CORNELL UNIVERSITY LIBRARY FROM Cornell University Library JX 2483.P78 1886 Lectures on international law In time of 3 1924 007 477 098. The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007477098 25p S[o|)tt li^otton 3^omerop, %%. 2D* AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES, Especially designed for Students, General and ProfessionaL Ninth Edition, revised and enlarged by Edmund H. Bennett, LL. D., Dean of the Boston University Law SchooL 8vo, sheep. LECTURES ON INTERNATIONAL LAW, IN TIME OF PEACE. Edited by Theodore Salisbury Woolsey., Professor of Internationa^^ Law in Yale Col- - lege. 8vo, law sheep. HOUGHTON, MIFFLIN AND COMPANY, Boston and New York. LECTURES ON INTERNATIONAL LAW IN TIME OF PEACE. BY JOHN NORTON POMEROY, AUTHOB OP "AN INIBOSUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES,^' "AH INI&0I1U0IION 10 MUNICIPAL LAW," EIO. EDITED BT THEODORE SALISBURY WOOLSET, T PB07ESS0R OF INTERNATIONAL LAW IN THE TALE LAW SCHOOL. BOSTON AND NEW YORK : HOUGHTON, MIFFLIN AND COMPANY. 1886. Copyright, 1886, By CAETBR p. POMEEOT. All rights reserved. Tht Rivatide IVejj, Camlmdgt .- Bleotrotyped and Printed by H. 0. Hflughtou & Co. To- THE STUDENTS OF TWO LAW SCHOOLS, OF THE TINIVERSITY OF NEW YORK, AKD OF THE HASTIN03 COLLEGE OP THE LAW, OF THE UNIVERSITY OF CALIFORNIA, StW Uolume of Semite^ FORMERLY DELIVERED TO THEM, IS BESPECTFULLX DEDICATED. PREFACE. The Lectures of the late Professor Pomeroy which are contained in this volume were written during the years 1866 and 1867, while the events of the Civil War in America, of the French intervention in Mexico, and of the war between Prussia and Austria with her allies, were fresh in every one's mind, and fruitful of illustrations for his theme. They have been delivered in the two schools of law with which he was connected, and to whose graduates they are now dedicated. Their author must have contem- plated the completion of his subject by a discussion of the Rights and Duties of States in Time of War, but of this nothing is to be found. By a mischance much to be regretted, the present treatise even was left incomplete, to be finished by another, as is hereafter explained. Although twenty years have passed since these Lectures were written, it is with no apology that they are now given to the profes- sion. Professor Pomeroy's opinions on the burning questions of the time, — the recognition of South- ern belligerency, State repudiation of debt, the nat- uralization difficulty, — and on what are, so to speak, test questions in International Law, such as VIU PREFACE. those relating to its nature, foundation, and defects, to prescription, and so on, were so much .in advance of the time when they were written than even now, public sentiment and public law are scarcely abreast of them. And again the great advances which the last twenty years have seen in the rules govern- ing the relations of States with one another have been connected with a state of war, rather than of peace. Private International Law, the author does not touch, and some few topics generally included in such a treatise, ^— the Monroe doctrine, and the balance of power principle, for instance, — he dis- misses as being in the domain of politics rather than of law. But of all other subjects naturally falling within his plan, it is believed that this work presents a complete and masterly discussion, furnishing sound authority on questions of to-day. There is another reason, as it seems to me, which should give these lectures a present and permanent value. The author, more like a continental jurist, though avoiding the continental jurist's tendency to baseless theorization, while illustrating and carrying into detail the principles under discussion, delights in the work preliminary to this, in clear definition, and orderly arrangement, and .exact classification, and the search for the sources and logical results of principles which cannot change. His treatise thus viewed will be found a profound and original study of the sources and fundamental principles of Inter- national Law, rather than a mere compendium of the PEBFACB. IX accepted rules for the guidance of nations in their daily, peaceful, intercourse. The work of the Editor, besides completing the chapter on the Eight of Embassy, has consisted in verifying citations, filling up occasional gaps where a name, a fact, or a date was .lacking, making the usual Index and part of the Table of Contents, and in the addition of a very few notes. I have deemed it improper to add these to the text, save where the course of events since the time of writing has so changed the matters described as to require a re- statement of them, lest the reader should gain a false impression of present conditions. I should be glad to think that my labor has made the text some- what more complete and more available. THEODORE S. WOOLSEY. Saean-ac Lake, Jvly 13, 1886. TABLE OF CONTENTS. CHAPTER I. INTEODUCTORT. DEFINITION, NATURE, AND SOURCES OF INTERNATIONAL LAW. International Law described. I. Definition by Vattel ; Wheaton ; Pliillimore ; Hautefeuille. n. Nature and Authority. Theories that it is the divine or moral law, adopted by consent, or obligatory without consent. Views of Vattel ; Phillimore ; Hautefeuille ; Sir James Mackintosh. Examination of these the- ories. True theory; "International Morality:" Views of Sa- vigny ; Austin. in. Sources of the International Law; viz. : 1st. Divine law or morality; 2d. Right reason ; 3d. The Consent of nations as contained in (:.) Treaties; (2.) History; (3.) Marine ordinances; (4.) Diplo- matic correspondence, public manifestoes, etc. ; (5.) Decisions of prize courts ; (6.) Works of publicists ... pp. 1-44 CHAPTER IL SUBJECTS OF INTERNATIONAL LAW : STATES. I. What States are subjects of International Law. Attributes of a State. Bodies of men which do not form States. Semi-civilized States. What International Law concerns itself with, in refer- ence to States. II. Different Kinds of States. Those under one central national government. Several States under a federal union. III. Changes iA a State ; their effects. Extinction of, or alterations in, a State . . pp. 4S-78 CHAPTER ra. OBJECTS OF INTERNATIONAL LAW. RIGHTS AND DUTIES OF STATES FLOWING FROM INDEPENDENCE AND SOVEREIGNTY. A. Those which relate to the formation and preservation of a State as a political society. XU CONTENTS. I. The right to regulate its constitution, form of government, and municipal law. II. The right of self-preservation by preventing as well as by repel- ling attack. B. Those which relate to national ownership and dominion. I. The right to acquire territory and other things. Original Acquisition by Occupation, Accession, Prescription. Derivative Acquisition by Marriage, Intestate Succession, Will, Gift, Exchange, Cession pp. 79-144 CHAPTER IV. THE SOVEREIGNTY OE A STATE OVER ITS INLAND AND COAST 'WA- TERS. THE STATE IN ITS RELATIONS TO COMMERCE. II. The rights of territorial inviolability, and of free use and enjoyment of territory over (1.) Rivers and Lakes; (2.) Straits; (3.) Enclosed seas ; (4.) Portions of the sea, viz. : Ports, gulfs, and bays, the coast sea, adjacent seas, the open ocean. III. The right to develop the national resources by commerce. IV. The right to transfer territory, etc., and to put an end to all dominion over them pp. 145-199 CHAPTER V. JURISDICTION OF A STATE OVER PERSONS AND THINGS. EXTRADI- TION AND INTERVENTION. C. Rights relating to Jurisdiction over persons and things. I. Jurisdiction within the national territory. General rule. Things and persons to whom it applies. Exceptions to the rule. II. Jurisdiction in certain instances beyond and without the limits of the national territory. Exterritoriality of sovereigns, am- bassadors, armies in transit, ships of war : Jurisdiction over commercial ships on the high seas, over pirates. Jurisdiction within the territory of half- civilized states, founded on treaty. III. Renvoi and Extradition. IV. Intervention ; , pp. 200-246 CHAPTER VI. RIGHTS FLOWING FROM THE EQUALITY OP STATES. THE RIGHT OF ITS SUBJECTS' PROTECTION. A. Rights of a state to protect its subjects everywhere. I. General principles ; protection abroad, its extent, II. Protection of naturalized citizens against their native govern- ment. Protection of citizen creditors against foreign debtor states. pp. 247-263 CONTENTS. XUI CHAPTER VII. THE RIGHT OF RECOGNITION. B. Right of each State to be recognized. General principles. I. When a personal independent ruler assumes a new title. 11. When an existing nation acquu-es some new territory by con- quest, cession, etc. III. When a portion of an existing nation separates from the re- mainder, and claims to be recognized as a new, independent, . and sovereign state. Recognition of Belligerency, of Independence . pp. 264-312 CHAPTER VIII. STATE CEREMONIAL. THE RIGHT OF A STATE TO EXTERNAL MARKS OF HONOR AND RESPECT. The rank of States. Questions of precedence. Maritime ceremonial. pp. 313-322 CHAPTER IX. TREATIES. I. Definition. n. Between whom treaties may be concluded. III. Requisites and conditions for the validity and binding character of treaties. 1. By whom must the treaty be concluded. 2. Ratification of trea- ties, when is it necessary? 3. How should the consent of the contracting parties be expressed ? 4. Consent of the parties in order to malce the treaty binding. This must be reciprocal and free, but is not vitiated by being the result of defeat in war. 5. The stipulations contained in a valid treaty must not bind the parties to something which is immoral, or impossible of execu- tion. 6. The inviolability of treaties. IV. When a treaty ceases to be obligatory. Effect of war upon treaties. Fishery treaties and the fishery question between the United States and Great Britain pp. 323-371 CHAPTER X. TREATIES (continued). RIGHTS AND DUTIES WHICH THEY CON- FER. VARIETIES OF TREATIES. INTERPRETATION OF TREATIES. The privileges which treaties confer ; necessity of auxiliary legislation. Various kinds of treaties. 1. Those which create, establish, or confirm rights of dominion : trea- XIV COMTEKTS. ties of cession : boundary treaties; treaties recognizing domin- ion over waters : treaties creating servitudes. 2. Those which create, establish, or confirm rights of jurisdiction. 3. Treaties of commerce and navigation. 4. Those which relate to national status or existence, as treaties of peace, of guarantee and of alliance. Interpretation of treaties. Savigny's statements , pp. 372-395 CHAPTER XI. THE RIGHT OF EMBASSY. I. What communities enjoy the right or are subjected to the duty of sending and receiving diplomatic agents. II. The nature of this right and this duty. For what reason may a state refuse to receive a particular diplomatic agent. III. The peculiar kinds and classes of diplomatic agents ; how deter- mined. IV. The peculiar international status of diplomatic agents, their invio- lability and exterritoriality. Diplomatic agents in countries to which they are not accredited ; in invaded territory ; on neutral soil. Exemptions of diplomatic agents from local taxation, customs duties, jurisdiction. Their crimes how punished. Privileges of their residence. Their rights and duties ; their rank and pre- cedence ; their jurisdiction over their suites, over their country- men. Their liberty of worship. How they do their work : how their functions end. Foreign diplomatic agents under the •Con- stitution of the United States. Consuls, nature of their office ; classes of consuls; their rights and duties ; consular jurisdiction in semi-civilized states. The consular judicial service o£ the United States pp. 396-454 nST OF AUTHORS CITED. Austin. Lectures on Jurisprudence. Bluntschli. Das Moderne Volkerrecht Burke. Works of. Bynkershoek. QuEBstiones Juris Publici. Calvo. Le Droit International, Theorique et Pratique. Cicero. Works of. Db Cussy. Phases et Causes Celfebres du Droit Maritime des Nations. De Voet. De Stat. Elliot. American Diplomatic Code, containing treaties of the United States between 1778 and 1834. FoELix. Traitd du Droit International Priv^. Ghillant. Manuel Diplomatique. Griffith. Practice under the Judicature Act. 2d ed. 1877. Grotius. De Jure Belli et Pacis. Hall. International Law. Halleck. International Law, or Eules regulating the Intercourse of States in Peace and War. Hautefeuille. Des Droits et des Devoirs des Nations Neutres, en temps de Guerre Maritime. Heffter. Das Europaische Volkerrecht der Gegenwart. Kent. Commentaries on American Law. Kluber. Droit des Gens Moderne de I'Europe. Kluit. De Deditione Profugorum. Sir James Mackintosh. Discourse on the Law of Nature and Nations. De Martens. Precis du Droit des Gens Moderne de I' Europe. Ed. of Pinheiro-Ferreira. Mittermaier. Das Deutsche Strafverfahren. Ortolan. Efegles Internationales et Diplomatic de la Mer. Phillimore. Commentaries upon International Law. PolSon. Piinciples of the Law of Nations. PuFFENDORP. Elementorum Jurisprudentiae Universalis, Libri Duo. Saalfeld. Handbuch des Positiven Volkerrecht. Savigny. System des heutigeu Kbmischen Bechts. Story. Conflict of Laws. ^ Tindal. Twiss. The Law of Nations, considered as Independent and Political Communities. Vattel. Law of Nations. Wheaton. Elements of the Law of Nations. Dana's ed. WoOLSEY. International Law. LIST OF CASES CITED. PAOX The Maria, 1 C. Robinson, 340, 350 88 The Indian Chief, 3 C. Robinson, 22 48 The Helena, 4 C. Robinson, 5 53 The Fama, 5 C. Rob. 114-116 94,141 The Anna, 5 C. Rob. 373-385 (J) 116, 180 The Twee Gebroeder, 3 C. Rob. 336 149 Schooner Exchange v. McFadden, 7 Cranch, 116 .... 209 The Santissima Trinidad, 7 Wheat. 283 .... 214,217 United States v. Smith, 5 Wheat. 153 226 The Louis. 2 Dodson Adm. 210 229 The Antelope, 10 Wheat. 66 229 The Matter of Washburn, 4 Johns. Ch. R. 106 . . . . 237 Commonwealth v. Deacon, 10 Serg. Se Rawle, 123 .... 237 Holmes ». Jennison 14 Peters,' 5J0-598 237 The Matter of Kane, 14 Howard, 103 241 United States v. Palmer, 3 Wheat. 610 288 Rose V. Himely, 4 Cranch, 241 312 Gilston V. Hoyt, 3 Wheat. 324 312 United States v. Palmer, 3 Wheat. 634 312 Kennett v. Chambers, 14 Howard, 38 312 City of Berne w. Bank of England, 7 Vesey, 347 .... 312 Thompson v. Powleys, 2 Simons, 194 312 Taylor v. Barclay, 2 Simons, 213 , . 312 The Manilla, 1 Edwards, 1 312 The Hercules, 2 Dodson, 363 312 Society for the Propagation of the Gospel ». New Haven, 8 Wheat. 464 865 Holbrook, Nelson and Co. v. Henderson, 4 Sandford N. Y. S .C. Rep. 619 . . . . / 443 .United States v. Ortega, 11 Wheat. 467 443 Valarino v. Thompson 3 Selden (7 N. Y.), 576 ... . 454 United States u. Rivara, 2 Dall. 2*97 ' 454 Sagony v. Wissman, 2 Benedict, 240 454 INTERNATIONAL LAW. CHAPTER I. DEFINITION, NATURE, AND SOURCES OF INTERNA- TIONAL LAW. INTRODUCTORY. § 1. I PROPOSE, in a series of lectures, to direct your attention to that branch of jurisprudence which by most modern writers is termed International Law, or Jus inter Gentes. In the prosecution of my plan, the whole subject will be separated into four grand divi- sions, and considered in the following order : — I. Definition, essential nature, authority, and sources of International Law. II. The subjects of International Law, namely, in- dependent states. III. The objects of International Law, or the pri- mary rights and duties conferred and imposed by it upon nations ; and IV. International remedies, or the means of en- forcing primary international rights ; \inder which head will be considered those secondary rights and duties which arise out of a state of war. I ask your attention, in the present lecture, to the definition, nature, authority, and sources of Interna- tional Law. 1 INTERNATIOKAL LAW. DEFINITION. § 2. It is proper to premise with a few technical definitions given by writers of established reputation. § 3. According to Vattel, " The law of nations is the science which teaches the rights subsisting be- tween nations or states, and the obligations corre- spondent to those rights." ^ § 4. Wheaton says, " International law, as under- stood among civilized nations, may be defined as con- sisting of those rules of conduct which reason deduces, as consonant with justice, from the nature of the society existing among independent nations, with such definitions and modifications as may be estab- lished by general consent." ^ § 5. In the little treatise of Poison a very succinct definition is given : " The law of nations is that law by which the relative rights and duties of nations, whether belligerent or neutral, at war or peace, are defined and enforced." ^ § 6. Phillimore, the latest and ablest English writer on this subject, says : " From the nature of states, as from the nature of individuals, certain rights and ob- ligations towards each other necessarily spring ; these are defined and governed by certain laws. These are the laws which form the bond of justice between na- tions, — ' quce societatis humance vinculum continent,' — and which are the subject of international juris- prudence, and the science of the international lawyer, — jus inter gentes." * § 7. Finally, Hautefeuille, one of the most recent 1 Vattel, Law of Nations, prelim. 3 Poison, sect. 1, §'l. ch. § 2. 4 Phill. Int. Law, vol. i. ch. i. 2 Wheaton's Elements, pt. i. ch. §§ 8, 9. i. § 11. NATURE AND AUTHORITY. 6 French writers, defines international law to be " that which regulates and governs the relations of peoples among each other." ^ § 8. It will be noticed that these definitions are substantially the same. They all assume the exist- ence of independent states, which are treated as legal ) persons or corporations, abstracted from the naturall persons of which they are composed ; of rights and their relative duties which inhere in, or devolve upon,! these bodies politic, in their mutual relations and in-\ tercourse ; of rules, more or less fixed and certain, which define and regulate these rights and duties; and of some means, more or less perfect or imperfect, by which a sanction is brought to bear upon each of these bodies politic, and their rights and duties en- forced. In other words, most or all of these defini- tions describe a system which has all the character- istics of positive law, involving the essentials of law- giver, command, and power to enforce the command. Whether this assumption be altogether correct I shall endeavor to inquire in the course of the present lec- ture. It is sufficient at present to know that a large number of writers, embracing some of the ablest prac- tical jurists and most profound juridical thinkers of modern times, make the assumption, treat it as not only theoretically but actually correct, and build up ^ their entire exposition of international law as a branch of jurisprudence upon the hypothesis. NATURE AND AUTHORITT. § 9. This leads us naturally and directly to an ex- amination of the essential nature, characteristics, and J Hautefeuille, Des Droits et des Devoirs des Nations Neulres, etc. Introd. ch. 4 INTERNATIONAL LAW. authority of international law. Unless we are able to attain to clear notions upon this fundamental ques- tion, the whole subject will and must be, to a certain extent, confused and unsatisfactory. § 10. As already remarked, a large school of writers, including the celebrated Grotius, Vattel, and perhaps most of the professed expounders of the sys- tem, contend that international law is to all intents and properly law, — an integral part of positive hu- man jurisprudence. Although there is some diver- gence among them in the application of their princi- ples, and especially some difiEerence in their theories, which account for the change of abstract doctrines into positive, binding precepts of legislation, the course of reasoning of this class of writers is substan- tially as follows : — § 11, God has impressed upon the universal con- science and intellect of mankind certain powers and capacities to discern and approve great and abstract principles of right, truth, and justice ; and, further- more, from these high, abstract, general, and all con- taining principles to deduce by reason, aided by con- science, particular and special rules of conduct adapted to every emergency and contingency in which an in- dividual- member of the human race can possibly be placed. These rules constitute a perfect system of positive law, and, if fully followed and perfectly obeyed, would at onfte remove all evil from societies and from the lives of individuals. Such general prin- ciples of right and justice are, in a metaphor, spoken of as laws written by the finger of God upon the hearts of men. § 12. These grand, comprehensive, abstract princi- ples of right and equity, thus impressed by the Crea- NATURE AND AUTHORITY. 5 tor upon the human race, are collectively spoken of under different appellations. By the Roman jurists they were termed "jus gentium," or law common to all mankind. I would not be understood as assuming that, when the phrase "jus gentium " was first intro- duced into the vocabulary of the Roman jurisprudence, the Roman people, or even the Roman lawyers, had any conception of general principles of right and jus- tice innate in the conscience of mankind. To them jus gentium was nothing but the particular, positive laws of the nations with, which they came in contact, and was opposed to the lex civilis, which governed only their own citizens. But in the progress of cen- turies, the conceptions of universal law became more clear, and in the writings of the jurisconsults of the Empire it is found as well defined and pronounced as in the works of any modern Christian moralist. Still the uame jus gentium was retained, although the mean- ing given to the phrase had entirely changed. This jus gentium of the imperial jurisconsults is identical with the law of nature, or natural law, of many modern ethical and juridical writers ; and both are, in fact, the law of God, made known somewhat dimly to the whole human race at all times, and set forth with unmistakable certainty and transcendent power in his revealed will. This is, in truth, the highest law by which moral beings can be governed ; — highest in its Lawgiver, who is omnipotent over each individual man, as well as over societies and states ; highest in the absolute perfection of the rules which it contains ; highest in the absolute cogency of the commands which it utters ; highest in the abso- lute obligation of the duties which it enforces ; high- est in the absolute certainty and irresistible coercive b INTERKATIONAL LAW. power of the sanctions which it wields, and which op- erate upon the deepest spiritual nature of every hu- man being. § 13. In applying this divine law to the inter- course of nations, or, in other words, in transforming it into international law, and giving it effect as a portion of positive human jurisprudence, the writers whose opinions I am describing are somewhat at va- riance. Some demand a conscious act of the state, recognizing and adopting these principles, and the special rules derived therefrom, and thus clothing them with the attributes of human jurisprudence. It is not claimed that there* ever has been any formal legislation on the part of individual nations, or by the universal family of states, by which the change has been effected ; but instead thereof a general consent on the part of all civilized peoples is assumed, — a consent tacitly made, and evidenced by the acts of governments in their mutual dealings, which has had the effect to give the abstract dogmas of the divine or natural law a practical human character, and which, once made, is absolutely binding upon the brotherhood of nations, as though the enactments had been imposed upon them by a superior human legis- lator. In discussing and enforcing these views, some writers have directly assumed the fiction of a republic of states, possessing legislative power in all matters relating to international rights and duties. In fact, this theory does seem to require at least the tacit assumption of such an universal republic, whose mem- bers are independent and sovereign states, which are thereby deprived of some portion of their indepen- dence and sovereignty, in the same manner as the individual citizens and members of a particular state NATURE AND AUTHOEITr. 7 are deprived, by their connection with organized so- ciety, of some portion of their personal freedom and their usufruct of property. § 14. Other writers reject entirely the theory of a general consent of nations. They deny that any con- scious act on the part of a state is necessary to ren- der it amenable to the whole of the divine law, which is termed by them international law, just so far as it applies to the intercourse of nations. According, to them, the system or code, if I may so call it, of gen- eral principles of right and justice, together with the particular rules deduced therefrom by right reason, having all the essential features of law, is binding as such upon individuals and upon states. Governments, as the representatives of the state, are obliged to rec- ognize and obey it; to administer it in their inter- course with each other. It is, in fact, their law, in the same manner and to the same extent as the municipal legislation which springs from themselves is a law to their own citizens. In the course of the mutual in- tercourse of states and nations, much of this interna- tional law has been expressed in the form of positive and precise rules, which are understood, recognized, and observed by all civilized peoples. These rules have been thus dogmatically set forth in formal trea- ties, in diplomatic correspondence, in the writings of jurists, in the decisions of courts, and in the long con- tinued customs of nations and governments; and thus international law, which in its origin was somewhat vague and undefined, consisting rather of principles than precepts, has been, to a great extent, reduced to a practical, systematic, legislative form. Still it should be carefully remembered that, according to the opin- ion of these writers, the international law does not 8 INTEENATIONAL LAW. acquire any of its authority as law from this process of systematizing ; that authority is originally binding as obligatory upon those states which would reject as ,upon those who accept it. ' § 15. We may now refer to the language of some of the leading jurists who discuss and advocate the views I have thus endeavored to set forth. § 16. Vattel maintains the position that the law of nations is the divine law applied to international affairs, although he admits that a portion of the rules being entirely conventional, and having no moral char- acter, are adopted by some kind of general consent. He says : — " As men are subject to the laws of nature, and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, — the en- tire nation, whose common will is but the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, the nation pos- sesses also the same rights which nature has conferred upon men in order to enable them to perform their duties. " We must, therefore, apply to nations the rules of the law of nature, in order to discover what their ob- ligations are, and what their rights ; consequently the law of nations is originally no other than the law of nature applied to nations. But as the appli- cation of a rule cannot be just and reasonable unless it be made in a manner suitable to the subject, we are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only of the subjects to which it is ap- NATUEE AND AUTHORITY. 9 plied, SO as to allow of our substituting nations for individuals. A state or civil society is a subject very different from an individual of the human race ; from which circumstance, pursuant to the law of nature itself, there result in many cases very different obli- gations and rights ; since the same general rule ap- plied to two subjects cannot produce exactly the same- decisions when the subjects are different ; and a par- ticular rule which is perfectly just with respect to one subject is not applicable to another subject of a quite different nature. There are many cases, therefore, in which the law of nature does not decide between state and state in the same manner as it would be- tween man and man. " We call that the necessary law of nations which consists in the application of the law of nature to nations. It is necesseiry, because nations are abso- lutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individ- uals. This is the law which Grotius, and those who follow him, call the internal law of nations, on account of its being obligatory upon nations in point of con- science." ^ § 17. Phillimore says : " Moral persons are gov- erned partly by divine law, which includes natural law, partly by positive instituted human law, which includes written and unwritten law or custom. States, it has been said, are reciprocally recognized as moral persons. States are, therefore, governed in their mutual relations, partly by divine and partly by pos- itive law. Divine law is either (1) that which is writ- ten by the finger of God on the heart of man, when J Vattel, prelim, ch. §§ 6, 7. 10 INTERNATIONAL LAW. it is called natural law; or (2) that which has been miraculously made known to him, when it is called revealed or Christian law. The primary source then, of international jurisprudence, is divine law." ^ § 18. A full, and, as it appears to me, a very con- sistent and logical statement of this theory is given by Hautefeuille, in the introductory chapter to his treatise, " Des Droits et des Devoirs des Nations Neu- tres." He says : — " International law is that which regulates and governs the relations of independent peoples among themselves. The words nation, people, designate human- societies living in a state of liberty and of mutual independence, absolute, recognizing no other common power, no other home than that of human- ity, no chief who is able to impose his will upon many among them. Without this independence, na- tionality does not exist. The civil society which rec- ognizes a stranger, ruler, in common with other so- cieties, is by that fact alone no longer a nation, but is only a reunion of subjects with another society. Free peoples, sovereign peoples, have not, then, any arbi- ter, any common judge, who is able to decide upon the differences which arise among them, to settle their claims, to pronounce sentence and carry it into effect among all the parties interested. God alone, the creator, the sovereign moderator of all things, — God alone, to whom pertains the right to abase and to exalt empires, and to give, when it pleases Him, great and sublime lessons to kings, — God is the sole, supreme judge of nations. But most often his deci- sions are not in this world ; they do not strike our sight. God, without doubt, punishes injustice, vio- 1 Phill. on Int. Law, ch. iii. §§ 22, 23, NATUEE AND AUTHOEITY. 11 lence, and usurpation, but often the consequences only fall upon the guilty after this life. Shall we say, then, that the Author of the universe has thought best to abandon men, nations, his crea- tures, without rule or curb, as the sport of their own passions? No, the God all powerful, the God of Hosts, has not thus abandoned his work. He has given to peoples, and to those who govern them, a law, which they are bound to observe towards each other; a law not written, it is true, but which He has taken pains to grave in uneffaceable characters in the heart of each man ; a law which enables each human being to distinguish the true from the false, the just from the unjust, the good from the evil. This is the divine, or natural law. This constitutes what I call the " primitive law " (Le Droit Primitif). This law is the sole base, the only source, of inter- national law. It is by tracing this to its origin, by studying this with care, that we are able, with ex- actitude, to discover the rights of nations. Every other path effectually conducts to error, error grave, error deplorable, since its immediate result is to de- ceive the peoples and those who govern them, to lead them to misconstrue their rights, to violate them, and too often to shed torrents of human blood in order to sustain unjust pretensions. The divine law is not written : it has never been reduced to system in any human language ; it has never been promulgated by any human legislator ; in fact it could not be, since this legislator being man, belonging to one nation, is by that fact without any authority over other nations, and has no power to enact laws for them. This absence of the positive text has led some publicists to deny the existence of 12 INTEENATIOKAL LAW. the natural law ; to reject its application. They have above all based themselves upon the different man- ner in which each individual interprets this law, ac- cording as his organization is more or less perfect, more or less powerful, if I may express myself thus ; whence it results that this law must be different for each individual, for each nation — that is to say, that it cannot exist at all. One of these writers, to support his denial of the natural law, advances the principle that man only brings into the world with him senti- ments of pain or pleasure and desires to satisfy, to which the name " laws " cannot properly be given, because they vary according to the organization of each individual, while to be " laws," they ought to be the same among all peoples, in all climes.^ These opinions would, perhaps, have an appearance of rea- son, if the natural law was represented as a written legislation, as a complete code similar to those which govern human societies and the individuals which compose them. In that case we could say with Mo- ser, " What is then this law of which they speak so much ? Ought we to seek its principles in Grotius or Hobbes ? " We might demand a sight of the code destined to prevent all wars by pointing out and con- demning in advance all unjust pretensions. But it is not thus that the natural law is presented by the authors who rely upon its teachings : they have never sought to give it a body, to make a written code. § 19. What is true, what in my view is incontes- table, is, that there exist among all men notions of justice and injustice ; that all individuals of the hu- man race, enjoying their reasons, have these notions graven on their hearts, and inherited at birth. These ^ Bentham. NATURE AND AUTHORITY. 13 notions do not extend to all the detail of rights, but they mark the mountain peaks of right, if I may thus express myself. It cannot be denied that the idea of property is a natural, innate idea ; the same is true of that which leads each individual to care for his self- preservation ; of that which forbids him" to enrich him- self at the expense of another ; of that which imposes the obligation to repair the evil done to his'-felldws, to keep his ' word, to perform his promise, etc., etc. These primary, innate notions, which each man bears with him from birth, are the precepts of the natural law, and human laws are just so perfect as they ap- proximate these divine commands. This natural or divine law is the only one .which can be applied among nations, among beings free from common bond, from common interest. From these general rules of the divine law, it is easy to construct the secondary rules which serve to resolve all the questions which can arise between na- tions. To cite a single example : It is evident that from the principle emanating from God, that every nation is free and independent of every other nation, — a principle uncontested and incontestable, — : de- volves this consequence, necessary, absolute as the principle itself, that every nation can freely exchange its superabundant products, can trade with whom it pleases, in order to make this exchange, this com- merce, without the need of any permission from a third nation. The only condition which it ought to fulfil is the consent of the co-contracting party. It need not trouble itself at the displeasure which this exchange may give to a third nation, since this trade does not conflict with the latter's positive or natural rights. This second rule, in turn, brings forth many 14 INTERN"ATIOKAL LAW. others as clear, as absolute as itself. In a word, from the natural law, from this primary right, is drawn the entire international law. Viewed in this manner, it appears to me impossible to deny the existence of the primary right ; it is a sort of mathematical verity ; and I do not fear to reply to Moser, — The principles of this law are not solely to be found in Grotius or Hobbes, they are in your own heart, which if you in- terrogate, you will find them there. . § 20. International law, then, has its foundation in the divine or primitive law; it is from this source that it entirely flows. By the help of this law alone, I firmly believe that it is not only possible, but easy, to regulate all the relations which exist, or which can exist, between all the peoples of the world. This common and positive law contains all the rules of jus- tice ; it exists independently of all legislation, of all human institutions. It rules peace and war, and traces out, in every position of affairs, their rights and duties. The rights which it gives are clear, posi- tive, and absolute ; they are of such a nature that they are reciprocally limited, without interference, without contradiction ; they are correlative ; they co- ordinate and support each other with a perfect har- mony. It could not be otherwise, for He who rules so admirably all parts of the universe, the Creator of the world, could not, fall into a contradiction This primitive law permits every people to seek the restitution of that which belongs to them, the redress of injuries done to them, by every means within their power, — even by force against the one who is guilty of abstracting their property, of offence ; that is their right. But it requires of each to respect the nation that is a stranger to the injury, and that wishes to NATURE AKD AUTHORITY. 15 remain a peaceable spectator of the conflict arisen from an injustice in which it has taken no part ; this is their duty. The natural or primitive law yields to every nation the power to remain pacific amidst the horrors of war, to suffer nothing in the conflict raging between their neighbors, to continue to live in peace with both adversaries, and to render to both all the seryices which humanity demands ; this is their Right. But it forbids other nations to favor either of the combatants, to aid in the contest, to take any direct part in the hostilities ; this is their Duty." § 21. Turning from this somewhat enthusiastic de- scription of the French publicist, the words of Sir James Mackintosh will lose none of their weight and impressiveness. He says: "The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of states, are all parts of one consistent system of uni- versal morality. Between the most abstract and ele- mentary maxim of moral philosophy and the most complicated controversies of civil or public law, there subsists a connection. The principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is discoverable in every part of it, even to its minutest ramification, in a legal formality, or in the construction of an article in a treaty." -^ The student may find the opinions of Grotius, Puf- fendorf, Wolf, Heffter, and others, stated with clear- ness and precision in the first chapter of Dr. Whea- ton's "Elements of International Law." § 22. It is not without a particular object that I have stated in so full a manner the views of this school of jurists. While there is in them much of truth, much which commends itself to the Christian 1 Discourse on the Law of Nature and Nations, last page. 16 INTERN ATIOJSAL LAW. moralist, there is also, as it seems to me, much of error, and that of a kind which tends to produce practical injury in the administration of public affairs. This fundamental error consists in confounding the moral law of God, which affects every human being because he is a moral creature, and whose sanctions are of so peculiar and often merely spiritual a charac- ter, with positive human law, enacted by human gov- ernments, affecting human beings only as they are members of organized societies, and wielding sanc- tions that only reach this life and touch the subject in his material interests. In other words, much of what is described as international law is not law, using that term as it is or should be always used in reference to positive human jurisprudence. There is a divine law, — none would deny this truth, — but it can only lead to confusion to speak of this spiritual code as identical with the law enacted by human legislators and enforced by material sanctions. This distinction between divine law, or morality, and posi- tive human jurisprudence, was fully pointed out in one of my oprening lectures upon the nature of mu- nicipal law. The one is the study of the moralist ; the other of the jurist. § 23. There can be no doubt that the rules which govern the intercourse of nations are, to a very great extent, foimded upon principles of justice and equity. It is precisely because governments of independent states have no human superior to whom they may appeal, and whose decisions would have absolute hu- man authority, that these governments, in their mu- tual intercourse, in their diplomatic correspondence, in their formal treaties, in the decisions of their in- ternational tribunals, have felt the necessity of con- NATTJEE AND AUTHORITY. 17 vincing the judgments and appealing to the consciences of peoples and rulers by argufnents drawn from the profoundest considerations of right, truth, and justice. Thus the divine law, the principles of pure moral- ity, are constantly appealed to, and thus the rules of international conduct take on an appearance of abstract justice. It is in this sense that we would yield our most hearty assent to the observation of Sir James Mackintosh, quoted above. But to say that these principles of morality are a law to govern- ments and peoples, in any other manifer than as they and all human beings are bound to do right by God's command, is to exhibit a confusion of ideas and to produce a confusion in the practical administration of affairs. The ordinary municipal law of every civil- ized country is also largely built upon the same basis of divine morality, although there is doubtless in it a more considerable element of the arbitrary and the tribal. But if the views of the writers I have quoted be correct, we should also say that the divine law is in itself part of the municipal jurisprudence of every independent state. Indeed, some writers have been thus consistent with their theory at the expense of the evident fact. § 24. In truth, a large portion of what is generally termed international law has none of the very essen- tial elements of positive human jurisprudence. So far as the administration of human affairs, of political societies, is concerned, it cannot with propriety be termed law, but should be called morality — interna- tional morality. It was shown in a former lecture that the idea of law necessarily contained in it the following subordinate, elemental ideas, namely: (1.) A superior lawgiver j (2.) Inferior subjects; (3.) A 18 INTERN ATIONAL LAW. command; and (4.) Power to enforce the command. The divine law, or moraUty, fulfils in the highest de- gree all of these requisites ; but its commands and its sanctions range through a field entirely different from that occupied by human jurisprudence ; a field which human jurisprudence can never occupy. When we consider the municipal law of any particular state, we find the same requisites fulfilled, though in a less per- fect manner, simply because human nature and human societies are imperfect. We have the national gov- ernment, the lawgiver; the members of the body politic, the inferior subjects ; the commands, uttered by the legislature, the courts, or whatever other in- strumentality possesses the function of law-making; and the power to enforce these commands by judicial trials, judgments, punishments, etc. What is gener- ally termed international law lacks all of these essen- tials. It is universally conceded that there is no hu- man superior, for it is the very postulate of the sci- ence that every nation is entirely independent of and , equal to all others. Indeed, the moment a political society loses this independence and equality, it loses all claim as a nation to the benefit of international law. There being no superior lawgiver, and no infe- rior subjects, there can be no such thing as a com- mand. Even if it be said that these equal, indepen- dent sovereignties may either formally or tacitly agree to certain rules of conduct in their mutual rela- tions, these rules cannot with any propriety be termed laws; they are the agreements of equals, not the commands of superiors ; they are rather in the nature of contracts than of laws. § 25. But when we come to consider the method, of enforcing the rules of international law, we dis- NATURE AND AUTHORITY. 19 cover more clearly how entirely they are wanting in the very essentials of law. There is, and can be, no judge, no executioner, no sanction. Each of these independent states must attempt to persuade the oth- ers to fulfil their international obligations. If these obligations are denied, or if, being admitted, their fulfilment is refused, the only possible remedy of the injured state is to endeavor to compel a performance of the duty by force, that is, by war. What a per- version of terms and of ideas it is to call war the sanction by which the rules of international law are enforced. Law requires power in the lawgiver to compel obedience to the command. What would we think of a system of municipal law in which a judicial trial consisted only of a forcible conflict between the offender and the judge, in which it was just as possi- ble, just as probable, that the former would be suc- cessful as the latter ? Yet this is the exact represen- tation of war as a means of enforcing international rights and duties. In fact, neither persuasion nor war bear any resemblance to the sanctions by which a system of law is rendered effective. The judicial means provided by every positive national jurispru- dence are a part of that very jurisprudence itself. They proceed in an orderly and certain manner. Mistakes may be made ; the innocent may be pun- ished and the guilty escape, but simply because human judgment is fallible, human power sometimes fails. But war is something outside of the system of international law ; it is invoked where that system fails ; it is a return to what has often been termed a state of nature, when human beings were assumed to be living without organized society, with no human laws, each a law to himself, and each enforced, if pos- 20 IKTEENATIONAL LAW. sible, by the might of his own arm, what he deemed or claimed to be his personal rights. To speak of such, a system as law is to use language without meaning. § 26. While this is true to a very great extent, there is still a large portion of the rules to which the term international law is usually given, that has been, in fact, incorporated into the municipal law of partic- ular states, and is enforced in the ordinary adminis- tration of their public afEairs. This incorporation is effected in various ways ; by direct legislation, by ju- dicial decision, by treaties which are declared to be the supreme law of the land. It will be found that the number of these rules thus removed from the do- main of mere morality, and made a part of the posi- tive jurisprudence of a state, is very large. They may still with propriety be termed international law, because the rights and duties which they create have particular reference to, and intimate connection with, international relations. One illustration will at pres- ent suffice. It is generally stated that, by the inter- national law, a neutral state is forbidden to aid either of the belligerents by arms, ammunition, or men. The United States, England, and many other coun- tries have made this rule a part of their municipal code, and in their " neutrality " and " foreign enlist- ment " acts have defined the extent of the prohibition, and given their courts the power to punish offenders as for an infraction of their internal legislation. § 27. As corroborative of these views I refer to the language of Savigny, one of the greatest jurists that Europe has ever produced, and to that of Austin, the foremost English writer on the scope and prov- ince of jurisprudence. NATURE AND AUTHORITY. 21 The former says in his great work upon the Roman law : " There may exist between different nations the same commimity of ideas which contributes to form the positive unwritten law of a particular nation. This community of ideas, founded upon a common origin and religious faith, constitutes international law, as we see it existing among the Christian na- tions of Europe, — a law which was not unknown to the people of antiquity, and which we find among the Romans under the name jus fedale. International law may, therefore, be considered as a positive law, but as an imperfect positive law, both on account of the indeterminateness of its precepts, and because it lacks that solid basis on which rests the positive law of every particular nation, the political power of the state, and a judicial authority competent to enforce the law." ^ § 28. Austin, in his profound work on the province of jurisprudence, a work in which he has shown him- self greatly the superior of his master, Bentham, uses much more pointed language than Savigny. He says : " Society formed by the intercourse of independent political societies is the province of international law, or of the law obtaining between nations. For (adopt- ing a current expression) international law, or the law obtaining between nations, is conversant about the conduct of independent political societies considered as entire communities. . . . And hence it inevitably follows that the law obtaining between nations is not positive law ; for every positive law is set by a given sovereio-n to a person or persons in a state of subjec- tion to its author. As I have already intimated, the law obtaining between nations is law (improperly so 1 System des heutigen Eomischen Rechts, 1 Band, 1 Buch, K. 11, § 11. 22 INTEENATIONAL LAW. called) set by general opinion. The duties which it imposes are enforced by moral sanctions ; by fear on the part of nations, or by fear on the part of sover- eigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected."^ Again, he re- marks : " The ancient idea of a law of nations is con- nected with the assumption of a law of nature which is universally binding independently of political obli- gation. International law, according to the above mentioned notion, supposes a law. of nature : i. e. a law obligatory upon all mankind, but wanting the po- litical sanction. If there be no law without that sanc- tion, the admitted maxims for the conduct of interna- tional transactions are not law, but ethics. Each state may, however, adopt an international law of its own ; enforcing that law by its own tribunals, or by its military force, (at least) as against other nations. This, however, is not international, but national or civil law ; i. e. in regard to the sanction. For in regard to the subject, and (where there is good faith) to the object, it may be styled international. If the same system o£ international law were adopted and fairly enforced by every nation, the system would answer the end of law, but, for the want of a com- mon superior, could not be called so with propri- ety. If courts common to all nations administered a common system of international law, this sys- tem, though eminently effective, would still, for the same reason, be a moral system. The concurrence of any nation in the support of such tribunals, and it^ submission to their decrees, might at any moment be withdrawn without legal danger. The moral sys- 1 Lect. on Juris, 4tli ed. vol. i. pp. 231, 232. NATURE AND AUTHORITY. 23 tem so administered would, of course, be eminently precise." ^ § 29. I am now prepared to state in a succinct and dogmatic form my own definition of international law. (1.) There is a class of rules connected with inter- national relations which refer entirely to the private rights of individual citizens of one state within the territory of another; which determine how far, and when, the provisions of the municipal law of one sov- ereignty defining private rights and duties shall be observed and followed within the jurisdiction of an- other. These rules are especially concerned with the status of individuals, the lex loci contractus, the lex loci rei sitce, the lex fori, etc., etc. To what extent, however, the internal law of one nation shall be en- forced within another is entirely a matter of comity, not of strict right. We have occasion to refer to these rules in the discussion of particular departments of jurisprudence, — marriage and divorce, successions, contracts, foreign judgments, and the like. The great work of Story, " The Conflict of Laws," is an expla- nation of these results of international comity. Mod- ern jurists often denominate this department ^ms inter gentes prioaium, or private international law. We have nothing to do in this course of lectures with pri- vate international law as thus described. So far as it has force it is a part of the municipal law, and the term international, as applied to it, seems to me to be a misnomer. (2.) A large number of rules which govern the mutual relations of states in their corporate capacity are properly called international law, on account of the 1 Led. on Juris. 4th ed. vol. ii. pp. 593, 594. 24 INTERNATIONAL LAW. objects which they subserve and the rights and duties they create. They are also properly law, because they have been established by particular states as a part of their own municipal systems, and are enforced by their judiciary and executive in the same manner as other portions of the local codes. They are in fact principles of the law of nature or morality, put in the form of human commands, and clothed with a human sanction. (3.) What is called international law in its general sense, I would term international morality. It con- sists of those rules founded upon justice and equity, and deduced by right reason, according to which in- dependent states are accustomed to regulate their mutual intercourse, and to which they conform their mutual relations. These rules have no binding force in themselves as law ; but states are more and more impelled to observe them by a deference to the gen- eral public opinion of Christendom, by a conviction that they are right in themselves, or at least expedi- ent, or by a fear of provoking hostilities. This moral sanction is so strong, and is so constantly increasing in its power and effect, that we may with propriety say these rules create rights and corresponding du- ties which belong to and devolve upon independent states in their corporate political capacities. § 30. We thus reach the conclusion that a large portion of international law is rather a branch of ethics than of positive human jurisprudence. This fact, however, affords no ground for the jurist or the student of jurisprudence to neglect the science. In- deed there is the greater advantage in its study. Its rules are based upon abstract justice ; they are in conformity with the deductions of right reason ; hav- SOURCES. 25 ing no positive human sanction, they appeal to a higher sanction than do the precepts of municipal codes. All these features clothe them with a nobler character than that of the ordinary civil jurispru- dence, as God's law is more perfect than human legislation. SOURCES. § 31. The preceding analysis of the nature and characteristics of international law enables us to an- swer the general question. What are its sources ? If we confine our attention to that portion which is in every sense of the term strictly international, and is therefore, as we have seen, morality rather than law, these sources are plainly seen to be : (1.) The divine law; (2.) Enlightened reason acting upon the abstract principles of ethics; and (3.) The consent of nations in adopting the particular rules thus drawn from the generalities of the moral law by the aid of right reason. It is only with this portion of interna- tional law that we need now concern ourselves. That other portion which I have already described as inter- national only in its objects, and strictly national and municipal in its creation and sanctions, springs from the same sources whence all of the internal law of a particular state arises, — from legislatures and the de- cisions of courts. We will then briefly consider these principal sources, or, if I may use the expression, foun- tains from which flow the streams of the jus inter gentes. § 32. (1.) ITie Divine Law, or the principles of morality, as they are revealed either (.1) in God's written word, or (2) in the consciousness of man- kind. Enough has already been said to show that it is upon these eternal foundations of truth and right 26 INTERNATIONAL LAW. that the whole superstructure is professedly erected. The necessity of this result has also been sufficiently explained. States are regarded not simply as ag- gregates of individual human beings, collected in a given territory, each having a moral nature, but as themselves organisms, corporate societies, distinct from the mere individuals who make them up, having a distinct moral nature, and answerable to God and to mankind for the observance of the duties devolv- ing upon them in this organic capacity. § 33. (2.) Reason. But the precepts of the moral law, either as contained in the written word, or as felt in the consciousness of the human race, are st?itements of broad general principles ; they are the germs, the fructifying powers ; they must be developed ; must be cast in a more practical and dogmatic form to meet the countless demands of each individual, and of the societies we call nations. To this end we must appeal to reason ; and hence the second source which I have mentioned, namely, enlightened reason acting upon the abstract principles of morality. I cannot now stop to illustrate this proposition ; we shall meet many pertinent examples in the course of our investiga- tions. I wish now, however, to dwell upon one fact of great importance, a fact which will help you to avoid many difficulties, to reconcile many discrepan- cies, to solve many uncertainties. This fact is, — that as international law is mainly based upon the gen- eral principles of pure morality, and as its particular rules are mainly drawn therefrom, or are intended to be drawn therefrom, by reason, it is, as a science, the most progressive of any department of jurisprudence or legislation. The improvement of civilized nations in culture and refinement, the more complete under- SOURCES. 27 standing of rights and duties, the growing apprecia- tion of the truth that what is right is also expedient, have told, and still do tell, upon it with sudden and surprising effect. The result is that doctrines which were universally received a generation since, are as universally rejected now ; that precedents which wer^ xmiversally considered as binding a quarter of a cen- tury ago would at the present be passed by as with- out force, as acts which could not endure the light of more modern investigation. Mpre particularly is this true in respect to the rules which define the rights of belligerents and neutrals. The latest works of European jurists are, as we shall see, conceived in a far different spirit from standard treatises of the former generation. It was the entire ignoring or forgetfulness of this evident and most benign fact by Mr, Senator Sumner, in the celebrated and elaborate speech which he delivered a few years since upon the international policy of England, that rendered the speech utterly useless as an argument, exposed it to the criticism of European jurists, and left it only a monument of imnecessary labor in raking up old pre- cedents from history, which no civiUzed nation of our own day would quote or rely upon. The Roman law, that wonderful result of reason working upon a basis of abstract right, is largely ap- pealed to in international discussions, as containing rules which, at least by analogy, may serve to settle international disputes. No one can be an accom- plished diplomatist without a familiar acquaintance with much of this immortal code. § 34. (3.) Consent of Nations. Rules may be drawn from the purest source ; may be in accordaifce with the plainest principles of right ; may be sustained by 28 INTERNATIONAL LAW. the conclusions of universal reason ; they can only be accepted as rules of international conduct by some kind of international consent. This consent has, of course, never been formally given in any general con- gress of nations ; but it has none the less been given, and is constantly acted upon. The particular rules cannot make themselves ; they must be made ; if yielded to by each member of the great family of nations, each does thereby acknowledge their exist- ence, and consent to their obligation. In fact we shall find text-writers and judges constantly speaking of the " practice of nations," " international usage," " custom," and the like, as authority for their doc- trines or their decisions. Now this consent is both shown, and the rules of the international law themselves are set forth, in a practical, tangible shape by several means, the most important of which are the following : — (1.) Formal treaties ; (2.) History; (3.) Marine ordi- nances ; (4.) Diplomatic correspondence, public mani- festoes, official instructions, and the like ; (5.) Deci- sions of prize courts; (6.) Works of standard juridical writers. To these six heads we must refer, both to establish the fact that nations have consented to reg- ulate their mutual relations by a system of rules more or less plainly defined, and also to ascertain what these rules are. Here we descend from a height of speculation to a somewhat lower plane, and find something that has at least the appearance of positive legislation. § 35. (1.) Treaties. A treaty may be looked iipon in two lights : (a.) As a direct, formal compact be- tween the high contracting parties who execute it; or, (6.) As a statement and acknowledgment of prin- SOURCES. 29 ciples and doctrines in so universal a form that they have an effect far beyond the immediate parties to the instrument. "We will consider them in each of these aspects. (a.) As mere formal compacts. Of course a treaty is binding upon those nations which execute it. The rules which it contains must govern the intercourse of those specific sovereignties in respect to all matters within those rules. But such a treaty does not neces- sarily affect the general international law. It is very possible, in fact not at all uncommon, for two states by treaty to waive a rule of the law of nations, or to adopt a rule not required by that law ; in which case the convention thus formed would control their inter- course with each other, but would not at all, perhaps, change their rights and duties towards other peoples. Thus it has always been claimed and laid down by many writers of authority that goods of one bellig- erent, carried by a neutral vessel, are liable to be seized on the high seas by the men-of-war of the other belligerent, and confiscated as good prize. Assuming that this is an existing rule of the international law (which is denied, however, as we shall see, by many eminent publicists) particular nations have, by their treaties, established the principle, that, as between themselves, a neutral flag shall protect an enemy's goods, — or, as it is frequently expressed, free ships make free goods. Supposing that such a treaty existed between the United States and France, and a war should arise between the United States and Great Britain, this treaty would prevent our cruisers from seizing- the goods of British subjects in French bottoms, but it might not stand in the way of our armed ves- sels seizing such goods while on board of Dutch ships. 30 INTERNATIONAL LAW. § 36. Of course, the greater the number of states that join in a single treaty, the nearer its provisions approximate the character of universal law. If we could conceive that all the civilized nations of the world should unite in one treaty containing precepts and regulations affecting their intercourse with each other, we should have a general international law based upon positive stipulation and convention. Such, a treaty never has been made, but many of the most important European compacts have been signed by a large number of the most powerful nations, and have thus tended to create a European law in respect to the matters embraced in those conventions. This is especially true of treaties which defined territorial boundaries, regulated dynastic arrangements, and pre- served the " balance of power." By a convention signed at Paris, April 16, 1856, between France, Aus- tria, Great Britain, Prussia, Russia, Sardinia, and the Ottoman Porte, certain important principles in rela- tion to belligerent and neutral rights were established as guides to those nations, and doubtless they will ere long be universally accepted as correct statements of the general international law. But it must not be supposed that all treaties can affect the public law. Some relate to matters of purely local interest ; many contain stipulations wrung from the necessities of one party, it being compelled to admit claims to which by the general law its ad- versary was not entitled.-^ § 37 (b.) But treaties may have an effect beyond the contracting parties thereto ; they may amount to an assent to universal principles. Two nations may enter into a convention in respect to certain matters 1 See Phillimore, vol. i. p. 47. SOURCES. 31 involved in the general law, and may so express their mutual agreements, may lay down the rules in so general a manner, as to bind themselves by those rules in their intercourse with other peoples ; they, as it were, estop themselves to deny the correctness of the dogmas and doctrines they have thus included in their convention. To illustrate : Two states may en- ter into a compact in respect to those articles of mer- chandise which shall be deemed contraband of war. It is certainly possible for them to waive any of the provisions of the general law, and, as between them- selves, to abolish contraband of war entirely. On the contrary, they may add to the list articles to which that law does not af&x the character of contra- band. In either case the language of the stipulation may be such as to render it a private arrangement merely between the contracting parties. Again, it may be expressed so generally, in the form of univer- sal propositions, that all nations may insist that these particular states have put a construction upon the general law from which they cannot recede. In other words, this treaty will be not only a private compact but a formal consent to certain doctrines of the inter- national law. Such a case arose in England, and Lord Grenville, during a debate in the House of Lords upon a treaty with Russia, laid down the principle of con- struction in language so clear and convincing that I quote a few paragraphs. He says : — " The third and fourth sections, those which treat of contraband of war and blockaded ports, do each of them expressly contain, not the concession of any special privilege henceforth to be enjoyed by the con- tracting parties only, but the recognition of a univer- sal and preexisting right, which, as such, cannot justly 32 INTEEKATIONAL LAW. be refused to any other independent state. This third section, which relates to contraband of war, is, in all its parts, strictly declaratory. It is introduced by a separate preamble announcing that its object is to prevent ' all ambiguity or misunderstanding as to what ought to he considered as contraband of war.' Conformably with this intention, the contracting par- ties declare in the body of the clause, what are the only commodities which they ' acknowledge as sucfi.' . . . [This clause] must unquestionably be understood in that larger sense which is announced in its pream- ble, and which is expressed in the words of the decla- ration which it contains. It must be taken as laying down a general rule for all our future discussions with any power whatever, on the subject of military or naval stores, and as establishing a principle of law which is to decide universally on the just interpreta- tion of this technical term, ' contraband of war.' . . . On the whole, therefore, I have no doubt that neutral nations will be well warranted in construing this sec- tion as declaratory of a general principle, and appli- cable to every case where contraband of war is not defined by special treaty. Nor could we, in my opin- ion, as this treaty now stands, contend in any future wars with any shadow of reason, much less with any hope of success, against this interpretation, however destructive it must be of all our dearest interests." In another and somewhat analogous manner, the consent of particular states to definite rules of in- ternational law may be implied from treaties, with a degree of cogency sufficient to bind them in respect to other sovereignties. A nation may incorporate the same provision in all or most of the treaties which it concludes with other powers, and thus fully commit SOURCES. 33 itself to the general doctrine contained in such stipu- lation. Thus it may be considered that the United States has committed itself to the general doctrine that free ships make free goods, certainly in regard to all states which themselves recognize the same rule. In regard to states which deny the rule, the effect would probably not be so strong. § 38. Certain treaties have obtained an historical reputation from the effect which they have had in settling certain portions of international law. We need not now refer to any except those whose influ- ence has been directly European, and those immedi- ately concerned with our own country. A. European : The most important are the Treaty of Westphalia, concluded in 1648, between all the powers on the Continent of Europe except. the Pope and the Ottoman Pbrte ; and which is commonly said to be the starting-point of modern international law. That of Utrecht (1713), between France, Spain, Great Britain, Holland, and other principal powers, settling the disputed succession to the Spanish Mon- archy, arranging the biilance of power, and making maritime and commercial regulations. Those of Paris (1763), between France, Spain, Great Britain, and Portugal, and of Hubertsburg (1763), be- tween Austria and Prussia which ended the Seven Years war. Those of Paris (1814, 1815), between the Allied Powers on the overthrow of Napoleon. Those of Vienna (1815), as the result of the Con- gress of Vienna, by which territorial and dynastic ar- rangements were made for Europe, and the Germanic Confederation was formed. That of Paris (1856), between France, Great Brit- 34 INTERNATIOKAL LAW. ain, Russia, Sardinia, Austria, Prussia, and the Otto- man Porte, by which the Eastern question was settled, the security of the Ottoman Empire guaranteed, and certain maritime rules adopted. The Treaty of Berlin in 1878 was also important, as settling the Eastern question for the time. B. The United States : The Treaty of Versailles (1783), in which the independence of the United States was recognized by Great Britain. That of Ghent (1814), between Great Britain and the United States, concluding the war and arranging the boundaries of the latter. That of Paris (1803), by which Louisiana was ceded to the United States. That of Washington (1842), between Great Britain and the United States, commonly called the Ashbur- ton Treaty ; and That of Washington (1871), settling the Alabama Claims, Northwestern Boundary and Fishery ques- tions, § 39. (2.) History. Of course history abounds in precedents, in illustrations, in occasions for the appli- cation of the doctrines of international law, and in in- stances of the application of those doctrines. Indeed, all the other secondary sources of the science might be summed up in this single one. But it should be remembered that history furnishes wrong prece- dents, as well as those which are legal and binding ; it is a record of injustice, of abuse of power, of de- struction of rights. Whatever may be found recorded in its pages is not, therefore, to be taken as law. Its utterances must be consonant with reason and justice. § 40. (3.) Marine Ordinances and Codes. As the SOUECES.- 35 ocean is the highway of nations, commerce must necessarily assume a cosmopolitan character. The rules which govern the rights, powers, and duties of persons engaged in navigation, and especially those which define these rights, powers, and duties in time of war, have always been considered as, to a cer- tain degree, international. It has been quite com- mon, particularly in former ages, for certain com- mercial states to put forth marine ordinances and codes which contain in detail the regulations of navi- gation, both in times of peace and of war. " These marine ordinances or codes of a state afford valu- able testimony, first, as to the practice of the state itself upon this branch of the international law ; and also, in some degree, as to the usages of nations as generally recognized at the time by the jurists and statesmen, the legislative assemblies of the country which issued them. When the institutes of great maritime powers agree upon a question of interna- tional maritime law, they constitute a tribunal from which there can rarely, if ever, be any appeal." ^ Cer- tain of these ordinances or codes have always been held in the highest estimation, and are constantly re- ferred to by the courts of England and America, as well as by those of the European Continent. These are the " Consolato del Mare," and the French " Or- donnance sur la Marine " of 1681. § 41. (4.) Diplomatic Correspondence, Public Man- ifestoes, Official Instructions, etc. Such documents may, perhaps, have no binding authority as state- ments of international law ; but as they are issued under official sanction, often the productions of the ablest statesmen and publicists of the times, setting 1 Fhillimore, vol. i. p. 51. 36 IKTEENATIOKAL LAW. forth the demands of a particular country with all the wealth of learning and argument at their command, they certainly are among the most convincing proofs of the views of governments upon disputed questions- It is often by such manifestoes and published corre- spondence that governments appeal, not only to their own subjects, but also to the enlightened opinion of all Christian peoples, to explain their acts and sustain their policy. " Such documents furnish, at all events, decisive evidence against any state which afterwards departs from the principles which it has thus deliber- ately and solemnly invoked." ' As the most impor- tant organs of nations in their mutual intercourse are the Secretaries of foreign affairs and the diplomatic agents sent oiit to represent the government, and as the only way of obtaining an agreement between two sovereignties, prior to the employment of actual hostilities, is by means of negotiation, which consists in argument and persuasion, we should naturally ex- pect to find in the diplomatic correspondence of civil- ized countries the fullest statement of international rules applied to particular cases and occasions ; these rules traced to their fundamental principles in the clearest manner; considerations of justice, right, and expediency most completely exhausted. We shall find, then, that reference is constantly made to this class of state papers by all modern juridical writers. Indeed it has become the almost uniform practice of the most enlightened states at the present day to pub- lish their diplomatic correspondence to the world. Of course to the American student the diplomatic correspondence of his own government possesses the highest interest, and will afford the most instruction. ' Phillimore, vol. i. p. 50, SOUECES. 37 Much of the earlier of this will be found in Elliott's Diplomatic Code, vol. 2 ; the more recent in the offi- cial publications of the state department. Among the most important subjects discussed are the rights of neutral vessels to carry enemies' goods ; the free navigation of the Mississippi and of the St. Lawrence ; the impressment of American seamen ; the right of search ; the rights of neutrals growing out of the Napoleonic wars ; blockades ; the right of fishing ; the slave-trade ; boundaries, etc. These topics are treated by such American statesmen as Franklin, Jay, Jefferson, Madison, Monroe, the Adamses, E. Ran- dolph, Livingston, Marcy, Webster, and others. In our own times the voluminous correspondence of Mr. Secretary Seward and Mr. Adams with Earl Russell is certainly the most complete and exhaustive exam- ination of the rights and duties of neutrals, and es- pecially of the duty of a neutral country to refrain from aiding either belligerent, that has ever appeared in the annals of diplomacy. The opinions of the United States attorney generals, given from time to time to the Executive, will also be found a rich store of learning and argument upon questions connected with the science of international jurisprudence. § 42. (5.) The Decisions of Prize Courts. Prize courts are an inseparable concomitant of modern maritime warfare. International law gives to neu- tral states the right to demand that the belligerent powers shall establish tribunals to adjudicate upon the legality of all seizures of neutral vessels taken while engaged in breaking a blockade, in carrying contraband articles or enemies' goods, or violating any other of the duties which devolve upon them as neutrals. These courts assume to be governed by 38 INTERNATIONAL LAW. the international law. It is true that ultimately the judges must decide according to their own opinions of that law ; and that such decisions may not possibly be accepted by other states ; but still, in the main, these adjudications will furnish the rule by which their own government is guided. Lord Stowell in a celebrated case thus describes the duties of a judge in prize courts : ^ "In forming my judgment I trust that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me ; namely, to consider myself as sta- tioned here, not to deliver occasional and shifting opinions to serve present purposes of particular na- tional interest, but to administer with indifference that justice which the law of nations holds out, with- out distinction, to independent states, some happen- ing to be neutral, and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations ; but the law itself has no locality. It is the duty of the person who sits here to determine the question exactly as he would deter- mine the same question if sitting at Stockholm ; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same cir- cumstances, and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character." This is certainly an exalted statement of judicial duty, but, of course, there must always be a tendency on the part of a judge to exalt his own nation, to re- gard its claims with a more favorable eye than those of other peoples, and, in the very heat and excite- 1 The Maria, 1 C. Robinson, 340, 350. SOURCES. 39 ment of hostilities, his judgments may provoke much •criticism and protest. In fact, the very case from which I have quoted was the occasion of a league of all the Baltic powers against Great Britain, and, as we shall see hereafter, its correctness was questioned at the time, and its peculiar doctrines repudiated, by most of the modern continenta^l i^riters. Yet it will be found that in England and the United States, and probably in all European countries, the determinations of prize courts are uniformly based upon argument and prece- dents, with reasons set forth at length, so that all persons may judge of their correctness and cogency. § 43. As we shall have occasion to refer very fre- quently to these decided cases, it will be proper to give a sketch of some of the most important prize courts, and most celebrated prize judges. Of course a prize court sits only in time of war. In England it is a branch of the High Court of Admiralty, which consists of a single judge. When this court sits to hear civil causes, it is technically known as an instance court. In England it is usual upon the breaking out of hostilities to which that nation is a party to issue a special commission to the judge in admiralty, em- powering him to take cognizance of matters in prize. As the judicial machinery of England is at present ar- ranged, an appeal lies from the High Court of Admi- ralty to the Judicial Committee of the Privy Council.^ 1 By the " Supreme Court of Ju- cised by the High Court of Admi- dicature Act of 1873," the High ralty ; the second, " Her Majesty's Court of Admiralty was consolidated Court of Appeal," to which is trans- with a number of other courts into ferred the jurisdiction formerly be- one Supreme Court of Judicature, longing to the Judicial Committee This Supreme Court consists of two of the Privy Council. See GriflSth's Divisions. The first, " Her Majes- Practice under the Judicature Acts, ty's High Court of Justice," to as- 2d ed. 1877, p. 1-16. — Ed. same the jurisdiction formerly exer- 40 INTERNATIONAL LAW. During the long and bitter wars between Great Britain and Napoleon, a vast number of questions' were submitted to this court for decision. As the power of Napoleon extended, at times, over almost the whole of Europe, every neutral nation was in- volved more or less in the contest. The celebrated Milan and Berlin Decrees of the French emperor and the retaliatory " Orders in Council " of the British gov- ernment exposed a large portion of the neutral com- merce of the world to destruction. During this period the judge of the High Court of Admiralty was Sir Wil- liam Scott, afterwards Lord Stowell. His decisions are found recorded in the reports of C. Kobinson, Ed- wards, Dodson, and Haggard. They certainly form the basis of the international law of maritime war as recognized by England, and have, in the main, been adopted and followed by the courts of the United States. There is no doubt that Lord Stowell pushed the rights of belligerents as against neutrals to their extreme limit, and it is quite certain that the tribunals of Continental Europe, of America, and perhaps of England itself, would not, at the present day, implicitly follow his lead in many matters. Modern French and German writers have subjected many of his doctrines to severe criticism. Still, as a learned and upright international judge, Lord Stowell has never had his equal, either in the extent of his attainments, the power and scope of his intellect, or the wonderful beauty and eloquence of his diction. Of him Judge Story says : " How few have read with becoming reverence and zeal the decisions of that splendid jurist, — the ornament, I will not say, of his own age or country, but of all ages and all countries ; the intrepid supporter of neutral and of SOURCES. 41 belligerent rights ; the pure and spotless magistrate of nations, who has administered the dictates of uni- versal jurisprudence with so much dignity and dis- cretion in the prize and instance courts of England. Need I pronounce the name of Sir WilUam Scott." § 44. The judicial machinery of the United States is planned after that of England, though differing much in detail. Admiralty causes, including those of prize, belong exclusively to the federal- courts. The tribunals of original jurisdiction are the District Courts, each consisting of a single judge who sits without a jury. From his decrees an appeal lies to the Circuit Courts, and finally to the Supreme Court of the United States. The most important questions are therefore passed upon by that august tribunal. In the early part of our history the United States was involved in hostilities with France, the war being carried on entirely at sea. Subsequently, we were affected by the policy of England and France, which resulted in our embargo as a retaliatory measure. At last the war with Great Britain broke out in 1812. All of these events gave occasion for much investi- gation of international maritime law by the Supreme Court, and their decisions will be found recorded in the reports of Cranch and of Wheaton. The latter are particularly rich in prize cases, the whole subject being illustrated by such jurists as Story and Mar- shall. Within the past four years the law of block- ade has been repeatedly under examination by the same court, and the results are to be found in the reports of Mr. Black and the current series of Mr. Wallace. § 45. (6.) The Works of Standard Writers. "The consent of nations is further evidenced by the con- 42 INTERNATIONAL LAW. current testimony of great writers upon international jurisprudence. The works of some of them have be- come recognized digests of the principles of that sci- ence ; and to them every civilized country yields great, if not implicit, homage." ^ They are constantly cited in the courts as authority, and quoted by di- plomatists and statesmen to enforce these arguments and sustain their conclusions. Of course these trea- tises are the most comprehensive repositories of the doctrines and rules of this department of jurispru- dence. The great leader of this class of writers was the immortal Grotius, whose treatise " De Jure Belli et Pacis " was published in 1624. Of this work it is said, " It is scarcely too much to say, that no unin- spired work has more largely contributed to the wel- fare of the commonwealth of states. It is a monu- ment which can only perish with the civilized inter- course of nations, of which it has laid down the mas- ter principles with a master's hand. Grotius first awakened the conscience of governments to the Chris- tian sense of international duty." Following Grotius, in the year 1672 PufEendorf gave to the world his work entitled " De Jure Naturae et Gentium," which has the merit of stating a philosoph- ical basis for the science, in the Natural law. As a practical treatise it has been entirely superseded. In 1737, the " Quasstiones Juris Publici " of Bynker- shoek a distinguished Dutch jurist and magistrate, ap- peared, and has ever since held an authoritative posi- tion in regard to the rights of belligerents, although quite meagre as to those of neutrals. Bynkershoek is remarkable for the clearness of his statements and the force and vivacity of his style. A portion of this work 1 Fhillimore, vol. i. p. 58. SOURCES. 43 has been translated by an American lawyer, Mr. Du Ponceau, and issued under the name of " Laws of War." In 1758 Vattel's celebrated treatise on the law of nations was published, and rose immediately to a place, which it has since held, of very high authority. It has been very extensively adopted as a text-book in colleges and schools of law, but has latterly been dis- placed by more modern works, by Wheaton especially. Much of Vattel's work is devoted to the discussion of subjects not belonging to the international law, but rather to the public law and civil polity, the origin, nature, and object of government, and the nature of civil societies. § 46. In more recent times the treatises of Kliiber and Heffter, in Germany, and those of De Martens, Ortolan, Hubner, Foelix, and Hautefeuille in France, have attained a reputation and influence more than continental. The special essay of Hautefeuille, " Des Droits et des Devoirs des Nations Neutres," is one of the most recent, and is considered as the most com- plete statement of the claims of neutrals, as against those advanced by English jurists and statesmen in favor of belligerents. I shall have frequent occasion to refer to this and some other modern authors, and to compare their doctrines with those of the English prize courts. In England, the most elaborate and learned treatise is that of Dr. Robert Phillimore, entitled " Commen- taries-upon International Law." In addition to this exhaustive work, those of Twiss, Manning, and Poison are entitled to notice. In our own country. Dr. Henry Wheaton confess- edly holds the highest rank as an international ju- 44 INTERNATIONAL LAW. rist. His " Elements of International Law " has a reputation inferior to none, not only at home, but in England and on the Continent. His " History of the Law of Nations " is a monument of most careful study and research, and gives a concise and most interesting account of the progress of the science, describing the events which called forth its utterances, the develop- ment of its doctrines, and the most important judges, commentators, and statesmen who have contributed to its growth and perfection.-' 1 A list of the leading writers able notes to Manning ; W. E. Hall's on subjects connected with interna- formal treatise ; works by Cob- tional law may be found in Wool- bett, Lawrence, Foote (Private Int. sey's Int. Law, 5th ed. 1879, Ap- Law), Lieber's Misc. Works, Car- pendix I. pp. 417-429. To this nazzo Amari, and others. — £s. may be added Amos, with his vala- CHAPTER n. SUBJECTS OF INTERNATIONAL LAW : STATES. Different Kinds op States. Changes in a State : Their Effect. § 47. The ultimate subjects of international law, that is, those legal persons of whom rights and duties can be predicated, are sovereign, independent states, or, if we use the word with accuracy, simply states. As representatives of states, the personal sovereigns, ambassadors, and consuls may be considered in a cer- tain sense as secondary subjects ; but it will be more convenient to postpone the treatment of these repre- sentative persons to a subsequent lecture, when the rights of embassy will be examined and stated in full. The words state, nation, people, are often used in- terchangeably ; but they are not strictly synonyms. In ordinary discourse it is proper enough to avoid tau- tology by employing one for another, but in scientific definition we must be more accurate. As used by public writers, " nation " involves the idea of race ; thus a state may be composed of several nationalities, as is the empire of Austria. " People " rather de- scribes the aggregate of inhabitants, viewed as a mass, without taking into account the organization into a body politic, — the corporate character. I shall separate this second part of my series of lectures into three principal divisions, namely : — 46 INTEENATIOIfAL LAW- I. What states are subjects of international la\v^. II. Different kinds of states. III. Changes in states, and their effects. I. What states are subjects of international law ? § 48. In answering this fundamental question, it will be convenient to proceed in the following order : (1.) Definition ; (2.) Essential attributes ; (3.) Bodies of men that are excluded from the number of proper states ; g,nd (4.) What the international law concerns itself with in reference to a state. § 49. (1.) Definition. Cicero defines a state sub- stantially as follows : " A body politic or society of men -united together for the purpose of promoting their mutual safety and advantage by their combined strength." The objection to this definition is evident. It includes within its terms many, if not all, aggre- gate corporations. The East India Company, the Hudson Bay Company, were, even if ordinary bank- ing and railway corporations are not, societies of men united for the purpose of promoting their mu- tual safety as well as advantage by their combined strength. Vattel adopts the same definition, and adds, that " Every nation which governs itself, under what form soever, without dependence on any foreign power, is a sovereign state." ^ Vattel's language is certainly too sweeping and unqualified. A state may be in such a condition of dependence upon another that the conduct of its internal affairs is largely influenced thereby, and still retain its legal and international sovereignty, as we shall see in the sequel. Phillimore's definition is very complete and accu- rate. He says : " A state {hrnvog, civitas, volk) may 1 Vattel, bk. i. ch. i. § 4. ITS SUBJECTS. 47 be defined to be a people permanently occupying a fixed territory {certam sedem), bound together by common laws, habits, and customs, into one body politic, exercising, through the means of an organ- ized government, independent sovereignty and con- trol over all persons and things within its boundaries, capable of making war and peace, and of entering into all international relations with the other commu- nities of the globe." ^ § 50. In order to complete this description, I may be permitted to repeat what has already, been read to the class in my first lecture upon constitutional law. It was there said : " A municipium, civitas, or state, in its strict sense, is an independent political society with its own organization and government, possessing in itself inherent and absolute powers of legislation. It may not, from some peculiar features of itg volun- tarily created or permitted form of civil order, have enabled its rulers to call into efficient action all of these inherent and absolute powers of legislation, and it may have restrained itself, by solemn and funda- mental enactments, from exercising these complete powers, except by a course and in a manner distinctly defined and established; yet, so far forth as it pos- sesses these attributes without limit, and so far forth as it has clothed its constituted rulers with functions that involve these attributes' imder limits, it knows no superior to itself, it is not subordinate to any other political society or government. Such a political so- ciety is a state ; this state possesses political sov- ereignty. It may have any organization, from the purest democracy to the most absolute monarchy, but, considered in its relations to the rest of mankind ' Fhillimore, vol. i. p. 77. 48 INTERNATIONAL LAW. and to its own individual members, it must exist to the extent, at least, of enacting law for itself, as an in- tegral commonwealth among nations. Its government, or, in other words, the permanent agents which it has established to make efficient its organic will, must be so far independent that no other power may authori- tatively control its legislation; no other state may interfere, and, according to any received and admit- ted constitution of things, prescribe or dictate what the law shall be." As parts of a state, entitled to all its international rights and subjected to all its international duties, are to be included its colonies, immediate and absolute dependencies, and other possessions. So that if a nation establishes a colony, however distant, the lat- ter is regarded as a part of the mother country ; and therefore, unless by the policy of the latter, or by treaty stipulations, a different character has been im- pressed upon the colony, the law applicable generally to the territory of the state is applicable to the colony or colonies belonging to her ; all together make up one state, and are to be treated as One by interna- tional law.^ § 51. (2.) Essential Attributes. If we analyze the foregoing definitions we shall discover that in the notion of a state, as the subject of international law, there are involved certain necessary elements or at- ' tributes, which are the following : — ^ (1.) Equality. All states must be equal. In the language of C. J. Marshall: "Kussia and Geneva ^ Phillimore, vol. i. p. 75. See and his cargo, shipped from French The Indian Chief, 3 C. Rob. 22, possessions to Hamburg, was con- where an American domiciled in fiscated as being that of a British -Calcutta was held to have acquired subject carrying on unlawful trade the character of a British trader, with the enemy. ITS SUBJECTS. 49 have equal rights." ^ But this equality is, of course, only legal. It is certainly not moral. Nor does this equality of rights always shield a weaker nation from unjust demands, oppressive conduct, acts of violence and wrong, at the hands of more powerful communi- ties. But it is these very exhibitions of unbridled power that international law endeavors to restrain, and, if possible, preventi (2.) Independence and sovereignty. These two elements or attributes of nationality must coexist; one is the counterpart of the other. Wheaton says that " Sovereignty is the supreme power by which any state is governed." ^ This is certainly wrong. Sovereignty is the capacity to supremely govern. A nation may have complete sovereignty while the ac- tual government is in a state of transition, or even of temporary overthrow. Sovereignty, in other words, is the capacity to legislate fully and supremely in re- spect to all matters which concern the internal or the external welfare of the political society. Where this capacity resides has been and perhaps always will be disputed. We Americans declare that it inheres in the people alone ; others assert that it is a gift be- stowed upon legitimate monarchs. But international law does not trouble itself with this question. Assuming sovereignty to exist as a fact, it must be exercised through some agents, which we call govern- ments. These being established, we may speak of the governments, whatever be their form, which enact and execute the laws of states, as the sovereigns, although that word is generally applied to crowned rulers alone. It is plain, then, that sovereignty imr plies independence, and independence sovereignty. 1 10 Wheaton's R. 66. . * Wheaton's Elements, p. 29, § 5. 4 50 INTEENATIONAL LAW. Here it is necessary to impress upon you strongly what may appear to be a limitation upon the preced- ing doctrines. When it is said that every state is in- dependent and sovereign, that is, free from depend- ence upon any other authority, and having capacity to legislate fully for itself, we mean legal dependence, — dependence according to some constituted order of things, through which the will of one community may be legitimately imposed upon another. Moral de- pendence cannot, of course, be prevented. A weaker nation will often be subjected to an overwhelming influence from a powerful neighbor that will go far to shape its policy, and suggest, if not dictate, its leg- islation ; but it is none the less legally sovereign ; it has none the less international rights. § 52. But still farther : One state may, by trea- ties and conventions, be placed under the protection of one or more others, in such manner that, while a vast advisory and moral force is exerted, the le- gal independence and sovereignty are not abridged. While the capacity for legislation and for carrying on external relations remains, no mere inequality of alli- ance is destructive of the personality {persona standi) of a state among nations. The parties to such alli- ance are not the less sovereign because they have consented, of their own accord, to disadvantageous terms in their treaties with other nations. It belongs, as Grotius says, to unequal alliances " Ut potentiori plus honoris, inferiori plus auxilii deferatur." ^ It was by neglecting to notice this limitation that Vat- tel's definition of a sovereign state was rendered im- perfect. (3.) A fixed locality. Stationary location upon 1 Phillimore, vol. i. p. 93. ITS SUBJECTS. 51 ascertained territory is so plainly an essential to the modern notion of a state that we need not pause to enlarge upon it. (4.) Association into a political society under some common bond of legislation, customs, and government for laudable purposes. There must be organization, however simple ; a government and laws of some form sufficient and capable of securing at home the observance of rightful relations with other states. It is certainly not necessary that the people of a state should be homogeneous, nor is it essential that all of their laws should be the same throughout the extent of the national territory. Examples of the contrary are most frequent. A different code of private mu- nicipal law prevails in England and Scotland : the local legislation of our own states is far from uniform ; one system is imposed upon the German provinces of Austria, and another upon the Sclavonic communi- ties. But the sovereign which represents the state in its international relations must be able, in order to preserve those relations, to extend his or its power equally throughout the whole of his or its domains. When this cannot be done, the state and its sovereign either fall out of the pale of the international law, or are admitted by other states and sovereigns upon suf- ferance ; the rules of the law are relaxed in their ap- plication to that community, from certain considera- tions of comity, or, more generally, of public policy. The present condition and treatment of the Otto- man Empire afford a striking illustration of this prac- tice. § 53. (3.) Bodies of Men excluded from the Fam- ily of States ; and, therefore, from all the rights and from some of the duties of international law. If a 52 INTERNATIONAL LAW. state be as above described, if its essentials have been correctly set forth and explained, it follows that there may be communities of. men which, although not colonies or dependencies of any recognized power, are not themselves states, and, therefore, have none of the rights and are subjected to but a part of the duties of nations. Such are : — (1.) All hordes or bands of men recently associ- ated together, newly arrived at or occupying any previously uninhabited tract or country, though it may be possible that such horde or band may, in course of time, change its character, and ripen into a body politic, and have a claim to be recognized as such.^ (2.) Migratory hordes, not occupying a fixed and certain territory, although they may have some inter- nal organization and government. Examples of these may be found among the roving Bedouin tribes of Arabia and the Tartar races of Asia. (3.) All associations of men united for the accom- plishment of immoral ends {sceleris causa), such as piratical hordes, although they may have a fixed abode and call themselves by the name of states. The Malay pirates of Borneo furnish an example of such communities.^ § 54. Under this head it is proper to describe the somewhat peculiar condition of certain classes of semi - civilized states, whose international relations have not always been, and perhaps are not now, clearly defined. I refer to — A, The Barbary States of North Africa. The class need not be reminded that these states have existed for centuries ; that they possess organized govern- * Fhillimore, vol. i. p. 78. ITS SUBJECTS. 53 ments, with military and naval forces, but that for a long period it was their constant practice to capture merchant vessels of all countries, seize the cargoes, and sell the crew and passengers as slaves ; in fact, to carry on an organized system of predatory attacks upon the commerce of the Mediterranean. At an early age they were regarded by the nations of Eu- rope as enemies of mankind, unworthy the rights of civilized war, — " nests of wasps." In the reign of Charles II. an English writer spoke of them as true states and not as pirates. Bynkershoek says of them : " Albericus Gentilis and several other writers are of opinion that those nations of Africa whom we call barbarians are to be considered as pirates ; but that opinion cannot be defended on any rational principle. The Algerines, Tripolitans, Tunisians, and those of Salee, are not pirates, but regularly organized socie- ties, who have a fixed territory and an established government, with whom we are now at peace and now at war, as with other nations, and who, therefore, are entitled to the same rights as other independent states." ^ In 1801, Lord Stowell, in the case of The Helena, 4 C. Robinson's R. p. 5, remarks : " Certain it is that the African states were considered many years ago as pirates, but they long have acquired the char- acter of established governments with whom we have regular treaties, acknowledging and confirming to them the relations of legal states." At the present day the whole of Christendom is on terms of inter- course with these peoples, their quasi piratical charac- ter being entirely abandoned. § 55. B. The Ottoman Empire. Anciently, the law- fulness of any dealings, much more of any treaty, be- 1 Bynker. Q. J. ch. xvii., Law of War, p. 151. 