WHEATON'S
INTERNATIONAL LAW.

ELEMENTS

INTERNATIONAL LAW.

HENEY WHEATOST, LL.D.,

MINISTER OF THE UNITED STATES AT THE COURT OF PRUSSIA ; CORRESPONDING

MEMBER OF THE ACADEMY OF MORAL AND POLITICAL SCIENCES IN THE

INSTITUTE OF FRANCE; HONORARY MEMBER OF THE ROYAL

ACADEMY OF SCIENCES AT BERLIN, ETC., ETC.

EIGHTH EDITION.

EDITED, WITH NOTES, BY

RICHARD HENRY DANA, Je., LL.D.

BOSTON:
LITTLE, BROWN, AND COMPANY.

1866.

Entered according to Act of Congress, in the year 1855, by

Catherine Wheaton,

in the Clerk's Office of the District Court of the District of Massachusetts.

Entered according to Act of Congress, in the year 1863, by

.Catherine Wheaton,

in the Clerk's Office of the District Court of the District of Massachusetts.

Entered according to Act of Congress, in the year 1866, by

Martha B. Wheaton,

in the Clerk's Office of the District Court of the District of Massachusetts.

CAMBRIDGE :
PRESS OF JOHN WILSON AND SON.

EDITOR'S PREFACE.

As the text of this work may be supposed to have now
become, by the death of Mr. Wheaton, unalterable, it has
been thought judicious to adopt a new mode of division, for
the greater convenience of reference. . The text is accord-
ingly divided into short sections, the numbering of which is
continued through the book ; so that hereafter, the sections
being permanent and the text unaltered, the book may
be cited by the sections, without regard to editions or to
pages.

It was Mr. Wheaton's practice, in new editions, to revise
his text, and not to put new matter into notes. It will be
found, therefore, that his notes are short, and contain rarely
any thing more than references to the authors discussed in
the text.

This edition contains nothing but the text of Mr. Whea-
ton, according to his last revision, his notes, and the origi-
nal matter contributed by the editor. Mr. Wheaton's notes
are indicated by letters. The original contributions of the
editor are all in the form of notes, which are indicated by
numbers, enclosed in brackets, and signed with the letter D.

a*

Tl EDITOR'S PREFACE.

For convenience in referring to the editor's notes, the num-
bering is continuous through the book.

It will not be expected, that this preface should furnish
an extended biography of Mr. Wheaton ; still less, that the
editor should enter upon an analysis of his mind, or a
eulogy of his merits and services. These have their appro-
priate places, in which all that his warmest admirers can
wish has been said by those best qualified to speak of him.

Nothing more will be undertaken than it may be an as-
sistance to the reader to have at hand, — a history of the
work itself, and such a sketch of the author's life as will
show his public relations, and in what circumstances and
under what influences the book was written.

Henry Wheaton was born in Providence, Rhode Island,
Nov. 27, 1785. His family was one of the most respectable
and influential in that State. His father was a merchant of
high standing and competent fortune, and was able to give
his son the advantages not only of a liberal education, but,
what was not so common then as now, of early travel and
study in Europe. Mr. Wheaton was educated at Provi-
dence College (now Brown University), where he took his
degree in 1802. During the next three years, he studied
law, and, in 1805, went abroad to complete his studies, and
especially to make himself familiar with the languages, his-
tory, and literature of Europe. While in France, he gave
attention to the subject of the codes, then greatly discussed,
and to the international questions that attracted the atten-
tion of both worlds ; and his letters of introduction were
such as to place him on intimate terms with the leading
public men of his country then in Europe, — a position
which he maintained by his own merits.

EDITOR'S PREFACE. Vll

On his return to the United States, he entered on the
practice of the law in the city of New York. Continuing
his interest in international questions, he published, in 1815,
his small work on the Law of Maritime Captures, which
gained him an early and lasting reputation. From 1816 to
1827, he was the reporter of the decisions of the Supreme
Court of the United States, during what no one can be
offended by hearing called the great period of the Federal
Bench and Bar. The reporter was the friend and associate
of the judges and the most eminent counsel ; and, in respect
to learning on foreign and international questions, and gen-
eral culture, he held an enviable reputation throughout the
country. In 1820, he delivered the annual address before
the Historical Society of New York, taking for his. subject
the science of Public and International Law. This address,
with his treatise on Captures, was the germ of his great
work. For some time, he was engaged on & commission to
revise the statute law of New York, during which he was
a diligent student of the subject of codification, and of
legislation generally. In 1827, he was appointed, by Presi-
dent Adams, Charge d' Affaires at the court of Denmark,
and resided at Copenhagen until 1835, when he was trans-
ferred to Berlin, first as Minister Resident ; but the office
was afterwards raised to the rank of Plenipotentiary. This
post he held until 1846, when his diplomatic career was
closed by one of the most unfortunate sacrifices our govern-
ment ever made to mere party routine.

