldi led on his own autho-
proper distance recognizable as sol- rity in the Italian wars of 1959 and
diers, may kill or wound any Prus- 1866. Lieber, in his Instructions, takes
sians, shall be tried by court-martial.' a stricter view.
Foreign Relations of the United States, I Ex parte Milligan, 4 Wall. 2; see
170, p. 142." Field, tt supra. supra, §§ 37, 38.
" Inhabitants of a country invaded, Supra, § 137 et seq.
who spontaneously unite in arming 3 Vattel, b. 3, c. 14; 1 Kent's Com.,
to oppose invasion, or who, under 16S8; Hall, Int. Law, § 162.
318
since a neutral state necessarily regards all captures by bel-
ligerents as equally legal.1
(2) The recapture must be prompt. After twenty-four
hours, goods seized in a land war vest in the captor, so far, at
least, as to give title to those by whom the goods are recap-
tured.
Difficult questions arise as to the disposition of property
seized by the invader in conformity with the law of nations.
If the invader is authorized to make such seizure, he is author-
ized to pass title to the goods seized, and to such goods in
the hands of bona jide purchasers from the invaders, postli-
minium does not apply. 2-Real property is not affected by the
limits imposed on the title to goods. When land is occupied
by an invader, his title is not regarded as complete until rati-
fied by the treaty of peace. When so ratified, if the land is
alienated by the conqueror, the alienee, according to the
prevalent opinion, takes title subject to the contingencies of
a reconquest, in which case the title reverts to its former
owner.3 In any view, a treaty of peace extinguishes the right
of postliminy in parties who might by such right have recov-
ered property during the pendency of war.'
§ 224. By the statute law of England, when ships or goods
captured at sea by an enemy are recaptured during Maritime
the war, they are to be restored to the original owner, law re-
on paying salvage. The same right is reserved to toores craop-
1 See McDonough v. Dannery, 3 Dal- enemy, but recaptured from the enemy.
las, 188; Josefa Segunda, 5 Wheat. " Postliminium fingit eum, qui captus
388. est, semper in civitate fuisse ; dictum
2 Holtzendorff, ut sup., citing Eichel-
est autem postliminium a limine et
man, Uiber die Kriegsgefangenschaft, post, ut eum, qui ab hostibus captus
1878. in fines nostros postea pervenit, post-
That the jus postliminii does not sub-
liminio reversum rectedicimus." § 5,
ject intermediate importations liable i. 1, 12, tit. D. 49, 15, c. 8, 51.
to duty to the recovering sovereign, see By an ordinance of the Continental
U. S. u. Rice, 4 Wheat. 246; U. S. v. Congress the jus postliminii was limited
Hayward, 2 Gall. 485. to " a recapture within twenty-four
In the Roman law the jus postliminii hours." The Resolution, 2 Dall. 4.
was the right of a person returning 3 Vattel, b. 3, c. 7, § 132; 1 Kent's
from captivity, not only to recover his Com., 111.

former status, but to have restored to 4 Vattel, b. 3, c. 14, § 216; Schoone
him the goods taken from him by the Sophie, 6 C. Rob. 139.
319
226.]1 COMMENTARIES ON LAW. [CHAP. IV.
erty on allies of England who act according to the same

paying
salvage. liberal principles.' The salvage is awarded as a mat-
ter of right to the recaptor. By the act of congress
of June 30, 1864, ch. 174, § 29, salvage is allowed in all
cases of restoration (which must be before condemnation) of
vessels or other property recaptured by United States forces
from captures by an enemy. But to such cases the law of post-
liminium, in its technical sense, does not apply. " If a prize
be brought into a neutral port by the captors, it does not
return to the former owner by the law of postliminy, because
neutrals are bound to take notice of the military right which
possession gives, and which is the only evidence of right ac-
quired by military force as contradistinguished from civil
rights and titles. . . . All captures are to be deemed lawful,
and they have never been held within the cognizance of the
prize tribunals of neutral nations.'"3
XIV. CONTRABAND.
§ 226. There are two classes of goods as to which no ques-
tion can arise in this connection. The first comprises
contraband things that could not possibly be used for warlike
of war may
be forfeited purposes, e. g., books in no way connected with war,
articles of family dress, etc. The second comprises
articles which could not be used for any but warlike purposes,
e. g., cannon, torpedoes, and firearms so constructed as to be
fitted only for military use. Between these two classes fall
innumerable articles, whose character in this respect depends
upon the concrete case. Iron, for instance, would not be
ordinarily contraband; but if it be forwarded to a cannon
foundry belonging to a belligerent to be made up into cannon,
and if the whole transaction be for the purpose of thus ap-
plying the iron, then the iron in this particular case would be
contraband. On the other hand, it may be said that from the
nature of things powder is contraband of war; yet in a great
country like the United States, where there are so many uses
to which powder can be put beside that of the battlefield, it
I The Santa Cruz, 1 C. Rob. 50. 3 Kent's Com., i. 109.

The Two Friends, 1 C. Rob. 271.
320
would be absurd to say that sales of powder in large masses
from a powder mill are contraband, though it was probable at
the time that some portion of the powder so sold would pass
into belligerent hands. Coal, also, may be the subject of
lively controversy in this relation.' It is certainly no breach
of neutrality to sell coal for use on a belligerent steamer visit-
ing the port of sale casually under distress of weather. But
it would plainly be a breach of neutrality to establish a coal-
ing depot to supply all steamers of a belligerent which might
desire to be thus aided. The fact is, that unless in the two
extreme cases above noticed, each case, if not determined by
treaty, must depend upon the particular facts. It should be
added that personal service-locatio operis-may be contra-
band of war; and in this sense negro slaves of a bclligerent
were held in the late American civil war to be contraband,
and liable to capture and liberation as such.2
I Infra, § 251; see Whart. Crim. which are not likely to be used for the
Lawv, 8th ed., §§ 1901 et seq. military aid of a belligerent are not
9 Holtzendorff, 1252, citing Moseley contraband. See The Commercen, 1
on Contraband of War, 1861; Mar- Wheat. 382. Whether neutrals are
quardson, Der Trentfall, 1862; West- precluded by the law of nations from
lake in Revue de Droit International, furnishing articles contraband of war
ii. 614; Lehman, Kriegsoontrebande, to a belligerent, see infra, §§ 238 et seq.
1877; Gianquinto, Della Confisca per The United States, in treaties nego-
Contrabando, 1872; see to same effect, tiated in the two administrations of
Perels, § 45; Phillimore, iii., § 266; Washington and Adams, classed muni-
Bluntschli, § 805 ; Gessner, 12th ed., tions of war, horses, sulphur, and salt-
82. petre, as contraband; while provisions,
That articles contraband may be coin and metals, ships and articles of
seized on neutral ships, see The Peter- naval construction, were excluded from
hoff, 5 Wallace, 28. the category. In response to the En-
As to seizure of insurgent's goods, glish instructions of June, 1793, it was
see infra, § 455. insisted that provisions can only be
As to seizure of cotton, see supra, contraband when. sent to a place ac-
§ 216. tually invested. Mr. Randolph to Mr.
In The Jonge Margaretha, 1 C. Rob. Hammond, May 1, 1794; Am. State
189, it was held by the English admi- Papers, i. 450. It is true, that subse-
ralty court that the scope of contraband quently the supreme court held that
prohibitions varies with the circum- provisions "destined for the army or
stances of.the times. Thus, in 1747, navy of the enemy, at his ports of naval
butter, salt fish, and rice were held to equipment," are contraband. The Com-
be contraband; though the prevalent reercen, 1 Wheat. 387; see Maissonnaire
rule is now held to be that provisions v. Keating, 2 Gall. 335. But while one
21 821
§ 227. As to whether confiscation is to extend beyond specfic

contraband goods, several distinctions have been taken. Or-
tolan holds that the entire cargo can be confiscated:-
belligerent may seize provisions on their ous or uncertain use, when in the
way to the other belligerent's ships, the enemy's country and in time of war."
mere fact that a belligerent should "One class of writers contends for
conclude that certain provisions may an absolute rule as to all articles of
fall into hostile hands will not justify such descriptions ; so that if upon the
him in confiscating such provisions as application of the general test, they are
contraband. left ancipitis usus, they must be free,
According to Chief Justice Chase (The and no further inquiry can be made
Peterhoff, 5 Wall. 58), contraband for the purpose of ascertaining the pro-
goods are divided into three classes : bable use in the particular case.
" Of these the first consists of articles Another class of writers contends, that
manufactured, and primarily and ordi- as to such articles inquiry may be made
narily used for military purposes in into the circumstances, for the purpose
time of war; the second, of articles of determining their probable use in
which may be and are used for pur- the particular instance. The latter
poses of war or peace, according to cir- rule has been unquestionably the
cumstances; and the third, of articles British doctrine, enforced by her orders
exclusively used for peaceful pur- in council and prize courts, recognized
poses." in her treaties, and sustained by her
" Merchandise of the first class des- statesmen and text-writers. Reddie on
tined to a belligerent country, or places Maritime Intern. Law, ii. 456; Philli-
occupied by the army or navy of a bel- more's Intern. Law, iii. 245-24:
ligerent, is always contraband; mer- Wildman's Intern. Law, ii. 210 et seq.;
chandise of the second class is contra- Manning's Law of Nations, 282 et seq.;
band only when actually destined to Mosely on Contraband, passim. It may
the military or naval use of a belli- also be said, in the main, to have been
gerent; while merchandise of the third the American doctrine." Kent's Com-
class is not contraband at all, though mentaries, i. 140; Halleck, Intern.
liable to seizure and condemnation for Law, 569-590; Woolsey, Intern. Law,
violation of blockade or siege." §J 180, 181.
Artillery, harness, men's army blu- " Of the continental writers, Haute-
chers, artillery boots, government regu- feuille contends for the absolute rule
lation gray blankets, are of the first limiting contraband to such articles as
class. Id. are in their nature of first necessity for
Contraband is liable to capture when war, substantially exclusively military
destined to the hostile country or to the in their use, and so made up as to be
actual military or naval use of the capable of direct and immediate use in
enemy (according to the above rule), war. (Tit. 8, § 2, tom. ii. pp. 84, 101,
whether a violation of blockade be in- 154, 412; tom. iii. p. 222.) Ortolan is
tended or not. Id. of the same opinion, in principle; and
Dana, in his notes to Wheaton, gives contends that all modern treaties limit
the following statement:- the application of contraband to articles
" The principal point in dispute is directly and solely applicable to war;
as to articles admitted to be of ambigu- yet he admits that certain articles not
322
1. When three-fourths of it are contraband. In cases of
conspiracy
2. When the non-contraband articles belong to the ships may
be confis-
owner of the contraband. cated.
actually munitions of war, but whose the enemy's country, and more espe-
usefulness is chiefly in war, may, under cially if the property of his subjects,
circumstances, be contraband; as sul- and destined for enemy's use, they are
phur, saltpetre. marine steam ma- not exempt from the contraband char-
chinery, etc.; but coal, he contends, acter, even though they are destined
from its general necessity, is always to a neutral country. The Commer-
free. (Tom. ii., ch. vi. 179-206.)" cen, 1 Wheat. 382; see Maissonnaire v.
" Mass6 (Droit Comm., i. 209-211), Keating, 2 Gall. 325; The Stephen
admits that the circumstances may de- Hart, Blatch. Prize Cases, 387; The
termine whether articles doubtful in Springbok, id. 434; The Peterhoff, id.
their nature are contraband in the par- 463, 528, 620.
ticular case, as the character of the It has also been ruled that printing
port of destination, the quantity of presses, materials and paper, and post-
goods, and the necessities and charac- age stamps, belonging to the enemy,
ter of the war. The same view is taken and intended for its immediate use,
by Tetens, a Swedish writer (Sur les are contraband. The Bermuda, 3 Wall.
Droits Reciprogues, pp. 111-113). 514 ,552.
Hubner (lib. ii., ch. i., §§ 8, 9), seems " The doctrine of occasional contra-
to be of the same opinion with Tetens band received its widest extension in
and Mass6." the war of England against revolution-
" Kliber (§ 288), says that naval ary France. The British representa-
stores are not contraband; but adds, tive to our government claimed in 1793
that in case of doubt as to the quality and 1794, that by the law of nations
of particular articles, the presumption all provisions were to be considered as
should be in favor of the freedom of contraband, in the case where the
trade." depriving the enemy of these supplies
" The subject is not affected by the was one of the means employed to
Declaration of Paris, of 1856." Dana's reduce him to reasonable terms of
Wheaton, note 226, p. 629. peace, and that the actual situation of
The English courts treat as goods France was such as to lead to that
absolutely contraband, ammunition mode of distressing her, inasmuch as
and materials for ammunition; mili- she had armed almost the whole labor-
tary and naval equipments and stores; ing class of the people for the purpose
Charlotte, 5 C. Rob. 305; hemp, cord- of commencing and supporting hostili-
age, and other materials for fitting up ties against all the governments of
shipping; Neptunus, 3 C. Rob. 329; 6 Europe. If a government had armed
C. Rob. 408; and steam engines and nearly its whole laboring population
machinery for steamers; Lushington, the laws of political economy would
Prize Law, §§ 169-72. probably reduce it to weakness far
It has also been held that goods sooner than the cruisers of its enemy
which are the produce of a neutral would have that effect." Woolsey, Int.
exporting company are not contra- Law, § 182.
band; but if they are the growth of
323
3. When there are false ship papers.'