54 INTEEKATIONAL LAW. tween the Christian and the Turk was denied. Not till after 1720 was the Russian Minister permitted to reside at Constantinople ; and direct relations be- tween Roman Catholic sovereigns and the Porte can scarcely be said to have any earlier date than the end of the eighteenth century. But during the pres- ent century many treaties have been entered into between the Sultan and the governments of Europe, while the Ottoman Empire seems now to be pecu- liarly under the protection of the great Christian powers — Russia, Austria, France, and England. The following are the most important conventions that have affected these relations. By the Treaty of Vi- enna, in 1731, Great Britain made common cause with Austria against every enemy but the Turk. The Peace of Sistowa (1791), between Austria and the Porte, and the Peace of Jassy (1792), between Russia and the Porte, were concluded under the mediation of the triple alliance of Great Britain, Prussia, and Hol- land. In 1798, when Napoleon invaded Egypt, Russia and the Porte concluded an alliance confirming the Treaty of Jassy, and mutually guaranteeing the integ- rity of their dominions. To this treaty Great Britain acceded in 1799 ; it expired in 1806, and was re- newed in 1809 by the Treaty of Constantinople, by the eleventh article of which Great Britain acknowl- edged that the straits of the Dardanelles were mare dausum under the dominion of the Porte. The Treaty of Bucharest, in 1812, put an end to the hostilities which had raged between Russia and the Porte since 1809. This treaty greatly advanced the boundaries of Russia. It contained stipulations confirming those of former treaties in favor of the national privileges of Moldavia and Wallachia. In ITS SUBJECTS. 55 1819 the Porte recognized the protectorate of Great Britain over the Ionian Islands. In 1828 the Great Powers interfered with the Porte on behalf of the Greeks, whose independence they established after the battle of Navarino. In 1829 the Treaty of Adri- anople was concluded between Russia and the Porte, by which the power of the latter was much increased, especially over the mouths of the Danube. In 1833 the Treaty of Unkiar-Skelessi was concluded between Russia and the Porte, the avowed object of which was to protect the Porte against the rebellion of the Pasha of Egypt. The other European Powers inter- posed, on the double ground of protecting Turkey against Egypt, and of preventing the protectorate from being exclusively vested in and exercised by Russia. A convention between all the European Powers, except France, took place in London, July 15, 1840, for the paci^cation of the East, to which the Porte was also a party. The maintenance of the integrity and independence of the Ottoman Empire as a secu- ity for the peace of Europe was the avowed prin- ciple of this convention. By the Treaty of the Dardanelles (July 10, 1841), the five great European Powers admitted the exclu- sive authority of the Porte over these straits, and incorporated this principle into the written laws of Europe.^ Finally, at the close of the war between Turkey and its allies and Russia, representatives of the following powers, France, Great Britain, Russia, Austria, Prussia, Sardinia, and the Ottoman Empire, met in Congress at Paris : the result of their confer- 1 Phillimoi-e, vol. i. pp. 84-86 : Wheaton's Hist, of Law of Nations, pp. 289, 555-685. 56 ' INTEENATIOKA.L LAW. ences was the Treaty of Paris of March 30, 1856. Some of the provisions of this treaty are so important that I will state them in detail. Art. VII. The Ottoman Porte is declared to be admitted to participate in the advantages of public law. The other powers engage to respect the integ- rity and independence of the Ottoman Empire. Art. VIII. Any difficulty between the Porte and either one of the powers shall be submitted to the mediation of the others, before hostilities. Art. IX. The Porte engaged to afford greater pro- tection and to extend further privileges to their Christian subjects. Art. X. Former treaties in reference to the Bos- phorus and the Dardanelles were reaffirmed. Ships of war were forbidden to enter therein, except those connected with the legations of friendly powers. Arts. XI.-XIV. The Black Sea was declared neu- tral ; ships of war of bordering and all other powers were forbidden to enter, except under certain rigid restrictions; military and maritime arsenals on its shores were forbidden ; commerce freely allowed ; consuls to be admitted to its ports according to inter- national law. Arts. XY.-XIX. The navigation of the Danube and the control of its mouths were specifically reg- tilated. Arts. XXII.-XXVI. relate to the principalities of Wallachia and Moldavia. They are left under the suzerainty of the Porte, and the guaranty of the other contracting powers : they are to enjoy all the privileges and immunities of which they are in pos- session ; and independent national administration is to be allowed to them by the Porte, as well as full ITS SUBJECTS. 57 liberty of religion, legislation, commerce, and naviga- tion : neither of the other powers is to exercise any exclusive guaranty over them ; a commission was to be appointed to revise their laws. Arts. XXVIII. and XXIX. relate to the princi- pality of Servia. It shall continue " a relever de la Sublime Porte;" it shall preserve its national and independent administration, as well as full liberty of legislation, religion, commerce, and navigation.^ § 56. C. Heathen nations generally. Most of the bar- barous heathen nations of Africa, Asia, and the islands of the Pacific and Indian oceans, can hardly be said to have any true international relations. Trade with them is often exceedingly valuable, and the civilized countries of the world, as far as possible, attempt to secure the safety of their own subjects, now by prom- ises and presents to the savage rulers, and now by threats and the exhibition of overwhelming power. Thus some semblance of respect to the first principles of justice is obtained; but nothing like systematic international law is acknowledged or even known by them. For commercial purposes the states of Europe and the United States of America have, within the past few years, entered into relations with China, Japan, Siam, and some others of the more important and more advanced nations of Asia. Embassies have been sent and received ; treaties exchanged ; ministers res- ident dispatched ; and these communities brought partially within the pale of the international law. Still it must be conceded that, on account of the weakness of their governments, the insufficiency of their laws, and the barbarism of their people, the 1 Gliillany, Manuel Diplomatique, vol. ii. pp. 491-506. 58 INTERNATIONAL LAW. Barbary States, the Ottoman Empire, and especially the great heathen nations of Asia, China, Japan, and Siam, are entitled to a relaxed application of the principles of international law; offences are lightly passed over which would be visited with exemplary punishment by formal war, if committed by a civil- ized people of Europe or America. On the other hand, should the offence be too gross, the injury un- bearable, it is not only customary, but proper, if re- dress cannot be obtained through peaceable means, to exact it by crushing force, without the formality and the consequences of regular hostilities. Proceedings of the British in Japan within the last few years afford an excellent illustration o£ this practice ; the bombardment of Greytown by an American squad- ron is another, although it may well be questioned whether the latter was not a flagrant violation of the rules of international law. § 57. (4.) What the International Law concerns itself with in reference to a State. " It is a sound general principle, and one to be laid down at the threshold of the science of which we are treating, that international law has no concern with the form, character, or power of the constitution or govern- ment of a state, with the religion of its inhabitants, the extent of its domain, or the importance of its position and influence in the commonwealth of na- tions." ^ This doctrine is laid down and constantly repeated by text-writers, and it is doubtless a correct state- ment of the general principle. But history, even the most recent, is full of examples of the acts of states that seem to forbid an unlimited acceptance of the * Fhillimore, vol. i. pi 77. ITS SUBJECTS. 59 proposition, — and these, too, of states which are the most advanced in their appreciation of the interna- tional law. If the jurisprudence which we are ex- amining be, in part, a result of the general consent of civilized nations, it can hardly be said that all these acts are illegal. The partitions of the Congress of Vienna — those resulting from the late Germanic war — the protectorates established by modern treaties — the guaranties of the internal condition of weaker communities, are all instances. Nor are these pro- ceedings confined to Europe, where the balance of power is so sedulously guarded. Our own country, in the promulgation of the Monroe doctrine, has as- serted its interest and intention to inquire into the domestic affairs of other American commonwealths. As we shall see, the right of intervention is a distinct head of international jurisprudence, giving rise to some of its most delicate questions, but at the same time constantly appealed to and exercised. Yet I am of opinion that much of these state acts are to be referred, not to the international law proper, but to the public law — to politics. They are all sug- gested by considerations of state policy, often dynas- tic, sometimes institutional. They proceed from that great principle of public law, — often abused, but never to be abandoned, — salus populi, suprema lex. I shall have occasion to enlarge upon this thought in the sequel. II. Different hinds of states. § 58. If we take the external form of political or- ganization as the basis of classification, — and this is certainly the only basis admissible in the science we are studying, — all the states of the civilized world may be separated into two groups or families. The 60 INTERNATIONAL LAW. first •will include all cases in which single states, or several united, are under one sovereign or central national government ; the second, all those cases in which several states are joined in a federal union. § 59. (1.) Single states, or several united, under one sovereign or central national government. It will be remembered that I use the word sovereign in a generic sense, not confining it, as most European writers would do, to monarchs, crowned heads. By the theory of the British constitution, the king is the sovereign, though this theory is but an empty parade of words. In the United States the president is not the sovereign : the whole law making and law ex- ecuting power, composite though it be, is the one sovereign of our nation, in other words, our central national government. The same is true of the Diet of the Swiss confederation. With this understanding of the term sovereign, the first group may be further divided into a number of sub-families, which we will briefly consider, namely : A. Single states under one sovereign. Here the body politic is one homogeneous society, with one political organization. France, Spain, Por- tugal, are examples. Such nations are, of course, subjects of the international law. B. Several originally separate states perpetually united under one sovereign or central national gov- ernment, — a bond which public writers have termed unio realis. The result of such union is that the composite whole, so far as regards international relations, be- comes one state. The component parts have lost their personality — their corporate character — in re- spect to external matters, however much they may ITS StTBJECTS. 61 have retained it in respect to the administration of internal affairs. The separate external personalities are merged in that common corporate body repre- sented by the sovereign or central national govern- ment. § 60. Of these perpetual unions there are two classes, namely : — (1.) Where the several component parts, which were formerly independent sovereignties, still retain distinct local governments for certain municipal pur- poses. How extensive shall be the functions of these local subordinate governments, must, of course, de- pend upon the political organization of the entire commonwealth ; the international law is not con- cerned with such questions. Examples : England, Scotland, and Ireland, were formerly united in this manner; one king common to all, but each possessing its own parliament. Austria, at present, is subject to one emperor; but the kingdom of Hungary enjoys a legislature distinct from that which belongs pecu- liarly to other portions of the empire. The United States of America may properly be ranked in the same division, although by foreign writers, and even by Wheaton, it has been placed among the federal unions. The explanation is that European publicists have implicitly treated republics as forms of political organizations, inferior to monarchies. But, certainly, the union of our states is as permanent, as much unio realis, as that between Scotland and England, and the government under our Constitution is, in regard to external affairs, as supreme and as efficient as the king and parliament of Great Britain. Plainly, no for- eign power would be permitted to open negotiations, or enter into any direct relations, with Scotland, Hun- 62 INTEKNATIONAL LAW. gary, or New York. Such an attempt would be a breach of international law of the grossest character, — an insult to Great Britain, Austria, or the United States, — to be immediately followed by war. § 61. (2.) Where the several component parts, which were once independent sovereignties, have entirely lost their individuality, surrendered their local gov- ernments, and receive their legislation solely from the central power. Examples : Great Britain at the present day ; the Scotch and Irish parliaments having been abolished, the Imperial Parliament is the single source of legislation for the whole kingdom. The present kingdom of Italy, formed by the union of Sardinia, of the two Sicilies, and of the various Italian duchies. Such unions are often denominated, by writ- ers on the public law, incorporate. C. Several states, otherwise independent, temporar rily united under one sovereign {unio personalis). Such an union can only take place under a personal sovereign — a monarch. It is impossible to conceive of two independent states being even temporarily subjected to the same supreme administration. Of course, instances of this class are rare ; they only hap- pen when the king or personal monarch of one inde- pendent sovereignty becomes in some manner, either by inheritance or by choice, at the same time king or monarch of another independent sovereign state. Each nation retains its personality, its laws, its gov- ernment, its administration. Each has, for the time being, the same supreme head, who, although one man in theory, acts in a double political capacity. Of course there remain two states for all international purposes. The elector of Hanover became king of Great Britain, under the name of George I., and both ITS SUBJECTS. 63 he aiid his successor George II. continued to be kings of Great Britain and electors of the German princi- pality through their entire reigns, yet these countries were, during the whole time, two separate states. § 62. D. States under a protectorate, or, in other words, in a certain condition of dependence upon other or others, but still retaining international personality. That such an arrangement may exist, and how it may exist, were sufficiently explained in the last lec- ture. International personality, or, as it is termed by writers on public law, persona standi, is the capacity to enter into all international relations, resulting from the attributes of sovereignty and independence, which have been fully described. The effect of this per- sonality is to clothe the political society with its own international rights, and to subject it to its own inter- national duties. It is sometimes quite difficult to fix the exact char- acter and extent of the dependence under which a state is placed, so as to determine whether or not it has lost its personality. Often such dependence is the result of a long series of historical events which no treaties have definitively interpreted ; these events are often susceptible of two constructions, one favor- able, the other opposed, to a greater measure of free- dom ; a constant struggle may have gone on between the power claiming the protectorate and the other resisting it. Added to these difficulties is the univer- sal • fact that such protected communities are weak, having no importance in themselves, exerting little or no direct influence upon the world's history, only suffered to exist from considerations of public policy, from the mutual jealousies of the great dominant powers, each being unwilling that they should be en- 64 INTERNATIONAL LAW. tirely swallowed up by any grasping rival. Exam- ples : Belgium. This kingdom was entirely estab- lished by the intervention and under the protectorate of Great Britain, Prance, Austria, Kussia and Prussia, after long negotiations and some hostilities, by treaty of November 15, 1831. In the stipulations of this treaty the five great Powers guaranteed to Belgium the due execution thereof, and declared that there should be perpetual peace between themselves and Belgium forever, or, as it is generally said, guaran- teed the perpetual neutrality of that state. Greece. This kingdom was virtually established by and placed under the protectorate of Great Britain, France, and Eussia, by treaty of July 5, 1827. § 63. E. States under a protectorate, or, in other words, in a condition of dependence upon other or others, in such manner that they have forfeited all separate international personality. What amounts to such a forfeiture has been al- ready stated ; the effect should be more particularly described. The community which has thus lost its personality becomes, for all international purposes, whatever may be true in regard to internal affairs, a part of the state under whose protection it subsists, — upon which it depends. As a consequence it can enter into no treaties; if the protecting state is at war, its inhabitants also are subjected to the duties and enjoy the rights of belligerents ; if the protecting state be at peace, its inhabitants also are clothed with the character of neutrals. In other words, its inhabi- tants are placed in a condition analogous in many re- spects to that of colonists towards the mother country. Examples : The Ionian Islands. By the Treaty of Paris (1814, 1815), between the powers of Europe, ITS SUBJECTS. 65 the islands of Corfu, Cephalonia, Zante, Santa Maura, Ithaca, Cerigo, and Paxo were constituted a state un- der the name of United States of the Ionian Islands, and were placed under the immediate and exclusive protection of Great Britain. Authority was given to them, "with the approbation of the protecting power," to regulate their internal organization ; a high com- missioner should be appoinfed by the British crown, who should be resident at the islands, and should have general executive supervision over the public admin- istration ; the constitution formed by their govern- ment should be ratified by the king of Great Britain ; all fortresses should be occupied by the British, and all military forces should be under the control of the commander-in-chief of the British army. This is cer- tainly the most complete example of a state, which, though retaining a quasi or qualified independence, has lost entirely its international personality. In the year 1863, Great Britain surrendered the protectorate of these islands to Greece. Moldavia and Wallachia. These states lying on the north of the Danube, at or near its mouths, are in a certain condition of dependence upon the Otto- man Porte. We have also seen that by the Treaty of Paris (1856) they are taken under a limited joint protectorate of the great Christian powers of Europe. The situation of these provinces is quite anomalous. They are very much inclined to a,ssert their indepen- dence as against their suzerain — have lately expelled their king. Prince Couza, and elected another in his stead. Still there can be no question that interna- tional law at present treats them as so dependent upon Turkey as to be impressed with a Turkish na- tional character. Treaties are made about them, but 66 INTEENATIONAL LAW. not with them. The policy which preserves them in their quasi independent condition is the dread of the great powers lest the exclusive possession and control of the mouths of the Danube should be seized either by Russia or by Austria. Servia is, perhaps, somewhat less fettered than Mol- davia and Wallachia, but can hardly be called one of the independent sovereign nations of Europe.^ § 64. r. States paying tribute, or in a feudal re- lation to another, — under another's suzerainet^. Those which demand notice are the Barbary States and Egypt, which stand in a certain tributary rela- tion to the Ottoman Empire. This supremacy of the Porte is certainly recognized by other nations, yet it is hardly anything more than a name. International relations are entered into directly with these com- munities — treaties made, representatives and ambas- sadors sent and received. The only Barbary States now in this condition are Tunis and Tripoli. Morocco is confessedly an independent empire, and Algiers is a French colony. Tripoli is governed by a bey ap- pointed by the sultan; Tunis by one hereditary; Egypt by a hereditary Pasha. AH pay tribute.^ § 65. (2.) Several states under a federal union. Such states may be separated into two general classes : (1.) Those in which the federal union is so ad- ^ Roumania, composed of Mol- " The United States maintain a davia and Wallacliia, became fully commercial rather than a diplomatic independent by Treaty of San Ste- relationship with Egypt, Tunis, and phano in 1878, and that of Berlin Tripoli. Thus the highest United of the same year. It was declared States official in Egypt is a Consul a monarchy in 1881. General, who may, however, have a Servia underwent the same quasi diplomatic character and as- change, becoming a monarchy in sist in negotiating commercial ar- 1882. — Ed. rangements. — Ed. ITS SUBJECTS. 67 Justed that the management of the external relations of the respective members is absolutely vested in a supreme central government. This class is virtually identical with the division before stated of states perpetually united under one sovereign (reali unione). For all external purposes they are one body politic : foreign powers communi- cate alone with the central authority ; it alone is held responsible for all infractions of public law ; and it can certainly make no substantial difference whether that authority be vested in a monarch, in a parlia- ment, in a diet, or in president and congress. The examples of such unions are the United States of America, many of the republics of Central and South America, and the Confederation of the Swisa Cantons. We need not delay to speak of the consti- tutions of the American commonwealths. The thirteen cantons of Switzerland were recog- nized as independent by the Treaty of Westphalia (1648). They were remodelled by the Congress of Vienna ; their number increased to twenty-two by the Supreme Fundamental Federal Act (August 7, 1815) ; their neutrality recognized by the Treaty of Paris (1815). By the Federal Act the Swiss Con- federation consists of the union of twenty-two — now twenty-five — cantons. They have a diet composed of one deputy from each canton, each having a sin- gle vote. This diet has exclusive power of declaring war, entering into treaties of peace, commerce, and alliance with foreign states. The confederation has a common army and treasure. The diet is respon- sible for the internal and external security ; it ap- points the commanding officers, directs the opera- tions of the federal army, and nominates the federal 68 INTEENATIONAL LAW. ministers at foreign courts. Large powers are, how- ever, reserved to each canton, but they must be ex-* ercised in a manner not inconsistent with the rights of the confederation and of every other canton. There can be no doubt that the Swiss Confederation is an independent state, having international personahty. It is true that its organization is not so complete and consolidated as that of the United States ; it rather resembles the confederacy of the Thirteen States be- fore our present Constitution was adopted. § 66 (2.) The second class of states under a federal union includes those which have retained their inde- pendent and individual sovereignty, especially as to the adjustment of their external relations with other powers, and belong to a system of confederated states only for purposes of domestic and internal policy, and of mutual assistance and defence. The laws of this federal body have only effect and force in the sepa- rate members of the system through the agency and application of each individual government ; therefore, as far as foreign nations are concerned, these confed- erated states must be considered as individually re- sponsible for their conduct, and as separate, indepen- dent sovereignties.-' Neither of them, by entering into the federation, forfeits its international person- ality : each for itself assumes international relations, and acquires international rights and duties. The Germanic Confederation is the most important example of this class. It was formed by the Treaty of Vienna (1815). It included Austria, Prussia, Sax- ony, Bavaria, Hanover, Wurtemberg, Baden, Electo- ral Hesse, the Grand Duchy of Hesse, Holstein, Lux- emburg, Brunswick, Mecklenburg-Schwerin, Nassau, Phillimore, vol. i. p. 120. ITS SUBJECTS. 69 Saxe-Weimar, Saxe-Gotha, Saxe-Coburg, Saxe-Mei- ningen, Saxe-Hildburghausen, Mecklenburg - Strelitz, Oldenburg, Anhalt - Dessau, Anhalt - Bernburg, An- halt-Coethen, Schwartzburg-Sondershausen, Schwartz- burg-Rudolstadt, HohenzoUern - Hechingen, Lichten- stein, HohenzoUern - Sigmaringen, Waldeck, Reuss (elder branch), Reuss (younger branch), Schaumburg- Lippe, Lippe, Hesse-Homburg, the free cities of Lu- beck, Frankfort, Bremen, Hamburg. The common affairs are under the superintendence of a diet or con- gress composed of plenipotentiaries from each of the separate states and free cities. Any minute state- ment 'of its organization and constitution is now quite unnecessary, as the confederacy has been ut- terly destroyed by the late German war. ni. Changes in a state, and their effect. § 67. (1.) Extinction. A state may entirely cease to exist. This would" take place by the voluntary or compulsory incorporation of the nation into another sovereignty, or by its submission, or the donation of itself, as it were, to another country. On the hap- pening of any of these contingencies a state becomes, instead "of a distinct and substantive body, the sub- ordinate portion of another society. The incorpora- tion of Wales, Scotland, and Ireland into Great Brit- ain ; of Normandy, Brittany, and other provinces into France, are familiar historical illustrations of this doc- trine.^ In our own times the annexation of Texas to the United States affords another example. § 68. (2.) Changes. A state may also undergo most important and extensive changes without losing its personality. It may voluntarily, or through force, part with a portion of its territory and population, as 1 Phillimore, vol. i. p. 147. 70 INTERNATIONAL LAW. did Mexico by the successful revolt of Texas, and, subsequently, at the close of the war with the United States, by the cession of California and New Mexico. It may, on the other hand, add to its territory and population by annexation, through negotiation, or as the result of successful war ; as the United States in- corporated Florida and Louisiana by purchase, Texas by voluntary agreement, and California and New Mexico by capture, followed by a cession. A state may voluntarily, or through force, be separated into two or more distinct commonwealths. It may alter its form of government, its civil organization, its po- litical constitution, substituting a monarchy for a re- public, a despotism for a limited monarchy. These changes may be effected through the peaceable action of the people, resuming by some legal forms their ulti- mate sovereignty, or may be the result of a rebellion, revolution, or coup d'etat, rearing a new government upon the ruins of one which had been overthrown. The adoption of our own Constitution furnishes one example of these internal changes ; the history of France during the past seventy - five years affords many more. The general doctrine has already been stated, that international law does not concern itself with these internal arrangements. The limitation upon this principle has also been mentioned, and will be hereafter fully and carefully considered when we come to speak of the right of intervention. But international law is concerned with the effect of such alterations in the internal organization and constitution of a state. This effect may be stated in the following proposition : A state which has under- gone such a change in its territory, its rulers, its form of government, its civil polity, and constitution, does ITS SUBJECTS. 71 not thereby lose its personality, does not cease to be the former and become another body politic. It re- mains the same state, retains the same international rights, and is burdened by the same obligations that belonged to or rested upon it under the old regime. " The nation now governed by a despot must pay the debt which she incurred under a republican govern- ment. The treaty contracted by a nation when rep- resented to the rest of the world by the executive of a limited n^onarchy is equally binding upon her when she has fallen under the rule of an oligarchy." § 69. This proposition is founded upon the plain- est principles of good faith and honest dealing. But as its truth has sometimes been denied by writers of eminence and influence, among others by Jefferson, it is proper that the opinions of standard and authorita- tive publicists be quoted. Bynkershoek uses the following language : " Gro- tius has truly said that the right of a people does not fail unless the people itself becomes extinct. A peo- ple is not changed by a change in the form of its constitution ; for the state is the same, though gov- erned now in this, now in that, form. Should it be said that a nation in its present condition is absolved from the treaties and debts contracted in another condition ? Grotius declares that it is not so in re- spect to debts, and we say that the same rule applies to treaties." Again he says: "The municipal law guards the agreements of private citizens, good faith those of governments. Destroy this, and you destroy all mutual intercourse between rulers which springs from express conventions ; you even destroy the in- ternational law itself, which is based upon consent, — silent and presumptive." 72 INTERNATIONAL LAW. § 70. Vattel states the doctrine as follows : " Since public treaties, even those of a personal nature, con- cluded by a king, or by any sovereign who is in- vested with sufficient power, are treaties of state, and obligatory on the whole nation, real treaties, which were intended to subsist independently of the person who has concluded them, are undoubtedly binding on his successors ; and the obligation which such trea- ties impose on the state passes successively to all her rulers as soon as they assume the public authority. The case is the same with respect to the rights ac- quired by those treaties ; they are acquired for the state, and successively pass to her conductors." -^ " When a lawful power contracts in the name of the state, it lays an obligation on the nation itself, and consequently on all the future rulers of the society. When, therefore, a prince has the power to form a contract in the name of the state, he lays an obli- gation on all his successors; and these are not less bound than himself to fulfil his engagements." ^ Grotius declares : " It differs not in what manner a state is governed, whether by a king, by the rule of many, or of a multitude. The Romans were the same under the kings, consuls, and emperors. The people, which once governed itself, will be the same while a king reigns as the head of that people, not as the head of another. For the sovereignty which was in the king as head remains in the people as the whole body, of which the head is a part ; so that if the king be removed, or his family becomes extinct, the right of government returns to the people." ^ Tindal, an English publicist of the eighteenth cen- 1 Vattel, bk. ii. ch. xii. § 191. « Grotius, lib. ii. ch. ix. s. 8. 2 Ibid. bk. ii. ch. xiv. § 215. ITS SUBJECTS. 73 tury, expresses himself with great precision: "All leagues and treaties are national ; and where they are not to expire within a shorter time, though made with usurpers, will bind legal princes if they succeed, and so vice versa ; and a league made with a king of any nation will oblige that nation if they continue free, though the government should be changed to a com- monwealth, because the nation is still the same though under different governments." § 71. Chancellor Kent states the same principle in very forcible terms : " It is well to be understood, at a period when alterations in the constitutions of governments and revolutions in states are familiar, that it is a clear position of the law of nations that treaties are not affected, nor positive obligations of any kind with other powers or with creditors weak- ened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil govern- ment. The body politic is still the same, though it may have a different organ of communication." -^ Wheaton speaks fully to the same effect : " A state, as to the individual members of which it is composed, is a fluctuating body ; but, in respect to the society, it is one and the same body, of which the existence is perpetually kept up by a constant succession of new members. This existence continues until it is inter- cepted by some change affecting the very being of the state. If this change be an internal revolution, merely altering the municipal constitution and farm of government, the state remains the same ; it neither loses any of its rights, nor is discharged from any of its obligations." ^ 1 Kent's Comm. vol. i. p. 25. * Elements, p. i. ch. ii. § 7. T'^ IKTEENATIONAL LAW. § 72. Phillimore sums up the doctrine and the rea- sons upon which it is founded in most expressive and convincing language : " As one generation does not constitute a state, it is not merely by the obligations contracted by one generation that the present state is bound ; the engagements of the past, whether arising from the implied contract of long usage, or the ex- press letter of treaty, or the pledge of the executive government howSoever plighted, are as stringent npon her as those of the present. The individual suc- ceeds to rights and obligations which he had no share in obtaining or contracting ; and still more is this condition predicable of every corporate body. Nor is the greatest of all corporations, the state, exempt from the operation of a rule which is laid in the eternal constitution of things." " We arrive, then, with confidence at the conclusion, that this recipro- cal observance of good faith, whether it be plighted to the payment of debts, or to the fulfilment of the stipulations of treaties, is binding upon all nations. This good faith is the great moral ligament which binds together the different nations of the globe. Without this, war would be, as has been sometimes asserted, the perpetual destiny of mankind, and that miserable fiction of shallow declamation and specious sophistry would be reality and truth." -^ § 73. The rule which we have found so sustained by the consenting authority of publicists is so con- sonant with common honesty, that we might suppose it too deeply felt and too generally recognized to be liable to question in our days. Yet during the French revolution of 1848, after the provisional government under Lamartine had seized the reins of power, the 1 Phillimore, vol i. pp. 151, 157. ITS SUBJECTS. 75 latter issued a proclamation disavowing the obliga- tions in the Treaty of Vienna, because at the time it was made France was governed by a monarchical, and at the time it was disavowed, by a republican, government. During the present year. Napoleon III. has thrown ali Europe into a fright by proclaiming his purpose to sweep away the treaties of 1815. It must be said, however, that the emperor does not base his objection on the fact that these treaties were entered into by a former government, but puts him- self on the ground that they are unfavorable to France and hostile to his own dynasty. The refusal of President Juarez and his govern- ment to assume all the debts of Miramon, although a large part of those debts had been created to main- tain that usurper in his place against the legitimate authority, and all of them were most scandalously usurious, was the pretext for the intervention of France, England, and Spain in the affairs of Mexico, which resulted in the imposition of Maximilian upon the Mexican people. Jefferson is well known to have entertained and advocated the opinion in private, that one generation has and can have no power to bind any succeeding generation ; that those who make a debt must pay it ; and that, as a consequence, it is entirely a matter of discretion whether a state shall or shall not dis- charge the obligations created by a former set of living men. No doctrine more fatal than this to the tranquillity of nations can well be maintained, — none which it is more the duty of every upholder of inter- national law to denounce. Nor can any doctrine be more pernicious to the country itself, be it monarch- ical or republican, which propounds it. " Nulla res," 76 INTERNATIONAL LAW. says Cicero, with all the energy of moral wisdom, " vehementius rempuhlicam continet quam fidts." " What becomes of national faith if it be made to depend upon a form of government ? Much what would become of individual faith if it depended upon no change happening in the condition or age of the person who plighted it." ^ § 74. The converse of the proposition I have been illustrating is also true, equally based upon good faith and supported by authority. If a nation be divided into various distinct societies, the obligations which had accrued to the whole, before the division, unless specially provided for by treaty, are ratably binding upon the separate parts.^ Grotius upon this point expresses himself as follows : " On the other hand it may happen that what has been one state, is divided, either by mutual consent or by hostile force, as the body of the Persian Empire was divided among the successors of Alexander. "When this transpires, sev- eral sovereignties exist instead of one, each with its own rights; but if anything had been in common, that ought either to be administered in common, or divided in portions ^ro ra^4." Chancellor Kent is of the same opinion. He says : "If a state should be divided in respect to territory, its rights and obliga- tions are not impaired; and if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obUgations fulfilled, by all the parts in common." ^ § 75. The foregoing discussion will, perhaps, sug- gest a case which has arisen in our own recent history. The late Confederate government, having borrowed 1 Phillimore, vol. i. p. 152. 8 Kent's Comm. vol. i. p. 25, ^ Phillimore, vol. i. p. 157. ITS SUBJECTS. 77 money from foreign capitalists, issued bonds as se- curity for its repayment, large numbers of which are held in England. During the past year a committee of these bondholders obtained a legal opinion from counsel to the effect that the United States, upon the final overthrow of the Confederate government, and reestablishment of its own authority, succeeded to the obligations of the defunct organization, and were therefore bound by rules of the international law to assume and repay this indebtedness. This opinion was probably based upon the admitted principle which has just been stated and enforced, but its fallacy and its errors are apparent. Had the Confederate States been successful in their attempt, so that they were recognized by us as a distinct nation, and had they afterwards been conquered, reduced to subjection, and reincorporated into the United States, undoubtedly our government would have become responsible for all their indebtedness, as well as for all their other public obligations. But in fact the revolted states were never recognized as an independent separate sov- ereignty by any nation, much less by ourselves. The utmost that any foreign power did was to treat them as a community carrying on a legitimate warfare, en- titled to the rights of belligerents, and not as a horde of robbers and marauders on land and pirates on the sea. They assumed and declared that our armed forces were waging a proper war, and were not a posse comitatus endeavoring to arrest and imprison a large multitude of offenders against the municipal law. Those states were, then, regarded by all peo- ples as in an inchoate condition ; the obligations they contracted were taken at the risk of a successful issue of their struggle. 78 INTERNATIONAL LAW I do not now propose to discuss the rights and du- ties of foreign nations towards a rebellious or revolu- tionary portion of a state, while the attempt to over- throw the old government, or divide the common territory, is in progress. This, to us most interest- ing topic, will be taken up in connection with that subject to which it legitimately belongs, recognition and intervention. CHAPTER III. OBJECTS OP INTERNATIONAL LAW : RIGHTS AND DU- TIES OF STATES FLOWING FROM INDEPENDENCE AND SOVEREIGNTY. Their Right of Self-Preservation. Their Ownership and Acquisition op Tebritokt. Preliminary : Principles of Classification. § 76. We have now arrived at the third and most important department of the science, the objects of international law, or, in other words, the rights and duties which it creates, confers, or recognizes. Al- though, as has been shown, international law is not a branch of positive jurisprudence, yet the analogies between the two are so strong that we may reason from one to the other, and we shall find that the gen- eral principles of classification which are adapted to the municipal law, may be used in its afiiliated sci- ence. Eecalling to mind, therefore, some propositions from a former lecture, — the object of all positive hu- man jurisprudence is to create and enforce rights and duties; these rights and duties have reference to things {res, bona, corpora), and to other rights (jura), — they may be separated by two main lines of division, which cross each other and form the grand departments of the science. One of these lines distinguishes all rights into (1) those in rem, which avail to the possessor against all mankind, while a corresponding duty rests upon every individual of the race not to interfere with 80 INTERNATIONAL LAW. the enjoyment of the right ; and (2) those in personam, which avail to the possessor against a determined in- dividual or body of individuals, while the correspond- ing duty rests upon such determined individual or body not to interfere with the enjoyment of the right. To the former class are referable all rights which arise from the fact of ownership or dominion over things, and many which result from status ; to the latter, *all rights flowing from contract and quasi contract. The second line of division separates all rights and duties into primary and remedial. The primary are such as arise from facts and events that are not de- licts or injuries, and constitute the great body of the law ; remedial are those which spring from delicts or injuries — in other words, from the breach of primary rights. We cannot conceive of a system of positive jurisprudence to which this classification is not appli- cable, of which, in fact, it is not the most natural and simple. § 77. Passing from the municipal to the interna- tional law, the same grand divisions of rights and du- ties immediately suggest themselves, since each na- tion is a corporate person, a moral agent, capable of enjoying rights and amenable to duties. We may, therefore, adopt the departments of (1) international rights in rem, which avail to their possessors against the whole family of independent states ; and (2) in- ternational rights in personam, which avail to their possessors against a determined state. The former will embrace all those rights having reference to dominion over things, — territory and the like, — and to the corporate character of the body politic which is quite analogous to status in municipal law. The latter will EIGHTS OP INTEElSrATIONAL LAW. 81 include all rights springing from contract, — treaties, conventions, and the like, — whether express or im- plied. It may be observed, however, that a very large proportion of the rights which international law pro- tects — much larger than in the municipal law — are in rem. Express contracts between independent states are few in number compared with those formed be- tween private persons; while tacit or implied con- ventions, though not absolutely unknown, are quite infrequent. § 78. Again, the rights and duties which the inter- national law recognizes may be distributed into pri- mary and remedial. The former includes the great body of general rights and duties, those which subsist in a time of peace ; the latter, those which arise from some national injury or delict, some breach of a pri- mary right, and, as the only remedy which this sci- ence knows is force, actual hostilities, remedial rights and duties are all warlike. In the municipal law, all remedial rights are strictly m personam ; no party is affected but the injured and the wrong-doer, the one having a claim for reparation, the other owing the duty to make that reparation ; the rest of mankind are legally indifferent to the result, legally silent spectators of the litigation by which a judicial tri- bunal brings the sanction to bear upon the offender. This is not true in international law ; some of its re- medial rights are in personam, others in rem. The former embrace all those existing between the bel- ligerents themselves : the right to attack and de- fend ; to capture ; to confiscate ; to destroy, and the like. But, at the breaking out of hostilities, each bel- ligerent party immediately becomes the possessor of a large class of special rights against all the remain- 82 INTERNATIONAL LAW. ing family of nations which are neutral to the contest. These are plainly in rem ; yet they are as plainly re- medial, for they spring directly from the remedy, — war, — and are useful, and, in fact, only allowed, as a means to the successful prosecution of that war. We shall therefore adopt, as our first and most gen- eral division, that which gives the departments, pri- mary rights, or the rights of peace, and remedial, or those of war. These we shall now consider in detail. PRIMARY RIGHTS. § 79. It seems possible to refer all primary in- ternational rights to two sources, existing in the es- sential characteristics or elements of a state. These characteristics or elements are (1st), the fact that each state is independent and sovereign, a corporate legal person, a free moral agent ; and (2d), the fact that all states are equal. We may make a corresponding division of primary rights and duties, namely : — Mrst. Those which flow from national indepen- dence and sovereignty as their ultimate source ; and, Second. Those which flow from national equality as their ultimate source. The rights included within the first of these classes may be segregated into three groups, namely : — A. Those which relate to the formation and pres- ervation of the state as an organized political society, — in other words, which relate to its corporate ex- istence. These are somewhat analogous to the ab- solute rights of persons, so called by Blackstone : more correctly, to the rights that belong to status of persons ; B. Those which relate to the national ownership EIGHTS OF INTERNATIONAL LAW. 83 and dominion over territory and other things {res, bona, corpora) of that body politic; and, C. Those which relate to jurisdiction over persons and things. This entire class is, however, subject to a limitation analogous to that under which private persons enjoy their property, dominion, and privileges of status un- der the rules of the municipal law, and which is ex- pressed in the familiar maxim, Sic utere tuo ut alie- num non Icedas. This limitation gives rise to the right of one state sometimes to interfere in the affairs of another, which is termed by publicists the right of intervention. § 80. The rights included in the second of our general classes — those flowing from equality — may be arranged as follows, namely : — A. The right of a state to protect its citizens everywhere, at home and abroad ; B. The right of each state to be recognized as such by all other members of the family of nations ; C. The right to external marks of honor and re- spect ; D. The right to enter into treaties; E. The right of embassy, — or to be represented at foreign governments by accredited ambassadors or ministers, and to maintain consuls and consular agents, in order that the protection and jurisdiction over persons and things abroad may be more efficient. This subdivision may be pursued further, and it will be found a material aid in understanding the whole science. § 81. As the rights resulting from independence are by far the most important, are, in fact, the very sub- stratum of international law, we shall dwell first and 84 INTEENATIONAL LAW. at large upon that class. We have seen that it com- prehends : — A. Those which relate to the formation and preser- vation of the state as an organized political society. This group contains two divisions, namely : — (1.) The right to the free choice, settlement, and alteration of the national constitution, form of gov- ernment, and municipal law of a state ; and, (2.) The right of self-preservation, by preventing as well as by repelling attacks. B. Those which relate to national ownership and dominion over territory and other things of a state. This group contains four important and distinct di- visions, namely : — (1.) The right to acquire territory or other things {res, bona, corpora), and rights (jura) ; (2.) The right of territorial inviolability, and of free use and enjoyment of territory and all other things ; (3.) The right to develop the national resources by commerce ; (4.) The right to transfer territory and other things, or, in other words, to put an end to dominion over them. C. Those which relate to jurisdiction over per- sons and things. This group contains two divisions, namely : — (1.) Jurisdiction within the territorial limits of a state ; and, (2.) Jurisdiction in some instances without these territorial limits. § 82. We shall now proceed to examine in detail these various classes and divisions. First. Primary rights which flow from national independence and sovereignty as their ultimate source. EIGHTS OF INTERNATIONAL LAW. 85 Choup A. Those which relate to the formation and preservation of the state as an organized political so- ciety, — in other words, which relate to its corporate existence. § 83. (1.) The right to the free choice, settlement,, and alteration of the internal constitution, form of government, and municipal law of a state. That every state has the right to choose, adopt, change, and settle its own municipal constitution, form of government and laws, without control and hindrance from any foreign power, is one of the ax- ioms of the international law. Indeed, without this liberty there would be no such thing as independence and sovereignty. This proposition, nevertheless, however true and however important, generally speaking, is not withr out some limitations in its practical application ; be- cause, rights on the part of other states, members of the same system, may control, to a certain extent, the right of unlimited liberty generally incident to a state in the establishment of its government, as the right of an individual in society to perfect liberty is, to a certain extent, limited by a similar right in his neigh- bor. This limitation will be discussed under the head,, right of intervention. History is full of examples of interference by one state in the internal affairs of another; most of them unjust, many of them infa- mous outrages on the part of the strong against the weak, a few justifiable by some exigencies of state policy. § 84. (2.) The right of self-preservation by prevent- ing as well as by repelling attack. It must be constantly remembered that we are now speaking of a condition of peace, not of war. Of 86 IKTEENATION-AL LAW. course, during actual hostilities, each belligerent may adopt such measures of force as it thinks conducive to a favorable issue of the conflict. But as war would be a mockery unless states were able, at once, to prosecute it with vigor, it has passed into a maxim of statesmanship, — In peace prepare for war. Interna- tional law recognizes the same necessity, and accords the right to make all preparations deemed needful by the government of a state. This concession includes : (1.) The power to erect and maintain all fortifica- tions on the national territory that may be adjudged expedient. The exercise of this right is so neces- sary, so universal, that it is not considered a menace to any contiguous sovereignty, and has never been surrendered except by a treaty wrung from the de- feated party at the close of a disastrous war. There are one or two remarkable instfinces of such conces- sions recorded in history. In the Treaty of Utrecht (1713), between Great Britain and France, the latter stipulated to destroy the fortifications, and indeed the very harbor, of Dunkirk, that sea-port being very convenient for the fitting out of armaments against their British neighbor. Again, in the Treaty of Paris (1815), the French government agreed to demolish the fortifications of Hunningen which menaced the city of Basle, and never to replace them or rebuild other forts within a less distance than three leagues from that city. (2.) The power to raise and maintain such mili- tary and naval forces as may be adjudged expedient. The exercise of this right is so universal that it needs no comment. It should be remarked, however, that any considerable increase beyond the usual force of its army or navy by a state in time of peace, with- EIGHTS OF INTEEKATIONAL LAW. 87 out apparent satisfactory reason, is considered as a menace to neighboring powers, or, at least, as an act authorizing an inquiry from, and demanding an ex- planation to, other nations. The events of the spring and summer of 1866 in Europe are illustrations of this statement. Austria, Prussia, and Italy mutually demanded to be informed why the others were mobi- lizing their armies, and mutually protested that they only resorted to such a step as a safeguard against the similar prior acts of the others. § 85. (3). Precautionary measures outside of a state's own and within the limits of another's terri- tory. In the two preceding subdivisions we have assumed that all preparations were made by a state within its own limits, — understanding the ocean as the common highway of nations, over which all armed ships may sail at will. But there are exceptional cases in which it is in accordance with the rules of international law for one state to transgress its own boundaries and in- vade the very territory and jurisdiction of a neighbor with which it is at peace and in amity, for the pur- pose of preventing attacks and frustrating endeavors made against its own security, which have that for- eign soil as their base of operations. There can be no question as to the existence of this rule ; it is dis- tinctly laid down by the most authoritative publi- cists, and has been acted upon by not a few nations that claim to pay great respect to the teachings of international jurisprudence. Still, it is evident that the exercise of this right is a delicate if not a danger- ous duty, only to be resorted to in cases of extreme necessity. On the one hand is the national right of self-preservation ; on the other, that of territorial in- 88 INTEENATIONAL LAW. violability. These must conflict, and the conflict must be indisputable. It is almost certain that the invaded state will remonstrate, and perhaps attempt to punish the assumed insult by war. Upon the right itself, and the circumstances under which it arises, Vattel says : " It is certain that if my neighbor af- fords a retreat to my enemies, when defeated and too much weakened to escape me, and allows them time to recover and watch a favorable opportunity of making a second attack on my territories, this con- duct, so prejudicial to my safety and interests, would be incompatible with neutrality. If, therefore, my enemies, on suffering a discomfiture, retreat into his country, although charity will not allow him to refuse them permission to pass in security, he is bound to make them continue their march beyond his frontiers as soon as possible, and not suffer them to remain in his territories on the watch for a convenient opportu- nity to attack me anew ; otherwise, he gives me a right to enter his country in pursuit of them. Such treatment is often experienced by nations that are unable to command respect. Their territories soon become the theatre of war. Armies march, encamp, and fight in it, as in a country open to all comers." ^ The language of Phillimore is even more pointed and practical. He says : " A rebellion or a civil commo- tion, it may happen, agitates a nation ; while the au- thorities are engaged in repressing it, bands of rebels pass the frontier, shelter themselves under the pro- tection of the conterminous state, and from thence, with restored strength and fresh appliances, renew their invasions upon the state from which they have escaped. The invaded state remonstrates. The re- ^ Law of Nations, bk. iii. ch. vii. § 133. EIGHTS OF IKTEENATIONAL LAW. 89 monstrance, whether from favor to the rebels or fee- bleness of the executive, is unheeded, or, at least, the evil complained of remains unredressed. In this state of things the invaded state is warranted by interna- tional law in crossing the frontier and in taking the necessary means for her safety, whether these be the capture or dispersion of the rebels or the destruc- tion of their stronghold, as the exigencies of the case may fairly require."^ Again: "In all cases where the territory of one nation is invaded from the coun- try of another, — whether the invading force be com- posed of the refugees of the country invaded, or of subjects of the other country, or of both, — the gov- ernment of the invaded country has a right to be sat- isfied that the country from which the invasion has come has, neither by sufferance nor reception {pati- entid aut receptu), knowingly aided or abetted it. She must purge herself of both these charges ; other- wise, if the cause be the feebleness of her govern- ment, the invaded country is warranted in redressing her own wrong by entering the territory and destroy- ing the preparations of war therein made against her ; or, if these have been encouraged by the gov- ernment, then the invaded country has a strict right to make war upon that country herself, because she has afforded not merely an asylum, but the means of hostility to the foes of a nation with whom she was at peace. For it can never be maintained that, how- ever much a state may suff"er from piratical incursions which the feebleness of the executive government of the country whence they issue renders it incapable of preventing or punishing, that, until such government shall voluntarily acknowledge the fact, the injured 1 Phillimore, voL i. p. 227. 90 INTERNATIONAL LAW. state has no right to give itself that security which its neighbor's government admits that it ought to enjoy, but which that government is unable to guar- antee." ^ § 86. Prom these authorities it appears that Gen- eral Dix, while in command of the Department of the East, in 1864, did not transgress the rights of nations by his order directing a pursuit of rebel marauders into Canadian territory in certain contingencies. The prior acts of the provincial government were of such a character as plainly showed either their inability, or, more probably, their indisposition, to prevent the raids into the States; and the case was thus brought directly within the letter of the rule. The sudden change in the policy of the Canadian authorities, however, ren- dered the order unnecessary, and it was properly re- voked by the President. § 87. Earlier in our history an event transpired which gave rise to much discussion between our gov- ernment and that of Great Britain upon the extent and proper application of the principle. In the year 1838 a rebellion broke out in Canada, having for its professed object the independence of that province. A considerable number of the insurgents were en- camped upon an island in the Niagara River lying wholly within the Canadian frontier. They had arms, a military organization, and carried on hostili- ties with the royal forces. American citizens along the New York line certainly sympathized strongly with the rebels, and furnished them men, arms, and supplies, and thus did much to support the revolu- tionary movement. For several days the steamer Caroline made frequent trips from the American shore 1 Phillimore, vol. i. p. 230. EIGHTS OF INTERNATIONAL LAW. 91 to the island, communicating with the insurgents, and carrying the munitions of war, recruits, and provisions for their use. No efficient steps were taken by any United States officials to arrest this traffic, which was certainly an open and outrageous breach of neutral- ity. At length, upon a certain night, while the boat was moored to a dock on th'e American shore, and completely within American territory, the British commander dispatched a force to seize and destroy the obnoxious vessel. This was done, and it was al- leged that a person connected with \he steamer was killed in the affray. A long correspondence was car- ried on between our own and the British government in relation to this occurrence. The British minis- try ratified, adopted, and justified the proceedings of their subordinates, and rested their justification upon the rule of international law we are considering. The President and Secretary of State do not seem to have denied the existence of the rule, or to have re- pelled very strongly the English construction. The whole matter was finally settled amicably by corre- spondence between Mr. Webster, while Secretary of State, and Lord Ashburton. The case, however, in- volved some other points, which will be adverted to in the sequel. The duty of a neutral nation to prevent its terri- tory being used by one belligerent as a base of war- like operations against the other will be considered fully in a subsequent portion of our course. Group B. Those which relate to national ownership and dominion over territory and other things. § 88. (1.) The right to acquire territory and other things (res, bona, corpora), and other rights {jura). 92 INTEENATIONAL LAW. PRELIMINARY. Before examining in detail the rules which govern the acquisition of territory and other things which may be the objects of national dominion, it will be useful to state, in a succinct manner, the doctrines of the Roman law relating to possession and dominion, from which publicists have largely drawn both their nomenclature and their precepts. This review will also afford a natural basis of classification. § 89. The Roman law speaks of possession (pos- sessio), and of property or dominion [proprietas, do- minium). Possession is the foundation of dominion. Three kinds of possession are recognized, namely : — (1.) Natural possession, or the bare seizing and de- taining of a thing {naturalis possessio, nuda rei de- tentio). Thus a person, who, having no desire or in- tention of making a thing his own, by mere corporeal act retains it, is said in an inaccurate sense to possess it. Such possession in English law gives the possessor rights against an entire stranger, but none against the real owner. (2.) Legal possession, by act and intention [animo et facto, possessio proprie sic dicta). Thus a person, who both actually and corporeally retains a thing and at the same time intends to make it his own, is said, properly or legally to possess it. (3.) Possession by efflux of time, or civil posses- sion (civilis possessio). Thus a person who retains a thing in the conviction that he is the rightful pos- sessor of it, though he be mistaken, may acquire by the operation of time a legal title to it and be pro- tected by law in the possession of it. Dominion is the fullest right which can be exer- cised over a thing, — the absolute right of property EIGHTS OP INTERNATIONAL LAW. 93 according to the common law. The later Koman law recognized two general modes of acquiring dominion, namely : — (1.) That according to the jus gentium, or the nat- ural law ; and, (2.) That according to the jus civile, or positive legislation. Under the jus gentium dominion could be acquired by, occupation {oceupatio); natural increase [acces- sio) ; transfer (traditio), either (1) inter vivos, or (2) on the occasion of the death of a former owner. Under the jus civile property could be acquired by the effect of a statute (lege) ; the decision of a court (adjudicatione) ; the efllux of time (usucap- tione, proBscriptione). PRINCIPLES OF CLASSIFICATION. § 90. In applying the foregoing analysis to inter- national law we must plainly reject the two modes of acquiring dominion by the effect of a statute, and by a judicial decision ; because there are no legislatures or tribunals which can enact laws or render judg- ments binding upon independent states. Acquisition by nations may be divided into original and derivative ; these terms having reference solely to the source whence the dominion was acquired. Of original acquisition the modes are (1) Occupa- tion, (2) Accession, (3) Prescription ; for all of these assume that there was no other immediate owner from whom the dominion was directly drawn. Of derivative acquisition the modes are, transfer by gift, sale, exchange, and cession as the result of conquest, all of these being generally, if not univer- sally, established and evidenced by treaties or con- ventions. 94 INTEENATlOIfAL LAW. We shall proceed^ therefore, to examine these vari- ous modes of acquiring national dominion over ter- ritory and other things. ORIGINAL ACQUISITION. I. OCCUPATIOIf. I 91. Many legal writers, ancient and modern, have declared occupancy to be the ultimate source of all private ownership in particular things. Without stopping to discuss this theory, the correctness of which has been much shaken by some recent pub- licists, it is certain that occupancy is a source of the dominion which nations hold over territory, — a method of acquisition that has been resorted to even in our own times. Lor.d Stowell, in the case of The Fama (5 C. Eobinson's R. 114-116), lays down the general principle upon which nations act, and refers that principle to the doctrines of jthe Roman law. He is discussing the effect of a mere treaty of ces- sion, before the lands agreed to be ceded thereby have been actually delivered, and says : " It is to be observed, then, that all corporeal property depends very much upon occupancy. With respect to the origin of property this is the sole foundation ; quod nullius est ratione naturali ocmpanti id conceditur. So, with regard to transfer also, it is universally held in all systems of jurisprudence, that to consummate the right of property a person must unite the right of the thing with possession. A question has been made indeed by some writers, whether this necessity proceeds from what they call the natural law {jus gentium), or from that which is only conventional. Grotius seems to consider it as proceeding only from EIGHTS OF INTERNATIONAL LAW. 95 civil institutions. Puffendorf and Pothier go farther. All concur, howevef, in holding it to be a necessary principle of jurisprudence, that, to complete the right of property, the right to the thing and the possession of the thing itself should be united ; or, according to the technical expression borrowed either from the civil law, or, as Barbeyrac explains it, from the com- mentators on the canon law, there should be both the jus in rem and the jus in re. This is the general law of property, and applies, I conceive, no less to the right of territory than to other rights. Even in newly discovered countries, where a title is meant to be established for the first time, some act of posses- sion is usually done and proclaimed as a notification of the fact. In transfer, surely, where the rights of others are to be superseded and extinguished, it can- not be less necessary that such a change should be indicated by some public acts, that all who are deeply interested in the event, as the inhabitants of such settlements, may be informed under whose dominion and under which laws they are to live. This I con- ceive to be the general propriety of principle on the subject, and no less applicable to cases of territory than to property of every other description." To establish national dominion over territory, as well as to establish private absolute dominion over those things which may be the subjects of property, there must be legal possession within the meaning of the Eoman law, possessio animo et facto, possession by act and intention. When this dominion is refer- able to occttpancy as its source, that occupancy must be such as constitutes and continues this legal pos- session. § 92. We are thus led in the discussion of this sub- ject to consider it in two aspects. 96 INTERNATIONAL LAW. (1.) Wtat steps are necessary to give any national dominion by occupation ; and, (2.) Over what extent of territory, these steps, when properly taken, will give this national dominion. (1.) The necessary steps. These are (1) discov- ery; and (2) use and settlement. (1.) Discovery. We are naturally led to make two inquiries : — {a.) Of what lands will discovery give to a nation an inchoate right of property ; and, (6.) By whom must the discovery be made in order to give such right. § 93. (a.) According to the vmiversal practice of all civilized peoples, the discovered territory must be either uninhabited and unappropriated by any 'State; or must be inhabited or appropriated only by persons who are not recognized as belonging to the great family of states to whom the international law ap- plies, — in other words, by savage, barbarous tribes. There can be no question that the sternest principles of justice, the teachings of the purest morality applied to public affairs, accord a right to the discovery of territory uninhabited and unappropriated. It is not so evident that the superior knowledge and enlight- enment of a civilized and Christian nation gives it any just claim to the dominion over lands, as against the savage and barbarous aboriginal possessors, merely because it has discovered such regions prior to any other civilized and Christian people. It demands a large amount of casuistry to convince us that such a claim is founded in the natural law. Bift one thing is certain ; such has been the universal practice of nations the most enlightened and Christian, not only in ancient but in the most recent times. It seems to EIGHTS OF INTEEKATIONAL LAW. 97 be a law of Providence that the peoples who are un- fitted to develop the resources of the earth shall give way to those that have the stronger race life, the most enduring persistence, the energy which transforms the forest and the wilderness into the farm, the village, and the city. Of course, since international law was advanced to the position of a science, the most impor- tant discoveries of territory have been in the Amer- ican continent. It is in reference to dominion over these regions that disputes have arisen, principles been evoked and applied, diplomatic controversies been carried on, and not unfrequently wars been waged. And in even more recent times the same principles have been applied by the British in Aus- tralia, and by them and other nations in different parts of the Pacific and Indian Oceans. § 94. (6.) By whom must the discovery be made, in order to give a nation any inchoate territorial right ? A discovery may either be made by a person in- vested with some public national authority, and bear- ing a commission from his sovereign, — as a naval of- ficer in command of a fleQt or man-of-war ; the head of an exploring expedition sent out by a government ; or it may be made by a person acting entirely in a private capacity, as the master of a merchant vessel, or a traveller exploring the unknown part of the globe for his own pleasure or profit. International law seems to have definitively settled the rule that only the former class of discoveries confer any in- choate right of dominion upon the nation in whose service the discovery was made : or that, if one of the latter class is relied upon, the act of the private citi- zen must have been, within a reasonably short time, 7 98 INTERNATIONAL LAW. ratified and adopted by his government. In other words, the step which originates the national right must be made in the name of the nation, by one of its accredited agents and servants. It is true that, in the protracted discussions between the United States and Great Britain respecting their mutual claim to Oregon, our own government rested its case partly upon an assumed priority of discovery made, as it was alleged, by an American merchantman first entering the mouth of the Columbia Kiver. Great Britain, in reply, insisted that some of her own agents had previously explored some of the head waters and confluents of the same river, but denied that the act of the American sea-captain, if prior in time, would have conferred any prior right, and urged that the positions of the United States negotiators were op- posed to all writers and authorities upon international law. I shall have occasion to refer again to this con- troversy which involved some other important and practical doctrines of territorial acquisition. It is enough now to say that in the final treaty which settled the disputed boundary, the United States re- ceded from its claim, and accepted a line which Great Britain, from the outset, had been willing to concede. Vattel, in treating of the general subject of discovery, says*: "All mankind have an equal right to things that have not yet fallen into the possession of any one ; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country uninhabited and without an owner, it may lawfully take possession of it, and, after it has sufiiciently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators, going on voyages of discovery, furnished EIGHTS OF INTERKATIONAL LAW. 99 with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation; and this title has been usually respected, provided it was soon after followed by a real possession." ^ § 95. (2.) Use and Settlement. The discovery of which we have spoken does not in itself confer a complete right of dominion ; it is only the initial act ; the right flowing from it is merely inchoate and re- quires further steps before it becomes perfect. There must be an intent on the part of the nation to take permanent possession ; that possession which the Ro- man law called " Legal " possession by act and in- tention. This intent of the government must be something more than a mental conception, more even than a verbal declaration, however formal ; it must be shown to the world in overt acts entirely unmis- takable. The practice of nations has established the rule that these acts must consist in the use and settle- ment of the newly discovered country. It cannot be denied that other notions have been entertained in past times ; that mere landing and taking posses- sion in the name of the sovereign, accompanied by the erection of crosses and other such monuments, have been deemed sufficient. But these opinions have been entirely abandoned ; the testimony of standard writers on this point is unanimous. Grotius says : " Thus we learn in what manner things become the objects of property ; not by an act of the mind alone, for, were this a sufficient foundation for dominion, persons could not know what things others desired to be their own, so that they might abstain from in- termeddling therewith, since several might, perhaps, 1 Vattel, bk. i. ch. xviii. § 207. 100 INTERNATIONAL LAW. desire the same thing. But property over things must be evidenced by some act either express, as by a partition, or tacit, as by occupation." Again : " A certain corporeal possession is required to the acquir- ing of dominion." Shortly after the epoch of the great discoveries in the Southern and Western hemispheres inaugurated by the Spaniards and the Portuguese, the Pope as- sumed to confer upon Spain and Portugal the exclu- sive dominion over all these regions which had been, and which were to be, discovered. By a bull issued in 1454, Pope Nicholas Y. gave to Portugal the Em- pire of Guinea, and the power to subdue all bar- barous nations therein, and prohibited the access of all other nations thereto. In 1493 Pope Alexander VI. granted to Spain all lands already or thereafter discovered, lying to the west and south of the Azores, — drawing a line from one pole to the other a hun- dred leagues west of the Azores, Of course England, France, Holland, and other states refused to recognize these papal grants as foundations for dominion over the regions included within their limits. It is true that Spain in particular perfected her claim by actual discovery and settlement of vast portions of the ter- ritory thus conferred upon it ; but her attempts to appropriate other portions were resisted by long and bloody wars. § 96. Upon the general doctrine that actual use and settlement are indispensable, the authority of Vattel is very clear. He says : " But it is questioned whether a nation can, by the bare act of taking pos- session, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cul- EIGHTS OP INTERNATIONAL LAW. 101 tivate. It is not difficult to determine that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, ex- cept for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In ef- fect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monument to show their having taken possession of them, they have paid as little re- gard to that empty ceremony as to the regulation of the popes, who divided a great part of the world be- tween the crowns of Castile and Portugal." ^ § 97. Some use and settlement being thus abso- lutely necessary, it is a most important and practical inquiry, what kind and amount are required. The very nature of the case shows that this question can be answered only in a general way. The regions be- ing assumed as either entirely desert or inhabited only by barbarous aborigines, it is plain that an im- mediate, complete, perfected, organized settlement cannot be demanded, for that would be simply impos- sible. Organized societies are of slow growth. The first settlers are mostly adventurers willing to cut themselves off from the advantages of an old civiliza- tion, in the hope of gain, or of the excitements of a 1 Vattel, b. i. ch. xviu. § 208. 102 INTEEKATIONAL LAW. semi-barbarous life. We cannot, therefore, expect or require at once that colonies should be established with governments in full operation ; but the use and settle- ment must be beneficial, with the intention of perma- nence. It may be for purposes of agriculture and the cultivation of the soil, of working mines, of planting fisheries, and doubtless of hunting. An illustration of the latter is furnished in the Oregon controversy between the United States and Great Britain, already alluded to. The British government urged, among other things, that their fur companies had established permanent posts, and ' extended their operations of trapping and hunting over a considerable part of the disputed territory, and that this was a sufficient ben- eficial use and settlement to bring them within the rule of international law. Vattel regards the use to which the nomadic Arabs put the regions in which they dwell as a sufficient appropriation. He says: " Families wandering in a country, as the nations of shepherds, and ranging through it as their wants re- quire, possess it in common ;. it belongs to them to the exclusion of all other nations, and we cannot, * without injustice, deprive them of the tracts of coun- try of which they make use. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them ; nevertheless, no other na- tion has a right to narrow th^ir boundaries unless she be under an absolute want of land. For, in short, they possess their country ; they make use of it after their manner ; they reap from it an advantage suit- able to their manner of life, respecting which they have no laws to receive from any one." ^ These ob- servations would seem to apply with equal force to 1 Vattel, b. ii. ch. vu. § 97. EIGHTS OF INTERNATIONAL LAW. 103 the American Indians and all other savage peoples. I should rather be inclined to the opinion that another circumstance would prevent the civilized nations of the world from appropriating any of the regions over which the Bedouin roam. In the first place, no people can claim to have discovered them ; and, in the second place, they nominally belong to the juris- diction of the Ottoman Empire, one of the indepen- dent sovereign states recognized by the public law. Doubtless the hold of the Porte is feeble enough, and these nomads do not themselves fall within any proper definition of a nation, but the territory is not un- claimed by a responsible sovereignty. It has sometimes been the practice of civilized na- tions, upon the discovery and settlement of territory inhabited by barbarous aborigines, to treat their ac- quisition as giving them only a right of preemption from the savages. They assert their political domin- ion and exclude all other claimants, but, in respect to the soil itself, they reserve only the right to purchase it from the original occupants. Just and equitable as this practice is, it cannot be said to have become an established rule of international law. It is adopted by the United States in their Western territories, by Great Britain in Australia, and was first introduced by some English colonists in the early settlen^nt of America. § 98. (2.) Over what extent of territory these steps, when properly taken, will give national dominion. It having been determined that discovery, use, and settlement are necessary in order to give any claim, it is a most important and practical question over what extent of territory this claim will be valid. It is certain that the actual use and settlement, — the 104 INTEEITATIONAL LAW. possessio pedis, — need not be coextensive with the national dominion ; that dominion is not to be circum- scribed by the very boundaries to which the adventu- rous pioneers have pushed their homes or even their explorations. On the other hand, the discovery and occupation of a portion of the sea-coast does not carry with it a right to the whole continent. The solution of questions as they arise involves something more than mere legal principles ; it depends largely upon geographical facts ; upon the course of rivers, ranges of mountains, the character of the sea-coast, and the like. It must also be confessed that international disputes relating to such territorial claims to newly discovered lands have often been resolved by over- whelming national power enforced through successful war. The legal question to be considered is. How much contiguous territory shall be included under the na- tional dominion in addition to that actually occupied by settlers by a possessio pedis f In other words. What is the international doctrine of contiguity ? The fol- lowing cases may arise, namely : the discovery and settlement may be, (1.) Of an island ; (2.) Upon a continent. As the discovery of a continent must of necessity be upon the sea-shore, and as the first settlements are almost invariably upon the coast, the peculiar circum- stances which give rise to international claims and discussions are the following: {a.) Discoveries and settlements by different nations on the same coast- line of a continent; and (6.) Discoveries and settle- ments by different nations on the opposite coast-lines of the same continent. § 99. (1.) Islands. If the island be so small that a EIGHTS OP INTERNATIONAL LAW. 105 nation having possession of a single post or settlement may reasonably control the whole, there can be no doubt that the discovery of one locality, followed by a permanent establishment thereon, will carry with it the dominion over the entire region.- If, on the other hand, the island be so large that an imperium over the whole cannot be predicated of one settlement, the dominion over it must be governed by the same rules which are applicable to continents. § 100. (2.) Continents. Of course, no national claim has ever been made and admitted to dominion over the whole of a newly discovered continent. As a matter of fact, voyagers from various countries have made landings upon different portions of the same grand division of the earth, which have been followed by settlements or colonies more or less extensive, — by occupation and use for various purposes. In the process of time, as these original plantations became extended, interfering claims to territory have sprung up and international disputes arisen, which have been settled sometimes by appeal to international law, sometimes by appeal to arms. In these controversies the questions will, of necessity, be. How far inland shall the dominion extend when a discovery and set- tlement have been made upon a sea-shore ? and. How far coastwise shall such dominion extend when a dis- covery and settlement have been made at a particular locality or within a defined district of country ? In respect to both of these separate inquiries it is evident that those natural boundaries which physical geogra- phy points out, — the ranges of mountains, the great rivers draining large basins, the gulfs and bays, the prominent capes, and the trend of the coast-line, — must have great influence in determining the limits of national domain. 106 INTBKIfATIOKAL LAW. • The general rule may be stated as follows : Where a settlement is made by one nation at connected points upon a sea-coast, the national claim will extend inland over that contiguous territory which will find its natural outlet at the coast in question, upon which it naturally will depend for its supplies from abroad and for the export of its products. When discoveries and settlements are made by two distinct nations upon the same sea-coast, if the intermediate boundary of their respective possessions cannot be fixed by any of the natural physical objects abovementioned, the middle line between them shall be taken for that boundary. § 101. We are now prepared to refer to the lan- guage of some standard writers and diplomatists of authority, which illustrates the doctrines under dis- cussion. Phillimore says : " With respect to a con- tinent, the occupation of a portion of the sea-coast gives a right to the usual protecting limit at sea, which is held to exist in all old countries. The right of dominion would extend from the portion of the coast actually and duly occupied inland, so far as the country was uninhabited, and so far as it might fairly be considered to have the occupied sea-board for its natural outlet to other nations." ^ Again : " Writ- ers upon international law all agree that the right of occupation incident to a settlement, such as has been described, extends over all territory actually and bond fide occupied, over all that is essential to the real use of the settlers, although the use be only inchoate, and not fully developed ; over all, in fact, that is neces- sary for the integrity and security of the possession, such necessity being measured by the principle al- ' Phillimore, Comm. on Int. Law, vol. i. p. 248. EIGHTS OF INTERNATIONAL LAW. 107 ready applied to the parts of the sea adjacent to the coasts, namely ; ' ihifinitur imperium, ubi finitur armo- rum vis.' The application of the principle to a terri- torial boundary is, of course, dependent in each case upon details of the particular topography." ^ Martens, in discussing the question. How far the right of occu- pation extends, writes : " A nation which holds a dis- trict by occupation should be deemed to have oc- cupied all the vacant parts which compose it; its dominion extends even over those places which it leaves uncultivated, and over those of which it per- mits a usage in common. The limits of its territory are either natural (such as the sea, rivers, lakes, mountains, forests, etc.) or artificial (such as barriers of stone, monuments, posts, etc.). The mountains, forests, plains, etc., which separate the territory of two nations, are considered to belong to each of the two up to the line between them, unless they have agreed to regulate the limits differently, or to make the territory neutral. In default of certain limits, the right of one nation to exclude foreign nations from lands and neighboring islands does not extend beyond the district which it cultivates, or of which, at least, it is able to prove the occupation." ^ § 102. Early in the history of the United States, while Spain held the territory of Louisiana as a part of her American possessions, a dispute arose between the two countries respecting the western boundary of Louisiana. In the diplomatic controversy carried on between the respective governments, the negotia- tors on the part of the United States laid down the principles of international law governing occupation, 1 Phillimore, Comm. on Int. Law, vol. i. p. 251. 1 Martens, D7-oit des Gens, bk. ii. ch. i. § 38. 108 INTERNATIONAL LAW. with a clearness, precision, accuracy, and complete- ness which Mr. Phillimore thinks have never been surpassed. They say : " The principles which are applicable to the case are such as are dictated by reason, and have been adopted in practice by Euro- pean powers in the discoveries and acquisitions which they have respectively made in the new world. They are few, simple, intelligible, and, at the same time, founded in strict justice." The first of these is, that when any European na- tion takes possession of any extent of sea-coast, that possession is understood as extending into the in- terior country, to the sources of the rivers empty- ing within that coast, to all their branches, and the country they cover, and to give it a right, in exclu- sion of all other nations, to the same. It is evident that some rule or principle must govern the rights of European powers, in regard to each other, in all such cases; and it is certain that none can be adopted, in those to which it applies, more reasonable or just than the present one. Many weighty con- siderations show the propriety of it. Nature seems to have destined a range of territory so described for the same society ; to have connected its several parts together by the ties of a common interest, and to have detached them from others. If this principle is departed from, it must be by attaching to such discovery and possession a more enlarged or contracted scope of acquisition ; but a slight atten- tion to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of an European power, who discovered and took posses- sion of a new country, to the spot on which its troops or settlements rested ; a doctrine which has been to- EIGHTS OP INTERNATIONAL LAW. 109 tally disclaimed by all the powers who made discov- eries and acquired possessions in America. The other extreme w^ould be equally improper ; that is, that the nation who made such discovery should, in .all cases, be entitled to the whole of the territory so discov- ered. In the case of an island whose extent was seen, which might be soon sailed round and preserved by a few forts, it might apply with justice ; but in that of a continent it would be absolutely absurd. Ac- cordingly, we find that this opposite extreme has been equally disclaimed and disavowed by the doctrine and practice of European nations. The great continent of America, north and south, was never claimed or held by any one European nation; nor was either great section of it. These pretensions have always been bounded by more rational and moderate principles. The one laid down has attained general assent. This principle was completely established in the contro- versy which produced the war of 1755. Great Brit- ain contended that she had a right, founded on the discovery and possession of such territory, to define its boundaries by given latitudes in grants to indi- viduals, retaining the sovereignty to herself from sea to sea. This pretension on her part was opposed by France and Spain, and it was finally abandoned by Great Britain in the Treaty of 1763, which estab- lished the Mississippi as the western boundary of her possessions. It was opposed by France and Spain on the principle here insisted on, which of course g^ves it the highest possible sanction in the present case. The second rule is, that whenever one European nation makes a discovery and takes possession of any portion of that continent, and another afterwards does the same at some distance from it, where the boun- 110 INTERKATIONAL LAW. dary between them is not determined by the principle abovementioned, the middle distance becomes such of course. The justice and propriety of this rule is too obvious to require illustration. A third rule is, that when any European nation has thus acquired a right to any portion of territory on that continent, that right can never be diminished or affected by any other power, by virtue of purchases made, by grants, or conquests of the natives within the limits thereof. It is believed that this principle has been admitted and acted on invariably since the discovery of America, in respect to their possessions there, by all the European powers. It is particularly illustrated by the stipulations of their most important treaties concerning those possessions and the practice under them, namely ; the Treaty of Utrecht in 1713, and that of Paris in 1763. In conformity with the tenth article of the first-mentioned treaty, the boun- dary between Canada and Louisiana on the one side, and the Hudson Bay and North Western Companies on the other, was established by commissioners, by a line to commence at a cape or promontory on the ocean in 58° 30' north latitude, to run thence south- westwardly to latitude 49° north from the Equator, and along that line indefinitely westward. Since that time no attempt has been made to extend the limits of Louisiana or Canada to the north of that line or of those companies to the south of it, by purchase, con- quest, or grants from the Indians. By the Treaty of Paris, 1763, the boundary between the present United States and Florida and Louisiana was established by a line to run through the middle of the Mississippi from its source to the River Iberville, and through that river to the ocean. Since that time no attempts RIGHTS OF INTERNATIONAL LAW. Ill have been made by those states since their indepen- dence, or by Great Britain before it, to extend their possessions westward of that luie, or of Spain to ex- tend hers eastward of it, by virtue of such acquisi- tions made of the Indians. These facts prove incon- testably that this principle is not only just in itself, but that it has been invariably observed by all the powers holding possessions in America, in all ques- tions to which it applies relative to those possessions. § 103. One of the most important, and, to us, most interesting discussions involving the principles we are considering, was that between Great Britain and the United States, in reference to the regions lying west- ward of the Rocky Mountains, and between the 42° and 54° 40' of north latitude, generally known in our political history as the "Oregon Question." The controversy was one of long standing, and had been several times temporarily disposed of by special and limited conventions between the two powers, in which it was stipulated, however, that nothing therein con- tained was to be considered as waiving or in anywise affecting the ultimate rights of either party. Both powers claimed exclusive dominion over the entire region. By a convention between the two govern- ments in 1818, it was stipulated that the navigation of the rivers within the territory should be open and free to the citizens and subjects of both powers for ten years. This agreement would expire in 1828. In 1827 another convention was entered into by which the provisions of the former were indefinitely extended, with the proviso that either of the con- tracting powers might abrogate and cancel it upon a notice of twelve months. During the prior discussions the United States rested 112 INTERNATIONAL LAW. her claims to exclusive dominion upon the following points: (1.) The first discovery of the mouth of the Columbia by the captain of a merchantman, one Gray, in 1792 ; and the first discovery of the sources of that river, and its exploration by Captains Lewis and Clarke, in 1805-6. (2.) The virtual recognition of the claim of the United States by the surrender of Asto- ria by Great Britain, after the treaty of peace which ended the war of 1812 ; which restoration, it was claimed, was made without any reservation. (3.) The acquisition by the United States of all the claims which Spain had held to the northwestern coasts of America. (4.) Upon the ground of contiguity. It was urged that as Great Britain had at one time claimed that the infant colonies on the eastern shore of Amer- ica gave her a dominion across the whole continent, and that such claim had been actually enforced to the Mississippi River, how much more just and reasonable was the demand of the United States, who now held the whole region from the Atlantic to the eastern base of the Rocky Mountains, and was fast filling up that wide extent of territory with her populations. The British government opposed these arguments upon the following grounds, and it will be noticed that the issue was largely one of fact : — (1.) It was denied that Gray discovered the mouth of the Columbia; and it was asserted that the river was first entered by one Lieutenant Meares of the British Navy; it was also asserted that British fur traders had, if not anticipated, at least been contem- poraneous with Clarke and Lewis in the exploration of that river. (2.) It was asserted that the restoration of Astoria to the United States in 1818 was accompanied by express reservations. (3.) It was argued that the EIGHTS OP INTERNATIONAL LAW. 113 Spanish claims to which the United States succeeded were not rights of dominion, but simply rights to set- tle, to navigate, and fish in the waters, and to trade with the natives. (4.) The argument of the American government based upon the doctrine of contiguity was denied. In 1827, the British negotiators de- clared that their government only asserted an exclu- sive claim to that region between 49° and 54° 40' north latitude. As to the portion between 42° and 49° they admitted a right of the United States, but denied that it was exclusive. The convention of 1827 having been abrogated, the question was reopened in 1846 by the United States, with a determination on the part of our Executive that it should be definitively settled. In the negoti- ations which followed, the United States urged the discovery of the mouth of the Columbia by Captain Gray ; the permanent American settlement of Astoria thereat ; and asserted " that a nation discovering a country by entering the mouth of its principal river at the sea-coast must necessarily be allowed to claim and hold as great an extent of the interior country as was described by the course of such principal river and its tributary streams." Great Britain denied the priority of discovery ; denied that any right of do- minion resulted from a discovery made by a private citizen ; and denied that such discovery and settle- ment at the mouth of a river, at all events, would carry with it the regions about the upper waters of that stream which had in the mean time been settled by the subjects of another power. Mr. Phillimore is of opinion that if the premises assumed by the United States had been correct, if a discovery of the mouth of the Columbia had been made by an authorized 114 INTERN ATIOJSAL LAW. public officer, and followed by a permanent settle- ment thereat, the principles laid down by the Amer- ican negotiator would have been correct expositions of international law. The controversy terminated, as it is well known, by a compromise. The Treaty of Washington of 1846 established the 49° of north lat- itude as the permanent boundary between the United States and the British possessions, and reserved the right of free navigation of the channel and straits between Vancouver's Island and the main land, south of 49° latitude, to the subjects of both nations, and the free navigation of the Columbia River, from the same parallel to the ocean, to the Hudson Bay Company and British subjects trading with them.