Notwithstanding his long residence abroad, and at the
courts of Europe, his patriotism suffered no diminution :
but distance and absence seemed to present his country
more as a unit, and with stronger hold on his imagination

Vlll EDITOR S PREFACE.

and affections ; and he preserved not only with fidelity, but
enthusiasm, the republican principles with which he began
life.

Remaining a year in France, Mr. Wheaton returned to
America in 1847. He was at once appointed Lecturer
on International Law at Harvard University, and was to
have had the professorship, then about to be founded and
permanently endowed for him, of Civil and International
Law : but rapidly declining health obliged him to break off
from all his labors ; and he died at Dorchester, in Massa-
chusetts, on the 11th March, 1848.

During the twenty years that Mr. Wheaton resided
abroad in the diplomatic service, he was engaged in negotia-
tions of. great importance to his own country and Europe.
He conducted the well-known controversy respecting the
captures at Kiel, which ended in the Treaty of Indemnity
of 1830 (see this work, §§ 530-537), and led the way to
other treaties of indemnity to the United States, based on a
similar principle. While at Copenhagen, he was practi-
cally the American representative for all Germany, as we
had no minister in Prussia or Austria, or any other of the
German States ; and he gave constant attention to the inter-
nal concerns as well as the foreign policy of those powers.
For many years he observed carefully the affairs of the
Zollverein, and succeeded at last in effecting the treaty of
1844, which was thought by diplomatists and publicists to
do him great honor, and the rejection of which by the
United States Senate caused him no little regret, — the
more, perhaps, from the fact that its defeat was understood
to have been an accident of party politics, against the judg-
ment of the ablest men of the country.

editor's preface. ix

The reader of this book will see, at almost every stage
in the questions of the last thirty years, traces of the labors
of Mr. Wheaton, especially in the subjects of the abolition
and capitalizing of the Sound Dues and the Scheldt Dues
and the tolls on the Elbe, the extradition of criminals, and
the lines of distinction established as to the exemption of
naturalized citizens of the United States from certain claims
of their former sovereigns. But there was scarcely a topic
affecting the interests of his country, or the science of in-
ternational and public law, or the political and social con-
dition of his kind, in which he did not interest himself;
contributing pamphlets to the press, articles to the leading
journals of Europe and America, and maintaining a corre-
spondence with the philosophical and literary societies on
both sides of the Atlantic, of which he was an honored
member. In 1831, he published his valuable History of the
Northmen, which was afterwards published in French at
Paris. In 1838 appeared the History of Scandinavia, — the
joint work of himself and Dr. Crichton.

In 1841, Mr. Wheaton wrote an essay for a prize offered
by the French Institute, on the subject, " L'Histoire du
Droit des Gens en Europe, depuis la Paix de Westphalie
jusqu'au Congres de Vienne." He afterwards enlarged it
into a treatise on the History of the Law of Nations in
Europe and America, from the earliest times to the treaty
of Washington in 1842. This was published in English, in
New York, in 1845, — the preface being dated at Paris
in 1843 ; and in French, in 1846, at Leipsic and Paris.

To his great work, the Elements of International Law,
Mr. Wheaton, in some form or other, gave the greater part
of his life after his twenty-fifth year. For the duties of a

x editor's preface.

commentator on that branch of science, he combined advan-
tages which, in no one of his countrymen, were ever before
united. He was familiar with the four languages in which
the stores of international law are gathered. He had the
early preparatory discipline successively of a practising law-
yer, and a reporter of judicial decisions, followed by twenty
years of diplomatic experience at one of the political centres
of Europe. He maintained an intimate personal acquaint-
ance and familiar correspondence with the most eminent
statesmen, publicists, and scholars of Europe and America ;
and kept himself thoroughly informed of the current history
of whatever bore upon the relations of States. In short, he
combined the advantages of the discipline of a barrister, the
culture of a scholar, the experience of a diplomatist, and
the habits of a man of society. And it is no small thing
to add, that, to a subject essentially moral, he brought a
purity of nature, candor, and fidelity to truth and duty, as
remarkable as his learning, industry, and philosophy.