The second of these positions is adopted by Phillimore?
But the other rules are too arbitrary and artificial to be sus-
tained, and even this is open to grave doubt.8 lor should the
ship be confiscated unless it appear that the captain or owner
was in a conspiracy with the owner of the contraband goods,
to forward them to the enemy.
I Op. cit., ii. 197. transported from Montevideo to Valpa-

2 Op. cit., iii. § 277. raiso arms and ammunition destined
3 Perels, § 46. to aid Chili in the war against Peru.
4 See The Standt Embden, 1 C. Rob. During the proceedings, the Peruvian
26; The Franklin, 3 C. Rob. 217; ministry requested from the College
The Ranger, 6 C. Rob. 125. of Advocates, and from other special
In 1879, during the war between authorities, an opinion as to the ques-
Peru and Chili, the steamer Luxor, of tion A issue. M. Pradier-Fod6r6, an
the German navigation line between eminent publicist of Lima, gave an
Hamburg and Callao, received, with opinion adverse to the right of confis-
other merchandise, at Montevideo, cation. The contraband of war, he
three hundred and forty-two packages argued, had escawed process; it had
loaded in the name of A. Kampmanu, been landed, and the ship had then
addressed to Agustin Edwards, marked proceeded on her course. The modern
" contenu nonconnu"-" contents un- tendency of international law, so he
known." The packages contained insisted, is to restrict the right of con-
arms and munition of war, to be fiscation of vessels carrying contraband
disembarked at Valparaiso. When of war; and this right is denied by
the Luxor arrived at Valparaiso, after almost the entire Italian school, and
these articles of contraband of war by a large section of French and Ger-
were disembarked, the captain of the man publicists. In this view coincide
Luxor visited the consul-general of Fiord, Vidari, de Gioannis, Mass6, Bul-
the German empire and presented a merincq, Hautefeuille, Ortolan, Pin-
declaration to the effect that he was heiro-Ferreira, Kliiber. Mr. Westlake,
ignorant of the contents of the cases, also, is cited to the effect that in prin-
that no communication had been made ciple the transport of articles con-
to him in this relation, and that if lie traband of war does not constitute an
had known the contents he would not act of hostility. If it is not an infrac-
have received them. The declaration tion of the law of nations for a neutral
was received and attested by the con- to permit the sale to foreign countries
sul on May 9, 1879, and the Luxor of contraband of war, it is not an in-
continued on her voyage, stopping at fraction of the law of nations for a
the several Chilian and Peruvian ports neutral to transport such articles when
which were on her route. When she sold; and Peru, in its code, has pro-
arrived at Callao, she was seized by the hibited neither the sale nor the trans-
order of the government of Peru, and portation of such articles. Aside from
taken before a prize court, on the charge this point, it was urged that war does
of having violated neutrality in having not suspend the commerce between
324
CHAP. IV.] PUBLIC INTERNATIONAL LAW. h§ 228.
228. By recent high authorities the extension of the
category of contraband has been advocated so as to include
neutrals and belligerents; and, though of false papers, M. Pradier-Fod6rC thus
the contraband of war of one belli- speaks:-
gerent can be seized whenever found " Quant N la question des circon-
by the other belligerent, transporta- stances fraudulouses, de faux papiers
tion does not taint the ship at least et de fausse destination, je ne pensais
after the goods are discharged. The pas qu'elle ptst tre r6solue affirmative-
exceptional cases in which confiscation ment contre le Luxor, en se fondant
of the ship is sustained by Helfter, sur ce que le connaissement et l'ordre
Bluntschli, and Woolsey, are the fol- d'embarquement portaient la mention
lowing:- de ' contenu non connu.' Assur6ment
(1) When the ship is exclusively il 4tait impossible de croire que le
employed in carrying contraband of capitaine n'efit pas connu le contenu
war; des 342 caisses, et, s'il lavait ignor6,
(2) When the proprietor of the ship il edt 6t6 trs-coupable, il edt manqu6
knew that the ship was to carry con- aux devoirs les plus 6l6mentaires de sa
traband; profession. Mais, 0ad voir les faux
(3) When the contraband formed a papiers ? Oa, la fausse destination ?
material part of the cargo; Je voyais lindication tras incomplete
(4) When the ship and the remain- d'une destination 6quicoque, mais je ne
ing cargo belonged to the owner of the voyais rien de plus autorisant une
contraband; expropriation aussi grave que la con-
(5) When the transaction was cov- fiscation d'un navire."
ered by fraudulent papers and false On the question of the practice of
entries ; the great powers in respect to confisca-
(6) When the ship was itself contra- tion, M. Pradier-Fod6r6 makes the fol-
band of war; lowing striking remarks:-
(7) When the ship belonged to a "J'avouerai que la conduite tenue
party expressly-bound, by the treaties par les Etats de premier ordre n'a pas
existing between his country and the pour moi une grande valeur. Je me
country confiscating, to abstain from suis habitu6, depuis que je lis 1'his-
furnishing such articles to the enemy; toire, & voir tant d'iniquit6s commises
(8) When the ship resisted the ex- par les puissances pr6pond6rantes, que
ercise of belligerent rights on the con- la conduite des grands Etats, dans les
traband. questions internationales, exerce pen
The Luxor, it was argued, did not d'influence sur mon esprit. Si je
fall within any one of these excep- voyais des usages constamment suivis,
tions. en vertu de principes tellement univer-
M. Pradier-Fod6r6 conceded that the sellement ou mame g6n6ralement
captain's good faith could be. im- adopt6s, qu'on pourrait les considdrer
peached, but that even if it was shown comme une r6gle tacite du droit des
that he knew of the state of the war gens, je ferais un grand cas de cette
and the contents of the packages, base de d6cision ; mais ce n'est pas ce
this did not impute knowledge to the qui arrive le plus souvent. Les pra-
European owners. On the question tiques des Etats varient beaucoup sur
325
what may be called constructively contraband (uneigentliche

Question as Kriegs-contrebande, contrebande par accident).
to des- Under this bead are enumerated:-
patches and
ipleoatc (1) Despatches forwarded by a neutral on behalf
agents. of a belligerent, by which belligerent operations
are furthered.'
(2). Vessels of transport, by which the soldiers or sailors
of a belligerent may reach him. 2
]a mOme question donn6e; et, ce qu'il I Perels, § 47; Gessner, 12th ed.,
y a de dicourageant, c'est que trop 115.
fr6quemment la mame puissance con- 2 Gessner, 12th ed., 115, rejects this
tredit le lendemain ce qu'ell a pratiqu6 position, and is sustained by several
French and German authorities. That
la veille. C'est une affaire de politique,
c'est-h-dire, d'appr6ciation des oppor- despatches, however, are contraband
tunit6s, de conscience de sa propre is maintained in England, and was
force on de sa propre faiblesse. I est assumed by the United States in the
certain que si je pouvais dire: les late civil war.
Etats faibles ont la coutume d'exercer In a Case in New York, where official
le droit de confiscation, dans des cas despatches of importance were sent
plus on moins pareils a celui du Luxor, from Batavia to New York, and there
sans que les Etats forts 61vent la given unofficially, without notice of
moindre r6clamation, il y aurait li un their nature, to the master of a United
exemple d'une encourageante autorit6 ; States ship,tobe sent to aprivate person
mais a quoi servira-t-il au P6ron que in France, the ship was released upon
je dfclare I son gouvernement que the captain testifying under oath that
l'Angleterre, que l'Allemagne, que les he was ignorant of the nature and con-
Etats-Unis d'Am6rique out quelquefois tents of the letters. The Rapid, Ed-
confisqu6 des navires porteurs de con- wards, 228. On the other hand, the
trebande de guerre, dans des circon- English courts have held, with undue
stances a peu prbs semblables ? Le harshness, that a vessel is not exempt
P6rou est-il les Ctats-Unis d'Amrique ? from confiscation for carrying such des-
Est-il 1'Allemagne? Est-il la Grande patches, even where it was involunta-
Br6tagne ?" rily pressed into the belligerent service
The prize court of Peru decided, by force, or where the character of the
however, in favor of the confiscation of despatches was fraudulently concealed.
the Luxor, and the then government The Carolina, 4 C. Rob. 259 ; The Ora-
determined to retain and appropriate zembo, 6 C. Rob. 436. Sir R. Phillimore,
the vessel in obedience to this decree. iii., § 272, sustains these cases, which
This, however, was corrected by the Mr. Hall dissents from, p. 593. Blunt-
"ERvolution de d6cembre qui renserva schli (§ 803) maintains that military
la constitution et permit a MI. de Pid- despatches (e. g., orders of a command-
rola de saisir la dictature." And one ing officer to a subordinate to carry on
of the first acts of .I. Pi4rola was to military operations)are unquestionably
return the Luxor to the German Trans- contraband, but that it is otherwise
portation Company. with despatches professing pacific ne-
326
(3) Vessels transporting to their place of destination diplo-

rnatic agents of a belligerent, such agents being known by the
officers of the vessel to be on a belligerent errand. The last
point was made by Mr. Seward when surrendering to the
British government Messrs. Mason and Slidell, Confederate
diplomatic agents, whom Captain Wilkes, commanding the
United States war steamer San Jacinto, had seized on the
English postal steamer Trent against the captain's protest, when
on their way from St. Thomas, a neutral port, to England. The
British government promptly and peremptorily demanded the
surrender of Messrs. Mason and Slidell, and had this been
refused, war would unquestionably have ensued. Mr. Seward
acquiesced in the demand, putting his acquiescence on the
ground that the capturing officer should have referred the
question to a prize court, but stoutly insisting that the " cap-
tives" were "contraband." At first the capture was supported,
not merely by popular feeling throughout the north, but by
the opinions of some of the most eminent lawyers; and it is
gotiations, which are to be regarded as to be ' official connunications of official

diplomatic correspondence. See cases persons, on the public affairs of the gov-
noted in Wheaton, § 504, Dana's note. ernment.' The Caroline, 6 Ch. Rob-
In the Tulip, Fisher's Pr. Cas., 26, it inson's Rep. 465. But to this rule
was held that a neutral ship may, by there is an exception in the case of
the law of nations, carry despatches communications to or from a neutral
from a minister resident in the neutral nation, or the hostile nation's ministers
country to the ports of the belligerent or consuls resident in the neutral na-
in the country to which the minister tion."
belongs. If stopped on the high seas As to the effect of war upon the mail
by the other belligerent, however, the service, see Field, §§ 862, 919.
duty of the ship's master, it was held, " Lushington (Naval Prize Law, In!
is to deliver up the despatches to the trod., p. xii.) says, that to give up
arresting belligerent. altogether the right to search mail
The following is from Mr. Field's steamers and bags, when destined to
proposed international code "§ 861. a hostile port, is a sacrifice which can
Documents are contraband, when they hardly be expected from belligerents;
are official communications from or to citing Desp. of Earl Russell to Mr.
officers of a hostile nation, and fitted to Stuart, November 20, 1862; Parlia-
subserve the purposes of the war, but' mentary Papers, No. Amer., No. 5,
not otherwise. 1863." Ibid. § 862.
" Sir William Scott interprets ' des- As to arrest of diplomatic agents, see
patches,' treated of in the decisions as supra, § 168.
warlike or contraband communications,
327
an interesting fact that at a meeting held in Boston shortly

after the capture was reported, Chief Justice Bigelow, of
Massachusetts, a judge both cautious and capable, declared
that Captain Wilkes's action was fully justified by interna-
tional law. There is, indeed, more ground than is now gene-
rally admitted for sustaining this contention. It is agreed
on all sides that the right of search may be exercised in war;'
and that a vessel carrying contraband despatches may be
arrested, and, as will presently be seen, will be condemned in
a prize court, according to the English rule, even if the offi-
cers be ignorant of the nature of the despatches, and, accord-
ing to our rule, if any complicity be established. It may
well have been argued, in the Trent case, that for the Trent
to carry diplomatic agents of the Confederacy would expose
the vessel to condemnation as much as would have been the
case if the vessel simply carried despatches. To this, how-
ever, the answer is twofold. In the first place, the better
opinion is that diplomatic agents, sent by a belligerent to a
neutral, are not contraband, since it is always allowable for a
neutral to maintain diplomatic relations with a belligerent,
and the mission of such agents may be one of peace as well
as one for the promotion of hostilities.2 If this position,
which is now generally accepted, be correct,3 it is no answer
that the Confederate states were not belligerents. England
formally recognized them as such, and this recognition was
based on the fact that the United States had blockaded the
ports of the Confederate states, and had negotiated with the
Confederate states treaties for exchange of prisoners, both of
which acts implied a recognition of belligerency. 4 In the
second place, even supposing that the Confederate envoys
I Supra, § 195. As sustaining the That persons cannot be contraband

capture see article in North American of war is maintained by Mr. Hall,
Rev., July, 1862, by Prof. Joel Parker. 600; by Mr. Montague Bernard, 224;
2 See Bluntschli, § 817; Revue ma- and by Marquardson, Der Treutfall,
vit. et col., vol. xix. § 14; Gessner, where the whole question is discussed.
12th ed., 122, states that Prussia, Aus- Supra, § 165; infra, § 229.
tria, and France protested against the That this belligerency had been
seizure. As to general right to arrest, actually recognized by the United
see Heffter, S 161 a; Perels, § 47. States, see §§ 141, 165, 217.
28
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [q, 228.
were contraband, the proper course would have been to have

taken the Trent to a prize court for condemnation. The
determination of the question of contraband in such case was
for a court constituted in conformity with the law of nations,
and could not be assumed by the officers of the arresting
cruiser. At the same time it is an international offence for
a neutral to carry knowingly to and fro the diplomatic agents
of one of the belligerents whose object is the furtherance of
the war.' And in case a neutral ship is knowingly lent to such
transport, whether of despatches or of soldiers, or, it may be,
of agents engaged in furthering the war, confiscation may
be adj udged 2
I See the valuable criticism by Prof.the Confederate government, so called,