^ II. ACCESSION. § 104. The second method of original acquisition is that known in the Roman law as accession, and which in the English and American might well be termed natural increase. In the private municipal law it includes the various particular modes of acquiring property in things : (1) by the labor of the owner, manual or mental ; (2) by the reproduction and growth of animals and plants; (3) by the commin- ^ The subsequent history of the ble ship channels. Each country- northwestern boundary is as fol- claimed that channel as the one lows : By the Treaty of 1846 it was intended by the treaty, which gave to run along the 49° of north lat- it most territory. Failing to agree, itude to " the middle of the channel by the Treaty of Washington in which separates the Continent from 1871 the question in dispute was Vancouver's Island, and thence submitted to the arbitration of the southward through the middle of Emperor of Germany. His deci- the channel and of Fuca's Straits sion named the most westerly chan- to the Pacific Ocean." There is a nel of the two, the Canal de Haro, little archipelago between Vancou- as had been contended by the United ver and the main land amongst States, as the one intended by the whose islands run two practica- treaty. — Ed. EIGHTS OF INTERNATIONAL LAW. 115 gling of materials ; and (4) by alluvial deposits and changes on the banks of rivers and other waters. The last of these particular modes is the only one which can fall within the purview of international law. States may acquire dominion of territory newly formed by the operations of nature, by deposits upon sea-shores or river-banks, by the elevation of islands in streams or adjacent to coasts. If such alluvial de- posits are made in the bed or on the banks of a river which is entirely within the limits of a single national territory, there can be no doubt that the soil immedi- ately falls under the national dominion. The same is true of similar accretions upon the sea-coast. The only case which can present any difficulty will arise when deposits or changes take place in a river that is the boundary between two contiguous states. § 105. The , rules of the Roman law determining the effect of such changes upon private riparian own- ership were clear, positive, and just, and have been adopted in all modern systems of municipal jurispru- dence. They were as follows : — If the lands of two riparian owners lie upon oppo- site sides of a stream, their ownership extends to the middle line of that stream. Including the soil over which the waters flow. All gradual alluvial deposits belong to the owner of the river-bank upon which they are made. If a portion or mass of a river-bank be violently disrupted by the force of the stream (vijluminis), the old proprietor does not lose his right thereto, unless the part thus carried away should be affixed to the bank of another owner so as to be immovable. As a corollary to these rules, it followed that, — If a river gradually and imperceptibly changes its 116 INTERNATIONAL LAW. course, encroaching upon the one side, and leaving newly exposed soil upon the other, the proprietary rights follow the stream. If the river suddenly leaves its old bed and takes a new direction, the old channel, now dry, is appor- tioned between the former riparian owners. If an island emerges in a stream on one side of the middle line, it belongs to the owner of the nearest bank. If an island emerges in the middle of a stream, it is divided between both proprietors, the hne of sepa-- ration following the former ^Zwm aquce. These doctrines of the Roman jurisprudence have been fully adopted as rules of the pubhc law govern- ing national dominion in analogous cases, by substi- tuting the state for the private owner, and pubhc dominion and jurisdiction for private property. § 106. Of course, cases involving these principles are rare. A very interesting and instructive one arose in the year 1805, was decided by Lord StoweU, and is to be found in 5 C. Robinson's R. p. 373, — The Anna. The question was presented as follows : The Anna had been captured by a British armed vessel, and proceedings were instituted in the English prize court to procure her condemnation. The United States intervened, alleging that the capture took place within three miles of her coast, and therefore within her exclusive dominion, and was, by an admit- ted rule of international law, illegal. The facts were that The Anna was seized off the mouth of the Mis- sissippi, within three miles of certain low mud islands formed from the alluvial wash and debris of that mighty river, which were uninhabited and uninhab- itable, but more than three miles from the Belize, the EIGHTS OP INTERNATIONAL LAW. 117 extreme point of the main land. If the outer coast- line of the American territory was to be taken at these islands, the capture was illegal and the ship should be restored to her owners; H it was to be taken at the main land, the seizure was lawful and the vessel liable to condemnation. Lord Stowell said : ^ " When the ship was brought into this coun- try a claim was given of a grave nature, alleging a violation of the territory of the United States of America. This great leading fact has very properly been made a matter of much discussion, and charts have been laid before the court to show the place of capture, though with different representations from the adverse parties. The capture was made, as it seems, at the mouth of the river Mississippi, and, as it is contended in the claim, within the boundaries of the United States. We all know that the rule of law on this subject is ' terrce dominium finitur, ubi finitwr armoruvfi vis,' and since the introduction of firearms that distance has usually been recognized to be about three miles from the shore. But it so happens- in this case that a question arises as to what is to be deemed the shore, since there are a number of little mud islands, composed of earth and trees drifted down by the river, which form a sort of portico to the main land. It is contended that these are not to be con- sidered as any part of the territory of America ; that they are a sort of ' no man's land,' not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds'- nests. It is argued that the line of territory is to be taken only from the Belize, which is a fort raised on made land by the former Spanish possessors. I am 1 Page 385 6. 118 INTERNATIONAL LAW. of a different opinion. I think that the protection of territory is to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which, indeed, they are formed. These elements are derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in the books of law, — quod vis fluminis de tuo prcedio detraxerit, et vicino prcedio attulerit, palam tuum rema- net, even if it had been carried over to an adjoining territory. Consider what the consequence would be if lands of this description were not considered as appendant to the main land, and as comprised within the bounds of territory. If they do not belong to the United States of America, any other power might oc- cupy them ; they might be embanked and fortified. What a thorn would this be in the side of America. It is physically possible, at least, that they might be so occupied by European nations, and then the com- mand of the river would be no longer in America but in such settlements. The possibility of such a conse- quence is enough to expose the fallacy of any argu- ments that are addressed to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock ^ill not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil. I am of opinion that the right of terri- tory is to be reckoned from these islands. That be- ing established, it is not denied that the actual cap- ture took place within the distance of three miles from the islands, and at the very threshold of the river." EIGHTS OF INTERN ATIOKAL LAW. 119 III. PRESCEIPTION. § 107. A third method of original acquisition — or acquisition from no immediate former owner — is prescription. It is certain that in every system of municipal law, the possession of a thing under a claim of ownership, continued for a suf&cient length of time, gives an absolute property in that thing to the possessor as against all the world, even against him who was originally the rightful owner. By what- ever name we may call this source of private acquisi- tion, whether usucaption and prescription, as in the Roman law ; adverse possession applied to lands, pre- scription applied to easements, as in the English law ; and whatever theory we may adopt as its basis, — the very gist and essential fact contained in it is the lapse of time. Jurists have speculated as to its ori- gin, whether it belongs to the law of nature, or is to be referred solely to positive legislation ; English judges and lawyers have invented the convenient fic- tion of the presumption of a grant; but still it re- mains that lapse of time is what works the change of property, is what destroys the right of the former owner without his consent, and perfects the right of the present occupant. What shall be the duration of this lapse of time has varied and will vary with each system of private jurisprudence. Formerly, in Eng- land, it must have continued beyond legal memory. At present, the universal practice or tendency is to limit it to a definite number of years (in the United States generally to twenty years). Is there an analogous mode of acquiring national dominion known to the international law ; in other words, does that code recognize international pre- 120 INTEKNATIONAL LAW. scription ? If so what does it involve ; what rights does it confer ; upon what is it based ? International prescription, if it exists, assumes that a state has at some past time obtained possession of certain terri- tory, whether rightfully or wrongfully ; that it has continuously retained possession of that territory, claiming and asserting sovereignty and dominion over the same ; that such possession and claim have lasted for a sufficient period of time ; and that thereby an absolute right has accrued to that state, not only against other nations who have no valid title, but even against the nation which was originally the true sovereign, and against the inhabitants of the district itself if they formerly constituted an independent po- litical society. It cannot be pretended that the inter- national law has established any definite limit for the duration of such possession and claim, in order that the territorial right may become absolute through prescription. The utmost that can be asserted is, that a lapse of time sufficiently prolonged will have this effect. Nor does international prescription assume or require that the territory in question should have been abandoned by its original proprietors, — that it should have been left derelict. In fact, the nation taking possession of and settling upon derelict terri- tory would immediately, without any lapse of time, acquire dominion over it by occupancy. § 108. Having described the essential features of international prescription, we recur to the question, Does it exist; is it recognized by international law. Many jurists and publicists of great authority answer in the affirmative ; of which number are Grotius, Vattel, Edmund Burke, Wheaton, and Phillimore. Some recent continental writers deny its existence ; EIGHTS OF INTERNATIONAL LAW. 121 among them are Kliiber and Martens. I cannot do better than to quote the language of those who main- tain the afl&rmative. Vattel says: "After having shown that usucap- tion and prescription are founded in the law of na- ture, it is easy to prove that they are equally a part of the law of nations, and ought to take place be- tween different states. For the law of nations is but the law of nature applied to nations in a manner suit- able to the parties concerned. And so far is the nature of the parties from aflfording them an exemp- tion in the case, that usucaption and prescription are much more necessary between sovereign states than between individuals. Their quarrels are of much greater consequence ; their disputes are usually ter- minated only by bloody wars ; and consequently the peace and happiness of mankind much more power- fully require that possession on the part of sovereigns should not be easily disturbed, — and that, if it has for a considerable length of time continued uncon- tested, it should be deemed just and indisputable. ... It must, however, be confessed that between na- tions the rights of usucaption and prescription are often more difficult in their application, so far as they are founded on a presumption drawn from long si- lence. Nobody is ignorant how dangerous it com- monly is for a weak state even to hint a claim to the possessions of a powerful monarch. In such a case, therefore, it is not easy to deduce from long silence a legal presumption of abandonment. . . . But there are other principles that establish the use and force of prescription between nations. The tranquillity of the people, the safety of states, the happiness of the human race, do not allow that the possessions, em- 122 INTERNATIONAL LAW. pire, and other rights of nations should remain un- certain, subject to dispute, and ever ready to occa- sion bloody wars. Between nations, therefore, it be- comes necessary to admit prescription founded on length of time as a valid and incontestable title. If any nation has kept silence through fear, and as it were through necessity, the loss of her right is a mis- fortune which she ought patiently to bear, since she could not avoid it ; and why should she not submit to this as well as to have her towns and provinces taken from her by an unjust conqueror, and to be forced to cede them to him by treaty ? It is, how- ever, only in cases of long-continued, imdisputed, and uninterrupted possession, that prescription is estab- lished on these grounds, because it is necessary that affairs should some time or other be brought to a con- clusion, and settled on a firm and solid foundation. But the case is different with a possession of only a few years' continuance, during which the party whose rights are invaded may, from prudential reasons, find it expedient to keep silence, without at the same time affording room to accuse him of suffering things to become uncertain, and of renewing quarrels without end." ^ Burke most eloquently and forcibly says : " If it were permitted to argue with power, might not one ask of these gentlemen, whether it would not be more natural, instead of wantonly mooting these questions concerning their property, as if it were an exercise in law, to found it on the solid rock of prescription ; the soundest, the most general, the most recognized title between man and man that is known in municipal or in public jurisprudence ; a title in which not arbitrary institutions but the 1 Vattel, b. ii. ch. xi. §§ 147, 148, 149. EIGHTS OF INTEBKATIONAL LAW. 123 eternal order of things gives judgment ; a title whicli is not the creature but the master of positive law ; a title which, though not fixed in its term, is rooted in its principles in the law of nature itself, and is, indeed, the original ground of all known property ; for all property in soil will always be traced back to that source and will rest there. . . . These gentlemen know as well as I, that in England we have always had a prescription or limitation, as all nations have against each other. . . . All titles terminate in prescription, in which (differently from Time in the fabulous in- stances) the son devours the father, and the last pre- scription eats up all the former." § 109. Wheaton states the doctrine as follows : " The writers on natural law have questioned how far that peculiar species of presumption arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation; but the constant and approved practice of nations shows that, by whatever name it be called, the uninterrupted possession of territory or other property, for a cer- tain length of time, by one state, excludes the claim of every other ; in the same manner, as by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of prop- erty in question. This rule is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him ; and the inference fairly to be drawn from his silence and neglect, of the original defect in his title, or his intention to relinquish it. . . . The general consent of mankind has established the prin- ciple, that long and uninterrupted possession by one 124 INTERNATION'AL LAW. nation excludes the claim of every other. Whether this general consent be considered as an implied con- tract, or as positive law, all nations are equally bound by it ; since all are parties to it, since none can safely disregard it without impugning its own title to its possessions, and since it is founded upon mutual util- ity, and tends to promote the general welfare of man- kind." 1 § 110. Phillimore discusses the question at much length, and is emphatic in his approval of the doc- trine. He argues : " The effect of the lapse of time upon the property and right of one nation relatively to another is the real subject for our consideration. And if this be borne steadily in mind it will be found, on the one hand, in the highest degree irrational to deny that prescription is a legitimate means of inter- national acquisition ; and it will, on the other hand, be found both inexpedient and impracticable to at- tempt to define the exact period within which it can be said to have become established — or, in other words, to settle the precise limitation of time which gives validity to the title of national possessions. And, therefore, to the question what duration or lapse of time is required by the canons of international juris- prudence in order to constitute a lawful possession, it is enough to reply : First, that the title of nations in the actual enjoyment and peaceable possession of their territory, howsoever originally obtained, cannot be at any time questioned or disputed; Secondly, that a forcible and unjust seizure of a country, which the inhabitants, overpowered for the moment by the superiority of physical force, ineffectually resist, is a possession which, lacking an originally just title, re- 1 Wheaton's Elements, part ii. ch. iv. §§ 4, 5. RIGHTS OP INTEKNATIONAL LAW. 125 quires the aid of time to cure its original defect ; and if the nation so subjugated succeed, before that cure has been effected, in shaking off the yoke, it is le- gally and morally entitled to resume its former posi- tion in the community of states."^ Again: "It is admitted, indeed, that immemorial prescription con- stitutes a good title to national possession ; but this is a perfectly nugatory admission, if, as it is some- times explained, it means only that a state which has acquired originally by a bad title may keep posses- sion of its acquisition against a state which has no better title. If it had been merely alleged that the exact number of years prescribed by the Koman law, or by the municipal institute of any particular nation, as necessary to constitute ordinary prescriptions, is not binding in the affairs of nations, the position would be true. It is, perhaps, the difficulty attending the application to nations of this technical part of the doctrine, which has induced certain writers to deny it altogether ; but incorrectly, for, whatever the lapse of time may be, there unquestionably is a lapse of time after which one state is entitled to exclude every other from the property of which it is in actual pos- session. In other words, there is an international prescription, whether it be called immemorial pos- session or by any other name. The peace of the world, the highest and best interests of humanity, the fulfilment of the ends for which states exist, require that this doctrine be firmly incorporated in the code of international law." ^ § 111. Notwithstanding this imposing array of au- thorities, and the reasoning upon which their conclu- sions are all based, I cannot yield an assent to their 1 Phillimore, Comm. on Int. Law, vol. i. p. 272. * Ibid. p. 275. 126 INTERNATIONAL LAW. doctrines. Let us again state the proposition which they maintain. It is, that if a state acquire posses- sion of territory wrongfully, and hold the same unin- terruptedly, claiming dominion, a lapse of time less than immemorial will perfect its title, and make it absolute even as against the state or people who were originally the rightful proprietors. It is conceded that the duration of this lapse of . time is entirely in- definite. My objections to this doctrine I will briefly state. First. The reasoning of these jurists consists, in great measure, in arguing from the analogies of ac- quiring private property by prescription in the mu- nicipal law. Now, in truth, there is no such analogy, simply because the great essential fact upon which the doctrine of prescription is founded in the municipal law is entirely wanting in the international code, nor can it possibly be supplied. When we reduce private prescription to its lowest terms, we arrive at the fol- lowing idea as its very centre and support, namely, the law always gives to the rightful owner of a thing the requisite judicial means and instruments for as- serting his claim and establishing his property against a wrong-doer and trespasser ; if, while he possesses these means, he slumbers on his rights and neglects to enforce them, until a defined period of time has elapsed, he shall not, thereafter, be heard in his own behalf ; for the purpose of quieting titles, of promot- ing peace and order in society, the property of the once wrong-doer shall now be considered absolute. So completely does the municipal law recognize this as the basis of prescription, that if the original owner be not sui juris, be not capable of pursuing his rem- edies, the time during which such incapacity lasts is EIGHTS OF INTERNATIONAL LAW. 127 ft not counted against him. Now, the international law gives to a state or people who have been wrong- fully dispossessed of their territory and rights of do- minion no such remedy, and no remedy at all ; for it is a mere perversion of terms to call an appeal to arms a remedy, where the dispute must be decided without reference to right and justice, but by supe- riority of physical force. We cannot say then of a state in this condition that it has ever slumbered on its rights, that it has neglected to enforce its claims, for it cannot be for a moment urged that a state must commence a war, as an individual commences an ac- tion at law, or else be barred of its demand. The very elemental idea of prescription is, therefore, wanting in the international code. § 112. Secondly. The very concession that no defi- nite fixed limit of the duration of time which shall Work an international prescription exists, is fatal al- together to the theory that such prescription exists. In every system of municipal law a definite fixed limit is assigned, and I maintain that it is essential to the very idea of prescription; otherwise every prescriptive private right would be a mere question of fact, depend- ing entirely upon the varying views of the tribunals which decide such issues. The old English doctrine of possession continuing beyond the memory of man did, in truth, assign a fixed limit, because for all practical purposes the possession must have continued always. The statute which declared that legal memory ex- tended to the reign of Richard I. did not introduce the element of definiteness, but only shortened the period. Subsequent statutes have followed in the same direction. Now a rule of the international law should be practical, able to be followed and observed ; 128 INTERNATIONAL LAW. the rule, as stated by these writers, is wholly unprac- tical, and unable to be followed or .observed. As the law itself does not assign any definite limit to the lapse of time, who is to assign such limit ? The state in possession will claim that the duration of time since they acquired possession is sufficient ; the state or people claiming the original rightful dominion will deny that the lapse of time has been long enough. Who shall decide between them since the law does not ? There are no international juries or triers to put such questions of fact at rest, and the only thing that remains is an appeal to arms. Thus we find that the rule which Vattel and others invoke to quiet ti- tles, to prevent bloody wars, to preserve peace, will have no such kindly effect. The most that can be said of it is, that it will shift the immediate cause of hostilities to the contention whether the duration of possession has been long enough ; it will entirely fail to remove that cause. It seems to me a clear indis- putable proposition, that, by admitting the entire in- definiteness of the lapse of time necessary to consti- tute a prescriptive right of dominion, its advocates have admitted away the right altogether. § 113. Lastly and principally. We cannot call that a rule of the international law which no nation ever feels bound to obey whenever her interests lead to a disregard of it. There are many rules which all states observe under all circumstances, and these col- lectively may with propriety be said to constitute in- ternational law. But the rule in question is not one of these. I do not hesitate to say that not one nation in Europe or America would feel herself bound to refrain from enforcing otherwise just claims, on the sole ground that a prescriptive right to the subject of EIGHTS OF INTERNATIONAL LAW. 129 such claim had accrued in favor o| some other nation. Any person familiar with European history will assent to my statement. Not to go back to the last century, where we might instance the Seven Years' War com- menced by Frederick the Great to recover Silesia, which had for generations been a part of the Austrian dominions, we need only direct our attention to the public affairs of Europe during our own times. Indeed, instead of prescriptive rights of nations form- ing an acknowledged part of international assur- ances, the exactly opposite principle seems to be, if not generally adopted, at least allowed to exert a controlling influence. This principle is, the doctrine of nationalities, or, in other words, the idea that peo- ples united in race, in language, in common senti- ments, hopes, aspirations, — in short, in that which constitutes organic life and homogeneity, — are also entitled to be united into states and political societies. Before the force of this principle, old dynasties, gov- ernments, and territorial lines are giving way, and the map of Europe is being rearranged. To mention BO other instances, the kingdom of Italy owes its ex- istence to the effect of this idea. The time-honored duchies and inferior monarchies have been swept away, and the peoples incorporated into one body pol- itic. But this was not enough. Venetia had been under the Austrian control since the Treaty of Campo Formio in 1797. This dominion was recognized and ratified by the great treaties of 1815, so that the pos- session of Austria had continued about seventy years. But the Venetians are in race, language, attachments, and geographical situation a part of Italy. Therefore the kingdom of Italy, which has had an existence for only about ten years, and had no legal claim what- 130 IKTERNATIONAL LAW. ever to Venetia, except the strong desires of both peoples, demands the cession of the Adriatic prov- ince to herself, declares that the refusal to cede is a cause of war, commences hostilities, aided by a pow- erful coalition, adds the Venetian territory and peo- ple to her own, and all Europe not only acquiesces but applauds. The duchies of Holstein and Schles- wig had for centuries been under the sovereignty of Denmark ; but the people are asserted to be German and not Scandinavian. The Germanic Confederation demanded that they be released from the Danish su- premacy, and accoiiiplished their demand by force of arms. As we write, the overwhelming desire among the German peoples for unity, for one organic Ger- many, has, under the leadership of Prussia, abolished the old Bund, driven Austria from its German alli- ances, blotted out several independent principalities, duchies, and free cities, and effected a consolidated organization, which, doubtless, sometime will become a homogeneous state. All the world looks on with approval and sympathy at the struggles of Sclavonic Hungary to become free from its union with German Austria, although the connection has lasted a period of time amply sufficient to create a prescriptive right, if such right can be created at all. At the close of the Napoleonic wars in 1815, Europe was parcelled out in the interest of dynasties and to preserve the balance of power, but no attention was paid to pre- scriptive rights or the claims of nationalities. Europe is now being rearranged in the interest of peoples, with reference to affinities of race, language, sen- timents, but no attention is paid to prescriptive rights. § 114. It is certain that the nations of the world do EIGHTS OF INTERNATIONAL LAW. 131 not recognize prescription as conferring absolute do- minion. I go farther and say that they ought not to do so. Nations are, after all, but aggregates of in- dividuals, and it is the personal rights of the latter which form the ultimate object of international as well as of municipal law. We cannot reason always from the individual to the ' nation. Should we apply exactly the same rules to the nation which we apply to the citizen, we should often destroy, instead of con- serve, the latter's immunities and rights. Interna- tional prescription would not prevent a single war or the shedding of a single drop of blood. It would generally be invoked in the interest of power against the weak, of oppression against the oppressed ; it would obstruct the uprising of peoples to shake off an old and hated yoke ; it would sustain long enthroned dynasties against the will of their subjects ; it would perpetuate wrongs that none can speak of without indignation; it would be the constant enemy of all progress ; it never has and never can exist. DERIVATIVE ACQUISITION. § 115. This name implies, as in the private munici- pal law, a former owner, and the transfer of his do- minion to the new proprietor. In the municipal law this fact of transfer may be the result of a conscious intentional act of both parties, as a gift, sale, ex- change, marriage, testament ; or it may occur with- out the consent, or even against the wish, of the orig- inal owner, though occasioned by some condition, act, or default of his, as in the cases of intestacy, bank- ruptcy, seizure and sale, under judicial process. At present, among the nations of Europe and America, we can hardly conceive of any method by which ter- ritory can be transferred analogous to this second 132 INTERNATIONAL LAW. class. Even a war, which leaves the victorious forces in permanent possession of the soil of the conquered, is not akin to the seizure and sale under execution ; for, as we shall see, such wars are always closed by a treaty of peace between the two belligerents, and the title to the newly acquired land is based upon the ces- sions contained in this treaty, and not upon the mere fact of conquest. It may be laid down as an universal doctrine of the international law, that every sbvereign independent state may transfer or acquire territorial or other pos- sessions. I say this is a doctrine of the international law, which does not concern itself with the internal organization of countries, and the powers commit- ted to governments, or to any departments thereof. Whether, therefore, any particular nation may trans- fer its territory or acquire territory from another is a question to be answered by examining the constitu- tion of that country, the functions and capacities con- ferred upon its rulers. This belongs entirely to pub- lic and not to international law. The same is true of the subordinate inquiry. What department of a gov- ernment may effect the transfer or receive the acqui- sition ? whether the king or other executive, the legislature, or the people assenting and ratifying the acts of their governmental agents. We are not called upon to discuss this subject ; and although Vattel de- votes a large space in his treatise to its consideration, he has therein plainly departed from the legitimate scope of a writer upon international law. § 116. To illustrate these statements : Whether the United States may acquire new territory by gift, pur- chase, or cession from another country, must be de- termined by the Constitution, and the powers of the general government erected by that organic law. EIGHTS OF INTEENATIONAL LAW. 133 The Constitution itself is silent upon this particular topic ; yet the power has been exercised several times : in the purchase of Louisiana and of Florida, the an- nexation of Texas, and the cession of California and New Mexico. The people have acquiesced, although Jefferson thought it needed a constitutional amend- ment to ratify his act in acquiring Louisiana. But whether the United States may transfer any of its territory, so as to cede away its paramount dominion therein, is an entirely different question, which has never, thus far in our history, been raised or dis- cussed.^ § 117. By Grotius and the earlier writers upon public law kingdoms were divided into patrimonial or proprietary, and usufructuary. The patrimonial, as it were, belonged to the monarch as a kind of pri- vate domain which he might alienate or dispose of at will. The usufructuary included all others, in which the rulers were looked upon as the representatives of a body politic behind them, and not as themselves constituting the state. Whatever might have been true in earlier times, it is certain that there is no such patrimonial kingdom or nation at the present day in Europe, and of course not in America. The general proposition of the international law, therefore, is, that by its proper, constituted authori- ties, whatever they may be, — king, president, leg- islature, people, — a nation may alienate to, or ac- quire from, another nation, territory or other things which are the objects of property. '• It is, moreover, 1 Except, perhaps, in the North- cided, as the compromise effected eastern Boundary question, when by the Ashburton Treaty in 1842 the right of the United States to was accepted by the state authori- cede territory claimed by the State ties, — Ed. of Maine was debated, but not de- 134 INTEEKTATIONAL LAW. of the last importance to remember that a nation which allows its ruler, either in his own person or through his minister, to enter into negotiations re- specting the alienation of property with other na- tions, must be held to have consented to the act of the ruler ; unless, indeed, it can be clearly proved that the other contracting party was aware at the time that the ruler in so doing was transgressing the fundamental laws of his state." ^ § 118. In the case of transactions between a gov- ernment and its own subjects or citizens, the rule is different ; for every member of a state is supposed to know the laws of his own commonwealth, and whether its rulers are transcending their functions or not. But foreign governments are aflfected by no such presumption, and there is thus a material and universally acknowledged distinction between the doc- trines of international and of public or municipal law upon this subject. Vattel agrees with these views, and states the reasoning upon which they are founded as follows : "It is necessary that nations should be able to treat and contract validly with each other, since they would otherwise find it impossible to bring their affairs to an . issue, or to obtain the blessings of peace with any degree of certainty. Whence it fol- lows that, when a nation has ceded any part of its property to another, the cession ought to be deemed valid and irrevocable, as in fact it is, in virtue of the notion of property. This principle cannot be shaken by any fundamental law by which a nation might pretend to deprive itself of the power of alienating what belongs to it ; for this would be depriving itself of all power to form contracts with other nations, or > Phillimore, vol. i. p. 286. EIGHTS OF INTERNATIONAL LAW. 135 would be attempting to deceive them. A nation with such a law ought never to treat concerning its prop- erty ; if it is obliged to do so by necessity, or deter- mined to do so for its own advantage, the moment it broaches a treaty on the subject, it renounces its fundamental law. It is seldom disputed that an entire nation may alienate what belongs to itself ; but it is asked whether its conductor, its sovereign, has this power? The question may be determined by the fundamental laws. But if these laws say nothing on the subject, then we have recourse to our second principle, namely : 2d. If the nation has conferred the full sovereignty on its • conductor ; if it has in- trusted to him the care, and, without reserve, given him the right, of treating and contracting with other states, it is considered as having invested him with all the powers necessary to make a valid contract. The prince is then the organ of the nation ; what he does is considered as the act of the nation itself; and though he is not the owner of the public property, his alienations of it are valid, as being duly author- ized." 1 § 119. To apply this general principle: If the United States, through the proper officials, — the Pres- ident and the Senate, — upon whom the treaty-mak- ing power is exclusively conferred, should enter into a convention with a foreign state, by which territory was transferred or acquired, it would be a clear viola- tion of international law for our government ever to urge, as against the other contracting party, that it was not authorized, or was forbidden by the Con- stitution, to sanction such a treaty. Nor would any foreign prize court or other international tribunal it- » Vattel, Law of Nations, bk. i. ch. xxi. § 262. 136 INTEEKATIONAL LAW. self inquire into, or allow to be questioned before it, the legality of such act of transfer, in the hearing and decision of cases which might involve the na- tionality of the territory thus alienated. On the other hand, it may very well be that our government might set up its inability to cede the soil, and the in- validity of its act, as against its own citizens and subjects who were endeavoring to enforce rights as- sumed to flow from such treaty. From this principle, thus stated and illustrated, we may see that the re- pudiation by some of our States of their public debt held by foreigners, on the ground that such debt was unconstitutional, though not exactly analogous to the case I have just supposed, was prevented by only a shadowy line of separation, if at all, from being a direct infraction of international law. § 120. Intimately connected with this subject, and in fact a branch of it, is the question, what effect shall be given to the cessions and acquisitions made by de facto governments, in contradistinction from those de jure. The case would arise under the fol- lowing circumstances : A country is invaded and con- quered by the forces of a foreign nation ; the rightful government is overthrown, and either a new one es- tablished, or the administration of affairs is directly seized by the conquerors. In the process of time these intruders are expelled ; the old and legitimate government is restored : to what extent is it bound by the public acts of its immedia-te but illegal pre- decessor ? I cannot now discuss this most important and difficult question in all its bearings. It forms a part of what is called jus postliminii, or the right of postliminium, which will find its natural place in connection with the rules of war. It is sufl&cient EIGHTS OF INTERNATIONAL LAW. 137 now to state the general rule : " That when foreign governments or their subjects obtain from the de facto government of a country, by treaty or otherwise, a part of the national domain, if the sovereign dejure be restored he cannot annul this contract or cession. Whatever power he may possess to annul alienations made to his own subjects, the acts of the de facto government, though it were that of an usurper, are binding upon him as to all international transac- tions," -^ Thus if, during the period while Maximilian holds the position of supreme ruler of Mexico, under the title of emperor, he should cede to the United States a portion of the Mexican territory, and after- wards the legitimate republican government should be reestablished, the latter would, without doubt, be bound by the act of cession, and would have no right, under the doctrines of the international law, to re- claim the alienated soil. § 121. We are now prepared to examine the dif- ferent methods by which territory, with the rights of dominion over it, may be transferred and acquired by nations. And, first, I will briefly allude to certain modes which were formerly not uncommon among European states, but which, peculiar to, and having place only in, patrimonial kingdoms, have now be- come entirely disused. They all resulted from the mere act or condition of the personal hereditary sov- ereign to whom the territory belonged as a kind of private, patrimonial property. These methods are marriage, succession by intestacy, and disposition by last will and testament. (1.) Marriage. Territory has been acquired by marriage, where the wife of a sovereign was herself 1 Phillimore, vol. i. p. 288. 138 INTERNATIONAL LAW. supreme ruler over certain countries or districts, which she brought to her husband as her portion or dowry, and added to his dominions. There are numer- ous examples of this mode of acquisition to be found in European history. The wife of Charles II. of Eng- land brought Bombay as an addition to the British possessions. But it very often happens that the mar- riage of two sovereigns does not cause any permanent annexation of territory, but creates, at most, only a personal union of two independent states under one monarch ; or more generally effects no administrative union whatever. Thus the marriage of Philip of Spain with Mary of England left the two nations en- tirely separate, each under its own legitimate ruler. The marriage of William of Orange and Mary of England did not merge the Low Countries in the Brit- ish dominions ; nor were France and Scotland at all united by the marriage of Francis II. with Queen Mary. (2.) Succession in Case of Intestacy. Of course there can be no such thing as heirs or next of kin to nations ; but it sometimes happens that the hered- itary king or emperor of one state succeeds by reg- .ular descent to the crown of another, and that the domains thus inherited are incorporated with those already held by him. This result, however, does not necessarily follow, nor would it, in all probability, ever occur at this day in Europe. The concurrence of two such rights in one person generally gives rise merely to a personal union, instead of a real one, as already described. The example before given of the elector of Hanover becoming king of England illus- trates this result. (3.) Testamentary Disposition. There have been EIGHTS OF INTEENATIONAL LAW. 139 instances in the history of Europe of monarchs dis- posing of their states and rights of dominion by last will and testament. This could not happen at the present day, since the public law and public policy, even in the old world, regard the ruler as rather the representative than the proprietor of the body politic. § 122. The second general class of modes of trans- fer and acquisition includes those in use under the present condition of public and international law, which demand the will or consent of the nation, shown through their constituted authorities, acting within the scope of their administrative functions. They are all finally effected through treaties between the high contracting powers, and are strictly analo- gous to the methods of transfer known to the private municipal law. In this class are included gift, ex- change, and cession. (1.) Gift. Gifts of territory were not uncommon in earlier times, but are hardly to be expected in our own day. (2.) Exchange. Exchanges have been frequent during the whole period of modern history ; and the great treaties of 1814-15, made on the final pacifica- tion of Europe after the downfall of Napoleon, pro- vided for numerous interchanges and compensations among the family of states. (3.) Cession. This is the most frequent and by far the most important mode of transfer and acquisition. Cessions are often, and perhaps generally, the result of conquest, by which the victorious state has wrested a portion of the territory from the unsuccessful bel- ligerent, which conquest is confirmed and ratified by treaty between the two powers, the one yielding and transferring, the other demanding and acquiring, the 140 INTERNATIONAL LAW. soil and dominion in question. Recent instances of these cessions will readily present themselves to your minds. The Treaty of Guadaloupe Hidalgo, con- cluded between Mexico and the United States, con- firmed the conquest and ceded the property and do- minion of California to our own country. That of Villa Franca established the acquisition of Lombardy by the Sardinian kingdom. The one just entered into by Prussia, Austria, and some minor German states, conveys to Prussia all rights held by Austria over the duchies of Holstein and Schleswig, a por- tion of the Hessian duchies, Hanover, a part of Ba- varia, and some further districts and peoples. The rights and duties which flow to the belligerents from war and conquest will be fully treated of in a subse- quent portion of this course of lectures. But cessions are often made in time of peace, for a pecuniary consideration, and are transactions between nations similar to sales between private individuals. The question has arisen whether the proprietorship and national dominion pass by the mere conclusion and ratification of the treaty of cession, so that the property and inhabitants in the ceded districts lose their old nationality and become impressed with the nationality of the purchasing state ; or whether, in addition to the execution of the treaty, it requires some formal act of delivery, some tradition of the ter- ritory, in order to change the national status of these inhabitants and their property. This important ques- tion was directly presented to Lord Stowell for his decision, and the case is instructive as showing how those high doctrines of the international law are in- volved in the litigations which are brought before the prize courts as their proper forum. The case was EIGHTS OF INTERNATIONAL LAW. 141 that of The Faraa, 5 C. Eobinson, 107. The vessel, seized by a British man-of-war, was owned at New Orleans, and sailed thence on the 5th of April, 1803. England was at peace with Spain but at war with France. The captors urged that Louisiana was a French dependency ; the owner of the captured ship contended that Louisiana was Spanish. Under the former alternative the vessel would have been ene- my's property, and confiscable; under the latter, neutral property and free. It appeared that in 1800 Spain had, by the Treaty of St. Ildefonso properly executed and ratified, ceded the territory of Louisiana to France, but had, at the time of the capture in ques- tion, made no formal delivery of the soil or dominion, nor had the French as yet exercised any of the func- tions of government therein. Lord Stowell decided that the transfer was incomplete ; the inhabitants re- mained Spanish in their national and international relations; and their property was still impressed with a Spanish character. The ship was therefore restored to its owner. I have already quoted from his opinion the general principles upon which Lord Stowell proceeded in arriving at his judgment, and he added many historical illustrations to show that the uniform practice of nations had been in accord- ance with those rules. § 123. To us the most interesting examples of ces- sion are those through which Louisiana and Florida were acquired by the United States. Spain, being the sovereign of Louisiana, by the secret Treaty of Ildefonso, October 1, 1800, engaged to transfer the territory to France six months after the performance of certain acts in reference to Spanish claims in Italy. This convention gave great alarm to Britain and to the 142 INTERNATIONAL LAW. United States ; each determined to oppose its con- summation. Bonaparte, then first consul, made over- tures of sale to the United States, the result of which was a treaty executed at Paris in 1803, by which the French Republic ceded the whole province to the United States. This treaty contains the following provisions : Article I. recites the former transfer from Spain by the Treaty of St. Udefonso, and pro- ceeds : " And whereas, in pursuance of the treaty, the French Republic has an incontestable title to the domain and to the possession of the said territory : the first consul of the French Republic, desiring to give to the United States a strong proof of his friend- ship, doth hereby cede to the United States, in the :^ame of the French Republic, forever and in full sov- ereignty, the said territory, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French Republic." Article II. describes what is contained in the cession. Article III. provides that the inhabitants shall be in- corporated into the Union, and shall, as soon as pos- sible, be admitted as a State, etc. Article IV. stipu- lates that a French agent shall be sent to receive the tradition of the said territory from the Spanish offi- cials, and deliver it over to a corresponding agent of the United States. Article V. provides for the time in which military posts shall be surrendered. By Ar- ticle VI. the United States engages to fulfil the trea- ties made by the Spanish with the Indians. Article VII. contains some special privileges in favor of French and Spanish ships navigating the Mississippi, which privileges were to last twelve years. By an- other convention, signed simultaneously with this, the United States engaged to pay to the French govern- EIGHTS OP INTEENATIONAL LAW. 143 ment the sum of sixty million francs, and to assume certain debts owing by the French to American citi- zens.^ It will be noticed that this cession was made before the French had actually taken possession of Louisiana. Florida was ceded to the United States by Spain, by Treaty of "Washington of February 22, 1819.^ ACQUISITION OF EIGHTS. (jUEA.) § 124. In addition to territory, nations may acquire, transfer, create, and become subjected to rights of prop- erty over things which are not territorial, and rights in the territory which are less in extent and nature than property or absolute dominion. These various rights, whether held by, or imposed upon, a state, are always derived from express conventions or treaties. As examples of the first class of rights, we may mention a public debt owed by one nation to another; a public debt guaranteed by a nation ; the hypothe- cation of the whole or some particular species of rev- enues for the security and payment of a public debt, as Mexico has, at present, mortgaged a part of the income arising from the import duties to France, as a security for advances and other claims. Occasion- ally definite districts of the national soil have been thus hypothecated. As illustrations of the second class of rights, less in extent than absolute propertj', may be mentioned those relating both to persons and places, which re- semble the servitudes of the Roman law. A servi- tude was defined to be a jus in re aliena, a right in the thing of another, and might require that other to refrain from doing some particular act or class of acts 1 1 Elliot's Diplomatic Code, p. 109. « Ibid. p. 415. 144 INTERNATIONAL LAW. (servitus in non faciendo), or to permit some partic- ular act or class of acts to be done by the holder of the right (servitus in patiendo). States may, by ex- press treaty, subject themselves to both of these spe- cies of servitude. Thus France engaged by treaty not to permit the Stuart Pretender to the British crown to reside within her territory. By the Treaty of Utrecht the port and fortifications of Dunkirk were to be destroyed by the French government, and Eng- lish and Dutch commissioners were to oversee the work of demolition. Other illustrations might easily be given. CHAPTER IV. THE SOVEREIGNTY OF A STATE OVER ITS INLAND AND COAST WATERS. — THE STATE IN ITS RELATION TO COMMERCE. § 125. Having thus ascertained the means of ac- quiring and transferring national dominion, we are next to inquire into the nature and extent of that do- minion ; to what and how far it applies ; the kind and degree of the user which it permits ; whether that user be exclusive or be shared in common by other peoples and nations. The dominion of a state over all the things which fall under its sway may be considered from two points of view : (1) as it affects the inhabitants and subjects who have rights of private property; and (2) as it affects foreign peoples and nations. § 126. (1.) In relation to its own inhabitants, to all persons holding rights of private property within its limits, while the state is looked upon as the ulti- mate source of all ownership, and to which that own- ership may revert under certain circumstances, still its dominion is not absolute. By the publicists it is termed " dominium eminens," — eminent domain, — and consists in the right to take and use the soil and other things for public purposes, although such soil or thing may have been already appropriated by a pri- vate owner. How and when such soil or other thing 10 146 INTEENATIONAL LAW. may be taken will be regulated by the municipal law. In our own country both the national and state gov- ernments are forbidden by their Constitutions from taking private property for public purposes without compensation to the owner. In addition to this dominium eminens, the state as a body politic, a corporation, may, and generally does, hold portions of the land and other specific things, by a property of exactly the same kind as that pos- sessed and enjoyed by a private person in his own farm or chattel. The United States is, in this man- ner, owner of vast quantities of territory, especially at the West, which it grants or conveys to individ- uals. The crown of Great Britain is owner of large domains, which are rented or used as are the estates of an ordinary landed proprietor. This does not mean that Queen Victoria or any other monarch, in his or her individual right, is the owner, but that the nation, as symbolized by the crown, is the proprietor. The reigning king may enjoy the revenues during his lifetime ; but it is understood that they are under the control of Parliament, to be used for state purposes. But all this belongs, not to international but to public law. § 127. (2.) As it affects other peoples and coun- tries, the dominion of a nation over its soil, and other things within its boundaries, is absolute and exclu- sive. How far foreigners shall be allowed to partici- pate in the use and enjoyment of this territory, or these other things, will be determined by the gov- ernment of each nation upon such considerations of comity and policy as it shall yield to and adopt. It is plain that "no individual proprietor can alienate his possessions from the ' state to which they belong, STATE SOVEEEIGirrT. 147 and confer the property in, or the sovereignty over them to another country." ^ § 128. But little difficulty can arise respecting the national dominion over, and use of the land. But territory includes water as well as land ; and it is in relation to waters that the questions and perplexities have existed, requiring negotiations, treaties, and not unfrequently wars, for their solution and removal. I shall, therefore, consider the extent and nature of national dominion over (I.) rivers and lakes; (II.) straits; (HI.) enclosed seas; (IV.) portions of the sea ; (V.) the open ocean. § 129. I. Rivers and Lakes. (1.) Those wholly within the boundaries of a single nation. In respect to lakes and rivers thus situated, en- tirely surrounded by, or arising, flowing continuously, and emptying within the soil of a particular state, there never has been nor can there be any difficulty. The dominion is exclusive and absolute. No other country as a political society, nor the inhabitants of any other country as individuals, have a right, as against the proprietor state, to navigate those waters for commercial purposes, to carry on fisheries therein, or to appropriate them to any other use with the ob- ject of gain or advantage. How far this dominant nation may relax the severity of its own legal claims, and permit cooperation and enjoyment by other peo- ples, will be for itself to judge, as it shall be im- pelled by motives of reciprocity or general expedi- ency. Such permission has been not unfrequently given, and when this is done it must be by treaty. As an illustration, it will be remembered that upon the cession of Louisiana to the United States in 1803, ' Phillimore, vol. i. p. 166. 148 INTEENATIONAL LAW. it was stipulated that French and Spanish ships might freely -navigate the Mississippi for a period of twelve years. No foreign vessel can voyage upon the Hud- son, or upon Lake Michigan. By the Koman law the shores of navigable rivers, as well as of the ocean, could not be the subjects of private property ; they were said to be res publicce, free for all who navigated the river to moor their vessels, and lade or unlade their cargoes. But this did not mean that they were res communes, — that is, open for the use of the whole world. In fact, they belonged to the state, held, as it were, in trust for its own inhabitants, and for all others whom the laws permitted to navigate the watercourse. § 130. (2.) Rivers and lakes which form the boun- dary line between two conterminous states. As we have already seen in a former lecture, in the absence of all special treaty or convention be- tween the nations, or of any other different arrange- ment, the middle line {filum aquce) is the territorial boundary, and the stream or lake is navigable by ves- sels of both peoples. This common ability to navi- gate cannot be allowed to interfere with the mimi- cipal law of either state regulating its own coasting trade. In the United States that trade is confined exclusively to American bottoms ; and a British steamer could no more sail from one American port directly to another on the south shore of Lakes Ontario, Erie, or Superior, because those bodies of water are navigable by the vessels of both countries, than could a British steamer sail from New York di- rectly to New Orleans, because the ocean is common to all. It may, however, happen that, although the river STATE SOVEREIGNTY. 149 or lake flows or lies between two nations, the whole of the water is within the territory of one of them, the boundary, line running along the low or high- water mark upon the opposite shore. To establish such an exclusive dominion would require clear and strong evidence, contained in treaties, or immemorial claim and usage. On this subject Lord Stowell states the rules with great fulness and precision in the case of the Twee Gebroeder, reported in 3 C. Eobinson, 336. England was then at war with Holland, but at peace with Prussia. The case arose upon the capture of vessels in the Groningen Watt, on the suggestion that they were bound for Amsterdam, then under blockade. The Prussian government interposed, and asserted that the water was within its own territory, and that the capture was, therefore, invalid. To un- derstand the decision of the question of fact would require a close examination of maps and charts ; nor is this important to us. The court determined that the Prussian claim was unfounded. In the course of his very elaborate and learned opinion. Lord Stowell laid down the general rules which I quote. He says : " It is scarcely necessary to observe that a claim of territory is of a most sacred nature. In ordinary cases where the place of capture is admitted, it proves itself ; the facts happen within acknowledged and no- torious limits ; no inquiry is either required or per- mitted. But otherwise, when it happens in places which the neutral country does not possess by any general principle or by any acknowledged right. . . . Strictly speaking, the nature of the claim brought forward on this occasion is against the general incli- nation of the law, for it is a claim of private and ex- clusive property, on a subject where a general or at 150 INTERNATIONAL LAW. least a common use is to be presumed. It is a claim which can only arise on portions of the sea, or on rivers flowing through different states. The law of rivers flowing entirely through the provinces of one state is perfectly clear. In the sea, out of the reach of cannon shot, universal use is presumed. In rivers flowing through conterminous states, a common use to the different states is presumed. Yet, in both of these, there may by legal possibility exist a peculiar property, excluding the universal or the common use. Portions of the sea are prescribed for ; so are rivers flowing through contiguous states ; the banks on one side may have been first settled, by which the possession and property may have been acquired, or cessions may have taken place upon conquests, or other events. But the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established on the part of those claiming under it, in the same manner as all other legal demands are to be substantiated, by clear and competent evidence. The usual manner of establish- ing such a claim is, either by the expi'ess recorded acknowledgment of the conterminous states, or by an ancient exercise of executive jurisdiction, founded presumptively on an admission of prior settlement, or of subsequent cession. One hardly sees a third species of evidence, unless it be what this case pro- fesses to exhibit, the decision of some common supe- rior in the case of a contested river. The sea admits of no common sovereign, but it may happen that con- terminous states through which a river flows, may acknowledge a common paramount sovereign, who, in virtue of his political relation to them, may be qualified to appropriate exclusively and authorita- STATE SOVEREIGNTY. 151 tively the rights of territory over such a river to one or other of them." * § 131. (3.) Kivers flowing partly through the ter- ritory of one state, and partly through that of an- other. The case of a river flowing successively through two or more states — or, in other words, having its mouth and lower waters entirely within one juris- diction, while its upper waters border upon or pass through the territory of another or others — presents a question concerning which there has been some dif- ference of opinion among text-writers, and much diplomatic negotiation and sharp controversy among governments. This question is as follows : Have the citizens or inhabitants of the state which abuts upon the upper waters of the stream, or through which they pass, the right under the international law to navigate that stream through its entire course to the sea, and thus to use a passage through the territory of the nations situated lower upon it, or which con- tains its mouth ? Grotius answered this question in the affirmative, and declared the right to exist. The important reason which he gave for this opinion was, that the use of rivers belonged to a class of things utilitatis innoxice, the value of the streams being in no way whatever diminished to the proprietor by this innocent use of them by others, inasmuch as the use of them is inexhaustible. Vattel, after describing things of which the use is innocent, and defining with some minuteness wherein that innocent use consists, speaks of the right of navigation in the case under consideration as an imperfect right, subject to the convenience and will of the nation through whose 1 Pp. 338, 339, 340. 152 INTERNATIONAL LAW. domains the river flows.^ Wheaton is of the same opinion. He says : " The same principle is applicable to rivers flowing from one state through the territory of another into the sea, or into the territory of a third state. The right of navigation for commercial purposes of a river which flows through the territory of different states is common to all the nations in- habiting the different parts of its banks ; but this right of innocent passage being what the text-writ- ers call an imperfect right, its exercise is necessarily modified by the safety and convenience of the state affected by it, and can only be effectually secured by mutual convention regulating the mode of its ex- ercise." ^ § 132. It is probable that Vattel and Wheaton mean the same thing, and intend to lay down the rule in accordance with the practice of nations ; but they certainly use very inappropriate language. There can be no such thing as a right which the possessor thereof is not entitled to exercise except at the con- venience of the party to be affected by it. We may call it imperfect ; but this does not help the matter, it is not a right. Indeed all that general writers and theorists upon public or municipal law have said, about perfect and imperfect rights and obligations, has only served to perplex a subject naturally simple and clear. Imperfect rights and obligations are those which God's moral law may create and enforce, but which human governments do not include with the number of their positive rules. Thus a child owes gratitude to his parent, — the obligation is distinctly recognized by the divine law; but when we come 1 Vattel, Law of Nations, bk. il. ch. ix. §§ 126, 127, 128, 129. 8 Wheaton's Elements, p. 253. STATE SOVEREIGNTY. 153 to Speak of the demands of the municipal law it is simply absurd to call the father's claim a right, how- ever imperfect. Rights given by positive human jurisprudence, as well as those given by positive hu- man morality, vary in extent ; they are more or less qualified; one is absolute, another limited; but all are, within their sphere, perfect. If the nation which possesses the lower part of a river may, upon mere allegations of its own safety and convenience, debar the people residing higher up the stream from the free navigation, it is a contradiction of terms to speak of the rigid of these latter to navigate. In truth, what these writers mean — and this is the correct rule — is, that whether the lower state shall permit the free navigation is a matter depend- ing entirely upon comity. A refusal may be un- gracious and harsh, an act demanding retaliation of some sort, but is not an illegal act, is not a breach of international law. The rule which may now be deemed settled by the practice of nations is, that the people residing upon the upper waters of a river have no international right to navigate the same through the territories of another state ; that it requires the special agreements of a treaty between the two governments to create, establish, and regulate such a right. Treaties con- taining stipulations of this nature have been made, and most of the great rivers of Europe are within the operation of such conventions. § 133. During our own history two very interest- ing diplomatic controversies have arisen in which all the reasons for and against this rule were exhausted. In both cases our government maintained the right of navigation. One of these disputes was between 154 INTERNATIONAL LAW. the United States and Spain ia reference to the free navigation of the Mississippi ; the other with Great Britain, relating to the free navigation of the St. Lawrence. Mr. Wheaton has abstracted and con- densed the arguments advanced on the part of both governments by their respective representatives, in his History of the Law of Nations. As these negoti- ations involved all of the principles I am illustrating, I shall not hesitate to quote in full from' Mr. Whea- ton's work. Spain, having through several treaties become possessed of Louisiana and the Floridas, held the mouth and lower waters of the Mississippi ; while the United States bordered upon that river, or included its waters, from the northern line of the Floridas to its source. Spain claimed the right to prevent the access of American vessels to the Gulf of Mexico, at least without the imposition of duties and tolls. The United States advocated the free and unrestricted navigation. " The right of the United States to participate with Spain in the navigation of the Mississippi, previously to the cession of Louisiana, was rested by the Ameri- can government upon the sentiment written in deep characters on the heart of man, that the ocean is free to all men, and its rivers to all riparian inhabitants. This natural right was found to be acknowledged and protected in all tracts of country united under the same political society, by laying the navigable rivers open to all the inhabitants of their banks. When these rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream be in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the STATE SOVEKEIGNTT. 155 judgment of mankind. The then recent case of the attempt of the Emperor Joseph II. to open the navi- gation of the Scheldt from Antwerp to the sea, was considered as a striking proof of the general union of sentiment on this point, as it was believed that Am- sterdam had scarcely an advocate out of Holland, and even there her pretensions were advocated on the ground of treaties, and not of natural right. This sentiment of right in favor of the upper inhabitants must become stronger in the proportion which their extent of territory bears to the lower. The United States held 600,000 square miles of habitable terri- tory on the Mississippi and its branches, and this river with its branches afforded many thousands of miles of navigable waters penetrating this territory in all its parts. The inhabitable territory of Spain below their boundary, and bordering on the river, which alone could pretend any fear of being incommoded by their use of the river, was not the thousandth part of that extent. This vast portion of the terri- tory of the United States had no other outlet for its productions, and these productions were of the bulk- iest kind. And, in truth, their passage down the river might not only be innocent, as to the Spanish subjects on the river, but would not fail to enrich them far beyond their actual condition. The real in- terests, then, of all the inhabitants, upper and lower, concurred in fact with their respective rights. If the appeal was to the law of nature and nations, as ex- pressed by writers on the subject, it was agreed by them, that even if the river, where it passes between Florida and Louisiana, were the exclusive right of Spain, still an innocent passage along it was a natural right in those inhabiting its borders above. It would 156 INTEENATIONAL LAW. indeed be what those writers call an imperfect right, because the modification of its exercise depends, in a considerable degree, on the conveniency of the nation through which they were to pass. But it was still a right as real as any other right however well defined ; and were it to be refused, or so shackled by regula- tions not necessary for the peace and safety of the inhabitants as to render its use impracticable to us, it would then be an injury, of which we should be entitled to demand redress. The right of the upper inhabitants to use this navigation was the counterpart of that of those possessing the shores below, and founded in the same natural relations of the soil and water. And the line at which their respective rights met was to be advanced or withdrawn, so as to equal- ize the inconvenience to each party from the exercise of the right by the other. This estimate was to be fairly made with a mutual disposition to make equal sacrifices, aAd the numbers on each side ought to have their due weight in the estimate. Spain held so very small a tract of habitable land on either side below the American boundary, that it might in fact be con- sidered as a strait in the sea ; for though it was eighty leagues from that boundary to the mouth of the river, yet it was only here and there in spots and slips that the land rises above the level of the water in times of inundation. There were then, and ever must be, so few inhabitants on her part of the river, that the freest use of its navigation might be admitted without their annoyance." ^ Whether convinced by the legal reasoning, or by considerations of commercial advantage, the Spanish government yielded to these representations, and, by 1 Wheaton, Hist, of Law of Nations, pp. 508-510. STATE SOVEEEIGNTT. 157 the Treaty San Lorenzo El Real in 1795, agreed that the navigation of the Mississippi in its whole breadth and length should be free to the citizens of the United States; and that the latter should be permitted to deposit their goods at the port of New Orleans, and export them from thence, without paying any other duty than the hire of the warehouses.^ ' The subsequent cessions of Louisiana and Florida to the United States placed the whole of this river within our territory. § 134. The diplomatic controversy in respect to the St. Lawrence, which arose in 1826, did not terminate so successfully for our government. " On the part of the United States the right was rested on the same ground of natural law and ob- vious necessity which had formerly been urged with respect to the river Mississippi. . . . The principle on which the free navigation was maintained by the United States had recently received an unequivocal confirmation in the solemn acts of the principal states of Europe. In the treaties concluded at the Congress of Vienna it had been stipulated th.at the navigation of numerous important rivers specified should be free to all nations. These stipulations, to which Great Britain was a party, might be considered as an indica- tion of the present judgment of Europe upon the gen- eral question. The importance of the present claim might be estimated by the fact that the inhabitants of at least eight States of the American Union, besides the Territory of Michigan, had an immediate interest in it, besides the prospective interests of other parts connected with this river and the inland seas through which it communicates with the ocean. The right of 1 See Elliott's Diploniatic Code. 158 INTEEKATIOKAL LAW. this great and growing population to the use of this, its only natural outlet to the ocean, was supported by the same principles and authorities which had been urged by Mr. Jefferson in the negotiation with Spain respecting the navigation of the Mississippi. The claim of the United States to the free navigation of the river St. Lawrence was of the same nature with that of Great Britain to the navigation of the Missis- sippi, as recognized by the Treaty of Paris, 1763, when the mouth and lower shores of that river were held by another power. The claim, whUst necessary to the United States, was not injurious to Great Brit- ain, nor could it violate any of her just rights. " On the part of the British government, the claim was considered as involving the question whether a perfect right to the free navigation of the St. Law- rence could be maintained according to the principles and practice of the law of nations. The liberty of passage to be enjoyed by one nation through the do- minions of another was treated by the most eminent writers on public law as a qualified, occasional excep- tion to the paramount rights of property. They made a distinction between the right of passage by a river flowing from the possessions of one nation through those of another to the ocean, and the same right to be enjoyed by means of any highway, whether of land or water, generally accessible to the inhabi- tants of the earth. The right of passage, then, must hold good for other purposes besides those of trade, for objects of war as well as for objects of peace, — for all nations, no less than for any nation in particu- lar, and be attached to artificial as well as to natural highways. The principle could not, therefore, be in- sisted on by the American government, unless it was STATE SOVEREIGNTY. 159 prepared to apply the same principle by way of reci- procity, in favor of British subjects, to the navigation of the Mississippi and the Hudson, access to which from Canada might be obtained by a few miles of land carriage, or by the artificial communications created by the canals of New York and Ohio. Hence the necessity which had been felt by the writers on public law of controlling the operation of a principle so extensive and dangerous, by restricting the right of transit to purposes of innocent utility, to be exclu- sively determined by the local sovereign. Hence the right in question is termed by them an imperfect right. But there was nothing in these writers or in the stipulations of the treaties of Vienna respecting the navigation of the great rivers of Germany, to countenance the American doctrine of an absolute natural right. These stipulations were the result of mutual consent, founded on considerations of mutual interest growing out of the relative situation of the different states concerned in this navigation. § 135. " To this argument it was replied, on the part of the United States, that if the St. Lawrence were regarded as a strait connecting navigable seas, as it ought probably to be, there would be less con- troversy. The principle on which the right to navi- gate straits depends is, that they are accessorial to those seas which they unite, and whose right of navi- gating is not exclusive but common to all nations; the right to navigate the seas drawing alter it that of passing the straits. The United States and Great Britain have between them the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. The right of navigating both the lakes and the ocean includes that of passing from 160 INTERNATIONAL LAW. one to the other through the natural link. Was it then reasonable or just that one of the two co-propri- etors of the lakes should altogether exclude his as- sociate from the use of a common bounty of nature, necessary to the full enjoyment of them ? The dis- tinction between the right of passage claimed by one nation through the territories of another on land and that on water, though not always clearly marked by the writers on public law, has a manifest existence in the nature of things. In the former case the pas- sage can hardly ever take place, especially if it be of numerous bodies, without some detriment or incon- venience to the state whose territory is traversed. But in the case of a passage on water, no such in- jury is sustained. The American government did not mean to contend for any principle, the benefit of which, in analogous circumstances, it would deny to Great Britain. If, therefore, in the further progress of discovery, a connection should be developed be- tween the river Mississippi and Upper Canada, similar to that which exists between the United States and the St. Lawrence, the American government would be always ready to apply, in respect to the Missis- sippi, the same principles which it contended for in respect to the St. Lawrence. But the case of rivers which rise and debouche altogether within the limits of the same nation ought not to be confounded with those which, having their sources and navigable por- tions of their streams in states above, finally discharge themselves within the limits of other states below. In the former case, the question of opening the naviga- tion to other nations depended upon the same consid- erations which might regulate other commercial inter- course with foreign states, and was to be exclusively STATE SOVEREIGNTY. 161 determined by the local sovereign. But in respect to the latter, the free navigation of the river was a nat- ural right in the upper inhabitants, of which they could not be entirely deprived by the arbitrary ca- price of the lower state. Nor was the fact of subject- ing the use of this right to treaty regulations, as was proposed at Vienna to be done in respect to the nav- igation of the European rivers, sufficient to prove that the origin of the right was conventional and not natural. It often happened to be highly convenient, if not sometimes indispensable, to avoid controversies by prescribing certain rules for the enjoyment of a natural right. The law of nature, though sufficiently intelligible in its great outlines and general purposes, does not always reach every minute detail which is called for by the complicated wants and varieties of modern navigation and commerce. Hence the right of navigating the ocean itself in many instances, prin- cipally incident to a state of war, is subjected, by innumerable treaties, to various regulations. These regulations, the transactions at Vienna, and other analogous stipulations, should be regarded only as the spontaneous homage of man to the great Law- giver of the universe, by delivering His great works from the artificial shackles and selfish contrivances to which they have been arbitrarily and unjustly sub- jected." ^ § 136. Of this most interesting and able corre- spondence, and the decision of the British cabinet, Dr. Phillimore remarks : " It seems difficult to deny that Great Britain may ground her refusal upon strict law ; but it is, at least, equally difficult to deny, first, that in so doing she exercises harshly an ex- 1 Wheaton's History of the Law of Nations, pp. 512-517. 11 162 INTERNATIONAL LAW. treme and hard law ; secondly, that her conduct with respect to the navigation of the St. Lawrence is in glaring and discreditable inconsistency with her con- duct with respect to the navigation of the Mississippi. On the ground that she possessed a small tract of do- main in which the Mississippi took its rise, she in- sisted on her right to navigate the entire volume of its waters; on the ground that she possesses both banks of the St. Lawrence where it disembogues it- self into the sea, she denies to the United States the right of navigation, though about one -half of the waters of Lakes Ontario, Erie, Huron, and Superior, and the whole of Lake Michigan, through which the river flows, are the property of the United States. An English writer upon international law cannot but express a hope that this swmmum jus, which in this case approaches to summa injuria, may be voluntarily abandoned by his country." ^ § 137. The reference, in the correspondence just quoted, to the treaties of Vienna relates to certain rules adopted by the Congress of 1815 touching the naviga- tion of European rivers. These provisions were both general and special, as applied to particular streams. I will quote the pertinent language of the treaty : — " Reglements pour la libre navigation des riviferes. Articles concernant la navigation des rivieres qui dans leur cours navigable, s^arent ou traversent dif- f^rents 6tats. " Art. I. Les Puissances dont les ^tats sont slpar^s ou traverses par une m§me riviere navigable, s'en- gagent ^ r^gler d'un commun accord tout ce qui a rapport §, sa navigation. . . . " Art. n. La navigation dans tout le cours des ri- * Fhillimore, toI. i. p. 185. STATE SOVEEEIGNTT. 163 vieres indiqu^es dans I'article pr^c^dent, du point ou chacune devient navigable jusqu'^ son embouchure, sera entierement libre, et ne pourra, sous le rapport du commerce, §tre interdite k personne, en se con- formant toutefois aux r^glements qui seront arrSt^s pour sa police d'une mani^re uniforme pour tous, et aussi favorable que possible au commerce de toutes les nations. . . . " Articles concernant la navigation du Rhin. " Art. I. La navigation dans tout le cours du Rhin, du point oil il devient navigable jusqu'sl la mer, soit en descendant, soit en remontant, sera entierement libre, etc." Similar provisions were made respecting the Neckar, the Maine, the Moselle, the Meuse, and the Scheldt. Uniform police rules and rates of duty were estab- lished.-' Similar treaty arrangements were made by Aus- tria and Russia, in respect to the Vistula, in 1815 ; in respect to the Elbe and the Weser by the states bordering on those rivers ; in respect to the Po and to the Douro. § 138. At the Congress of Paris in 1856, the treaty concluded after the Russian War between France, Great Britain, Russia, Prussia, Austria, Sardinia, and the Porte, contained the following Article : — "Art. XV. L'acte du Congres de Vienne ayant ^tabli les principes destines a regler la navigation des fleuves qui separent ou traversent plusieurs Etats, les Puissances contractantes stipulent entre elles, qu'^ I'avenir ces principes seront ggalement appliques au Danube et h ses embouchures. Elles d^darent que cetie disposition fait, disormais, partie du droit public 1 See GMUany, Manuel Diplomatique, vol. i. pp. 305-316. 164 INTEKNATIONAL LAW. de V Europe, et la prennent sous leur garantie." Spe- cial provisions were also made for guarding and im- proving the mouths of the Danube.^ The Treaty of Washington (1846), which established the northern boundary of Oregon, provided that the river Columbia should be navigable to the ocean to all persons trading with the Hudson Bay Company. In 1854 a treaty was concluded between Great Britain and the Can'adian Provinces on the one side, and the United States on the other, commonly known as the Keciprocity Treaty. Its great object was to provide for the mutual introduction of certain com- modities from Canada to the United States, or from the United States to Canada, free from duty. As an accessory to this main object it was stipulated that the St. Lawrence should be free to American, and Lake Michigan to British, subjects. Power was re- served to either contracting party to annul the treaty upon notice. This was done by the American gov- ernment in 1868, the privilege of navigating the St. Lawrence being found to be of little practical ac- count. By treaties made with several of the South Amer- ican states, most of the great rivers in South Amer- ica are open to our citizens. § 139. II. Straits. When straits connect two seas whose navigation is free to all the world, the general rule of the international law is, that the navigation of the strait is also free, even though both its shores are held by one nation, and the passage is so narrow as to be commanded from the adjacent lands ; for otherwise the free navigation of the seas would be merely nom- inal. Thus if both sides of the Straits of Gibraltar i Ghillany, vol. ii. pp. 495, 496. STATE SOVEREIGNTY. 165 were in possession of the English, and cannon shot fired from either bank would reach to the middle line, the channel would stUl be open to the ships of all countries. But several important straits, either by long-continued usage and general consent, or by the positive stipulations of treaties, are or have been under the exclusive control of the nation through or along whose territories they pass. It is thus that Wheaton lays down the rule.^ Phillimore is rather inclined to accord a right of property in such straits to the na- tion whose territorial possessions inclose them.^ Any apparent difficulty or discrepancy will vanish when we consider the various kinds and degrees of rights which a nation may exercise over such waters. If the opposite shores are held by different states, there would seem to be no claim for exclusive dominion in either. Where, then, the banks both form a portion of the soil of a single power, its claim to territorial sovereignty and property may be absolute, may as- sert complete and exclusive possession, as of an in- ternal river; or it may be qualified, asserting an ex- clusive right of fishing in the waters, or forbidding the passage of foreign vessels of war, while the in- nocent use by merchant vessels is not objected to. It can hardly be said of any such strait, even though it be so wide as not to be commanded from the shores, that the right to fish, or to traverse with armed ships, as well as with ships of commerce, is given by the general law to all peoples ; while, at the same time, it can be said of few or none, that, independent of convention, the innocent use for purposes of traffic and intercommunication is, or may be, forbidden. » Elements of Int. Law, part ii. ch. iv. §§ 9, 10. 3 Phillimore, Comm. on Int. Law, vol. i. pp. 200-205. 166 INTERNATIONAL LAW. § 140. The three important passages which lead into the Baltic Sea are called the Sound, the Great Belt, and the Little Belt, and are all within the terri- torial limits of Denmark. That country, for several centuries, has claimed and received certain tolls and duties from all merchant ships and their cargoes pass- ing through them into the Baltic. These tolls have been recognized as payable, and their amount regu- lated and fixed, by a succession of treaties with al- most every maritime power. The first establishment of an uniform rate of toll was made in 1645 by treaty between Denmark and the United Provinces. Simi- lar treaties were made with France in 1663, 1742, 1842 ; also with England at divers times. The ground for insisting upon these duties mostly relied on was the great difficulty and danger of the navigation, and the great expense which the keeping up a proper system of lights, buoys, pilots, etc., entailed. In 1848 the United States formally announced to Denmark that she would no longer submit to this claim. After much negotiation, on the 14th of March, 1857, a treaty was concluded between Denmark, Austria, Bel- gium, France, Great Britain, Hanover, Mecklenburg- Schwerin, Oldenburg, Holland, Prussia, Russia, Swe- den and Norway, the free cities of Bremen, Lubeck, and Hamburg, by which, in consideration of the payment of a fixed indemnity in money, Denmark forever renounced all claim to these tolls. A sim- ilar treaty was concluded between Denmark and the United States on the 11th of April, 1857 ; the latter country paying a consideration of 717,829 rix-dollars.'' § 141. It has been the policy of the Great Powers of Europe to make the Ottoman Porte the mistress of 1 Ortolan, Diplomatie de la Mer, 4th ed. (1864), vol. i. p. 149. STATE SOVEREIGNTY. 167 the Dardanelles and the Bosphorus. Several treaties have recognized this sole supremacy, and finally, by the Treaty of Paris of 1856, already cited, the doc- trine was reaffirmed, and the particular stipulation entered into that these straits should be closed to the men-of-war of all foreign powers, but together with the Black Sea they should be free to the commerce of the world, under proper regulations. § 142. It will be proper to add the views of some of the latest and most authoritative writers of the European continent. De Martens says:^ "The following are generally recognized as free : The Straits of Gibraltar beyond the range of a cannon ; the Spanish Sea ; the North Sea ; the White Sea ; the Mediterranean. The exclu- sive right is not contested (1) of Great Britain over St. George's Channel ; (2) of Denmark to the Great and Little Belt and the Sound; (3) of the Turks to the Sea of Marmora and the straits which lead to the Black Sea ; (4) of Naples, since 1815, to the Straits of Messina ; (5) of Holland to the Zuyderzee." In the notes of MM. Pinheiro-Ferreira and Ch. Verg^ upon this passage, contained in the last edition (vol. i. p. 147), it is stated : " Among the gulfs and straits which are considered as pertaining to the terri- torial waters placed under the laws and surveillance of the bordering state may be mentioned the GuK of Azof and ithe Sea of Marmora ; the Zuyderzee ; the gulfs of Bothnia and of Finland ; the Gulf of St. Lawrence ; a part of the Gvii of Mexico, in the measure respec- tively indicated by each of the nations whose territory is bordered by this gulf ; the head of the. Adriatic, in the regions of Venice, Trieste, etc. ; the gulfs of Na- 1 Droit des Gens Modeme, edition of 1864, p. 145. 168 INTERNATIONAL LAW. pies, Salerno, Tarentum, etc. ; the straits or channels of St. George, Messina, the Sound, the Great and Little Belt, of Constantinople, of the Dardanelles, etc. Those straits are considered as free in which a ship, passing along the centre, is beyond the range of can- non. Such are the Straits of Gibraltar, of Mozam- bique, Behring, Malacca, Davis, Bass, and even the Sound, notwithstanding the rights of navigation es- tablished formerly for the benefit of Denmark. The liberty of the seas would be illusory if the use of straits which serve as a communication from one sea to another was interrupted." In the "Droit des Gens Moderne" of J. L. Kliiber (edition of 1861), it is laid down at § 130: "In the maritime territory of a state belong ... 3d. Straits which separate two continents, and which are, throughout, under the range of cannon placed upon the shore, or whose entrance and exit can be thus commanded." (§ 131.) " In addition, straits and seas bordering upon the continental territory of a state, which, although not entirely under cannon range, are nevertheless recognized by other powers as closed seas {mare elausum), that is to say, as subjected to a dominion. As examples may be cited the Danish Straits, Bristol, and St. George's Channel, the Irish Sea, the Dardanelles, etc." In the " Diplomatic de la Mer " of M. Ortolan, fourth edition (1864), the rule is laid down, as it seems to me, with great clearness, precision, and ac- curacy. In vol. i. p. 146 the author says : " Straits are passages communicating from one sea to another. If the use of these seas is free, the communication ought to be equally free, for otherwise the liberty of these same seas would only be a chimera. It is not STATE SOVEREIGNTY. 169 sufficient, therefore, in order that property in a strait may be attributed to a nation, mistress of its shores, to say that in fact the strait is in the power of this nation ; that it has the means to control the passage by its artillery, or by every other mode of action or defence ; in a word, that it is able to have the waters really in its possession. The material obstacle to proprietorship being removed, there always remains the moral obstacle, the essential and inviolable power of peoples to communicate with each other. But if full property and sovereign empire cannot exist over such straits, however narrow we may suppose them, certain rights, less extensive, can have place in refer- ence thereto, and be recognized by international law. Thus, if the straits are such that the vessels which navigate them are obliged by the nature of the place to pass along the shores, within cannon range and under the artillery of forts, we cannot refuse to the state which possesses these shores the right, for its own security, of regulating the navigation of these channels ; in time of peace, and, above all, in time of war, foreign forces which present themselves there must inspire just suspicions, against which it is right to take certain precautions. Again, when the navi- gation of these straits is difficult, when it can only be accomplished by the aid of practical pilots or by the means of buoys and light-houses, it is just that ships should be subjected to the payment of certain duties fixed and agreed upon by treaties. § 143. III. Enclosed Seas. Those seas entirely surrounded by land {maria clausa) belong to the sur- rounding territory or territories in as full and perfect a manner as a fresh-water lake. This rule of the general law may, of course, be modified by treaty, as 170 INTERNATIONAL LAW. in the case of the Black Sea, which, by the Treaty of Paris, 1856, was declared free, and made neutral. The same rule is applicable to seas land-locked, though not entirely surrounded by land ; although in such case the claim to dominion is not absolute, but qualified. Our own Long Island Sound is a ready il- lustration. The Baltic is regarded by the powers which border upon it as a closed sea against hostili- ties upon it by other states while the Baltic nations are at peace. Of course the doctrine of innocent use applies to such waters.^ The examples cited from Martens and Kluber will furnish further illus- trations. § 144. IV. Portions of the • Sea. The portions of seas which I now speak of are ports and roadsteads, gulfs and bays, that lie within the coast-line of de- fence, and adjacent seas. These all connect with or form a part of the open sea ; and the question to be considered is, how far are they included within the territory and subject to the dominion of a state ? § 145. (1.) Ports and Roadsteads. These are un- questionably a part of the territory, and subject to the exclusive dominion of the state to which they belong, to the same extent as the land itself. They are governed in all respects by the municipal law, and that law foreign ships and traders are bound to obey. This property and dominion include the ex- clusive right of fishery and of obtaining all other products of the sea within those waters ; the right to declare what ports shall be open to foreign and do- mestic commerce ; the right to make all rules for the government of this commerce, all police regulations, imposts, tolls, and duties for wharfage, pilotage, light- 1 Ortolan, vol. i. p. 147. STATE SOVEREIGNTY. 171 houses, marine hospitals, and the like ; the right to lay duties upon imports and exports which enter or depart from these harbors. The jurisdiction of the nation also extends over persons who may be found within the limits of the port or road, so that i£ breaches of the peace or other crimes should be committed by foreigners on* board of foreign vessels within these waters, the municipal authorities of the nation may punish the offenders. It cannot be said that a government is bound to exercise this jurisdic- tion ; it may renounce its right, and may remit the criminal to his own country, or permit the consular agent of that country to try the person and inflict the penalty. This course is followed, as we shall see hereafter, by a few nations. There is one important exception, however, to this jurisdiction over persons, recognized by the international law. As I shall show in a subsequent lecture, the public vessels of war of a state, — its navy, — are supposed by a legal fiction to be in some sort a perambulatory portion of the territory to which they belong ; and thus the persons on board these vessels are supposed to be at all times and in all places under the immediate jurisdiction of the government and municipal law of their own state. Breaches of the peace and other crimes, there- fore, committed on board these public vessels while lying at port or road, are not taken cognizance of by the local authorities. Of course, the government of a nation may for- bid the ships of a foreign power, or certain classes of them, from entering any or some of its own ports. Such act might be a gross breach of comity, and call for retaliatory measures of a similar character, but would not be an offence against international law, so 172 INTERNATIONAL LAW. as to be a just cause of war. I speak now of the general law of nations, in the absence of all particu- lar conventions. In fact, however, most of the trea- ties made between the maritime states of the world contain express stipulations which have the effect to keep ports open to their respective trading ships, and forbid any disctimination among states or ports. A breach of such a treaty would be an evident cause of war. § 146. It is not unusual for the government of a nation to place restrictions upon the freedom of entering, staying at, and departure from its ports, by the men-of-war of a people with whom it is at peace; and this is usually done — if done at all — when that people is at war with some other state, and it is intended to prevent all possibility of giv- ing aid to either of the belligerent parties. Dur- ing the late rebellion, the British government took this step with our cruisers, virtually shutting its ports against them in all cases except when the port was a necessary refuge from the perils of the sea. The United States retaliated by a similar order on its part. Of course, all hostilities between the armed ships of two belligerents, and all captures made by the public vessels or privateers of one belligje^nt of the merchant ships of another, within the ^orta or roads of a friendly power, would be violations oi interna- tional law, acts of intolerable insuVt, wcje ^'f ^ he punished by immediate reprisals or Veign ai"^^^- I have quoted no authority in support o} j.,iixr';>^' propo- sitions and principles, for the reason that they are so fundamental, so universally conceded, so generally observed in the practice of nations, no question or STATE SOVEREIGNTY. 173 doubt is ever raised as to their existence and compul- sive character. § 147. (2.) Gulfs and Bays. The same principles which govern the use of ports and roads apply in a general manner to gulfs and bays, and other arms of the sea and inlets, which extend into the land, but communicate by a mouth more or less contracted with the open sea. We may lay down as a general proposition, that the nation has not only a right of control, — political dominion, — but territorial prop- erty, over such waters. The only question of which there can be any doubt is, to what class of gulfs and bays do this property and this dominion extend ? to all, or to a portion only ? As we shall see in the fol- lowing subdivision, the international law recognizes the territorial right of a nation over the waters which wash its coasts, as far as those waters can be com- manded by artillery from the shore. Does this rule apply to those deep indentations of the coast which we call gulfs and bays ? In other words, does terri- torial right include all portions of all gulfs and bays ? or is it confined to those whose mouths are not wider than the double range of cannon, and to that portion of all others which lies within a cannon range ? The English government adopts the former of these two alternatives, and asserts its exclusive dominion over the entire waters of gulfs and bays which indent its coasts, without reference to the width of the mouths of such inlets. It claims, as we shall see, that the ter- ritorial line is not to follow the windings of the shore, but is to be measured from one extreme headland to another, as though the cannon were placed upon the point of the promontory, and thence fired into the sea ; and that all the waters within this line are its 174 INTERNATIONAL LAW. exclusive territory, although there may be some points or portions of those waters that cannot be reached by a shot projected from any position on the land. As we shall see, this claim of Great Britain, in one of its aspects, has long been, and is now, the cause of an irritating difficulty between that govern- ment and our own, which may yet lead to war. § 148. The German and French writers on interna- tional law seem to adopt the latter of the two alterna- tives, and to restrict the exclusive dominion to those gulfs and bays whose mouths are so narrow as to be commanded from the shore, and to those portions of others that can be thus commanded. De Martens says : ^ " What has been said of rivers and lakes is equally applicable to straits and gulfs, above all to those which do not exceed the ordinary width of riv- ers, or the double range of cannon. ... A nation may claim an exclusive right over those adjacent parts of the sea susceptible of being protected from the shore. At this day, all writers agree in the rule that straits, gulfs, the adjacent sea, belong to the owner of the coast, for at least as far as the range of a cannon placed upon that shore." In the note upon this passage contained in the latest edition of De Martens' treatise, it is said:'' " Finally, this mari- time dominion is not measured from every point of the coast. A fictitious line is always drawn from one promontory to another, and this is taken as the point of departure for the cannon range : this practice also applies to small bays, gulfs of a great extent being assimilated to the open seh." Kluber lays down the rule in the following manner : * "To the maritime 1 Bk. ii. ch. i. § 40. » Droit des Gens, § 180. a Vol. i. p. 143. STATE SOVEREIGNTY. 175 territory of a state belong those maritime districts and regions susceptible of an exclusive possession. In this number belong ... 2d, the parts of the ocean which extend within the continental territory of the state if they can be commanded by cannon from the two banks, or if their entrance only can be closed or defended against vessels (gulfs and bays)." Ortolan ^ is even more emphatic. He says : " We should range upon the same line as ports and roads? gulfs and bays and all indentations known by other names, when these indentations made by the lands of the same state do not exceed in breadth the double range of cannon, or when the entrance can be gov- erned by artillery, or when it is naturally defended by islands, banks, or rocks. In all these cases we can truly say that these gulfs or these bays are in the power of the nation which is mistress of the territory surrounding them. This state is in possession ; all the reasons which apply to ports and roads can be re- peated here." § 149. Over all the waters which fall within this rule the property and dominion of the state are com- plete. To it belong the fisheries, and the power to take all other products of the ocean within the limits ; all hostilities committed therein by other belligerent nations would be gross breaches of international right, all captures would be void. Still the innocent use of such waters by the ships of other countries is in strict accordance with international law ; and is always pei^ mitted, subject to such reasonable rules and regula- tions as the State in possession may establish. The bay of New York, Delaware and Chesapeake bays, are plainly within this category. The Gulf of Mexico, 1 Diplomatie de la Mer, voL i. p. 145. 176 INTERNATIONAL LAW. Hudson's Bay, and some other well known gulfs are, as it seems, plainly without it, and are parts of the open sea. § 150. (3.) That portion of the Sea within the so- called coast-line of safety. The doctrine of the inter- national law which applies to this portion of the sea has already been alluded to. It has always been con- sidered that the territorial rights of a nation whose land is'washed by the ocean are not limited by high or low-water mark ; but extend to some distance over the neighboring waters. In modern times it is settled that this dominion includes all portions within the range of a cannon which may be placed upon the shore and fired out upon the sea. The reasons and good sense of this rule are ob- vious. So far, and no farther, is a state physically able to assert its supremacy over the adjacent re- gions. All vessels, merchant or armed, within this limit, are at the mercy of the people who inhabit the land ; the possession of that people may well, there- fore, be called exclusive. The note to De Martens,* before quoted, contains a very accurate and con- densed rSsum^ of the considerations which led to the adoption of this rule, and cites as authority Haute- feuille,^ where the subject is examined at great length. From this note I select a few passages : " In the midst of these contradictory opinions, it is neces- sary, in order to fix the principles, to recur to the causes that have excepted from the general liberty of the seas those waters which wash the coasts and which fall under the dominion of the nation holding the land. These causes were, that such portions of » Vol. i. p. 143. " Droits et Devoirs des Nations Neutres, title i. p. 83. STATE SOVEREIGNTY. 