This work, under the ti,tle of The Elements of Interna-
tional Law, was first sent to the press in 1836, in two
editions, — one at Philadelphia, and the other at London ;
the preface being written at Berlin, and dated Jan. 1, 1836.

The third edition was published in Philadelphia in 1846 ;
the preface being dated at Berlin, November, 1845.

In 1846 and 1847, Mr. Wheaton prepared an edition in
French; the preface being dated at Paris, April 15, 1847,
just before his final return to America. It was published
at Leipsic and Paris, in 1848, — the year of the author's
death.

A second edition of the work, in French, was published
at the same places in 1853.

editor's preface. xi

The next foreign edition conferred a singular distinction
upon the author : it was a translation into Chinese, executed
and published in 1864, under the auspices of the Imperial
Government. See note 8.

In 1855, an edition, which has always been called the
sixth edition (counting the French editions as the fourth
and fifth), was prepared in Boston, with notes by Mr. W.
B. Lawrence.

In 1863, the seventh edition was published in Boston,
also with notes by Mr. Lawrence.

The present is therefore the eighth edition. The notes
of Mr. Lawrence do not form any part of this edition. It
is confined, as has been said, to the text and notes of the
author, and the notes of the present editor, who undertakes
his work at the request of 4 the widow of Mr. Wheaton,
recently deceased, and of his only surviving children, his
daughters.

Adhering to the course proposed, no attempt is made
to discuss the character of this work, or to enter upon
an examination of the more strictly literary labors of the
distinguished jurist ; still less, to report the tributes which
have been paid to him by bodies politic, literary and scien-
tific societies, or eminent individuals. Yet, among the
honors his memory has received, one may be selected for
mention, as peculiarly gratifying. His native State has
resolved to place his statue in the Capitol of the Union, as
one of the two assigned to it in the gallery of the public
men of America.

The son of Mr. Wheaton, who gave so fair promise of
continuing the honor of his name in another generation,
survived him but a few years. Yet it is hoped that too

xii editor's preface.

much is not claimed in expressing a belief, that his name
will still remain so long as the science which regulates the
relations of States shall be studied among men.

RICHAKD H. DANA, Jr.
Boston, July 2, 1866.

PREFACE

A L^DITION DE 1848. PARIS ET LEIPZIG.

La premiere edition de cet ouvrage a paru a Londres, en
1836, en anglais, et a passe par deux autres editions dans
la meme langue, publiees a Philadelphie, et revues, cor-
rigees, et considerablement augmentees par l'auteur. En
ecrivant cet ouvrage, il s'est propose de reunir dans un livre
elementaire, destine a l'usage des diplomates et des hommes
d'etat, 1' ensemble des regies de conduite qui doivent etre
observees dans les relations mutuelles des nations, en temps
de paix et en temps de guerre. Le droit international, ou
droit des gens positif, est fonde sur la morale internationale,
qu'on a ordinairement appelee le droit des gens naturel.
La plupart des regies dont se compose le droit international,
sont tirees des exemples de ce qui, dans la pratique variable
des nations civilisees, a ete approuve par le jugement im-
partial des publicistes et des tribunaux internationaux. Ces
precedents se sont accrus en nombre et en importance
durant la longue periode qui s'est ecoulee depuis la publi-
cation de l'ouvrage classique et justement estime de Vattel,
periode abondante en discussions instructives, entre les cabi-
nets et dans les tribunaux et les assemblies legislatives de

XIV PREFACE.

diverses nations concernant leurs relations politiques et
leurs devoirs mutuels. L'auteur a puise a ces sources
les principes generaux qu'on peut regarder comme ayant
re^u l'assentiment de la portion la plus eclairee du genre
humain, sinon comme regies de conduite invariables, du
moins comme regies qu'aucun etat ne peut violer sans en-
courir l'opprobre general, et sans s'exposer au danger de
provoquer les hostilites d'autres etats independants dont les
droits seraient leses, ou dont la securite serait menacee par
leur violation. L'experience demontre que ces motifs four-
nissent une certaine garantie, meme dans les temps les plus
malheureux, pour l'observation des regies de justice inter-
nationale, s'ils n'accordent pas cette sanction parfaite que le
legislateur a annexee au droit interne de chaque etat par-
ticulier. La connaissance du droit public externe a done
toujours ete regardee comme etant de la plus grande utilite
a tous ceux qui prennent part aux affaires publiques, et sur-
tout a ceux qui sont destines a la carriere diplomatique.
L'auteur a ete encourage par la faveur accordee par le
public aux editions precedentes de son ouvrage a faire
publier cette nouvelle edition en langue fran§aise.