Montague Bernard, in his work on to its agents in Europe. The vessel
English neutrality (cf. Revue du Droit itself was allowed to pursue its way,
Int., ii. p. 126), where he agrees that by waiver of right as the officer who
a neutral ship, which carries military made the detention thought, but no
or civil agents of a belligerency on despatches were found. On this trans-
board, is exposed to capture if the in- action we may remark: (1) That there
tention to aid the belligerent plainly is no process known to international
appears. law by which a nation may extract
2 See Phillimore, iii. § 489 ; Mac- from a neutral ship on the high sea a
lachlan, 530 ; Perels, § 47. hostile ambassador, a traitor, or any
On the Trent question, see further criminal whatsoever. Nor can any nen-
articles in London Quarterly Rev., tral ship be brought in for adjudication
Jan. 1862. The question is discussed on account of having such passengers
at large by Mr. Lawrence, Com. sur on board. (2) If there had been hos-
Wheat., iii. 447. And see English tile despatches found on board, the
parliamentary papers, 1862, North ship might have been captured and
America. No. v. p. 26, and, for other taken into port; and when it had en-
references, supra, §§ 163, 195. tered our waters, these four men, being
Dr. Woolsey (Int. Law, § 184) takes citizens charged with treason, were
strong condemnatory ground. " The amenable to our laws. But there ap-
case of the Trent," he says, " in which pears to have been no valid pretext for
this and several other principles of seizing the vessel. It is simply ab-
international law were involved, may surd to say that these men were living
here receive a brief notice. This ves- despatches. (3) The character of the
sel, sailing from one neutral port to vessel as a packet ship, conveying mails
another on its usual route as a packet and passengers from one neutral port
ship, was overhauled by an American to another, almost precluded the pos-
captain, and four persons were ex- sibility of guilt. Even if hostile mili-
tracted from it on the high seas, under tary persons had been found on board,
the pretext that they were ambassa- it might be a question whether their
dors, and bearers of despatches from presence would involve the ship in
329
§ 229. The diplomatic agents of a neutral power are entitled

to communicate with their sovereign through the
Neutral
diplomatic military lines of a belligerent who is investing or
agents may
communi- blockading the place to which they are accredited;
cate with and they are further entitled to pass through the
their sover-
eign military lines of the hostile nation, together with
through
blockade or their families, official and personal, when necessary
siege:
for the purpose of reaching or removing from their
respective posts.'
guilt, as they were going from a neu- No blame could be attached to England
tral country and to a neutral country. for recognizing the Confederate States
(4) It ill became the United States-a as belligerents, since this recognition
nation which had ever insisted strenu- did not take place until the United
ously upon neutral rights-to take a States government had practically, as is
step more like the former British prac- stated above (supra, §§ 141, 165, 217),
tice of extracting seamen out of neutral recognized such belligerency. It is
vessels upon the high seas, than like true, a belligerent envoy to a neutral
any modern precedent in the conduct may be seized by the other belligerent
of civilized nations, and that too when when on his way over the latter's ter-
she had protested against this pro- ritory. But one belligerent cannot in-
cedure on the part of Great Britain vade the territory of a neutral for the
and made it a ground of war. As for purpose of seizing the person of such
the rest, this affair of the Trent has an envoy; and if the territory of a
been of use to the world, by commit- neutral cannot be invaded for this pur-
ting Great Britain to the side of neutral pose, a ship of a neutral cannot be
rights upon the seas." visited and searched for the purpose
It may be added that diplomatic ne- of making such arrest. In resenting,
gotiations by envoys passing between therefore, the arrest of Messrs. Mason
a belligerent and a neutral may be and Slidell, and insisting on their re-
among the most efficient means of restoration, England made at least some
storing peace; and, aside from this progress to the recognition of the doc-
view, the neutral is entitled to main- trine previously and subsequently con-
tain permanent official intercourse with tended for by the American courts,
both belligerents. Nor is it necessary that a ship is to be regarded (except
that the independence of the belliger- when carrying goods contraband of
ent, in order to secure these rights of war, or contraband despatches) as part
diplomatic representation, should have of the territory of the state to which
been acknowledged by the neutral. It she belongs.
is enough that belligerency should be That insurgents may hive diploma-
so acknowledged. The fact that a gov- tic relations with neutrals, see supra,
ernment of a territory having compli- § 165.
cated business relations with a neutral For some interesting details as to the
state, should be recognized by such Trent case, see Thurlow Weed's Life,
neutral as belligerent, entitles the bel- i. pp. 634 et seq.
ligerent to send envoys to the neutral. I Field's Code Int. Law, § 912, fur-
330
( 230. So far as concerns the question of seizure, the desti-
nation of goods is determined by the destination of
Destination
the ship. Even though neutral goods are not in- of ship im-
tended to remain in a hostile port to which they atoto
are bound; yet they are liable to seizure as con-
traband, or as tainted with blockade running, if in a ship
bound for such port. On the other hand, a neutral destina-
tion, for a neutral ship, will protect, even by the English rule,
neutral goods on such ship from seizure.' Contraband goods,
to be open to seizure, must be actually in prosecution of
voyage to a belligerent port,2 though the fact of an intention
on the part of the owners of the vessel to stop at an inter-
mediate neutral port will not exempt the goods from seizure.
XV. BLOCKADE.
§ 233. The declaration of the treaty of Paris that a blockade

to be valid must be effective, seems like a petito Blockade
principii, amounting to little6 more than the declara- must be
ffctiv effective.
tion that a blockade to be effective must be effectie.
But when we recognize the sense given to the word effective,
ther stating " that in the Franco-Prus- by the government of the United States
sian war, during the siege of Paris, the to have conceded it. (Ibid., p. 377.)
official despatches between the govern- But his refusal to recognize it was based
ment of the United States and their partly on the plea that a fortified
legation in Paris, were transmitted to capital was unprecedented (ibid., p.
and fro, across the lines, by the belli- 372), and partly upon the plea that
gerents, subject, however, to delay im- the French Republic had not been re-
posed by the military forces. Private cognized by the German powers. (Ibid.,
correspondence and newspapers were p. 365.)
also allowed transmission into Paris in " Perhaps the same right of commu-
the official despatch bag, the former nication with the hostile nation should
being examined to exclude everything be secured to those public agents who
relating to the war, and newspapers under the last article may have under-
being passed on a pledge that they taken to use their friendly otlices in
should only be read by the American behalf of its members." See Letters on
minister. Foreign Relations of the Foreign Rel. U. S., 1871, pp. 293, 371,
United States, 1871, pp. 283-287. 403.
" The right of the neutral government Field's Int. Code, § 858; Lushing-
to communicate with its representative ton's Prize Law, § 178.
in the besieged city, was not fully con- 2 Hobbs v. Henning, 17 C. B. N. S.
ceded by Count Bismarck (ibid., pp. 791.
291, 363), although he was understood * The Bermuda, 3 Wall. 514.
331
both in the Roman and in our own law, this criticism fades
away. To agree to perform a duty effectively is a very dif-
ferent thing from agreeing to perform it absolutely; the latter
engagement is a guarantee, the former is an engagement to
perform the duty unless casus intervene. A carrier, for in-
stance, does not insure against a sudden frost which a prudent
person could not foresee, nor against peculiar and extraordinary
storms; nor even against defective performance by employds,
when this defectiveness arises from extraordinary interferences
not to be prognosticated. And so it is with blockades. A
blockade to be effective need not be perfect. It is not neces-
sary that the beleagured port should be hermetically sealed.
It is not enough to make the blockade ineffective that on
some particularly stormy night a blockade-runner slid through
the blockading squadron. Nor is it enough that through
some exceptional and rare negligence of the officers of one of
the blockading vessels a blockade-runner was allowed to pass
when perfect vigilance could have arrested him. But if the
blockade is not in the main effective-if it can be easily eluded
-if escaping its toils is due not to casus or some rare and
exceptional negligence, but to a general laxity or want of
efficiency-then such blockade is not valid.' It should be
added tlt the position that the right to blockade is limited
I "In some cases where a blockading though, from the peculiar nature of the
squadron, from the nature of the chan- coast, a large number of vessels suc-
nels leading to a port, can be eluded ceeded in getting in and out during the
with ease, alarge number of successful whole continuance of the blockade."
evasions may be insufficient to destroy Hall, Int. Law, 618, citing Bernard,
the legal efficiency of the blockade. Neut. of Great Britain, chaps. x. and
Thus, during the American civil war xii. "If approach for inquiry were
the blockade of Charleston was usually permissible, it will readily be seen that
maintained by several ships, of which the greatest facilities would be afforded
one lay off the bar between the two to elude the blockade." Field, J., The
principal channels of entrance, while Cheshire, 3 Wall. 235; S. P., The Spes,
two or three others cruised outside 5 C. Rob. 80; The Charlotte Christine,
within signalling distance. This 6 C. Rob. 101. That the president
amount and disposition of force seems of the United States may declare a
to have been thought by the British blockade without the action of con-
government amply sufficient to create gress, see The Sarah Starr, Bl. Pr. Ca.
the degree of risk necessary under the 69; The Amy Warwick, 2 Sprague,
English view of international law, al- 123; S. C., 2 Blatch. 635.
332
to fortified places is regarded as no longer tenable.' The
main object of a blockade is the closing of the ports of a
belligerent so as to exclude him from all commercial inter-
course, and this is a belligerent right recognized on all sides. 2
Neutral vessels attempting to run such blockade are open to
confiscation, on proceedings instituted by the belligerent im-
posing the blockade. But war-ships of neutrals are not in-
frequently excepted from blockade, as was the case with the
blockades instituted by the United States government of the
Confederate ports.-lt becomes, in many cases, a difficult
1Heffter, § 154; Perels, § 48. blockade at the time of sailing, her