177 the sea are susceptible of a continuous possession; that the people which possesses them is able to ex- clude others therefrom ; finally, that since it has an interest to maintain this exclusion, either for its se- curity, or on account of the advantages which the territorial sea procures for itself, the maritime do^ minion ought to cease at the point where the con- tinuous possession ceases, where the nation is no longer able to exercise its power, that is to say, where the reach of machines of war ceases. In other words, the greatest range of a cannon placed on the land is the limit of the territorial sea, terrcs potestas finitur ubifinitur armorum vis." It follows, then, that the range of the largest can- non should be taken as the measure ; and as the range of military projectiles has greatly increased within the last few years, the breadth of the strip of water over which territorial jurisdiction extends must be proportionably augmented. A generation ago three miles was considered as about the extreme range of artillery, and this distance was often mentioned as the limit of dominion, and has been often, in fact, in- corporated into the provisions of treaties. It is plain, however, that the fixed limit of three miles is entirely arbitrary and has no reason or good sense in its favor, unless it siibstantially accords with the space which cannon may command. This is no longer the case. Recent improvements in ordnance have been so great that five or six miles may be taken as the range by which the coast-line can be defended. § 151. In determining the outer limit of this terri- torial water-girdle which encompasses the land, the exact line of the shore is not followed; in other words, the outer and inner lines are not parallel. 12 178 INTEENATIONAL LAW. The rule stated by the annotator of De Martens, and quoted in the preceding subdivision, is unquestionably correct, namely, that the headlands are taken as the extreme boundaries of the shore, and all the rest of the land is treated as though extended out as far as these promontories. The practical utility of this rule is evident : otherwise, if the actual sinuosities of the low-water mark were strictly followed, there would be distressing questions of fact constantly arising as to the extent of jurisdiction, — questions of fact ab- solutely impossible to settle without careful measure- ment, — whereas, by taking the headland as the point of departure, this occasion of doubt is generally avoided. The difficulty of the rule is in determining to what class of promontories and headlands it ap- plies; whether only to those comparatively small, which do not break the general course and trend of the shore, or whether it extends also to those more important capes which give shape to large masses of the continent, from which the land falls off in lines of great length. The British government and English text-writers are inclined to the latter opinion; the German and French publicists are, as we have seen, emphatically in favor of the former. In England, the portions lying within such a line, from point to point, and bounded by the concave shore of the gulf, bay, or other indentation, have long been known by the technical name of " The King's Chambers." The claim of the British government, as already stated, is that its exclusive jurisdiction extends over the whole waters thus included, although the bay or gulf be so wide at its mouth that a cannon fired from one head- land could not carry a shot to the middle, and so deep that a portion of the waters could not be reached from any point on the shore. STATE SOVEREIGNTY. 179 1 152. We are next to inquire in what consists this property and dominion ? "What rights does it give over the waters thus washing the coast ? I answer, that it is never understood as conferring on the nation any right to exclude the innocent use of passage by foreign ships of commerce ; but, on the other hand, certain uses may be prohibited even to this class of vessels. Thus, the "hovering " of armed and merchant ships may be, and generally is, forbid- den ; certain acts and proceedings of trading vessels which are regarded as contrary to the revenue laws, such as transshipment of the cargo within the territo- rial limits, are always prohibited, and often subject the ship and cargo to seizure and confiscation. Again, all acts of hostilities committed by foreign nations with which the dominant state is at peace are universally treated as high-handed abuses of power, requiring instant disclaimer and apology, and, if pos- sible, restoration of a captured ship to the status quo. Thus, during the late rebellion, the captain of an United States man-of-war seized and sent home a Confederate armed vessel lying at anchor near the coast of Brazil, and within the limit of territorial ju- risdiction. The Brazilian government instantly de- manded reparation for this invasion of her rights, and restoration of the captured vessel to its former place and position. The apology was made, but the return of the steamer to the Brazilian protection was made impossible by its accidental foundering in the Ches- apeake Bay. It will be remembered that when the Kearsarge and the Alabama fought, they carefully proceeded several mUes from the coast of France, so that the contest should not only commence beyond the line, but that, in the manoeuvres of the battle. 180 INTERNATIONAL LAW. there should be no danger of trespassing upon French jurisdiction. § 153. As a corollary to the preceding rule is a similar one which forbids the armed vessel of one bel- ligerent to capture the merchant ship of the other belligerent, or of a neutral nation, within the defen- sive line. Such capture is void, and if properly taken advantage of in the prize courts of the captor, the ship must be restored to her owners. But the owners themselves cannot set up the fact in their own behalf ; they have not been injured. If they have any ground of complaint, it is against the government which has permitted its jurisdiction to be interfered with ; the state whose territory has been thus invaded must in- tervene and assert her own claim, so that reparation is, in fact, made to her and not to the belligerent or neutral owners. The case of The Anna, which was cited in a former lecture, from 5 C. Eobinson's Re- ports, page 373, sufficiently illustrates this principle. Questions have sometimes been mooted, whether, if a chase and action should begin beyond the line, and the retreating ship should seek refuge within the ter- ritorial limit, her adversary might pursue her there and complete the capture ; also, whether if the armed vessel beyond the line fires upon another lying within, or sends boats thither to make the seizure, her acts would be valid. All these questions, however, savor more of refinement than of common sense. In all such proceedings the sovereignty and territory of the adjacent state are invaded, and the reason of the rule applies with equal force to them. § 154. Finally, the riparian nation has the exclu- sive right of fishing within this belt of waters that washes her coasts. The people of no other state may STATE SOVEEEIGNTT. 181 resort thither for the purpose of taking fish or other products of the sea; unless permitted to do so by treaty or some other positive convention. It is in respect to this right that the dispute has existed so long between our own government and that of Great Britain. The very point at issue is a narrow one, and easily to be understood. Of course, American fishermen have no right to ply their busi- ness within three miles of the shores of Nova Scotia, New Brunswick, and other northern provinces, nor in the gulfs and bays which are legitimately within the exclusive jurisdiction of the British nation. Outside of that line they may fish. AU this is conceded by both parties, and the several rights were substan- tially thus stated in a treaty executed in 1818. But the coasts in question are very much indented with large, wide - mouthed bays, gulfs, and coves ; and it has been claimed by our fishermen, and their claim is supported by the government, that they may pro- ceed within such indentations of the coast, provided the headlands are more than six miles apart, and provided they keep more than three miles from the shore. The British law officers and government have steadily resisted this claim, and, as we have already seen, asserted their exclusive jurisdiction to all within the headlands, no matter how far apart they may be. It so happens that the waters within these gulfs and bays are the very best localities for fishing, so that the matter in dispute is one of great practical importance. The treaty known as the Eeciprocity Treaty removed this cause of irritation for a while, as it freely permitted our citizens to fish at any dis- tance from the shore, and within all gulfs and bays. The abrogation of this treaty in 1865 has revived the 182 INTEKNATIONAL LAW. controversy, and it is probably at the present time the subject of a diplomatic correspondence between the two governments.^ § 155. (4.) Adjacent Seas. In addition to the ter- ritorial rights over the classes of waters described in the foregoing subdivisions, there have been claims of a much more extensive character made by maritime nations to large portions of the sea outside of land, far beyond the reach of cannon. Thus in the six- teenth and to the commencement of the seventeenth century, the Portuguese assumed to interdict the navi- gation of the seas of Guinea and of the East Indies to other peoples. The Dutch wished to close the route around the Cape of Good Hope. The Spanish have often attempted to exercise exclusive jurisdiction over the Pacific. But the most remarkable and long per- sisted in of these claims was that of England to the waters around the British Islands. From the time of Elizabeth to that of Charles II., the English asserted property over all the seas which wash the coasts of Great Britain, up to the shores of neighboring states, and north, to the Pole. Under the first Hanoverian kings they only claimed a sovereignty. Queen Eliz- abeth seized some Hanseatic vessels lying at anchor off Lisbon for having passed through the sea north of Scotland without her permission. Later, however, the claim was restricted to an exclusive right of fish- ery, and of exacting the homage of salute from all foreign vessels. In support of this doctrine, Selden, one of the ablest and most learned of English jurists and statesmen, wrote an elaborate and celebrated treatise, called "Mare Clausum," in which he en- 1 The abrogation of the Treaty of Washington, in 1885, has again re- vived this old and troublesome question. — Ed. STATE SOVEEEIGNTT. 183 deavored to establish two propositions, namely: (1) that the sea might be property; and (2) that the seas which washed the shores of Great Britain were her property. This work was originally written in Latin, and the English government caused it to be trans- lated and published at their expense. The great con. tinental jurist, Grotius, the father of modern inter- national law, composed a reply which he called " Mare Liberum." Charles I. was so incensed at this work that he instructed his ambassador to complain to the States-General of the Dutch Provinces of the audac- ity of Grotius in publishing his book, and to demand that he should be punished. § 156. But all such pretensions are now abandoned. Ortolan says:^ "At this day the discussions upon the domain and empire of the seas are relegated into the pure province of history. There is no writer, there is no government, which dares, in our day, to revive these pretensions of another epoch. If those of Portugal, of Spain, of Holland, are gone with the maritime greatness which gave them birth, those of Great Britain itself have yielded before the light brought by time, before the progress of events and of ideas in all that concerns international relations." Even Dr. Phillimore, who is in some measure a supporter of English doctrines against those of con- tinental writers, treats the British claim as obsolete and unfounded, saying " that such a claim cannot be built securely upon a less foundation than the ex- press provisions of positive treaty, and can be valid only against those nations who have signed such treaty." ^ And yet Dr. Phillimore quotes with ap- parent approval the following passage from Chancel- 1 Vol, i. p. 137. » Vol. 1. p. 194. 184 INTEENATIONAL LAW. lor Kent : ^ " Considering the great extent of the line of the American coasts, we have a right to claim for fiscal and defensive regulations a liberal extension of maritime jurisdiction ; and it would not be unreason- able, as I apprehend, to assume, for domestic pur- poses 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, from Nantucket to Montauk Point, from that point to the Capes of Delaware, and from the South Cape of Flor- ida to the Mississippi. It is certain that our govern- ment would be disposed to view with some uneasiness and sensibility, in the case of war between other mar- itime powers, the use of the waters of our coast, far beyond the reach of cannon shot, as cruising ground for belligerent purposes. ... In 1806, our govern- ment thought it would not be unreasonable, consider- ing the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well-defined path of the GuK Stream, to expect an immunity from belligerent warfare, for the space between that limit and the American shore. It ought, at least, to be insisted that the extent of the neutral immunity should correspond with the claims made by Great Britain around her own territory, and that no belligerent right should be exercised within the cham- bers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another. . . . There can be but little doubt that, as the United States advance in commerce and naval strength, our government will be disposed more and more to feel and acknowledge the justice 1 Comm. i. p. 30. STATE SOTEEEIGNTT. 185 and policy of the British clfiim to supremacy over the narrow seas adjacent to the British Isles, because we shall stand in need of similar accommodation and means of security." § 157. From the main propositions and doctrines contained in this extract from Chancellor Kent, I, as an American lawyer and citizen, must emphatically dissent. (1.) Because in the context the learned commentator evidently is willing to yield to the Brit- ish demands of sovereignty over their adjacent seas, and founds his reasoning upon those demands as a precedent, while in fact the English claims have been abandoned even by themselves, and are utterly repu- diated by all foreign powers. (2.) Because these propositions and doctrines are at entire variance with the whole scope and reason of the rules which govern the use of the sea, as now regulated by international law. (3.) Because I conceive it to be the policy of the United States to maintain the utmost freedom of the seas ; and to observe the rules which are estab- lished by the great number of civilized nations ; and not to revive old and unjust claims of particular states, claims opposed to the natural law, and repu- diated by the family of nations, in order to make them the basis of similar assumptions on her part. Justice and equity are the better guides for states as well as for individuals. I should add that these pre- tensions on the part of our government seem to have been abandoned. § 158. V. The Open Sea. As has already been in- timated, the open sea, beyond the limits of territory which are acknowledged, is not subject to the par- ticular property or sovereignty of any nation, but is free and open to all. This principle of the freedom 186 INTERNATIONAL LAW. of the seas is most important and practical. Upon it is founded much of the law in relation to the rights of neutrals. I shall, therefore, occupy your time by a condensation of the reasons and statements of Or- tolan. This author^ proceeds to distinguish between property in the sea, and empire over the sea. He says: " Property, that .is to say, the most extended right, the most absolute right which man can have over a thing ; the right which makes that thing his, which unites it, so to speak, with him ; in a word, which renders it his own, and which gives him the power to use, to enjoy the products, and to dispose of them and it, to the exclusion of others. If the sea may not be the object of this right, can it be sub- jected to the empire of a nation ? Empire, that is to say, a kind of sovereignty, a domination, a suprem- acy which gives to the people who enjoy it the power to exercise upon the sea, upon meeting other naviga- tors, as upon a portion of land subjected to their gov- ernment, the rights of regulation, of impost, of police, of inspection, of visit, of arrest, of seizure, and of judicial investigation. . . . It is important not to con- found, in the problem, these two distinct parts, — the question of property, and that of empire over the seas. Although bound together, these two questions are tO be decided by different principles. The confu- sion which has existed in regard to them can only pro- duce obscurity. It is important in the second place to understand perfectly the extent of these two different rights, — property and empire ; to measure their dif- ferent consequences ; to understand all that would be yielded to a nation if it should exercise, in whole or in part, the one. or the other of these rights on the ^ Liv. ii. ch. viL STATE SOVEREIGNTY. 187 open sea. For this reason, I commenced by briefly defining these effects ; it is the terms of these effects that the question should be stated and resolved. . . . As to property in the open sea, the question is set- tled by two decisive, unanswerable reasons : the one physical, material, which first arises, and would of itself suffice ; the other moral, purely rational, which, although not so materially apprehended, is not less conclusive. " Things which belong to no one can enter into this condition, and pass into the proprietorship of man by one means alone, — possession. That the sea should become the property of a nation, that nation must be able to take and preserve the possession thereof. '■ All definitions of possession, however dif- ferent they may be in expression and in idea, have at bottom something entirely general,' says an illustri- ous German writer, Savigny. ' Each understands by the possession of a thing, a state which permits the possessor not only to exercise physically a personal action over the thing, but also to remove or prevent any action over it on the part of a stranger. It is thus that the boatman possesses his vessel, but not the water upon which it glides, although both aid him in his occupation.' Possession is nothing else than the fact of having a thing under one's power, qne's control, after a permanent manner, and with the intention of appropriating the thing. The fact without the intention would not sufiice to constitute this possession; and still less the intention without the fact. It is necessary that the two should be united. The power which it involves does not reside indispensably in a corporeal contact of the possessor with the thing possessed. But this power, this fact 188 INTEENATIONAL LAW. of possession, consists essentially in two points : on the one hand, the physical, immediate, actual possibility of dealing with the thing at every instant and at one's own will ; on the other hand, the possibility of preventing at will every such act on the part of a stranger. In a word, to quote again the language of Savigny : ' Every possession of a thing rests upon the knowledge and the fact of a power almost unUm- ited.' It is now sufficient to demand, Can the sea be subjected to such a power ? Can any nation hold the sea in its control and possession ? Increase a hundred fold all the fleets of the world united, and will they place the sea at the discretion of one people ? " We can then say with assurance that the open sea is not susceptible of being the property of man because the open sea cannot be possessed. Such is the unanswerable material reason. " But were the sea physically susceptible of posses- sion, and therefore of property, a reason of another kind would come in to place an insurmountable ob- stacle to this proprietorship. As the air is indispen- sable to the material life of humanity, so the ■ seas are a necessary element to the complete develop- ment of its moral destiny. Association, communica- tion with each other, is a law of human nature, as essential in the moral order as respiration in the physical order. Who could have the right to place his veto on the accomplishment of this divine law ? Where is the state then, which, had it the physical possibility, could have the right to take as its exclu- sive property the element everywhere diffused among all lands, to unite aU points of the earth, all men and nations ? " It remains, therefore, demonstrated that the open STATE SOVEEEIGNTT. 189 sea cannot be the property of any nation. What has been said of complete proprietorship equally applies to qualified and fractional rights, — for example, the right to use, to gather the fruits, to take the pro- ducts. It is demonstrated that no nation can exclu- sively hold these partial rights of property ; that the use of the sea rests eternally open and common to all ; that it is, so to speak, the patrimony of all hu- m,anity, a joint patrimony, in regard to which the joint character can never cease. " The question of the empire of the seas — that is to say of the right of sovereignty, of tribute, of po- lice, or of jurisdiction — finds a solution not less complete in other principles. Let it once be estab- lished and recognized that the sea cannot be the property of any one, that it is open and common to the use of all, without power to be appropriated by any, and how can a people have the right to exercise thereon any empire or dominion whatsoever over other navigators ? " For this purpose it would be necessary that this people shoiild claim to be personally the superior, the sovereign of the others ; but, on the contrary, aU na- tions are equal, if not in force, at least in rights ; all are independent one of another. The empire of the seas cannot, therefore, exist in favor of any state, more than property therein. " To sum up : The impossibility of property in the seas results from the physical nature of this element, which cannot be possessed, and which serves as the essential means of communication between men. The impossibility of empire over the seas results from the equality of rights and the reciprocal independence of nations." 190 INTERNATIONAL LAW. But these propositions and principles are true in an absolute manner only of the open sea. There are, as we have seen, exceptional parts of the sea where these decisive obstacles to property or to empire cease in a greater, or less degree to appear; and where, consequently, one or the other of these rights appears and is recognized by nations ; where possession, and, therefore, proprietorship and dominion, can be and are maintained. Such are ports, roads, straits, bays, gulfs, enclosed seas, and even the main ocean itself for a little distance from the shores. As to these portions, the reason of the rule failing, the rule fails, and such waters become more or less territorial, as has been explained at length in the foregoing sub- divisions. § 159. (3.) The right to develop the national resources by commerce. We now come to the third main head of that group B, of rights which relate to territory and property in things, namely : that right which each state and people has to augment its resources, to add to its property, by the interchange of its pro- ducts with those of other countries. I will premise with the remark, that the great pro- gress and development in the practical rules of in- ternational law may he referred principally to the greater effect given in modern times to the claims and interests of commerce. Nor has this effect been confined to international law. Sympathizing with the conclusions of those who have made a theoretical study of political science, the internal legislation of every nation — of some indeed more than others — has tended to strike off the shackles which have for centuries fettered both interior and foreign traffic. Tariffs, navigation laws, imposts, monopolies, have STATE SOVEEEIGNTT. 191 partially or wholly succumbed to the idea of freedom in the interchange of commodities. In the inter- national law, the progress during the last quarter century has consisted, in great measure, in the rec- ognizing, establishing, and protecting the rights of neutrals in maritime warfare. These neutral rights are based upon the grand and universal principle that all peoples may freely exchange their own pro- ducts for those of other states. The more effect is given to this principle, the more it is recognized as fundamental, the more clear and express will appear derivative rules which protect the commerce and nav- igation of neutral nations from interruption by bel- ligerents. As the principle is so important and uni- versal, I will attempt to explain with some care its full meaning, effect, and limitations, drawing my ma- terial chiefly from the works of modern French writ- ers, those of England merely glancing at the subject as though it was not most fruitful in results of a far- reaching character. § 160. The Sovereign of the universe has not only given to each man a peculiar nature, He has equally diversified climates and soils. To each country, to each region. He has assigned different fruits, special productions, all or nearly all susceptible of being em- ployed by man for the gratification either of his needs or his pleasures. Almost all regions produce, without doubt, the food indispensable to sustain the inhabi- tants ; but not one unites the various objects neces- sary for all real needs, and particularly for all conven- tional needs. Recourse must be had to other nations. Commerce is thus really an institution of the natural law ; it has its source and its origin in the divine law itself. 192 INTEEKATIONAL LAW. The use of the ocean being free and common to all nations, they have applied navigation to commerce, by which means shores the most distant are put in communication. The origin of commerce indicates that it is free. No people can, therefore, be forced to yield to another any part of the surplus of its pro- ductions ; its own will is the only rule which it ought to follow in the exchanges it makes, and this will, the result of its independence and liberty, it has no need to explain. Commerce, composed of two free ele- ments, interchange and navigation, cannot be sub- jected to any restraint on the part of peoples stran- gers to it. But it is not free to the same degree as navigation. To navigate,, to sail over the ocean, no man has need of the consent of any of his kind ; the nation which wishes to send its vessels across the sea need never seek the assent of other peoples ; its will alone suffices. Commerce is free, but demands the agreement of two wills, that of the seller and that of the buyer ; it is necessary, in order to con- clude an exchange, to unite two consents. In fact, to make the maritime traffic, the navigator must approach the coasts, enter the territorial seas, the roads and ports of the nation with which he de- sires to trade ; he ought then, lest he should render himself culpable for the violation of tef thjry? *o ^^' mand permission from that nation ; j/ pffg^^^t obtain the consent of the one with whom ^^^ ^i\d treat. The consequence of this liberty of comm^ ; is that each can buy freely from whom he wi&n**,> sell freely to whom he pleases, without regard to any higher price which may be offered him, or to all other ad- vantages, which he may reject in order to adhere to his own will. All peoples may therefore buy, at the STATE SOYEREIGNTT. 193 greatest advantage possible, the objects which' they desire, and seek for their own products the outlets most to their convenience. Commerce among nations is free, because these nations are independent of each other ; and what would detract from the Hberty of international commerce would in reality detract from independence itself, that is from nationality. Commerce is free, then, between the citizens of two stranger nations, in such a manner that no sov- ereign can constrain a man who is not his subject to sell to one of his subjects, or to buy from him, any kind of wares. The citizens have, in fact, only abdi- cated a portion of their private independence for the good of the society of which they form a part ; and when they find themselves in the presence of an indi- vidual stranger to that society, they recover the full possession of all their primitive rights, unless the laws of their own country have limited this liberty in the interest of that community itself. Thus, the liberty of commerce is not absolute as is that of navigation. It is subordinated to the consent of two interested parties. But as soon as this consent is obtained it becomes absolute ; it can suffer no restriction. When two peoples are in accord respecting their commerce, a third cannot impose any restraint without making itself guilty of an attack upon the independence of the two others. § 161. But we must inquire how and by whom this right of free commerce may be limited. Free and independent nations are able to offer and accept, according to their interests, all commerce, every ex- change of the products of their soil or their industry ; neither has the right to impose on the other a sale or a purchase. Commerce is based upon the consent of 13 194 INTEENATIONAL LAW. seller* and buyer. This absolute liberty of nations does not exist in a manner as complete with regard to the citizens who compose them. Each of these has given up a portion of his natural independence into the hands of the community, in order that it may be used for the common benefit. The sovereign is charged with the duty of employing it in a manner the most useful to the society. He has the right, therefore, to place restrictions upon the freedom of commerce of his subjects; he can prohibit the im- portation of certain commodities, the exportation of others. The power of the sovereign in this respect is incontestable ; it is recognized by all writers. He may restrain commerce within his state, interdict it entirely to all foreigners or to some only. In a word, he is, in respect to other nations, the sole depositary of the free faculty of commerce. This power of the sovereign should be examined under two different aspects, — that which concerns his own subjects, and that which involves the rights of foreigners. § 162. With regard to the citizens of a state, the prohibition of the export of certain products of the soil or of manufacture, the denial of commerce with this or that nation, constitute a restriction of individ- ual liberty. Thus, when the sovereign prohibits the exportation of objects the most essential to life, — grain, for example, — it is evident that he takes away a part of the commercial liberty of those who own these commodities ; that he injures their inter- ests by denying permission to sell to foreigners, and at a price higher, perhaps, than they will receive for the same at home. But he acts in the interests of all his people by preventing a famine from happen- ing in his state, or, at least, by placing an obstacle STATE SOVEEEIGNTi". 195 to such a rise in the price of these objects of prime necessity, which would fall upon a majority of the citizens, and render existence difficult. In a word, he injures a few to be useful to all ; he uses a right of which he is the depositary. The refusal to admit natural or manufactured commodities coming from foreign countries presents the same characteristics of injury to some, but advantage to the greater number. The theory upon which it is supported belongs rather to public than to international law, — upon views of political economy which may be mistaken, but which every government has a right to hold and act upon. § 163. We have, thus far, only spoken of absolute prohibitions ; but there is a large class of well-estab- lished rights touching commerce, both foreign and internal, which are plainly ranged in the same class. They are not complete obstacles to a free exchange, but restraints upon its exercise, in the general inter- est of the nation. As regards foreign states, the power of the government to place these restrictions upon the liberty of commerce is equally well estab- lished. Commerce demands the consent of two wills. The sovereign, the depositary of the rights of all his subjects, grants or refuses this consent in their name, or places upon the consent such conditions as seem to him useful or necessary. In doing thus, he uses the right, the natural liberty, of the people he represents. This power is also fortified by the fact that for one nation to trade with another, it must enter the lat- ter's territory, ports, and harbors. Now, it is an uni- versal principle that every person, even a foreigner, who comes within the territory of a people, is sub- jected to their laws. This principle exists equally in reference to merchant ships, with respect to all rela- 196 INTERNATIONAL LAW. tions with the territory or its inhabitants ; and com- merce or traffic consists entirely in such relations. It is in virtue of this power that the government may establish duties on imports, or even upon the simple entry of the ships ; that it may prohibit the importa- tion of certain articles, or close its ports to the traders of certain countries, or against all foreigners. In fact, when the chief of a state forbids the importation of a foreign commodity, or lays some restriction on its entry, when he establishes anchorage duties, ton- nage or harbor duties, and so on, or when he indi- cates certain ports in which alone foreign ships shall be received, he is only declaring to other nations that he refuses consent to one kind of commerce, or grants it only under conditions. Not only has the government this power to restrain the commerce of its own subjects, but the power be- longs to it alone ; no nation has the right to interfere with the traffic of another people. Nor is the sover- eign bound to explain the decisions which he makes on this subject ; he need only take as a guide the in- terests of his people ; and even should he be deceived as to these interests, — even should he act from pure caprice, — he need render no account to foreign na- tions. Were he bound thus to explain his acts to the world, his state would so far forth be curtailed of their perfect independence and equality with all other states. He is answerable only to his own people, ac- cording to the established civil order, constitution, and laws of his ow^n body politic. § 164. The power of a government to restrain the commercial liberty of its own subjects is exercised principally by internal laws and by treaties with for- eign powers. These internal laws are binding upon STATK SOVEREIGNTY. 197 all citizens resident within the state, and upon all strangers who come within the territory for trade ; but there their efficacy ends. They cannot extend their authority beyond the limits of their jurisdiction. One nation cannot prohibit the importation of com- modities by the subjects of another state from those of a third, but it may prevent the exportation of the same commodity from its own territory to that other people. These rights of import, export, of entry into this or that port, are all, or nearly all, established by internal laws. In the same class of restrictions are those placed upon the navigation of territorial waters, — restric- tions contained in that class of statutes known as "navigation laws." These laws reserve to the na- tional industry certain kinds of commerce, such as the coasting trade, and that between colonies and the mother country. Treaties relating to international commerce have all, without exception, recognized this principle, that to the territorial sovereign, and to him alone, belongs the right to restrain the commercial liberty of his subjects, and of foreigners commorant in his state or coming thither for purposes of trade. Treaties made with foreign nations may also create hindrances to the commercial liberty of a people, because these conventions, containing provisions obligatory upon those who execute them, place the sovereign and the nation itself under the necessity of observing them, at the risk of a breach of faith due to so solemn an act, and of exposure to the just resentment of the co- contracting power. A government, therefore, in the interest of its subjects, may engage to buy from a nation, or sell to it exclusively, a certain commodity, 198 INTERNATIONAL LAW. to establish rights greater or less in the commerce with other countries ; to favor the merchants of one people even to the prejudice of others ; and to make all the stipulations which it thinks useful to its state, even to the prohibition of commerce with other peo- ples than that with which it enters into a treaty.^ To sum up : Commerce is, in general, free, and every state may endeavor to add to its wealth and material resources, not only by producing, but by exchanging, natural and manufactured commodities. No state has any right to interfere with, regulate, or prevent the commerce between two foreign countries under a partial exception, — to be afterwards stated at large, — when one of these othe rcountries is at war with itself. But the government of every state, having jurisdiction over its own subjects and people, may lay any restraints upon the commerce in which they may engage ; and as all commerce requires two parties, a restraint may thus be indirectly laid upon the commercial liberty of all other peoples. Finally, such restrictions, when established, are contained in the internal municipal laws of a nation or in its trea- ties with foreign powers. The progress of social science in modern times has tended to the removal of these restrictions from na- tional legislation, and to the greater freedom of traf- fic, both interior and foreign. (4.) The right to transfer territory and other things, or, in other words, to put an end to all dominion over them. § 165. I need not dwell upon this general right, for acquisition on the part of one nation implies trans- fer or end of dominion by another. In describing, ' See Hautefeuille, vol. i. tit. 2. STATE SOVEREIGNTY. 199 therefore, the various modes of acquisition, the limits placed upon it, the rules which govern it, I have also described the correlative modes, limits, and rules of transfer and end of dominion. I have thus closed the examination of the impor^ tant group of international rights which relate to property and dominion over territory and other things, and am now prepared to pass to the third group of rights founded upon national independence. CHAPTER V. JURISDICTION OF A STATE OVER PERSONS AND THINGS; EXTRADITION; INTERVENTION. § 166. The meaning of this word jurisdiction should be carefully apprehended. The right of ju- risdiction is something very different from that of property or that of dominion. Jurisdiction implies an adjudication upon some matter, some right, or duty. If a state is clothed with property in or do- minion over specified subjects, it will certainly have, as a consequence, jurisdiction over the same, but may also have jurisdiction over persons and things in which it has no proprietorship, or over which it has not perfect dominion. It is by confounding these dis- tinct ideas of property and jurisdiction that Haute- feuille has fallen into an error which runs through a large portion of his celebrated treatise on the "Rights and Duties of Neutral Nations," and renders many of his theoretical conclusions entirely untrustworthy. In the private municipal law, the word jurisdiction is commonly used in reference to courts, and signifies their right or capacity to hear and decide certain con- troversies between litigant parties. Thus, a court of general jurisdiction may decide any cause that parties shall choose to bring before it ; while one of limited jurisdiction is restricted to the determination of par- ticular classes of cases. The word in this sense is, therefore, synonymous with power to decide, and JUEISDICTION ; EXTRADITION; INTERVENTION. 201 does not at all involve the notion of correctness of decision. As the word is used in the international law, and as I have employed it at the commencement of this chapter, its signification is analogous to the one al- ready given. States have a right of jurisdiction over persons and things when they have the legal power to determine, in all judicial controversies, the rights and duties belonging to the persons and the incidents of property which affect the things ; in other words, when they have the legal power to bring the persons and things under the effect and operation of their laws, civil and penal, as those laws are administered by their judicial tribunals. The French writers have invented a very expres- sive term, which has been adopted by some English jurists and which I shall use, to describe the persons and things which are thus subjected to the adminis- trative course of a nation's laws. This term is " Jus- ticiable." A person is said to be justiciable in a coun- try when he is liable to be tried therein, or to be brought under the operation of its laws. A thing is justiciable in a country when the rights and incidents of its ownership may be settled by the courts of that country. Jurisdiction and justiciable are, therefore, correlative ; the former referring to the nation, whose government in some of its departments may exercise the power : the latter referring to the persons and things which are the objects of the power, in other words, the persons and things upon which the power may be exercised. It is plain that such persons and things may be the property, or completely under the dominion of that nation ; or they may not be the prop- erty, or not be absolutely under the dominion, or may be but partially under the dominion, of that state. 202 INTERNATIONAL LAW. § 167. With this analysis of the general meaning of the phrase, right of jurisdiction, I pass to consider the occasions in which the right exists. These occa- sions may be classified in various manners ; that divi- sion which is every way the most simple and natural is based upon a physical line of separation, and is stated thus : I. Eights of jurisdiction over persons and things within the territorial limits of a state; and II. Rights of jurisdiction over persons and things beyond and without the territorial limits of a state. I. Jurisdiction within the national territory. § 168. (1.) The General Rule. The general doc- trine which lies at the foundation of this whole sub- ject is universally acknowledged and adopted, and may be briefly stated thus : Every independent state has full and complete jurisdiction over all persons and things physically situated within its territorial limits, whether those persons and things are permanently or transitorily present. The territorial limits thus men- tioned include not only the soil, and inland rivers, lakes and seas, but the adjacent portions of the ocean, which, according to rules already stated, have a ter- ritorial character; the ports, harbors, roads, gulfs, bays, straits, and the encircling belt of waters within the coast-line of defence. The converse of this prop- osition is equally true in general, that a state has no jurisdiction over persons or things while beyond its territorial Hmits. The practical result of this princi- ple is, that if a state should exercise its right of juris- diction over a person or thing subject thereto, such act would be no breach of public international law, and would be no offence to any other power, unless the state in question had bound itself to such power by treaty not to exercise the jurisdiction in cases of a JUEISDICTION ; EXTRADITION ; INTERVENTION. 203 like character. But even if such a treaty had been executed, the general international law would not have been violated, for the convention would only subsist between and be binding upon the two countries that were parties to it. Such being, the rule as stated in its most general form, we will inquire a little more particularly as to the cases in which it is applied, and, § 169. (1.) Things to which it may apply. All things are the objects of this jurisdiction which may be within the territory, — subject to the few excep- tions hereafter to be stated, — whether owned by citi- zens, by denizened foreigners, by transient foreigners, or even by foreigners who are themselves absent from the territory. Such things may be lands, chattels, choses in action, or debts, securities, and the like, in short, anything which can be the object of property. The right of jurisdiction will enable the courts of the state where they are situate, in general, to determine all questions in respect to their ownership, to seize them and hold them as security for claims prosecuted against their owners, to enforce such claims against them when established, in short, to perform all judi- cial acts which may effect their final disposition. In these proceedings the courts may be entirely guided by the municipal laws of their own country ; but, in many instances, from a principle of comity, and not of absolute obligation, they will apply the municipal law of the nation to which the owner or claimant be- longs, and determine the conflicting claims, and dis- pose of the thing according to that law. § 170. (2.) Persons to whom the rule may apply. All the persons to whom the jurisdiction of a state can by possibility apply are citizens, foreigners com- morant in the country, and foreigners transiently within the country. 204 INTERNATIONAL LAW. § 171. 1st. Citizens. Who shall be citizens of a nation must be decided by its own municipal law. The international law does not interfere with this question until one state attempts to throw its pro- tection over its citizens in a foreign country. The right of protection will be discussed in a future lecture. Citizens are either (a) native born ; or (6) natural- ized. What persons shall be included in the number of native born, and what rules shall be adopted as to the naturalization of those of alien birth, must be de- termined by the internal policy and public municipal law of each independent state. It is not within the province of international law to examine this subject. Every state has full and complete jurisdiction over its own citizens while they are within the national territory, and in relation to all acts, transactions, rights, and duties of those citizens done or arising within that territory. This proposition is elemental ; indeed, the whole efl&cacy of the municipal law is based upon it. Every independent state has also the international right to exercise jurisdiction over its own citizens in reference to all acts, transactions, rights, or duties done by them, or arising beyond and outside of its territory. The meaning of this proposition must be tinderstood. It is not true that the state may follow its citizen into a foreign land, and there exercise ju- risdiction over him, but only that it may thus assert its supremacy when he returns to the place of his allegiance. As has been well remarked : " When, therefore, we speak of the right of a state to bind its own subjects everywhere, we speak only of its own claim and exercise of sovereignty over them. jurisdiction; extradition; intervention. 205 when they return within its own territorial jurisdic- tion, and not of the right to compel or require obedi- ence to such laws on the part of other nations within their own territorial sovereignty. On the contrary, every nation has an exclusive right to regulate per- sons and things within its own territory, according to its sovereign will and public polity." Although a state may, by the established rules of international law, assume jurisdiction over its own citi- zens for all acts done by them, and in relation to all transactions, rights, and duties of theirs arising with- out the territory, when they return to their own land, the state is not compelled to do so. Its own public municipal law must determine to how great an extent the jurisdiction shall be exercised, and with the de- termination in any way no foreign power may inter- fere. We shall find a great diversity on this point among the systems of different countries. In Eng- land and America, the jurisdiction is generally as- sumed over its citizens in respect to all civil acts, transactions, rights, or duties done, or arising abroad. This is true, even though the act be a tort, and though it amount to a breach of the peace. Thus, a British subject is liable to a civil action in England for an assault and battery committed by him, say in Italy. The same would be true in the United States. But by a very ancient principle of the English com- mon law, adopted in this country, all crimes are strictly local, and the offenders are justiciable only in the countries where the criminal act is done. Therefore, English and American law would gener- ally refuse to try and punish a British or American citizen on his return home, for a criminal offence per- petrated by him in a foreign territory. The public 206 INTEBNATION-AL LAW. law of the continental states of Europe is quite dif- ferent ; and nothing is more common than for those nations to condemn and punish their subjects for extra-territorial criminal acts, when they are found within the limits of their own countries. There have been a few modern statutes in England and the United States which abandon the common law prin- ciple, and adopt that of the European jurisprudence. § 172. 2d. If'oreigners commorant, or permanently residing in a state, but not naturalized. The general rule of the international law is that such persons are justiciable in that country, in re- spect of all acts, transactions, rights, or duties done or arising within the territorial limits ; and also, while within the territory, in respect of civil rights and duties arising out of mere civil acts and transactions done abroad, such as contracts ; and also in respect of personal rights and duties growing out of personal status which had its origin abroad, such as marriage, divorce, infancy, and the like. But such persons are not justiciable in respect of crimes committed by them in other national territory. 3d. Foreigners transiently within the territory. The rules which govern jurisdiction over this class are the same as those appUcable to the preceding class of persons. § 173. (2.) Exceptions to the General Rule above stated and discussed. To this general rule which I have attempted to illustrate, there are a number of exceptions, which may all be grouped into two ge- neric classes. (1.) Those which spring from international law proper. In addition to the jurisdiction of each state over JUEISDICTION 5 EXTRABITION; IKTEEVENTION. 207 the persons and things within its territorial limits, there are certain well-defined cases where, by the international law, the jurisdiction extends to persons and things beyond its territorial limits. When this extra-territorial right exists, it, of course, may inter- fere with and limit, and thus form exceptions to the right of each state to adjudicate upon all persons and things within its boundaries. Some of these instances are very important, and, as the cases pf jurisdiction beyond the territory will be stated in the next sub- division, I shall thereby also explain and illustrate the exceptions. (2.) Those which spring from international comity. In many instances, the courts of independent states, while assuming to adjudicate upon persons and things within the territory, will not apply thereto their own municipal law, but will apply and give effect to the laws of the country where the person litigant resides or. is domiciled. This is the result, not of strict inter- national duty, but of comity. Thus is determined and involved the law of the place of a contract, of the place of things movable or immovable; the law of foreign marriages, divorce, judgments, and the like. I shall have nothing to say on these subjects in the present series of lectures ; they do not legitimately fall within the department of international law proper. The student will find the whole matter most elabo- rately discussed in Story's " Conflict of Laws," and in the later work of M. Fcelix, "Droit International Priv6." II. Jurisdiction in certain instances beyond and without the limits of the national territory. § 174. There are certain particular instances in which a state may exercise jurisdiction over persons 208 INTERNATIONAL LAW. and things beyond its own territory; and in many of these instances the state within whose territory the persons or things are situate cannot exercise juris- diction thereupon, these objects, though physically within that territory, being regarded by a convenient fiction as without. Such cases are, therefore, excep- tions to the general rule before stated, that a nation has jurisdiction over all persons and things within its territory, as well as to the general rule that no nation has jurisdiction over persons and things beyond its territory. These special cases I shall now proceed to enumerate and describe. § 175. (1.) Personal Sovereigns in the Territory of another State. When personal sovereigns are passing through or temporarily residing in the territory of another state than their own, they are not justiciable either civilly or criminally in the courts of that state, nor amenable to its laws. The same exemption ex- tends to their attendants and effects. No sovereign can be presumed to have given up his independence and subjected himself to the laws and tribunals of another country. He and all the persons and prop- erty with him necessary for his convenience are treated as though still within his own dominions. § 176. (2.) Ambassadors. Ambassadors and other public ministers resident in foreign countries are not justiciable either for civil or criminal acts in the coun- tries where they reside, but are considered as still under the jurisdiction of the state to which they be- long and which they represent. The whole subject of ambassadors will be considered in a future lecture, and the principle is now, therefore, merely stated and passed by. § 177. (3.) Armies of one State marching through JURISDICTION; EXTEADITIOir ; INTERVENTION. 209 the Territory of another. If an army should be per- mitted to march through the territory of a foreign power, its members would be partially, at least, ex- empt from the jurisdiction of that power. § 178. (4.) Public Ships of War. The former cases are some of them infrequent; the present and those which follow are of constant occurrence and of the greatest importance. It is a settled rule of the international law, that the public ships of war of every independent state and the officers and men are solely under the jurisdiction of their own government, and are never subjected to the courts or laws of any other power. Wherever such a ship may be, the laws of its own country follow it ; it is spoken of as a part of the territory of that country ; its officers may exercise such acts of control over those on board as they are empowered to do by their own government. Such a ship may be either upon the high seas, or within the ports, harbors, or other territorial waters of a friendly nation. In the first case there could be no question of the rule, but it applies as well in the second case ; and thus the foreign state in whose waters the ship may be lying will, so far forth, be deprived of its full jurisdiction over all persons and things within its limits. § 179. This rule is so important that we shall ex- amine -its reasons, foundation, and extent. In the case of The Schooner Exchange v. McFad- den,^ the whole subject came before the Supreme Court of the United States, and was examined with great ability and learning. The schooner had orig- inally belonged to McFadden, an American citizen; it had been seized by a French privateer, for a cause 1 7 Cranoh, 116. 14 210 INTEENATIONAL LAW. alleged and assumed to be illegal and not warranting the capture ; it had been sold to the French govern- ment, and by them converted into a public vessel of war ; being on a cruise it entered a port of the United States then at peace with France ; \^hile lying there it was libelled by the former owner in tl^s action, and the sole question to be decided was whether the pres- ent public character of the vessel precluded any ex- amination by the court into the original ownership and the illegality of the capture. From the elaborate opinion of Mr. C. J. Marshall^ I make some extracts : He says : ^ " The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This con- sent may be either express or implied. In the latter case it is less determinate, exposed more to the un- certainties of construction ; but, if understood, not less obligatory. All sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdic- tion within their respective territories which sover- eignty confers. This consent may, in some instances, be tested by common usage, and ,by common opinion growing out of that usage. A nation would be justly considered as violating its faith, although that faith might not be expressly plighted, which should sud- denly and without previous notice exercise its terri- torial powers in a manner not consonant to the usages and received obhgations of the civilized world." The > Page 136. jurisdiction; extradition; intervention. 211 judge then proceeds to enumerate and describe the extra-territorial jurisdiction in the cases of sovereigns or ambassadors in a foreign land, and armies permitted to march through a friendly territory. After show- ing that an army could not pass through a neutral country without special permission from its sovereign, he proceeds : ^ " But the rule which is applicable to armies does not appear to be equally applicable to ships of war entering the ports of a friendly power. The injury inseparable from the march of an army through an inhabited country, and the dangers often, indeed generally, attending it, do not ensue from ad- mitting a ship of war, without special license, into a friendly port. A different rule, therefore, with re- spect to this species of military force has been gener- ally adopted. If, for reasons of state, the ports of a nation generally, or any particular ports, be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determination. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them while allowed to remain under the protection of the government of the place. In almost every instance the treaties between civilized nations contain a stipulation to this effect in favor of vessels driven in by stress of weather or other urgent neces- sity. In such case the sovereign is bound by compact to authorize foreign vessels to enter his ports. It would be difficult to assign a reason for withholding from a license thus granted any immunity from local jurisdiction which would be implied in a special li- » Page 141. 212 INTEENATIONAL LAW. cense. If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate to himself, permits his ports to remain open to the pub- he ships of foreign friendly powers, the conclusion seems irresistible, that they enter by his assent. And if they enter by his assent necessarily implied, no just reason is perceived by the court for distinguish- ing their case from that of vessels which enter by express assent." ^ ..." It is impossible to conceive that a prince, who stipulates a passage for his troops or an asylum for his ships of war in distress, should mean to subject his army or his navy to the jurisdic- tion of a foreign sovereign. ... To the court it ap- pears that where, without treaty, the ports of a nation are open to the private and public ships of a foreign power, whose subjects have also liberty, without spe- cial license, to enter the country for business or amusement, a clear distinction is to be drawn between the rights accorded to private individuals, or private trading vessels, and those accorded to public armed ships, which constitute a part of the military force of the nation. The preceding reasoning has maintained the propositions that aU exemptions from territorial jurisdiction must be derived from the consent of the sovereign of the territory ; that this consent may be implied or expressed ; and that when implied, its ex- tent must be regulated by the nature of the case, and the views under which the parties requiring and con- ceding it must be supposed to act. When private individuals of one nation spread themselves through another, as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for purposes of trade, it 1 Page 143. JUEISDICTION ; EXTRADITION; INTEETENTION. 213 would be obviously inconvenient and dangerous to society, and would subject the laws to continual in- fraction, and the government to degradation, if such individuals and merchants did not owe temporary and local allegiance, and were not amenable to the juris- diction of the country. Nor can the foreign sover- eign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in na- tional pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The im- plied license, therefore, under which they enter can never be construed to grant such exemption. But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation ; acts under the immediate and direct com- mand of the sovereign ; is employed by him in na- tional objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and dignity. The implied license, therefore, under which such vessel enters a friendly port, may reasonably be construed, and it seems to the court ought to be con- strued, as containing an exemption from the juris- diction of the sovereign within whose territory she claims the rights of hospitality, ... It seems then to the court to be a principle of the public law, that na- tional ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction." In accordance with these principles, 214 INTERNATIONAL LAW. the vessel was restored to the French government without examining the question of her original cap- ture. In the celebrated case of The Santissima Trinidad,^ to which I shall have occasion to refer again, the same questions were reexamined by Mr. J. Story, and the conclusions and reasoning of C. J. Marshall were re- affirmed. § 180. The reasons, extent, application, and limita- tions of the rule are very clearly and accurately stated by Ortolan in his late work, " Diplomatic de la Mer." I cannot do better than condense his remarks.^ Since ships of war are armed by the government of an independent state to which they belong ; since their officers are public functionaries of this state, and as such exercise an executive, and in certain instances a judicial power; finally, since every individual of every grade making a part of their crew is an agent of the public force, these ships, personified, are a portion of this government, and ought to be respected and independent. This rule is generally expressed by a metaphor which has passed into general use, and which, by many writers, has been considered as a jus- tificative reason of the rule which it simply expresses in a figurative manner. It is said that every ship of war is a part of the territory of the nation to which it belongs ; whence the consequence, that whenever the vessel is in a foreign port, its officers, its crew, and every other person on board, is considered to be, and every act is considered to be done, on this terri- tory. M. Hautefeuille adopts this statement in its most literal sense, but Ortolan proceeds to show that it is 1 7 Wheaton, 283- " See vol. L bk. ii. ch. x. jurisdiction; extradition; intervention. 215 true only as a figure ; that it is only an energetic ex- pression of the fact that all acts done and all persons found on board a man-of-war are treated as though done or found in the territory of the nation to which she belongs ; that a man-of-war is a portion of space, which, although movable, is, Uke the territory, always subjected to the sovereignty and jurisdiction of its own country. Therefore, as long as this ship is on the open sea, no foreign state has the right to interfere with its in- ternal or external management, or to give to it or- ders or prohibitions, or place it under any restraint or jurisdiction whatsoever. It is placed entirely under the laws and government and empire of its own coun- try. Every relation which a foreign ship holds with it is purely an international relation, which ought to conform to general custom or the stipulations of treaties. When this ship arrives within the territorial waters of a foreign state, there arises an apparent conflict of jurisdictions, but the rule of the international law is settled and constant. This public ship remains solely governed by the sovereignty of its own country ; the laws, the authorities, and the jurisdiction of the state in whose waters it is moored remain foreign to it ; the only relations between it and such state are inter- national, conducted through the competent officials of the place. Without doubt, the state which is proprietor of the ports or roads may refuse entrance into its waters to those vessels of war in respect to which it has grounds to depart from the ordinary pacific rules of national intercourse ; may watch them if it thinks their pres- ence dangerous ; may order them to leave the port 216 INTEENATIONAL LAW. or road ; may employ towards them all the means of security which their presence shall render necessary. Such measures may be demanded by the circum- stances, or they may be breaches of international comity. But when these ships have been received, the state whose waters they are in must respect the sovereignty of which they are an emanation, and not pretend or assume to control the persons or acts found or done on board, or to do on board any act of sov- ereignty or jurisdiction. § 181. As a result of these general doctrines, if, while on the open sea, any crime or delict should be committed on board a man-of-war, the offender would only be justiciable under the laws and by the author- ity of the nation to which the vessel belonged ; and even if the ship should afterwards arrive in the port of a nation to which the criminal, or the injured person, or both belonged, the jurisdiction over the offence and the individuals would not pass to the au- thorities of that nation. When this public vessel is lying in a foreign port or road, the same rules apply. The commander ought to reserve to the tribunals of his own country the cognizance of crimes or delicts committed on board, not only when these crimes or delicts are of a military character, but in every other case. Never- theless, if the person injured and the offender are neither of them members of the crew or the ship's company, and one or the other belongs to the nation within whose waters the deed was done, it may be that the commander has power to abandon them to the local jurisdiction, according to circumstances, since the rights of his nation would have received no in- fraction. On the other hand, the authorities of the JUKiSDicTiON ; extradition; intervention. 217 port or road where the foreign ship of war is lying have no right to come on board to do any act of po- lice, of arrest, or of any jurisdiction whatsoever, either on account of transactions on board this very vessel, or on account of any other transactions. The same rules apply to all tenders, boats, or other jBotilla belonging to the man-of-war, and detached therefrom upon any service. But if any ofl&cer or member of the crew, while on the land, should make himself culpable by an infrac- tion of the laws of that country, there is no doubt whatever that the local authorities have jurisdiction over such persons while they remain on shore, and may cause them to be arrested before they quit the land, and to be punished according to their own laws. But the commanders of the vessels should be imme- diately informed of the arrest and the causes which led to it, in order that either they or the diplomatic agents of their government may make all necessary endeavors either to procure that the persons accused should be returned to them, or to watch the manner in which they are treated and tried.^ The Supreme Court of the United States, in the case of The Santissima Trinidad,^ held that these rules of exemption, in the case of foreign men-of-war coming into our waters, do not apply to their prize ships or goods captured in violation of our neutrality. § 182. It must not be understood that this doc- trine, which I have thus stated as well settled id the international law, is pushed to the extent of depriv- ing a state of all power over the acts of a public ship belonging to a' foreign power with which it is at peace. We have seen that entrance may be refused » See Ortolan, 1. ii. ch. xiii. " 7 Wheat. 283 (a. d. 1822). 218 INTERNATIONAL LAW. to such ship,, or it may be ordered to depart. And, even further, if the commander of the vessel, in vio- lation of international law, should persist in doing such acts as were derogatory to the sovereignty of the state in whose waters it -lay, that state may use so much force as may be necessary to enforce a com- pliance with its just demands and an observance- of its international rights, even to the extent of capture or destruction. § 183. As a pubhc vessel of war is clothed with such high international prerogatives, it becomes of the utmost importance to ascertain how this public na- tional character is established. The universal custom among nations is to clothe their public ships with the national flag, and to furnish them with a commission issued from the executive department of the govern- ment. These symbols of authority are universally recognized as stamping the public character on the ship whenever the nation itself is recognized as such de jure or de facto, or as having a belligerent status. How far a people exercising the functions of nation- ality is entitled to be admitted into the full fellowship) of the family of nations wiU be discussed hereafter. It is suflBicient now to say such a people may have a belligerent character sufficient to entitle their flag and their commissions to recognition, before they have attained to the perfect condition of independent na- tionality. Thus the armed vessels of the Confederate States were treated by aU, or nearly all, the maritime powers of the world as proper public ships of war. Not to refer to the acts of England or of France, I will quote the correspondence with the Netherlands, a state certainly not unfriendly to our own. On the 15th August, 1861, Mr. Seward advised Mr. Pike, jurisdiction; extradition; intervention. 219 minister to the Netherlands, that the Sumter had been received by Dutch authorities in the port of Curaqoa, and ordered him to protest against this pro- ceeding. During the correspondence which ensued, Mr. Pike claimed that the vessel was a pirate, or at best a privateer. In the final note of M. de Zuilen, the Dutch minister of foreign affairs, he says: "Is this vessel a man-of-war or a corsair ? It is not suffi- cient to declare, as is said by your government, that the Sumter is a vessel fitted out for and actually engaged in a piratical expedition, or a privateer steamer. This assertion ought to be clearly proved.. After having examined, with all the attention that the gravity of the matter demands, the facts and circum- stances which characterize the dissensions that now desolate the United States, and of which no govern- ment desires the speedy end more than the Nether- lands, I am obliged to express the opinion that the Sumter is not a corsair, but a vessel of war, and base my conclusion upon the following considerations. In the first place, the declaration of the commander of the ship, given in writing to the governor of Cu- ra§oa, who had demanded an explanation of the char- acter of the vessel. This declaration asserted that ' The Sumter is a ship of war duly commissioned by the government of the Confederate States.' The Dutch governor was bound to content himself with the parole of the commander, couched in writing." In The Santissima Trinidad,^ the Supreme Court of the United States decided that the commission of a public ship of a foreign state is conclusive evidence of her national character. This was held in reference to a man-of-war belonging to one of the South Amer- 1 7 Wlieaton, 283. 220 INTERNATIONAL LAW. ican states before it had been recognized as an inde- pendent nationality, but only as a community enti- tled to belligerent rights in its contest for indepen- dence with Spain. The student will find the general subject under dis- cussion in Wheaton, part ii. ch. ii. §§ 9, 10 ; Phillimore, vol. i. pp. 367-378 ; Kluber, " Droit des Gens," § 55. § 184. (5.) Private Ships of Commerce. Is there any distinction between private ships of commerce and public ships of war, in respect to the jurisdiction of their own countries over them ? M. Hautef euille denies that there is ; asserts that both classes of ves- sels are in fact and literally portions of the national territory, and, as such, inviolate. He denies that when merchant ships are in foreign ports, either they or the persons on board are justiciable in the courts of that country, unless for those acts which have di- rect relation to the country, — acts of traffic and in- tercourse. These positions of M. Hautefeuille are in direct conflict with the almost universal practice, and with the almost universal opinions, of jurists. M. Hautefeuille, as will be seen in the sequel, wrote his very elaborate work with the sole object of prov- ing that neutral commerce, in time of war, cannot be hindered or interfered with by the belligerents. He bases his whole reasoning upon certain assumed doc- trines of what he calls the primitive or divine law. With him, facts go for nothing ; if they militate against his theory, so much the worse for the facts. If the constant practice of nations is entirely opposed to his views, he has the ready answer that this prac- tice is all illegal. As a basis of his theory he assumes, with most amusing naivete, that merchant ships are a part of JURISDICTION; EXTRADITION; INTERVENTION. 221 the national territory, and as all nations are indepen- dent and equal, and their territory inviolable, he brushes away at one sweep of his pen, all belligerent right of search, all belligerent right of capture of neutral vessels carrying enemies' goods. I can best characterize such a style of juridical writing, which ignores all facts, all custom, all practice, and con- structs a system upon a priori principles, in the lan- guage of another and far abler modern French jurist, M. Foelix, author of " Traits du Droit International Priv6." He says: "This method of proceeding ap- pears to me to be in conflict with the real situation in which nations are placed towards one another. In fact, nations acknowledge no supreme judge who has the power to decide, according to the principles of an abstract and philosophic right, the contests which arise from the conflict of different systems of national law." M. Ortolan, also, in his " Diplomatie de la Mer," most ably and successfully oppugns Haute- feuille's positions. M. Ortolan's chapters upon this subject are fuller and more complete than those of any other modern author, and his conclusions are in entire agreement with those of English, American, and continental jurists. § 185. Merchant ships are not portions of the na- tional territory ; nor have they, like vessels of war, that peculiar public governmental character, which makes them to be, in some sort, representations of the national sovereignty. While on the open sea, merchant ships are com- pletely and solely under the jurisdiction of the state to which they belong ; and this, because the open sea is the highway of nations, not subjected to the ex- clusive jurisdiction of any. Therefore persons on 222 INTERNATIONAL LAW. board a merchant ship are justiciable for all crimes and delicts done by them while the ship is on the high seas only in the state to which the vessel be- longs, to exactly the same extent as though the same act had been done on a man-of-war. This rule is universal ; nor does it involve the question how far a neutral vessel may, in time of war, be subjected to the interference of belligerent cruisers. The bel- ligerent rights of visit, of search, of capture, are not portions of the general right of jurisdiction ; and they will be treated of at length in a subsequent lec- ture. § 186. When the merchant ship arrives at a for- eign port, or road, or other territorial waters, its situation is far different from that of a public vessel of war in the same position. Its own state loses juris- diction over a large class of acts, and the state in whose waters the ship is lying acquires jurisdiction over the same. All merely civil matters, which only concern the officers, or the crew, or the passengers, are still gov- erned by the laws of the country whose flag the ship bears. It is very customary to refer disputes touch- ing such matters to the consul of that country resid- ing in the port. By the general international law, where this is not changed by the local municipal system, or by treaty, when a merchant ship is within a foreign port, it is entirely subject to the police jurisdiction, and the criminal and correctional jurisdiction of the state within whose waters it is lying. All the ship's company, and all persons on board, are justiciable for any delicts which they there commit, even on board the vessel, either upon one of their own number, or JURISDICTION; extradition; intervention. 223 against a stranger ; and in executing their right of jurisdiction, the local authorities may come on board, and make such seizures, searches, arrests, and ex- aminations, both of offenders and witnesses, as may be in accordance with their local procedure. Of course, as we have seen in a former lecture, the ship may be detained, proceeded against, and condemned, at the suit of a private creditor ; or seized and con- fiscated for a breach of the revenue or other laws of the state whose waters she has entered. § 187. While the foregoing doctrines are undoubt- edly a part of the general international law, and are expressly stated as such by Mr. Wheaton, and by Mr. Phillimore in the passages referred to in the preced- ing subdivision, and are acknowledged by M. Ortolan, France has adopted a different system as a part of her municipal jurisprudence, and has endeavored to extend it by treaties with other powers. As this system is becoming more important, and as it will, perhaps, come to be generally acknowledged, a sketch of its principle? is necessary. I condense from Or- tolan.^ The French law, as to the acts done on board ships of commerce of foreign nations, in her ports, establishes a distinction between (1.) Acts of pure internal discipline of the ship ; or even crimes or common delicts committed by a member of the crew against another member of the crew, when the tranquillity of the port is not compromised ; and (2.) Crimes or delicts committed, even on shipboard, against the persons of strangers, or by any other per- son than a member of the ship's company ; or even those committed between members of the crew by which the tranquillity of the port is disturbed. With 1 Diplomatie de la Mer, liv. ii. ch. xiii. 224 INTERNATIONAL LAW. respect to acts of the first class, the French legislation declares that the rights of the state to which the ship belongs should be respected ; that, in consequence, the local authority may not interfere, at least unless its aid is asked. These acts remain under the police and jurisdiction of the state whose flag the ship car- ries, which police power and jurisdiction are to be en- forced by the consular agents of that state. As to acts of the second class, the French law gives its local authorities full and complete jurisdiction, both police and correctional. As to French merchant ships when in foreign ports, the jurisdiction over acts of the first class, at least so far as the police power ex- tends, is confided to the French consuls, or to the commanders of the French ships of war which may be present. It has been the policy of the French government to procure the same rules to be adopted by treaties with other nations, so that French vessels in their waters shall be treated as their vessels are iu French ports. Such a treaty was concluded with the United States in 1788. Similar trea'ties have been entered into between France and divers American powers, and with Sardinia in 1852, Russia in 1857, and Spain in 1852. It may be possible that this modification of the general international law, which seems to be so just and so practical, should finally become established, by treaty, as a part of the uni- versal public law of nations. § 188. (6.) Pirates. It is an universal principle of the international law that every state has jurisdic- tion over pirates, — to arrest and punish them, no matter of what countries they are natives or citizens, and no matter where or against whom the offence was committed. In other words, pirates may be seized jurisdiction; extradition; intervention. 225 by the armed vessels of any nation ; may be taken to the. territory of that nation ; and are there justici- able for their crimes, although such crimes may not, in fact, have been committed against the property or persons of citizens or subjects of that particular state which exercises the jurisdiction. The theoretical basis of this common jurisdiction is that pirates have no nation ; their crimes have denationalized them ; they are said to be, not in a figure, but in reality, enemies of mankind, — hostes gentium, — at war with the whole human race. At a former day, when pi- racy was common, the penalties against it were most severe ; in many countries they were liable to be put to death without any judicial proceeding or exam- ination. At the present day this, however, is all changed, and pirates must be regularly tried and condemned as much as any other criminals. The principles thus stated apply, however, only to piracy according to the international law. The most important inquiry, therefore, is. What does the in- ternational law declare to be piracy, and whom to be pirates ? In general, pirates are those who rove the seas, under no national authority, but only under their own, to commit thereon acts of depredation, pillag- ing by main force, either in time of peace or of war, the ships of all nations, without making any other distinction than that which their own convenience or safety may suggest. The criminal acts committed by such desperadoes constitute the crime of piracy. Pirates, therefore, on the seas resemble organized bands of highwa3rmen on land ; only, pirates choosing for the theatre of their crimes a neutral sea, a place common to all mankind, and attacking indiscrimi- 15 226 INTERNATIONAL LAW. nately all nations, their trade is even yet more dan- gerous to humanity.^ § 189. The English and American courts, both those of ordinary and those of prize jurisdiction, have had frequent occasion to define this crime. Thus, in England, it has been declared that " Piracy is an as- sault upon vessels navigated on the high seas, com- mitted animo furandi, whether the robbery or forci- ble depredation be effected or not, or whether or not it be accompanied by murder or personal injury. If a ship belonging to an independent nation, and not a professed buccaneer, practises such conduct on the high seas, she is liable to the pains and penalties of piracy." ^ Several cases of piracy came before the Supreme Court at an early day, the most important and lead- ing of which is The United States v. Smith.^ In this case Mr. Justice Story delivered the opinion, and ob- served : ^ " There is scarcely a writer on the law of nations who does not allude to piracy as a crime of settled and determined nature ; and, whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery, or forcible depredation upon the sea, animo furandi, is piracy." § 190. There is one important limitation of the generality of the language used in these definitions that should be carefully noticed. We have seen that if an ordinary private vessel belonging to some ac- knowledged state should be guilty of the acts of dep- redation described, she would be subject to the penal- ties of piracy. But if a public armed vessel, carrying a regular commission, or a privateer bearing a regu- 1 Ortolan, Diplomatie de la Mer, liv. ii. ch. xi. 2 1 Phillimore, p. 379. » 6 Wheaton, 168. * P. 161. jueisdiction; extkaditioit; intekvention. 227 lar letter of marque, should transgress their legitimate authority and commit unwarrantable acts of violence upon the ships of another country, this would not constitute piracy according to international law ; that is, the officers and crew of such armed vessels would not be liable to punishment as pirates at the hands of the injured state or at the hands of any other power ; they would only be justiciable in the courts of their own country, and that country would be answerable to the sovereign whose citizens or subjects had re- ceived the injury. Of course, unless such injury were atoned for, both by public apology and private com- pensation from the government to whom the depre- dating ships belonged, it would furnish ample reason for reprisals or war. § 191. This rule leads to the further question, whether an armed vessel, claiming to be a public man- of-war or privateer of a community which has not yet been recognized as an independent nation, is liable to be treated as a pirate in respect of acts of violence committed against a state with whom such commu- nity is engaged in actual hostilities. This question involves two : namely, May the state against whom such a community is waging hostilities treat these ships as piratical ; and may or should other nations do the same ? I do not now propose to go into an examination of this subject ; it will be carefully con- sidered at a future day. It is enough now to say, that a community does not obtain all international rights until it be fully recognized as an independent nation ; it obtains some international rights, and es- pecially the right of carrying on hostilities accord- ing to the laws of perfect war, by being recognized simply as a belligerent ; that such latter recognition. 228 INTEENATIONAL LAW. though generally formal, may be implied ; that with- out either of these kinds of recognition a community can exercise none of the rights of a separate and in- dependent body politic. As a conclusion from these principles, the armed vessels of a coinmunity which had been formally or tacitly recognized or treated as a belligerent could not be regarded, according to in- ternational law, as pirates. The events of the last six years will suggest examples and illustrations. But, on the other hand, a body of men inhabiting a terri- tory, and claiming to be a state, would not, by that mere fact and claim alone, acquire the right to send forth armed ships of war, and demand that they should be free from the penalties of piracy. A forti- ori would this be so, if the community in question were organized and held together for purposes of plunder. § 192. It is most important to make and keep the distinction between piracy according to the interna- tional law, and piracy which may be declared to be such by the municipal law of any particular state. There is no doubt that every state may, in its inter- nal law, pronounce any acts to be piracy, and allot such punishment as it pleases. But so far forth as those acts diflfered from the requirements of the inters national law, the persons guilty of them would only be justiciable in the courts of that particular nation, and this only in the following cases : If the acts were done beyond the territory of that nation, and not on board a man-of-war, or on board a merchant vessel while upon the high seas, only citizens of that nation would be liable to punishment. If the acts were done within the territory, or on board a man-of-war, or on board a merchant ship of the nation while on JUEISDICTION ; extbadition; intpevention. 229 the high seas, offenders, citizens or subjects of any state, would be liable to punishment. Let us take some particular examples of this restricted piracy. § 193. The Slave-Trade. Is the slave-trade piracy by the law of nations ? Ortolan says no.^ Wheaton says no. Lord Stowell decided in two or three cases that it is not.^ The Supreme Court at an early day adopted the same doctrine.^ Mr. Phillimore acknowl- edges the authority of these cases, but dissents en- tirely from their reasoning and impugns the correct- ness of their conclusions,* But England, the United States, and several other nations have by their stat- utes declared the slave-trade to be piracy. What is the extent to which this legislation can go? The United States may arrest, try, and punish their own citizens for the offence, wheresoever committed. They may only arrest, try, and punish foreign citizens or subjects when the offence is committed within Amer- ican territory or on board of American vessels. The same is true of all other states. This is the extent to which the international law permits the extra-ter- ritorial jurisdiction over breaches of the municipal criminal law to extend. But it is possible for states, by treaties between themselves, to extend this juris- diction. It has been the policy of England to enter into such treaties. She has already done so with Russia, Austria, Prussia, and the United States. These conventions give each country larger powers in sup- pressing the nefarious traffic, including the right to search suspected slavers sailing under the flag of the other contracting power, and, of course, the right to 1 Dip. de la Mer, vol. i. p. 213. » The Louis, 2 Dodson's Adm. R. 210. 8 The Antelope, 10 Wheaton's R. 66. * Phillimore 's Elements of International Law, vol. i. p. 322. 230 INTERNATIOKAL ' LAW. condemn and confiscate such slavers. It would be possible for two nations — England and tbe United States — to stipulate that the citizens of either coun- try should be justiciable in the courts of the other, for the crime of the slave-trade, wherever and when- ever committed. But no such treaty stipulations could affect the subjects of other powers not parties to the convention. § 194. Another case of importance may arise. It is well settled that every maritime nation may not only commission public men-of-war, but may, whUe engaged in hostilities with another state, issue com- missions to private vessels, authorizing them to arm, and to prey upon the commerce of the enemy. Such private armed vessels are technically known as priva- teers. Eightly, a privateer should be owned, fitted out, and commanded by citizens or subjects of the country which commissions it. But suppose a nation engaged in war issues a commission as privateer to all private vessels* owned and fitted out in a state which is neutral to both belligerent parties, and this priva- teer should proceed to commit acts of hostility upon the commerce of the country which was enemy to the one that granted the commission, would it be a pirate according to the international law ? Ortolan, in answering this question, remarks : " All the world will agree that the situation of such a ship is contrary to the law of nations ; and that the crew, or at least the captain and officers, who have more intelligence and understand the character of their acts, are un- worthy of being treated according to the laws of war. But that this constitutes the veritable crime of piracy, as that is understood in the international law, cannot be claimed as universally admitted." ^ ^ Dip. de la Mer, vol/ i. p. 215. JUEISDICTION ; EXTRADITION ; INTERVENTION.' 231 Certain nations have endeavored to supply the omission of the general public law, and in treaties have engaged to prevent their citizens or subjects from accepting such commissions. Often the contract- ing states have stipulated to consider the officers and men of a privateer, thus commissioned, as pirates and to punish them as such. Of this character are trea- ties between the United States and France (February 6, 1778) ; and Sweden (AprU 3, 1783, July 4, 1827) ; and Great Britain (November 19, 1794) ; and Prussia (September 10, 1785, May 1, 1828) ; and Spain (Octo- ber 27, 1795, February 22, 1819) ; and Central Amer- ica (December 5, 1825). M. Ortolan, speaking of these treaties, remarks : " As for ourselves, we hesi- tate not to express the opinion, that the particular stipulations of these treaties ought to become an uni- versal principle of the international law." ^ § 195. Another case involving analogous circum- stances and principles may arise, namely : If a pri- vateer accepts a commission from two or more states, and thereunder commits acts of hostilities, is it a pirate by the general international law ? This case may again be resolved into several others. The privateer may take a commission from each of the two belligerent powers. All public writers agree that such a vessel would be a public pirate.^ Phillimorie says : " A vessel which takes commis- sions from both belligerents is guilty of piracy, for the one authority conflicts with the other. But a nicer question has arisen with respect to a vessel which sails under two or more commissions granted by al- lied powers against a common enemy. The better 1 Dip. de la Mer, vol. i. p. 218. 2 Ortolan, vol. i. p. 223. 232 INTEENATIOITAL LAW. opinion seems to be that such practice is irregular and inexpedient, but does not carry with it the sub- stance or the name of piracy."^ Wheaton expresses the same opinion.^ Ortolan considers the subject with more care and particularity. He lays down as a general principle that taking a commission from two states subjects the vessel to the penalties of piracy. He states that it is universally admitted to be so, if these states are at war with each other. He then puts the case of a ship commissioned by two states to each of which it is a stranger, without assuming that they are hostile to each other, and says : " Incon- testably, in our opinion, this is piracy by the inter- national law." He pronounces the same decision in respect to a vessel which receives a commission from the government of its own country, and also from that of another state not allied to its own. Finally he puts the case of a vessel commissioned by its own nation, and by one or more powers allied to this na- tion, in a common war against a common enemy. This he says is not piracy : nevertheless it is irreg- ular, it is opposed to international law, and opens the door for great abuses.* It will be seen, therefore, that M. Ortolan materially restricts the generality of the rule stated by Phillimore and Wheaton. When these latter authors would permit commissi-ms to the same privateer from allied powers against Wcor com- mon enemy, M. Ortolan, very properly as it|;^afims to me, would confine this immunity to the smgle" case in which the vessel belonged to one of these allied powers, and was therefore foreign only to the other. How far neutral nations are affected by the accep- ^ Phillimore, vol. i. p. 394. « Vid. Dip. de la Mer, vol. i. pp. " Wheaton's Ele. part ii. ch. ii. 219-223. §15. jurisdiction; extradition; intervektion. 233 tance of commissions by their citizens from belliger- ents will be carefully considered in another lecture. It may be added that the capture of goods by pi- rates does not divest the rightful owners of their property ; so that if the pirates themselves be taken, and found in possession of the goods ; or if the goods themselves be seized by the armed force of any na- tion, they should be restored to their owners, deduct- ing, of course, the proper salvage. § 196. (7.) Some instances of Jurisdiction within the Territory of other Nations, -=- generally half-civil- ized, — founded upon special Treaty. Of course it is competent, according to the principles of the interna- tional law, for any independent state to permit an- other state to exercise jurisdiction within its territo- ries. This could only be done, however, by compact, express or implied ; and in fact is done by treaty. The entire system of internal polity in Mahometan and Pagan nations is so radically different from that which prevails in Christian countries, that the gov- ernments of the latter have been unwilling that their citizens and subjects, when within the territories of the former, should be'governed by 'their laws, and ex- posed to the uncertainties and risks of their modes of administering justice. For this reason, from an early day, the Christian powers of Europe had con- cluded treaties with various Mahometan countries by which certain rights of jurisdiction were secured. Generally speaking, it may be said that at, the pres- ent day the consuls of Christian powers residing in Turkey, and other Mahometan countries of the Le- vant, exercise an exclusive criminal and civil juris- diction over their fellow-countrymen. The crirniiial jurisdiction is usually limited to the infliction of a 234 INTEENATIOKAL LAW. fine ; in graver cases the consul exercises the func- tions of an examining magistrate, collecting evidence of the crimes, and transmitting it, together with the offenders, to the tribunals of their own country. Eng- land and several other European states have effected treaties with China, Japan, and other Asiatic coun- tries, which concede even greater extra-territorial powers.^ In 1844, a treaty was concluded between the United States and China which stipulates, in sub- stance, that citizens of the United States who commit any crime in China shall only be subject to be tried and punished by the consul or other public function- ary of the United States thereto authorized ; and also that disputes as to civil matters between American citizens shall be similarly determined. Similar trea- ties exist with several other Asiatic powers. In all these cases the consuls are to apply, as far as possi- ble, the statutes or common law of their own state. It is also very common for maritime powers to ex- tend by treaty the jurisdiction of their respective consuls over disputes on merchant ships, and over the cases of desertion by sailors. But I need not take up your time with a reference to the provisions of tliese conventions. III. Renvoi and Extradition. § 197. Intimately connected with the doctrines of territorial and extra-territorial jurisdiction are the subjects of renvoi and extradition, which I wiU now briefly consider. (1.) Renvoi. It may be considered that every na- tion is under an international obligation to receive back its citizens and subjects who have gone forth from its territory. Corresponding to this obliga- 1 Phillimore, vol. i. p. 363. JUEiSBicTioN ; extbadition; intervention. 235 tion is the international right of every state to send back the citizens or subjects of another who have come into its territory, and whose presence may be disagreeable. This latter right is termed the right of renvoi. That it exists is conceded ; whether it be exercised or not must depend upon the policy of the government ; and how exercised must be determined entirely by the public law of the nation into whose territory the foreigners have come.^ This right, how- ever, ceases when the foreigner has been expressly or tacitly naturalized in the country which would expel him. Ortolan says : " In fact, the government of each state has the right to compel foreigners who are within its territory to depa;'t. This right is based upon the fact that, such foreigner forming no part of the nation, his individual admission into the terri- tory is a matter of pure favor, of simple tolerance, and not of obligation. The exercise of this right may be subjected, without doubt, to certain forms, by the internal law of each country ; but the right none the less exists, and is universally recognized and prac- tised." 2 § 198. (2.) Extradition. While every state has the undoubted right to decline to receive a foreigner, or even to return him to his own country, the question whether a state is under any international duty to return a criminal who has escaped from the territory where his offence was committed, at the demand of the government which seeks to punish, has not been regarded by all juridical writers as settled. Such giving up and return by the state which the offender has sought as an asylum, upon the request or demand 1 See Martens, lib. iii. oh. iii. § 91, b. ; Phillimore, vol. i. p. 407. ^ Dip. de la Mer, liv. ii. ch. xiv. p. 297. 236 INTEENATIONAL LAW. of the nation whose laws have been broken, is tech- nically known as extradition. Is the duty of ex- tradition laid upon nations by the positive rules of the international law, so that, in the absence of any special treaties to that effect, the criminal must or should be surrendered ? Writers of the highest au- thority answer this in the affirmative. These are Grotius,^ Burlamaqui,^ Vattel,^ Kent.* Kent says : , " It is the duty of government to surrender up fugi- tives on demand, after the civil magistrate shall have ascertained the existence of reasonable ground for the charge, and sufficient to put the accused on his trial. For the guilty party cannot be tried and pun- ished by any other jurisdiction than the one whose laws have been violated ; therefore the duty of sur- rendering him applies as well to the case of the sub- jects of the state surrendering, as to the case of the subjects of the power demanding, the fugitive." Not- withstanding the high character of these writers, the vast weight of juridical authority is on the negative side of this question ; and asserts the principle that the duty of extradition is not one of positive obliga- tion, but only of comity, and requires the positive stipulation of a treaty to make it binding. M. Pin- heiro-Ferreira, in his learned notes upon De Martens' treatise,^ enumerates the following writers as advo- cating this view : Puffendorf,® De Voet,^ Kluber/ 1 De Jure Belli et Pads, lib. ii. ch. xi. §§ 3-5. " Droit Naturel, tit. ii. part iv. ch. iii. §§ 23-29. 8 Droit des Gens, lib. ii. ch. tI. §§ 76, 77. * Comment, vol. i. p. 37. 6 § 101, note. » Elementa, lib. viii. ch. iii. §§ 23, 24. 1 De St. § 11, ch, i. No. 6. ' Droit des Gens, § 66. jurisdiction; extradition; intervention. 237 Kluit,^ Saalfeld,^ Schmaltz,* Mittermaier,* De Cussy.^ To these may be added Wheaton,® Story/ Phillimore,^ Foehx.® [The subject is also discussed and passed upon in the following American cases : The Matter of Washburn, 4 Johns. Ch. R. 106 ; CommonweJalth v. Deacon, 10 Serg. & Rawle, 123 ; Holmes v. Jennison, 14 Peters, 540-598.] Even by those writers who urge the positive inter- national duty of extradition, without treaty to that effect, the obligation to return a criminal would be limited to the following cases: (1.) The country de- manding the criminal must be the country where the crime was committed ; in other words, the offender whose extradition is sought must literally have been a fugitive from justice, escaped from the very terri- tory of the sovereignty whose laws he has violated. (2.) The act done must be such as is regarded as a crime by both states ; this would cut off the case of all mere political offenders. (8.) The offender must not be a citizen of the state which is called upon to surrender him. Notwithstanding the broad language of Chancellor Kent, those who insist upon the duty of extradition do not require a state to give up its own citizens. § 199. As a matter of fact the different states of Europe and America, however they may have, at times, surrendered a fugitive criminal as an exercise 1 De Deditione Profugorum, § 1, p. 7. « Handhuch des Posidven Volkerrecht, § 40. 