H. Wheaton.

Paris, le 15 Avril, 1847.

PREFACE TO THE THIRD EDITION.

Since the publication of the two former editions of the
present Treatise, the Author has submitted to the public
judgment another work connected with the same subject,
and entitled "History of the Law of Nations in Europe and
America, from the earliest Times to the Treaty of Wash-
ington, 1842." In the present edition of the " Elements of
International Law," constant reference has been had to this
historical deduction, in which the Author endeavored to
trace the origin and progress of those rules of international
justice so long acknowledged to exist, and which have been
more or less perfectly observed by the Christian nations
of modern Europe ; which have been adopted by their
descendants in the New World, from the first planting of
European colonies on the American Continents ; and have
been more recently applied to regulate the relations of the
European and American nations with the Mohammedan
and Pagan races of the other quarters of the globe.

The law of nations acknowledged by the ancient Greeks
and Romans was exclusively founded on religion. The
laws of peace and war, the inviolability of heralds and

XVI PREFACE TO THE THIRD EDITION.

ambassadors, the right of asylum, and the obligation of
treaties, were all consecrated by religious principles and
rites. Ambassadors, heralds, and fugitives who took refuge
in the temples, or on the household hearth, were deemed
inviolable, because they were invested with a sacred char-
acter and the symbols of religion. Treaties were sanctioned
with solemn oaths, the violation of which it was believed
must be followed by the vengeance of the gods. War
between nations of the same race and religion was declared
with sacred rites and ceremonies. The heralds proclaimed
its existence by devoting the enemy to the infernal deities.
" Eternal war against the Barbarians," was the Shibboleth
of the most civilized and enlightened people of antiquity.
Among the Eomans " stranger " and " enemy " were synony-
mous. Adversus hostem ceterna auctoritas esto was the
maxim of the Twelve Tables, and Justinian considered all
nations as enemies unless they were the allies of Rome.
More permanent relations could exist only between nations
of the same origin, and professing the religious faith com-
mon to the entire race. Such were the Hellenic tribes
represented in the great Amphictyonic council of Greece,
which was rather a religious than a political institution.
But even the purest moralists hardly admitted any other
duties between the Greeks themselves than such as were
founded on positive compact.

The introduction of Christianity tended to abolish the
Pagan precept : " Thou shalt hate thine enemy," and to
substitute for it the benevolent command : " Love your
enemies," which could not be reconciled with perpetual
hostility between the different races of men. But this
milder dispensation long struggled in vain against the secu-

PREFACE TO THE THIRD EDITION. XYli

lar enmity of the different nations of the ancient world, and
that spirit of blind intolerance which darkened the ages
succeeding the fall of the Roman Empire. During the
Middle Ages the Christian States of Europe began to unite,
and to acknowledge the obligation of an international law
common to all who professed the same religious faith.
This law was founded mainly upon the following circum-
stances : —

First: The union of the Latin Church under one spir-
itual head, whose authority was often invoked as the
supreme arbiter between sovereigns and between nations.
Under the auspices of Pope Gregory IX., the canon law
was reduced into a code, which served as the rule to guide
the decisions of the Church in public as well as private
controversies.

Second: The revival of the study of the Roman law,
and the adoption of this system of jurisprudence by nearly
all the nations of Christendom, either as the basis of their
municipal codes, or as subsidiary to the local legislation in
each country.