2 Kent, i. 145; Phillimore, iii. approaching the blockaded port for the
285. purpose of inquiring there, is in itself
3 Perels, § 48. a consummation of the offence; and
Unless the blockade be directed amounts to an actual breach. The
Against ingress or egress alone, a ves- Cheshire, 3 Wall. 231; The Delta,
sel violates the law of blockade by Blatchford's Prize Cases, 654.
any positive act towards entering or That a sovereign may blockade ports
quitting, or by showing a clear and in the control of insurgent subjects,
speedy intention to enter or leave a see Prize Cases, 2 Black, U. S. 635 ;
blockaded port, except in distress. The Mary, Blatchford's Prize Cases,
Field's Code Int. Law, § 892, citing 556, 618.
The Coosa, 1 Newberry's Ad. Rep. That a contract to run a foreign
393 ; The Hiawatha, Blatch. Prize blockade is not illegal, see Whart. on
Cases, p. 1; 2 Blatch. 635; The Em- Cont. § 480; Chavasse, ex parte, 4 D.
press, Blatch. Pr. Cas. p. 175; Hal- J. S. 655; The Helen, L. R. 1 Ad. &
leck's Intern. Law, ch. 23, § 23. Ec. 1.
Actual necessity, e. g., for repairs, The United States courts pressed the
supplies, or shelter, will justify an right of arrest to a dangerous extreme
entrance into a blockaded port; but in the case of the Springbok (Blatch.
the burden is on the party setting up Pr. Ca. 380, 434; 5 Wal. 1) during the
the reality and urgency of the neces- late civil war. This vessel left London
sity. The Major Barbour, Blatch. on December 9, 1862, destined for
Prize Ca. 167; The Sunbeam, id. 316, Nassau. She was captured on Feb-
638, 656; The Diana, 7 Wal. 354. ruary 3, 1863, when on the way to
If it can be fully shown that the Nassau, and 150 miles from that port,
purpose to run the blockade had been by the Federal cruiser Sonoma. The
abandoned, the property is not liable district court of New York condemned
to confiscation because of the previous both ship and cargo. This decree was
wrongful purpose. 1 Kent's Commen- reversed by the supreme court of the
taries, 147 ; and see, also, The John United States in December, 1866, so
Gilpin, Blatchford's Prize Cases, 291, far as concerns the ship, but affirmed
661. as to the cargo. There was nothing in
Unless there be an excusatory treaty the papers seized on the Springbok to
stipulation, when a ship knew of the show that the intention was to run the
333
question to determine whether the attempt to run the blockade

is made out sufficiently to justify a seizure. It may happen,
blockade. The British government United States: and it is a matter of
had previously (on March 13, 1863) regret that Mr. Fish's instructions in
referred this question to its official this respect were not pressed so as to
counsel, who, in an opinion signed secure the repudiation of the doctrine.
also by Sir R. Phillimore, declared As concurring in this criticism, see
"that there was nothing to justify the Gessner, 12th ed., p. 231.
seizure of the barque Springbok and Bluntschli (p. 469) maintains that
her cargo; and that her majesty's the ruling of the supreme court in the
government would be justified in de- Springbok case is more perilous to the
manding the immediate restitution of rights of neutrals than the doctrine of
the ship and the cargo, without sub- paper blockade.
mitting to any judication by an Amer- The question of the liability of the
ican prize court." But, notwithstand- Springbok to confiscation was the sub-
ing this emphatic judgment, the decree ject of discussion by several members
of the supreme court of the United of the Institute of International Law
States was approved by the mixed in 1881. (Revue de droit int., xiv. 328.)
commission instituted at Washington It was agreed on all sides that the
in pursuance of the treaty between opinions of the supreme court of the
the British and the United States United States in this case established a
governments for the settlement of the theory entirely novel. At a meeting
points in dispute between them. This of the institute at Genoa, in 1852, the
is more remarkable, since in a docu- question was brought formally up by
ment published in Washington on M. Martens, an eminent publicist and
November 30, 1873 (cited in Gessner, professor in the imperial school of law
12th ed., 231), appears the official at St. Petersburg. That the decision
instructions of Mr. Fish, then secretary of the supreme court on the question
of state, to the counsel of the United could not be sustained was agreed to
States, in which it is said that the by all who took part in the discussion;
government approves of all the prize though it was the general sense of
decisions given in the United States, those present that it was not within
except that in the case of the Springbok. the province of the institute to pass
It is easy to see why Great Britain, resolutions condemning the action of
mistress of the seas, should, after the governments or courts in concrete
first annoyance and excitement of the cases.
capture was over, have approved of "The doctrine of continued or con-
a doctrine which sustains the seizure tinuous voyages," says Dr. Woolsey,
of neutral vessels and cargoes, not Int. Law, app. iii., n. 27, " which Sir
only when running into . blockaded W. Scott, afterwards Lord Stowell, origi-
port, but when making a voyage be- nated, deserves to be noticed, and may
tween two ports of the neutral under be noticed here, although it first arose
whose flag she sails. But that such a in reference to colonial trade with an-
doctrine should have been approved other country, carried on by neutrals.
by the supreme court of the United As the English courts condemned such
States is extraordinary, as it is in con- trade, the neutrals in the first part of
fict with the maritime policy of the this century, especially shippers and
334
in cases where a vessel is seized at some distance from the
blockaded port, that the allegation of blockade running may
be disputed. In such cases it is for the prize court to deter-
captains belonging to the United States, the time of setting sail. Now the doc-
tried to evade the rule by stopping at trine of continued voyages has been so
a neutral port and seeming to pay du- applied by our supreme court that it
ties, and then, perhaps, after landing matters not if the vessel stops at a neu-
and relading the cargoes, carried them tral port, or unlades its cargo and an-
to the mother-country of the colony. other vessel conveys it onward, or if
The motive for this was, that if the formalities of consignment to a person
goods in question were bona ide im- at the neutral port, or the payment
ported from the neutral country, the even of duties are used to cover the
transaction was a regular one. The transaction, provided destination to the
courts held, that if an original inten- blockaded port, or, in the case of con-
tion could be proved of carrying the traband, to the hostile country, can be
goods from the colony to the mother- established, the ship on any part of its
country, the proceedings in the neutral voyage, and the cargo before and after
territory, even if they amounted to being landed, are held to be liable to
landing goods and paying duties, could confiscation. Or, if again the master
not overcome the evidence of such in- of the vessel was ordered to stop at the
tention; the voyage was really a con- neutral port to ascertain what the dan-
tinued one artfully interrupted, and ger was of continuing the voyage to
the penalties of law had to take effect. the blockaded harbor, still guilt rested
Evidence, therefore, of original inten- on the parties to the transaction as
tion and destination was the turning- before. All this seems a natural ex-
point in such cases. See, especially, tension of the English principle of con-
the case of the Polly, Robinson's Rep., tinued voyages, as at first given out;
ii. 361-372 ; the cases of the Maria and but there is danger that courts will in-
of the William, ibid., v. 365-372 and fer intention on insufficient grounds.
385-406, and the cases there men- A still bolder extension was given to it
tioned. by our courts in the case of vessels and
" The principle of continued voyages goods bound to the Rio Grande, the
will apply when cases of contraband, goods being then carried up by lighters
attempt to break blockade, etc., come to Matamoras. We could not prohibit
up before courts which accept this Eng- neutrals from sending goods to the
lish doctrine. In our late war many Mexican side of that river ; but if it
British vessels went to Nassau, and could be made to appear that the goods
either landed their cargoes destined for were destined for the side belonging to
Confederate ports there to be carried the United States, that was held to be
forward in some other vessel, or stopped sufficient ground for condemnation of
at that port as a convenient place for a them; although, in order to reach their
new start towards Charleston or some destination, they would need overland
other harbor. If an intention to enter carriage over neutral territory. See
a blockaded port can be shown, the Prof. Bernard's Brit. Neutral., 307-317,
vessel and the cargo, as is said in the and comp. Dana's note 231 on Wheaton,
text, are subject to capture according § 508."
to English and American doctrine from To the effect that a blockade once
335
mine as to the liability of the seized ship. A neutral making

the blockaded port from necessity in case of disaster is exempt
from capture.' A vessel, also, may without liability to con-
demnation, sail on an alternative destination to a blockaded
port, with the intention to go elsewhere if it prove that the
blockade is continued.2-Whether the possession of a port by
the land forces controlling the blockade terminates the block-
ade has been much discussed. The negative has been held
by the supreme court of the United States ;3 the affirmative
by the mixed commission appointed under the treaty of Wash-
ington at the close of the late civil war.'
§ 234. To constitute a binding blockade, it is necessary that
the neutral to be affected should have notice that the block-
ade exists. No particular form of giving notice is requisite.'
established and notified is presumed to sity must be imperative. The Diana,

continue, see The Baigorry, 2 Wall. 7 Wall. 354.
474; The Circassian, id. 134. 2 Naylor v. Taylor, 9 B. & C. 718;
That sailing from a home port with Sperry v. Int. Co., 2 Wash. C. C. 243.
intent to break a blockade is a breach The Baigorry, 2 Wall. 474; The
of blockade, see Fitzsimmons v. Ins. Josephine, 3 Wall. 83.
Co., 4 Cranch, 185; Yeaton c. Fry, 5 4 Lorimer's Law of Nations, 145.
Cranch, 335; The Circassian, 2 Wall. "A British ship, The Circassian, was
135; The Admiral, 3 Wall. 603. That actually seized and confiscated by the
a blockade must be effectual, see The American prize courts for attempting
Peterhoff, 5 Wall. 28; but that it is not to run the blockade at New Orleans,
vacated by casus, such as a storm dis- after New Orleans had been retaken
persing the blockading ship, see The and was in possession of the north;
Columbia, 1 C. Rob. 154; The Hoffnung, and she was restored only under the
6 C. Rob. 116; Radcliff v. Ins. Co., 7 mixed commission appointed by the
Johns. 38. treaty of Washington at the close of
A blockade does not preclude a ves- the war. The commission held that
sel which entered the port before its as the blockade was terminated by
institution from coming out with a the recapture, the right of a belligerent
cargo bonafide purchased and laden be- to exercise the privileges which it con-
fore the blockade began. The Vrow ferred against a neutral vessel was at
Judith, 1 C. Rob. 150; The Gerasimo, an end." Lorimer's Law of Nations,
11 Moore P. C. 88 ; Olivera o. Ins. Co., 145. The point decided in The Circas-
3 Wheat. 185; Prize Cases, 2 Black, sian, 2 Wall. 135, was that the sailing
635. In the volume of Blatchford's from a neutral port, with intent to run
Prize Cases will be found a series of a blockade, exposes a vessel to confis-
decisions as to what constitutes evi- cation at any place at which she may
dence of intent to run a blockade. be seized.
1 Perels, §§ 48, 51. But the neces- 6 This is fully and ably discussed in
Gessner, 12th ed., p. 197.
336
OHAP. IV.] PUBLIC INTERNATIONAL LAW. [ 235.
When duly given, the subjects as well as the governments of
neutral states are bound. Notice may be express,
Notice of
to a particular government, or to a ship, or it may be and intent
inferred from all the facts, among which notoriety bocrade
is to be especially considered.' A notice to a foreign must be
made out.
government is notice to all the subjects of such gov-
ernment.2-To proceed to the mouth of the blockaded port on
the plea of there seeking information, exposes the vessel to
serious suspicion ;1 and the mere hovering round a blockaded
port, as if to seize some unguarded point to enter, is ground
for seizure.'
§ 235. A vessel condemned for breach of blockade, either in-
tentional or actual, is subject to confiscation; and the Vessel at-
cargo is also subject to confiscation unless it should tempting to
run block-
be shown that the owners of the cargo were5 innO- ade may be
cent of any intention to break the blockade. The confiscated
vessel, so it has been held, is open to seizure at any time dur-
ing the return voyage, though she cannot be seized after she
reaches the home port.' But by high authorities' it has been
The Adelaide, 2 C. Rob. 111. of nations upon this point. The inten-
2The Neptunus, 2 C. Rob. 110; The tion must be manifested in such man-
Hiawatha, Blatch. Pr. 1. ner as to be equivalent to an attempt.
See The Spes, 5 C. Rob. 72; The Fitzsimmons v. Newport Ins. Co., 4
Josephine, 3 Wall. 83; The Admiral, Cranch, 185.
3 Wall. 603. In the absence of such a treaty, the
4 The Charlotte Christine, 6 C. Rob. courts do not require notice; Field's
101; The Gute Erwartung, 6 C. Rob. Code Int. Law, § 892, citing 1 Kent
182; Radcliff v. Ins. Co., 7 Johns. 38; Com. 150 ; The Circassian, 2 Wall.
The Cornelius, 3 Wall. 214. 135; Wheaton on Capture, 193-207;
The treaty between the United States The Hallie Jackson, Blatchford's Prize
and Great Britain provides that every Cases, 2, 41; The Empress, id. 175;
vessel may be turned away from every except where the vessel sails without
blockaded or besieged port or place, a knowledge of the blockade; The
which shall have sailed for the same Nayade, 1 Newberry's Adm. Rep. 366.
without knowledge of the' blockade or 5 The Panagha Rhomba, 12 Moore's
siege; but she shall not be detained, P. C. 168; The Neptunus, 3 C. Rob.
nor her cargo, if not contraband, be 173; The Alexander, 4 C. Rob. 93.
confiscated unless, after notice, she Wheaton, Part IV. ch. v.; The
shall again attempt to enter; but she Welvaart Van Pillaw, 2 C. Rob. 128;
shall be permitted to go to any other The Yuffrow Maria, 3 C. Rob. 147.
port or place she may think proper. 7. Hautefeuille, iii. 151 ; Bluntschli,
And this treaty is conceived to be a 836; Gessuer, 229 ; Perels, § 57.
correct exposition of the present law
22 337
held that the right of blockade is, from the nature of things,
to be limited to the vicinity of the place blockaded.
XVI. RIGHTS OF NEUTRALS.