8 Europdisches Volkerrecht, p. 160. 4 Das Deutsche Strafverfahren, Th. i. § 59, pp. 314-319. 6 Phases et Causes Celebres, t. ii. p. 434, etc. 8 Elements, Dana's ed. p. 182, note 73. T Conflict of Laws, § 628. * Int. Law, vol. i. p. 413. » Droit Intern. Prive, vol. ii. p. 326. 238 INTERN ATIOKAL LAW. of mere international comity, have steadily refused to consider themselves bound to do so, in the absence of any treaty stipulations. Independent nations may en- ter into such conventions as they please ; and extra- dition treaties are now very common. Still the jeal- ousy of foreign interference has been shown in a marked manner both in the clauses and in the inter- pretation of this species of compact. Of course any two nations may bind themselves in such manner as their notions of policy may dictate ; and treaties of extradition are by no means identical in their pro- visions ; but there is a general similarity among them all. They all have the following features, more or less plainly defined : — (1.) The person reclaimed must have been an ac- tual fugitive from justice, having committed the of- fence within the jurisdiction of the state which makes the demand. (2.) As a general practice, only those who have committed crimes of any magnitude are included in these treaties ; the offences being specifically men- tioned and enumerated. (3.) Only those who have been guilty of acts which are crimes, according to the municipal law of both countries, are included. In other words, the acts must be offences against the law of nature — those general rules of conduct which guard the security and safety of persons and property. (4.) Most states absolutely refuse to give up polit- ical offenders. This is the settled policy of England and of the United States. (5.) Many states absolutely refuse to surrender their own citizens on any pretext. The provisions of these treaties being thus restricted, the acts of dif- JURISDICTION; EXTKADITION ; INTERVENTION. 239 ferent governments in giving them interpretation have constantly tended to confine and narrow, rather than to extend, their operation. Nothing is ever added by construction. Our own government has generally acted with liberaUty in enforcing the trea- ties entered into by the United States, while Great Britain has made the stipulations on her part very much a dead letter. Mr. Phillimore remarks: "It appears that in respect to proceedings had in virtue of these treaties, the applications of the British govern- ment to France and the United States have been gen- erally successful, but that the reverse may be predi- cated of the applications by France and America to Great Britain." § 200. "We will now examine the provisions of those extradition treaties which are the most impor- tant to us, — namely, those concluded by the United States. On the 9th of August, 1842, a treaty was entered into with Great Britain, by which it was agreed : " That the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their min- isters, officers, or authorities, respectively made, de- liver up to justice all persons, who, being charged with the crime of murder, or assault with the intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other. Provided, that this shall only be done upon such evi- dence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had been there com- 240 IHTEENATIONAL LAW. mitted; and the respective judges and other magis- trates of the two governments shall have power, ju- risdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, — to the end that the evidence of criminality may be heard and considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magis- trate to certify the same to the proper executive au- thority, that a warrant may issue for the surrender of such fugitives." On the 9th of November, 1843, a treaty was con- cluded between the United States and France, the operative provisions of which are similar to those of the one just quoted. This treaty is diBclared to ap- ply to persons charged with any of the following crimes, to wit : " Murder (comprehending the crimes designated in the French Penal Code by the terms as- sassination, parricide, infanticide, and poisoning), or with an attempt to commit murder, or with rape, or with forgery, or with arson, or with embezzlement by public officers, when the same is punishable with in- famous punishment." By a convention of February 24, 1845, between France and the United States, the crimes of robbery and of burglary were added to the foregoing list. In 1852, a similar treaty was entered into between the United States and Prussia ; the latter nation act- ing on her own behalf and on behalf of many of the other states which formed the Germanic Confederacy. This treaty differs from the two already described in providing that neither nation should be called upon JUEISBICTION ; EXTEADITION ; INTERVENTION. 241 to surrender its own citizens. The crimes enumerated, for the commission of which persons shall be surren- dered, are, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, the utterance of forged papers, the fabrication or circulation of counterfeit money, whether coin or paper money, and the embezzlement of public moneys. It will be noticed that all these treaties require the crime to be committed within the jurisdiction of the country demanding the surrender ; that the enumer- ated crimes are all of a high grade, and are equally crimes by the municipal law of each of the contract- ing powers ; that the examining magistrate is to pro- ceed as he would in case the crime had been com- mitted against his own state, and he were examining with reference to a preliminary commitment ; that by the peculiar language of the treaties with Great Brit- ain and France, the contracting powers may be called upon to surrender their own citizens, in cases where all the other requirements had been fulfilled. § 201. In 14 Howard R. 103,^ the Supreme Court of the United States had occasion to consider the true meaning of the treaty with Great Britain. Kane was claimed as a fugitive from justice. The United States examining magistrate had decided in favor of his ex- tradition. Application was made for his release on writ of habeas corpus. The Supreme Court decided that they had no authority to interfere. The ground for the applicatioil was, that the steps were irregular which resulted in the order for extradition. The British consul, instead of applying to the executive department for a warrant of arrest and examination, had applied in the first instance to the magistrate or 1 The Matter of Kane. 16 242 INTEEKATIONAL LAW. United States commissioner. It was claimed that the initiative should have been made by the President. Some of the judges held one of these views, and some the other. The general result of this case is, that under the British treaty, the proceeding may either commence with a mandate from the President or by a warrant direct from the examining magistrate. Foreign governments may apply to ours in the first place. That course is certainly the safest, though it may not be necessary. But, in either event, the sub- sequent proceedings are under the direction of the examining magistrate, and cannot be controlled by the President. Numerous treaties of a similar or an analogous character have been concluded by European powers, and, if the student has a curiosity to know their num- ber and extent, he will find a list and general de- scription in Phillimore, vol. i. pp. 418-430 ; Foelix, " Droit International Priv^," vol. ii. pp. 331-337, § 612 ; De Martens, vol. i. p. 278 (note). § 202. Intervention. I have now finished the state- ment and description of the various particular inter- national rights which flow from the element of na- tional independence as their primary source. In the original analysis of this subject, contained in a former lecture, I remarked that " this entire class is, how- ever, subject to a limitation analogous to that under which private persons enjoy their property, dominion, and privileges of status under the municipal law, and which is expressed in the familiar maxim, Sic utere tuo, ut alienum non Icedas. This limitation gives rise to the right of one state sometimes to interfere in the affairs of another, which is termed by publicists the right of intervention. Of course something more is jurisdiction; extradition; intervention. 243 meant than the right of one to resist when directly attacked by another, and, if necessary or expedient, to carry the war into the very territory of the attack- ing party. I have said that the right of intervention is analo- gous to the doctrine named in the private municipal law; and it is only analogous, not identical. The difference arises from the fact that there is no inter- national tribunal, no international executive, to judge, establish, and administer the mutual rights and duties of sovereign states. All states are equally sovereign and independent. How far the right of intervention legitimately ex- tends ; under what circumstances it may be invoked ; to what extent it may be carried ; are questions that have given rise to much discussion, — questions that have never been authoritatively settled, and perhaps never will be settled. Hardly a writer absolutely de- nies the existence of the right at all ; it would seem to be unsafe to go to this length. On the other hand, it seems almost equally unsafe to admit the right to exist at all ; for as it is utterly impossible to place any exact limits upon it, its very admission may open the door to vast and terrible abuses. In fact, the whole history of the civilized world in ancient times and down to our own very day, in pagan and Chris- tian nations, abounds with illustrations of interference and intervention in the affairs of other states, a few of them apparently just and followed by good results, very many utterly unjustifiable, done in the interest of arbitrary power and oppression, and sure to be fol- lowed by a destructive Nemesis, and some indifferent in their character. We know that some states have based their foreign 244 INTEKNATIONAL LAW. policy formally and avowedly upon the principle of intervention in behalf of certain ideas of government and civil polity. While we, as well as all the rest of mankind, would reprobate the infamous act of Kussia, Austria, and Prussia, in dismembering and partition- ing the kingdom of Poland; we, with the rest of mankind, would be likely to applaud the act of the great powers in intervening between Turkey and Greece, and establishing the independence of the lat- ter. Again, the intervention of England and other powers in the internal affairs of Prance after the first revolution has been warmly commended by a large majority of English publicists and statesmen, and as warmly reprobated by a majority of French juridical writers. § 203. While the fact is, as stated, that instances of intervention are and have been constantly occur- ring, I am of opinion that the whole subject does not so much belong to international law as to polities. If an intervention be ever legitimate, according to the rules of international law, the state which was made the subject of it ought to acquiesce without resist- ance, because non^ of its rights would have been in- jured. But no state, no people, would ever submit to such interference if they had the ability to resist, and the intervening government would never expect it. The nation that interferes always must count the cost of its act, and be prepared to maintain its posi- tion by force. In short, I cannot think that the sub- ject of intervention has been, or perhaps can be, reg- ulated by the positive international law ; it must be relegated to the domain of those high politics, those principles of expediency, which control the conduct, both domestic and foreign, of nations. My time and jurisdiction; extradition; intervention. 245 space and my general design do not permit me to en- ter into the discussion of this interesting subject. It is, to a great extent, historical. The student will find an admirable summary of the most important occa- sions on which one nation has intervened in the affairs of another in Phillimore's treatise, vol. i. pp. 433- 483. The same writer is inclined to give the right of intervention a much greater force, as one of the posi- tive rights of the international law, than I am able to admit. He sums up the discussion by the following statement : " The reason of the thing and the prac- tice of nations appear to have sanctioned this inter- vention in the following cases: I. Sometimes, but rarely, in the domestic concerns and internal rights of self-government, incident, as we have seen, to every state. II. More frequently, and upon far surer grounds, with respect to the territorial acquisitions or foreign relations of other states, when such acqui- sitions or relations threaten the peace and safety of other states. " In the former case, the just grounds of interven- tion are : (1.) Self-defence, when the domestic insti- tutions of a state are inconsistent with the peace and safety of other states. (2.) The rights and duties of a guarantee, (3.) The invitation of the belligerent parties in a civil war. (4.) The protection of a re- versionary right or interest. " In the second case, the just grounds of interven- tion are : (1.) To preserve the balance of power ; that is, to prevent the dangerous aggrandizement of any one state by external acquisitions. (2.) To protect persons, subjects of another state, from persecution on account of professing a religion not recognized by that state, but identical with the religion of the in- 246 INTEENATIONTAl LAW. tervening state." Mr. Phillimore discusses each of these cases with great wealth of illustration, acknowl- edging that some of them are liable to great abuse. It must be remembered that the intervention spo- ken of is forcible or armed. There is no possible objection to any state attempting to accomplish one of the above objects by persuasion, by friendly inter- ference and negotiation, and by treaty. After all, it appears to me that the whole matter belongs to pol- itics. CHAPTER VI. EIGHTS FLOWING FROM THE EQUALITY OF STATES: THE RIGHT OF ITS SUBJECTS' PROTECTION. § 204. We finished in the last lecture the state- ment and description of those primary rights which flow from independence ; we are now to examine those which are referable chiefly to that other grand and essential element and attribute of nationality — Equality. It will be remembered that in Chapter III. we gave an analysis of primary rights with the prin- ciples of their classification. It was there stated that those flowing from national equality are : — A. The right of a state to protect its citizens everywhere, at home and abroad. B. The right of each state to be recognized. C. The right to external marks of honor and re- spect. D. The right to enter into treaties. E. The right of embassy. I shall proceed to take up and discuss these classes in order. Some of them are very interesting, and have given rise to much discussion among American publicists and diplomatists. A. The right of every state to protect its citizens ■everywhere at home and abroad. § 205. That every state has the full right to pro- tect its own citizens at home, within its own territory and jurisdiction, is a self-evident proposition, and we 248 INTEENATIONAL LAW. need not stop to discuss it. Indeed, this particular branch of the subject belongs rather to the internal public law of a country than to that law which gov- erns its external relations. It is only when its citi- zens are abroad, within the territory, or under the jurisdiction, of other powers, that its right to protect assumes the character of an international right. Un- der these circumstances it is plain that the right of one state to protect its citizens, and of the other state to exercise jurisdiction over all persons and things physically within its territory, are, to a certain ex- tent, antagonistic, and that one must be a limit upon the other. Perhaps I should express myself with greater accuracy by saying that the right of protec- tion is a limit upon the right of jurisdiction ; for the former can in no case, except as the result o£ positive treaties, oust the latter ; but can only control its ex- ercise. In other words, the essence of this right of protection consists in the ability which every state has of requiring that the jurisdiction over its own citizens, which may be exercised by other states in whose territory those citizens may be found, shall be exercised in a regular, legal, just, and impartial man- ner. This general principle is perfectly well settled ; the difficulty is in its application. Thus, no state may complain or object because its citizens, while tempo- rarily or permanently within the territory of a foreign nation, are tried and punished for crimes there com- mitted by them ; or are subjected to civil suits for claims there arising, and are deprived of their, prop- erty or some portion thereof by the final ju^^ment and process in such suits. Nor is there any ground of complaint because the procedure, the method of trial, the grade and character of the criminal punish- EIGHTS PLOWING FROM EQUALITY OF STATES. 249 ment, or of the civil remedy, may all be very different from those adopted in the state of which the persons are citizens. Having voluntarily left their own coun- try and entered that of another people, such persons not only tacitly agree to obey the laws of the latter, but to be subjected to its forms and modes of proced- ure. What the state may demand in respect to its own citizens while abroad is, that the foreign laws shall be applied to them in a just, equitable, and im- partial manner ; that the due and ordinary modes of procedure should be adopted; that no arbitrary or unusual steps or measures should be taken. Much less does any state warrant the infallibility of its own tribunals ; so that if the foreign citizen had been regularly tried and condemned for an alleged crime, according to the due and regular course of judicial proceedings in that country, the state of which he was a citizen would have no ground of complaint as for a breach of international law, because that citizen might have been mistakenly convicted. To illustrate by an event which lately transpired : One of the Fenian prisoners tried and condemned in Canada as- serts, and his friends assert, that he was not a Fenian, that he had no connection with the invading horde, that he was accidentally at the place, or attracted thither by curiosity, and that his conviction was an entire mistake of fact. Assume all this to be true ; still, as the trial was according to the regular course of law in Canada, and no undue advantage was taken of the prisoner, no arbitrary measure used towards him, our government would have no legal ground of complaint were the Canadian authorities to proceed to extremities and execute the convict. I repeat again, no state assumes, or can be required, to war- rant the infallibility of its own tribunals. 250 INTEENATIOKAL LAW. § 206. The right of protection may be exercised in another manner. Although no state can be com- pelled to admit foreigners, yet when once the stran- gers are admitted, the international duty devolves upon that state of seeing that such foreign tempo- rary or permanent residents have justice done them by others, as well as requiring them themselves to be amenable to the local laws. Therefore, when a foreign temporary or permanent resident acquires rights as against the state in which he is, or as against the citizens of that state, the state itself must afford him the regular customary means of enforcing those rights ; and a final neglect or refusal so to do is a breach of international law, and gives the nation of which the injured person is a citizen good and just ground for complaint, and, satisfaction being re- fused, for war. But before resort should be had to this international means of redress, it ought to ap- pear that the person has exhausted all other means ; that he has been refused aid by the courts, that he has applied to the executive department and been finally refused there. Then, and then only, may the state of the injured party resort to reprisals or to war. A practical difference may exist between the case of a foreigner domiciled in a country of which he is not a citizen, and the case of such a foreigner tem- porarily and transiently there. The former person may well be subjected to many claims from the state of his adoption which would be unwarrantable if de- manded from the latter ; thus, he might well be called upon to pay taxes, to do military service, and the like. These principles are well established; their diffi- EIGHTS FLOWING FROM EQUALITY OF STATES. 251 culty consists in the application to particular cases ; and this difficulty will almost always be complicated by disputes as to facts ; such as whether orderly and legal, or arbitrary and exceptional, measures were re- sorted to — whether the person had broken the local laws or not, etc., etc. § 207. The peculiar policy of our own nation and government has given rise to a series of questions re- lative to the extent of the right and power of protec- tion over our citizens abroad, very difficult of solu- tion, and which at one time threatened a breach of friendly relations between ourselves and certain Euro- pean states. The policy and practice to which I refer is that of naturalizing foreigners, and thus clothing them with United States citizenship. As the internal law of most of the European countries does not rec- ognize the power of subjects to throw off their na- tive allegiance by their own acts ; and in theory con- tinues to treat such persons as, to all intents and purposes, still owing supreme and undivided duty to their natural rulers ; it is plain that distressing col- lisions may arise between our own government and those of other countries. Let me attempt to state the questions which may arise. In the first place, it is conceded that a naturalized citizen is not, any more than a native born citizen, exempt from the consequences of crimes committed abroad. In other words, if a naturalized citizen vol- untarily returning to his native country should there commit a crime, or incur a civil obligation, he would be there liable to the same extent as one of our nat- ural born citizens in the same circumstances; and would be entitled to exactly the same amount of pro- tection from our government. The same is true, in 252 INTERNATIOKAL LAW. case the person had committed a crime or incurred a debt in his native country, had escaped to the United States, had there been naturalized, and after such naturalization had voluntarily returned to the land of his birth. Neither he nor his adopted coun- try could complain, if he were arrested, tried, and punished for the crime, or sued for the debt, accord- ing to the regular course of law. The intermediate naturalization and transfer of allegiance could not be claimed to> have destroyed the responsibility for the former crime, or the liability for the former debt. I believe that these positions have never been contro- verted : I am not aware that the contrary has ever been maintained. § 208. But other circumstances might arise which would present the subject in a very different aspect. Suppose the person having committed some crime in his native country should escape, become naturalized in the United States, and, instead of voluntarily re- turning to his place of birth, should by some means be forcibly and against his will seized and carried within the jurisdiction of his original government ; would our own authorities be justified in interfering, and extending the protection of the United States over their new-made citizen ? Again : suppose a naturalized citizen should volun- tarily return, upon a mere temporary visit, to his na- tive country, might he there be subjected to a certain class of claims which do not imply any criminal act or default on his part, or any debt or ordinary private civU liability, but which assume the continued exist- ence of his native allegiance, and of his natural duty to aid in the support and maintenance of his original government. Thus, might he be required to serve his RIGHTS FLOWING PROM EQUALITY OP STATES. 253 time as a conscript in the national army of his native country ? If drafted and forced to serve, might our authorities justly interfere, and demand his release ? and would a refusal be sufficient cause for war ? § 209. The first of these cases arose in our diplo- matic history, and was the occasion of an animated dis- cussion between our own government and that of Aus- tria. The case was that of Martin Koszta. The facts were briefly as follows. Koszta was an Hungarian by birth, and a subject of the Austrian Empire. He was engaged in the insurrection of Hungary of 1848-9, and was of course guilty of an offence equivalent to our crime of treason. Upon the overthrow of the in- surrection he with others escaped to Turkey; and after some delay proceeded to the United States. He there, in July 1852, took the initiatory steps to be- come an American citizen. After remaining in the United States about two years, he proceeded for a temporary business visit to Turkey, and put himself under the protection of the United States consul at Smyrna. While in that city, without the consent of the Turkish authorities, but by the procurement of the Austrian consul at Smyrna, he was seized by a band of lawless ruffians, and carried on board an Aus- trian man-of-war lying in the harbor, and there con- fined. The United States consul demanded his re- lease, which was refused. It appeared that the Aus- trian vessel was about to sail for Trieste, an Austrian port, and that Koszta would thus be brought within Austrian territory. Thereupon the commander of a United States man-of-war, which was lying in the same harbor, informed the Austrian commander that the man must be surrendered, or the ship would be fired into. Thereupon Koszta was landed, and placed 254 IKTERNATIONAL LAW. in the keeping of the French consul to await the de- cision of the American and Austrian governments. The discussion between the two cabinets was long and somewhat acrimonious. But I believe that Mr. Marcy, who was Secretary of State, conducted the correspondence with so much ability that he con- vinced even his opponents. He took the broad ground that the United States should extend protection to its citizens; that this man, having taken the initiatory steps, was, so far as international relations are con- cerned, to be deemed a citizen ; that not having vol- untarily returned to the Austrian dominions, it was a gross outrage to seize him, and force him against his wUl within that territory and jurisdiction ; that finally, instead of apologizing for any alleged insult to the Austrian flag, the American government en- tirely approved and adopted the act of their naval officer, and in its turn demanded the release of Koszta. This demand was agreed to, and the man was per- mitted to return to the United States. Now although Koszta's crime was a political one, and probably commended him to the sympathies of most Americans, I see no reason why the same doc- trines would not apply to the case of any other of- fender. Doubtless, indeed, our government would not have exhibited as much alacrity, in case the man had been a common murderer or thief ; but they certainly might have done so with the same result. § 210. Another case, in the year 1854, called out a note from Mr. Marcy to the Charg^ d' Affaires of the United States at Vienna. A certain man named Tou- sig, of Austrian birth and American naturalization, invoked the protection of our government. Mr. Marcy says : " There is a feature in this case which EIGHTS FLOWING FROM EQUALITY OF STATES. 255 distinguishes it from that of Koszta. Tousig volun- tarily returned to Austria, and placed himself within the reach of her municipal laws. He went by his free act under their jurisdiction, and thereby sub- mitted himself to them. If he had incurred penalties or assumed duties while under these laws, he might have expected they would be enforced against him, and should have known that the new political rela- tion he had acquired could not operate as a release from these penalties. Having been once subject to the municipal laws of Austria, and while under her jurisdiction violated these laws, his withdrawal from that jurisdiction and acquiring a different national character w6uld not exempt him from their operation whenever he again chose to place himself under them. Every nation, whenever its laws are violated by any one owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the pen- alties incurred upon the transgressor, i£ found within its jurisdiction. No nation has a right to supervise the municipal code of another nation, or claim that its citizens or subjects shall be exempted from the operation of such code, if they have voluntarily placed themselves under it. . . . This principle does not at all interfere with the right of any state to protect its citizens, when abroad, from wrongs and injuries, — from arbitrary acts of oppression or de- privation of property, as contradistinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves. I do not dis- cover any principle in virtue of which this govern- ment can claim, as a matter of right, the release of Tousig. He has voluntarily placed himself within 256 INTERNATIONAL LAW. the jurisdiction of the laws of Austria, and is suffer- ing for the acts he had done in violation of those laws while he was an Austrian subject." The secretary plainly came to a conclusion entirely in accordance with the international law. With the course of his reasoning, and the language employed by him, I have no fault to find, so long as that rea- soning and language are confined to analogous cases of persons who actually committed crimes against their former government. But the general expres- sions of his argument need to be thus confined, and should only be taken, as it seems to me, under the limit soon to be stated. § 211. Let us now examine the case of a natural- ized citizen, returning temporarily to his native coun- try, and there subjected to claims founded upon the assumption alone, that his natural allegiance and na- tionality still remain, and that he is still bound to support and maintain his original government, — claims similar to that of Serving in the army. Mr. Wheaton, while United States minister resident at Berlin, is reported to have expressed himself upon this point. A Prussian subject who had emigrated to the United States, and had there become natural- ized, returned temporarily to Prussia, and while there was drafted into the army, according to a law which requires all Prussian subjects to serve a certain num- ber T)f years. He applied to Mr. Wheaton for pro- tection. That gentleman replied : " Had you re- mained in the United States, or visited any other foreign country (except Prussia) on your lawful busi- ness, you would have been protected by the American authorities at home and abroad in the enjoyment of all your rights and privileges as a naturalized citizen of EIGHTS FLOWING FKOM EQUALITY OF STATES. 257 the United States. But having returned to the coun- try of your birth, your native domicil and national character revert (so long as you remain in the Prus- sian dominions), and you are bound in all respects to obey the laws, exactly as if you had never emi- grated." I cannot believe this opinion of Mr. Wheaton to be correct ; it does not express the general convictions of the American people, nor the demands and practice of the modern American diplomacy. If correct, then indeed American citizenship by naturalization is a mere empty show, a shame and disgrace. There is a difference, vast and essential, between the case of the foreign country enforcing its penal laws or private civil liabiUties upon its former sub- jects, who have emigrated, assumed American citizen- ship, and temporarily returned within the native jurisdiction ; and the case of the same country enfor- cing laws based solely upon the assumption that these former subjects are still, to all intents and purposes, subjects. In the former case the individual is amen- able to the criminal and civil laws of Prussia, for instance, without any reference to his particular citi- zenship ; the liability is not based at all upon the fact of citizenship ; an American is just as liable as a Prus- sian, and a native American citizen is equally liable with one naturalized. But in the second case, the individual is amenable to the Prussian law primarily and exclusively, on the ground that he is a Prussian subject, owing duty as such to serve a part of his life in the Prussian army. Now he cannot be both an American citizen and a Prussian subject. If he is one he cannot be the other. If American citizenship means anything but a mere name, it certainly ab- 17 258 INTERNATIONAL LAW. solves the former Prussian from all those duties which devolved upon him solely from the existence of his original national allegiance. There may thus arise a conflict of claims ; but as we recognize the power of a person to throw off the allegiance of his birth by his own act, and to assume another, we ought to be prepared to maintain our theory by force, if neces- sary, and throw the protection of the American gov- ernment over our adopted citizens under these cir- cumstances. The limit which should be placed upon the general language of Mr. Secretary Marcy, above quoted, is now plain. I believe that the position taken by the govern- ment of the United States at present is in accord- ance with the views now expressed; and I believe also that the states of Europe very generally accede to our claim. The wonderful exhibition of our mili- tary power made during the last six years will, doubtless, add a peculiar force and cogency to the arguments of our diplomatic agents.-^ § 212. I will conclude this discussion by a refer- ence to a case which arose in 1851, while Mr. Web- ster was Secretary of State. I quote from the case, not because it presented any difficulty, but because the rules of the international law are stated by Mr. ^ Since this was written, the po- exemption from certain antecedent sition contended for by the author claims, particularly of military ser- has been successfully maintained vice upon return to the country of by negotiations with several foreign their origin. states. In 1870, Great Britain Thus, with Baden, Bavaria, Bel- yielded her claim to the indelible gium, Hesse, Mexico, the North allegiance of her subjects. In 1868, German Union, and Wiirtemberg, the United States gave up a similar in 1868; with Sweden and Norway, claim. By various naturalization in 1869; with Austria and Great conventions, this government has Britain, in 1870, and Denmark in secured for its naturalized citizens 1872. — Ed. EIGHTS PLOWING FROM EQUALITY OF STATES. 259 Webster with that clearness and precision in which he was unequalled. One John S. Thrasher was a na- tive-born American citizen ; he had, with his family, removed to Cuba, had resided there for many years engaged in business ; was plainly domiciled there ; and there was evidence that legal steps had been taken by which he had sworn allegiance to the Span- ish crown. It was alleged that he was engaged in the attempt of Lopez to wrest Cuba from the Spanish dominion ; he was, therefore, arrested and tried for high treason or conspiracy against the crown of Spain ; was condemned to eight years' imprisonment at hard labor, and was sent to Spain in execution of that sentence. His friends invoked the interposition of our government in his behalf, on the ground that he was an American citizen. Mr. Webster in his re- ply examines the facts of the case, discusses the doc- trine of domicil and the effect of a change therein ; alludes to the oath taken of allegiance to the Spanish crowTi ; lays down the general rule that all persons are amenable to the penal laws of the state within whose territory they may be, and proceeds : " Every foreigner residing in a country owes to that country allegiance and obedience to its laws, so long as he remains in it, as a duty imposed upon him by the mere fact. of his residence and the temporary protec- tion which he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the uni- versal understanding in all civilized states, and no- where a more established doctrine than in this country. . . . Our citizens who resort to countries where the trial by jury is not known, and who may there be charged with crime, frequently imagine, when the laws of those countries are administered in the forms custom- 260 INTEKNATION-M, LAW. ary therein, that they are deprived of rights to which they are entitled, and, therefore, may expect the in- terference of their own government. But it rnust be remembered in all such cases that they have of their own free will elected a residence out of their native land, and preferred to live elsewhere, and un- der another government, and in a country in which different laws prevail. They have chosen to settle themselves in a country where jury trials are not known, where representative government does not exist, where the privilege of the writ of habeas corpus is unheard of, and where judicial proceedings in crim- inal cases are brief and summary. Having made this electidn, they must necessarily abide its conse- quences. The definition of crimes, the denouncement of penalties for their commission, and the forms of proceeding by which guilt is to be ascertained, are high prerogatives of sovereignty, and one nation cannot dictate them to another without being liable to the same dictation itseH." . . . § 213. The right of every state to protect its own citizens as against foreign governments, under other circumstances, remains to be considered. In this case the citizens may not be within the foreign territory, but may remain wholly within the jurisdiction of their own country. This right arises when the citizens are creditors of the foreign state. The debts may have been contracted in any manner, — by general loans upon the stock or bonds, or other securities, of the government, or through the means of special transac- tions between the government and its particular cred- itor. In all cases, if the debtor state refuse or neg- lect to pay its just dues, the nation of which the creditors are citizens has the undoubted right to in- EIGHTS PLOWING FKOM EQUALITY OF STATES. 261 terfere and compel payment. Whether this right shall be pressed to the extremity, and force em- ployed,"must, of course, be entirely a question of ex- pediency, depending upon motives of policy. The debt should have been contracted by those who were the legitimate organs of the debtor state ; thus, in this country by Congress or the state legis- latures ; in England by Parhament ; in a few Eu- ropean countries, as in Eussia, by the sovereign alone. But when thus contracted, it can make no difference that the money borrowed actually conferred no benefit upon the nation borrowing, — that it was foolishly expended, or that it was used to support a policy which the country has since abandoned. Vat- tel says : " Loans made for the service of a state, debts created in the administration of the pubhc af- fairs, are contracts of strict right, obligatory upon the state and the entire people. Nothing can dis- pense with the payment of such debts. Since they were contracted by a legitimate power, the right of the creditor is sacred. Whether the money borrowed has turned out for the profit of the state, or whether it has been dissipated in follies, is not the affair of the one who lends. He has confided his property to the nation; it is bound to restore. So much the worse for the nation if it has left the care of its af- fairs in bad hands." I am of opinion that if the proper department of the legitimate government has effected the loan, neither the foreign creditor nor the nation whose citizen he is, is concluded by any plea on behalf of the debtor state that its government had transcended its func- tions as conferred upon it by the fundamental law. This plea may avail against a domestic creditor, but 262 INTERNATIONAL LAW. the foreign creditor and his nation need only look to see that a legitimate government, claiming to act within its proper sphere, has borrowed the money. This principle was stated and authorities were quoted in an earlier lecture of this course. Had the repudi- ating States of our own country been independent sovereignties, there can be no doubt that Great Brit- ain would have had good cause for reprisals or war to compel the payment of the debts owing to Brit- ish subjects, which debts have been shamelessly re- pudiated on the ground that the law authorizing their creation was unconstitutional. Although I have never seen the proposition advanced, I am of opinion that Great Britain might have enforced these claims against the United States government, although the loans were not made to the United States. This, to be sure, is a matter depending upon the internal pub- lic law rather than upon international law. My views are my own ; I alone am responsible for them, and they probably would not meet .with general accep- tance. But I believe them to be correct. As I have stated in the course of lectures upon constitutional law, I am convinced there is a vast mass of dormant powers under the grant of authority to make treaties. In other words, the national government has entire control of international relations. It only is known ; the separate States are nothing in the family of com- monwealths. Where there is this power there must be the corresponding responsibility. I am convinced that the time will come when it will be conceded that the United States may compel a State to fulfil those of its foreign obligations which affect the international relations of the whole country ; when the United States may prevent the occurrence of such disgraceful JEaOHTS FLOWING FROM EQUALITY OF STATES. 263 acts of state repudiation as those former ones which brought shame upon all Americans. If, then, the nation has the power, the foreign creditor of a State may demand that it shall use that power, and, failing in this duty, the creditor's own government may in- terpose by force. I am not able to perceive any flaw in this argument; and, as the United States must henceforth take some prominent part in the affairs of the world, I am prepared to find that the internal na- tional authority will be greatly developed by the ex- ternal international relations. § 214. Martens lays down as a general proposition that the foreign creditor of a country can make no complaint if he is put on the same footing as the do- mestic creditors. He adds, however, that " the debtor state may adopt measures of domestic finance so fraudulent and iniquitous, so evidently repugnant to the first principles of justice, with so manifest an in- tention of defeating the claims of its creditors, — although both domestic and foreign should be treated alike, — as to justify the government of the foreign creditor in having recourse to measures of retaliation, reprisals, or to open war." He instances such acts of the debtor government as the permanent depre- ciation of its coin or paper money, or the absolute repudiation of debts contracted on the public faith of the country. CHAPTER Vn. THE RIGHT OF RECOGNITION. B. The right of each state to he recognized. § 215. This includes the right of each new state to be recognized as such, and a corresponding duty will rest upon all the members of the existing family of nations to make the recognition, and also the right which each existing state has to make the recognition of the new-born body politic, which right avails as against all other states, and especially as against that one from whose form erterritory and inhabitants the new member of the social and political family has been formed. § 216. As we have seen, international law obtains alone between independent and equal sovereign pow- ers or bodies politic. So far as international law, then, exists and applies to its subjects, it assumes a number of independent equal nations as facts, which occupy and embrace at least all the discovered and settled territory and all the organized inhabitants of the civilized world. As these several independent coequal nations are all already the subjects of inter- national law, and clothed with complete international rights and duties, it follows as a matter of course that thece can be no occasion or place for recognition until some change has taken place in the former constituted order of things, some readjustment of territory and inhabitants, some combination of two old states or THE EIGHT OP KECOGNITION. 265 parts of states into one, some division of one prior whole into two or more integral parts, — in short, some rearrangement by which one existing nation has enlarged its territory and inhabitants by absorb- ing what before belonged to another, or by which some entirely new society has sprung into existence and claims to be a body politic. It is under such cir- cumstances alone that the rules of law applying to recognition proper can come into operation and be practical. When these events have happened, recog- nition of some sort is necessary. No aggregate of people can claim to exercise the rights which, under the international law, belong to independent equal states as against all other communities, unless such ag- gregate of people is admitted and treated in some sort, by the other nations of the world, as an independent and equal- sovereign power. But this admission is, in fact, recognition. It need not be complete, formal, final, dejure; it may be tacit, de facto, tentative, and conditional. But there must be some such recognition, or the aggregate of people which asserts its indepen- dence would be in the condition described in Chapter II. of those hordes of men which have no interna- tional standing (persona standi). Where there is any real ground for the step, a tacit recognition, at least, is almost invariably given ; for if it were not, the nation refusing it would be bound to treat the aggregates of persons to whom it was refused, in many respects and under many circumstances, as out- laws and pirates.^ Few nations, at the present day, are willing to go to this extent. This recognition, informal or formal, of a new body politic as a new and distinct member of the family of nations, must not be confounded with the recognition 266 INTERNATIONAL LAW. of a new form of government adopted by peaceful or revolutionary change, in a state already existing as an independent sovereignty. One recognition ac- knowledges the fact of a new nation ; the other, the fact of a new form of government in an old nation. The circumstances under which the latter species of recognition is proper, sftad the rules which govern its use, will be stated in the sequel of the present subdi- vision. § 217. There are three cases in which nations arc called upon to recognize a state of facts different from that which existed before ; and these will be consid- ered in order. They are : — I. When the existing personal ruler of a state al- ready enjoying an independent position assumes some new title, and calls upon other states and governments to recognize that title as belonging to him. II. When an existing nation has acquired new ter- ritory as the result of conquest, and claims to have it recognized as a part of her national domains. III. When a portion of an existing nation separates from the remainder, and claims to be recognized as a new, independent sovereign, and coequal member of the family of nations ; a new body politic and state. § 218. I. The first case is of no practical impor- tance to an American student or publicist. It, of course, only belongs to a monarchical system of gov- ernment. Phillimore says : " Although rulers may assume what titles they please, there lies no obliga- tion upon other states to recognize any changes in the accustomed forms and appellations which usage and convenience have hitherto sanctioned. Neverthe- less comity and the reason of the thing would induce other rulers to grant such recognition, except in the THE EIGHT OF RECOGNITION. 267 following instances. (1.) Where the new title as- sumed is in opposition to or derogation from existing rights or pretensions of the rulers of other states. (2.) Where it introduces new obligations by way of con- cession, or otherwise, with respect to other states. (3.) Where it tends to lower the dignity and degrade the character of the title already borne by the rulers of other states." ^ European history will furnish some illustrations of these rules. Frederick I. assumed the title of king of Prussia in 1700 : the title was recog- nized by other states in turn, but not by the Pope until 1786. The title of emperor, assumed by the Czar Peter the Great, was not recognized by all the European states for many years. In 1818 the elector of Hesse, a small German principality, announced his intention to assume the title of king. The five Great Powers refused to recognize it, saying that a title was not a mere matter of etiquette. Vattel makes a re- mark applicable to such a case. He says : " As it would be ridiculous for a petty prince to take the title of king and assume the style of " majesty," for- eign nations, by refusing to comply with this whim, do nothing but what is conformable to reason and their duty." ^ In our own times when Victor Emmanuel, king of Sardinia, took the title king of Italy, most of the European powers at once assented to the change. Spain delayed for several years : Austria has but just acceded to it: while the Pope still refuses his recognition.^ » With this short reference I pass by a subject more 1 Phillimore, vol. ii. p. 28. of empress of India in 1877, the 2 Vattel, book ii. ch. iii. § 44. new title was accepted without diffi- * It may be added, that when culty by the other European pow- Queen Victoria assumed the title ers. — £d. 268 INTERNATIONAL LAW. interesting by far to the European diplomatist and statesman than to the American. § 219. n. When an existing state has acquired new territory by conquest, and claims to have it rec- ognized as an integral portion of her national do- mains. Analogous to this case would be that of peaceful cession, as the result of purchase or any other negotiation ; or that where one independent state voluntarily surrendered its sovereignty and in- corporated itself with another, either becoming ab- sorbed in that other, or the two forming by the union a new and distinct nation. The subject of conquest cannot be fully treated until we arrive at that part of our course which dis- cusses the laws of war. It is sufficient now to say, that if a war between two powers has terminated so favorably for one party, and so unfortunately for the other, that the latter has lost and the former has seized a district of territory ; and if the successful power holds such territory with sufficient force, and by so strong a miUtary power, and the issues of the hostilities are so definitive and marked as to render it certain that the seizure will be permanent and not temporary ; and especially if the conquest has been formally ratified by a treaty of cession in which the losing state has surrendered to the victors the terri- tory in question ; the other nations will not hesitate to recognize the new condition of affairs as an exist- ing fact, and the conquered district as a portion of the domain of the conquerors. At the present day, when a war has resulted so favorably for one of the belligerents that it holds part of the other's soil, which it intends to retain, a treaty of cession is al- most if not quite a matter of course. If the military THE EIGHT OF RECOGNITION. 269 power of one party has proved so superior to that of the other as to render a conquest possible, the dictat- ing of a treaty of cession will be equally easy and will surely follow. Indeed, the issue of battle having gone so badly for the beaten party, it will be glad to get off from further loss, by ratifying that which has taken place and is inevitable. When such a cession has been yielded, of course the other states can have no good reason for refusing to recognize the fact. If the parties most deeply interested have come to terms, and made their final arrangements upon a basis satisfactory to themselves, the spectators cer- tainly can do nothing but acquiesce in the result. § 220. We might suppose a case, however, dif- ferent. A war might have raged between two na- tions ; one might have seized, possessed, and claimed to annex to itself a portion of the other's soil; that other might still continue the hostilities, refusing to acknowledge itself defeated, still asserting its de jure sovereignty over the district in the hands of its ene- mies, still willing to lay the wager of battle, and to endeavor to reestablish its jurisdiction de facto, Un- der such circumstances, there being no formal cession, could the victorious state demand that its conquest be recognized, and could other states accede to such demand ? The answer to this question must plainly resolve itself into the determination of a mere ques- tion of fact. Certainly the mere military occupation by one belligerent of a portion of the other's soil would not be regarded as a sufficient ground for other states to recognize that soil as lost to the one and ac- quired by the other. While the conflict is still rag- ing ; while each is actively engaged in hostile oper- ations, so that the result is not certain, though it 270 INTERNATIONAL LAW. may appear very probable which way the scales will finally turn, other powers would not recognize any claim, of the party in possession of the other's terri- tory, to a permanent dominion over it as an integral portion of its own domains. But if, on the other hand, it were apparent that the contest was virtually ended ; that all further resistance was absolutely hope- less J that if such resistance was still feebly persisted in, it was only through feelings of pride or obstinacy; then it would be proper for other nations to accept the irreversible fact, recognize the conquest as com- plete, and the territory as an accession to the per- manent possessions of the victor. Of this condition of affairs each nation would.judge for itself ; and dif- ferent states would, doubtless, exhibit different de- grees of readiness to treat the conquest as unfait ac- compli. Indeed, the case is entirely analogous to that of a revolt or revolution in one part of a country, followed by civil war, in which the insurgents have been successful, and the conflict has to all intents ter- minated, but the mother country still refuses to ac- knowledge their independence. In many such in- stances, as we shall see, the nations of the world have in the most formal manner recognized the new state, even against the protest of that whose dominion it had thrown off. § 221. Another case might arise where there would be a recognition, as a matter of course, by all nations governed by the rules of international law, and not by their own passions and prejudices. The result of a war might be so overwhelming that the defeated bel- ligerent should be utterly destroyed, its entire terri- tory seized and occupied by the victors, and its organ- ization so broken up and its government so dissipated THE EIGHT OP RECOGNITION. 271 that there would be no power with which to conclude a treaty of peace and cession. AH being lost, and the body politic being blotted out, there would be no sec- ond party to ratify the result. In such a case, the other nations, unless they were willing to interpose by force, could do nothing but recognize the condition of affairs. Some late wars wUl afford illustrations of one or two of the foregoing cases. After the war with Mexico, that country ceded to the United States the provinces of California and New Mexico, No nation has hesitated to recognize these districts as a part of our national territory. The king of Sardinia, Victor Emmanuel, with the aid of the emperor of the French, waged war against Austria. As a result the emperor of Austria refusing to treat directly with the Sardi- nian monarch ceded Lombardy to Louis Napoleon, who immediately turned it over to Victor Emmanuel, and it was added to the latter's dominions. The king of Sardinia then, aided by revolutions in each, over- threw the governments of the various Italian duchies, expelled their rulersj and added the soil and incor- porated the inhabitants with his own. He then pro- ceeded to attack the kingdom of the Two Sicilies, and after a short resistance overturned and expelled the Bourbon dynasty, and annexed territory and peo- ple to his own. Having thus obtained possession of the whole peninsula, except a portion of the Papal States, and also of the island of Sicily, all the old bodies politic, or states, not even excepting Sardinia, were blotted out as distinct sovereignties, and in their place a new nation was erected, — the kingdom of Italy, Victor Emmanuel taking the title, king of Italy. The kingdom and king were at once recog- nized by almost all the powers of the world, except 272 INTERKATIONAL LAW. Austria, Spain, and the Pope. The latter still refuses, speaking of the Italian kingdom, in a late allocution, as the " Sub-Alpine Government." It could make no difference with the strict international rights of Vic- tor Emmanuel that the people of the various con- quered states were anxious for his rule, and aided him in the accomplishment of his designs ; although that fact, of course, had an immense moral influence. Finally, as the result of the late Germanic war, Prussia has received a large accession of territory. Bavaria ceded a portion of hers by treaty ; I believe Saxony did the same. But the kingdom of Hanover, the free city of Frankfort, and several of the smaller principalities, were seized by the Prussian armed forces ; the rulers were expelled ; the people were not consulted ; and people and territory were added to the Prussian kingdom, by a decree emanating directly from the government at Berlin. These acts either have been or will be recognized by all powers ; and the protest of the Hanoverian king and of the Frank- fort burghers will not retard the recognition an in- stant. These several states staked their all on the issue of the war, and totally and irrevocably lost. § 222. Finally, it is sufficient to say that the same principles and rules which obtain in the case of ces- sion as the result of conquest, would apply with even greater force to a cession as the result of purchase or other peaceful negotiation, and to a voluntary and peaceful surrender of itself by one independent state, and incorporation of itself into another and distinct existing body politic. The purchase of Louisiana from France and of Florida from Spain will be suffi- cient illustrations of the former, and the annexation of Texas will be a sufficient example of the latter of THE EIGHT OP EECOGNITIOSr. 273 these cases. No nation declined to recognize our ju- risdiction over the territory of Louisiana and Florida; no nation, except Mexico, refused to recognize our rightful title to Texas. Mexico based her refusal on the fact that she had never recognized the indepen- dence of Texas, but had always insisted upon her rights over that revolted province. The United States insisted that Texas had been recognized as in- dependent by all other powers but Mexico ; that she was, and for years had been, in fact, independent; that Mexico had tacitly admitted that fact by ceas- ing for years to enforce her original rights ; and that Mexico had no just cause of complaint, much less of war, against our government. § 223. III. We now come to the third and by far most important case where recognition may or must be necessary. When a portion of an existing nation revolts, separates itself from the remainder, establishes its own political organization and government, and claipas to be recognized as a new, independent, sover- eign and coequal member of the family of nations, — a new body politic and state. The discussion of this subject involves the right of the seceding province to be recognized, which right avails to it against all neu- tral countries, and even against the mother country from which it revolted. The discussion also involves the right of each neutral state to make the recogni- tion, which right avails against all other neutral pow- ers, but particularly avails against the nation from which the province and community in question with- drew. Again, the recognition may be demanded and con- ceded under various circumstances. Thus, the revolt may have been completely successful; the mother 18 274 INTERNATIONAL LAW. country may have ceased all attempts at the reestab- lishment of her power, and may have formally admit- ted the independence of her former subjects. Or, the revolt may have been to all intents successful ; re- sistance ceased, the seceded people and territory may be in the quiet enjoyment to all intents and purposes of their own independence ; but the mother country may still assert her de jure authority and refuse to accord any recognition of sovereignty. Or, the con- test may still be raging and the issues doubtful, al- though tiie seceded people have as yet maintained their integrity, have kept possession of a defined ter- ritory, and have preserved their government, acting through its forms and functions. Or, lastly, the re- volt may have but just commenced, may be yet in its initial stage, before any issue of the contest is indi- cated. Now, under all these varying states of cir- cumstances, there must, of course, be varying rights as to recognition, and, perhaps, varying degrees and grades of recognition. For, as recognition is nothing, after all, but the admission more or less formal of a fact as existing, there may be an admission of one stage of a revolution as an existing fact, without any intent to admit the existence of a more advanced stage. Applying these principles, which are , self-evident, we find that the international law adopts and de- scribes three grades of recognition, as follows : (1.) Recognition of belligerency ; or, mere recognition of the revolted people, as an aggregate of persons, who are carrying on proper war, and are, therefore, in fact, clothed with belligerent rights and duties. (2.) Virtual, or de facto recognition ; which amounts to such an admission of the existence of the revolted community as a de facto state as is implied by the THE EIGHT OP EECOGKITION. 275 recognition of its commercial flag, and the appoint- ment of consuls in its commercial ports. (3.) Formal or absolute recognition, which, of course, implies a complete admission of the existence of a new state as one of the family of nations, entitled to send and re- ceive ambassadors, enter into treaties, and the like. We must consider each of these separately. § 224. (1.) Recognition of Belligerency. When a portion of a state has revolted, has asserted its inten- tion to establish itself as *an independent government and nation, and the existing established government has attempted to suppress the movement, not by the ordinary civil machinery of arrests and judicial trials, but by means of armed force, either naval or land, .or both, and the struggle has assumed the dimensions and features of actual war, the other nations of the world may recognize the rebels as belligerents, as en- titled to the rights and subjected to the duties of bel- ligerents, and the contest as true and proper war. Let us inquire as to the nature and consequences of such recognition, and of a withholding of it. It (Joes not assume to decide upon the justice of the quarrel, nor does it acknowledge the de facto, much less the de jure, existence of the insurgents as a state ; nor does it ally the government taking the step with the rebels. It simply accords to this community the international right to carry on proper war, with the usual immunities and duties as to other nations which belong to war. Without this recognition all other powers would be under the necessity of treating the insurgents, under certain circumstances, as outlaws and pirates. For as the community has no standing as a state, it could not, without the species of recog- nition in question, perform any hostile act or have 276 INTERNATIONAL LAW. recourse to any military measure that might interfere with the rights of other nations, although such acts and measures are permitted to states by the interna- tional law. Thus, without this species of recognition, the insurgents could not send out armed men-of-war against the commerce of the mother country. Hav- ing no national basis, such armed vessels would be piratical and liable to be treated as such by all the nations of the world; their officers would be justici- able in the courts of any p6wer, although their hos- tilities had only been committed against the com- merce of the mother country. By thus treating these cruisers, the neutral states of the world would, in fact, be taking part against the rebels. Again : with- out this species of recognition, the mother country could take no measure of repression against the reb- els which would interfere with the rights of neutrals, such as the institution of a blockade, the seizing of neutral vessels for carrying contraband articles, and the like. For all these measures and acts which thus directly affect the rights of neutrals are only allowed by the international law as a part of war. But there can be no war without two parties ; and, unless the reb- els are treated as carrying on proper war, the mother country cannot be so treated. The absence of this species of recognition would not deprive the mother country of the right to use force to suppress the rebel- lion, and this force might be military, both on land and on sea; but it must be confined to the contending parties alone ; it couild not be allowed to interfere with neutral commerce and other neutral operations. Such are the nature and consequences of recognition of belligerency. To refuse such recognition might, un- der some circumstances, have the direct effect to THE EIGHT OF EECOGNITIOlf. 277 cause the country so refusing to take the part of the mother country and against the rebels. As a conse- quence, if another power remains strictly neutral to the contest, that very attitude must involve the rec- ognition of the insurgents as belligerents. Unless another power desires to take active part in the hos- tilities, and throw the weight of its influence, and, under some circumstances, the positive aid of its ex- ecutive power, in favor of the mother country, it must treat the rebels as belligerents. § 225. The propositions, therefore, which* I lay down and maintain are : First, that as, in general, every nation has a right to remain neutral in every such contest, every nation has a right to recognize both parties as belligerents, the contest as proper war, and the mother country would have no legal ground of complaint at such act and attitude. Secondly, that, in general, it is the duty of every other nation to take this position of neutrality. The only exception to these rules which appears to me admissible is the case where another nation may be bound by treaty stipulations with the mother country to give active aid in putting down the rebel- lion. This would, of course, make this nation an en- emy of the rebels. All other interferences against the new claimants to independence must be acts of mere power, and often a policy hateful to all our best sentiments of right and justice. § 226. We may now refer to some authorities, and we shall find their testimony unanimous. Phillimore says : " The mere observance of a strict neutrality in the war between an old and a new state has some beneficial effect with respect to the nation which is struggling for independence. It al- 278 IKTEENATIONAL LAW. lows impartially to both an equal rank and character as belligerents." ^ Wheaton is more explicit. He says : " Until the revolution is consummated, whilst the civil war involving a contest for the government continues, other states may remain indifferent specta- tors of the controversy, still continuing to treat the ancient government as sovereign, and the govern- ment de facto as a society entitled to the rights of war against its enemy ; or may espouse the cause of the party which they believe to' have justice on its side. In the j&rst case, the foreign state fulfils all its obligations under the law of nations, and neither party has any right to complain, provided it main- tains an impartial neutrality. In the latter, it be- comes, of course, the enemy of the party against whom it declares itself, and the ally of the other ; and as the positive law of nations makes no distinc- tion, in this respect, between a just and an unjust war, the intervening state becomes entitled to all the rights of war against the opposite party." "^ Ortolan, speaking of civil war, says : " This war, which Grotius calls mixed, is that which arises be- tween the legitimate government or government in fact of a state, and a considerable part of the citizens which has assumed the exercise of its part of the in- terior sovereignty, and is proceeding, with an organ- ized armed force, to change or modify this govern- ment, or to accomplish some other political design. The general practice of nations is to consider civil war as giving to each of these two combating parties all the rights of war with respect to each other, and also with respect to neutral nations. This equality of belligerent rights exists, with even greater reason, in 1 Vol. ii. p. 17. 2 Wheaton's Elements, § 23, 8th ed. THE EIGHT OF RECOGNITION. 279 the case of a war between the bodies politic which are members of a composite state ; a war which we may call social, a composite state being nothing, ac- cording to Montesquieu, but a society of societies. With the greatest force does the rule apply in a war of nationality, undertaken by a people to reconquer its distinct political existence, and to free itself from the yoke of a power to which it is politically united." ^ § 227. Martens and Kliiber are equally emphatic iu declaring the right and duty of all third parties to remain neutral in all wars, except in the single case where they may be bound by a treaty of alliance of- fensive and defensive with one of the belligerents. They make no reservation in the case of civil war, which they describe as a species of the genus war. But, as we have seen, this very maintenance of a con- dition of neutrality is a recognition of the existence of belligerency. § 228. Mr. Dana, the latest editor* of Wheaton's Treatise, in his note upon the passage already quoted, enters into the subject with some elaborateness, as might be expected. I extract a few passages from his note. He says : * " The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires, and can alone justify, this step by the government of another country, is, that its own rights and in- terests are so far affected, as to require a definition of its own relations to the parties. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights which the parent * Diplomatie de la Mer, vol. ii. pp. 10, 11. ' P. 24, note 15. 280 INTERN ATIOKAL LAW. government does not concede, a recognition by a for- eign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral sup- port to the rebellion, and of censure upon the parent government. But the situation of a foreign state with reference to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important therefore to deter- mine what state of affairs, and what relations of the foreign state, justify the recognition. It is certain that the state of things between the parent state and the insurgents must amount in fact to a war in the sense of international law : that is, powers and rights of war must be in actual exercise ; otherwise the rec- ognition is falsified, for the recognition is of a fact. The tests to determine the question are various and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests are the existence of a de facto political organi- zation of the insurgents, sufficient in character, popu- lation, and resources, to constitute it, if left to itself, a state among the nations, reasonably capable of dis- charging the duties of a state ; the actual employ- ment of military forces on each side, acting in accord- ance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the pa- rent state as prisoners of war ; and at sea, the employ- ment by the insurgents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral com- merce, and of stopping and searching neutral vessels at sea. If all these elements exist, the condition of things is undoubtedly war ; and it may be war before THE EIGHT OP EECOGNITION. 281 they are all ripened into activity." . . . After ex- pressing an opinion, that if the contest be wholly on land, the parent state and the insurgent district being wholly inland, and the foreign nation not contiguous, there could seldom, if ever, be any necessity for a recognition of belligerency by that foreign power, Mr. Dana proceeds: "Where the insurgents and the parent state are maritime, and the foreign nation has extensive commercial relations and trade at the ports of both, and the foreign nation and either or both the contending parties have a considerable naval force, and the domestic contest must extend itself over the sea, then the relations of this foreign state to the con- test are far different. In such a state of things, the liability to political complications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties involved. If the contest is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct. If it is not a war, they are to follow a totally different line. If it is a war, the commissioned cruisers of both sides may stop, search, and capture the foreign merchant vessel; and that vessel must make no resistance, and must submit to adjudication by a prize court. If it is not a war, the cruisers of neither party can stop or search the foreign merchant vessel, and that vessel may resist all attempts in that direction, and the ship of war of the foreign state may attack and capture any cruiser persisting in the at- tempt. If it is a war, foreign nations must await the adjudication of prize tribunals. If it is not a war, no such tribunal can be opened. If it is a war, the 282 INTERNATIONAL LAW. parent state may institute a blockade /wre gentium of the insurgent ports, which foreigners must respect; but, if it is not a waf, foreign nations having large commercial intercourse with the country will not re- spect a closing of the insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belligerents. If it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrying contraband, or despatches, or military persons, come into play. If it is not a war, they do not. Within foreign jurisdiction, if it is a war, acts of the insur- gents, in the way of preparation and equipments for hostility, may be breaches of neutrality laws ; while if it is not a war, they do not come into that cate- gory, but into the category of piracy, or of crimes by municipal law. Now private citizens of a foreign state, and all its executive officers and judicial magis- trates, look to the political department of their gov- ernment to prescribe the rule of their conduct, in all their possible relations with parties to the contest. This rule is prescribed in the best and most intel- ligible manner, for all possible contingencies, by the simple declaration that the contest is, or is not, to be treated as war. If the state of things requires that decision, it must be made by the political department of the government. It is therefore the custom of na- tions for the political department of a foreign state to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision reasonably. If it issues a for- mal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a THE EIGHT OF RECOGNITION. 283 gratuitous and unfriendly act. If the parent govern- ment complains of it, the complaint must be upon one of these grounds. To decide whether the recog- nition was uncalled for and premature, requires some- thing more than a consideration of proximate facts, and the overt and formal acts of contending parties. The foreign state is bound and entitled to consider the preceding history of the parties : the magnitude and completeness of the political and military organi- zation and preparations on each side ; the probable extent of the conflict by sea and land ; the probable extent and rapidity of its development, and, above all, the probability that its own merchant vessels, naval officers, and consuls, may be precipitated into sudden and difficult complications abroad. The best that can be said is, that the foreign state may protect itself by a seasonable decision, either upon a test case that arises, or by a general prospective decision ; while, on the other hand, if it makes the recognition prema- turely, it is liable to the suspicion of a friendly purpose to the parent state. The recognition of belligerent rights is not solely to the advantage of the insur- gents. They gain the great advantage of a recog- nized status, and the opportunity to employ commis- sioned cruisers at sea, and to exert all the powers known to maritime warfare, with the sanction of for- eign nations. They can obtain abroad loans, military and naval materials, and enlist men, as against every- thing but neutrality laws ; their flag and commissions are acknowledged, and they acquire a quasi political recognition. On the other hand, the parent govern- ment is relieved from responsibility for acts done in the insurgent territory, its blockade of its own ports is respected, and it acquires a right to exert against 284 INTERNATIONAL LAW. neutral commerce all the powers of a party to a mar- itime war." § 229. With much of this elaborate note I most entirely concur. The statement of the effects of a recognition of belligerent rights, and of a refusal to recognize, is graphic, complete, accurate, and most instructive ; but when Mr. Dana proceeds to describe the occasions which will render a recognition justifi- able, and the lawful causes and objects of such a step, I am of opinion that his well known and even openly avowed partisanship of the course of our government during the late rebellion has somewhat blinded his judgment. It seems to me that he has in a measure confounded the several grades of recognition, and re- quired a condition of things as existing which is only demanded in the species that has been denominated virtual. The error which lies at the bottom of all Mr. Dana's argument, and which vitiates the whole of it, is the assumption that necessity alone will jus- tify the foreign state in recognizing the belligerency of the insurgent community. He says : " A recogni- tion by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion and of censure upon the parent government." It is doubtless true that all foreign states, in determining whether to accord the recognition or not, would, of Course, consult their own interests alone. But if they take the step, it is simply because they choose — which they have a most indu- bitable right to do — to maintain and assert their own attitude of neutrality. If the contest amount, in fact, to a war, they must make the choice. If they do not recognize that contest as war and treat it as such, there is no other alternative but to aid the par- THE EIGHT OF EECOGNITION. 285 ent state and act as hostile to the rebels. This aid may in many cases, and certainly would in the case of all the great powers of Europe, be material, actual, positive, and effective ; in all cases it would be moral. Now, the parent state has no right to claim this aid, is not legally injured if it be refused, while the insur- gents have at least a moral right that it should not be accorded. The recognition does not interfere with the prosecution of the war by the immediate parties so far as they alone are concerned ; it only affects the hostilities as they may incidentally involve the action of foreign governments and citizens. The parent state is not forced by this recognition to treat the insur- gents as belligerents, and to accord to them all the rights and immunities of war. That state may still treat its rebellious subjects as traitors, and subject them to the pains and penalties of their crimes. Of this it must judge for itself alone ; but it cannot demand that when the contest has assumed the pro- portions of an actual war, other nations should join it, either morally or physically, in this mode of treat- ment. And this brings me again to a statement of the occasions and causes which will justify a recogni- tion of belligerency. § 230. Mr. Dana lays down two criteria of the ex- istence of the right. (1.) That the conflict must have assumed the proportions of a war on both sides ; that the parent state must itself treat the insurgents as belligerents, at least in the conduct of the hostilities • and that the insurgents must be organized into a polit- ical society, with a de facto government, all sufficient, if they were left entirely to themselves, to constitute them a state. (2.) That the war must be so waged that it may interfere with the interests of the neutral 286 INTERNATIONAL LAW. state or of its citizens, so that the recognition is a matter of necessity to protect those interests. Other- wise, he says, the recognition would be an unjustifi- able act of moral support to the rebels, and of con- demnation of the parent state. He adds, that this necessity could only exist when the conflict might be maritime, or when, if the contending parties were wholly inland, their territory was adjacent to that of the recognizing neutral. This second criterion I have already spoken of in the last lecture. No doubt a nation first consults its own interests and those of its citizens ; but it is its undoubted right to remain neutral which makes it imperative to recognize the condition of belligerency, unless it desires to take a part in the contest. There can be no unjustifiable moral result in favor of the rebels and opposed to the mother country, any more than in the case of impartial neutrality in a contest between two acknowledged independent states. As to this moral support, the remarks of Daniel Webster, while Secretary of State, in his most important state paper, are very instructive. Some extracts from this paper I shall have occasion to quote in the sequel. As to the first criterion, I have no particular fault to find with Mr. Dana's principle, but only with the manner in which it is stated. He seems, on the whole, to require a more complete and well defined state of hostilities, a more completely organized state, greater probability of success, than I should feel dis- posed to require. Indeed, it appears to me that Mr. Dana confounds the occasions which warrant the sec- ond stage, or virtual recognition, with those which warrant the first stage, or recognition of belligerency. Certainly, the lowest grade of recognition, which THE EIGHT OF EECOGNITION. 287 does not even assume the de facto existence of a state, but only of a people waging and capable of waging proper war, demands the least amount of progress towards the permanent establishment of independence and sovereignty. There must be a contest which as- sumes the proportions and character of war, but it is certainly not essential that the parent state should treat the insurgents in all respects as public enemies, and not as traitors. With the causes and probable result of the contest the neutrals have absolutely nothing to do. They are not judges, and have no right to make themselves judges, of the dispute. Whether the hostilities be protracted through years or be closed in a few months is a matter of no differ- ence ; the neutrals may recognize the parties as bel- ligerents, provided there be war in fact. This, then, is the sole criterion. The measures which the parent state uses to repress the rebellion, must be something more than the ordinary civil means of arrest and pun- ishment ; more than the aid of the civil officers by the posse comitatus ; more, even, than the aid of the civil power by the military. The civil means must be for a while suspended, and all coercive efforts must be made by the military arm. On the other hand, the resistance of the insurgents must be some- thing more than the energies of a tumultuous mob or of unorganized multitudes. The very idea of the re- sistance amounting to war, does demand that the in- surgents should occupy some territory which they claim as their own, and over which they exercise some jurisdiction ; that these insurgents should be or- ganized into some form of political society, acknowl- edging some government that exercises over them supreme authority. But it cannot be necessary that 288 INTERNATIONAL LAW. this government should be anything .more than pro- visional. Finally, the resistance itself must be mili- tary in its character. When the contest has assumed this shape, — when there is a war in fact, — any third power may decide at once whether it shall remain neutral or not. It need not wait for the events of the war to indicate its probable final issue. § 231. The United States has always, as I read our history, proceeded in accordance with these princi- ples. It has been the policy of our government since the very foundation of the Union, to maintain a posi- tion of neutrality, to uphold neutral rights. We have always professed to regard the events transpiring in the contemporary history of nations as facts, and have always claimed the right to recognize the existence of those facts without deeming such recognition to be any indication of an attempt to pass judgment upon the rightfulness of any war, civil or not. Thus, when the Spanish American colonies revolted, our govern- ment recognized them as belligerents long before it recognized their independence absolutely. In the case of United States v. Palmer,^ the Supreme Court had occasion to speak of the effect of a recognition of belligerency. Palmer was indicted for piracy. He was an officer of an armed vessel sailing under the authority of one of the revolted Spanish states. C. J. Marshall says : ^ " Those questions which respect the rights of a part of a foreign empire which asserts and is contending for its independence, and the con- duct which must be observed by the courts of the Union towards the subjects of such section of an em- pire who may be brought before the tribunals of this » 3 Wheaton, 610. » P. 634. THE RIGHT OF KECOGNITION. 289 country, are equally delicate and difficult. Such questions are generally rather political than legal in their character. They belong more properly to those who can declare what the law shall be ; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise ; to whom are intrusted all the foreign relations ; than to that tribunal whose power and duty is confined to the application of the rule which the legislature may prescribe for it. In such contests a nation may en- gage itself with one party or the other ; may observe absolute neutrality ; may recognize the new state ab- solutely; or may make a limited recognition of it. The proceeding in courts must depend so entirely on the course of the government that it is difficult to give a precise answer to questions which do not refer to a particular nation. It may be said, generally, that if the government remains neutral, and recog- nizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may di- rect towards its enemy. To decide otherwise would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arrange the nation to which the court belonged against that party." In the same case, Mr. Justice Johnson says : ^ " Where open war exists between a nation and its siibjects, the subjects of the revolted country are no more liable to be punished as pirates than the sub- jects who adhere to their allegiance; and whatever immunity the law of nations gives to the ship it ex- tends to all who serve on board of her." § 232. We are naturally led to consider the ques- 1 p. 642. 19 290 INTERNATIONAL LAW. tion whether Great Britain and other European na- tions were justifiable in recognizing the rebels in our late civil war as belligerents. The state department carried on a very voluminous and somewhat acrimo- nious correspondence with the British Secretary of Foreign Affairs, Earl Russell, upon this subject ; the matter was also fully treated by an English lawyer, Mr. Harcourt, in a series of letters published over the name of " Historicus." A Boston legal gentleman, Mr. Bemis, advocated the American side of the ques- tion in a series of pamphlets. My own opinion is that the action of Great Britain, France, and other European nations in this respect was entirely justifiable ; that it gave no cause for complaint whatever to our government, and that Mr. Seward has constantly weakened the force of his ar- gument, while pressing our claims against Great Brit- ain for her violations of neutrality, by continuing to insist that she was wrong in proclaiming her purpose to assume a condition of neutrality, Mr. Adams, our minister at the Court of St. James, instructed from the State Department, insisted that the recognition by Great Britain of the Confederate States as belligerents created all the naval power which the rebellion possessed, and thus exerted such a powerful influence upon the contest, so protracted it, that Great Britain and France are not entitled to argue that the event justified their action. A more vicious argument in a circle than this could hardly be conceived of. The Southern States cer- tainly had within themselves all the resources for constructing, equipping, and arming naval vessels, and ample ports and harbors into which foreign com- merce might enter and from which their cruisers THE EIGHT OF RECOGNITION. 291 might sail. The only ground, therefore, upon which Mr. Seward could rest his claim that Great Britain's recognition of belligerency alone created the South- ern navy was, that our blockade would have closed their ports and harbors, so that, foreign commerce being cut off, the supply of naval stores would be prohibited, and the cruisers could not be armed and equipped ; and egress being prevented, these cruisers could not sail out upon their errands of destruction. But in fact, as we have already seen, and as all writ- ers — Mr. Dana among them — admit, without this recognition of belligerency pur blockade could not have been maintained for a week ; not a foreign ship carrying supplies to the rebels could have been stopped ; not an article of contraband could have been seized. All these acts of ours were warlike acts, and could only have been permitted on the assump- tion that a state of war existed. Therefore, had there been no recognition of belligerency, the South- ern ports must have remained open ; all foreign sup- plies would have poured in at will ; vessels would have been built, armed, and equipped at home ; they would have sailed out, and then, of course, have run the risk of capture by our navy. Our government could not, with any grace, have demanded that other powers should treat such ships as pirates. So, in fact, instead of the recognition of belligerency creating the rebel navy, it alone gave us the opportunity of preventing the construction of such a navy at home, and forced the rebels to resort to foreign countries, to the enhanced expense and trouble of foreign con- struction ; it compelled them to evade the foreign neutrality laws, and threw them completely into the hands of rapacious British and French money-lenders and ship-builders. 292 INTERNATIONAL LAW. § 233. But let us look at this question from a stand-point of principle ; let us take a little broader view of it. I would not appear, even, to be unpatri- otic ; but it is because I do love my country and am alive to her highest interests, and desire to see her persevere in the path marked out for her by the wisest of our forefathers, and not be drawn away by any exceptional events or feelings, that I am con- vinced that the position assumed by Great Britain was the true one, and the one best for us. Our des- tiny is plainly peaceful ; our position is plainly to be that of a neutral ; our highest interests demand that the rights of neutrality should be upheld, and even advanced ; we shall lose our ground of advantage if we do anything that shall tend to weaken neutral au- thority ; we shall miserably fail of our duty, if, daz- zled by military glory, seduced by the excitements of a vast war, we shall abandon our position of peace and attempt to enter into the conflicts of the European nations. Great Britain and France put themselves upon our old ground, and it is our policy to keep them there ; at least, it is not policy for us to attempt to dislodge them. Now, what were the facts ? Several of the South- ern States had separated themselves — or, in our view of the act, had claimed to have separated themselves from the Union. Steps had been taken towards a coalition of these states into one nation ; the fact of the coalition had been determined upon, and a pro- visional government had been established, which was exercising full governnjental functions. There were here, then, two requisites amply fulfilled. The state governments were untouched, acting within their re- spective spheres as f uUy as ever ; over all a general THE EIGHT OP RECOGNITION. 293 government presided, which was recognized as su- preme by all the seceding States. The territory cov- ered by these States was Completely under the rebel domination. Not a United States oflBcer was left, ex- cept in a few isolated and fortified places on the coast, who recognized the United States authority. There was, therefore, a territory held by the insurgents, an organized political society, a de facto government, ca- pable, if left to itself, of carrying on all the operations of a nation, and which was, in fact, carrying on those operations. Again, this government thus dominating over the community had, in the most formal manner, renounced their allegiance to the United States, and had exhibited a determination in their official proceed- ings never to return to their allegiance, but to fight in order to preserve what they termed their independence. They had an organized militia ; they had a large supply of arms and ammunition ; they had seized most of the forts and all the navy yards within their territory ; they had garrisoned the forts thus seized ; they had commenced the organization of a regular army and of a navy ; at the command of their central govern- ment an army of several thousands had been collected at Charleston ; this army had attacked Fort Sumter ; the United States garrison had lowered the flag, had surrendered as prisoners of war, and had been re- leased as such. Upon the happening of these events the President of the United States had issued a proc- lamation declaring that a combination of men existed, resisting the government, which could not be put down by ordinary means, and summoning an army of seventy-five thousand men to repress the rebellion. Opposed to this, the rebels were gathering another army. But the status of war was more conclusively 294 INTERNATIONAL LAW. shown by the issue of a proclamation from the Presi- dent, which our Supreme Court has since decided to be a proclamation of true blockade, — an act of proper war, — giving the United States government belliger- ent rights against neutrals, and not a mere civil and municipal act. Such was the state of affairs when Great Britain issued her proclamation recognizing the parties to the conflict as belligerents. It seems to me plain that the act was justifiable, and that the gov- ernments of Europe could have taken no other course, unless they were willing to actually support the United States, and officially aid in repressing the re- bellion. Much confusion is produced by speaking of Great Britain's recognizing the • Southern States as belligerents. In truth, she recognized us in the same manner, and that recognition was just as necessary to our successful prosecution of maritime warfare as it was to the rebels. The conflict had assumed the character of war from the very outset ; the first im- portant act of our government was a belligerent act, as the Supreme Court were forced to decide, in order to legalize the capture of neutral vessels. The ap- pearance was that the war would be obstinately con- tested, and would probably be of considerable dura- tion. Both parties were eminently maritime, and both had extensive commercial relations with the states of Europe, so that hostilities on the ocean were inevitable. Certainly there can be no possible ques- tion that if Great Britain had waited one month, her act could not have been objected to by our govern- ment. I am most decidedly of opinion that we should be binding our own hands, should be restricting our- selves in the exercise of our own liberty — a liberty which we shall desire to use on some future occasion, THE RIGHT OF EECOGNITION. 295 — should we estop ourselves by insisting that the British and French governments committed an act opposed to the spirit of the international law in issu- ing their proclamations of neutrality. § 234. I will refer to one more example. The leaders in the Fenian organization who planned the raid into Canada seem to have supposed that as soon as they effected a lodgment in Canadian territory they would be entitled to recognition by our govern- ment as belligerents ; that the example of Great Brit- ain could be imitated in their case. Nothing could be more absurd. All the requisites would have been wanting in their case. They possessed absolutely nothing which could be the foundation for a proper war. IV^ost of them were citizens of the United States ; they did not constitute an organized political society, a body politic; they had no government which could claim their allegiance — in fact, their al- legiance was owed to our government ; they would have been in possession of no territory, claiming to dominate it, and really dominating it by a de facto political power. A mere lodgment in some portion of Canada would not have amounted to the actual possession amd rule over such a territory as could be considered the basis of a state ; and certainly there could be no claim for even the lowest grades of rec- ognition without the existence of at least an inchoate state. § 235. Again, it has been asked, if the Irish peo- ple should rebel, would our government immediately recognize them as belligerents, and the contest be- tween them and England as a proper war ? I answer : This would depend upon circumstances. To make the case parallel to ours, it should appear that the 296 INTERNATIONAL LAW. Irish rebels had organized a government which they claimed and acknowledged to be supreme ; that the power of this government should extend over some definite and considerable portion, at least, of Ireland ; that from the portion of territory thus held the Eng- lish civil authority should be expelled for the time be- ing ; that the insurgents should conduct their resist- ance in a military manner ; and that the measures of repression should be entirely military. If all this should take place the United States might, and should, treat the contest as a proper war and the par- ties as belligerents. But if, on the other hand, the insurrection should consist only of risings in the midst of a population partly loyal, so that the civil authority should be exercised throughout the island side by side with that of the insurgents ; if the meas- ures of repression were partly civil, though aided by the military ; if there was no organized government capable of performing governmental acts ; then there would be no foundation for a proper war, and to rec- ognize one as existing would be merely to assert a falsehood. The mere employment of military does not constitute a war ; if it did, there would be war every time a detachment of soldiers is called out to disperse a mob. § 236. (2.) Virtual Recognition. We now come to the second grade which still falls far short of absolute and final recognition. Recognition of belligerency admits as a fact the existence of a community of per- sons sufiiciently organized to carry on proper war, and also the existence of such war, to which this com- munity is one of the parties. Virtual recognition admits as a fact the existence of a community suffi- ciently organized into a de facto body politic and THE KIGHT OP RECOGNITION. 297 undQr a de facto government, to have and maintain commercial relations with other powers, and the ex- istence of such commercial relations with the nation recognizing, and includes or involves the claim that commerce may be carried on with that community so far as the laws of war do not forbid. As the former grade recognizes the existence of a military power, it admits and respects the military flag of that commu- nity. As the latter grade recognizes the existence of a commercial power, it admits and respects the com- mercial flag of that community. As commerce and trade require public commercial agents- to protect the interests of foreign seamen, ship-owners, and traders, this second species of recognition involves the power of appointing consuls and consular agents to reside in the ports and within the territory of the community thus recognized. To sum up the results and effects of such an act on the part of the foreign power, it does not commit the neutral government in favor of either contending party; it does not judge of the merits of the quarrel ; it does not admit the rebellious community into the family of nations ; it only legal- izes commercial transactions with them ; it permits their merchant ships to enter the ports of the state which accords the recognition, and discharge their cargoes and lade others ; it respects the validity of the shipping papers which nationalize those ships — the clearances, the custom-house manifests, and the like, — and thus exempts those ships from confisca- tion, according to the navigation laws of the recog- nizing country. It follows that such recognition is made entirely in the interests of the state which accords it, to protect and enforce the commercial rights of its citizens. 298 INTERNATIONAL LAW. When may it be granted ? Of course the rebellious community must be commercial, with commercial rela- tions between itself and the citizens of the one which recognizes. It is not necessary that the war should have ended ; but it should appear that the rebellious community has an organized government, a well-de- fined territory ; that the war should have so far pro- gressed and should be of such a character as to ren- der its continuance for a considerable period of time probable ; for no nation has a right to demand that the citizens of neutral powers should be debarred for an indefinite period from trade with the insurrection- ary provinces, unless that trade be cut off by a block- ade. Finally, the war should have thus far been so favorable to the rebellious community that their gov- ernment may afford a reasonable degree of protection to the interests of traders. In fact, the recognition is of a fact ; and to justify the action of a foreign government that fact should exist. When all these prerequisites do exist, the parent state will have no ground of complaint if the foreign nation does take the step which has been named virtual recognition. § 237. We will now refer to one or two authorities. Mr. Phillimore says : " If the contest be protracted, and there be any appearance of equality between the contending forces, the subsequent conduct of third powers intending to remain neutral cannot be blamed if they proceed to a virtual recognition of the re- volted state ; that is to say, if they recognize its com- mercial flag, and if they sanction the appointment of consuls to the ports of the new state. So far there is a recognition of its de facto existence, fully justified, perhaps, indeed, imperatively enjoined, by the duties of the third power towards its own subjects, and in THE EIGHT OF RECOGNITION. 