§ 238. Not much injury can be done by a belligerent to the
trade of the other belligerent with neutrals by land,
Trades to UDless it be by descents on lines of railway carriages
be pro- passing through the belligerent state. It is other-
tected. wise with regard to the high seas.
A belligerent,
possessed of an active navy, may scour the ocean for prey, and
by declaring that enemies' goods may be pursued under any
flag, may inflict great injury on neutral commerce. This was
the course taken by England during the Napoleonic wars;
and it was to meet these supposed aggressions, based as they
were on the right of search, and extended so as to include the
right to impress British sailors on American ships, that the
war of 1812 was declared by the United States.' This war
was closed without any settlement of this vexed issue; but
though the claim to impress has never been subsequently
pressed, the position that free ships make free goods has never
been admitted by England. Another amendment to the old
law has lately been earnestly urged, i. e., that no traps, tor-
pedoes, or sea mines, should be permitted on the open sea.2
§ 239. It is elsewhere seen that the territory of a neutral
Neutralter- state is, by the law of nations, protected from inva-
ritory and sion by the forces of another state, unless in case of
waters not
to be in- war.3 Hence it is a violation of the law of nations
vaded. to make neutral territory the site of a collision be-
tween belligerents, or for one of the belligerents even to cross
the boundary of such neutral state for the purpose of pursuing
I Supra, § 194. Devoirs de Neutralit6, 1877 Nys, La

Holtzendorff, ut supra, 1249; citing Guerre Maritime, 1881 ; Scittarelli,
Russell's New Maritime Law, 1856; 11 Diritto della Neutralita, 1880; Fe-
Macqueen, Law of War and of Neu- rels, op. cit., § 39.
trality, 1862; Gessner, Les Droits des When there is a seizure of neutral
Neutres, 1876; Bernard, Neutrality of property in case of necessity, ample
Great Britain during American Civil redress should subsequently be made.
War, 1871; Hall's Rights and Duties Phillimore, ii. (1882) 7.
of Neutrals, London, 1874; Louis, Des Supra, §§ 146, 186; infra, § 248.
338
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [ 2 39.
or of evading the forces of the other belligerent.' A neutral

state, also, is not bound to receive in its waters the ships-of-war
of belligerents, though it may grant the privilege, if it grants
it to the vessels of both belligerents. In cases of necessity, an
asylum should not on any pretence be refused.? The mere transit
of belligerent ships-of-war through neutral territorial waters
is permitted when such waters are the margin of the open seas.
But the use of the territorial waters of a neutral state cannot
by the law of nations be granted to a belligerent for warlike
purposes, or for the purposes of equipment with munitions of
war.3 It is otherwise with regard to repairs and obtaining
provisions and coal ; though, as we shall see, a neutral cannot
open a depot for the permanent supply of coal and provisions
to belligerent cruisers. And the stay of belligerent cruisers
in a neutral port is usually limited by proclamations of the
neutral government to twenty-four hours, unless a longer time
be required by stress of weather or by the necessity for repairs.
It is settled that a belligerent cruiser cannot be permitted to
pursue a ship of the other belligerent into neutral waters, or,
d fortiori, to engage in direct warfare in such waters.4 It has
been argued that a belligerent cruiser, when pursued, cannot
be granted an asylum in a neutral port, except on condition
of going out-of service during the war, though the prepon-
derance of opinion is against this view." But it is generally
agreed that it is not permissible for a belligerent cruiser to
pursue a cruiser or merchant vessel of the other belligerent
immediately on the latter leaving the neutral port. Before
such pursuit is permitted, twenty-four hours should inter-
vene.-Whether a belligerent has a right to complain of an
invasion of neutral rights, or whether this right is reserved
exclusively to the offended neutral, has been much discussed.
There can be no question that the neutral has a right to
amends from the offending belligerent. And the better
opinion is that the belligerent against whom an unjust advan-
1 Supra, §§ 138, 146; infra, § 248. 162; The Vrow Anna Catharina, 5 C.
2 The Anna, 5 C. Rob. 332. As to ter- Rob. 20; 1 Kent's Coin. 120.
ritorial waters, see supra, §§ 186 et seq. 4 Calvo, ii. 408; Perels, § 40.
3 Ibid. ; Twee Gebroeders, 3 C. Rob. 5 Perels, § 40.
6 Ibid.
339
tage is thus taken has a right to redress from a neutral sove-

reign who permits his neutrality to be thus invaded.' It is,
however, settled that when neutral waters have been invaded
by a belligerent, a party whose property has been seized on
such invasion has no right to demand restoration on this
ground; the neutral state whose waters have been thus
invaded being the proper party to interpose.'
§ 240. The limits of neutrality vary in proportion to the
variation of the interests dependent on peace. When
conditioned all Europe was involved in the Napoleonic wars, the
by circum- maintenance of the rights of neutrals was mainly
stances.
dependent on the United States; while the rights
of belligerents were pressed to their utmost limits by Eng-
land and France. In our own civil war, the position was re-
versed. We were belligerents, and as far as we were concerned,
all other civilized nations were neutrals. In the former era,
the tendency of all European courts was to depress, in the
latter era, the tendency of the same courts was to exalt the
rights of neutrals. Another influence, of a less selfish nature
1 See Lawrence's Wheat., note 217; The president of the United States is
Dana's Wheat. 208; and note by authorized by statute to employ force
Holmes to 1 Kent's Com. 117-8. to compel any vessel which violates
2 The Sir William Peel, 5 Wall. 517; our neutrality to leave the coast.
The Adela, 6 Wall. 266; and see The U. S. v. Kazinski, 29Sprague, 7.-In
Etrusco, 3 C. Rob. 162, note. The Anne, 3 Wheat. 435, The Sir Wil-
In The Anna, 5 C. Rob. 373, 385, Sir liam Peel, 5 Wall. 517, it was held that
W. Scott held that where a vessel, in the validity of a capture on neutral
order to escape visitation and search waters could only be questioned by the
by a belligerent cruiser, fled to an un- neutral state.
inhabited mud island in front of the " Our courts held" (during the war
mouth of the Mississippi, being neu- between France and England), "and
tral territory, where she was captured they continue to hold, that if the cap-
by the cruiser, this was not an inva- ture be made within the territorial
sion of neutral rights. limits of a neutral country into which
In this country it has been held that the prize is brought, or by a privateer
a belligerent cruiser, violating our which has been illegally equipped in
neutrality laws, can be seized and such neutral country, the prize courts
brought to one of our prize courts for of that country not only possess the
judicial action. The Marianna Flora, power, but it is their duty to restore
11 Wheat. 2. See, however, case of the property to the owner." Mr. Law-
Cagliari, cited Dana's Wheaton, note, rence, North Am. Rev., July, 1878, p.
240; Lawrence's Wheat., note, 84; 1 26.
Holmes's Kent, 122.
340
has lately intervened. It is felt that the policy of interna-

tional law is to encourage neutrality as pro tanto discouraging
war; and in order to encourage neutrality it is essential that
it should not be subjected to any unnecessary burdens.-The
books, it should be added, speak of " imperfect" neutrality,
in which a neutral gives contraband support to both belli-
gerents. But such imperfect neutrality only exists as a matter
of arrangement between parties.-The duties of a neutral may
be said to vary with the conditions of the times in two re-
spects: (1) Engines of destruction, formerly not recognized as
contraband, may become contraband when turned to warlike
purposes. (2) Neutrality, as the skill with which police re-
straints can be evaded each year increases, varies as to its
duties with the capacity of the neutral state to prevent aid
being surreptitiously given to belligerents, and with the in-*
crease of facilities by which neutrality can be infringed, even
though vigilant watch be kept. Neutrality should not be
made so burdensome as to become intolerable.
§ 241. It must be remembered that international neutrality
and municipal neutrality are not convertible. A
state, for instance, may, from excessive caution, pro- tiona and
hibit its subjects from selling to foreigners muni- municipal
neutrality
tions which might be used to aid such foreigners in not con-
a war in which they are engaged; but this will not
by itself make such state liable to the belligerent thereby
injured for its negligence in permitting its own restrictions
in this respect to be transgressed. On the other hand, a state
may be very lax in the restrictions it imposes in this relation
on its own subjects; but this laxity will not relieve it from
liability to other nations whom it may have injured by
permitting its subjects to afford to belligerents aid forbidden
by the law of nations. In other words, the liability of a
nation for a breach of neutrality is gauged not by its own law
but by the law of nations. This position was taken by the
government of the United States during General Washing-
ton's administration, and by the British government in the
Alabama controversy.' As a matter of fact, the neutrality
See Whart. Crim. Law, 8th ed., § 1901.

341
statutes, both of Great Britain and of the United States, im-

pose much severer restrictions in this respect on subjects than
the law of nations imposes upon sovereigns. The history of
legislation and of public opinion in the United States on this
topic is of peculiar interest, not only as showing that our legis-
lation imposing neutrality is more stringent than the law of
nations; but as marking the extent to which public opinion
is swayed to and fro by the varying necessities of epochs.
General Washington, in a message of December 3, 1793, said:
"The original arming and equipping of vessels in the ports of
the United States by any of the belligerentpartiesfor military ser-
vice, offensive or defensive, is deemed unlawful ;" and this, in
condemning the intrusion of a belligerent on neutral soil for
the purpose of fitting out belligerent armaments, is unquestion-
*ably a rule of the law of nations. There is nothing in this re-
markable message, so often appealed to at home and abroad as
giving the true tests of international neutrality, which declares
that the fitting out of an armed vessel intended to be delivered
to a belligerent in his own port is forbidden by the law of
nations. The neutrality act adopted by congress for the pur-
pose, not of defining the law of nations, but of prescribing the
duty of citizens to the national government, undoubtedly
made it penal to fit out and arm vessels with intent that
they should be employed in the belligerent service of a foreign
state; but this statute, passed from excessive caution, for the
purpose of keeping the new republic, as far as possible, out of
the tempestuous war then raging in Europe, was never re-
garded, as we have seen, as determining the duties of the
United States when a neutral to foreign belligerents. It is
true that during the late civil war, the state department, in
some of its utterances, announced that this and kindred
statutes formed the standard of international obligation. It
is a matter of regret that this position should have been
taken; for, if such were the case, and if these statutes should
be regarded as permanently committing the United States to
maintain internationally what the statutes ordain for muni-
cipal purposes, this would involve not only a repudiation of
the liberal doctrines in this relation laid down by the supreme
342
court of the United States in the Santissima Trinidad1 but
would fasten on us, not as a statutory rule which may be to-
morrow repealed, but as a permanent principle of international
law, a doctrine which, if carried out exhaustively, would not
only cripple some of our most important industries, but would
require from us enormous outlay, and an oppressively ubi-
quitous military home police. But whatever we may say as
to the wisdom of the expressions of the state department in
this respect, there is no question that judicial as well as poli-
tical opinion in the United States has swung back again to
its old bearings. Our neutrality statutes are again accepted
with the interpretation put on them in the Santissima Trini-
dad, the qualification being acknowledged that they prescribe
the duty of our citizens to the United States, not that of the
United States to foreign governments; and even were this
not the case, the ruling in that case, that by the law of na-
tions a neutral is not bound to prevent its subjects from sell-
ing armed vessels to a belligerent, has never been judicially
modified; and the Federal government has again accepted
this view even as determining the scope of our own statutes.
We have, as a country, exhaustless mines of iron and coal;
and though we may not be able to build steamships as cheaply
as they are built in Great Britain, yet the difference is but
slight, and there may be many reasons, based in part on
patent rights to specific munitions of war, in part on political
relations, which might lead a foreign nation to purchase ships
in our dock yards rather than in those of Glasgow, or Liver-
pool, or Belfast. The industry is one of importance; it is one
of the prime factors of national power; it enables a powerful
nation to stand by herself as against the world, and to pro-
tect her ports, no matter what may be the invader's naval
strength. Now it so happens that since the civil war we have
been constantly supplying with armed ships foreign nations
in a state of belligerency either actual or prospective. There
has not been a single official intimation that sales of this kind
are illegal. Were a prosecution to be ordered against parties
I The Santissima Trinidad, 7 Wheat. commerce, to a belligerent, is not per se

283, where it was held that the sale of illegal, though such ships may be ex-
armed ships or munitions, as articles of posed to confiscation.
343
242.] COMMENTARIES ON LAW. [CHAP. TV.
making such sales, there can be no question that the ruling in

the Santissima Trinidad would be repeated, and the defen-
dants in such cases acquitted. And even were it otherwise,
and the sales were to be held illegal by our municipal law,
that municipal law would not be held to modify the law of
nations, and make our government liable to the offended
belligerent for its omission to stop such sales.' No doubt to
carelessly or knowingly permit an armed cruiser to be manned
in a neutral port, and sent out from such port to prey on belli-
gerent commerce, or to form part of a belligerent navy, is a
breach of neutrality, just as to permit a land force to be organ-
ized for a belligerent on neutral soil is a breach of neutrality.
But for a neutral to sell a ship, even an iron clad, to a belli-
gerent, such ship not being manned and armed in the neutral
port, is, as will be hereafter seen more fully,' no more a breach
of neutrality than for a neutral to permit able-bodied men to
emigrate to a belligerent state.
§ 242. The policy of the United States is to maintain neutral
immunities for the following reasons:-
(1) The probabilities of war are far less with us than with
the great European states. From the nature of
Policy of
theUnited things, points of friction between the United States
aato and foreign nations are comparatively few. We
neutral have an ocean between us and the great armed camps
immunities.
of the old world; and, while there are innumerable
questions as to which one European state may come into colli-
sion with another, the only points as to which we would be
likely to come into collision with a European state are those
concerned in the maintenance of neutral rights. It was to main-
tain such rights that we went to war in 1812; and, except
during the abnormal and exceptional spasm of the late civil
war, our national life has heretofore been the life of a neutral
and a vindicator of neutral rights. And neutrality, when our
system took shape, was arduous. The world was absorbed in
the tremendous contest between France on the one side, and
England, with her allies, on the other. At times we were the
I That this is the rule in England, 2 Infra, § 249.

see Hall's Int. Law, 537 et seq.
344
only civilized power that remained neutral. Threats and
blandishments were used both by France and England to drive
us from our position, but that position was not only defined
and defended, under General Washington's administration, in
papers so able and just as to be the basis of all future procla-
mations of neutrality, but was adhered to, though necessitat-
ing a war for its defence. Our international attitude is, from
the nature of things, that of neutrality ; and of .the rights of
neutrals we are, from the necessity of the case, the peculiar
champions. (2) Although the richest country in the world,
our traditions and temper are averse to large naval and military
establishments. (3) The idea of pacific settlement of disputed
international questions is one of growing power among us;
the horror of war has not been diminished by the experience
of the civil war; there is no country in the world where
love of order is so great, and in which public peace is kept by
an army and navy so small; it would be hard to convince the
people of the United States that the immense and exhausting
armaments of the great European states are not in part caused
by the assigning of undue power to belligerents, and that one
of the best ways of inducing a gradual lessening of these arma-
ments would be the reduction of these powers. By belligerents,
and especially by England when engaged in her great naval
wars, have these powers been defined in the interests of war;
it is important that the definition should be readjusted by
neutrals in the interests of peace. (4) It is impossible to
overcome the feeling that the sea, like the air, should be free,
and that no power, no matter how great its resources, should
be permitted to dominate it so as to enable it, in case of war,
to ransack all ships which may be met for the discovery of an
enemy's goods. Prizes will become more and more valuable
as the wealth traversing the ocean is multiplied; and to sus-
tain belligerent rights in the sense they have been understood
by England, is to place in the hands of England, as possessing
the most powerful navy in the world, almost unchecked con-
trol over this wealth. The position of the United States is
that of the power which has more of its produce on the high
seas than has any other power, while it has of all great powers
the smallest navy; and this position, being that of a nation
345
which has few points to go to war about, is, from the nature
of things, so far as concerns neutral rights, antagonistic to
that of nations who, with far less wealth on the high seas, pos-
sess navies which would enable them, if this right were con-
ceded to them, to overhaul the commerce on the great ocean
lanes of travel. (5) It is not right to offer such a premium to
preponderance of naval strength as is offered by the theory of
belligerent rights as maintained in Great Britain. To allow a
belligerent to search neutral ships, and to take out of them
whatever a prize court of such belligerent might consider
enemy's goods, gives a virtual supremacy to the power whose
superiority in naval force enables it to sweep the seas. If the
right to seize an enemy's property in neutral ships is hereafter
to be claimed by Great Britain, the right of other nations to
obtain naval armaments abroad should be conceded. And to
prevent the United States, the only country besides Great Bri-
tain in which iron can be manufactured so as to be used for
steam cruisers, from supplying other nations, when either at
war with Great Britain, or when preparing for such war, with
iron to be used in naval warfare, is to make Great Britain
tyrant of the seas. Such a claim is as inconsistent with the
wise and liberal policy of Great Britain in the present genera-
tion as it is with the interests and self-respect of the other
great states of the civilized world.
§ 243. It was in part, at least, from the reasons just stated,
Deviation that prior to the late civil war the United States had
from this been among all maritime powers the most strenuous
policy dur-n
ing the opponents of the right of unlimited maritime search,
civil war. and among all great producing states had been the
most liberal in the estimate of the aid which might be given
by a neutral to a belligerent without infringing the duties of
neutrality. The civil war, however, placed us, with very in-
adequate preparation, in the position of a belligerent, the other
belligerent being states seceding from our own Union. In one
important respect our attitude was such as to make us pecu-
liarly sensitive to any attempts on the part of France and
England to supply the seceding states with aid, and peculiarly
desirous to restrict such aid within the narrowest limits. The
relations of the United States and England, therefore, were,
346
CHAP, IV.] PUBLIC INTERNATIONAL LAW. [ 244.
as to this important issue, reversed. The United States had
been the sturdy and consistent vindicator of neutral rights,
and England of the rights of belligerents. As the civil war,
however, progressed, the United States, under the pressure of
the perils they were called upon suddenly to encounter, found
themselves straining belligerent rights to the utmost tension,
while England assumed for neutrality prerogatives greater
than had been claimed for it previously by the United States.
When it was found that in consequence either of the laxity
of the British government, or the covert sympathy of some of
its subordinate officials with the Confederate movement, pri-
vateers fitted out and manned in British ports went forth to
destroy the shipping of the United States on the ocean, the
United States government was naturally incensed. The claim
for damages remained dormant during the war, but with the
surrender of the Confederate army it was presented with
a gravity which made it necessary for the British govern-
ment to give it immediate heed. That great loss had been
suffered by the owners of American shipping through priva-
teers fitted out in British ports could not be denied; and the
only questions to be discussed were: (1) the extent of this
damage; and (2) the limits of neutrality as defined by the law
of nations, and as applicable to Great Britain during the
American civil war.
§ 244. Such were the circumstances which preceded and
attended the negotiation of the treaty of Washing-
ton of 1871. tonThat treaty, in advance of the arbi- treaty
Ren of
tration proposed for the settlement of the sums to Washing-
ton limit-
be paid for damages, laid down the following rules ing neutral
11rights not
for the guidance of the arbitrators:- of perma-
"A neutral government is bound: First. To use gation.
nitoobli-
due diligence to prevent the fitting out, arming, or
equipping, within its jurisdiction, of any vessel which it has
reasonable ground to believe is intended to cruise or to carry
on war against a power with which it is at peace; and also to
use like diligence to prevent the departure from its jurisdic-
tion of any vessel intended to cruise or carry on war as
above, such vessel having been specially adapted, in whole or
in part, within such jurisdiction, to warlike use.
347
$ 244.] COMMENTARIES ON LAW. [CHAP. IV.
" Secondly. Not to permit or suffer either belligerent to

make use of its ports or waters as the base of naval opera-
tions, against the other, or for the purpose of the renewal or
augmentation of military supplies or arms, or the recruitment
of men.
" Thirdly. To exercise due diligence in its own ports and
waters, arid, as to all persons within its jurisdiction, to pre-
vent any violation of the foregoing obligations and duties."
It will be at once seen that these rules, though leading
immediately to an award superficially favorable to the United
States in the large damages it gave, placed limitations on the
rights of neutrals greater even than those England had endeav-
ored to impose during the Napoleonic wars,and far greater than
those which the United States had ever previously been willing
to concede. If such limitations are to be strictly applied, the
position of a neutral, so it may be well argued, will be much
more perilous and more onerous, in case of war between mari-
time powers, than that of a belligerent. Our government, to
fulfil the obligations cast on it by these rules, would be
obliged not only to have a strong police at all its ports to
prevent contraband articles from going out to a belligerent, but
to have a powerful navy to scour the seas to intercept vessels
which might elude the home authorities and creep out carry-
ing such contraband aid.' Nor would this be all. No foreign
war could exist without imposing upon the government of
neutral states functions in the repression of sympathy with
either belligerent which no free government can exercise
without straining its prerogatives to the utmost. It is not
strange, therefore, that in view of the hardness of these rules,
they should be regarded by European as well as by Ameri-
can publicists as likely to be of only temporary obligation.
"When we come to the subject of neutrality," says Professor
Lorimer, of Edinburgh, a leading member of the Institute of
I It must be recollected that not only band stores, and that nothing but a
our Atlantic and Pacific coasts, but our standing army or navy greater than
boundary to the north and to the south those of any European power could
contain innumerable points at which prevent such operations.
belligerents can replenish their contra-
348
International Law,' " we shall see but too much reason to

believe that even the treaty of Washington of 1871, though
professing to determine the relation between belligerents and
neutrals permanently, was in reality a compromise by which
neutral rights were sacrificed to the extent which, on that
occasion, was requisite to avoid a fratricidal war. Before the
award of the arbiters who met at Geneva could be applied
as a precedent, a new treaty, embodying the famous ' Three
Rules,' would require to be negotiated; and it is extremely
unlikely that either England, or any other neutral power,
would again agrree, beforehand, to pay damagesfor the fulfilment
of the impossible engagements which these rules impose." This
view is strengthened by the fact that the British members of
the commission by whom the treaty of Washington was
negotiated inserted in the treaty the following memorandum:
"Her majesty's government cannot assent to the foregoing
rules as a statement of principles of international law, which
were in force at the time when the claims mentioned in Art.
I. arose; but her majesty's government, in order to evince its
desire of strengthening the friendly relations between the two
countries and of making satisfactory provision for the future,
agrees that in deciding the question between the two coun-
tries arising out of those claims, the arbitrators should assume
that her majesty's government had undertaken to act upon
the principles set forth in those rules." It was proposed, in
the treaty of 1871, that the " Three Rules" should be sub-
mitted to the great powers of Europe. It soon became evi-
dent that neither Great Britain nor the United States desired
to make such a submission. " From the correspondence
between the British and United States governments," says
Mr. Wm. Beach Lawrence, who gave the topic great study,
and who was a master of international law, " we are to infer
that the ' Three Rules' are to be deemed limited in their ope-
ration to the single matter of the Alabama claims, and as
withdrawn from any proposed reforms of the law of nations.
It may be added that there was a conviction on the part of
I Institutes of the Laws of Nations, by James Lorimer, LL.D., Blackwood

& Sons, 1883, p. 52.
349
both governments that they would not receive the assent of a

single state. Austria and Germany had early given instruc-
tions to that effect."' As also holding that the Three Rules
could not be accepted as permanent factors in international
law may be cited Mr. Montague Bernard and Sir Travers
Twiss, members of the Institute of International Law, meet-
ing at the Hague in 1875, and Sir R. Phillimore, who speaks
to the same effect, when discussing the Alabama case
in the third volume of his Commentaries. Sir Shenstone
Baker is equally emphatic: "The better opinion seems to be
that oppressive and impracticable obligations would be im-
posed on neutral nations if the principle set forth as the basis
of the award, and the interpretation placed on the Three Rules
were acceded to in future cases." 2 Mr. Lawrence, after citing
the above authorities, goes on to say: " The condition of bel-
ligerency would be infinitely preferable to that of neutrality
as defined by the congress of Geneva; and the due diligence
prescribed would compel the United States, whenever they
were neutral, to maintain a naval police competent to cope
with any belligerent forces throughout the whole extent of
our coasts, both on the Atlantic and the Pacific." The " Three
Rules," therefore, were agreed to by the United States only pro-
visionally, and are not only in conflict with the principles for
which the United'States contended down to the late civil war,
but give advantages to belligerents which even Great Britain
regards as excessive. These rules, repudiated as they have
been by the contracting powers, and rejected by all other
powers, are to be regarded not only as not forming part of the
law of nations, but as not binding either Great Britain or the
United States.3
I Note by Mr. W. B. Lawrence, of May 8 and Sept. 18, 1876, commu-

given in 2 Whart. Cr. Law, 8th ed., nicated by Mr. Hayes in his message
§ 1908. to the senate, of Jan. 13, 1879. The
2 Note to Halleck, Int. Law, ii. 189. same position was taken in the house
3 That the " Three Rules" were tem- of commons in 1873 by Mr. Gladstone,
porary and exceptional, and were to Sir W. Harcourt, Mr. Disraeli, and the
be only effective in case of ratification attorney-general. See Am. Law. Rev.,
by the great powers, which ratification vii. 237.
was never given, is maintained by Mr. If Great Britain, with her compara-
Fish in his letters to Sir E. Thornton, tively few ports, failed in her attempts
850
§ 245. Dismissing from consideration, therefore, the " Three