299 no way inconsistent, according to the practice of na- tions, with the continued observance of neutrality be- tween the contending parties. It was not, however, till after the struggle between Spain and her South American colonies had lasted many (about twelve) years, that Great Britain accorded this virtual recog- nition to the latter, ^righteously, perhaps even too scrupulously, observing the rule of not injuring, even indirectly, the interests of a country with which she was on terms of amity. There is no proposition of law upon which there exists a more universal agree- ment of all jurists than upon this : namely, that this virtual and de facto recognition of a new state gives no just cause of offence to the old state, inasmuch as it decides nothing concerning the asserted rights of the latter. For, if they be eventually sustained and made triumphant, they cannot be questioned by the third power, which, pending the conflict, has virtually recognized the revolted state." ^ § 238. Mr. Dana, in his late edition of Wheaton, has a very accurate statement of the occasions which will justify this species of recognition. He says: " Another stage in the contest may require it (the foreign state) to treat with that government (the in- surgents) with reference to its de facto revenue and commercial regulations, and the rights of foreign sub- jects in their persons and property, being in the terri- tory under the control of that government, or for the reparation of past and prevention of future wrongs. If the necessities of the foreign state require these acts to be done, the parent goverhment has no cause of complaint. It is her misfortune that the insurrec- tion has dimensions and power which exclude her au- 1 Phillimore, vol. i. pp. 17, 18, 300 INTERNATIONAL LAW. thorlty for the time, and compel foreign nations to deal with an intruding government that has authority de facto. The, cardinal rule is, that, while they must not interfere to affect the contest, foreign nations may and must live and trade, notwithstanding the contest. The test is, did the necessities of the for- eign state require the act, and did the act recognize no more than existed, and than those necessities re- quired ? The acts referred to are special, casual, and temporary, and are not inconsistent with the recogni- tion of the fact that the contest is still undecided. . . . Where the necessities of the foreign state are spoken of, the term is to be understood in a liberal sense. It refers to a state of things when a just regard to the duties and rights of a government, in reference to the interests confided to it, requires its action. It is among the duties of a government to keep open to its subjects commercial intercourse with all practicable parts of the world, the privileges of travel and so- journing, and all the forms of intercourse beneficial to humanity ; and to make arrangements for the pro- tection of its citizens in these pursuits. To that end, among the frequent convulsions of states, it is often necessary for a foreign power to deal with the party in possession of a portion of a state. To wait till the question of right is determined would be to suspend no small part of the life of nations. The justification of special acts, short of absolute and formal recogni- tion of sovereign independence, must depend upon the circumstances of each case, and little light can be thrown upon them by abstract statements further than have already been made." ^ § 239. Let us apply these rules to a late case. I 1 Wheaton, Dana's edition note, on p. 41. THE RIGHT OF RECOGNITION. 301 am not aware that any foreign power ever went so far as to accord this virtual recognition to the Con- federate States. I am not aware that any consuls were specially appointed for the Southern ports and accredited to the Southern government. The consuls residing in these ports, and accredited to the United States government, were left in the discharge of their functions. There was, indeed, a large foreign com- merce with many of the rebel ports, but, on account of the stringent blockade, this trade was all contra- band, all an evasion of our belligerent measures, and all in foreign bottoms. It is probable that no Con- federate merchant vessel — or but very few at most — took cargoes to foreign ports. As the facts were, therefore, there was no occasion for any further rec- ognition than the lowest grade — that of belligerency. But if our government had not instituted and kept up a vigorous blockade ; if the Southern ports had been left open and free to the commerce of the world, and free to the egress of Confederate merchant ships, it is probable that all maritime nations would have accorded a virtual recognition to the seceded commu- nity. I am of opinion that according to the principles which have been stated, this step would have been warranted by the circumstances, and that our govern- ment would have had no good cause of complaint. § 240. (3.) Formal, absolute Recognition of Inde- pendence and Sovereignty. This is the final act which admits a community as an equal into the fam- ily of nations, with all'the international rights which flow from the law. Of course this highest grade in- cludes all the others, and swallows them up, by con- ferring all the special rights and privileges which they do. 302 INTEENATIOKAL LAW. When the parent state has itself ceased its attempts at coercion, and has recognized the independence and sovereignty of its revolted subjects, of course there is no difficulty as to the course of other powers. The country most interested having taken the final step, and haviog admitted the existence of the new state, having conceded to its former subjects not only de facto, but de jure separate national existence, there is nothing left for other powers but to follow the ex- ample. At least, such is the uniform practice of all states which profess to be guided by the rules of in- ternational law. § 241. The important, delicate, and often difiicult question will arise, when the parent state has refused to recognize the independence of its revolted subjects, and still asserts its de jure authority over them. Un- der such circumstances, may other nations, disregard- ing the attitude of the parent state, take the 'final step, and make a formal, absolute recognition of the inde- pendence, sovereignty, and equality of the new soci- ety, thus treating it, so far as they are concerned, as dejure as well as de facto, a state ? All writers upon international law answer this question in the affirma- tive, and assert that such recognition, when properly made, gives no just cause of offence to the parent state. The universal practice of civilized nations is in perfect accordance with these doctrines of the publicists. Under what circumstances, then, is such a formal recognition justifiably ? As we have seen, all grades of recognition are merely public admissions of the existence of a fact without any inquiry as to whether that fact ought to have existed. Thus, one grade admits a community existing capable of carry- ing on war; the second admits a community existing THE EIGHT OP KECOGNITION. 303 having commercial relations and capable of maintain- ing them for the time being ; the third admits a soci- ety as existing which is, in fact, independent and sovereign. When this fact is patent the recognition is not only justifiable, but should be given. On the contrary, until the independence has become actual, a recognition of it would be the mere assertion of an untruth and a grave moral injury to the parent state, — a grave breach of international comity at least. This grade of recognition necessarily implies that, in the opinion of the nation recognizing, the revolted community has completely succeeded in establishing its actual independence, and the parent state has completely failed in its attempts at coercion, and that all further attempts will be equally unsuccessful. There must, therefore, be a very different state of circumstances to warrant this grade of recognition, than is sufficient to justify either of the lesser grades. The revolted province must have been able to main- tain its integrity, its government, its exclusive con- trol, over a definite country. It must have entirely repelled all attempts of the parent state to recover that country or to exercise jurisdiction therein. Fur- ther still, the parent state must have either virtually ceased to make any organized attempts to recover its hold and reassert its dominion, or it must be evident that these attempts will be fruitless. Under these circumstances, if a foreign power grants the formal, absolute recognition, the parent state will have no ground for complaint. The effect of such recognition is to admit the new state into the family of nations, and to clothe it with all international rights. As a consequence, its national and commercial flag will be recognized ; treaties will be made with it ; ambassa- 304 INTERNATIONAL LAW. dors sent to and by it j it would be able to wage proper war, etc., etc. § 242. But it must not be supposed that this recog- nition would involve the necessity of the recognizing nations aiding the new state in its contest with the mother country, were that contest to be continued. This result would be no more necessary than would be the interference of other powers in the quarrels of already existing states. There seems to have been a vast amount of absurd ignorance on this subject, in the discussions that grew out of our own late troubles. Many newspapers and not a few public men seem to have supposed that had Great Britain and Prance recognized the independence of the Confederate States, those great powers would thereby have been bound to take up arms in aid of the rebels. Nothing could be more absurd. Whether these European na- tions should interfere in behalf of the seceded States would be a question for them alone to decide, and they might just as well interfere before a formal rec- ognition of independence as after. Such interference would be actual war ; similar to that of France dur- ing the American Revolution. But mere recognition of Confederate independence woiild not have afforded the insurgents any material aid ; would not have been interference in the least with our belligerent rights. The only effect would have been a moral one, and this, doubtless, would have been great in encouraging the seceders. I might take up your time with quoting from authorities. As they are unani- mous in their statement of the general rule, I will refer to but one or two. § 243. Phillimore thus sums up the discussion and the doctrine : " Speaking generally, two facts should THE EIGHT OF RECOGNITION. 305 occur before this grave step be taken. (1.) The prac- tical cessation of hostihties on the part of the old state, which may long precede the theoretical renun- ciation of her rights over the revolted member of her former dominions. (2.) There should occur the con- solidation of the new state, so far, at least, as to be in a condition of maintaining international relations with other countries ; an absolute, bond fide possession of independence as a separate kingdom, not the enjoy- ment of perfect and undisturbed internal tranquillity, — a test too severe for many of the oldest kingdoms, — but there should be the existence of a government acknowledged by the people over whom it is set, and ready and able to prove its responsibility for their conduct when they come in contact with foreign na- tions. Where such a government as this exists, the question of formal recognition is rather one which concerns the internal policy of other kingdoms than a question of an international character. But the re- fusal or the withholding of the consent of the old state, after the semblance of a present contest has ceased, upon the bare chance that she may one day or other recover her authority, is no legitimate bar to the complete and formal recognition of the new state by the other communities of the world, though it is most desirable that this recognition should follow, and not precede, that of the old state. Upon this point both the reason of the thing and the ancient afld modern practice of nations are quite decisive." ^ § 244. In the same note already quoted from Mr. •Dana remarks : " But with reference to a final recog- nition by a general treaty, or by the establishing of full diplomatic intercourse, a more positive rule can 1 Vol. ii. pp. 19, 20. 20 306 INTEENATIONAL LAW. be laid down. The only test required is that the new state shall be in fact what the recognizing state as- sumes it to be ; for it may be conceded, once for all, that it is among the necessities of nations to have treaties and diplomatic intercourse with existing states. The practice of nations furnishes the best definitions and limitations of the condition of things in the new state which will justify such a recognition. It is not necessary that the parent state or the de- posed dynasty should have ceased from all efforts to regain its power. On the other hand, it is neces- sary that the contest should have been virtually de- cided."^ § 245. A few examples will suffice to illustrate these principles. The independence of the Nether- lands was recognized by Spain in 1648, nearly eighty years after their revolt, and seventy years after their own declaration of independence. But long be- fore that time the independence had been formally recognized by e^ery European nation except Aus- tria. Portugal revolted from Spain in 1640. In 1641 England recognized Portugal's independence, a step which was not taken by Spain until twenty-six years afterwards. The various South American republics were recognized by the United States, and afterwards by England, before Spain was willing to acknowledge their independence. The grounds of the action were that Spain had virtually abandoned all efibrts to sub- jugate her revolted colonies, which had, indeed, fflr several years exercised their sovereign powers un- interruptedly. Texas revolted in 1834. After a« year's contest she declared her independence. The battle of San Jacinto was fought in April, 1836, and 1 Dana's Wheaton, p. 42 (n). THE EIGHT OP EECOGNITION". 307 virtually ended the war. Mexico did not again in- vade Texas, though still refusing to acknowledge her independence. In the summer of 1836 Congress passed a resolution declaring that the United States ought to recognize the independence of Texas. In December, 1836, President Jackson sent in a special message recommending delay, and giving as reasons that it did not yet sufficiently appear whether Mexico had given up her eflforts at reconquest. But Mexico making no further attempt, the independence of Texas was recognized by the United States in March, 1837, and by Great Britain and France in 1840. § 246. The policy of the United States in respect to recognizing new states and governments has been fixed. It has always sought to avoid any complicity with the causes of national quarrels, and to be guided only by the existing facts. This policy and the com- plete agreement of it with the rules of international law, were most clearly and convincingly set forth by Mr. Webster in his ablest state paper. In 1848-9 Hungary revolted and endeavored to establish itself as independent of the empire of Austria. The United States took nc^part in the contest which ensued, but in 1849 sent Mr. A. Dudley Mann as an agent with secret instructions " to obtain minute and reliable in- formation in regard to Hungary, the probable issue of the present revolutionary movements, etc., etc. The object of the President is to obtain information in' regard to Hungary, and her resources and pros- pects, with a view to the early recognition of her in- dependence," etc. The mission was a failure. The insurrection had been virtually suppressed before Mr. Mann's arrival. In fact, he did no^ enter Hungary. In December, 1849, this mission was referred to in 308 INTEENATIONAL LAW. the President's annual message, and the instructions having been communicated to the Senate and printed in March, 1850, the Austrian charge d'affaires, Mr. Hulsemann, in September, 1850, addressed a note to the Secretary of State, vehemently protesting against all the measures which the United States had taken. In the course of his note he remarked that " those who did not hesitate to assume the responsibility of sending Mr. Dudley Mann on such an errand should, independent of considerations of propriety, have borne in mind that they were exposing their emissary to be treated as a spy." Mr. Webster replied by stating that no foreign government had any right to take notice of a com- munication made by one branch of our own govern- ment. Passing, then, to the subject of the correspond- ence, he admitted that the American people and government take a lively interest in the success of free institutions ; that they do not imitate the exam- ple of many of the monarchs of Europe, and become propagandists of their opinions and policy; they do not claim the right to take a part in the struggles of foreign powers ; but they do not conceal their desire for the spread of free principles and the establishment of popular constitutions. Mr. Webster then said, in substance : Questions of prudence arise in reference to new states brought by successful revolutions into the family of nations ; but it is not required of neu- tral powers to await the recognition of the parent states. Within the last thirty years eight or ten new states have established independent governments within the colonial dominions of Spain, and the same thing has been done by Belgium and Greece. All these governments were recognized by some of the THE EIGHT OF RECOGNITION. 309 leading powers of Europe, as well as bj the United States, before they werS acknowledged by the states from which they had separated themselves. If the United States had formally acknowledged the inde- pendence of Hungary, though no benefit would have resulted from it to either party, it would not have been an act against the law of nations, provided they took no part in her contest with Austria. But the United States did no such thing.^ § 247. This subject will be concluded by another reference to our late history. Would a formal recog- nition by a foreign power of the independence of the Confederate States have been in accordance with the rules of the international law as indicated by the practice of nations ? I answer, most decidedly, No. At any period of the contest, had a third country ac- knowledged the seceding States as independent, it would have done an act entirely without precedent in the history of the world. The mere length of the contest may be unimportant ; independence may be practically won in a short, decisive struggle of a few months, or it may be fought for through years of va- rying success ; but all authorities agree that the inde- pendence must be virtually won. There was no time during our late war when the United States intermit- ted their efforts ; no time when the government and the people were not fully determined to press forward in their endeavors. Had a foreign power recognized the independence of the Confederacy, our government would have had ample ground for breaking off at once all diplomatic intercourse with that power, even if the act would not have warranted graver measures of re- dress. 1 Vide Webster's Works, vol. ri. pp. 488-506. 310 INTERNATIONAL LAW. IV. Recognition of a new form of Government in a State already existing as sovdteign and independent. § 248. There is a fourth species of recognition, where a new government, sometimes the result of a peaceful and voluntary change of the internal consti- tution, more often the result of a successful revolu- tion pervading the whole body politic, by which the old dynasty is swept away and new rulers are estab- lished as supreme over the entire state, demands to be acknowledged as the supreme authority, the rep- resentative of the state in all international transac- tions. In the cases we have considered last, a new state has been erected, and has applied for admission into the family of nations. But, as we have already seen in a former lecture, a change in the government does not work a change in the body politic ; that ex- ists without interruption ; that needs no further rec- ognition. The rules governing this subject are iden- tical with those which apply to the recognition of a new state which had peacefully or violently separated itself from the mother country. The test is the ex- istence as a fact of a new government which actually dominates the country in question, and which is, for the time being, treated as possessing the functions of legislatioi> and of administration. While the conflict is going on, — as long as the old dynasty preserves a hold upon power, while there is yet a rival in the field, — .the old rulers are regarded as the rightful ones. But as soon as the new order of things has be- come established, and resistance, if it continues at all, is only desultory and inefficient, the nations will rec- ognize the new rulers and treat them as supreme and rightful. The sole criterion is the fact. I say this is the universal rule, although there have been a few THE EIGHT OP RECOGNITION. 311 exceptions where nations, from some peculiar motives of policy, have refused to accord the recognition. A few examples will serve to illustrate the rule and the practice. All the nations of Europe recognized the protectorate of Cromwell and the subsequent mon- archy of Charles II. At the abdication of James II. the recognition of William and Mary was very gen- eral, and the English government deemed it good cause of war that the French king refused to extend that acknowledgment, but ojB&cially treated the exiled James as de jure and de facto monarch. France af- fords numerous illustrations of the rule. After the overthrow of the monarchy, the republic, the consu- late, and the empire were successively recognized by other nations, with the single exception that Great Britain refused to recognize Napoleon as emperor. After the restoration of the Bourbons, the revolution that raised Louis Philippe to the throne was recog- nized by all other states as a change of dynasty. When he, in turn, was compelled to fly, the republic was recognized, and, after the bloody coup d'etat, Louis Napoleon was universally recognized as emperor. In our own immediate times Maximilian has been generally acknowledged as emperor of Mexico. The United States is the only important nation that has formally and definitively withheld its recognition. Our government has been led to this step by two^ con- siderations. (1.) The President, Juarez, has constantly been able to keep up an organized resistance, and a considerable portion of the Mexican territory has re- mained true to its allegiance to the republic. (2.) It is opposed entirely to all our most cherished princi- ples of policy to permit European nations to interfere with the internal affairs of the American common- 312 INTEENATIONAL LAW- wealths. I have no doubt, had Mexico been a state of Europe, our government woTild not have hesitated to recognize the rule of Maximilian. V. Who should accord the Recognition. § 249. It is a principle perfectly well established in the American and English law, that recognition is purely a political act ; that it belongs solely to the political department of the government ; that the ju- diciary will follow the political departments, taking judicial cognizance of their acts, and being governed thereby in their decisions upon national status and the rights which flow from quasi or complete nation- ality. This rule applies equally to all species of rec- ognition. The courts will treat the old order of things as still existing until the political department has acted and recognized another. These proposi- tions will be found established in the following Amer- ican cases, among others : Rose v. Himely, 4 Cranch, 241 ; Gilston «. Hoyt, 3 Wheaton, 324 ; United States V. Palmer, 3 Wheaton, 634; Kennett v. Chambers, 14 How. 38 ; and in the following English cases : The City of Berne v. The Bank of England, 9 Vesey, 347 ; Thompson v. Powleys, 2 Simons, 194 ; Taylor v. Bar- clay, 2 Simons, 213 ; The Manilla, 1 Edwards, 1 ; 2 Dodson, 363. Much more would the same doctrine apply in the nations of the European continent, in which the courts are, much more than in England and the United States, under the control of the administrative branch of the government. CHAPTER VIII. STATE CEREMONIAL. — THE EIGHT OF A STATE TO EXTERNAL MARKS OP HONOR AND RESPECT. § 250. The external marks of honor and respect to which kings, emperors, and other monarchs are en- titled have given rise to much discussion among diplo- matists, to an elaborate treatment by public writers, and to not a few wars. To us repubUcans it may, and doubtless does, seem that the discussion concerns a subject essentially trivial. Beyond all doubt, it has often been carried to an absurd extent ; but if we re- flect that all sovereign states are equal ; that, while this legal equality exists, some always have had, and always will have, a vast superiority in territory, population, power, wealth, and other resources, and therefore are under a constant temptation to encroach upon their weaker neighbors, we shall perceive that any means which tend to keep the legal equality constantly in view will also tend to preserve the mu- tual rights and duties of states and the peace of the world. During the Middle Ages, and to a certain ex- tent at the present time, crowned monarchs were and are disposed to regard the honors as due to them per- sonally, — themselves, as by some divine gift, enti- tled to the respect. But if, according to the modern theory, we regard all rulers, whether elective or he- reditary, whether crowned or not, as the representa- tives of the state, we shall see that all formal marks 314 INTEENATIOKAL LAW. of honor paid to them, to their ambassadors, to their ships of war, etc., are really, through them, paid to the collective people whom they represent, — to the body politic ov6r which they rule. A remark quoted from Phillimore presents this subject in its true light. Speaking of the rights of equality, he says : " It is impossible to see how soon any departure from this rule may injuriously affect the liberty and indepen- dence of the state which submits to it. Hence, the real value of those external marks of honor and re- spect so carefully embodied in the ceremonies and etiquette of nations, but which have been, it must be confessed, often carried to an extent in which a sober regard for the true end was lost in an idle, unreflect- ing attachment to the means, or under pretence of which the unlawful object of fostering ambition has been substituted for the lawful object of securing in- dependence." Mr. Phillimore quotes with approval the remark of Junius : " The king's honor is that of his people. Their real honor and interest are the same. A clear, unblemished character comprehends not only the integrity that wUl not offer, but the spirit that will not submit to, an injury; and whether it belongs to an individual or to a community, it is the foundation of peace, of independence, and of safety. Private credit is wealth ; public honor is secu- rity. The feather that adorns the royal bird supports his flight ; strip him of his plumage and you fix him to the earth." Sir James Mackintosh said in one of his speeches : " A wrong done to the humblest British subject, an insult offered to the British flag flying on the slightest skiff, is, if unrepaired, a dishonor to the British nation." Martens says : " A nation, however powerful it may be, has no right to demand from STATE CEEEMONEAL. 315 another positive demonstrations of honor, still less, acknowledgments of precedence, although all are al- lowed to consider as an injury any positive demonstra- tions of insult, any acts contrary to their honor." ^ § 251. While these marks of honor which involved an admission of superiority were not demanded of right, some of them were conceded because estab- lished by long usage, and passed into the domain of positive law. Certain rulers and states are acknowl- edged to be entitled to what are called royal honors, which entitle them to precedence over those states not possessing those honors, and give them exclusive privilege of sending ministers of the highest class. It must not be supposed that these royal honors be- long only to states governed by a king or emperor ; they have been and are now enjoyed by republics. They were accorded to the Eepublic of Venice, to the United States of the Netherlands, to the Helvetic Confederation, to England under the Protectorate of Cromwell, and to France under the republic. Our own country would undoubtedly be entitled to them did she demand them. But the United States has never as yet sent out foreign ministers of the first class. The most important and vexatious question which troubled diplomatists was the right of precedence among those entitled to royal honors. Martens says : " The right of precedence is the right to occupy, among many places, the one which is considered the most honorable. At all times the nations of Europe have attached a great importance to the maintaining of the rank which they assumed to be due to them, either at the personal interviews of sovereigns or of the ministers who represent them, on any occasion of 1 Martens, Droit des Gens, liv. It. ch. ii. § 125. 316 INTERNATIONAL LAW. ceremony, such as solemn visits, receptions, proces- sions, and the like, or in public acts of any kind, and above all, in the body and signature of treaties." ^ Martens and Kliiber define with some particularity which are the places of honor. Some of these rules may be amusing. In a right line the place of honor is the first ; in a transverse line, at the right ; in ses- sions the rank is governed by the distance from the presiding officer, and alternates from right to left. In public acts, and particularly in treaties, in the body of the instrument, the rank follows the order in which the powers are named ; in the signatures the first place is on the left, the second placets parallel with this in another column ; this place is a little more honorable than the second in the first column. Among those states that enjoy royal honors there has for centuries been much dispute as to the right of precedence. All Roman Catholic countries accord it absolutely to the Pope ; but Russia and Protestant countries reject his claim, and treat him simply as prince of an Italian state. For a long time the Em- peror of Germany, as successor of Charlemagne and of the Caesars, took the precedence of all other mon- archs. On the dissolution of the German Empire and the final abdication of the emperor, this precedence ceased to exist. Among other states, some have, from time to time, claimed positive right of prece- dence over all others, after the Pope and the Emperor of the Holy Roman Empire, namely, the king of the Romans, and the kings of France and Spain. Others, without demanding the precedence for themselves, have refused to yield it to others ; such as the kings of Great Britain, of Denmark, and of Sweden. * Liv. iv. oh. ii. § 130. STATE CEREMOliriAL. 317 § 252. It may be interesting to notice an attempt made by one of the popes to settle the respective rank of the European states, for it throws some light upon the comparative importance of the several nations at the time. In 1504, Pope JuHus II. established the order of precedence as follows : 1. The Emperor of the Holy Roman Empire. 2. King of the Romans, 3. King of France. 4. King of Spain. 5. King of Arragon. 6. King of Portugal. 7. King of England. 8. King of Sicily. 9. King of Scotland. 10. King of Hungary. 11. King of Navarre. 12. King of Cyprus. 13. King of Bohemia. 14. King of Poland. 15. King of Denmark. 16. Republic of Venice. 17. Duke of Brittany. 18. Duke of Burgundy. 19. The Elector Palatine. 20. Elector of Saxony. 21. The Elector of Brandenburg. 22. The Archduke of Aus- tria. 23. The Duke of Savoy. 24. The Grand Duke of Florence. 25. Duke of Milan. 26. The Duke of Bavaria. 27. The Duke of Lorraine. This list is in- structive. Of these twenty-seven states and princes, seventeen emperors, kings, dukes, republics, and the nations they represent, have disappeared from the European family. The elector of Brandenburg has become the powerful king of Prussia ; Austria has risen from an archdukedom to be a vast empire, which is now tottering on its shifting foundations ; the Duke of Savoy is now king of United Italy ; Spain, from being fourth on the list, and from holding a position where she proudly demanded the second place, has sunk to the condition of a third rate power. § 253. These squabbles for precedence have been abandoned under the light of a growing civilization. The tendency at the present day is to demand and accord absolute equality of rank, and to avoid any act 318 INTERNATIONAL LAW. which could possibly be construed into an admission of the right of precedence. Still, this rule must be taken under some limitations. Among the European diplomatists a certain dignity still seems to hedge about a king. The last annotater of Martens sums up the present practice as follows : Equality of rank among crowned heads is, at the present day, generally admitted. Sovereigns who enjoy royal honors, with- out being among the number of crowned heads, — such as the elector of Hesse, — yield the precedence to emperors and kings. Sovereigns who have not royal honors come after those who have. A sover- eign state has the precedence over a semi-sovereign or dependent state. The Pope has the precedence over Roman Catholic states, but not over Eussia and Protestant countries of Europe.^ § 254. As the modern practice recognizes and en- forces the idea of equality in rank, it has been neces- sary to contrive some plans by which any appearance of precedence might be avoided on those occasions where representatives of several states meet or act together, and all cannot physically occupy the first place. It would seem to be easy to declare once for all that no significance was to be annexed to any ar- rangement and collocation of persons or names. But so easy an expedient would not suffice. The diffi- culty has arisen chiefly at congresses of plenipoten- tiaries of various powers, and in treaties. Sometimes it has been resolved that each place at a congress or session shall be deemed the first. Often a treaty is signed in alphabetical order ; the several states being arranged by their initials, accord- ing to the French name. The most common expedi- 1 Martens, liv. iv. ch. ii. § 130 (note). STATE CEREMONIAL. ' 319 ent is the alternate (alternat). By the use of this at congresses and public ceremonials, the rank and place of different states undergo, from time to time, a change, which is determined by a regular order or by lot. The alternate is applied in the execution of treaties by providing as many copies as there are con- tracting parties, and arranging that each state shall write its signature first in that copy which it is to retain. § 255. Maritime Ceremonial. The flag of a state is the emblem of its sovereignty, independence, and equality ; of all those attributes, in fact, which consti- tute the state. As a consequence, any positive indig- nity offered to the national flag is a positive insult to the nation itself, demanding an instant and full apol- ogy ; and if the apology be delayed or refused, fur- nishing ample grounds for reprisals or open war. As the flag is the emblem of nationality, the practice is universal, and has grown to be a part of the positive law, to offer some marks of respect to the flag of na- tions with which exists a state of amity. Under some circumstances these marks of respect are due of right, and their omission would be an indignity. Under other circumstances they are rather matters of cour- tesy. These marks of respect are called salutes. They are paid tCships of war, to ports, fortifications, harbors, to sovereigns or their representatives, to in- dependent states, whether monarchical or republican. They consist in striking the flag (salut de pavilion) ; lowering top-sails and striking flag; lowering the sails {salut des voiles) ; firing a certain number of guns {salut du cannon). § 256. These salutes may be offered under two very different states of circumstances. (1.) When the salut- 320 INTERNATIONAL LAW. ing ship comes into a portion of the sea over which a state has territorial jurisdiction, such as ports, har- bors, roads, straits, and the space within cannon shot of the coast. Under these circumstances the salute is due as a matter of right to the state having juris- diction of the water; it is a recognition of the sov- ereignty, and is not a mere matter of courtesy. (2.) On the open sea. Here there is no exclusive juris- diction, and the salute is rather a courteous act than one demanded as a matter of right. Ortolan, in his " Diplomatic de la Mer," has treated of this subject with much fulness, and I will condense his statements. " The salute of lowering or furling the flag is at pres- ent abandoned between ships of war. . . . Often, as a mark of deference, merchant ships salute those of war by thrice repeating the manoeuvre of slowly low- ering the flag to half-mast and immediately raising it again. The salute is returned to them once in the same manner. Ships of commerce also salute by lowering their top-sails. The salute of cannon, made to fortresses or maritime places by vessels of war which are moored there, or which pass by them, ought always to be returned by the same number of guns, because it is, in fact, the salute of one nation to another, and all being equal, all have the same rights. We can easily see why, in these cases, the ships of war arriving or departing ought to salute first. This salute is almost a matter of absolute right; but a state ought to consider the omission as only an act resulting from the convenience of the party, and not as an offence towards itself, unless, indeed, particular circumstances give to the omission an evident insult- ing character. " On the open sea, or within the maritime territory STATE CEREMONIAL. 321 of a third power, there is no general obligation for ships of war to salute each other when they meet. Nevertheless, the practice is for a vessel of war car- rying the pennant of an admiral or the guidon of a commodore to be first saluted by another naval ves- sel whose commander holds an inferior rank. A sin- gle ship of war should first salute a fleet or squadron that it meets. ... It is usual to salute first, even by the guns of forts and towns, a vessel carrying a sov- ereign, a prince or princess of the blood royal, or an ambassador." ^ § 257. Merchant vessels are bound to salute a ship of war whenever met, either on the open sea or in territorial seas. The editor of the latest edition of Martens sums up the practice upon this subject, and states one most important principle. " It belongs to each sovereign state to regulate the maritime cere- monial which its vessels ought to observe towards each other and towards those of another nation, either within its own territorial limits or on the open sea. It equally belongs to each state to determine the ceremonial to be observed within that part of the sea under its jurisdiction, by foreign vessels towards each other or towards its own fortresses and ships of war, and the honors which these latter ought to ren- der to foreign public vessels. Maritime ceremonial is fixed by the particular laws of each state, or by treaties. . . . Heffter presents a precise exposition of the practical rules which, at the present day, govern maritime ceremonial. According to this author, this ceremonial has place : (1.) When the ship passes un- der the guns of a fortress or of a foreign maritime place, or when it enters into a foreign road or port. 1 Ortolan, vol. i. pp. 335, 336, 337, 339. 21 322 INTERNATIONAL LAW. . (2.) In certain solemn occasions, at the moment when a ship of war comes to anchor in a foreign port. (3.) When two ships meet on the open sea. . . . We may consider as general rules of the international law, the following : (1.) Each power is free to regulate upon its own maritime territory or in its own waters, the manner of the salute, provided it establishes nothing injurious to other powers. (2.) In the open sea and in the maritime territory of a third power, there is no general obligation for ships of war to salute when they meet. (3.) The following cases are not to be considered as obligatory acts, but as simple acts of courtesy: (1.) TBe meeting of a single ship of war with a foreign squadron or fleet, the ship of war first salutes by the discharge of cannon. (2.) The rein- forcement of a principal fleet by an auxiliary fleet ; the auxiliary fleet salutes first. (3.) The meeting of two ships of war ; that of inferior rank salutes first ; in case of equality of rank, the one which sails with the wind. If one of the ships carries the flag of an admiral, it receives the first salute, whatever be its rank. (4.) Ships of commerce ougjit first to salute vessels of war; the salute consisfTsame inering the sails and flag, and sometimes in thfe of one re of can- non. When a ship carries a sovie the sam prince of royal blood, or a foreign ambp,s^ases, the.er vessels, forts, and places ought to salute ^^ salute f \ 1 Martens, liv. iv. ch. iv. § Islr^eT CHAPTER IX. TREATIES. § 258. It was shown in the first lecture that the consent of nations, as shown by treaties, was one most important source of international law. But it is not from this point of view that we are now to regard these conventions. We are to consider them solely as compacts between particular states, by which special rights and duties are created. Regarded in this light, they are analogous to private contracts in the municipal law. Regarded as sources of the inter- national law, they are rather analogous to statutes. The right to enter into treaties at will is certainly one of the most important that belong to states. As all states are equal, they all have the same capacity to contract with other bodies politic. Deprive a na- tion of any portion of this capacity, and we would reduce it from its position of equality, and at the same time would restrict its complete independence and sovereignty. The want of complete power, there- fore, to enter into treaties is a sure badge of inferior- ity and dependence. I shall divide this subject into the following heads, and consider each separately : — I. Definition. n. Between whom treaties may be concluded. III. Requisites and conditions for the validity and binding character of a treaty. IV. When a treaty ceases to be obligatory. 324 INTERNATIONAL LAW. V. The nature and extent of the rights and duties conferred by treaties. VI. Various kinds of treaties. VII. Interpretation of treaties. § 259. I. Definition. We speak now only of pub- lie treaties. A public treaty is a compact or agree- ment made between two or more nations, through the instrumentality of their respective governments. Stipulations which kings and other personal rulers in monarchies make in their private names, and agree- ments which the governments of any countries make with particular persons, are not treaties, and do not belong to the science of international law. The latter agreements are, indeed, nothing but ordinary con- tracts, one party to which is a corporation. They may not be enforcible by ordinary actions against the monarch and the state, but they have nothing in common with public treaties. § 260. II. Between whom Treaties may be con- cluded. The very definition indicates that all sov- ereign independent states have full capacity to enter into whatever treaties they please. The right of ne- gotiating and contracting treaties is one of the rights most essential to sovereignty and equality. A pro- tected state may, if it has retained its sovereignty, enter into treaties and alliances, unless the power has been expressly renounced or cannot be exercised con- sistently with the conditions of its protection. But so far as the capacity had been surrendered or re- stricted, just so far would the state have limited its attributes of sovereignty and equality. The subordi- nate portions of a nation, such as cities and the like, have, of course, no capacity to conclude these public conventions. Whether the component parts of a fed- TREATIES. 325 eral union shall separately retain the capacity will depend, as we have seen in a former lecture, upon the constitution of the union. The Helvetic Confed- eration took away the power from the several cantons. The Germanic Confederation, which was crushed in the last war, left each state in the full enjoyment of the treaty-making power. The several states of our own country bear no plainer badge of their subordi- nation than their utter inability to make treaties with each other or with foreign nations. " It was once a matter of serious doubt and discussion whether one nation could enter into treaties with another which professed a different religion. Not only the earlier writers upon international law, but Grotius himself, debate this question at considerable length ; and even the further question, whether a league and war of Christian nations against the infidels be not a mat- ter of Christian duty. There was a period when the state of religious feeling and party, and still more, when the actual and continued enmity between the Christian and the Mahometan, rendered this discus- sion neither unnecessary nor unprofitable. The con- clusion of Grotius is in favor of the lawfulness of such treaties." ^ Of course, such questions are, at the present day, entirely obsolete. Treaties are now made between all Christian powers and Mahometans or heathen, — with any peoples, in fact, who have commercial advantages to offer. §261. III. Requisites and Conditions for the Valid- ity and binding Character of Treaties. I shall consider this subject under the following subdivisions : (1.) By whom must the treaty be concluded ? (2.) When is ratification necessary? (3.) How should the consent 1 Fhillimore, vol. ii. p. 61. 326 INTEENATIONAL LAW. of the contracting parties be expressed ? (4.) Nature of the consent in order that the treaty may be bind- ing. (5.) Na,ture of the stipulations in the treaty in order that it should be binding. (6.) Treaties not obligatory. § 262. (1.) By whom must the Treaty he concluded in order that it may he ohligatory ? In the first place, the treaty must be concluded by the government, representing the supreme power in the state. As long as the state is in a condition of internal repose, and the regular government is in the full enjoyment of its attributes, there can be no difficulty. But when there has been a revolution, and the old gov- ernment has been displaced and a new one erected, there may arise questions of a delicate nature. Un- der these circumstances we must recur to principles laid down in former lectures. If the new govern- ment, although usurping, be in the actual possession of the supreme power in the state, it is, for the time being, the representative of that state, and its treaties are binding upon its successors, even upon the legiti- mate rulers, should they be restored. But while the revolution is in progress, neither the old government nor its rivals being in the peaceable possession of their functions, the treaties entered into with either would be only provisional.^ § 263. In the second place, the particular depart- ment of the government which shall be able to enter into a binding treaty, and the particular steps neces- sary to be taken in order to render it obligatory, must depend entirely upon the internal constitution or fundamental law of each state ; and all other na- tions are bound to take notice of this constitution in 1 Kluber, § 142, note o. TREATIES. 327 that respect, and of the powers which it confers upon the government. Wheaton says : " The constitution or fundamental law of every particular state must de- termme in whom is vested the power of negotiating and contracting treaties with foreign powers." ^ Klu- ber says : " Public , treaties can only be validly con- cluded . . . under the condition of being of a kind conformable to the constitutional laws of the state." ^ The editor of the last edition of Martens says : " The state not being able to act by itself, the function of contracting treaties with foreign powers is ordinarily delegated to the reigning sovereigns in absolute mon- archies, and even in constitutional monarchies. In re- publics this function devolves upon the president, or senate, or executive council. The particular constitu- tion of each state, or its fundamental law, governs in this matter, and determines to which of the powers whose whole forms the government belongs the right of making treaties in the name of the state." * In France the right belongs exclusively to the emperor ; in England, to the crown, and is exercised, of course, by the ministry. In the United States, as we know, the function resides in the President actmg with the advice and consent of the Senate. It is rare that the chiefs of the state, kings, em- perors, or supreme magistrates, invested with the right of making treaties in the name of the nation which they govern, make them in person. They ha^- bitually designate for the negotiation and composition of a treaty one or more agents clothed with special powers, and for this reason called plenipotentiaries. Not unfrequently, however, the ordinary ambassador 1 Dana's Wheaton, § 252. * Martens, § 47, note. " Kluber, § 142. 328 INTERNATIONAL LAW. or minister resident near the power with whom the negotiation is to be carried on is intrusted with the duty of concluding the treaty. In this case, the gen- eral letter of credence, or credentials, is not suffi- cient; the ambassador must be furnished with a special letter giving him authority, and technically known as a full power. In addition to his ordinary functions as ambassador resident, he thereby becomes invested with the special capacity of plenipotentiary in respect to this particular transaction. § 264. (2.) When is Ratification of a Treaty neces- sary f There are several cases to be considered, in some of which it is so plain that there is no room for discussion that a ratification is or is not required to the validity of the treaty. (1.) When a treaty is directly and personally con- cluded between the rulers of states, by whose consti- tution they have sole and complete power of them- selves to make treaties, it is evident that there is no need of a ratification. Such are the emperors and kings of all absolute monarchies, and, in many cases, of limited monarchies. These monarchs being solely charged with the function, and being accountable to no other branch of their government for their acts, it would be. an absurdity to require that they should formally ratify what they themselves have once for- mally done. The process would be a mere unmean- ing repetition of their own acts. It is true that such treaties are rare. When entered into it has gener- ally, if not always, been by absolute monarchs. In constitutional monarchies the affairs of state are al- ways conducted by a ministry, the crown being little more than a pageant. Louis Napoleon and the em- peror of Austria, at a personal conference, agreed TREATIES. 329 upon the substance of the Treaty of Villa Franca. The first Napoleon and the emperor of Russia made a treaty without any intervention of agents. • § 265. (2.) "When the constitutional or fundamen- tal laws of a state require that treaties shall be rati- fied, and especially when the constitution intrusts the function of treaty making to more than one depart- ment, permitting the executive to negotiate and draw the proposed convention, and demanding that it shall be submitted to some other body, legislature, senate, or council for confirmation. In these cases it is plain that the treaty has no binding quality until it is rati- fied; before that final proceeding it is a mere pro- posal. It is probable that in all those countries where a ratification is made indispensable by the fundamen- tal law, the treaty-making power is not held by the executive alone, but is in some sort shared by a leg- islative body. In these cases the actual negotiation must of necessity be conducted by an agent, by a minister either generally or specially appointed. This minister, whether he holds full or restricted powers, only represents the executive. He receives his in- structions and his credentials from that department, and whether he acts within or beyond his instruc- tions he could only bind the executive. But as the constitution in terms requires the assent of the other branch, the most absolute committal of the executive to the treaty will not suJB&ce, will not change it from a proposal into a contract. As we have seen, all for- eign nations dealing with a state are bound to take notice of its fundamental law, so far as that law de- fines and distributes the powers and functions of the various departments and officers which hold the high- est attribute of government. Therefore no foreign 330 INTEENATIOKAL LAW. nation could complain that the treaty concluded by it and a plenipotentiary was submitted to the senate or other requisite body of the state which sent the minister, and was perhaps rejected. The foreign na- tion must be supposed to know that all treaties en- tered into by such a state must pass through the double scrutiny. Our own country affords a striking example of this constitutional requirement. The President may and must negotiate all treaties ; the Senate must confirm them. Our foreign ministers and special envoys speak for the President ; they cannot bind the Senate. In fact they cannot consult with the Senate during the progress of the negotiation, so as to ascertain the views and opinions of that body. For these reasons our plenipotentiaries, though holding the most un- limited powers as expressed in their letters of cre- dence, are indeed restricted. They are not able to use their own discretion ; they do not stand on an equality with the ambassadors and plenipotentiaries of many other nations in the matter of negotiating, preliminary to a treaty. It is plain that in all the cases considered in the present subdivision a ratifica- tion is indispensable to the validity and obligatory character of a treaty. § 266. (3.) When the treaty itself contains a pro- vision that it is to become binding only when ratified, or when the public letter of instructions or of full power which forms the credentials of the envoy con- tains a similar provision, it is clear that the treaty must be ratified whether the minister have acted within his authority or have exceeded it. In the first instance the language of the convention itself requires the ratification, and the treaty is just as binding in TREATIES. 331 respect to this provision as in respect to all others. In fact such a stipulation renders the instrument a mere proposal until it receives the approval of the proper authorities at home. In the second instance, the credentials of the minister, which are shown to the plenipotentiaries on the other side with whom he is treating and which constitute his authority, which declare that he has power to negotiate in the name of the state which sent him ; these very credentials as plainly tell that he has no power or authority to con- clude a treaty which shall be binding upon that state without ratification. This rule will apply to all states, whatever be their forms of government or the powers of their rulers, in cases where treaties are negotiated by ministers or envoys. As the operation of this rule removes all doubt as to the validity of a treaty, it has grown to be the common if not universal practice in modern times to insert a clause providing for a ratifi- cation, and declaring in substance that the convention shall become obligatory upon the interchange of such ratifications. Thus the final article of the Treaty of Paris (1856) is : " The present treaty shall be ratified, and the ratifications shall be exchanged at Paris in the space of four months, or sooner if possible." § 267. (4.) There is yet a fourth case. Suppose a treaty is negotiated by a state whose constitution does not imperatively require ratification, the treaty-mak- ing function being solely committed to the monarch, or other executive head. Suppose this treaty -is ne- gotiated and signed by a plenipotentiary of that state, and that neither the instrument itself nor the in- structions of the envoy specify a ratification as a pre- requisite to validity. Suppose, finally, that the au- thority of the envoy was a full power, and that he 332 INTERNATIONAL LAW. has not only acted within that public authority but also within the private and special instructions. Does such a treaty require ratification, or is it valid and obligatory upon the party executing from the mere signature of the plenipotentiary ? I answer that in such a case the treaty retains its binding character from the act of the minister, and does not need any ratification by the home government. In this conclu- sion I believe all publicists are agreed. The justness of the rule is obvious. The personal ruler having unlimited power in respect to not being answerable to any other department for the use of his discretion, he may delegate his powers to a personal representa- tive. The minister represents the individual sov- ereign, acts for him, receives his instructions from him, and if the ruler pleases to confer upon that agent full powers to act, and the agent does not transcend the authority, good faith and public policy demand that this act of the agent shall be the act of the principal. In short, the other contracting party may treat a convention thus executed as obligatory without any ratification, and may hold the state to the duties imposed thereby. § 268. (5.) Finally, there is a case which presents a difficulty, and which has occasioned no little discus- sion and difEerence of opinion among writers upon international law. The case could only arise under circumstances al- most the same as those supposed in the last subdi- vision. Suppose a state whose ruler has sole power to enter into treaties, and no constitutional provision requires a ratification ; the instrument is negotiated and signed by a plenipotentiary, and neither the treaty nor the public instructions make ratification TREATIES. 333 necessary. Suppose that the envoy carries full power in his public credentials and instructions, but is also furnished with private or secret instructions differing in scope or extent and purpose from those which are public, and the treaty he executes' is in accordance with the public instructions, but exceeds the authority given in . those which were private or personal. Is such a treaty binding upon the state whose envoy signed it, or must the government ratify in order to validate it ; in other words, may the government at home reject the treaty, and affirm that it was con- trary to their instructions, and therefore void ? It is plain enough that were this a case of private agency in the municipal law, the act of the agent under the circumstances would be binding upon the principal. The question to be determined is, how far the analo- gies of the municipal law shall control the interna- tional in this case ; how far the positive municipal rules of agency shall extend to the intercourse and negotiation of sovereign states carried on by plenipo- tentiaries. § 269. As before remarked, there is much differ- ence in opinion among publicists on this point. Grotius holds that the sovereign is bound by the acts of his minister which were within the limits of his patent full power, although they may have tran- scended or violated the terms of the secret instruc- tions.^ Bynkershoek is of a contrary opinion. He holds that ratification is necessary under the circumstances, unless the patent full power or public credentials in- stead of being in general terms are special, and de- * Grotius, De Jur, Bel. ac Pac, cited in Wheaton, § 257, Dana's ed. 334 INTERNATIONAL LAW. scribe particularly the authority conferred on the minister.^ Vattel holds the sovereign as bound by the acts of his minister done within the limits of the credentials, unless the powei? of ratifying be expressly reserved. He does not treat of the particular point under con- sideration with any minuteness, as he asserts the uni- versal practice to require a ratification, and that this practice has become so general that no dependence would be placed on any treaty unless it had been rat- ified.2 Wheaton discusses the question at some length. He strongly inclines to the opinion that under the circumstances supposed, the treaty should be ratified in order to its validity. He says : " The slightest re- flection will show "how wide is the difEerence between the power given by sovereigns to their ministers to negotiate treaties respecting vast and complicated in- ternational concerns and that given by an individual to his agent or attorney to contract with another in his name respecting mere private afEairs. The acts of public ministers under such full powers have been considered from very early times as subject to ratifi- cation." ' Kliiber says : " A treaty executed by a plenipoten- tiary is valid and obligatory, if he has not acted be- yond the terms of his public or patent full powers ; and a subsequent ratification is only necessary in the case where it has been expressly reserved in the full power, or stipulated for in the treaty itself, as is com- monly done at this day in all conventions which are * Bynkershoek, Quoesf. Jur. Pub., cited by Wheaton, § 258, Dana's ed. " Vattel, book ii. ch. xii. § 156. * Wheaton's Elements, Dana's ed. § 269. TREATIES. 335 not, like military arrangements, made necessary by the exigency of the moment. The ratification given by one of the contracting parties does not oblige the other party equally to give his own. The validity and binding quality of the treaty commences from the date of the signature, and not from that of the subsequent ratification, which relates back and gives the convention effect from the former period. A sim- ple sponsion, that is, an engagement formed in the name of a state either by its representative or by a voluntary agent, they not having been authorized, is only obligatory when it is ratified by the state.^ Martens thus states the rule : " Whatever the chief or the inferior promises beyond the limits of the au- thority intrusted to him is only a simple sponsion, which nothing but a subsequent ratification, either express or implied on the part of the nation, can render obligatory. But whatever an agent, minis- ter, or the like, promises, while remaining within the limits of the power which has been given to him, and upon the faith of which a foreign nation has entered into negotiations with him, is obligatory upon the state which authorized him, although he may have transgressed the terms of his secret instructions. The universal law of nations does not require a particular ratification to produce this effect. Nevertheless, con- sidering the necessity of giving to negotiators very comprehensive full powers, the positive law of na- tions has introduced the necessity of a special ratifi- cation, so as not to expose the state to those irrepa- rable injuries which the inadvertence or the bad faith of an agent might cause, so that treaties are not con- sidered as certain until they have been ratified." ^ 1 Kliiber, Droit des Gens, § 142. 3 Martens, Droit des Gens, liv. ii. ch. ii. § 48. 336 INTERNATIONAL LAW. Phillimore says : " It should be observed that though it is now usual to reserve the final settlement of a treaty negotiating by ambassadors for the ratifi- cation of the governments whom they represent, yet if the negotiator be a plenipotentiary such ratification cannot be held essential to the validity of a treaty unless the necessity for it has been expressly reserved in the powers given to the ambassador, or unless, as usually happens, it be the subject of stipulation in the treaty itself." ^ § 270. From this review it is plain that the over- whelming weight of authority is opposed to the opin- ion of Mr. Wheaton upon this particular question. The great majority of writers apply the same princi- ples of good faith to the dealings of public ministers commissioned by sovereign states, which the mimic- ipal law applies to the dealings of ordinary agents appointed by private persons. Yet I cannot but think that there is great weight in the observations of Mr. Wheaton ; that the complete difference of cir- cumstances, the immensely greater magnitude of the interests involved, do indicate a necessary distinction between the binding effect of the transactions of a private agent acting within his known, but contrary to his secret, authority, and of the transactions of an ambassador in a similar situation. A perception of this radical difference has in fact led nations to the present universal practice of retaining in the hands of the home government the power to decide finally upon a treaty, and to reject or ratify it. § 271. Capitulations, truces, cartels, and other mil- itary arrangements made by the commanders of an army or of a body of troops, and the like, are obliga- ^ Phillimore, vol. ii. p. 65. TREATIES. 337 tory, independently of any special ratification, unless the commanders have transgressed the bounds of the authority intrusted to them, or unless ratifications have been expressly reserved; which latter often happens, especially in the case of general armistices.^ § 272. (3.) How should the Consent of the Con- tracting Parties he expressed ? In now speaking of the form of the consent in order that the treaty may be valid and obligatory, I refer both to the agree- ment entered into between plenipotentiaries and other agents and to the ratification by the home gov- ernment wielding the supreme power of the state. No rule of the general international law requires a treaty to be in writing ; but a practice has become universal, and as such incorporated into the positive law of nations, that all treaties should be written, and executed with great formality. Whenever an agree- ment in the nature of a compact is verbal, it must be reduced to writing as soon as possible. The consent must be positive and certain, but it may have this quality of positiveness, and be either express or tacit or implied. A tacit or implied con- sent would generally have place in the case of a rati- fication. But mere silence would never amount to an implied consent ; there must be some positive act indicating the assenting intention of the party. Thus, if the government of a state should proceed to act under a treaty, to carry out certain of its provisions, to enjoy certain of its benefits, this would be a suffi- cient implied or tacit consent to amount to an ample ratification. Martens lays down the rule in a very clear manner. " Another natural requisite to render the treaty valid is that the consent should be efEec- 1 Martens, § 48. 338 IKTEEKATIOBTAL LAW. tively and simply declared. All the negotiations which precede such a declaration are only prelimina- ries, which are not obligatory. Also the arrange- ments made with respect to certain articles of a treaty, under a condition express or implied of agree- ing to others, lose their validity as soon as it appears that the latter cannot be added. Finally, as all de- pends upon the certainty of the intent, and not upon the manner of announcing it, the consent may be given expressly or tacitly, and in the first case either verbally or by writing." ^ In his note to this section M. Martens remarks : " It would be difiicult to sus- tain the proposition that the European powers no longer regard verbal conventions as obligatory. But, in view of the inconveniences inseparable from all declarations of this sort, it is, without doubt, impor- tant not only to reduce to a written form all con- cluded conventions, but even to insist that all prop- ositions in a negotiation should be written. Many states have adopted a constitutional rule not to delib- erate upon propositions which are not presented to them in writing." Kluber's language is emphatic and pointed. He says : " These rights and obliga- tions [springing from treaties] can only be based upon a consent free and effective, express or tacit, given verbally or in writing. Simple suppositions or conjectures can only establish between states a simple probability, never a certainty, and still less perfect rights. The law of nations no longer recognizes the Active right {consensus fictus) of the Eoman legisla- tion." ^ Wheaton states the rules of the international law in a similar manner. § 273. (4.) Nature of the Consent in order that the > Martens, § 49. 2 Kluber, § 341. TKEATIES. 339 Treaty may he binding. Here principles apply iden- tical with those which determine the nature and va- lidity of contracts in the municipal law. As these principles are founded upon justice and good faith, the propriety of a recourse to them in the external transactions of nations is evident. (a.) The consent must be mutual or reciprocal. It is necessary that the consent be mutual, that the promise concur with the acceptance. The form which may be chosen is less important, whether it be that of a common instrument signed by both parties, which is generally used at the present day, or that of a dec- laration and counter declaration, in the form of let- ters, notes, etc. The acceptance more often follows the promise ; but there are cases in which it may be inferred from a prior declaration. The consent ought to relate to the same object. An error in regard to the essential object of a treaty renders it invalid.* Kluber expresses himself with great precision. He says : " That the consent may be mutual, it is neces- sary that the promise made by one of the parties be accepted by the other ; the forms and time of this ac- ceptance are indifferent, unless the treaty contains express stipulations in respect thereto. The accept- ance may be made before the promise or after, unless in the interval the other party have retracted his proposal in a legitimate manner ; it may be made by an act executed in common and signed by the differ- ent contracting parties, by a declaration and formal response, or by an edict, order, ordinance, or open letters addressed, in virtue of the convention, to the subjects of one or the other of the states. . . . There can be no true consent if it be given through error, 1 Martens, § 51. 340 INTERNATIONAL LAW. or if the party has been surprised by fraud, provided this fraud has been accomphshed by actual manoeu- vres ; the wrong suffered by one of the parties in a case of exchange, resulting from the difference in value of the objects exchanged, would not be taken into account." ^ § 274. (&.) The consent must be free. So far as applicable, the familiar rules of the mu- nicipal law respecting force or duress in contracts must govern the transactions of states in their trea- ties. As the will of the private contracting parties must be free to act, to choose, or there is really no will, so the will of the state, manifested through the government and its agents, must have been compelled by no force ; the consent must have been extorted by no violence. But to this general proposition there must be at least one most important exception. In a majority of wars one of the contending states is defeated, its armies overthrown, its territory occu- pied by the troops of the enemy. Under these cir- cumstances the state consents to a treaty by which it surrenders some right, perhaps cedes some territory ; at all events, the treaty is such as the state would not have executed had it remained in its former con- dition, — in short, the convention is dictated at the point of the sword. Now, shall it be said that such treaties are invalid, are not obligatory, because they are extorted by force, entered into under duress ? Plainly not. All writers on public law and all his- tory agree that this exception must exist. But how far shall the exception extend ? Does it apply to all Wars, or only to those in which the successful bellig- erent, in whose favor the treaty is executed, has a 1 Kluber, § 143. TREATIES. 341 just cause of war, so that the defeated state is not only the loser, but ought to have been the loser? Were such a criterion as this established, who should decide as to the moral nature of wars? Should it be left to the beaten party? Then there would be absolutely no security in treaties, for as soon as that state recovered its power and resources it would be sure to decide that the former war, by which it lost, was unjust, and that the treaty resulting therefrom was not obligatory. If, on the other hand, it should be left to the successful state to decide, it would be the same as holding. that all wars are just. . Plainly, then, this criterion would furnish no practical rule whatever for the guidance of nations. Still, as we shall see, there is some discrepancy among publicists as to the extent of the exception. Those who are inclined to look upon the solemn agreement and plighted faith of a nation as of the greatest moment have pronounced treaties inviolable which were en- tered into as the result of any and all wars ; those who look upon the international law and international compacts as rather a means than an end, and the es- sential rights . of peoples and nations, and, above all, their corporate existence, as the very things to be conserved at all events, — these, I say, have limited the extent of the exception under discussion, and have found many instances and states of circum- stances in which a treaty may be treated as a nullity, as extorted under duress. The whole subject is of great importance at the present day, in .view of the constant tendency in Europe to change and readjust- ment. I shall, therefore, examine with some care the opinions of several publicists. § 275. Kluber, after stating the general rule that 342 INTERNATIONAL LAW. the consent must be free, proceeds: "The consent will be free if it has not been extorted by any unjust violence. Violence used only in defence of a right which is attacked, provided it be not pushed further than the right itself demands, does not vitiate the con- sent. An act of violence proceeding from a third party would invalidate the treaty only so far as the state with which the engagement had been contracted should have cooperated in the bad faith." ^ In a note upon this passage the author gives an example of violence which does not vitiate a treaty, namely : " In a treaty of peace by which the conqueror terminates a war begun for a just cause." Again he remarks, in a final note : " Acts of violence on the one part, and their legitimate cause on the other, being generally beyond the reach of evidence, and, for this reason, a strict examination and sufficient proofs being gener- ally impossible, the application of these principles will always offer very great difiiculties. For this reason, sound policy indicates that the validity of a treaty should not be attacked on the ground of vio- lence." It is plain that, in theory, Kliiber would restrict the exception to the case of just war ; he would hold that an unjust war, resulting in success and a treaty, was an act of violence which rendered the treaty null, for it would not have been exercised in the de- fence or enforcement of a right. But he admits the difficulty of applying this theory, and, as a matter of state politics, declares that treaties should not be at- tacked on this ground. § 276. Martens expresses himself in the following manner : " Consent, to be valid, should be free. In 1 Droit des Gens, § 143. TEEATIES. 343 case of a signature extorted by physical violence there plainly would be no consent. But in the case where the fear of a great evil, present or future, has induced the party to sign, there is no default of consent which that party can urge as ground for revoking the choice he has made, however reluctantly'. Under these cir- cumstances, the question of determining whether such a treaty be obligatory depends upon the justice or injustice of the means employed to extort it. " Force illegitimately employed is an injury (lesion), and not a title by which rights can be acquired; legitimate force does not prevent the enjoyment of its own fruits. Nevertheless, since there is here below no judge who can determine, between nations, the justice of their transactions, the equality of their rights, their liberty and independence require that, in all cases of doubt, they should consider force employed by nation against nation as not unjust in respect to external effects. As a result in conformity with this principle, the argument that a superiority in the forces of the adverse party had compelled them to sign a treaty would not furnish a state with a justifiable ground for disregarding the compact. The only excepted case, at most, would be the one where the injustice of the violence was palpable." ^ In a note to this passage, the author makes the following remark, which con- tains a suggestion pregnant with meaning and impor- tant consequences : " Without doubt, the adverse party, persuaded of his own right, is authorized to oppose force to force ; but this fact does not dispense with the necessity of treating an enemy according to the rules of war, nor does it dispense with the observ- ance of the treaties which the most feeble have signed, > Martens, Droit des Gens, liv. ii. ch. ii. § 50. 344 INTERNATIONAL LAW. for, otherwise, wars could only be finished by the ex- termination of one of the belligerents." The opinion of Martens is decidedly in favor of the obligatory character of all treaties which are the re- sults of any and all wars ; his suggestion, that if the injustice of the violence were palpable the compact would be null, is evidently unpractical. The latest editor of Martens, in his note upon the passage quoted, advances a principle which seems to be somewhat practicable, and to many will appear eminently just. He says : " The consent ought to be free for treaties as well as for* private contracts. The agreement of wills ought to exist reaUy ; it is only apparent, or rather does not exist at all, when it has been obtained by error or by a ruse, or when it has been extorted by constraint, or has been effected by fraudulent manoeuvres or by substantial errors. Circumstances, therefore, which merely render the choice between numerous expedients and the resolu- tion which ought to be taken more difficult, cannot be 'considered as obstacles to the free exercise of the will. To vitiate the consent, there must be such a constraint as shakes a firm and persevering courage, such as that which exists in every case where there is danger lest the physical or moral existence be destroyed. Heff- ter, in his " International Law," recognizes the exist- ence of such a danger for the state when its existence is in peril ; and for the negotiator in all cases where his life, his health, his honor, his liberty, are seriously menaced, and the accomplishment of the menace is in the power of the one who makes it " § 277. Wheaton states the exception in its broadest terms, without suggesting any actual or possible lim- itation. After stating the general rule that, by the TREATIES. 345 municipal law, private contracts extorted under du- ress are void, he proceeds : « On the other hand, the welfare of society requires that the engagements en- tered into by a nation under such duress as is implied by the defeat of its military forces, the distress of its people, and the occupation of its territories by an en- emy, should be held binding ; for if they were not, wars could only be terminated by the utter subjuga- tion and ruin of the weaker party. Nor does inade- quacy of consideration or inequality in the conditions of a treaty between nations, such as might be suffi- cient to set aside a contract as between private indi- viduals, on the ground 'of gross inequality or enor- mous lesion, form a sufficient reason for refusing to execute the treaty." ^ § 278. Mr. Phillimore states the reason of the ex- ception with great clearness and cogency, but he sug- gests no limitation upon the rule growing out of the nature of the war. After referring to the general doctrine of the municipal law, he adds : " Consent must not have been given in error or produced by deceit, either by misrepresentation [suggestio falsi) or by concealment of important facts [suppressio veri). The analogy, however, between the private contract and the public treaty must not be pushed beyond what the reason of the thing may warrant. For in- stance, all contracts which have been the result of force or menace may be set aside ; but the same ob- servation cannot, without great limitations, be applied to treaties. All treaties which terminate a war fre- quently are, or may be in a great measure, the effect of the force exerted by the victor over the vanquished, or may be the result of a menace of the more power- Wheaton's Elements, Dana's ed. § 267. 346 INTEEKATIONAL LAW. ful to the weaker state. But treaties concluded in consequence of these circumstances cannot be held null and invalid. If there be any analogy in this respect to the private contract, it is rather to that maxim of equity which considers a contract entered into to stop or avoid litigation binding upon the party who entered into it, though induced to do so by apprehension of the delay, expense, and uncertain event of a lawsuit. War, it must be remembered, is the terrible litigation of nations. Moreover, all civil- ized countries admit into their systems of private ju- risprudence the axiom, " Expedit reipuhlicoe ut sit finis litium." The axiom is equally applicable to the great republic of nations ; and it is manifest that, if the ob- ligation of treaties could be avoided upon the plea that one of the contracting parties had consented, through motives of fear, or under the influence of superior force, the faith of treaties — the great moral tie which binds together the extremities of the globe — would be rent asunder. This observation, of course, does not apply to a case, which now rarely happens, of personal fear or actual violence operating upon the representative of the state who signed the treaty. Both the rule and the exception, however, may be il- lustrated by events of recent history. The resignation of his crown and kingdom extorted by Napoleon from Ferdinand VII. at Bayonne, whither he had decoyed that monarch and his family, was clearly — the du- ress and condition of the party abdicating being con- sidered — invalid ; but the resignation of Napoleon at Fontainebleau was not extorted by treachery or duress, but was the consequence of defeat in open, legitimate war. Private contracts may be set aside on the ground of what is technically called by the TREATIES. 347 English law the want of consideration, and the in- ferences of fraud and unfair dealing arising from the manifest injustice and want of mutual advantage. But no inequality of advantage, no lesion, can invali- date a treaty. It is truly said by Vattel, ' If a state might disregard a treaty because it found itself in- jured thereby, there would be nothing stable in the compacts of nations.' " ^ § 278. It is certainly remarkable that the leading American and English writers on international law take this strict view of the question under discussion, and lay down, without any limitation, a doctrine re- specting the obligation of treaties which must, in the great majority of cases, be invoked by powerful slates against the weak, by the oppressor against the op- pressed : whUe German and French writers, accus- tomed to absolute governments, should suggest and maintain limitations which would tend to protect a state in its own existence and against the permanent effects of unjust wars and conquests. Mr. Phillimore is a leading politician, and has long been a member of the British Parliament. As such, his conduct has been in complete conformity with the opinion I have quoted. He has always opposed the liberation and unification of Italy, because the treaties of 1815 made a different arrangement of Europe, and, according to him, these treaties must stand. For the same reason he has been a constant opponent of other national movements in Europe, and of the late changes in the continental family of nations. § 279. As a conclusion of this discussion, I am of opinion that the following propositions express what at least the law ought to be, and what, I believe, the practice of nations is. 1 Phillimore, vol. ii. pp. 62, 63. 348 INTERNATIONAL LAW. (1.) As a general rule, a treaty entered into as the result of a war, even though that treaty be quite un- equal towards the defeated state, cannot be treated as null on the assumed ground that it was extorted by violence, menace, or duress. (2.) Any attempt to limit the operation of the foregoing rule by confining its effect to just wars, or even to wars that are not palpably unjust, is entirely impracticable, could give no aid in resolving internar tional questions, for the simple reason that there is and can be no judge to decide upon the justice and injustice of wars, and no criteria acknowledged by all nations, by which the moral character of wars can be determined. (3.) A practical limitation, however, may be found. Those treaties, dictated by a conquering party, which have the effect to destroy the national existence of the vanquished state, or to deprive it of some essen- tial natural right which is necessary to separate polit- ical existence, are not obligatory any longer than the society affected thereby chooses to treat them as such. § 280. (5.) Nature of the Stipulations in a Treaty in order that it should be binding. We have thiis far spoken of the outward form and of the manner and occasion of the execution ; we now come to speak in a brief way of the general nature of the subject mat- ter. The municipal law declares that certain con- tracts, however formally executed, however free and mutual the consent may be, are void because the acts agreed to be done are contrary to some positive rules of the law, or are contrary to good morals, or are ut- terly impossible. The same principle applies in a re- stricted degree to treaties. It can hardly be said, TREATIES. 349 however, that a treaty may be void because its stipu- lations are opposed to positive law, for the simple reason that there is no such thing as positive interna- tional law given by a lawgiver. Whatever of the in- ternational code is positive, results from the consent of nations, and this consent can be indicated in no higher form than by a treaty ; but no treaty can be so binding upon the parties thereto that they may not unmake it by a subsequent compact. Though treaties are spoken of as constituting a portion of the international law, they certainly have this in common with private contracts, that the immediate parties thereto may voluntarily change or rescind them. § 281. There are classes of treaty stipulations, how- ever, which are nullities from the essential nature of the subject matter. (1.) Stipulations to do or to permit what is con- trary to morality and justice are not obligatory. Such engagements " contain a morally impossible con- dition, which governments, the representatives of the justice, the morality, and the religion of their people, are not entitled to contract for, — it is beyond the sphere of their agency." ^ (2.) Impossibility of execution. To render a treaty binding, its stipulations should be possible ; there should be neither a physical nor a moral impossibility of executing them. A clause is physically impossible which the contracting party has not the power to carry out from the want of physical means. There is a moral impossibility if the accomplishment of the promise would cause some injury to the rights of a third party ; for instance, if the stipulations of a treaty should interfere with the agreements contained ^ Fhillimore, vol. ii. p. 64. 350 INTEENATIONAL LAW. in a prior treaty with another nation. In such case the former compact should be observed and the sub- sequent one disregarded. In case of the impossibility of execution of a treaty, the party who has promised and is prevented from the accompUshment owes dam- ages and indemnity to the other contracting party, when the impossibihty was known to the former, but unknown to the latter, at the time of executing the treaty. The party owes the same reparation when, after the conclusion of the compact, the impossibil- ity is the result of his own act. All writers seem to agree in these principles.* § 282. (6.) Treaties not Ohligatory. Of course, when a treaty does not possess the requisites and con- ditions stated in the foregoing subdivision it is not ob- ligatory. But I do not intend to repeat the doctrine already sufficiently elaborated ; I only wish to call your attention to some general principles which lie at the bottom of treaty obligation. These principles ap- pear to me founded in justice and expediency. They are by no means identical with the rules which deter- mine the validity of private contracts; they are equally removed from those views which would make of a treaty an iron band that should only repress and per- haps destroy the national energies and national life ; and from those views which would permit a nation to observe its treaties only so far as they are beneficial, and repudiate them when they become burdensome. I can do no better than to quote the language of some standard and recent European writers. § 283. Martens says : " Inequality of advantages alone is not sufficient cause for nations to disregard > Vide Kluber, § 144 ; Martens, § 63 ; Wheaton, Dana's ed. § 263 ; Fhillimore, vol. ii. p. 64, § 51. TREATIES. 351 their treaties, under the pretext of injury (lesion) ; since, (1.) Each contracting party may weigh in ad- vance the advantages and disadvantages which result to it from the treaty. (2.) That it is not contrary to natural law for one nation to promise greater advan- tages than those which it receives ; and (3.) Since, in the state of nature, it is impossible to determine the degree of injury necessary for a rescission, nor to pro- nounce upon the existence of such inequality, their own interest should lead nations not to make use of an exception which would sap the foundations of all treaties, and consequently the base of their reciprocal surety. Nevertheless, the right of self-preservation authorizes a nation to recede from a treaty which it cannot fulfil without caiising its own destruction ; this faculty is even a tacit condition in all treaties, and especially in alliances. If it is easy to abuse this principle ; it is in vain that we should attempt to deny it." 1 § 284. Ortolan states the principle in a very clear and accurate manner. He says : " Lesion, that is, an inequality of advantages resulting to a state from a treaty which it has concluded, does not dispense with the obligation of observing this treaty. Nevertheless, some publicists have observed that when a treaty leads directly to the destruction of the state, that state has the right to treat it as null. This is an evi- dent and incont'estable fact, based upon the right of self-preservation. For moral beings, as well as for in- dividuals, there can be no obligatory promise when this promise is of suicide. It is impossible that the nation should have been consenting to such a treaty ; it is, moreover, preferable for it to appeal to war, if ^ Martens, Droit des Gens, liv. ii. ch. ii. § 52. 352 INTERNATIONAL LAW. necessary, and to risk destruction with arms in its hands, than to proceed tranquilly to its ruin by ac- complishing obligations which it could not legiti- mately impose upon itself, since they are irreconcila- ble with its existence. " The principle of the inviolability of treaties is not so general that in all cases it takes away from each contracting party the possibility of releasing itself from the engagements which it had the power to con- tract. It should be remembered that the nature of treaties between nations discloses to us features which ought to distinguish these treaties from compacts be- tween individuals. In fact, nations have an indefi- nite existence. All the generations to come, without having consented in person, find themselves bound by the act of the generation which concluded the convention; the stipulations of the treaty, by the lapse of years or by subsequent changes, may become so opposed to the manners, to the situation of the re- spective powers, to the state of their industry, of their commerce, of their forces of every kind, that, justly, these stipulations should no longer be maintained. Their rescission in such a case ought to be accom- plished by the state which wishes to free itself from them ; but it is best to employ at first the aid of ne- gotiations, to exhibit good reasons to the other party, and to effect the rescission by mutual agreement." ^ § 285. M. Hautefeuille carries somewhat farther the principle laid down by the foregoing writers. I cannot yield an assent to all his positions. I quote them, however, to show the character of some of the modern thought on great public questions ; remark- ing that his views are entirely accepted by the last * Diplomatie de la Mer, liv. i. ch. v. p. 90. TEEATIES. 353 editor of Martens. He says : " Conventions concluded between free and independent nations can be divided into two classes : Equal treaties, entered into between two peoples enjoying the complete exercise of their independence, obeying only their own will, their own interest, and free from all constraint; in a word, acting in the full plenitude of their natural liberty. Unequal treaties, imposed by one of the contracting parties on the other, in which, consequently, the inde- pendence of one party does not concur, in which vio- lence imposes silence upon right. Conventions of the former kind may contain an abandonment by one of the contracting parties, for the benefit of the other, of a portion of its natural rights, either with or with- out compensation ; but more often they are confined to a restatement of these rights, to a confirmation of their existence, and to a determination of the mode in which they shall be exercised by the contracting parties in their mutual intercourse." I stop to re- mark that this author uses the words equal and une- qual treaties to describe the relative situation of the parties thereto, and not, as most other writers do, to describe the character of the stipulations, the fact whether the advantages are balanced, or preponder- ate in favor of one party. He proceeds : " Treaties are, in general, obligatory upon the people who have consented to them ; nevertheless, they do not pos- sess this quality in an absolute manner. An unequal treaty, or even an equal one, containing the cession or gratuitous abandonment of a natural essential right, that is, a right without which a nation cannot be considered as any longer existing as a nation, — such, for example, as partial independence, even, — are not obligatory. They may continue to receive 23 354 INTERNATIONAL LAW. their full excution as long as the two contracting parties continue to maintain them by the agreement of their wills ; they exist as long as the two peoples continue to desire their existence ; but each has al- ways the right to break them in respect to that which concerns the abandonment or the cession of the essen- tial right, to anticipate the other party, to repudiate the treaty. The reason of the inefficiency of transac- tions of this "nature is, that natural rights of this kind are inalienable ; they are, to borrow an expression from the civil law, extra commercial. Unequal trea- ties which contain no attack upon essential rights, and are concluded for a determinate time, are obligatory for all the time fixed. But if there is no term stipu- lated for their duration, the party whose consent has been forced by circumstances can always free itself by observing the same forms. It is also the same with equal conventions even, in which natural essen- tial rights are respected, which affect only the private and secondary interests of the peoples ; they are al- ways obligatory for the whole time fixed for their duration ; but when no term has been fixed, even when they have been declared to be perpetual, they have existence solely by the continuation of the two wills which created them ; the stipulation of perpetu- ity has no other effect than to avoid the necessity of reaffirming the convention to assure the continuance of the same relations when both peoples desire that these relations shall not cease to exist. Unequal trea- ties containing cessions of territory, stipulating for pecuniary indemnities, and for any conditions having for their object a certain and determinate act to be executed at once or within a stipulated period of time, are always obligatory in the sense that not only TREATIES. 355 they ought to be executed within the time agreed, but also that the people which has executed them cannot recover the advantages consummated in virtue of the convention. Finally, treaties which are con- fined to the statement of principles of the natural law, to the confirmation of the rights which it con- fers upon peoples, and to the regulation of the mode of their exercise between the contracting nations, are always obligatory, not only during a time stipulated by the parties, but also, when they have received no limits during the whole time of their existence, that is to say, until a common agreement of the nations has modified them. The reason of the distinction is easy to perceive : the natural law is, by its very na- ture, always obligatory. Treaties which confirm its principles and govern their application ought neces- sarily to have the same perpetuity, since, even in the case where they cease to exist, the principles do not cease to be executory in the same manner as they were during the time when the stipulations were in vigor. Much that is contained in these observations of M. Hautefeuille are opposed to the doctrines of many, and perhaps of most, publicists, ancient and modern ; .but I am convinced that there is an element of truth running through the whole extract which ought not to be overlooked. § 286. IV. When a Treaty ceases to he Obligatory. The discussion in the present subdivision assumes that the treaty was valid and binding in its inception, and that circumstances may arise, either contemplated and provided for, or unforeseen, which destroy the obligatory character of the convention, and release 1 Droits et Devoirs des Nations Neutres, vol. i. pp. 8-10. 356 INTERNATIONAL LAW. the parties therefrom. I have already presented with some fulness the essentials to validity, both in man- ner of execution and in nature of subject matter. I need not repeat any portion of the statement. It is enough to say, that should the objections to the char- acter of the subject matter arise after the treaty was entered into, they would have the same effect upon the validity of the compact as though they existed at its inception. I do not, in this subdivision, take the extreme ground of M. Hautefeuille as to the binding quality of treaties, though I shall notice the effect of his views upon the propositions to which they apply. § 287. Treaties cease to be obligatory from various causes ; upon the happening of various states of cir- cumstances. (1.) When the treaty is silent as to its own dura- tion, or even when a definite term is prescribed, the mutual consent of the interested parties would, of course, terminate it. Where two contracting persons or states have agreed that the compact or conven- tion shall subsist for a certain length of time, they have full capacity, by a subsequent agreement, to annul the former one. " § 288. (2.) When the treaty expressly provides that any, or a particular one, of the parties may termi- nate it and withdraw from the compact, either with or without notice to the other party, such act by the nation having the express authority puts an end to the obligation. Such express provisions in treaties are not uncommon. The convention between the United States and Great Britain entered into in 1827, respecting the mutual occupation of Oregon, provided that either nation might terminate it by a notice of twelve months. The recent treaty, known as the Re- TREATIES. 357 ciprocity Treaty, regulating trade between our own country and Canada, the navigation of the St. Law- rence and great lakes, and the fisheries, also con- tained a similar provision. Both these conventions were terminated by the United States. We have seen that there is a school of publicists which would greatly extend the effect of this rule ; which holds that many kinds of treaties may be thus terminated by either party at will, although no such power was expressly reserved, and even though the compact was in terms declared to be perpetual. Most of the classes which Hautefeuille declares are only obligatory as long as the wills of both parties concur, would, according to him, be terminable upon notice from either state. § 289. (3.) When the treaty itself contains a defi- nite limit for its duration, the expiration of the term ends the compact. This rule is self-evident. Con- ventions of this sort are common, and if the con- tracting states desire their continuance beyond the stipulated term, this is usually accomplished by a simple agreement of renewal, either for another defi- nite period, or indefinitely. Thus the first conven- tion between our own country and Great Britain, re- specting the occupation of Oregon, was entered into in 1818, and was to last ten years. It would have expired in 1828. It was renewed in 1827, and made terminable upon notice. (4.) When a treaty is entered into with the sole design of accomplishing a particular, specified object, and is entirely silent in respect to the length of dura- tion, the attainment of the contemplated object ends the treaty. In fact, the treaty is then executed ; there are no essential provisions left executory ; it is 358 INTERNATIONAL LAW. like a grant of land in the municipal law, in whicli the title to the land passes at the moment of deliv- ery, and the instrument is, so far as it is a mere grant, immediately functus officio, only useful there- after as evidence. (5.) When the fulfilment of the treaty becomes physically or morally impossible. I have already dwelt at sufficient length upon this rule. The effect of impossibility is the same, whether it exist at the time of the inception of the treaty, or arise after that period. § 290. (6.) When an essential change has taken place in the circumstances of one or both the parties, the continued existence of which original circum- stances was supposed necessary by the two parties, this supposition being either expressed as a condition, or implied in the nature of the treaty, the treaty loses its binding quality, and may be disregarded. It is evident that this rule is necessary, and at the same time that it is liable to abuse. Different schools of writers would give it different degrees of efficacy. We have seen that Ortolan, Hautefeuille, and some other modern publicists, would decide that many cases were within the operation of this principle, which Phillimore, Kliiber, and probably Wheaton, as well as earlier writers, would reject. The more im- portant cases which are generally conceded to fall under the rule are the following : — (1.) Loss of independence by one of the contract- ing parties puts an end to its treaties, so far as they are continuing and executory, such as alliances, guar- anties, commercial conventions, and the like. So far as its treaties are in substance executed grants, which have already created a subsisting right of property TEEATIES. 359 or a servitude in another party, such as cessions, de- marcations of boundary, and the like, their obliga- tions are still left unimpaired, although the contract- ing state may have lost its complete independence, or even its political personality.^ (2.) Where the treaty is entered into with respect to a particular internal form of government and con- stitution, and is so expressed as to be applicable only to that form of government and constitution, an essen- tial change in the internal affairs puts an end to the obligation of the compact.