Rules," and the proceedings based on them, we must
look to the works of leading publicists and to the de- funs hng
cisions of the courts, taken in connection with the subjects
neutral
of
present conditions of civilization, to determine what state to re-
lieve belli-
is the law of nations in respect to neutrality. And gerents is
the first position we have to take is that the furnish- of neal-
ing funds by subjects of a neutral state to relieve ity and so
suffering in a belligerent state is not a breach of ofloans.
neutrality. During the Franco-German war large sums of
money were sent from Germans in this country to their friends
in Germany, for the relief of sufferers in the hospitals, and
large sums were also sent by persons in this country sympa-
thizing with France to the French hospitals; but neither in
respect to such contributions, nor in respect to meetings called
to express sympathy with the one or the other belligerent,
was it maintained that such action constituted a breach of
neutrality. The English government has even gone further
than this. In 1860, a revolt took place in Naples, which was,
if not instigated, at least materially aided by the King of Sar-
dinia. The liberal English press took an active part in en-
couraging the insurgents; they also received from England
to prevent the use of these ports for the whose repair in our ports we could not
fitting out of Confederate cruisers, we prevent, unless by the use of expedi-
can learn what would be the doom of ents subversive of our institutions.
the United States in case of a Euro- The strain put on the British govern-
pean maritime war in which we occu- ment by the attempts of the Confederate
pied the position of neutrals. If war, States in our late civil war to fit out
for instance, should exist between cruisers in British ports is well told in
Great Britain and any leading conti- Mr. Bulloch's "Secret Service of the
nental power, it would be impossible Confederate States," N. Y. 1884. In
to prevent such power .(e. g., Russia, case of a European naval war, we
who has very limited capacity of naval being neutrals, ingenuity in our ports
armament) from securing contraband by either belligerent, far less than was
aid in our ports. We obtained $15,- displayed by the Confederate agents in
000,000 under the Geneva arbitration; British ports during the late civil war,
if the Geneva rules are to hold good, would make it necessary, if the " Three
the payment of this comparatively Rules" be applied to us, either to line
small sum would make us the insurers our shores with a standing army of
of any loss British commerce might almost unlimited extent, or to become
incur from cruisers whose coaling or belligerents ourselves.
351
important material aid. The French, Prussian, Austrian, and

Russian courts joined in a severe censure of the Sardinian king.
He was, however, sustained in his course by the English govern-
ment; and Lord John Russell, in an official letter to Sir J.
Hudson, British minister at Turin, declared, as we have
seen,' "that such assistance could be justified on the same
ground that Vattel justified the assistance given by the States-
General to William of Orange in his invasion of England." 2
This is not a safe precedent, as it would justify interference
without limit in the affairs of a foreign state with whom
pacific relations were nominally retained, and it is not con-
sistent with the general attitude of England on the question of
intervention. But that the subjects of a nation may, with-
out involving the nation in a breach of neutrality, express
sympathy with a belligerent in a foreign war, or even contri-
bute funds for the relief of persons engaged in such war, can-
not be questioned.3 It is, however, a breach of neutrality for
a neutral nation to permit funds to be raised within its borders
for the express purpose of carrying on a foreign war. On the
other hand, there is no principle of international law which
prohibits a belligerent sovereign from going into the market
to borrow money as loans. Such loans were offered by the
United States government during the civil war, and were
taken up in every European state, without any question as to
the propriety of subjects of neutral states making such in-
vestments; and the loans offered by England during the
Napoleonic campaigns were at least to some extent taken by
I Supra, § 174, note. treaty does not forbid, can lend money
2 Lord John Russell's letter, as given to the enemy of a state at peace with
supra, § 174, note, is adopted as text by his own country for purposes of war, or
Sir R. Phillimore, in the 3d volume of can enter into its service as a soldier,
his book on international law. without involving the government of
8 According to President Woolsey his country in guilt. The English
(Int. Law, § 162) : " International law courts, however, and our own, deny
does not require of the neutral sover- that any right of action can arise out
eign that he should keep the citizen or of such a loan, on the ground that it is
subject within the same strict lines of contrary to the law of nations. (Phil-
neutrality, which he is bound to draw limore, iii. § 151; case of Kennet v.
for himself. The private person, if the Chambers, 14 Howard, U. S. Rep.
laws of his own state or some special 38.)"
352
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [5 246.
subjects of neutral states, and this equally without question of
such acts being consistent with international law.'
§ 246. The mere act of furnishing by the subjects of a neu-
tral state a belligerent with munitions of war, does
not involve such neutral state in a breach of neu- ents maybe
trality. (1) Between selling arms to a man, and fuaised
indictable participation in an illegal act intended to tions of
war.
be effected by the vendee through the instrumental-
ity of such arms, there is no causal connection. The miner or
manufacturer, to appeal to an analogous case, may regard it not
only as possible, but as probable that his staples, when consist-
ing of weapons, or of the materials of weapons, may be used
for guilty purposes, but neither miner nor manufacturer be-
comes thereby penally responsible. (2) To make the vendor
of munitions of war punishable would make it necessary to
impose like responsibility on the manufacturer; and if on the
manufacturer, then on the producer of the raw material which
the manufacturer works up. In each case the thing made or
sold is one of the necessities of war. In each case the producer
or vendor knows that the thing produced or sold will probably
be used for warlike purposes. Hence, in times of war, not
only would neutral sales of munitions of war become penal,
but penal responsibility might be attached to the production
of any of the materials from which such weapons are manu-
factured. (3) Nor would this paralysis be limited to periods
of war. A prudent government, long foreseeing a rupture, or
preparing in secret to surprise an unprepared foe, might take
an unfair advantage of its adversary, were this permitted, by
purchasing in advance of the attack all munitions which neu-
tral states might have in the market; but, on the theory before
us, a neutral state could not permit this without breach of
I See Hall, § 218. It is remarkable held that a suit cannot be maintained
that a contrary view should be taken on a loan made expressly to affect a
by Bluntschli (§ 768), Calvo (§ 1060), belligerent object (Kennett v. Cham-
Phillimore (iii. 147), and Kent,ut supra. bers, 14 How. 38), or to aid in an in-
Mr. Hall mentions that during the surrection in a foreign state against a
Franco-German war, the French Mor- government at peace with the state of
gan loan and part of the North German the lender. (De Wiltz v. Hendricks, 2
Confederation loan were issued in Eng- Bing. 314.)
land. On the other hand, it has been
23 353
neutrality, since to permit such a sale would be to give a pecu-

liarly unfair advantage to the purchasing belligerent. Hence,
if such sales are indictable in times of war, they are difortiori
indictable in times of peace. Why would a foreign nation, it
might well be argued, want in time of peace to buy Armstrong
guns, or iron-clads, unless to pounce suddenly down on an un-
prepared foe? No munitions of war, therefore, could be sold
in any country unless to its own subjects, and for its own use;
and countries which cannot produce the iron or coal necessary
for the manufacture of artillery or iron-clads, would, if no
nation can furnish munitions of war to another,have to do with-
out artillery or iron-clads. (4) To establish a national police
which could prevent the sale of such staples would impose on
neutral states a burden, not only intolerable, but incompatible
with constitutional traditions. It might be possible in a land-
locked province like Switzerland; it might even be possible
in islands of the size of Great Britain ; but in a country so
vast as the United States, and with an ocean frontier so ex-
tended, it would be impossible to establish a police that could
preclude such exportation without vesting in the national
government powers and patronage inconsistent with repub-
lican institutions, and so enormously expensive as to make it
more economical to interpose in a war as a belligerent than
to watch such war as a neutral. For these and other reasons
the United States government has insisted on the right of a
neutral to send munitions of war to a belligerent; and this
position was taken by President Grant in his proclamation of
August 22, 1870. The right was stoutly contested, however,
by Germany, while it was maintained by both England and
the United States.,
1 See authorities cited in Whart. "It was contended," says Chancellor
Crim. Law, 8th ed., § 1903; 1 Kent's Kent (I. Cor. 142), "on the part of
Com., 142; Webster's Works, vi. 452. the French nation in 1796, that neu-
During the Franco-German war large tral governments were bound to re-
amounts of surplus guns and ammu- strain their subjects from selling or
nition were sold by the United States exporting articles contraband of war
government, and bought by French to the belligerent powers. But it was
agents for French use. See Whart. successfully shown, on the part of
Crim. Law, 8th ed., § 1908, note, p. the United States, that neutrals may
636; 11 Alb. L. J., 28. lawfully sell at home, to a belligerent
854
§ 247.It is, however, a breach of neutrality for a neutral
sovereign to permit within his domains recruiting
by one of the belligerents, and any attempt of a recruiting
belligerent thus to recruit by enlistment of soldiers in neutral
y state a
should be promptly resisted and resented. Enlist- breach of
ments for such purposes are prohibited by statute of neutranty.
June 3, 1794, and April 20, 1818, in this country, and by the
statute of July 3, 1819 (59 Geo. III. c. 69), in England.' But
purchaser, or carry themselves to the standing the high authority of Blunt-

belligerent powers, contraband articles schli, to export in gross as in small
subj ect to the right of seizure in transitu. quantities.
This right has since been explicitly As an illustration of the difficulties
declared by the judicial authorities of that would arise in this country from
this country. Richardson t. Ins. Co., an extension of neutral liability, may
6 Mass. 113; The Santissima Trinidad, be mentioned the fact that in 1882-1883
7 Wheat. 283. The right of the neutral munitions of war, approximating in
to transport, and of the hostile power value to $5,000,000, were forwarded
to seize, are conflicting rights, and from San Francisco to China. " The
neither party can charge the other with ammunition cases had the brand U. S.
a criminal act." In a note it is added: government, 45 calibre, and all the
"This passage is cited and approved cases were from Springfield, Mass."
by Lord Westbury in ex parte Cha- "During that period 240,000 Spring-
vasse re Grazebrook, 34 L. J. N. S. By. field rifles, and 25,000,000 cartridges
17 ; see Historicus, Int. Law, 119, 129; in all have been forwarded, besides
Hobbs v. Henning, 17 C. B. N. S. 794; from 500 to 800 bales of cotton duck
The Helen, L. R. 1 Ad. & Ec. 1." suitable for tents, by express by each
Mr. Jefferson, in his letter to Mr. steamer for China." Philadelphia
Hammond, of May 15, 1793, thus Inquirer, Aug. 8, 1883. The United
speaks: "Our citizens have always been States government could not, except by
free to make, vend, and export arms. measures which would involve not
It is the constant occupation and liveli- only enormous expense, but a vast and
hood of some of them. To suppress perilous increase of police force, pre-
their callings, the only means perhaps vent parties from buying up ammuni-
of their subsistence, because war tion at public or private sale, and
exists in foreign and distant countries, sending it to China. Yet, if the non-
in which we have no concern, would prevention of such exportations im-
scarcely be expected. It would be posed liability for the damage thereby
hard in principle and impossible in produced, the United States would be
practice. The law of nations, there- obliged to pay for all the injury done
fore, respecting the rights of those to English or French property by such
at peace does not require from them ammunition in case of a war between
such an internal derangement of their China and France or England.
occupations." It makes no matter I See U. S. v. Hertz, Whart. Prec. §
whether the exportation is large or 1123.
small. It is as admissible, notwith-
355
( 249.] COMMENTARIES ON LAW. [CHAP. IV.
this does not make it a criminal offence for the subjects of a

neutral state on their own motion to leave home in order to
engage in a foreign war, or even to meet together and organize
preliminary to volunteering in a foreign service.'
( 248. A voluntary entrance of belligerent forces, by land
So of giving.
or sea, within the territorial limits of a neutral
passage to nation, with hostile purpose, except in case of an
belligerent. instant and unavoidable necessity of self-defence,
is
a violation of neutrality; and such a violation of neutrality
may be immediately repelled by the neutral by force.2 It is
further held that where the land forces of a belligerent enter
neutral territory, it is the duty of the neutral immediately to
disarm them, release their prisoners, and cause them to restore
all booty which they may bring with them.3
§ 249. As permitting, by a neutral sovereign, the enlisting
Permitting within his borders of soldiers to serve in a belli-
the fitting gerent army is a breach of neutrality, so, as has
out and
sailing of been already stated, is it with the fitting out of a
cruiser a
breach of cruiser commissioned to serve a belligerent on the
seas. Under the neutrality statutes of England and
neutrality.
of the United States, it is an indictable offence for individuals

to be concerned in the building, arming, or sending out cruisers
for this purpose, to be so commissioned and sent out armed
from our ports ;4 and it is an offence by the law of nations for
I U. S. -. Kazinski, 2 Sprague, 7; 4 Halleck, Intern. Law, 517-521 ; Lush-