*^ Of course treaties of this sort are quite exceptional : the great majority are applicable to any form of internal administration. But there plainly may be such conventions which do not fall under the class of personal treaties, or mere personal agreements between monarchs. (3.) In the case of offensive and defensive alU- ances, and treaties of subsidy, by which one state agrees to aid another with military forces or supplies, there is always a tacit if not express condition, that the promising state has not need of its forces and means at home. Therefore, if at the time when called upon under treaty for aid, that state should be at war with some other power, and had use for its army in its own quarrel, the stipulations of the treaty would cease to be binding. § 291. In the foregoing all publicists agree. We have seen how much further some have gone. I will add to the views of the latter school already quoted, an extract from M. Pinheiro-Ferreira, one of the leading modern French writers on public and inter- national law. He says : " I speak of those treaties 1 Phillimore, vol. iii. p. 661. ' Wheaton, Dana's ed. § 275 ; Martens, § 58. 360 INTERNATIONAL LAW. whicli governments sometimes make with the clause that they are and shall remain binding forever, or at least until both contracting parties agree to rescind or to modify them. Such conventions never have been, nor should they be, taken literally, for it would be absurd to suppose that the present generation could have the right to bind future generations by conventions, good or bad at the time of their incep- tion, that the posterity of one contracting party ought to be sacrificed to the posterity of the other. Treaties bind nations only so long as the principle upon which their validity rests continues to exist, that is, until, from the exact and conscientious accomplish- ment of the obligations which the compact imposes upon each party, there can arise no damage which one party cannot prevent, or against which the other cannot be indemnified. According to the municipal law this is the case for the making in good faith of every contract between individuals : and when these cannot agree among themselves, the intervention of the public authority is not invoked by them to annul the contract, which no authority could destroy, but to declare if, in fact, the injury alleged by the party who demands the rescission has actually happened. Whenever, therefore, two states are placed in the sit- uation which would have justified the rescission of a contract between private persons, the obligations re- sulting from their treaty have ceased to exist. The only difference between private persons and nations is, that the former can appeal to the public authority to maintain their rights, while nations are reduced to the sole aid of their own forces." ^ § 292. (7.) It is sometimes said that the breach of ^ Note to Martens, § 58. TREATIES. 361 the treaty by one party releases the other from its obligations. There is no doubt whatever that this reason for disregarding international compacts has very often been assigned and acted upon by states ; but writers on international law are not agreed as to its sufficiency, or as to the extent of its effect. Klii- ber states the proposition in the following manner, although he concedes that it is disputed : "By the defection of one of the parties, which refuses the ful- filment of the treaty in question, or even of another entirely diflferent ; this refusal liberates the other party, and if the latter has already made arrange- ments in the accomplishment of the treaty, or has taken steps to that end, it should be remunerated." ^ § 293. (8.) The effect of a war between two na- tions upon the treaties subsisting between them at the time when hostilities broke out. A war can only have one of three effects upon sub- sisting treaties. It may leave them existing in full force, that is, it may not affect at all their obligatory character ; or it may entirely destroy them, so that upon the return of peace they could be revived only by a new agreement between the parties ; or it may suspend their operation during the hostilities, so that when peace is restored the obligation of the treaties would revive, unless expressly prevented by the stip- ulations of the parties. These are the only alterna- tives possible : but how far they respectively apply, what practical result they work upon treaties, is by no means clearly settled, either in the theoretical statements of writers, or in the parliamentary discus- sions of statesmen, or by the practice of cabinets and governments. The general rule is often laid down 1 KlUber, § 165. 362 INTERNATIONAL LAW. that war either destroys or suspends treaties subsist- ing between the belligerents ; at the same time it is universally admitted that there are exceptions to this rule, classes of treaties or of stipulations which are not at all affected by the breaking out of war. The extent of the exception must be considered as still unsettled. It is certain (1.) that all stipulations which have direct reference to the fact of future war between the contracting parties remain binding after the war breaks out. The case having arisen expressly pro- vided for in the convention, the occasion having ar- rived which alone renders the engagement operative, it would be absurd to hold that the very happening of the contemplated case, the very arrival of the an- ticipated occasion, should destroy the obligation of the particular compact. Of such a nature are all stipulations in respect to the conduct of the hostili- ties, and to the effect of the hostilities upon the rights and property of the citizens and subjects of the parties ; stipulations, for example, which permit the subjects of each power to reside and carry on busi- ness within the territory of the other during the war; or which give a certain time after the breaking out of hostilities in which those persons may withdraw themselves and their effects from the enemies' coun- try. It is certain (2.) that treaties which take effect at once, and do not remain as binding executory compacts, are not in general affected by a war be- tween the parties. Such treaties are those which cede territory, establish boundaries, etc. How far this class extends is not fully settled. One of the oldest and most involved disputes between Great Britain and the United States turns upon the effect TEEATIES. 363 which shall be given to this principle. It is certain that private rights under such treaties are not lost or suspended by the breaking out of war. All other treaties are either destroyed or suspended by a war. § 294. We will now examine some of the authori- ties upon this general subject. Kluber, whose statements are generally precise and practical, says : " It is often the intention of the par- ties that a treaty shall subsist only until hostihties arise between them ; and, therefore, after a war, it is necessary and usual to renew such treaties, if it is desired to restore them to vigor. If there has been no such intention, a war does not cause all treaties to cease; the parties opposed have no right to break them, except so far as the legitimate object of the war demands. The application of these principles to in- dependent states being attended with difficulty, it is preferable to determine in the treaty of peace what treaties shall be restored to vigor or reestablished in whole or in part, or else to conclude new conventions upon the same subjects." ^ In a subsequent passage the same author says : " Treaties anterior to the war, whose validity during future war has been expressly anticipated and stipu- lated, do not cease to be obligatory ; on the contrary, those formed upon the supposition, express or im- plied, of amicable relations, cease with these relations. As to treaties which are not included in either of these categories, the belligerent, in a just cause, may end them, if he judges it advantageous to the object which he proposes in the war." ^ § 295. Martens states the rule with more fulness and adopts the character and object of the treat/ rt- 1 § 163, n. a. » Ibid. § 250. 364 INTERNATIONAL LAW. self as the criterion. He divides treaties into transi- tory conventions, whicli are accomplished at one blow, and treaties proper, which call for successive acts; whose obligation is, therefore, continuous. Treaties of cession, of boundary, of exchange, and those which establish a servitude, according to the public law, are transitory ; treaties of friendship, of commerce, of navigation, of alliance, are treaties proper. After this classification, he proceeds : " Transitory conven- tions are perpetual by the very nature of the thing ; since, once accomplished, they subsist independently of subsequent changes in the person of monarch, in the form of government, and even in the sovereignty of the contracting state, as long as they have not been mutually revoked ; a war, even, springing up from another cause, does not destroy them, although it au- thorizes a suspension of their effect, and sometimes their revocation. Treaties, proper, on the other hand, fall of themselves ... in all cases of war be- tween the contracting parties, with the single excep- tion of stipulations framed for the very occasion of a rupture. Consequently it is necessary, on the return of peace, to renew the former treaties which it is de- signed to observe." ^ The rule laid down in the latter part of this extract has the merit of precision ; it is certainly sweeping in its nature, but it is as certainly repudiated by many writers. The rule as to the effect of war upon tran- sitory treaties is not expressed in so practical a man- ner. There can be no doubt that cessions and ex- changes and determined boundaries are unaffected by the mere breaking out of hostilities. The only possible way for them to be affected would be by a ^ Maxtens, § 58. TREATIES. 365 conquest during the war, and a rearrangement of ter- ritory in the treaty of peace ; it is only thus that war could authorize a treaty of cession or of boundaries to be suspended or revoked. But as to treaties which cre- ate a servitude according to the public law, it cannot be affirmed with any certainty that a war between the parties does not, ipso facto, destroy them so that they will not revive upon return of peace. At all events, there is no agreement among writers or states- men as to what national rights are included among the servitudes thus protected against the effect of war. I remark that M. Pinheiro-Ferreira pronounces Martens' doctrine to be entirely correct, although he admits that it is not generally adopted. § 296. The Supreme Court of the United States had occasion, in The Society for the Propagation of the Gospel, etc. v. New Haven,^ to express an opinion in regard to the effect of war upon particular classes of treaties. The Treaty of peace of 1783, between the United States and Great Britain, by which the in- dependence of the former was acknowledged, prohib- ited future confiscations of property ; and the Treaty of 1794, between the same nations, confirmed the ti- tles of British subjects holding lands in the United States, and of American citizens holding lands in Great Britain, which might otherwise be forfeited for alienage. The case involved the title to such land in the United States, and turned upon the effect of the War of 1812 on the Treaty of 1784. It will be noted that private rights growing out of a treaty were alone under consideration; no public territorial rights, or rights of jurisdiction were involved. The case, as an express decision, must be taken with this restriction. 1 8 Wheaton, 464. 366 INTERNATIONAL LAW. The court say : ^ " We are not inclined to admit the doctrine urged at the bar, that treaties become extin- guished, ipso facto, by war between the two govern- ments, unless they should be revived by an express or implied renewal on the return of peace. What- ever may be the latitude of doctrine laid down by elementary writers on the law of nations dealing in general terms in relation to this subject, we are satis- fied that the doctrine contended for is not universally true. There may be treaties of such a nature, as to their object and import, as that war will put an end to them; but where treaties contemplate a perma- nent arrangement of territorial and other national rights, or which in their terms are meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by the event of war. If such were the law, even the Treaty of 1783, so far as it fixed our limits and acknowledged our independence, would be gone, and we should have had again to struggle for both, upon original revolutionary prin- ciples-. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning." § 297. Wheaton lays down the doctrine in terms identical with those employed by Martens.^ Mr. Phillimore devotes a chapter to the discussion of this subject. He is a strong advocate for the gen- eral doctrine that a war, ipso facto, annuls all treaties existing between the belligerent parties, with very limited exceptions. He states that some writers go to the extent of holding that war only abrogates those treaties the existence of which is incompatible 1 P. 494. ^ Wheaton's Elements, Dana's ed. §§ 268, 276 (3). TREATIES. 367 with belligerent relations, while others express the opinion that "all engagements subsisting between belligerents, at the commencement of hostilities, are revived by a treaty of peace, so far as they are con- sistent with its provisions." As remarked before, Mr. Phillimore is of opinion that, as a rule, war, ipso facto, destroys treaties, and that they are not revived by the mere reestablishment of peace, but require an express renewal. The exceptions which he admits seem to be much more limited than those suggested by Martens or Kluber. His exceptions are: (1.) Stip- ulations which expressly provide for the contingency of the breaking out of war between the contracting parties. It will be noticed that all writers are agreed upon this case. (2.) Those parts of treaties which contain a final adjustment of a particular question, such as the fixing a disputed boundary or ascertain- ing any contested right or property, and those parts of treaties which incorporate by consent, express or tacit, of all states concerned in its assertion and main- tenance, a great public principle into the international code. Such classes of stipulations are permanent, and remain unaffected by a war. Mr. Phillimore's first class of permanent stipula- tions corresponds to a certain extent with Martens' transitory treaties. The final adjustment of the one is identical with the cessions, exchanges, and deter- minations of boundary of the other. Both would also embrace acknowledgments of independence and recognitions. But Martens' creations of public servi- tude find no place in Mr. Phillimore's exception, un- less that servitude were in its nature a final adjust- ment of a disputed right. The private rights of property guaranteed to citizens of the two states in 368 INTERNATIONAL LAW. each other's territory, — such, for example, as those acknowledged by the Treaty of 1784, already referred to, would be protected both in Phillimore's and in Martens' view of the rule. They are final adjust- ments, and they fall within the number of servitudes under the public law. § 298. I have already stated that the oldest and perhaps most complicated dispute now existing be- tween the United States and Great Britain turns upon the extent of the general rule and the excep- tiojis now under discussion. I referred to the ques- tion concerning the fisheries on the eastern coasts of the British possessions in North America. The his- tory of this most important and complicated matter is shortly as follows : By the third article of the Treaty of Peace of 1783, between Great Britain and the United States, it was " agreed that the people of the United States shall continue to enjoy, unmolested," very extensive rights of fishing on the Banks of New- foundland, in the Gulf of St. Lawrence, and on the coasts of all other of the British possessions. The War of 1812 broke out, was prosecuted, and negotia- tions for peace were carried on at Ghent. During the negotiation, the British plenipotentiaries informed the commissioners of the United States that their governmrent did not intend to grant to the United States gratuitously the privileges of fishing formerly granted to them by treaty. Our commissioners re- plied that they were not authorized to treat on the subject, but that our government claimed that no further stipulations were necessary ; that the rights confirmed by the Treaty of 1783 were still subsisting. The treaty of peace concluded in 1814, at Ghent, was therefore silent on the subject of the fisheries. The TREATIES. 369 British government thereupon intimated their inten- tion to exclude our fishe^'men from those portions of the seh within three miles of the coast of the British possessions, and from bays, creeks, etc. This intima- tion gave rise to an elaborate correspondence between the English and American governments. John Q. Adams, on behalf of our government, contended, in substance, that the permission granted to the Amer- ican people to fish in the places indicated was- analo- gous to a cession of territory, the fixing of a boun- dary, the acknowledgment of an independent national existence ; and that, from the very nature of such stipulations, they were unaffected by a subsequent war. The British government answered, virtually admitting 'that the acknowledgment of independence and the adjustment of boundaries were permanent, unaffected by subsequent war, but denying that the grant of the right to fish hore any resemblance to those arrangements ; claiming that this particular grant had its origin solely from the third article of the treaty, was a mere matter of expediency, and that it and all such concessions were destroyed by the war. The correspondence resulted in no definite conclusion. Jt is plain there was a radical divergence of views on the general doctrines of the international law re- lating to this question. Mr. Phillimore of course ap- proves of the position taken by the British Cabinet, as it agrees entirely with the doctrines laid down in his treatise. In 1818 the controversy between the two countries was brought to a close by a treaty ef- fected on the basis of a compromise, the liberty to fish claimed by the United States being partially con- ceded, but restricted to certain geographical limits. 24 370 INTERNATIONAL LAW. This treaty continued in operation until the Reci- procity Treaty of 1854. The latter convention gave the people of the United States practically unUmited rights of fishing in the waters that wash the British North American coasts, and, while it stood, o.ur citi- zens enjoyed substantially the same privileges which they held under the treaty of 1783. But the Reci- procity Treaty of 1854 has been annulled by the President of the United States,^ and the matter of the fisheries is in more confusion than ever before. The amicable settlement of the difficulty involves the sep- arate answer of the following questions : Going back to the foundation, were the fishing rights mentioned in the Treaty of 1783, previously subsisting rights belonging to the American people, because they had been enjoyed by that people as British colonists, and was the third article of the Treaty of 1783 a mere ac- knowledgment of the existence of those rights which, once made, is good forever, analogous to acknowl- edgment of independence and sovereignty ? Or, on the other hand, were those fishing rights created and conferred by the treaty, not as cessions, but as mere privileges, and therefore annulled by the war ? If the latter, or British, view be correct, then we possessed no rights at all until those which were conferred by the Treaty' of 1818. The question will then arise : Did the termination of the Treaty of 1854 revive the Treaty of 1818 ? If this effect is produced, the Treaty of 1818 and the rights under it are now subsisting ; if not, there is absolutely no treaty on the subject, and the people of the United States have no rights of fishing in these territorial waters. As a consequence, for Great Britain to exclude us entirely, she must 1 In 1865. TEEATIES. 371 maintain two independent propositions : That the grants of the Treaty of 1783 were annulled by the War of 1812, and that the subsequent grants of the Treaty of 1818, which were enlarged by the Treaty of 1854, were not revived by the termination of the latter. But if the doctrine held by the United States in reference to the Treaty of 1783 be correct, we have from that time been absolute proprietor of a perma- nent right of fishing in those territorial waters, — a right analogous to dominion, — which we could only lose by conquest or by cession. But we might re- strict ourselves in its use by treaty. In this view, the Treaty of 1818 was a concession on our part rather than on the part of Great Britain. Should we succeed in establishing our construction of the Treaty of 1783 and of the effect of the war, it would be for the interest of Great Britain to maintain the proposi- tion that the termination of the Treaty of 1854 had revived that of 1818, and for our interest to maintain the contrary; for if the Treaty of 1818 be still in force, we have restrained ourselves thereby from fall- ing back upon our more extensive rights under the convention of 1783. It is plain, therefore, from this sketch, that the fishery question is involved in great difficulty ; that anj'^ person who should undertake to dogmatize about it, to assert that the views advocated by the United States government were undoubtedly correct, would only exhibit his own ignorance ; that the amicable settlement of the controversy will demand the fullest knowledge of the international law, and the employ- ment of the amplest diplomatic resources. CHAPTER X. TREATIES (CONTINUED). — KIGHTS AND DUTIES WHICH THEY CONFER. — TARIETIES OF TREATIES. — INTER- PRETATION OF TREATIES. § 299. V. The Nature and Extent of the Rights and Duties conferred by Treaties. The particular rights and duties created by treaties will depend, of course, upon the form, nature, and object of the con- vention itself. I only now speak of the general nature of these rights and duties. Where the treaties are valid and obligatory, there results the perfect duty of fulfilling the reciprocal promises, and the no less per- fect right of demanding from the contracting party such fulfilment, and of forcing it to do so in the case of refusal ; also the duty resting upon third parties not to interfere in the enjoyment of the rights flowing from the compact, and consequently not to prevent either contracting party from satisfying its obliga- tions. Treaties often confer privileges upon the private citizens of the respective contracting states ; such, for example, as the Treaty of 1784 between the United States and Great Britain, which protects the private ownership of lands of citizens of one country within the territory of the other ; such, also, are many other treaties which give foreign merchants and ship-owners privileges of trade and navigation. In all such trea- ties, the contracting nation is under an obligation not to interfere, by any laws, by any executive acts, or TREATIES. 373 by any judicial decisions, with these foreign subjects in the enjoyment of the stipulated privileges. Other treaties are addressed solely to the nation as a body politic, as a corporation, and bind, or confer rights upon, the government in its various departments, which represents and acts for that political unit. With compacts of this sort the private citizens have nothing to do ; they must be officially kept or broken by the governments. Of this character are treaties of peace, of alliance, of guarantee, of cession, and the like. § 300. It is a very interesting and practical ques- tion, whether a treaty needs auxiliary legislation to render the stipulations contained in it obligatory. The answer to this question must depend upon the language used in the convention, — upon the nature and form of the promises. In general, when a treaty has been entered into by the authorized department of the government, the engagements are at once binding upon all other departments, the legislative as well as the executive. This is certainly so when the promises are absolute, that such or such a thing shall or shall not be done. But there must, of course, be an exception to this principle, when the treaty simply stipulates that the legislature shall be rec- ommended to take certain steps described in the compact. But although it is seldom that a treaty requires legislative action to render it obligatory, it may well happen that such action is necessary to render its stipulations efEective, so as to create per- sonal and individual rights under it. In such case, the compact is none the less obligatory, but a law is necessary to give effect to the engagement j the legislature is bound by the contract to pass such a 374 INTEENATIONAL LAW. law, and its neglect or refusal to do so is as much a breach of the treaty as any act of violation committed by the executive. K the language of the convention be present, and its stipulations are such that they operate at once upon a subject matter in existence, or upon a right in being, or which can be called into being without any auxiliary statute, then there need be no legislative act in aid of the treaty ; but if the language be future, and engages that something shall be done, which, according to the constitution and form of government, the executive alone cannot do, then the legislature must enact a law in accordance with the contract, and, until this be done, the courts cannot recognize any private rights or duties founded upon the treaty engagements alone. Thus, in Eng- land and the United States, Parliament and Congress alone can appropriate money, so that a treaty made by either of these powers, by which a payment of money was promised in the most absolute terms, would only be an absolute engagement that the legislature should make the requisite appropriation. Should that body neglect or refuse so to do, a treaty of the character supposed would be broken, and the other contracting power might treat it as violated. The Constitution of the United States declares that treaties are the supreme law of the land. The effect of this provision in our organic law has already been explained in my course of lectures upon the Consti- tution. § 301. VI. Various Kinds of Treaties. Writers on public and international law have divided treaties into several classes, according to their form and gen- eral nature, without any reference to their particular subject matter. They may also be separated into TKEATIES. 375 groups, according to the nature of their subject mat- ter and of their several stipulations. The former of these classes are as follows : — Treaties are Personal or Beal. This division is given by all the elder writers, and was once more important than now. Personal treaties are mere pri- vate and personal compacts between crowned heads — monarchs. They do not bind the state as such, independent of its representative who entered into the contract. Of course they expire either with the death of the individual sovereign, who was a party, or with the extinction of his dynasty. Eeal treaties are all others which are intended to bind the state as a body politic. Personal treaties do not fall within the category of public treaties proper, as they were de- fined at the introduction of this subject; all public treaties are real. It follows, as a matter of course, that no personal treaty could be entered into by the exe- cutive of the United States, or of any other republic. § 302. Treaties are Equal or Unequal. Some writ- ers use these terms to describe the subject matter, — the stipulations. Where the advantages and burdens are mutually balanced, do not preponderate for either party, the treaty is equal ; otherwise, where one party acquires advantages for which no corresponding com- pensation is given, the compact is unequal. Other writei*s, as we have seen, by these terms, would de- scribe the situation of the parties at the time the treaty was entered into. Treaties are Transitory or Permanent. This dis- tinction has been sufficiently explained in treating of the duration of treaty obligations. § 303. Passing to the classification based upon the nature of the subject matter, we shall find that the 376 INTEENATIONAL LAW. most important and customary treaties may be di- vided into the following groups, namely : — (1.) Those which create, establish, or confirm rights of dominion. (2.) Those which create, establish, or confirm rights of jurisdiction. (3.) Treaties of commerce and navigation. (4.) Those which create, recognize, protect, or main- tain national status or existence. It often and perhaps generally happens, that a sin- gle convention contains stipulations which fall within two or more of these classes. To treaties of this sort the term "mixed" is commonly given. Thus the Treaty of peace of 1783, between the United States and Great Britain, recognized the independence of the former, established its boundaries, and created rights of fishing within British waters. § 304. We will examine these classes separately. (1.) Those Treaties which create, establish, or confirm Rights of Dominion. As we have seen, rights of do- minion may be absolute, giving complete property over some territory or other thing [jura ad rem) ; or they may be special rights to use in some particular manner the territory or other things of the party which confers the right [jura in re aliena, servitudes, easements). Nations may possess or be subjected to these rights, and treaties may be the origin or confirmation of them. The principal treaties which create, establish, or confirm absolute rights of dominion, complete property over territory or other things, are : — (1.) Cessions, by which specific territory is trans- ferred, granted, purchased, or exchanged. (2.) Those determining and fixing boundaries. TREATIES. 377 (3.) Those special conventions which recognize a territorial dominion over certain particular waters, such as straits, sounds, and the like. Example : Vari- ous treaties between Denmark and other powers, by which the dominion of the former over the passages into the Baltic, and her right to demand tolls from merchant ships, were recognized and confirmed ; also other conventions by which Denmark's territorial claims were abandoned for a pecuniary consideration. § 305. The more important treaties which create, establish, or confirm rights to use, in some particular and specified manner, the territory or other things of the contracting party, — which rights thus created are known as servitudes, — are the following : — (1.) Those which give citizens of a foreign power the right to acquire, hold, and transfer property within the territory of the contracting state in a manner different from that established by the munic- ipal law of that state. The Treaty of peace of 1783, between our own country and Great Britain, already referred to, is an illustration of this class. We have a somewhat similar treaty with France, and conven- tions of this sort are becoming somewhat frequent. (2.) Those which give the citizens of one contract- ing power the right of navigation, either free or otherwise, in specified waters over which the other party has exclusive dominion, such as inland rivers and lakes. There are numerous such treaties be- tween European nations regulating the use of rivers and inland seas. The Reciprocity Treaty contained a similar provision in reference to the St. Lawrence Eiver and Lake Michigan. Such stipulations are gen- erally found in connection with those of another char- acter. 378 INTERNATIONAL LAW. (3.) Those which give the citizens of one contract- ing party the right of fishing in waters which are under the exclusive territorial dominion of the other. Of course there may be other public servitudes of a more special and peculiar nature created or con- firmed by treaty. Such, for example, is the stipula- tion of Central American States, to permit transit routes to be opened and maintained by foreign citi- zens or corporations, the Panama Railroad, the Tehu- antepec Route, etc. The agreement of Brazil to allow an American company to navigate the Amazon, and the like. § 306. (2.) Treaties which create, establish, or con- firm Rights of Jurisdiction. These all, in some man- ner, permit the officers or representatives of one na- tion to exercise jurisdiction, more or less full, within the territory of another nation. Thus, as we have seen, most or all of the Christian powers of Europe, and the United States, have treaties with Turkey and other Mahometan nations, by which the respective consular agents of the former are permitted to exer- cise an extensive civil and criminal jurisdiction over their own citizens within the territory of the Ma- hometan state. The recent conventions with China, Japan, and other heathen nations, contain similar stipulations. The French system of jurisdiction over merchant vessels and crews, which was explained in a former lecture, has lately been extensively adopted by trea- ties between different maritime powers. By these conventions the consuls of one contracting party re- siding in the ports of the other are permitted to exercise a limited jurisdiction over the ofl&cers and crews of merchant ships belonging to the former TREATIES. 379 state, while lying in the waters of the latter. This jurisdiction extends to matters of discipline on ship- board, and to delicts which do not disturb the public peace of the harbor. Our own country has such treaties with several European nations. Extradition treaties, which were fully described in a former lecture, fall within this general class. § 307. (3.) Treaties of Commerce and Navigation. In modern times there is no class of conventions more common or more important than this. Gen- erally these treaties have for their object liberty, pro- tection, and facility of commerce and commercial navigation. They assure and protect the free traffic of the subjects of a state, or impose certain obliga- tions that enlarge or contract the natural liberty. The principal object which these treaties have in modern times is to establish rules to be followed in time of peace and of war ; and, in reference to war, rules to be observed in a war (1) between the two contracting parties themselves, or (2) between one of them and a third state, or (3) between two pow- ers entirely different from those who enter into the treaty. Those treaties which assume amicable relations re- late principally to the exportation, importation, and transit of different kinds of merchandise ; to commei^ cial imposts, particularly tonnage, port, and other like duties. They generally contain stipulations re- specting the rights and privileges of citizens of one party residing in the other's country for purposes of trade, relative to their business, their religion, duties, and taxes to which they are to be subjected, the im- munity of their goods from seizure, their rights of succession, eta^ the jurisdiction over them, etc., etc. 380 INTEENATIOKAl LAW. The following clauses are quite common : " It is agreed that the commercial subjects of each of the contracting states shall be assimilated, within the ter- ritory of the other, to the citizens of that country ; " " It is agreed that the commercial subjects of each of the contracting powers shall have all the privileges within the territory of the other which are granted to the subjects of the most favored nation." For the case of a war which shall arise between the contracting parties, these treaties generally stipu- late that the commercial subjects of each state within the territory of the other shall either have the priv- ilege of continuing their residence during the war without molestation, or shall have a certain definite time within which to withdraw themselves and their effects; they provide special rules in reference to the seizure of the goods of such resident citizens, etc. Of the same character is the recent agreement of many leading powers to abandon the use of priva- teers. For the case of war between one of the contracting parties and a third power, the stipulations refer to the neutrality of the commerce carried on by the subjects of the other contracting party, particularly defining the goods which shall pass as neutral, and those which shall be regarded as contraband of war, regulating the right of search of the neutral mer- chant ships by the public vessels of the belligerent, prescribing the effect of embargoes and the nature of blockades, determining the measures which the neu- tral government should take towards the vessels of the contracting belligerent and of the enemy. Finally, there have been treaties relating to the case of a war equally foreign to each contracting TEEATIES. 381 party, for the purpose of protecting, even by force if necessary, the liberty and neutrality of their com- merce on the high seas. § 308. (4.) Those which create, recognize, protect, or maintain National Status or Existence. Of this class the most important and common are the fol- lowing : — (1.) Treaties of peace, by which a war is termi- nated and a condition of amity restored. Any de- scription of this particular class of conventions must be postponed until the whole subject of war is con- sidered. (2.) Treaties by which national independence and sovereignty are recognized. (3.) Guarantees, I distinguish these from alli- ances, with which they are confounded by many writers. By guarantee I mean a treaty entered into by two or more powers having reference to a third power, which may or may not be a nominal party, the object being to protect the interests or maintain the status of that third power. The stipulations of the contracting parties in respect to the guaranteed state may be of various kinds. The most important are : — (1.) A guarantee that the state in question shall maintain a particular status towards all other nations ; for example, a condition of neutrality which the five great powers guaranteed to Belgium. (2.) A guarantee that the state in question shall do some particular act ; for example, shall pay a debt or resign some territory. (3.) A guarantee to defend the particular constitu- tion or territory or rights of the state in question from all external attacks. 382 INTERNATIONAL LAW. (4.) A guarantee to defend to the same extent against domestic and internal attacks.^ Treaties of this character have been and are now very common in Europe. They are framed to pre- serve the balance of power, to protect and maintain certain ideas of state-craft, to prevent any nation from undue accumulation of resources, etc., etc. Thus we have seen that Turkey, Greece, Belgium, Switzer- land, are thus placed under the protection of the Great Powers. I am not aware that the United States has ever yet entered into a treaty of this char- acter. Our policy has led us to refrain from aU such entangling arrangements. (4.) Alliances. Some writers speak of all treaties of peace and amity as alliances. This is certainly giving the word a far too extensive meaning. An al- liance is a treaty between two nations, whereby they agree to aid each other in the case of war ; that is, if one party becomes engaged in a war the other is bound to furnish some specified aid. These treaties are subdivided as follows : Those which create a de- fensive alliance, whose object is a common defence against hostile aggressions; those which create an offensive alliahce, by which aid is to be furnished in an offensive war ; treaties of subsidy, by which one of the parties promises assistance to the other, lim- ited in quality and quantity, — as so many troops or ships, so great an amount of supplies, etc. ; and, lastly, treaties of barrier,, by which one party undertakes to guard the frontier of the other. A question has arisen in reference to the extent of obligation resting upon the parties to a defensive alli- ance. As the compact points only to a defensive war, * Vide Fhillimore, vol. ii. p. 70. TREATIES. 383 waged by the state requiring aid, it is evident there can be no occasion upon which the obligation to fur- nish aid arises, — in the language of the publicists, no casus foederis, — unless the war were defensive. Now, what is the meaning of defensive war, referred to in such treaties of alliance ? It may mean a war under- taken in defence of a right, whether the military op- erations are defensive or not. Thus, a state to which a great wrong is meditated may, as the best means for preventing the injury, assume the ofEensive and make the attack, and the war would, in one sense, be prop- erly called defensive. On the other hand, a state may be engaged in actual repelling of an invasion, and still its hostilities not be defensive in the sense now given to the word, for the invasion may have been the just pimishment of its own prior wrong. Again, the term defensive war may refer entirely to the nature of the military operations, — to the re- pelling of an invasion, or to the case where hostilities are declared and commenced by the enemy, without any regard to the cause or the moral character of the war. Writers are somewhat divided upon the question which meaning shall be given to the term in the trea- ties under consideration. The decided preponderance of opinion, however, seems to be that wars morally defensive, and they alone, are included. Wars un- dertaken in protection of an attacked or threatened right. This is, however, only another way of saying that the wars must be just ; for, with the significa- tion given to the word, there could be no just offen- sive wars. It should be stated that there are writers who hold to the other view, and discard the element of morality entirely from the question ; determining 384 INTERNATIONAL LAW. the duty of the. ally to furnish aid solely by the na- ture of the military operations. This rule has the merit of simplicity and certainty, while the applica- tion of the other must be complicated by the solution of many distressing issues of fact. § 309. VII. The Interpretation of Treaties. As treaties are expressed in written language, and as language is always an imperfect means of communi- cating thought, there must arise the same necessity of interpreting treaties that exists with respect to any other instrument. We are already familiar with the ordinary principles and rules of interpretation which are applied to statutes and to all private acts, as wills, deeds, contracts, and the like, I need not take up our time with a statement of these elemen- tary doctrines. They equally apply to treaties, mak- ing allowance for the difference in the subject matter and in the situation of the contracting parties. The general theory of interpretation as applied to laws and to all private acts has received great consid- eration from the continental jurists of Europe, particu- larly from those German writers who have so exhaust- ively examined the very foundations of all jurispru- dence. I have thought that it would not be improper to transcribe some portions of the chapter upon inter- pretation contained in Savigny's great work, " Eomi- sches Eechts." This extract will not only furnish a thorough and complete statement of the principles and rules of interpretation applicable to all written instruments, but will illustrate the manner in which the German jurists approach the consideration of top- ics connected with general jurisprudence. I quote from the French translation of Savigny's great work, TREATIES. * 385 which is published under the name, " Traits de Droit Romain."'' § 310. Savigny begins the discussion by some gen- eral and introductory remarks upon the necessity and nature of interpretation. According to him, inter- pretation is an act of intelligence, by means of which the meaning of a law is ascertained in its truth and entirety. Modern authors have divided interpreta- tion into three generic kinds, namely: Authentic, where the meaning of a law is fixed by a subsequent legislative act ; usual, where the meaning is fixed by custom ; and doctrinal, which Savigny describes as implying and demanding a scientific act of intelli- gence. According to him, the latter kind alone is strictly interpretation. I may say, in passing, that neither of the two former can have place in the in- terpretation of treaties. After the introduction, of which the foregoing is an abstract, Savigny proceeds : " § xxxiii. Fundamental Rules of Interpretation. Every law being designed to establish a right and duty, every law expresses a simple or complex thought, which removes this right and duty from error. That the law should accom- plish this object, it is necessary that the thought should be apprehended in its entirety and in all its purity by those whom the right and duty affect. Such persons ought, therefore, to transport them- selves to the point of view of the legislator, to repro- duce artificially his operations, to recompose the law by his thought. Such is the process of interpretation, which may be defined thus : The reconstruction of the thought contained in the law. By this alone can we obtain a certain and complete insight into what 1 Vol. i. chap. iv. 25 386 INTERNATIONAL LAW. the law comprehends, and by this alone the object of the law will be fulfilled. " Thus far the interpretation of a law differs in no- wise from the interpretation of every other thought expressed by language ; that, for example, with which philology is concerned. But its special character is discovered when we analyze its constituent parts. We shall thus distinguish four elements : the gram- matical, the logical, the historical, and the systematic. The grammatical element of interpretation has for its object the words which the legislator uses to commu- nicate his thought to us ; that is, the words of the law. " The logical element has for its object the analysis of the thought, or the logical relations which unite its different parts. " The historical element has for its object the con- dition of the jurisprudence touching the subject mat- ter existing at the period when the law was enacted. This condition determines the mode of action of the law; the historical element brings into light this mode of action, and the change introduced by the law. " Finally, the systematic element has for its object the intimate bond which unites the institutions and rules of jurisprudence into one. The legislator had this whole, as well as the historical facts, before his eyes, and, in order to apprehend his entire thought, we ought to understand clearly the effect exerted by the law upon the general system of jurisprudence, and the place which it occupies therein. § 311. "The study of these four elements exhausts the contents of a law. There are not, then, four kinds of interpretations, among which we may choose, ac- TREATIES. 387 cording to our taste or caprice ; there are four dis- tinct operations whose combination is indispensable to the interpretation of a law. Without doubt, one or the other of these elements may be of the greatest importance and the most resorted to. It is sufficient, therefore, not to neglect either, and, according to circumstances, we may, without injury to the ex- haustiveness of the interpretation, pass over those elements which, in the given case, would be uselesa But success in interpretation involves two essential conditions : First, we must reproduce in ourselves the intellectual operation whence the thought of the law took its origin. Secondly, the historical facts and the system of jurisprudence which alone throw light upon a particular law should always be present to us as a whole. " § xxxiv. Motive of the Law. If the object of in- terpretation is to give us knowledge of a law, all that does not belong to the terms of the statute, whatever may otherwise be its affinity with those terms, re- mains, rigorously speaking, foreign to the object of interpretation. Here we find, in the first line, the motive {motif) of the law {ratio legis). This word has two different senses, according as we apply it to the past or to the future. Thus, it designates (1) the superior rule of right, whence the statute sprang as a deduction and consequence ; and (2) the effect which the statute is designed to produce ; that is, the object or intention of the law. There is no absolute opposition between these two senses j on the con- trary, we ought to assume that the legislator has them constantly combined in his thought. They have, however, this difference, that one predominates in certain classes of laws j the second, in other classes. 388 INTERNATIONAL LAW. In the common law (Jus commune) the influence of the antecedent rules of which the law is the complete development largely predominates. Its object is to trace the right in visible characters, and to assure its execution. In the case of special or anomalous stat- utes (jus singuhre) the action of the law upon the future is the predominant point of view. " The motive or intention of a law may be more or less certain. But the fact that we are ignorant of the intent does not destroy the authority of the law. Even could we know with" certainty that the law had no true intention, its obligatory force would not be lessened. The uncertainty in respect to the inten- tion of the law may arise from various causes. Some- times we perceive several different intents without knowing their connection; often an evident intent, expressed in the text even, appears foreign to the law, on account of the s^uppression of intermediate ideas which would have removed the appearance of contradiction. " There exist different degrees of relation between the intent and the terms in which the law is, ex- pressed. Very often they present the purely logical relation of premise and consequence, and then they are identical ; often, on the other hand, they are widely separated from each other. Corresponding to these two cases, intents are called special or general. " We may invoke the intent of a particular law with confidence, where our object is to discern the nature of the rule contained in the law, whether it belongs to absolute right or to suppletory right, — to the jus com.m,une or to the jus singulare. But the intention should be resorted to with much more cau- tion and reserve as an aid to the interpretation of the TREATIES. 389 law. Its importance varies according to its degree of certainty, and according to its aflftnity and corre- spondence with the terms of the law. § 312. " I have spoken of the many differences in the motives or intents of a law, based upon their re- lations and their correspondence with the terms of the law, upon their certainty and their application. Notwithstanding these differences, they all have a common character ; they belong to the essence of the law ; in other words, they have an objective nature in their connection with the thought of the legislator. It is this objective nature which renders them recog- nizable ; and if in certain cases they remain hidden, these are rare exceptions. In this they are broadly distinguished from a class of facts having a purely subjective relation with the thought of the legislator, — facts whose knowledge is to us as rare and acci- dental as is ignorance of the intents. We must range in this class those events which have been the occa- sion of a law, but which could have as well occasioned measures far different; also those considerations of persons and circumstances which determined the leg- islator to establish a general and permanent rule. Thus, the law which permits one to marry the daugh- ter of his brother, enacted in the reign of Claudius, had no other object than to authorize the emperor to marry Agrippina, daughter of Germanicus. These subjective facts ought to have no influence upon the interpretation of a law, — not even the restraining influence attributed to the intention. " § XXXV. Interpretation of Defective Laws. Differ- ent kinds of defects, and the means for their remedy. The fundamental principles already stated suffice for the interpretation of all laws in a normal condition, — 390 INTERNATIONAL LAW. those whose language embodies a complete thought, whose expression we are authorized to regard as the veritable terms i of the law. I pass now to defective laws, — to the examination of the difficulties which they present, and the means of surmounting those difficulties. The defects in a law may be ranged un- der the following heads : They consist of either, — "(1.) An indefinite expression not containing a complete thought ; or, "(2.) An improper expression, whose direct sense is in contradiction with the true thought of the law. " These two kinds of defects do not call for a rem- edy of an equally imperative character. The first may be corrected in all cases, and without danger. The second is more difl&cult to treat, and demands greater precautions. § 313. " Before entering into any details, it is well to pass in review the means at our disposition. The first consists in an examination of the whole of the legislation ; the second, in a comparison of the law with its motive or intention ; the third, in weighing the merit of the result obtained by interpretation. " A. Examination of the legislation in its entirety. This means may be applied in two ways to the inter- pretation of a defective law. We may interpret the defective part by the aid of other parts of the same law, and this method is the most sure. We may in- terpret the defective law by the aid of other laws. The interpretation effected by this latter means will be the more certain as these laws are the nearer re- lated ; if they emanate from the same legislator, the interpretation will reach its highest degree of cer- tainty. We may also use prior laws under the legiti- mate supposition that the legislator has had these TEEATIES. 391 laws before his eyes, and that consequently they are the complement of his thought. We may even use subsequent laws ; but this latter case wlU rarely enter the domain of simple interpretation. In fact, subse- quent laws generally modify the defective law or give it ' an authentic ' interpretation, which is not prop- erly interpretation. "When we employ subsequent laws as a means of interpretation, we suppose that the spirit of the ancient legislation is preserved in the new. " B. A defective law may be interpreted by its in- tention (motif) ; but this means of interpretation is placed under far greater restrictions than the former. Thus, its use must be subordinated to the certainty of the intention, and to its affinity with the express terms of the law. In the absence of one or the other of these conditions, the intention may always be used as a remedy for the first kind of defect (an indefinite expression), very rarely for the second (an improper expression). " C. The appreciation of the result obtained is, of all the means of interpretation, the most hazardous, for the interpreter runs great risk of exceeding his powers and of encroaching upon the domain of leg- islation. We may, therefore, resort to it as a help in ascertaining the precise sense of an indefinite expression, never in reconciling the text with the thought. " The means of interpretation offer us the same gra- dations as the defects of the law themselves. Thus, the first is a general application ; the second demands great caution ; the third must be restrained within the narrowest limits. § 314. " The indefiniteness which obscures the 392 mTEEN-ATIONAL LAW. thought may consist in an incomplete expression, or in an ambiguous expression. " An incomplete expression in a law has precisely the character of a discourse which is interrupted, and whose sense remains in suspense. Such would be a law that should require witnesses in any case and should not fix the number. The ambiguity which occurs the oftenest, and with the gravest conse- quences, may consist (1) in an expression with a double meaning ; (2) in a construction with a double meaning. Sometimes an expression used to desig- nate one individual applies equally well to other indi- viduals of the same kind ; this happens less often in laws than in private acts and contracts. Sometimes the expression employed to convey an abstract idea presents two diflferent significations, or is capable of two acceptations, the one more large, the other more contracted. "An ambiguous construction also may render a law equivocal ; and, although this kind of ambiguity is especially common in contracts, laws are not exempt from it. All these ambiguities, notwithstanding their diversity of appearance, have this in common, that they hinder us from knowing with certainty the com- plete thought of the law. Ambiguity comes from the legislator : it may consist, in the obscurity of his ideas, or in his want of ability to handle the language, or in both these circumstances united. But, what- ever be the source of the obscurity, the interpreter must necessarily bring the remedy, for no one can deduce a rule of action from a law thus defective. The knowledge of this necessity is certain ; it may be established by a logical argument. But argument is confined to the statement of the nature of the TREATIES. 393 doubt, it does not give the solution. We must search for that solution among the three means of interpre- tation which I have enumerated ; all are applicable ; the question as to their relative merits is solved by determining the order in which they should be used. Thus, we should first resort to an examination of the whole legislation, and if this suffices to fix the mean- ing of the law, we must neglect the other means of interpretation as less sure and as entirely subor- dinate. " In the second place, we should consult the inten- tion {motif) of the law, and, if it be possible, the special intention having a direct affinity with the ex- press terms of the law, and only in default of this special intention should resort to the general inten- tion as a subsidiary means. If, for example, a law, susceptible of two interpretations, rests upon equity, which is the recognized character of the general juris- prudence of modern times, we ought to prefer that interpretation. " In the third and last place, we should determine the sense of the law by weighing the results which are reached by different interpretations. Thus, we should adopt the one which is the most reasonable, which answers best to practical needs, which is the most humane and mild, etc. § 315. " § xxxvii. Improper Expression. The sec- ond kind of defect consists in an impropriety of terms. An expression is improper when it gives a clear and determinate sense, but one different from the real thought of the law. In the presence of this contra- diction between the constitutive elements of a law, we may demand which of them should outweigh the other. Now, the expression, the language, being but 394 INTERNATIONAL LAW. the means, and the thought the end, we ought evi- dently to rely upon the thought, and to conform the expression to it in our rectification. This rule, invul- nerable in theory, may, in its application, give rise to grave controversies, for the whole difficulty con- sists in proving the fact in question. This kind of defect presents less variety than the former. The language may tell sometimes less, sometimes more, than the thought. We must rectify the expression in the first case by an extensive (liberal) interpreta- tion ; in the second case by a restrictive interpreta- tion, each having for its object the harmonizing of the expression with the thought. " The processes by whose aid we correct an im- proper expression differ greatly from those employed to clear up an indefinite expression. At the outset, we suppose that there exists a determinate thought under defective language. This relation does not, as in the case of mere indefiniteness, admit of logical, but only of historical, proofs ; its certainty is, therefore, less, and is susceptible of different degrees. Another circumstance still augments the difficulty of our posi- tion. The expression is the most immediate and the most natural sign of the thought, and it is exactly to this expression that we refuse to yield our faith. An indefinite expression calls necessarily for inter- pretation, for without it there is neither law nor text to be applied. Here, on the contrary, the very letter of the law gives us a sense clear and susceptible of application. Finally, when we are engaged with an indefinite expression, the operation which points out the defect is different from the one which corrects it. Here the two operations are blended ; in fact, we may judge that the expression is improper, by com- TBEATIES. 395 paring it with the real thought of the law, hut if this thought is known to us, the remedy is already found." These principles, I repeat, may be applied to the interpretation of private contracts and acts, and to public treaties, making due allowance for the differ- ence of subject matter. CHAPTER XI. THE RIGHT OF EMBASSY. § 316. This right, flowing from the attribute of national equality, is, perhaps, the best defined of aU those rights which make up the international law. Indeed, the various special rules which are included within this general head, have the precision and ac- curacy and certainty of the positive enactments of the municipal law ; and finally all, or by far the greater part of them, have been incorporated in some manner, either by statute o • by judicial decision, into the municipal codes of Chr. .tian countries, and thus have become a part of the iLternal national jurispru- dence of those states, enforced by their ordinary tri- bunals. Under this head of the right of embassy, I shall consider, — First. The right of embassy proper, or the right to send, receive, and negotiate by diplomatic agents. Secondly. The right to send and receive commer- cial agents or consuls. § 317. First, Diplomatic Agents This branch of our subject will naturally divide itself as follows : — (1.) What communities enjoy this right. (2.) The nature of the right and duty to send and receive dip- lomatic agents. (3.) The various kinds and classes of diplomatic agents. (4.) The peculiar international status of diplomatic agents. (5.) In what manner THE RIGHT OP EMBASSY. 897 they transact their business. (6.) How and when their functions end. § 318. I. What Communities enjoy the Right or are subjected to the Duty of sending and receiving Diplo- matic Agents. There is no higher note of indepen- dence and equality, in short of separate nationality, than the right to send and receive diplomatic agents. The very condition of sovereignty and of equality implies the necessity of negotiation, and this negotia- tion must be carried on through the means of repre- sentative agents of some sort. Every independent state having rights as against all others, and every state being affected with interests, some common to all, some peculiar to each, and there being no tribunal to which each is amenable, and to which each may ap- peal, the only alternatives for protecting, maintaining, and enforcing these rights and interests are a resort at once and in all cases to force, or a resort to negotia- tion, to argument, to persuasion, in short, to diplomacy. The civilized world has never been without the exist- ence of the latter alternative as a practical means ; and the constant and sure tendency of modern practice, based partly upon Christian ideas, partly upon self- interest, is to exhaust all the resources of diplomacy before appealing to the dread arbitrament of war. § 319. The unanimous opinion of all publicists, and the uniform modern practice of all nations, are agreed that the international law, viewed either as a theo- retical code of abstract right, or as. a collection of positive rules of conduct, permits all bodies politic, to which the name of state or nation may properly be applied, to send and receive public ofl&cial diplomatic agents. This number includes both those which are absolutely sovereign and independent, and also those 398 INTEEKATIOKAL LAW. which are under the guarantee and protection of for- eign powers, and even those which are semi-sovereign, or so far protected as to have given iip a part of their perfect 'freedom of action, without having, how- ever, lost the essence of individuality. The principles and facts stated in the second lec- ture of this series must be resorted to, in order that we may determine with accuracy what communities have the right of embassy. Whether the condition of dependence be such as to take away the right or not, must always be very much a question of fact. The community thus dependent will probably be en- gaged in a constant struggle to establish its complete sovereignty, while the state to which the dependence is due will be as constantly engaged in the suppres- sion of that endeavor. The issue of the struggle must finally be, the entire separation of the two communi- ties, or the entire absorption of one into the other. Thus, at one time, Egypt and all the Barbary States were in such a tributary condition towards the Porte as to have not even a semi-sovereign status ; although retaining some nominal connection with the Sultan, they all, at the present day, have separate diplomatic relations with other nations. Moldavia and Wallachia have never been considered as sufficiently sovereign to warrant the sending or reception of diplomatic agents ; their combination into Roumania, their ex- pulsion of Prince Couza, and election of a young member of a German House, and their reinvigorated national life, all point to a time not far distant when their sovereignty will be established and recognized. On the other hand, it is perfectly settled that no en- tire dependency, no colony, no province,' possesses the right of embassy. Where, as has happened in a THE EIGHT OP EMBASSY. 399 few instances, the viceroy or governor of a colony has been intrusted with the power of appointing dip- lomatic agents, those agents ha.ve always been treated as though sent by the home government, and merely named by the subordinate official from some motives of expediency. § 320. In the case of a federal union, whether the separate parts retain the right of embassy, or yield it to the composite dentral government, must depend entirely upon the internal constitution of that union. In the former case there would be only a loose aggre- gation of independent nationalities, united for some purpose of internal policy; in the latter case there would be a true nation. The Germanic Confedera- tion was an instance of the former ; the Swiss Con- federation is an example of the latter. Questions have arisen, and will arise, as to the government to which, or from which, an ambassador shall be sent, when there are or have been two rival governments, each claiming to exercise jurisdiction over the whole, or over a part of the same territory and people. It is plain that this question is governed by exactly the same principles as those applicable to the third or highest species of recognition. Indeed, sending an ambassador to a state or government, or the receiving an ambassador from a state or govern- ment, is the very act itself by which the indepen- dence of that state or the right of that government is recognized. Of course the ambassador in such case must be clothed with a public official character, and must be received in a public official way, in order that the act of sending or receiving should amount to a recognition. Neither the sending nor the recep- tion of a private agent, who is only expected or al- 400 INTERNATIONAL LAW. lowed to confer in a private and unofficial manner with members of a government, is not an act of recognition ; thus during our late rebellion the Con- federate authorities sent agents to Europe, who con- stantly conferred in an unofficial manner with the members of the British Cabinet, and with the Em- peror of the French. I repeat, in conclusion, that the principles which apply to recognition, and to sending and receiving diplomatic agents in the case of a revolution, are identical, and having been lately stated with much fulness, need not be here repeated. § 321. II. The Nature of the Right and Duty to send and receive Diplomatic Agents. I am here to inquire whether the right and duty rest upon posi- tive rules of the international law, or only upon prin- ciples of international comity. In other words, is the obligation to receive, commensurate with the right to send, and is the obligation to send, commensurate with the right to receive. We may assume, at the outset, what all writers are agreed upon, that all nations included in the descrip- tion already given have a right to send and to receive diplomatic agents, and that any interference by an- other power with the exercise of this right, would be a gross violation of international law, proper to be redressed by war. We may also assume that no nation is under any absolute obligation, derived from the general rules of the international law, to send diplomatic representa- tives to other nations. In fact„ refraining from send- ing such agents to any particular state should not, under ordinary circumstances, be regarded by the latter as any, even the slightest, breach of comity or act of discourtesy. In general, it would only indicate THE EIGHT OF EMBASSY. 401 that the intercourse between the two nations and their citizens was so slight, that the expense of main- taining a representative was not warranted. There are occasions, as we shall see, when the refusal to open diplomatic intercourse, and especially the break- ing ofE such intercourse after it has once been opened, and the withdrawal of an ambassador, is a step in- dicative of hostile feeling between the nations, and, although not of itself cause for war, is generally the sure forerunner of hostilities. The conclusion is, that no state is bound to send ambassadors; that it will consult its own interests, material or dynastic, in de- termining whether to send or not ; that the neglect or refusal to send is not of itself a breach of even international comity, but that other facts, preceding or accompanying this neglect or refusal, may stamp that act with an unfriendly character. § 322. The inquiry finally suggests itself. Is a nation under any positive obligation flowing from rules of the international law to receive ambassadors which may be sent to it, so that a refusal to receive would be an act of hostility, or is the obligation one merely growing out of international comity? This general question may properly be separated into three : (1.) Is a state bound, as a general proposition, to receive an ambassador at all? (2.) Is it bound to receive any ambassador duly commissioned who may be sent to it ? (3.) Is it bound to permit an ambassa- dor to reside permanently within its territories ? The general current of authority among public wri- ters answers the first of these questions in the affirm- ative, and holds that a state to which an ambassador is sent is bound, except under most extraordinary circumstances, to give audience to the ambassador, 26 402 INTERNATIONAL LAW. and to receive him for that purpose in its territories and at its court. Even if these extraordinary circum- stances do exist, some place should be designated at which the audience may be given, — Vattel suggest- ing the frontier as the proper place. The extent to which this principle of the interna- tional law goes is plain. It is settled, in substance, that one nation has no right to shut its ears abso- lutely and refuse to hear a communication made to it by another nation ; it must listen to what is proposed to be said, and must receive the agent charged with the delivery of the message to that extent at least. The reason of the rule is evident. Nations are not only independent, but equal. Equality involves the right to communicate with other members of the po- litical family, and the right that such communication shall be heard. To deny the right to communicate and to be heard, would be to deny so far forth the equality ; but the only means of communication in general is by an ambassador. Therefore, to refuse to receive an ambassador at all is virtually to assert that the nation sending is not the equal of the na- tion refusing. Of course, the equality of nations does not demand that the message which must be heard should also be obeyed or followed. In fact, such a claim would be destructive of all idea of equality. § 323. The second question was, Is a state bound to receive any ambassador, duly commissioned, who may be sent to it ? In other words, does a state possess any right of selection, and may it refuse to receive a particular person, or refuse to hold further diplo- matic intercourse with him after he has once been received, and not thereby commit any hostile act to- wards the state whose representative the person is ? THE EIGHT OF EMBASSY. 403 All publicists are agreed in the answer to this question: that a state is not bound to receive any person who may be sent to it as an ambassador, but cannot use an arbitrary discretion in rejecting a par- ticular person ; the rejection must be based upon some good cause, and the reasons for it should be al- leged. What has been regarded as good cause for the rejection of any particular diplomatic agent must be determined by a reference to the practice of na- tions rather than by a reference to any general prin- ciples. It is said by many writers of authority that the sex of an ambassador is not alone a valid cause for refus- ing to receive a person. Female diplomatists have certainly never been commgn, but instances are not wanting where women have been clothed with public official ambassadorial character, and have conducted important negotiations. A nation may reasonably refuse to receive one of its own citizens or subjects as the diplomatic agent of another power. The principle upon which this rule is founded is, that, as an ambassador, when received, is entitled to an almost absolute exemption from the civil and criminal jurisdiction of the country to which he is accredited, and as it is not just that one state should force another state to accord this immunity to one of the latter's own citizens who owes natural al- legiance thereto, the nation has the power and right of refusing to receive one of its own subjects in this representative capacity. Several important states of Europe have adopted the rule as a part of their fun- damental law, not to allow one of their own subjects or citizens to represent a foreign power at their courts. 404 INTERNATIONAL LAW. § 324. A fortiori, may a state properly refuse to receive one of its own citizens who has been exiled, or a person under sentence as a criminal, but who has escaped before the sentence was executed ? The fact that the diplomatic agent is not a citizen or subject of the nation he represents, would not be alone reasonable ground for a refusal to receive him. Nor would any objection to the private rank or birth of the representative be good ground for rejec- tion. The choice of the sovereign or government which commissions him clothes him with sufficient rank ; he is, in fact, the representative of that sov- ereign or government ; his own personal condition is absorbed in his official status. This rule could, of course, only have application in monarchical and aris- tocratic societies. There can be no doubt, however, that a nation may refuse to receive an ambassador who is a noto- riously scandalous person. The practice of govern- ments has gone to the extent of establishing that a diplomatic agent who is personally disagreeable to the king or other executive head of the nation, or who, by his conduct in their official intercourse, ren- ders himself thus disagreeable, may be either rejected at the outset, or dismissed after he has once been re- ceived. Of course, when an ambassador who has been re- ceived violates any of the laws of the country to which he is accredited, or engages in any conspiracies or intrigues against the government of that country, he may be dismissed. This subject will be further discussed when we come to speak of the immunities of all diplomatic agents from criminal and civil juris- diction. THE RIGHT OF EMBASSY 405 The existence of war between two states does not of itself relieve one from the duty of receiving and giving audience to an ambassador sent by the other. Of course, it is not the duty of such a state to permit a resident agent of the other belligerent within its ' territories ; but if war absolutely destroyed all obliga- tion to listen to public messages from the other hos- tile party, most of the opportunities for terminating a war in any other manner than by the absolute con- quest and destruction of one belligerent would be cut off. § 325. The third question was : Is a state bound to permit an ambassador to reside permanently within its territories ? The answer to this question given by the writers on public law is, that the obligation does not rest upon strict right of one nation to maintain such a representative, but upon comity. At the same time, it is certain that the practice of resident' minis- ters is so well settled, so universal, and so long con- tinued, that should one nation refuse to permit a res- ident ambassador of another nation, the latter would have just cause to regard the act as most unfriendly, as so closely bordering upon, as to be scarcely distin- guished from, hostility. The only circumstance which would relieve the act of this unfriendly and quasi hostile character, would be the fact that no discrimi- nation was made towards the state in question, but that all other powers were treated in the same man- ner. In other words, if a state should openly declare its policy to permit no resident diplomatic agents at all, no other particular state would have a special ground for resenting this step. To be sure, a nation that should adopt this policy would virtually cut itself off from all friendly intercourse with the family of 406 INTERNATIONAL LAW. nations ; all other powers would retaliate and refuse to be represented by resident ministers; communi- cation would be ended J the state and community would be isolated like the Chinese ; a destructive blow would have been dealt to the commercial inter- ests of the people. These considerations are suffi- cient to prevent any civilized state from adopting so suicidal a policy, and the question is, therefore, theo- retical rather than practical. § 326. III. 7%e peculiar Kinds and Classes of pub- lic Diplomatic Agents. The public diplomatic agents who represent states, transact their international af- fairs, and conduct their negotiations, are divided into several distinct classes, according to different lines of separation. (1.) According to the duration of their public character or mission, they are all divided into ordinary and extraordinary. The former class — the ordinary or resident representatives — include those who reside permanently at the court of the nation to which they are accredited, to the duration of whose mission there is no ascertained and fixed limit, sub- ject, hower, to their liability of recall. These repre- sentatives are generally commissioned in order to attend to the ordinary matters which are constantly arising. The second class — the extraordinary — are those charged with some particular and special mis- sion, the accomplishment of which will demand a certain and limited time of greater or less duration. Thus, the representatives of the several powers which united in the Congress of Vienna of 1815, and those who negotiated the Treaty of Paris of 1856, were ex- traordinary. Commissioners dispatched to conclude a treaty of peace, like those sent by the United States to Ghent, are extraordinary. Lord Ashburton, who THE RIGHT OP EMBASSY. 407 negotiated the treaty between the United States and Great Britain which generally bears his name, be- longed to this class. § 327. The practice of sending and receiving ordi- nary or resident ministers is of comparatively modern origin. The Komans were familiar with the institu- tion of ambassadors; indeed, they carried the rights of embassy to an almost rehgious degree ; but they were ignorant of the employment of any functiona- ries similar to our resident ministers. With them, all envoys were extraordinary. During the supremacy of feudal ideas, the use of heralds to make communi- cation between sovereigns and feudal lords was com- mon, and the immunities of these messengers were perfectly secured. During the period when the states of Europe were being consolidated upon the ruins of feudal institutions, the envoy or ambassador specially dispatched by his sovereign took the place of the professional herald ; but these were all special or ex- traordinary, intended to accomplish some particular object, some particular negotiation, and returning to their own country when the purpose was attained. In the progress of time, as the idea of a family of na- tions began to .be received and to have power over national transactions, and as the interests of one state and its citizens within the territory of another com- monwealth, growing out of commerce, were more widespread and important, the practice of resident ministers began, but did not become established and at all uniform until after the Treaty of Westphalia, 1648. Although the classes of ordinary or resident and extraordinary diplomatic agents are well defined, yet it must not be understood that the term extraor- dinary is always applied to a minister who belongs to 408 INTEEKATIONAL LAW. that class. It is often used as a means of indicating a higher rank or grade of resident ministers, as though the multiphcation of titles could confer any greater dignity upon the representative. Thus, the ofl&cial designation for the highest grade of resident diplomatic agents which the United States sends . is Envoy Extraordinary and Minister Plenipotentiary. § 328. (2.) With regard to the extent of their pow- ers all diplomatic agents are divided into two classes : those whose powers are limited by the terms of the commission and of the credentials, and those whose powers are unlimited and general, as they are set forth in the commission and credentials. These lat- ter are termed plenipotentiaries, although this word is also sometimes used as a mere designation or naine of a particular grade of representatives, without any necessary reference to the extent of powers held by that representative. § 329. (3.) By the settled practice of nations, all public diplomatic agents are divided into a number of classes or groups, according to the grade or rank be- longing to them, the dignity annexed to their office, and the amount and kind of ceremonial honors they are efititled to receive. Among the j^uropean writers upon international law, and especially those who have composed treatises upon the art of diplomacy, this subject is treated at great length, with a vast amount of minute detail, as though the rank, dignity, and ceremonial honors due to a public representative were the most important matters connected with his mis- sion. I shall not occupy your time with a recital of this somewhat unprofitable system of rules, but shall content myself with a brief statement of the se-veral classes and of the points of distinction between them. THE KIGHT OF EMBASSY. 409 The Congress of Vienna (in 1815) established three separate classes or grades ; in 1818, by the protocol of Aix-la-Chapelle, to which Austria, France, Great Britain, Russia, and Prussia were parties, another grade was added ; so that, these determinations being generally accepted, there are at present four classes, grades, or ranks of public diplomatic agents. § 330. The first class, being of the highest grade or rank, includes ambassadors, either ordinary or ex- traordinary, papal legates, and papal nuncios. Am- bassadors are public ministers charged with attending to the affairs of the country which they represent. They differ not at all from other ministers, except in name and rank. Legates from the Pope are spiritual representatives sent by him into Roman Catholic countries, to exer- cise, in his name, the spiritual functions which depend upon his recognition as head of the church. Of course, there could be no such representative, except in states where the Romish religion was the estab- lished form of religion. Nuncios are ministers from the Pope, analogous to ambassadors sent by other nations, and may, of course, be sent to Protestant as well as to Romish courrtries. All the representatives of this class enjoy in the high- est degree those ceremonial honors which are ac- corded to public ministers. It is said that they are entitled to royal honors, or such as the sovereign would receive were he present. " Diplomatic agents of this first class can only be sent by states, whether monarchical or republican, entitled to royal honors. That is to say, that if an inferior state accredit an ambassador of the first class, he will not be received by the great European powers. It is impossible. 410 INTERlirATION'AL LAW. however, to maintain, as has been attempted, that the right to send ambassadors is confined to monarchies, or to deny that the rank of the ambassador, abstract- edly speaking, depends upon the sending, and not upon the recfeiving, state." ^ The United States has never sent any ambassador ; not because our country is not entitled to employ agents of this class, but, probably, because the ex- pense of maintaining an ambassador to keep up a mere show of state has been considered too great, and not in accordance with our notions of republican simplicity. § 331. The second class includes envoys, ordinary and extraordinary, and ministers plenipotentiary. The third class includes " ministers resident." These seem in all essential particulars to be identical with envoys. The fourth class includes chargh d'affaires, ac- credited to the minister of foreign affairs, and con- suls and consular agents having diplomatic powers. Charges d!affaires are sometimes sent originally, and are accredited ad hoc, and sometimes they are nomi- nated to manage the affairs of a legation during the absence of the minister, and are accredited ad in- terim. The United States employs diplomatic agents of all the last three classes. To the most important na- tions, with which we have the greatest intercourse and the most complicated relations, we send an envoy extraordinary and minister plenipotentiary, fo na- tions of less importance, with which our relations are few or simple, we send a minister resident, or are contented to be represented by a charge d'affaires. * Fhillimore, vol. ii. p. 219. THE RIGHT OP EMBASSY. 411 I 332. It is quite difl&cult to apprehend the real ground of distinction between these four classes of agents. Many of the standard writers have referred the arrangement entirely and principally to the cere- monial honors the respective classes are entitled to receive. M. Pinheiro-Ferreira, in his notes to Mar- tens, shows the absurdity of this basis of the classifi- cation, and that it involves a complete arguing in a circle. He remarks in substance if, upon this prin- ciple of distinction, it were asked why the ambassador enjoyed greater honors than the envoy, it must be answered, because the former belongs to the first and the latter to the second class ; and if it were asked why the former belonged to the first and the latter to the second class, it must be answered because the former enjoys greater honors than the latter. There is one basis of classification which is logical, sensible, and just, but it divides the first three classes from the fourth. All the agents which are grouped in the first three classes are accredited by the sover- eign or head of the sending, to the sovereign or head of the receiving, state, while those of the fourth class are accredited by the foreign minister of the one to the foreign minister of the other. It would seem to be a legitimate doctrine, that those representatives who purported to speak from one sovereign to an- other sovereign should be considered as holding a higher rank than those who speak only from one sub- ordinate to another subordinate. § 333. Martens, Kliiber, Wheaton, and some other writers, attempt to establish the position that ambas- sadors more completely represent the sovereign who sent them than do envoys and other ministers ; that the former represent the sovereign not only in his 412 INTEEKATIONAL LAW. affairs, but in his person, and therefore, in virtue of the latter kind of representation, should be treated with the same honors as would be accorded to the sovereign himself were he present, while envoys and other ministers only represent the sovereign in his affairs. M. Pinheiro-Ferreira demolishes this posi- tion, shows that it is a mere fiction, invented io ac- count for an existing fact. I am entirely inclined to agree with this writer, that these distinctions of rank among representatives from one state to another, all of whom can perform exactly the same public func- tions, can conduct the same negotiations, are utterly without any real foundation; that they were con- trived only to gratify the personal ambition of mon- archs and their representative's; that they belong solely to the spirit of those ages when rank and form were regarded as matters of importance and substance. With the exception already stated, it may be laid down as a general rule that each state may determine for itself the rank or class of the diplomatic agents which it sends. Practice has established two rules of reciprocity among nations : first, that no state will send to another state a diplomatic agent of a higher class or rank than that of the agent sent by the lat- ter to the former ; and secondly, that each state will in general send an agent of the same class or rank as that of the agent sent to it. Thus, the United States accrediting no ambassadors, receives none ; and this is one reason why a transfer of a minister from Wash- ington to some powers quite inferior to the United States is regarded by European diplomatists as a step upward. § 334. IV. The peculiar International Status of THE EIGHT OP EMBASSY. 413 Diplomatic Agents. Diplomatic agents of every de- scription are representatives of the nation sending them ; the equality of that nation, and the power of managing its affairs, and of freely conducting nego- tiations on its behalf, require that the agents shall be permitted to act unmolested ; tliat they shall not be interfered with either directly or indirectly in the discharge of their ofl&cial duties. This necessity has given rise to the peculiar international status of all diplomatic agents, a status recognized by the interna- tional law, as such, and also by the municipal law of most enlightened states. The very establishment of diplomatic relations between different states neces- sarily implies an important concession on their part. This is, that they agree to grant to their respective diplomatic agents that safety and liberty without which the latter could not perform their functions in a convenient, honorable, and regular manner, and which constitute their " representative character," their " diplomatic status." The fundamental rights which result from the public character of foreign ministers are personal inviolability, and exterritorial- ity, or exemption from all civil jurisdiction of the state in which they reside, or at least from that which would hinder them in the exercise of their functions. Phillimore says : " This status is composed of rights stricti juris, resting upon the basis of natural law, and therefore immutable, and of privileges originally not immutable, but so rational in their character, and so hallowed by usage, as to be universally presumed, and to become matter of strict right if their abroga- tion have not been formally promulgated (a case al- most inconceivable) before the arrival of the ambas- sador. The former are usually described under the 414 INTERNATIONAL LAW. title of Inviolability, the latter under the title of Ex- territoriality." * It is my purpose to describe these rights in gen- eral, and afterwards to describe more particularly their extent, and the practical results which flow from them. § 335. Inviolability. Inviolability is, in substance, the exemption of the ambassador's person from all restraint, injury, or interference. It is a principle so necessary to the external relations of states, that it has been recognized by all peoples, even by those of antiquity. It imposes on a government, as soon as it has recognized a foreign minister in his quality of agent for his sovereign, the duty not only to abstain itself from every act which would be contrary to the inviolability attached to the person of the minister, but also to repress with the utmost severity every attack, physical or moral, which may be attempted or consummated within its territory. An offence com- mitted towards a foreign minister is an offence done to his own government. In this sense, the internal laws of nations punish as a crime of state every in- jury done to the person of a diplomatic agent. Even reprisals could- not serve as a pretext for acts of vio- lence of this kind, at least unless the government of the minister had rendered itself culpable by the same violation of international law. The inviolability due to the person of a foreign minister commences from the moment when his pub- lic character has been established and recognized as such by the government near which he is to reside. It is granted not only to every diplomatic agent reg- ularly accredited, but also to those individuals who ' Fhillimore, vol. ii. p. 156. THE KIGHT OF EMBASSY. 415 are attached to his person or to his mission. It com- prehends equally for the benefit of the diplomatic agent, the absolute liberty of corresponding with his own government, of sending and receiving despatches, either by special couriers furnished with passports and credentials of their quality, or by the interven- tion of the local post. It is only necessary, in the latter case, that the letters and the despatches trans- mitted by them through means of the post should bear the seal of the legation. They will thus be inviolable, be free from all surveillance of the gov- ernment. § 336. The public minister and the members of his suite cannot invoke, in their own behalf, the priv- ilege of inviolability, if by their irregular conduct they provoke, on the part of the government near which they reside, acts of surety and of defence, or of repression. Also, the minister has no right to in- voke the privilege under circumstances entirely for- eign to his public character ; at least attacks upon his person, breaches of his inviolability, in such a case should not be made the subject of diplomatic reclamations. He would no more have ground for complaint that his inviolability was disregarded, if the person guilty of the injury was ignorant of his official character. The government which commits an offence towards a foreign minister accredited to it is bound, accord- ing to the nature of the offence, to make reparation. If one of its subjects has been guilty of a similar offence, he ought to be proceeded against according to the procedure and laws of the state at the de- mand of the offended minister. But it cannot be admitted that the latter may himself prosecute for 416 INTERNATIONAL LAW. the offence done him, unless it is a case of legitimate defence ; he must demand satisfaction from the gov- ernment within whose territory the act was com- mitted.^ § 337. Phillimore thus sums up the general nature of inviolability, and of the rules and principles which are settled as doctrines of the international law : " First, the right of inviolability extends to all classes of public ministers who duly represent their sover- eign or their. State secondly, the right attaches to all those who really and properly belong to the house- hold of the ambassador, — such, to use the ordinary description, as accompany him as members of his family or of his suite. Thirdly, the right applies to whatever is necessary for the discharge of ambas- sadorial functions. It seems to follow, therefore, that he is entitled, among other immunities, to an exemp- tion from all criminal proceedings, and to a freedom from arrest in all civil suits. The private effects, and above all, the papers and correspondence of the ambassador, are inviolable. Fourthly, the right at- taches from the moment that he has set his foot in the country to which he is sent, if previous notice of his mission has been imparted to it, or, in any case, as soon as he has made his public character known by the production either of his passport or his cre- dentials. Fifthly, the fight extends, at least so far as the state to which he is accredited is concerned, over the time occupied by the ambassador in his arrival, his sojourn, and his departure. Lastly, the right is not affected by the breaking out of war between his own country and that to which he is sent." 2 1 HefEter, Droit International Public, § 204. ^ Phillimore, vol. ii. p. 171. THE EIGHT OP EMBASSY. 417 § 338. Exterritoriality. The fiction of exterrito- riality represents the doctrine that all pubUc diplo- matic agents are, to a certain extent, exempt in their persons and their effects from the civil jurisdiction of the country in which they are resident ; in other words, that they cannot, in general, be sued in any civil action for a claim of a private nature ; nor can their effects, within certain limits, be seized or sub- jected to private demands. The principle which re- gards diplomatic agents as not having left the states of their sovereigns, and which consequently frees them from the civil jurisdiction of the tribunals of the country where they ofl&cially reside, was recog- nized under niany forms, even by the ancients. The Romans accorded to the provincial deputies a right known under the name of^ws domum revocandi; that is to say, the latter enjoyed, during their stay at Eome, the power of objecting to the competency of the tribunals there, both in criminal and in civil mat- ters, in the case of former debts or of delicts charged against them, or at least of only answering to an ac- tion provisionally. This exemption from territorial jurisdiction, joined to the inviolability established for the benefit of ambassadors properly so called, has been transformed, according to the modern usages of nations, into exterritoriality, which cannot, however, be applied in aU cases in an absolute manner to diplo- matic persons. There are, on the contrary, a great number of doubtful points, which the natural rela- tions of diplomatic intercourse can alone explain and solve. The only principle resulting from the very nature of things is, that diplomatic agents, after being recognized and admitted as such, ought to be treated, even in respect to their affairs purely personal, in 27 418 INTERNATIONAL LAW. such a way that they can be able to fulfil their func- tions with entire independence. In the absence of treaties, it is necessary to have recourse to the laws and procedure of the country where the minister resides, in order to repress injuries committed against him. The natural rule of the international law is op- posed simply to every act of sovereignty, either in a judicial or in an administrative matter, which is in- compatible with the personal inviolability of the for- eign minister, and with the dignity of the state which he represents. It is, above all, opposed to every act of constraint over his person. An absolute exemption from territorial jurisdiction for his own advantage in matters personal to the minister does not result from his public character. This exemption can only be admitted in a general manner, as a general rule of practice. Nevertheless, it must be confessed that a jurisdiction deprived of all means of constraint or of execution, which is in a great measure that to which diplomatic agents may alone be subjected, presents but a moderate degree of interest, besides the diffi- culty of accurately fixing its limits.^ With this statement of the general principles of the rights of inviolability and of exterritoriaUty, which make up the peculiar status of the public minister, I shall now proceed to discuss the principles in their application, to assign the limits to their operation, and to explain the practical results which flow from them. [When these Lectures of the late Professor Pomeroy were examined with a view to their publication, it was discovered that Lecture XU., completing his discussion of the right of embassy, was missing. Sus- pecting that some too appreciative friend had borrowed it, the family 1 Heffter, § 205. THE RIGHT OP EMBASSY. 419 made every effort, in the way of personal inquiry and of advertisement, to discover it; but unfortunately without success. Thus, in order to make the course available, it became necessary that the final portion of it should be supplied by another hand. For the subject matter from this point on, while retaining the divisions of the topic laid down in Chapter XI., the editor is, therefore, alone responsible.] § 339. Inasmucli as the immunities springing from these two principles of inviolability and exterritorial- ity are hard to be distinguished, the freedom from personal violence and from arrest, arising from the one often running into and being identical with the exemption from local jurisdiction growing out of the other, it will be convenient to consider the specific rights arising under these heads as a single topic. Diplomatic immunities are not to be explained as growing out of the fact that the person of an ambas- sador for centuries past has had a sacred character, has been clothed with the mantle of religion, but, as has been stated, simply because, to perform his duties properly, an ambassador must be, in person and prop- erty, himself and his suite, free from all control on the part of the state to which he is accredited. His privileges attach the moment he sets foot in the land to which he is sent, and last until he leaves it, with the sole limitation that they are never para- mount to the right of self-defence. An assault by an ambassador, however privileged, upon an individ- ual, may always be repelled by force. In like man- ner, an assault by a minister resident in a foreign country upon that country, through his forming or lending himself to plots or political combinations against it, may be repelled by sending him promptly away. A nation as well as an individual has the right of self-defence. In the case of Gyllenbourg, Swedish ambassador to 420 INTEENATIONAIi LAW. England in 1717, this was held to authorize even the arrest and detention of a minister so offending, as an instance of state necessity. § 340. How far these immunities obtain in the ter- ritory of a third state has been a question. Some authors, as Phillimore,^ hold that "in time of peace the ambassador is of right inviolable in his transit through a third country, but cannot claim the privileges of exterritoriality as a matter of tacit com- pact," and that " the true international rule would be that the ambassador should be allowed in all cases the jus transitus innoxii." But has not every citizen a similar right of innocent passage ? and what is an innocent passage ? Who but the state through which the passage is making can judge of its innocence ? Take the case of M. Soul6, for example, cited by Calvo.^ M. Soul^, a Frenchman by birth, had be- come naturalized in the United States, and was sent as minister resident to Spain. When about to cross France, on his way to his post, the French govern- ment refused him permission to stop in Paris, which naturally lay on his route. Upon demand for an ex- planation, the French minister of foreign affairs re- plied that " he did not assert the right to prevent an envoy from crossing France on his way to his mission ; but that there existed a difference between simple passage and the stay of a foreigner whose antecedents had unfortunately aroused the attention of the au- thorities, whose duty it was to uphold public order in France." Upon M. Soul^'s assurance that he wished simply to cross the country into Spain, permission was given him to do so. The action of the French 1 Second ed. vol. ii. pp. 210, 211. " Vol. i. p. 667. THE EIGHT OF EMBASST. 