Op. Atty.-Gen., 336; U. S. v. Skinner, ington's Naval Prize Law, p. 62, § 266;
2 Wheel. C. C. 232; Stoughton v. Tay- According to Lushington, a commander
lor, 2 Paine, 653. In 1856, the United may pass over neutral territorial
States government, on the ground that waters in order to effect a capture be-
Mr. Crampton, the British minister at yond, provided they are not waters
Washington, and the British consuls which cannot be usually passed through
at New York, Philadelphia, and Cin- without express permission. Naval
cinnati, were engaged in enlisting per- Prize Law, § 274. Supra, §§ 138, 146,
sons in the United States to serve in 239.
the British army during the Crimean s Halleck, Intern. Law, 524; Field's
campaign, sent Mr. Crampton his pass- Int. Code, § 972; see supra, §§ 138,
port, and revoked the exequatur of the 146, 179, 239.
three consuls. Annual Register, 1856, 4 U. S. v. Quincy, 6 Pet. 445; 3 Op.
p. 277; 34th Cong., 1st Sess., H. R. Ex. Atty.-Gen., 738, 741 ; U. S. c. Guinet,
Doc. 107. 2 Dall. 321. " A neutral country may,
2 Field's Int. Code, § 971, citing without breach of neutrality, permit
356
a sovereign to permit the issue from his ports of a man-of-war
so commissioned, when this might be prevented by the
exercise of proper care and diligence. It may be said that
between selling, by subjects of a neutral state, of armed ships
to a belligerent, which is not forbidden by the law of nations,
arid fitting out by individuals of a cruiser commissioned and
armed to serve such belligerent, which is forbidden, there is
no perceptible distinction. But between the sale of ships and
of munitions of war, and the fitting out of a cruiser com-
missioned or to be commissioned for belligerent purposes,
there is as real a difference as between permitting individuals,
though armed, to emigrate to a belligerent country, and per-
mitting the enlistment of soldiers to serve such belligerent.
To prevent the sale of ships or of munitions of war to a
belligerent, would, as we have seen, inflict a serious injury on
commerce, as well as make countries which do not produce
iron and other essentials of iron-clads, and munitions of
war, victims of a country by which these staples are pro-
duced. But this argument does not apply to the fitting out
and manning of cruisers, and permitting a neutral port to be
made the basis from which such cruisers go forth commis-
sioned by one belligerent to destroy the shipping of the other
belligerent at sea. The imperfect performance by the British
government of its duties in this respect, provoked a contro-
versy with the United States, which led to the treaty of
Washington, above noticed. It is true that, as we have seen,
the rules laid down in the treaty of Washington are not to be
regarded as incorporated in international law, or as forming
interpretations of that law by which the parties are bound.
But while this is the case, the whole procedure must be
regarded as ratifying the general principle above stated, that
it is a breach of international law for a neutral sovereign to
permit the issuing from his ports of cruisers fitted out, com-
missioned, and manned for belligerent warfare.'
both belligerents to equip vessels in its Lawrence, North Am. Rev., July, 1878,
ports. Even without any previous p. 25.
stipulation with either party, the ports 1 The question is also discussed
of a neutral nation may be closed or by Sir W. Harcourt (" Historicus"),
kept open to the prizes of both." Mr. Int. Law, 151 ; in Bernard on British
357
§ 250.3 COMMENTARIES ON LAW. [CHAP. IV.
§ 250. It is important, as has been already incidentally

observed, not to confound freedom in the subject of a neutral
Neutrality, etc., London, 1870; and in any armed vessel belonging to one for-
Bemis on American Neutrality, Bos- eign power at war with another power
ton, 1866. It was argued with great with whom they are at peace ; or to
research in The Alexandra (Attorney- hire or enlist troops or seamen for for-
General v. Sillem), London, 1863, and eign military or naval service, or to be
in The Meteor, Boston (Little, Brown & concerned in fitting out any vessel to
Co.), 1869. See Holmes's Kent, i. 124, cruise or commit hostilities in foreign
and 3 Am. Law Rev., 234. service against a nation at peace with
In the Alexandra case (see pamph. them; and the vessel in this latter
rep.) the applicability of the foreign case is made subject to forfeiture. The
enlistment act to such cases was fully president is also authorized to employ
discussed. See notice in Bernard on force to compel any foreign vessel to
British Neutrality, etc. The argu- depart, which by the law of nations or
ments on the motion to discharge the treaties ought not to remain within
rule are given in Atty.-Gen. v. Sillem, the United States, and to employ gene-
2 Hurl. & C. 431. rally the public force in enforcing the
"The direct logical conclusions," duties of neutrality prescribed by law.
says Mr. Hall (International Law, Ox- Revised Statutes, §§ 1033 et seq." Note
ford, 1880, § 225), " to be obtained by Mr. Lawrence in Whart. Crim. Law,
from the ground principles of neutral- 8th ed., § 1908.
ity, go no further than to prohibit the In the Santissima Trinidad, 7 Wheat.
issue from neutral waters of a vessel 283, Judge Story, giving the opinion of
provided with a belligerent commission the court, maintained that the sale of
or belonging to a belligerent, and able armed ships of war to belligerents by
to inflict damage on his enemy. . . . neutrals was never held unlawful in
On the other hand, it is fully recog- the United States. "There is nothing
nized that a vessel completely armed, in our laws," he said, " or in the law
and in every respect fitted the moment of nations, that forbids our citizens
it receives its crew to act as a man-of- from sending armed vessels as well as
war, is a proper subject of commerce. munitions of war to foreign ports for
There is nothing to prevent its neutral sale." In the case of the Meteor,
possessor from selling it, and under- libelled in 1866, at New York, Betts,
taking to deliver it to the belligerent, J., says: "As to the preparing of
either in the neutral port or in that of vessels within our jurisdiction for sub-
the purchaser, subject to the right of sequent hostile operations, the test we
the other belligerent to seize it as con- have applied is not the extent and
traband if he meets it on the high seas character of the preparations, but the
or within his enemy's waters." intent with which the particular acts
" The existing law, according to the are done. The intent is all. Is the
summary of it given by Chancellor intent one to prepare an article of
Kent (Com., i. 128), and adopted by contraband merchandise to be sent to
Wheaton (Lawrence's Wheat., p. 729), the market of a belligerent, subject to
declares it to be a misdemeanor for any the chances of capture and of the
person within the jurisdiction of the market ? On the other hand, is it to
United States to augment the force of fit out a vessel which shall leave our
358
CHAP. IV.] PUBLIC INTERNATIONAL LAW. [5 251.
state to sell armed vessels to a belligerent, with non-liability

by the vendor to have the ship confiscated as con- Freedom of
traband if it can be seized by the other bellige- sale not to
be con-
rent on the high seas.' Such ships, in most cases, founded
belong to the vendees
Z5 when they put to sea; and with relief
from liabil-
even if this was not the case, they are open to be ity to con-
seized on the high seas by the other belligerent as
contraband of war. In the latter case the risk is one the
vendor undertakes to run.2
§ 251. As is elsewhere stated,3 it is a moot question how far
it is permissible, by the law of nations, for a neutral
sovereign to supply the armed steamers of belliger- Colin
ents with coal. The Geneva award declares: " In from a con-
stant base.
.
order to impart to any supplies of coal a character
inconsistent with the second rule, prohibiting the use of neu-
tral ports or waters as a base of naval operations for a belliger-
ent, it is necessary that the said supplies should be connected
with special circumstances of time, of persons, or of places,
which may combine to give them such character." Mr.
Adams, in his opinion, thus speaks: "The supply of coal to
a belligerent involves no responsibility to the neutral when it
is made in response to a demand presented in good faith, with
a single object of satisfying a legitimate want openly assigned.
On the other hand, the same supply does involve a responsi-
port to cruise immediately or ultimately I See Crawford v. Wm. Penn, Pet.

against the commerce of a friendly C. C. 106.
nation? The latter we are bound to 2 Story, J., Santissima Trinidad, 7
prevent, the former the belligerent Wheat. 840; The Bermuda, 3 Wall.
must prevent." Mr. Lawrence's note 514; The Florida, 4 Ben. 452; and see
to Whart. Crim. Law, 8th ed., 1908. Dana's Wheat., note, 215.
For the Alabama case see Encyclo- That the sale of a vessel of war by a
pedia Americana, 1883, tit. " Ala- belligerent to a neutral in a neutral
bama." port cannot hold against the other bel-
For trials during Washington's ad- ligerent, see The Georgia, I Low. Dec.
ministration for breaches of neutrality 96; U. S. v. The Etta, 13 Am. Law
laws, by enlisting in or aiding in fit- Reg. 38; The Peterhoff, 5 Wall. 28.
ting out foreign cruisers, see Henfield's That a neutral may sell a ship to a
Case, Whart. St. Trials, 49 ; Guinet's belligerent in a neutral port, see The
Case, ibid. 93; Villato's Case, ibid. LilIa, 2 Sprague, 177; 2 Cliff. 169.
185 ; Williams's Case, ibid. 652. 3 Whart. Crim. Law, 8th ed., §1907;
supra, § 226.
359
bility if it shall in any way be made to appear that the con-

cession was made either tacitly or by agreement, with a view
to promote the execution of a hostile act." Sir Alexander
Cockburn, then chief justice of England, as well as one of the
arbitrators, defines more specifically the term "base of opera-
tions:" "A base of operations signifies a local position which
serves as a point of departure and return in military opera-
tions, and with which a constant communication can be kept
up, and which may be fallen back upon whenever necessary.
In naval warfare it would mean something analogous-a port
or water from which a fleet or ship of war might watch an
enemy, and sally forth to attack him, with the possibility of
falling back upon the port or water in question for fresh sup.
plies or shelter, or a renewal of operations."' The true dis-
tinction is this: It is not a breach of neutrality for a neutral
state to permit the coaling of belligerent steamers in its ports
to the same extent as it permits the coaling of other foreign
steamers resorting to its ports casually, and without accommo-
dations already established for them. Nor is it any more a
breach of neutrality for a neutral to sell coal in gross to a belli-
gerent than it would be to sell wheat or cotton. But it is a
breach of neutrality for a neutral to permit a permanent depot
or magazine to be opened on its shores, on which a belligerent
may depend for constant supplies. To require a neutral to
shut up its ports so as to exclude from coaling all belligerents
would expose a nation with ports so numerous as those of the
United States to enormous expense, as well as put arbitrary
and pernicious restraints on one of our most important indus-
tries. On the other hand, the breaking up of central depots
or magazines for the constant supply of particular belligerents
would be within the easy range of a national police; and to
permit such depots to be established on neutral shores is on
principle a breach of neutrality.
I This was adopted by Mr. Hardy in 2 As to importance of coaling depots

the house of commons, March 21, 1873 ; in modern naval warfare, see article in
see President Hayes's Message, Jan. London Spectator of July 26, 1883.
14, 1879; Cushing's Treaty of Wash- And see supra, § 226.
ington, p. 180.
360

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PUBLIC INTERNATIONAL LAW.

I. OBJECT AND NATURE. IIl. INDEPEINDENT SOVEREIGNTY, ITS

Land added by accession, § 152. IX. RiHonT To SEA AND RIVER.

VI. DIPLOMATIC AND CONSULAR AGNTS. Right of search not to be conceded in

VII. INTERVENTION. International wrongs are delicts by law

VIII. NATURALIZED AND OTHER REsI- Embargo, § 207.

Naturalization now generally accepted,

Deception and great material destruc- XV. BLOCKADE.

I. OBJECT AND NATURE.

§ 118. INTERNATIONAL law is a law generally accepted by

1 See Johnson v. Falconer, 2 Paine, 601 ; S. C., Van Ness, 1.

alty imposed by a sovereign ;1 and the better opinion, as will

It may then be regarded as settled that international law,

ing states. The congress of Vienna was attended

world be regenerated by a scheme of a priori legislation, not

I Supra, H§ 15 et seq. 3 Supra, §§ 16 et seq.

If we examine the decisions of our courts on any question

I Infra, § 383. of the Institute of International Law

1 The usages which obtain between recht als Rechtsbuch dargestelit"

§ 123. Mr. Hall, in his treatise on International Law

I Essays, etc., 1882. 2 Supra, § 16.

§ 124. The primitive idea of nationality was absolute inde-

I See as dissenting from position of and remarks of Lord Coleridge in R. u.

was no confederacy, absolute independence of such state was

of exchange took their origin, so it is saids in 1250; shortly

free intercourse between states, received a severe shock. The

is primarily due to himself. He is in the first rank of pub-

I Of Grotius's treatise, Sir R. Philli- stantly appeal to civilians during his

Europe also was made, which assumed that thereafter no one

"The treaty of Utrecht," so Mr. tranquillity of its neighbors. For this

becoming first-class powers, or avert the partition of Poland.

1 As the representative of the latter such des neuesten Euopaischan V1-

rights, then the other sovereigns were to intervene. It is

§ 133. The object of the treaty of Vienna was to perpetuate

Among the articles of this peace, it was stipulated that the

I See infra, § 201. 2 Infra, §§ 216 et seq.

congress of Berlin, in the fall of the same year, England obtain-

III. INDEPENDENT SOVEREIGNTY, ITS INVIOLABILITY AND

I The equality of independent states determining domicil. In the United

but not mon oovernment whose authority is coextensive

I Vattel, Prelim., s. 18; Marshall, C. 2 The Helena, 4 Rob. Ad. 3.

sovereignty has been assigned; and while the United States

(5) A personal union, in which certain sovereignties are

I Infra, §§ 158, 505. The question of 2 In England prosecutions for libel-

fusal of maritime ceremonials, when British government permission to trans-

himself with that system before he put himself under its

I Infra, § 210. Della nazionalitA come fundamento del

§ 142. When a section of a state revolts and becomes inde-

treaty, the parent state alone can be called upon to perform