421 government, acquiesced* in by M. Soul^, plainly im- plies its right to permit ministers to third countries to cross its territory only on conditions. They have no right in the matter, then. This is in harmony with the opinion of most writers on the subject; namely, that a diplomatic agent, outside of the coun- try to which he is accredited, has no exterritorial privileges which he can claim as a right. As an offi- cial representative of a friendly power, however, he is entitled, by the comity of nations merely, to more ceremonious treatment and better facilities of travel than a private citizen would be. To delay him un- necessarily, to put insult or injury upon him, would be more than a personal wrong ; it would be a proof of an unfriendly disposition toward the state of which he is the representative. "This is true , even if the state through whose territory he passes is at war with that to which he is going. Though here it seems to be usual for the state through which he passes to lay down and control his route of travel. § 341. The rights of an ambassador in third coun- tries, and his status, whether on his way to his mis- sion or in residence, in case of hostilities between a third state and the one to which he is accredited, are both matters which must be settled, it may be, before his diplomatic privileges can attach. Before attack- ing the main subject of inquiry, therefore, let us ex- amine what changes a state of war makes in the rela- tions of a minister of one state in another, with the enemies of that other or its own. In the first place, it is clear that if two states are at war, and one finds an ambassador of the other, although accredited to a third neutral power, on its own or an ally's soil or ships, it will consider him a combatant, and hold him 422 INTEENATIONAL LAW. prisoner of war, unless he holds a safe conduct. But no such right exists on neutral territory or a neutral ship. To illustrate : If Mason and Slidell had been cap- tured within the jurisdiction of the blockading squad- ron through which they ran, or on a Confederate ship, they would have been validly captured ; but upon a neutral ship a belligerent had no right to seize them. For the United States to do so was in violation of the neutrality and jurisdiction of Great Britain. Again, if two states^ are at war, and one, invading the other, there finds the minister of a neutral state, he must be left undisturbed. Its belligerent rights do not warrant it in forbidding neutral diplomatic correspondence with its enemy. When, therefore, the Germans besieging Paris, in 1871, declined to allow the minister of the United States to send his despatch bag through their lines unless it was un- sealed, they stretched their rights as belligerents un- duly. In contrast to this may be mentioned the fact that frequently neutral men-of-war, for purposes of official correspondence, have been allowed by one belligerent to pass a blockade established by it along the ports and coasts of another. Hall, in his able work on international law,^ discusses this general sub- ject, and argues that where an invading state finds a neutral envoy on its enemy's soil, " there is no pre- sumption in favor of the existence of an obligation on its part to grant more than personal inviolability ; " and again : " on the whole, it seems difficult, in the absence of a special custom, to deny to belligerents the bare right of restricting the privileges of a min- ister not accredited to them within such limits as may be convenient to themselves, provided that his invio- 1 Pages 277-282. THE EIGHT OF EMBASSY. 423 lability remains intact." ^ This is distinctly to prefer belligerent rights to the neutral right of a free diplo- matic intercourse with a friendly power. It is con- trary to the spirit of modern international law, which upholds neutral as against belligerent interests. It is inconsistent, too, as it seems to me, with the acknowl- edged right of an envoy to make his way to his mis- sion, even by crossing the territory of an enemy of the state where his mission lies. The question is not one often raised. It is not commonly discussed by writers on the subject. Yet it might become of considerable importance, and, if not fairly deducible from the prin- ciples generally accepted, as I believe it is, should be expressly provided for by treaty. § 342. We . may now proceed to examine the spe- cific rights which belong to the diplomatic agents of one state resident in another, and which flow from his inviolability and exterritoriality. The first of these in point of time, as he makes his way to his post, is his exemption from customs duties. Freedom front Customs Duties. This exemption is not to be construed as granting an ambassador free entry of goods to be used by him in trade, nor held by him as trustee. It is rare that a diplomatic agent is permitted by his government to engage in trade nowadays, so that this temptation hardly exists ; but formerly ministers are known to have abused this privilege. It should be strictly confined to property imported for the personal use of their suites and themselves, or, as Calvo declares,^ be " allowed within somewhat narrow limits, since it is not indispensable to the free exercise of the functions of a public min- ister." And he adds, that " application for this ex- 1 Page 282. " Vol. i. p. 664. 424 INTEENATIONAL LAW. emption from customs duties should always be made by a written note, specifying precisely the nature, quantity, and destination of the articles whose free entry is sought." Inasmuch as upon entry into the country the minister will have had no chance to ob- tain ofl&cial recognition by the presentation of his let- ter of credence, his passport is necessary to establish his character and right to immunities. Once within the country to which he is accredited, the minister will repair to its capital, and there estab- lish his official position, as will be described under the fifth division laid down by the author: "In what manner they transact their business." From that moment his diplomatic character is fully ascertained and its privileges fully attach to him. § 343. Exemption of Ambassador' s Residence from Local Jurisdiction. The resident minister will soon establish himself in a fixed abode, whether hired by him for the purpose, or regularly maintained, as is often the custom, by his government. This residence at once enjoys the immunities springing from the minister's office, though apart from him it has none. It is not open to the ordinary police jurisdiction of the town ; no arrest should be made within its limits, — it is, as it were, a bit of foreign territory set down within the reach of, but not subject to, the local ju- risdiction. Other real property there owned by the minister can be taxed as unnecessary to his official functions, but his residence, if owned by him or his government, cannot be taxed. This is the prevailing opinion. Thus Phillimore says : ^ " The fiction of ex- territoriality cannot be applied to immovable posses- sions, and there is no doubt that they, with their inci- 1 Vol. u. 214. THE EIGHT OF EMBASSY. 425 dents, remain subject to the jurisdiction of the country in which they are situate. . . . From this rule with regard to real property is to be exempted the actual dwelling-house of the ambassador, which is intimately connected with his personal inviolability." Calvo^ and Hall ^ share this view ; while Wheaton, on the contrary, asserts ' that " The hotel in which he re- sides, though exempted from the quartering of troops, is subject to taxation in common with the other real property of the country, whether it belongs to him or to his government." Twiss inclines to the same opinion,* at the same time pointing out its practical difficulty. " A foreign minister is privileged from being called upon to contribute personally to the general taxes of the country ; that is, to such taxes as are levied by the government, and which are avail- able for the general purposes of the state, in which the ambassador is not interested. But a foreign min- ister is not exempt from the payment of local dues, which are raised for purposes of local administration, and which are expended on local objects, from which he himself, in common with his neighbors, derives immediate benefit. Thus, he is liable to pay local rates, assessed upon his hotel or its site for sewerage, lighting, watching, and similar objects. This liability has sometimes been disputed ; and Kliiber holds it to be doubtful whether such rates can be rightfully ex- acted if the ambassador is unwilling to pay them. A practical difficulty will always be found in levying the rates, as the person and property of the ambassa- dor are exempt from the jurisdiction of the civil tri- bunals, which must be appealed to in order to enforce payment in the last resort." 1 Vol. i. p. 663. 2 Page 164. « Dana's ed. § 242. * Vol. i. § 203. 426 INTERNATIONAL LAW. § 344. In tlie United States the rule of reciprocity is observed in regard to general taxation of property owned by foreign governments for their legations; but such property is not exempted from water, sew- erage, paving, and such other dues, unless by special and reciprocal arrangement. This government does not own property abroad for legation purposes, except in Tangier, so that it does not actually enjoy privi- leges which it grants to other nations. § 345. This removal from the local jurisdiction which belongs to the minister's hotel relates, of course, to its contents as well, the personal property of its occupants, particularly to the embassy papers, which are always to be held inviolable. It relates also to the persons of its occupants, the family and suite of the minister there residing, even to his do- mestic servants; though perhaps the immunities of these persons should rather be ascribed to the ex- emption from local jurisdiction of the minister him- seH and of those whose service is held necessary to his proper performance of his duties, than to the ex- territoriality of his hotel. The privileges of his hotel are extended in a measure to the minister's carriage ; and if the charge d'affaires has a separate establish- ment, that, too, has its exemptions, since he is also independently a diplomatic agent, representing his minister of foreign affairs. § 346. Now, like all the exemptions from local law which we shall note, this right of the minister that his residence shall be free from local jurisdiction is to be used with reserve and construed strictly. No am- bassador can make his house a harbor of refuge for criminals. If any such escape to him with this in- tent, they should be surrendered. He will, as a rule, THE EIGHT OP EMBASSY. 427 find it convenient to place it under the police, fire, and street regulations of the capital, and, if he does so, he will naturally pay the local rates therefor, as Twiss suggests, but as a matter of fairness and con- venience, not of obligation. Whether forcible entry of the minister's hotel is ever permissible, in case he shall try to shelter crim- inals who have violated the law elsewhere, is illus- trated by the action of the British government in the case of Mr. Gallatin's coachman, his master being the United States minister in London. This man had committed an ofience outside of the embassy, and, then took refuge within it. The government claimed the right to arrest him, even within the embassy, but admitted the necessity of giving preliminary notice and demand, which, under the circumstances, was complied with. A more excusable instance of a similar nature oc- curred in Rome, but long ago. The French ambassa- dor had received into his palace certain Neapolitan conspirators, and tried to convey them out of the city in his own carriages. They were, however, arrested at his gates. In reply to his protests, the pontifical government replied that the privileges of an ambas- sador could never justify him in protecting fugitives from justice.^ That exterritoriality is only a convenient fiction is never to be lost sight of. If two natives contract with, or assault one another, on the grounds of a for- eign embassy, they are not exempt from local juris- diction. If a native criminal seeking asylum there is surrendered, it is not done in accordance with any treaty of extradition. 1 CalYO, i. 661. 428 INTEEITATIONAL LAW. § 347. Exemption of the Minister and his Suite from Local Jurisdiction. This exemption is not only well established by the usage of nations, it has also, in many states, been made a part of the municipal law. The arrest of the Czar's ambassador in London, in 1705, was the cause of the passage of an act of Par- liament to prevent the possibility of such an occur- rence in the future. In 1790 a similar law was passed in the United States, and within the last hundred years, France, Spain, Eussia, Austria, Bavaria, Prus- » sia, the Netherlands, have legislated on the subject, some specifying the immunities to be allowed, and others simply declaring that all persons belonging to foreign embassies " shall enjoy the privileges con- ferred upon them by the principles of international law and public treaties." ■" § 348. These immunities are of the most exten- sive and diverse character, and apply to acts of the most serious nature. Should the ambassador be guilty of murder even, he cannot be tried for his crime in the country of his residence ; but the proofs should be gathered, his recall demanded, and his trial take place in his own state. No civil action can be brought against him for debt, or breach of contract, or any other cause ; the proper remedy being either to seek redress through diplomatic channels, or to sue him in the courts of his own country. A loose practice in this regard has crept in, which is illustrated in the case of M. Drouet, the Belgian secretary of legation in London in 1854. M. Drouet had voluntarily submitted to the first steps in an ac- tion on contract, but afterwards took refuge in his 1 Phillimore, ii. pp. 228 sq. THE EIGHT OP EMBASSY. 429 diplomatic immunities, and called for a stay of pro- ceedings. It was held that the suit must go on, but that, in the event of an adverse judgment, its penal- ties could not be enforced. Similarly, when the Emma Mine proved worthless, it was proposed to bring suit against Mr. Schenck, the minister at Lon- don from the United States, who had lent his name to the enterprise, and force him to take refuge in his diplomatic immunities, simply to avoid the conse- quences. But this is not real exemption from the local jurisdiction ; it is submission to that jurisdiction, but exemption merely from its consequences. It thus falls short of what a diplomatic agent has the right to demand. Thus, Mr. Dana, in his note to Wheaton,^ writes : " It is said that he is liable to suit with all" its consequences, except the arrest of his person or exempted property. It would seem that the plainer and better rule would be to make no dis- tinction, and to allow the diplomatic officer his immu- nity from all suits, from whatever cause arising." § 349. With the consent of his government, an ambassador can, however, bring suit, and in such case is responsible for costs.^ He may even, with the consent of his master, waive his exemption from the local tribunals, and be made defendant in an action.' If personal injury or affront is done him, he should not seek redress ordinarily by a suit at law, but " de- inand that the state in which he is residing prosecute the wrong-doer as a public criminal." * ' Page 129. United States v, Benner, 1 Bald- ' Phillimore, vol. ii. p. 217. win, 240. > Phillimore, vol. ii. p. 180 ; * Vattel, quoted by Phillimore, vol. ii. 180. 430 INTERNATIONAL LAW. A minister cannot be forced to testify in a suit. This was admitted by the government of the United States in 1852, when, in the trial of one Herbert for murder, the Dutch minister, who was an important witness, declined to appear. His government was re- quested officially to instruct him to testify, but re- fused. In this case the minister offered to make a deposition on oath, with his sovereign's consent ; but this was not enough to satisfy the law. In countries where evidence so taken is sufficient, it is customary " for the minister of foreign affairs to apply to the diplomatic agent for the required deposition," which is communicated to the court in writing ; " and though the agent may, in strictness, refuse to make it himself, or allow persons under his control to make it, it is the usage not to take advantage of th§ right." '^ § 350. Another illustration of an ambassador's ex- territoriality is to be found in the status of his family. For example : children born to him during his resi- dence do not become citizens of the state where he resides, although that state may have a law providing that all children born of foreign parents within its limits are its citizens.^ These exemptions from local jurisdiction belong to the minister's family, his official suite, even to his domestic servants; but if these lat- ter commit crimes, it is simpler and wiser to hand them over to the local authorities for trial, on the ground of convenience, and because, in their menial capacity, they are not necessary to the proper con- duct of the business of the embassy. § 351. Since the ambassador is removed from the ■* Hall, International Law, page * Inglis ». Trustees Sailors' Snug 163, Harbor, 3 Peters, 155. THE EIGHT OP EMBASSY. 431 jurisdiction of the state where he is resident, it fol- lows that he remains under the jurisdiction of his own state, as well as his family and suite, in status and legal capacity. Has the minister the right to exercise jurisdiction oyer his suite ? So far as criminal jurisdiction is con- cerned, it is certainly not in accordance with modern usage that he should do so. He should rather gather evidence, prepare the case, and send the criminal home for trial. In civil matters he has a wider juris- diction. He may, if authorized by the laws of his own country, legalize wills and contracts, even that of marriage, authenticate documents, and perform other services for his own suite, in accordance with the forms of law prescribed in his own country. If also thereto authorized, he may even have con- tentious jurisdiction over his suite, but, as Calvo says,^ " within sufficiently narrow limits." Wheaton^ agrees to this, but Heflfter denies it.^ Woolsey admits his voluntary jurisdiction only, and Bluntschli * thinks it unusual, unless by the consent both of the state which sends and that which receives him, on the ground that his exterritoriality implies exemption from the foreign jurisdiction, not the assumption of that of his own state. § 352. In Oriental States. In certain Oriental and African states, by treaty arrangement, resident min- isters may have a much more extensive jurisdiction, both civil and criminal, over their fellow countrymen. Thus it is agreed in Article IV. of the Treaty of 1830, between the United States and the Ottoman Porte, that " citizens of the United States of America quietly 1 Vol. i. p. 669. » § 216. ' § 226 ; Twiss, § 202. ♦ Das Moderne Volkerrecht, § 216. 432 INTERNATIONAL LAW. pursuing their commerce, and not being charged or convicted with any crime or ofEence, shall not be mo- lested ; and even when they may have committed some offence they shall not be arrested and put in prison by the local authorities, but they shall be tried by their minister or consul, and punished according to their offence, following in this respect the usage observed towards other Pranks." ^ In the Treaty with China of 1844, Article XXI., is a similar provision : " Citizens of the United States, who may commit any crime in China, shall be subject to be tried and punished only by the consul or other public functionary of the United States thereto au- thorized, according to the laws of the United States." These and similar treaties confer upon the consuls and ministers of the United States jurisdiction over their own countrymen, as laid down and authorized by their own laws. This authority was given by the Act of Congress of 1860, " to carry into effect provisions of the treaties between the United States, China, Japan, Persia, Siam, and other countries, giving cer- tain judicial powers to ministers and consuls, or other functionaries of the United States in those countries." This act gives the diplomatic representatives of the United States original jurisdiction in " capital cases for murder or insurrection against the government of either of the countries hereinbefore mentioned, by citizens of the United States, or for offences against the public peace amounting to felony under the laws of the United States " only. Other criminal, and all civil cases, may come before them on appeal from the ^ In regard to this provision in accuracy of its translation and in- the treaty with Turkey, it is to be terpretation. observed that the Porte denies the THE RIGHT OF EMBASSY. .433 decision of the consul, who is chiefly intrusted with the administration of justice in all cases where one of his countrymen is interested.^ § 353. Liberty of Worship. Another instance of the exemption of diplomatic agents from the local jurisdiction is found in their freedom from the laws regulating religious worship. The necessity for this exemption is not now very apparent because. of the growth of religious liberty. But formerly, during the religious wars of the sixteenth century particularly, a Protestant envoy at a Eoman Catholic court was in danger of being forced to attend mass and to conform to the religious ordinances of the country. To avoid this danger, many treaties of that age were made which conceded the right of the minister resident in the one state, to establish the form of religious wor- ship of the other in his hotel. This privilege soon became an established usage apart from treaty. This liberty of worship, like other exemptions from the local law, was confined to the minister himself, to his family and his suite. Converts to his faith could not share his privilege. If his wife professed still a third faith, she had no separate liberty of worship. The service was to be conducted without ostentation, with no ringing of bells or outward display to attract at- tention. To-day, as a matter of comity, there is a substantial liberty of worship among civilized states, and everywhere a minister is allowed, if he choose, to establish a chapel where his own chosen form of wor- ship may be practised, and where his countrymen may attend service.^ § 354. Despatches and Despatch Bearers. In a pe- 1 U. S. Consular Regulations, pp. ^ Calvo, vol. i. p. 665 ; Dana's 481-500. See under head Consuls. Wheaton, § 248. 28 434 INTEENATIONAL LAW. culiar sense the inviolability of these is necessary to the proper conduct of the business of an embassy, and when properly identified by passports, such per- sons are allowed universally all the immunities en route of the minister himself, and such papers are as free from control as the archives of the embassy. § 355. These exemptions of person and property from the grasp of the local law make up the sum of the rights commonly recognized by international law, as growing out of the two principles of inviolability and exterritoriality as applied to a diplomatic agent. They are better settled, more accurately defined, now than formerly, yet some are still uncertain. Extrav- agant claims on the part of resident ambassadors are to be deprecated. The diplomatic character is never to be made a cloak for wrong doing. As a fit repre- sentative of the power which sends him, as a fit agent for the transaction of affairs smoothly, skilfully, suc- cessfully, he will cultivate friendly relations with the government to which he is accredited, with his fellow diplomats, with all those with whom he comes in contact, and avoid indiscretions, asperities in inter- course, whatever, iij short, would weaken his influ- ence and interfere with his success. For the object of an envoy's residence at a foreign court is not to maintain his sovereign's dignity, or minister to his pride, but to transact diplomatic business. This sug- gests our next topic. § 356. V. In what Manner Ambassadors transact their Business. All diplomatic ofl&cers are agents. Those of the higher classes are representatives of their sovereign or chief executive; they are his agents. Secretaries of legation represent their sec- retary of state, or minister of foreign affairs, and act THE EIGHT OF EMBASSY. 435 for him. To be entitled so to act, they need creden- tials, letters of credence, which state their name, rank, and official position, and bespeak for them the cus- tomary diplomatic privileges. These are addressed by the person whose representative they are to the corresponding person in the country to which they are sent, by sovereign to sovereign, or minister to minister. These letters, accompanied by a statement of the powers which are granted them, full or other- wise, must be delivered as soon as possible upon entry into the state to which they are accredited. The usual method consists in sending a copy to the min- ister of foreign afEairs, and requesting an audience with the executive at which the original will be pre- sented. Then follow visits of etiquette paid to the various members of the diplomatic corps, and which they should soon return. The actual business of di- plomacy is usually transacted through the minister of foreign affairs, not with the sovereign in person. In the United States foreign ministers deal with the Secretary of State, and never with the President, after their official introduction. § 357. Whatever may be the rule in this and other regards the minister should conform to it. Many questions of diplomatic rank and ceremonial, which formerly gave rise to serious difficulties, are now either outgrown or settled by established rule. Thus, now the precedence to which a minister is entitled is settled simply by the length of his residence, the oldest resident preceding the others of the same class at court ceremonies. These are matters which are comparatively insignificant, but which, if neglected, might impair a minister's usefulness. Particularly is this the case with us. For so large a part of our 436 INTERKATIONAL LAW. relatively unimportant diplomatic business is carried on directly between the Secretary of State and the offi- cials of the bureaus of foreign affairs, or else, as in mon- etary and trade congresses, through agents accredited for the purpose, that the cultivation of national good- will, with a general oversight of the interests of their countrymen, forms the greater part of what remains for our ministers to do. And for this reason should the greater stress be laid upon their personal qualifi- cations and character, that they may be personally acceptable to the states in which they are to reside. § 358. From motives of convenience and economy, two states, usually neighboring as well as neighborly, may unite in maintaining a single representative at some larger court, which in turn intrusts its business with both countries to a single minister. This prac- tice is, of course, not usual, but has obtained amongst some of the South American republics. Of late a single minister has been accredited by the United States to Greece, Roumania, and Servia. § 359. The class or rank of the agent is usually made to depend upon usage and reciprocity. If a Secretary of legation is named to a certain court in- stead of the usual minister resident, that court would follow the example set, and withdraw its minister in turn. Such an act Would be a breach of custom which should be accompanied by friendly assurances, but not a breach of obligation, or even of comity, un- less intended as an affront. The number of aitachis to each embassy will de- pend upon the importance and extent of work re- quired of it, and upon the organization and rules of its home office. A well regulated diplomatic service will have its staff of young secretaries, who are con- THE EIGHT OF EMBASSY. 437 stantly in training, under the ambassador's eye, for the more responsible positions which they in time will reach. § 360. VI. How arid when their Functions end. The mission of a diplomatic agent may terminate in a variety of ways. (a.) He may have been sent to perform some defi- nite act, to attend a congress, negotiate a treaty, rep- resent his sovereign at some official ceremonial. The accomplishment of this purpose of itself works his recall. (6.) He may be recalled for private or state rea- sons ; to be sent elsewhere ; to be promoted ; as an expression of lack of confidence in himself ; as a mark of resentment and hostility to the state in which he was resident. The strained relations which gradually grow into war, are often indicated by the breaking off of diplomatic intercourse. (c. ) He may be dismissed forcibly by the state to which he was accredited, if he should either so threaten its safety and peace by his intrigues as to make it a case of state necessity and self-defence, or if he conduct himself so illegally and improperly as to become a public scandal, and his own government fails to recall him. § 361. (d.) In case of the death of either the sov- ereign who sends or the one who receives him, the mission of a minister is ended, and this is true even if he be reappointed to the same post. The reason for this is obvious. He is the representative of an individual, namely, his sovereign in person and in affairs. The death of that individual removes from him the representative character, until some other person is set up whom he can represent. And like- 438 INTERNATIONAL LAW. wise being accredited to an individual, the death of that individual renaoves the person with whom he was sent to deal. In a federal government this is not necessary. The death of the executive head of the United States, for example, works no ipso facto termination of the func- tions of our ministers. Nor do the ministers resident in Washington require new credentials.^ Again, if his own country or that to which he is 'accredited should suffer a change in its form of gov- ernment, it is customary to consider his functions ended pending the issue of the situation, even though the recognition of the legality and stability of the new constitution may be straightway followed by his reappointment. Calvo^ mentions as his second rea- son for the termination of a mission," " the death of the sovereign who has accredited the agent, or a radical change in the form of his government," and goes on to say : " The accredited agent can indeed be. authorized to continue in the exercise of his func- tions, but he most assuredly needs new letters of cre- dence to define and establish his position. It is by this fact relating to their representative character that ministers are always distinguishable from consuls." M. Calvo was himself in the diplomatic service in South America, and should be well informed as to the diplomatic usages attendant upon a change of con- stitution or a revohition. § 362. But other authors hold that, after a change of government, a mission may remain simply in sus- pense, although custopi would demand*that it be con- sidered terminated. Phillimore^ gives as the rule : 1 Dana's Wheaton, note 136. ' « Vol. ii. § 240. = Vol. i. §§ 466, 470. THE RIGHT OF EMBASSY. 439 "The mission is ended by the death, abdication, or dethronement of the sovereign accrediting the am- bassador, or by the death of the sovereign to whom he is accredited. In both these cases, by interna- tional usage and practice, the ambassador must be accredited anew by his sovereign ; though in cases in which it is known that his mission is only suspended, and that he will be re-accredited, it is usual to con- tinue to transact business, sub spe rati, with him as ambassador." And Hall-^ writes much to the same purport: " There is some difference of opinion as to whether the death of a sovereign to whom an ambassador or minister is accredited in strictness necessitates a fresh letter of credence, but it is at least the common habit to furnish him with a new one ; though the practice is otherwise when the form of government is repub- lican. A like difference of opinion exists as to the consequences of a change of government through rev- olution, it being laid down, on one hand, that the re- lations between the state represented by a minister or other diplomatic agent and the new government may be regarded as informal or ofl&cial at the choice of the parties ; and, on the other, that a new letter of credence is hot only necessary, but that the neces- sity is one of the distinctive marks separating the posij tion of a diplomatist from that of a consul. Practice appears to be more in favor of the latter view." §.363. I think it may fairly be said that reason, as well as practice, favors the latter view. For although every state must decide its form of government for itself, yet after every violent change in the constitu- tion of a state, its stability and legality are, so to 1 P. 277. 440 INTEEKATIOifAL LAW. speak, on trial. Other states are compelled to ask whether the new government is capable of fulfilling its obligations before entering into relations with it. So that the sam^ rules govern the question of diplo- matic intercourse with a new state, or an old state under a new government, which govern its recogni- tion. How, then, could a mission to the old state be suspended, or be otherwise than terminated, when, for an appreciable moment, there is question whether any mission will be received from, or sent to, the new power. § 364. (e.) The death of the ambassador, of course, ends his mission, since the credentials are given to him as an individual. It may be noted here that, in case of the death of an ambassador, his family for a limited time continue to enjoy diplomatic immuni- ties, although these belonged to them before, simply as dependents upon the person privileged.^ Philli- more adds : ^ " When the death of the ambassador himself ends his mission, the first step that the secre- tary of legation — or, in his default, some minister of an allied power — takes, is to affix a seal upon his ofiicial papers, and, if necessary, upon his movables. It is only a case of necessity that warrants the inter- ference of the local authority. His corpse is entitled to a decent burial at the place of his death, or it may be- removed for the purpose of interment elsewhere, and it is exempted from any mortuary dues usually payable in the country. All questions relating to his movable property, whether he died testate or intes- tate, are, by a long-established rule of international comity, determinable only by the laws of his domicil or of his own country. ... It is usual, also, to con- 1 Dana's Wheaton, § 251. 2 Vol. ii. § 242. THE EIGHT OF EMBASSY. 441 tinue to the widow, family, and suite of the deceased, the privileges and immunities incident to his office, for such limited period as may reasonably suffice to enable them to leave the country." § 365. (/.) Wheaton mentions still another instance of the termination of a mission, in case the " minister, on account of any violation of the law of nations, or any important incident in the course of his negotia- tions, assumes on himself the responsibility of declar- ing his mission terminated." ^ But to-day, when tele- graphic communication is so universal, no case is likely to occur so urgent as to demand a minister's retirement without consulting the home government, and receiving from it his letter of recall. § 366. Method of Taking Leave. In all cases of recall, the minister will ask an audience and pre- sent his letter of recall. Complimentary visits and speeches are exchanged, and the same forms and ceremonies employed as upon his reception. His person and property are as free from local jurisdic- tion (unless he lingers unduly) as upon his entrance into the country. This is true even in case war has broken out between it and his own. It was a barbarous practice which the Ottoman Empire formerly employed of clapping into prison the diplomatic agents of a country with which trouble was brewing, to be held during the hostilities. Early in this century the Porte officially declared to foreign powers that the Seven Towers no longer existed. § 367. In closing the examination of this subject, it may be well to insert the provisions of our Consti- tution and statutes which relate to foreign diplomatic agents. 1 Dana's Wheaton, § 250, p. 326. 442 INTEEKATIONAI. LAW. By Article III. §§ 1, 2, of the Constitution of the United States, the Supreme Court was given original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, in these terms : — " § 1. The judicial power oi the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. . . . " § 2. The judicial power shall extend ... to all cases affecting ambassadors, other public ministers, and consuls. ... In all cases affecting ambassadors, other public ministers, and consuls, . . . the Supreme Court shall have original jurisdiction." ^ § 368. By the Statute of 30th April, 1790, it was enacted that, "If any writ or process shall at any time hereafter be sued forth, or prosecuted by any person or persons in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minis- ter of any foreign prince or state authorized and re- ceived as such by the President of the United States, or any domestic, or domestic servant of any such am- bassador, or other public minister, may be arrested or imprisoned, or his or their goods or chattels be dis- trained, seized, or attached, such writ or process shall be deemed and adjudged to be utterly null and void to all intents, construction, and purposes whatsoever," with penalty of fine at discretion, and imprisonment not to exceed three years, for violation of the law of nations. § 369. In the case of Holbrook, Nelson & Co. v. 1 The federal courts have juris- ministers, although they may not diction o£ all suits affecting public be parties to the record. CONSULS. 443 Henderson/ it was held that this Act of 1790 was not necessary or intended to confer privileges, or intended to limit their extent ; its object was to enforce the privileges of ambassadors, and to punish any viola- tions thereof. In the United States v. Ortega,^ it was held that an indictment against a private person for an assault upon an ambassador or public minister is not a case affecting such minister, "but a public prosecution . . . for the purpose of vindicating the law of nations and that of the United States." For judicial decisions upon questions arising under this clause of the Constitution, and under the Act of 1790, I refer to the cases cited under head of " For- eign Ministers " in Brightley's Digest. CONSULS. § 370. The second general topic under the head of the right of embassy is, " the right to send and re- ceive commercial agents or consuls." This may be considered under several heads. (1.) The nature and international status of the con- sular office. (2.) The different classes of consuls. (3.) The rights and duties of consuls. (4.) Consuls and consular courts in Oriental coun- tries. (5.) The status of foreign consuls in the United States by. our statute law. § 371. (1.) The Nature and International Status of the Consular Office. The Consuls of the Middle Ages. These wete of two principal kinds: those who, under the title of 1 4 Sandford N. Y. S. C. Kep. 619. " 11 Wheaton, 467. 444 INTEENATIONAL LAW. Juges Consuls, presided as judges or arbitrators over the tribunals of their native citj; and those others who, residing in a foreign city or state, there watched over the interests of their countrymen, deciding their disputes, protecting their commerce, and maintaining a jurisdiction independent of the local law. When wars were frequent, and the property rights of neu- trals uncertain, merchants resident in a foreign coun- try required for the prosecution of their trade a place of safe deposit for merchandise, such as their consul's warehouse afforded. As trade grew along the Medi- terranean and Baltic, the institution of consulates was extended ; foreign merchants dwelt together in a cer- tain quarter of the town, and were subject to the exclusive jurisdiction and authority of their consuls, " who administered justice to their fellow-countrymen according to their national laws, and maintained the privileges conceded to them in all matters, especially as to the use of the weights, measures, and coins of their respective countries." * But when resident ambassadors began to be main- tained, the office of the consul lost much of its dig- nity and privilege, and he became gradually what he now is, simply a commercial agent of his govern- ' ment. § 372. As such he has no representative character. He carries no letter of credence, but simply a com- mission which authorizes him to perform the duties of his office, when permitted by the country in which he is to reside. This permission, obtained in ex- change for his commission, through the application of his resident minister, is called an exequatur. This grants him the same rights and privileges which his 1 Phillimore, ii. pp. 259, 260, 261. CONSULS. ' 445 predecessor enjoyed, and which, as will be presently described, are determined by usage and treaty agree- ment. The granting and the revoking of an exequatur are entirely within the control of the state to which a consul has made application. It is denied to an applicant with much greater freedom than is the case with diplomatic agents, though, of course, this would hardly take place in sheer wantonness. Example : In 1869 Major Haggerty, a Fenian, was sent by the United States to Glasgow as consul. His antecedents were objectionable to the British government, and it accordingly declined to receive him. In this action our government acquiesced. And the exequatur is recalled from a consul enjoy- ing its exercise, at any moment, for misconduct or its abusive use. Thus, in 1856, three British consuls were discovered to be aiding in the enlistment of men for the Crimean War in the United States ; their exequa- turs were forthwith revoked. Likewise in 1797, when certain French consuls in this country set up prize courts and attempted to con- demn prizes brought in by, French privateers, their acts (in glaring defiance of the sovereignty of the United States) were at once stopped by the threat of a revocation of their exequaturs. § 373. Whether a consul shall be himself a native of the state which he serves, is immaterial in the eye of international law ; it* depends upon the internal regulations of that state. He may even be a native of the state where he resides, in fact this is often the case where the trade interests of a state are small. Thus in the Levant it will often happen that the United States consul will be a Greek or Armenian 446 INTERNATIONAL LAW. merchant of the better sort, acquainted from child- hood with the half dozen languages in which com- mercial dealings are there carried on. Unlike a diplomatic agent, a consul may, and often does, engage in trade in the town where his duties lie. Some countries may deny this right to their consuls ; that, however, is a matter of policy and internal law. § 374. Not being accredited to any personage, sov- ereign, or minister of state, consuls need no fresh forms or commissions upon the death of either their own sovereign or the one in whose territory they are resident. The British consuls resident in the South- ern States continued to care for the property and trade interests of their countrymen during the War of the Rebellion. § 375. Although not enjoying a representative character or diplomatic privileges, consuls may be charged by their governments with certain diplo- matic duties, either permanent or occasional. The semi-diplomatic status of our consuls in Tripoli, Tunis, and Egypt, has been already noticed, and in the Ori- ent, by treaty, the consuls of civilized states often are granted extensive diplomatic privileges, and a wider jurisdiction over their countrymen than ministers res- ident in civilized countries enjoy. But, besides this, convenience may require that a consul shall enter into political relations with the government of the state where he is resident, m lieu, perhaps, of any diplomatic agent on the spot, and he may be author- ized ad hoc. This is contended to be within the province of ,a state, as Lord Russell asserted in 1860, in the " affair Canstatt " against the Paraguayan gov- ernment. "As to the assertions of M. Calvo, as to CONSULS. 447 the incompetence of Mr. Henderson to discuss a dip- lomatic matter with the government of Paraguay," he said,' " the only observation to be made is, that Her Majesty's government believes that it has an un- doubted right to choose its own organs of communi- cation with other governments, and that, lacking a British minister accredited to Paraguay, the British consul was the sole person proper to interfere in the matter of Mr. Canstatt in the name of the British government." ^ § 376. (2.) The different Classes of Consuls. These are not laid down by any international agreement, but depend upon the regulations of each state. In general these three classes exist : consuls-general, con- suls, vice-consuls and consular or commercial agents.^ The United States consular regulations increase' the number of classes somewhat by a different subdivis- ion, but the division into classes matters little. The consuls-general are of course the heads of the con- sular service established in an entire country or de- pendency, as Great Britain, Cuba, Egypt. By the "United States Consular Regulations," § 284, other consular ofl&cers, " residing within the jurisdiction of a consul-general, are usually required to transmit their official correspondence and reports through him." But, nevertheless, in the consular service of this coun- try as well as of others, there is no real dependence of the consuls upon their consul-general, they being subordinated, to him only in a very limited degree, being rather watched over than directed by him, often reporting directly to their home minister and not through the consul-general. In fact, the distinc- tion between the two is sometimes merely honorary and not practical.^ 1 Calvo, i. p. 587. ' Calvo, i. 588. s Calvo, i. 589. 448 INTERNATIONAL LAW. " Consuls-general are expected, when requested by a consular officer, to give their advice and counsel to him in all cases of difficulty, and whenever the occa- sion may justify it, upon any subject affecting the in- terests of their own government or their country- men." ^ A consul-general may have laid upon him the duty of recommending consular agents, if needed (as is the custom in this country), and is expected to maintain a general oversight over the working of the various consulates under his jurisdiction. In certain countries, namely, Egypt, Tunis, Trip- oli, and Tangier, the consul-general of the first named, the consuls of the others, by our usage have a semi- diplomatic character, and are provided with special letters of credence. In certain large colonies and de- pendencies, like Australia, Cuba, Canada, the office of the consul-general may have also a special significance and importance. Consuls-general are not usually al- lowed to trade. § 377. Consuls. These, with the rights and duties pertaining to them, will be discussed under the third division of our topic. They, like the consuls-general, in the United States are appointed by the President by and with the advice of the Senate. Each consul has his own independent district, and probably his own set of rules and his own category of duties. For in each country, if not in each town, a consular treaty may differently define the consular office. § 378. Vice-Consuls and Consular or Commercial Agents. A vice-consular officer is simply the tem- porary substitute of his principal, and usually nomi- nated by him. In the United States a distinction is made between commercial and consular agent. The > U. S. Con. Reg. § 285. CONSULS. 449 first is an agent of the executive, sent abroad for the promotion of commercial interests not requiring an exequatur, sometimes acting secretly. They may thus be useful in dealings with a de facto authority whose recognition is not desirable. The second are defined to be "consular ofiicers, subordinate to full, principal, and permanent consular ofl&cers, exercising powers and performing duties within the limits of consulates ... at ports or places different from those at which such principals respec- tively reside." ^ This definition from our own con- sular regulations may serve as a fair explanation of the class as generally employed. §379. (3.) The Rights and Duties of Consuls. Ex- cept in Oriental countries, as is presently to be noted, consuls have no peculiar privileges or immunities, but are, in nearly all respects, on the same footing with private citizens. Their property is taxable ; they are subject in person and property to the jurisdiction of their place of residence ; their consulate has no pe- culiar privileges, save that the papers of the office should be inviolable, and this is not always granted, several cases being recorded where the official papers of the consulate have been seized to be sold for the consul's debt; they have no real jurisdiction over their fellow-countrymen. If natives of the countries where they reside, they may even have troops quar- tered upon them. They are, it is true, entitled to display the flag and arms of their country to mark out the consulate, but have no right to other forms of ceremonial. In short, they have only that power which is necessary for the discharge of their duties, and' no especial honors or privileges, save that insults 1 U. S. Con. Reg. § 315. 29 450 INTERNATIONAL LAW. or interference directed against them would be a proof of an unfriendly disposition on the part of the country permitting them. If any special privileges are desired, they should be secured by treaty. Con- sular treaties are one of the earliest forms of contract which an old state will naturally make with a new one, and a series of such treaties will reflect the changing policy of a state in respect to its consular arrangements. § 380. Thus, the consular convention of 1881, be- tween the United States and the kingdom of Kou- mania, provides for the mutual reception of consular officers on the footing of the most favored nation ; for their freedom from arrest except in case of crime ; for exemption from military service and billetings ; also from taxation, unless they have property engaged in trade or real estate ; for testifying before the courts ; for the inviolability of the consular offices and papers, and the other usual arrangements included in such treaties. This treaty was negotiated by Mr. Eugene Schuyler, charg^ d'affaires and consul-general, which shows how a consular and diplomatic character may unite in one person. § 381. Duties of Consuls. These depend upon usage, upon treaty arrangement, and upon the mu- nicipal law of the state which the consul serves. For a full description, I would refer the reader to the " United States Consular Regulations," third edition, 1868, and to the little hand-book of regulations pre- scribed for the use of the consular service of the United States, 1870, which enter minutely into the municipal statutes, the treaties, and the usage from which the rights and duties of our consuls are derived. It may be well here, however, to enumerate briefly CONSULS. 451 the principal duties of a consul, as prescribed by the general usage of states. These include the issuing of passports to travellers; the authentication of docu- ments, invoices, bills of lading, and so on ; the care of the effects of deceased countrymen ; the certifica- tion of the facts of birth, marriage, and death ; ^ arbi- tration in disputes between countrymen, as in ques- tions of wages between masters and crews ; the relief of destitute seamen ; the care of shipwrecked prop- erty ; the general control of the shipping of their country according to its municipal laws; a general examination of and report upon their country's trade, with suggestions for its increase ; and, lastly, a con- stant watchfulness over the rights and interests of their countrymen, travelling or residing within their district, to insure their fair and just treatment, even. if criminals, at the hands of the foreign government.'^ § 382. (4.) Rights and Duties of Consuls in Oriental Countries. The peculiar privileges of consular offi- cers in Oriental countries depend solely upon treaty agreement, and are never reciprocal. They are the necessary result of the rights of exterritoriality, which exempt their countrymen from the local law, on the ground that it does not furnish sufficient guarantee for the just treatment of their persons and property. Whenever, it is to be remarked, such guarantee is afforded, as by the transfer of the jurisdiction of, such country to a Christian state and to the control of Eu- ropean law, as was the case when France conquered Algiers, these international rights disappear. 1 By our law, a consul is not au- persons authorized to marry in the thorized to perform a marriage cer- District of Columbia, are valid as emony, except in a United States if solemnized in the United States, legation or under certain other con- ^ See Hall, p. 286; Bluntschli, ditions; but marriages celebrated §§250-267; Calvo, i. pp. 615, 616. in the presence of a consul, between 452 INTEEKATIONAL LAW. Foreigners in enjoyment of these exterritorial priv- ileges, being exempt from the native law, are put under the control of their own consular officers and consular courts, for it would plainly be contrary to public policy that they should be outside of the law altogether. These consular courts may be variously constituted, as provided by the laws of each couhtry adopting them. I give the treaty provisions of the United States with Japan, and the United States stat- utes bearing on the subject, as illustrations of the working of these extra-territorial courts under the consular jurisdiction. § 383. By Article IV. Treaty of 1857, between Japan and the United States, " Americans committing offences in Japan shall be tried by the American con- sul-general, or consul, and shall be punished accord- ing to American laws. Japanese committing offences against Americans shall be tried by the Japanese au- thorities, and punished according to Japanese laws." Thus, where the two nationalities are interested, the case is tried in the court of the defendant. If both parties are Americans, the case, of course, is tried by the American consul alone. If the parties are, one an American, the other a native of some other for- eign state, the case is tried in accordance with the special rules agreed upon by the United States and that state. In Article VI. Treaty of 1858, these provisions are renewed, with the addition of the proviso that " the consular courts shall be open to Japanese creditors, to enable them to recover their just claims against American citizens," and vice versa. § 384. The statutes bearing on the subject are the acts of August 11, 1848, and June 22, 1850. The ju- CONSULS. 453 risdiction conferred upon our diplomatic and consular officers by these acts is to be exercised in conformity " with the laws of the United States ; with the com- mon law, including equity and admiralty ; and with decrees and regulations, having the force of law, made by the ministers of the United States in each country respectively." Consuls are given, by these acts, exclusive jurisdiction in the minor criminal cases, and in civil cases where the damage demanded is not over five hundred dollars. In graver cases, consuls may summon associates from a prepared list of repu- table residents of the same nationality. Provision is made for appeals to the minister, and to the Circuit Court of California. In capital cases, the verdict must be given by four associates as well as the consul, and, to convict, must be approved by the minister. Jails are established and marshals appointed. It is fair to say that great fault has been found with the admin- istration of justice under this system, in the case of the United States, and that attempts are being made from time to time to alter and improve it. For a full description of our consular judicial service, see the " United States Consular Regulations," already re- ferred to. A form of mixed courts established in Egypt may here be alluded to. This is composed of two bodies : a court of first instance, composed of na- tives and foreigners; and a court of appeal, composed of six European and four native judges, — the Eu- ropeans representing the principal states trading in Egypt. § 385. (5.) The Status of Foreign Consuls residing in the United States. By the third article of the Con- stitution, section two, the Supreme and Circuit Courts have original jurisdiction in all cases affecting foreign consuls. 454 INTERNATIONAL LAW. No suit can be brought against a foreign consul in a state court. He may, however, enter a state court as plaintiff, retaining the right of appeal to the United States courts at any stage of the proceedings. This exemption from the jurisdiction of the state courts is not a part of the international law, but rests upon our Judiciary Act of 1789.^ A foreign consul may defend the property, rights of his countrymen before our courts.^ Where a for- eign consul is sued jointly. with others, his co-defend- ants are brought within the jurisdiction of the federal courts by implication. This includes foreign consuls who are also citizens of the United States.^ A conflict between our Constitution and the Treaty with France of 1853 occurred in the case of M. Dil- lon, at San Francisco. The Constitution grants every defendant in a criminal suit compulsory process in obtaining witnesses, while the treaty exempts French consuls from testifying before our courts. After cor- respondence, French consuls were directed to obey subpoenas in.future. Since then our consular treaties have endeavored to obtain the right to summon for- eign consuls as witnesses in similar cases. 1 Valarino v. Thompson, 3 Sel- ^ Kent, i. pp. 42, 43. den (7 N. Y.), 576; United States » Halleck, i. p. 323. V. Kivara, 2 Dall. 297; Sagony v. Wissman, 2 Benedict, 240. IIirDEX. The references are to page not to section. ACCESSION, a mode of original acquisition under the Roman law . .114 its methods . : . . 114 by alluvial deposits known to international law . . .115 ACQUISITION, original and deriTative 93 its methods 93 of territory by marriage 137 of territory by intestate succession 138 of territory derivative 131 of territory: its two methods in municipal law . . . 131 of territory by will ; of historical interest only . . . 138 of territory by gift, exchange, cession 139 of rights (Jura) by a state 143 ACT OP CONGRESS, of 1860, to make effective treaties of the United States with China, Japan, Turkey, etc 432 ADMIRALTY COURTS, of Great Britain, how constituted 39 ■ of Great Britain during the Napoleonic wars ... 40 of Great Britain, value of its decisions .... 40 of the United States, how constituted 41 ALGIERS, its international status 66 ALLEGIANCE, its indelibility claimed 251, 258 ALLIANCES, offensive and defensive 382 what is a defensive aUiance ? ...... 383 ALTERNAT, how used and why 319 456 INDEX. AMBASSADORS, exempt from the territorial law 208 See Diplomatic Agents. in Boman Empire ; in feudal times 407 resident, established after Treaty of Westphalia, 1648 . 407 AUSTIN, law of nations not positive law 21 law of nations a moral system 22 AUSTRIA, how united with Hungary 61 BALTIC SEA, its control and navigation, by treaty 170 BARBAROUS TRIBES, as subjects of international law 57 in newly discovered territory, how treated . . . 103 BARBARY STATES, of North Africa, how they grew up into statehood . . 62 BEDOUIN TRIBES, lack what of forming a state . . . . . . 52 BELGIUM, how established and protected 64 BELLIGERENCY, rules governing, recognition of 280-295 . See Recognition of Belligerency, BENEFICIAL USE, requisite to acquisition of territory .... 101, 102 definition of 102 BIBLIOGRAPHY, of international law 44 BLACK SEA, neutralized by Treaty of Paris, 1856 56 its control and navigation by treaty 170 BLUNTSCHLI, cited 431 BOMBAY, brought to England by queen of Charles II. as dowry - .138 BRAZIL, sovereignty of, violated by a United States man-of-war . 179 BURKE, on prescription under the law of nations . . . .122 BYNKERSHOEK, treatise " Quaestiones Juris Publici " . . . .42 quotes Grotius on effect of changes of constitution . . 71 cited 333 INDEX. 457 CALVO, cited 431,438 CANADA, marauders pursued into, in 1864 90 CAPITULATIONS, do they need ratification 7 . , . . ' . , . 336 CAPTURES, within neutral waters, a violation of sovereignty . .179, 180 CAROLINE, afEair of The, 1838 90 CEREMONIAL, of states; its importance; is a mark of the equality of states 313 CESSION, of territory; is tradition necessary to make it valid . 139,140 CHARGE D'AFFAIRES, to whom and by whom accredited 410 CHINA 58 CITIZENS, who are citizens of a state ....... 204 may be native born or naturalized, a matter of municipal law 204 COASTING TRADE, of the United States, who may engage in it . . . 148 COLUMBIA RIVER, rights to navigation of, by Great Britain . . . .164 COMITY OF STATES, to be applied to free navigation of rivers . . . .153 COMMERCE, a right of states 190 an institution of the natural law 191 its two elements, interchange and navigation . . .192 free to every state; cannot be forced upon a state . . 192 its nature and conditions 192 its liberty not absolute, because dependent upon another's will, as well as one's own 193 its limitations 193 its restrictions in the hands of a sovereign power ; the right to restrict it 194 restricted in the interests of a nation 195 may be restricted by duties on imposts . . . .196 may be restricted by the sovereign power of a state, but by no third power 196 its restraints a matter of treaty or internal law . . . 197 COMMERCIAL AGENTS, . in the United States consular service, definition of . . 449 458 INDEX. COMMERCIAL SHIPS, under whose jurisdiction are they 220 are they national territory 220 Hautefeuille's views false 220 views of Foelix and Ortolan 221 on the high sea, are under the jurisdiction of their own country 221 in foreign ports are under the jurisdiction of that port . 222 French usage differs from this : Ortolan .... 223 French usage extended by treaty 224 COMMISSION, definitely decides a ship's character 219 CONFEDERATE STATES OF AMERICA, after extinction of this government are its debts binding upon the United' States 76 their belligerency recognized 291 CONFEDERATION, of states 60, 61 examples of . . . . . . . . . 67, 68 CONFLICT OF LAWS ....... 23,207 CONGRESS OF VIENNA, in 1815, established three grades of diplomatic agents . 409 CONSENT OF NATIONS, necessary to give a human character to abstract dogmas of natural law 6 denied by some as necessary to binding force of interna- tional law 7 a source of international law .27 how shown 28 CONSTITUTION, a matter of free choice on the part of every state . . 85 of the United States, its provisions in regard to jurisdiction over foreign diplomatic agents 442 CONSULAR AGENTS, in the consular service of the United States, definition of . 449 CONSULAR COURTS, as established by the United States in Japan . . . 452 CONSULAR JUDICIAL SERVICE, of the United States; how arranged ..... 453 CONSULAR REGULATIONS, of the United States; hand-book of 450 CONSULAR TREATIES, example of 450 CONSULS, during the middle ages 443 nature of the consular office ...... 444 INDEX. 459 CONSULS. — Continued. their exequaturs may be revoked : examples . . . 445 their nationality unimportant 445 may engage in trade 446 not accredited agents ; have no representative character . 446 conducting diplomatic negotiations 446 the afEair Canstatt 447 different classes of 447 rights and duties of 449 have no special immunities 449 are entitled to display flag and arms 449 summary of their duties 451 in Oriental countries : their rights never reciprocal, but rest upon treaties 451 their status under the United States Constitution . . 453 Judiciary Act of 1789 . . . 454 case of M. Dillon 454 CONSULS-GENERAL, nature and duties of the oflSce 447 sometimes hold a diplomatic character .... 448 COUZA, Prince of Moldavia 65, 398 DANA, on recognition of belligerency, in note to ed. of Wheaton . 279 cited 299, 305 DANISH STRAITS, their international status 166 dues claimed for passage: settlement by treaty . .166, 377 DANUBE, its navigation regulated by Treaty of Paris ... 56, 163 DARDANELLES, their status by Treaty of Constantinople .... 54 put under authority of the Porte by Treaty of Dardanelles 55 their navigation regulated by treaty 167 DEBTS, of a state, when are they legitimate ? Vattel . . .261 of a state if lawfully contracted, a sacred obligation no mat. ter how expended or wasted 261 of a state contracted in violation of an internal law and by proper agent, and in proper form, are binding as regards foreigners 261 but perhaps not binding as regards natives .... 261 of a state, repudiation of 262 DENMARK, loses its German duchies, in violation of prescriptive right ' . 130 the Sound dues 377 460 INDEX. DIPLOMACY, of the United States, leading questions discussed by . . 37 its correspondence ; how available and important to the student 35 DIPLOMATIC AGENTS, 396 what communities may send and receive them . . 397,398 sending them a mark of independence .... 397 sending them not the privilege of colonies and dependencies 398 where does the right to send reside in federal unions . . 399 how is the right to send determined in case of rival govern- ments 399 rules for receiving, identical with rules for the recognition of their state 400 does their reception rest upon duty or comity . . . 401 in most instances entitled to be received .... 401 denial of a reception, is a denial of their country's equality 402 has a state the right of selection of the agent sent to it . 402 for what reasons may a state refuse to receive an individual as diplomatic agent 403-405 have they the right of permanent residence . . . 405 injury to commerce and civilization which a denial of recep- tion and residence would cause 406 classes into which they may be divided .... 406 ordinary and extraordinary: definitions .... 406 with limited or unlimited, powers 408 their rank and grade ; how and when established . 408 , 409 first class of, includes what 409 what classes of, are sent by United States . . . .410 second class of 410 their grades, reasons for this classification .... 411 rank sent depends upon reciprocity .... 412, 486 their peculiar international status ..... 413 their rights of inviolability and exterritoriality . . . 413 have no rights stricli juris in a country to which they are not accredited 421 not liable to capture on neutral ships . . . . .422 their relations with invaders of the state to which they are accredited; Hall's view 422 ^heir exemption from customs duties ..... 423 limitations of such exemption 424 former abuse of this privilege ...... 424 exemption of residence from local jurisdiction . . . 424 is it exempt from all local taxation ..... 425 opinions of Phillimore, Wheaton, Twiss .... 425 rule observed by the United States in regard to taxation of ambassador's hotel 426 INDEX. 461 Her- states DIPLOMATIC AGENTS.— Confe«erf. exemption of residence relates also to contents . exemption applies particularly to embassy arohiyes residence must not be used to harbor criminals . case of Gallatin's coachman case of French ambassador at Borne . their exemption from local jurisdiction case of the Czar's ambassador their immunities include what proper remedy for crimes committed by cases of M. Drouet : of Mr. Schenck . what real immunity from jurisdiction means can bring suit with consent of their governments can be made defendants in a suit how do they secure redress for injuries cannot be forced to testify. The Dutch minister in bert'a case status of their families and suites remain under jurisdiction of their own state have they jurisdiction over their suites opinions of Calvo, Woolsey, Bluntschli their jurisdiction over fellow-countrymen in Oriental freedom of worship : its history ; reasons for it inviolability of their despatches and despatch bearers ideal of the diplomatic character .... how they transact their business .... letters of credence precedence settled by length of residence . qualifications of ' accredited to two states and vice versa how their functions end : by accomplishment of object by recall, dismissal, death of own or other sovereign not so in federal government .... by change of constitution of either State opinions of Calvo, Phillimore, Hall privileges of ambassador's family in case of his death , how they take leave .... their status under Constitution and statutes of the United . States DIPLOMATIC IMMUNITIES, how to be explained; reason for them . when do they attach not superior to an individual's right of self-defence in a third state GyUenbourg's case; M. Sould's case. • 426 426 427 427 427 428 428 428 429 429 429 429 430 430 430 430 431 431 431 432 433 434 434 435 435 436 436 436 437 437 438 438 439 440 441 442 419 419 420 420 420 462 INBEX. DISCOVERY, a necessary step to occupation 96 must be of unappropriated territory to found valid claim . 96 must be made by a public officer 97 or if made by pfivate person, must be soon ratified and adopted by his government . . ; . . .97 illustrated by Oregon question 98 Vattel on discovery 98 of an island, founds claim to whole ..... 104 of a continent: interfering claims, how divided . , .105 DIVINE LAW, how transformed into positive human jurisprudence . . 6 the source of international jurisprudence; Phillimore . 9, 25 sole basis of international law; Hautefeuille . . .11 secondary rules of 13 DIX, in 1864, ordered marauders pursued into Canada . . 90 DOMICIL 200 DOMINION, over sea and land granted by Papal bulls . . ." .100 granted to Spain and Portugal, other states dissenting . 100 founded on discovery, use and settlement: how extensive is it 103 of a state over its waters . . . . . . . 147 DOMINIUM, by the Koman Law 92, 93 DROUET, M., case of 429 DUNKIRK, fortifications of, destroyed in 1713, by Treaty of Utrecht . 86 DUTIES, on imports, a restraint upon commerce .... 196 EGYPT, international status of; a tributary state mixed courts established in ... EMBASSY, best defined of rights under international law EMINENT DOMAIN, what is it; by what law is it to be exercised EQUALITY, of states; rights flowing from it . EXEQUATUR, of a consul ; may be revoked EXTERRITORIALITY, of ambassadors; of sovereigns of armies marching through another's territory 66 453 396 145 247 445 208 208 INDEX. 463 EXTERRITORIALITY. — Continued. of ships of war 209 of United States citizens in China 234 of diplomatic agents ; definition ; explanation in the Roman law 417 of diplomatic agents; what it implies 418 EXTRADITION, is it an international duty 235 authorities upon the subject . . . . . 236, 237 not obligatory except as based upon treaty .... 236 its Sonditions and limitations 237 treaties of; nature and usual provisions .... 238 Great Britain illiberal in regard to 239 treaty between Great Britain and the United States of 1842 239 treaty between France and the United States: 1843. 1845 . 240 treaty between Prussia and the United States, 1852 . . 240 treaties of the United States; crimes usually enumerated in; prevalent conditions and limitations of ... . 241 treaties ; lists of where to be found 242 EXTRA-TERRITORIAL CRIMES, the continental usage 206 FENIANS, their raids into Canada; if partially successful would they have been entitled to recognition 295 FISHERY, rights, when exclusive, when common to all . . . .181 controversy, Great Britain and the United States 181, 368, 370 FLORIDA, ceded by Spain to the United States, 1819 143 FOREIGNERS, domiciled and those transiently resident; distinction be- tween 250 FRANCE, intervention in Mexico . .' 75 an example of frequent change of constitutions ... 70 disavowing prior obligations after change of government . 74 system of jurisdiction over merchant vessels . . .378 GERMANIC CONFEDERATION, how and when formed ; its fate 68 GIBRALTAR, Straits of, not under control of any state .... 164 GREAT BRITAIN, the union of Scotland, Ireland, and England ... 61 its admiralty courts 39, 40 464 INDEX. GREAT BRITAIN. — Continued. protectorate over the Ionian Islands . . . . 55, 64 its connection with Hanover 62 claims Oregon 112 closes navigation of the St. Lawrence to the United States . 157 claims navigation of the Columbia 164 claims extensive control over coast sea . . . .173 fishery^ controversy 181, 369 attempts to suppress slave-trade 229 GREECE, independence established by battle of Navarino and inter- vention of Great Powers .... . . 55 how established and protected ...... 64 GREYTOWN, bombardment of 58 GROTIUS, cited 72, 151, 333 his treatise " De Jure Belli et Pacis " 42 on occupation of territory .99 " Mare Liberum " .183 GUARANTEES, various kinds of 381 examples of 382 GYLLENBOURG, case of 420 HAGGERTY, case of Major H 445 HALL, quoted 422, 439 HANOVER, united with Great Britain in a personal union . . .62 HAUTEFEUILLE, his tendency 45 on exterritoriality of men-of-war 214 cited 9, 14, 220, 352 HISTORY, importance of, in showing rules and precedents of interna- tional law, and their origin 34 HOVERING ACTS 179 HiJLSEMANN AFFAIR 308 HiJNNINGEN, its fortifications destroyed under Treaty of Paris, 1815 . 86 INDEPENDENCE, as a state attribute , . 49 and sovereignty the ultimate source of primary rights . . 84 INDEX. 465 INTERNATIONAL LAW, division of subject 1 definitions of. Vattel, Wheaton, Poison, PhiUimore, Haute- feuille 2 its nature and authority 3 is it law ; views of Grotius, Vattel, and others ... 4 its rules; how set forth 7 is the divine law, Vattel 's view ...... 8 founded in divine law, Hautefeuille's view ... .14 not properly called law 1 7 20 author's definition ' 23 properly so called when incorporated into municipal systems 23 its sources 25 its objects ; classification of . . . . . . .79 INTERNATIONAL MORALITY, a better title than international law . . . . .17 definition of • . . 24 INTERNATIONAL RIGHTS, in rem 80 in personam 80 INTERPRETATION, of treaties, Savigny 384 of defective laws, Savigny 389 INTERVENTION, a limitation upon the right of every state to choose its con- stitution .......... 8d a limitation upon the rights of a state which flow from inde- pendence 242 its legality and use not sufficiently ascertainable to be laid down in terms 243 examples of legal and illegal intervention .... 244 in Greece 56 author's view 244 belongs properly to domain of politics, not international law 244 list of instances of, given by PhiUimore .... 245 Phillimore's statement of lawful intervention . . . 245 reasons for 245 always involves force ........ 246 INVIOLABILITY, as applied. to diplomatic agents 414 what is it and what does it imply 414 of diplomatic agents in certain cases not allowable . .415 of diplomatic agents, breach of, demands reparation . . 416 of diplomatic agents, Phillimore's views .... 416 IONIAN ISLANDS, united and put under British protectorate ... 66, 64 / surrendered to Greece 65 30 466 INDEX. ITALY, a union of states ; how joined 62 united in violation of prescriptive right .... 129 JAPAN, not treated like an altogether civilized state by nations dealing with it 58 United States treaty withj in regard to consular jurisdiction . 452 JEFFERSON, not a believer in survival of obligations made by one genera^ tion for another 75 JUGBS CONSULS 444 JURISDICTION, of a state, what does it mean i 200 of a state may exist without ownership, but not vice versd . 200 in private municipal law 200 term as used in international law 201 of a state within the national territory 202 of a state is complete and full over all persons and property situated within its borders 202 of a state, things to which it may apply .... 203 of a state; persons to whom it may apply .... 203 of a state, courts exercising this, may be how guided . . 203 of a state over acts of its subjects arising outside its terri- tory 204 of a state over acts of its subjects committed abroad . . 205 of a state determined by its municipal law .... 205 custom in England and the United States .... 205 cf a state over commorant foreigners, not naturalized . . 206 such jurisdiction complete save over crimes committed out- side of the country 206 of a state over foreigners transiently within it . . . 206 exceptions to the rule 206 exceptions springing from comity 207 of a state outside of its own territory 207 of a Christian state over its subjects in the Orient . . 233 this privilege founded upon special treaty .... 233 reasons for it 233 manner of its exercise 234 See also Right of Embassy. JUS GENTIUM, as used by Roman jurists 5 identical with natural law , t 5 JUS TRANSITUS INNOXII 420 JUSTICIABLE, term used by French writers ; its meaning , . . ,201 INDEX. 467 KANE'S CASE, in 14 Howard, 103 ; methods of extradition allowed by Su- preme Court of the United States 241 KENT, on obligations of a state which survive a change of govern- ment 73 claims extensive sovereignty over its coast waters for the United States 184 cited ■ .... 236 "KING'S CHAMBERS," THE 178 KLUBER, opinion of, in regard to territorial control of straits and gulfs . • . . ' • . .168 cited 334, 363 LAW OF NATURE 5 LEGATES, are what 409 LETTERS OF CREDENCE .435 LEX CIVILIS 5 LOUISIANA, ceded by Spain to France 141 ceded by France to the United States 142 discussion of its western boundary . . . . • 107 as illustrating principles governing occupation . . . 107 MACKINTOSH, Sir James, system of universal morality .... 15 MARCY, diplomatic correspondence in cases of Koszta and Tousig 253, 254 MARINE ORDINANCES, witness the practice of nations in maritime law and warfare . 34 MARITIME CEREMONIAL, 319 determined by each state for its own coast, searports, etc. ; Martens and HefFter quoted 321 MARRIAGE, of independent sovereigns often fails to unite their posses- sions 138 MARSHALL, C. J., on exemption of ships of war from foreign jurisdiction . 209 MARTENS, DE, cited 107, 167, 174, 263, 335, 342, 363 MASON AND SLIDELL, case of 422 MAXIMILIAN, would his cession of territory as Emperor of Mexico bind his successor 137 468 INDEX. MEN-OF-WAK, exempt from foreign jurisdiction abroad .... 209 right to inquire into legality of their commission . . . 209 right of a state to exclude foreign men-of-war affirmed 215, 217 if admitted into a foreign port, have the right of exemption from its jurisdiction . 216 crimes on board of, when in a foreign port how and where justiciable 216 in a foreign port, their crew ashore, subject to local juris- diction 217 their boats, tenders, etc., share their exemption from local jurisdiction 217 this exemption not shared by prizes illegally captured . .217 in a foreign port should conform to its regulations . . 218 how is their character established .... 218, 220 their commission legitimatized by recognition of their coun- try's belligerency 218 MEXICO, ' losing Texas and California 70 intervention in, by France 75 recognition of 311 MINISTERS, plenipotentiary 410 resident 410 See Diplomatic Agents. MISSISSIPPI, its free navigation, discussion of between Spain and the United States 154 opened to the United States 157 MIXED COURTS, in Egypt, how constituted 453 MOLDAVIA, provisions of Treaty of Bucharest in regard to . . .55 its status under Treaty of Paris 56, 65 MONROE DOCTRINE 59 MOROCCO, its international status 66 MUNICIPAL LAW, classification of, used also in international law . . .79 NATION, is what : is not synonymous with state .... 45 NATURALIZATION, no bar to punishment for antecedent crimes . . . 252 in its relation to military service in former home . • . 253 Koszta's case; Mr. Marcy's arguments . . . • 253 INDEX. 469 NATURALIZATION. — Continued. Tousig's case ; Marcy's position . . . . . .254 military service demanded from foreigners naturalized in the United States; author's position 257 Wheaton's opinion , _ 256 author's criticism of Wheaton 257 present treaty arrangement 258 Thrasher's case ; Mr. Webster's opinion . . .259 NAVIGATION, of lower stream; not strictly a right belonging to inhabitants of upper waters 153 of rivers ; rules laid down by Treaty of Vienna . . .162 NETHERLANDS, treatment of Confederate war-ships by, in 1861 . . . 218 NEUTRAL RIGHTS, how growing . jgj NORTHEASTERN BOUNDARY, question of, a question of the right of the United States to alienate state territory 133 n NUNCIOS, what are they ; how do they differ from legates . . 409 OBJECTS, of international law ; their classification ... 79 OCCUPATION, a mode of acquiring territory 94 principles governing 108 illustrated by Oregon question Ill OREGON QUESTION, illustrates claim to territory on ground of discovery . . 98 illustrates beneficial use, as necessary to acquisition of terri- tory 102 conventions concerning, as illustrating principles oE occupa- tion Ill claims of the United States to territory in Oregon founded on what .. . 112 British counter arguments . . . . . . .112 settled by treaties of Washington of 1846 and 1871 . . 114 ORTOLAN, cited .... 168,175,183,186,221,223,229,232 on exterritoriality of ships of war 214 on recognition o£ belligerency ...... 278 OTTOMAN EMPIRE, growth of international relations between it and Christian states S3 470 INDEX. PANAMA RAILROAD, 378 PHILLIMORE, definition of international law 2 value of his book 43 cited, 9, 46, 74, 88, 165, 183, 229, 231, 245, 298, 336, 345, 366,439 on extent of continent to be gained by discovery and use . 106 on prescription in international law 124 comments on navigation' of St. Lawrence . . . .161 on recognition of belligerency 277 on inviolability of diplomatic agents . . . . .416 PINHEIRO-FERREIRA, cited 359, 412 PIRACY, justiciable anywhere; why ....... 224 definition of 225 definition of by English and American courts . . . 226 not such when committed by a commissioned vessel of war . 226 how then punished 226 not such when committed by a ship commissioned by a state whose belligerency is recognized 227 distinction between piracy jure gentium and piracy by muni- cipal law 228 is the slave-trade piracy 229 PIRATES, lack what of forming a state 52 goods captured from, to be restored to former owners subject to salvage 233 PLENIPOTENTIARIES, meaning of term 408 POLITICS, rather than international law; the sphere of many state acts 59 POSSESSIO, in the Roman law 92 POSSESSION, legal possession necessary to establish national domain . 95 PRECEDENCE, among states enjoying royal honors 315 among states how formally settled 316 as laid down by Pope Julius II 317 no longer a burning question, but still deserving attention . 818 among states ; the present rule . . . . . .318 PRESCRIPTION, a method of original acquisition of territory.. . . .119 its nature and origin 119 at law ; how long is it 119 as applicable to international law 120 INDEX. 471 PRESCRIPTION. — Continued. to be valid, does it require a definite lapse of time . .120 is it recognized by international law 120 under the international law ; opinion of Vattel . . .121 of Burke . . .122 of Wheaton . . 123 of Phillimore . .124 the author's views; his criticism on the authorities cited . 126 indefiniteness of time necessary to give prescriptive right, fatal to prescription in international law . . . .127 not a rule recognized or obeyed in fact by the nations . .128 historical examples of its neglect 129 a wrong and dangerous principle likely to stir up rather than allay strife 131 PRIMARY RIGHTS, subdivisions of 82 PRIMITIVE LAW, how constituted . . ^11 what it authorizes 14 what it forbids 14 PRIVATE INTERNATIONAL LAW 23 PRIVATEERING, discouraged by municipal law; by treaties .... 231 PRIVATEERS, what are they 230 commissions to, issued to neutrals ..... 230 accepting commissions from both belligerents . . . 231 opinions of Phillimore 231 of Ortolan 232 accepting commissions from two allies, not piracy . . 232 PRIZE COURTS, their importance in determining questions of maritime law . 37 PROTECTED STATES 63 PROTECTION, of its citizens ; the right and duty of a state . . .247 of its citizens abroad, an international right .... 248 of its citizens by one state, a limitation upon the right of ju- risdiction of another 248 difficulty of application 248 does not mean protection from foreign processes of law if they are fairly applied 249 of resident foreigners; a duty 250 of naturalized citizens of the United States .... 251 questions arising with foreign states concerning protection of naturalized citizens of the United States .... 251 of its citizens by a state ; helping them collect debts from foreign states 260 472 INDEX. PUBLICISTS, » leading text- writers on international law PUFFENDOKF, treatise "De Jure Naturse et Gentium" 41, 44 . 42 RATIFICATION OF TREATIES, when necessary 328 its necessity 329 330 330 331 332 depends upon state law or constitution as to in the United States .... necessary if so specified in treaty unnecessary in certain cases if agent violates secret instructions opinions of Grotius, Bynkershoek, Vattel, Wheaton, Kliiber, De Martens, Phillimore 333-336 RECOGNITION, of a combatant's belligerency, gives his war ships a legiti- mate character 218 the right of 264 only necessary when a new state, or part or combination of states presents itself of a state is an admission of its independence may be c?e_/ac(o — tacit — or de Jure — formal of some sort must be made, or the political body demanding it must be treated as a body of outlaws or pirates . of a new body politic differs from recognitions of a new form of government in a state already existing of a state, is necessary in three cases . of a new title assumed by an existing ruler limitations to the necessity of such recognition of a new title : examples of new territory acquired examples of ' of portion of a state, revolting, and trying independence . , . of belligerency .... formal and absolute; this is a recognition and sovereignty not of belligerency . always in place after parent state has made if parent state refuses it, when is it justifiable involves no aid in war on the part of the recognizing state Phillimore's rule: (1.) hostilities must have stopped ; (2.) new state must be able to fulfil obligations, and under- take responsibilities examples of recognition of a new state, parent state object- ing: the Netherlands, Portugal, South American repub- lics, Texas 264 265 265 265 . 265 . 265 . 266 . 267 . 267 268-270 271, 272 to establish its 273, 274 275-295 of independence . 301 . 302 302, 305 304 305 It 306 INDEX. 473 RECOGNITION. — Continued. policy of United States in regard to : case of Hungary . 307 of Southern independence, was this at any time possible . 309 of new form of government in a state already existing . 310 examples: England, France, Mexico 311 should be accorded by the political department of a state . 312 RECOGNITION OF BELLIGERENCY, when lawful; what is implied in it 275 what does it do for each party .... 276, 280, 283 is a duty on the part of the neutral to itself . 276, 281 authorities on: Phillimore, Wheaton, Ortolan, Dana 277, 279 when justifiable ; Dana's tests 280 author's criticism of 284-287 author's rule 287 as practised by the United States 288 dictum of United States Supreme Court in regard to . 288, 289 of the Confederate States of America by France, Great Britain, the Netherlands, etc., was necessary and justi- fiable : review of facts and arguments . • . 290-294 in case of attempt at Irish independence .... 295 See Virtual Recognition 296-301 RENVOI, definition of 234, 235 upon what does its exercise depend : Ortolan . . . 235 RHINE, rules in regard to the navigation of, 1815 .... 163 RIGHTS, recognized by international law as remedial and primary . 81 flowing from sovereignty and independence of states . . 82 flowing from equality of states 83,247 riparian rights under Roman Law 115 of a stale to develop its resources 190 of embassy 396 seq. of a state to be recognized 264 RIVERS, and lakes as boundaries, how used 148 bordering two states, but owned by one .... 149 flowing from one state through another to the sea; right of inhabitants of upper waters to free navigation : Grotius, Vattel, Wheaton 151 historical discussion of free navigation of rivers . . 153-164 ROMAN LAW, on possession and dominion 92 on riparian rights 115 on interior waters of a state 148 474 INDEX. ROUMANIA, present international condition 66 consular convention with the United States .... 450 KOYAL HONORS, to what states do they belong; what do they imply . . 315 RUSSIA, relations with the Ottoman Porte ..... 54 SAINT LAWRENCE, its free navigation: discussion of 157 its free navigation granted in 1854 164 SALUTES, marks of respect, what they consist in 319 to be made under what circumstances .... 320 SANTISSIMA TRINIDAD, case of the 214, 217, 219 SAVIGNY, on the defects of international law . . . . . 20 on the interpretation of treaties 384-389 on the remedies for defective treaties 391 cited 393, 394 SCHELDT, its free navigation: a precedent for free navigation of the Mississippi 155 SCHBNCK, connection with the Emma Mine 429 SCHOONER EXCHANGE, V. McFadden: right to inquire into the legality of a man- of-war's commission 209 SELDEN, " Mare Clausum " 182 SEMI-CIVILIZED STATES, their international status 52 SERVIA, its status under Treaty of Paris, 1856 57 its present international condition 66 SETTLEMENT, must supplement discovery to fpund good claim to new ter- ritory .......... 99 of what kind necessary to acquisition of territory . . 101 SHIPS. See Commercial Ships i Men-of-war. SIAM, referred to 58 SLAVE-TRADE, is it piracy : Ortolan, Wheaton, Stowell, Phillimore . . 229 INDEX. 475 SLAVE-TRADE. — Continued. when made piracy by treaty and legislation, what is meant . 229 England's treaties to suppress 229 SOULE, case of . , . , . , 420 SOURCES, of international law 25 SOUTH AMERICAN RIVERS, opened to free navigation . , 164 SOVEREIGNS, exterritoriality of 208 SOVEREIGNTY, as a state attribute 49 of a state in relation to its own subjects .... 145 as affecting other peoples and states . . . . .146 of a state over its interior waters 147 of a state over straits 164,165 of states over enclosed seas . . . , . . .169 over portions of the sea, ports, and roadsteads . . 170,190 of a state forbids all hostilities and captures within its waters, when neutral . . . . . . .172 over gulfs and bays; headland question . .173, 174, 178 over wide gulfs and bays, German and French opinion^ . 1 75 over coast sea includes fishery rights . . . . . 1 75 of a state over its coast sea ; how measured . . .176 does it increase with greater range of projectiles . .177 what rights does it imply . .• . . . . .179 of a state over adjacent seas : English and Portuguese claims 182 of a state over the open sea 183 cannot be maintained over the open sea : Ortolan . . 186 over the open sea, physically impossible ; morally wrong . 188 STATES, theory of a republic of 6 what are they 45 as subjects of interHational law ...... 46 definition of, by Vattel, Phillimore, the author ... 46 essential attributes of 48 equality of 49 need a fixed locality, and a political organization . . 51 not mere communities of men . . . . . .52 their constitutions purely an internal question; exceptions to this 58 different kinds of 59 united under one sovereign government .... 60 unio realis of 60 made up of parts, thoroughly centralized . . . .62 476 INDEX. ST ATE S. — Continued. unio personalis ot, xmder a. single Bovereign . . , . ~62 protected, so as to lose separate personality .... 64 tributary to others: examples ...... 66 under a federal union; not thoroughly centralized . . 68 changes in; extinction of ; loss of apart . . . .69 undergoing change of constitution, do not lose their person- 70 73 ality nor get rid of prior obligations opinions of Vattel, Grotius, Tindal, Kent, Wheaton, Philli- more 72-74 when split into parts their prior obligations are ratably binding 76 preservation of . . 84, 85 their dominion over territory and property .... 84 their jurisdiction over persons and things 84 their right to determine their own constitution ... 85 their right of self preservation involves right to raise troops or take precautionary measures outside of their terri- tory 86, 87 transfer of territory of 132, 134, 198 their sovereignty and dominion ..... 145-147 their, ownership of land ... . ... 146 See Sovereignty of States. their right to acquire territory . . . . 137-139,198 their debts 261 .repudiation of their debts 262 their right to be recognized 264 recognition of 265-312 See Recognition of States. ceremonial of ' . . . . 313 precedence among 315-319 STATUTES OF THE UNITED STATES, to confer jurisdiction upon consular offices over American citizens in China, Japan, Turkey, etc. . . . ' . 453 STOWELL, Lord Stowell's dictum as to duty of a judge in prize courts 38 his character; Chief Justice Story's opinion of . . .40 cited 53, 94, 149-229 decision of what constitutes territory. The Anna . .116 on tradition of territory. The Fama 141 STRAITS, sovereignty over 164-168 SUMTER, Confederate cruiser ; arguments in regard to her character, with the Netherlands 219 INDEX. 477 SWISS CONFEDERATION, how formed; its characteristics 67 TERRITORIALITY, of crime ; the American principle . . . . • 205 TINDAL, on obligation of a state surviving a change of government . 73 TRANSFER OF TERRITORY, the right of transfer a question of public not of international law 132 can the United States alienate part of its territory belonging to an individual state 132 right of sovereign to make, is an internal question; his offer to do so is presumptive evidence of his right as against foreigners 134 by de facto government ; how far binding on its succes- sors 136 TREATIES, a source of international law 28 power of to propagate their provisions 30 certain important European treaties 33 principal treaties of the United States 34 are compacts between states which create rights and duties . 323 definition of . . . 324 between whom may they be concluded .... 324 made by members of a confederation, depend upon terms of union . . . , 325 to be valid must be made by supreme power in state and by the department indicated by its constitution . . . 326 usually made not by sovereigns but their agents . . .327 ratification of. See Ratification of Treaties. must they be written 337 consent to, must be positive and certain . . . .837 consent to, may be implied . . , . . . .337 consent to, must be mutual 339 consent to, must not be given through error or fraud : KlU- ber's opinion 339 consent to, must be free ....... 340 what sort of constraint invalidates a treaty .... 340 opinions of Kliiber and Martens 342 opinions of Heffter and Wheaton 344 opinion of Phillimore ........ 345 examples of proper and improper constraint . . . 346 which result from defeat in war are valid, whether the war be just or unjust 348 478 INDEX. TREATIES, — Continued. which destroy national life, not obligatory -when compelling force is removed 348 which bind parties to do unlawful acts, invalid . . . 349 impossible of execution, invalid ...... 349 which give one party unequal advantage, may be valid . 351 if detrimental to a state, do they bind subsequent genera- tions 352 See Jefferson. obligation of treaties : Hautefeuille's opinion . . 352-355 terminate — in default of a statement of duration in the text — by mutual consent . . .... 356 terminate upon the happening of an event which is to work its termination by the provisions of the treaty . . 356 terminate when their time limit expires . . . -357 may terminate when their object is accomplished . .357 terminate when their object becomes impossible . . . 358 may terminate if serious change occurs in condition of either party 358 e. g., of alliance may terminate if one party loses indepen- dence 358 or if applicable to a special form of government and that is changed 359 or if offensive and defensive alliances, and the aiding state needs its force at home 359 if perpetual in their terms, are not to be taken too literally . 359 opinion of M. Pinheiro-Ferreira on this point . . . 359 when broken by one party, not binding upon the other . 361 how affected by subsequent war between their parties . .361 which contemplate a state of war, operate during war . . 362 which cede territory or establish boundaries, not affected by war between their parties . 362 rights and duties conferred by 372 may confer privileges upon private citizens .... 372 bind legislative as well as executive departments . . .373 but if they need money vote to make them effective, legisla- ture may have practical veto 378 effect of such refusal to vote money called for by a treaty, upon it ......... . 374 made by the United States, are supreme law of the land . 874 various kinds of treaties 3 74 personal or real; equal or unequal 375 transitory or permanent . . . . . . .875 mixed treaties .......... 876 which create or confirm rights of dominion . . . .876 of cession 268, 376 IHDEX. 479 TREATIES. — Continued. fixing boundaries 376 which recognize territorial dominion over certain waters, as straits or sounds 377 which give foreign citizens property rights . . . .377 giving subjects of one state rights of navigation in another . 377 or of fishing in waters of another 378 which create or confirm rights of jurisdiction of Christian states with the Orient 378 of extradition 238-242,379 of commerce and navigation; their usual objects and con- tents 379, 380 neutralizing trade in war time 380 of peace 381 which recognize national independence and sovereignty . 381 of guarantee ; how do they differ from sovereignty . -381 of alliance 382 interpretation of 384 their defects, from indefiniteness or impropriety . . . 390 defects in ; how remedied 390 ambiguities in : Savigny • 392 their special intention should be regarded: Savigny . . 393 the results of diverse interpretations to be noticed : Savigny 393 improper expression in : Savigny 393 improper expressions : how rectified : Savigny . . . 394 TREATY, of Vienna, 1731 54 peace of Sistowa 1791 54 peace of Jassy, 1792 54 of Constantinople, 1809 54 of Bucharest, 1812 54 of Adrianople, 1829 55 of Unkiar-Skelessi, 1833 55 of London, 1840 55 of the Dardanelles, 1841 55 of Paris, 1856 56,65,163 of Washington, 1846 and 1871, settling Oregon question 114, 164 of Gaudaloupe Hidalgo, an example of territorial cession . 140 of St. Ildefonso, 1800 141 of San Lorenzo el Real, 1 795, opened the Mississippi free to the United States 157 of Vienna, 1815 ; provisions of treaties of Vienna, in regard to the navigation of European rivers .... 162 Reciprocity Treaty of 1854, in regard to the free navigation the River St. Lawrence 181 480 INDEX. TREATY. — Continued. reciprocity fishery Treaty of 1854 .... 181, 370 of 1783, between Great Britain and the United States 368, 377 of Ghent, 1814 368 of 1818, between Great Britain and the United States . 369 of 1 784, between Great Britain and the United States . 372 of Westphalia, 1648 407 of 1844, between China and the United States . . . 432 of 1830, between Turkey and the United States . . . 432 of 1857 and 1858, between Japan and the United States . 452 TRIBUTARY STATES 66 TRIPOLI, its international status . ... . . .66 TRUCES. nature of; do they need ratification 336 TUNIS, its international status 66 UNITED STATES OF AMERICA, how united 61 does its Constitution give the right to acquire territory . 133 if proper authorities make a treaty for transfer of territory, they cannot urge it to be unconstitutional to secure with- drawal from treaty, without violation of international law 135 power of central government in, to compel individual states to pay debts which they have repudiated . . . 262 VATTEL, on the law of nations .... ... .43 on state obligations after a change of constitution . . 72 cited 88, 98, 334 on use and settlement 100, 102 on prescription under the law of nations .... 121 VICE-CONSULS, temporary substitutes of consuls ...... 448 VIRTUAL RECOGNITION, its conditions and characteristics 296 commercial relations necessary to warrant it . . .297 made in the interest of the state according it . . .297 views of Phillimore; of Dana . . . . . 298, 299 under what circumstances it would have been warranted in case of the Southern Confederacy 301 See also Recognition. WALLACHIA, provisions of Treaty of Bucliarest in regard to . . .55 status under the Treaty of Paris . . . . 66, 65 INDEX. 481 WAR, effect of, upon treaties : Kluber . . . . , . ■ 363 opinion of United States Supreme Court .... 365 PMllimore 366 WHEATON, " Elements of International Law " 43 cited 2, 73, 229, 334 on prescription ^123 WOOLSEY, cited 44, 431 31 AN INTRODUCTION • To the Constitutional Law of the United States. Especially designed for Students, general and professional. By John Norton Pomeroy, LL. D. Author of "An Introduction to Municipal Law." Ninth edition, revised and en- larged, by Edmund H. Bennett, LL. D., Dean of the Boston University Law School. 8vo, law sheep. {In Press.) The third edition of this treatise was published in 1875. ^^ contained an Appendix o£ about thirty pages embracing an examination by the author of the decisions of the Supreme Court of the United States upon the great questions of Constitutional Law, up to that period, and this Appendix has How been incorporated into the original text. Since the issue of that edition many important cases have arisen, especially upon the recent Amendments to the Constitution, and have received the most elaborate examination in the highest tribunal of our land. This is especially true as to the Thir- teenth, Fourteenth, and Fifteenth Amendments, and as to the power of states to regulate commerce, or to impair the obligation of contracts. The recent Amendments are considered by the editor, and the results of their investigation before the Supreme Court, the additions upon the regulation of commerce by state legislation, the later adjudications upon the obligation of contracts, and the recent- decisions on the Legal Tender Acts, are fully stated. Other sections by the editor on several im- portant provisions of the Constitution may be found scattered through the book. It was foreign to the idea of the author to attempt to cite all the cases in the state courts which may have some bear- ing on the subject of Constitutional Law, and the editor has been governed by the same considerap tions. A new Index of Cases and Table of Contents have been 'prepared by Carter P. Pomeroy, Esq., of the California Bar. The leading purpose of this important work is to furnish for Colleges, Law Schools, and other higher seminaries, and for general readers, a work adapted to the wants of the time, and based upon the principles of construction established by the civil war and the political events which have fol- lowed it — and especially by the later amendments of the Constitution. As its name indicates it does not purport to be an absolutely exhaustive treatise, yet it is believed that all the purely consti- tutional questions which have at any time been passed upon by the highest national tribunal are dis- cussed and the results stated. The work is, therefore, adapted to use by members of the bar in their professional practice. An attempt has been made to construct a system of interpretation founded not upon theoretical 3x16. a priori spccvXaXions, hut xvpoTi. historical facts, which shall at the same time recognize and up- hold the Natiormlity and absolute Sovereignty of the United States and the Supremacy of its govern- ment, and maintain the Essential Existence and Rights of the several States as necessary elements of the political order created by the one People in the Constitution which they adopted. My opinion of the whole work is, in brief, that it is an excellent book, worthy of your character, written with great perspicuity and accuracy of style, full, clear, and precise, and admirably con- structed for the use of stmlents, general and professional. — Horace Binney LL. D., Philadelphia. The work, in my judgment, is a very valuable contribution to the study of constitutional law, and to the right understanding of the national constitution. — Salmon P. 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