( The origin of the law of nations in modern Europe may
thus be traced to these two principal sources, — the canon
law and the Roman civil law.) The proofs of this double
origin may be distinctly discovered in the writings of the
Spanish casuists and the professors of the celebrated Uni-
versity of Bologna. Each general council of the Catholic
Church was a European Congress, which not only deliber-
ated on ecclesiastical affairs, but also decided the contro-
versies between the different States of Christendom. The
professors of the Roman law were the public jurists and
diplomatic negotiators of the age. The writers on the law

6*

XV111 PREFACE TO THE THIED EDITION.

of nations before the time of Grotius, such as Francis de
Victoria, Balthazar Ayala, Conrad Brunus, and Albericus
Gentilis, fortified their reasonings by the authority of the
Roman civilians and the canonists. The great religious rev-
olution of the sixteenth century undermined one of the bases
of this universal jurisprudence : but the public jurists of the
Protestant school, whilst they renounced the authority of
the Church of Rome and the canon law, still continued to
appeal to the Roman civil law, as constituting the general
code of civilized nations.

The establishment of the system of a balance of power
among the European States also contributed to form the
international law recognized by them. The idea of this
system, though not wholly unknown to the statesman of
antiquity, had never been practically applied to secure the
independence of nations against the ambition of the great
military monarchies by which the civilized world was suc-
cessively subdued. The modern system of the balance of
power was first developed among the States of Italy during
the latter part of the fifteenth century, and was applied, in
the first instance, in order to maintain their mutual inde-
pendence, and, subsequently, to unite them all against the
invasions of the transalpine nations. Such was the policy
of the Republic of Florence under Cosmo and Lorenzo de
Medici, and such was the object of Machiavelli in writing
his celebrated treatise of the Prince. Unfortunately for
his own fame, and for the permanent interests of mankind,
this masterly writer, in his patriotic anxiety to secure his
country against the dangers with which it was menaced
from the Barbarians, did not hesitate to resort to those
atrocious means, already too familiar to the domestic tyrants

PREFACE TO THE THIRD EDITION. XIX

of Italy. . The violent remedies he sought to apply for her
restoration to pristine greatness were poisons, and his book
became the manual of despotism, in which Philip II. of
Spain, and Catherine de Medici, found their detestable max-
ims of policy. But policy can never be separated from
justice with impunity. Sound policy can never authorize a
resort to such measures as are prohibited by the law of
nations, founded on the principles of eternal justice ; and,
on the other hand, the law of nations ought not to prohibit
that which sound policy dictates as necessary to the security
of any State. " Justice," says Burke, " is the great stand-
ing policy of civil society, and any eminent departure from
it, under any circumstances, lies under the suspicion of
being no policy at all."

Whatever may be thought of the long-disputed question
as to the motives of Machiavelli in writing, his work cer-
tainly reflects the image of that dark and gloomy period of
European society, presenting one mass of dissimulation,
crime, and corruption,' which called loudly for a great
teacher and reformer to arise, who should stay the ravages
of this moral pestilence, and speak the unambiguous lan-
guage of truth and justice to princes and people. Such a
teacher and reformer was Hugo Grotius, whose treatise on
the Laws of Peace and War, produced a strong impression
on the public mind of Christian Europe, and gradually
wrought a most salutary change in the practical intercourse
of nations in favor of humanity and justice. Whatever
defects may be justly imputed to the works of Grotius, and
the public jurists formed in his school, considered as scien-
tific, expository treatises, it would be difficult to name any
class of writers which has contributed more to promote the

XX PREFACE TO THE THIRD EDITION.

progress of civilization than " these illustrious authors —
these friends- of human nature — these kind instructors of
human errors and frailties — these benevolent spirits who
held up the torch of science to a benighted world." 1 If
the international intercourse of Europe, and the nations of
European descent, has been since marked by superior
humanity, justice, and liberality, in comparison with the
usage of the other branches of the human family, this
glorious superiority must be mainly attributed to these
private teachers of justice, to whose moral authority Sover-
eigns and States are often compelled to bow, and whom
they acknowledge as the ultimate arbiters of their contro-
versies in peace ; whilst the same authority contributes to
give laws even to war itself, by limiting the range of its
operations within the narrowest possible bounds consistent
with its purposes and objects.

It has been observed by Sir James Mackintosh, that,
without overrating the authority of this class of writers, or
without considering authority in any case as a substitute
for reason, the public jurists may justly be considered as
entitled to great weight as impartial witnesses bearing tes-
timony to the general sentiments and usages of civilized
nations. Their testimony receives additional confirmation
every time their authority is invoked by statesmen, and
from the lapse of every successive year in which the cur-
rent of this authority is uninterrupted by the avowal and
practice of contrary principles and usages. Add to which,
that their judgments are usually appealed to by the wTeak,
and are seldom rejected except by those who are strong
enough to disregard all the principles and rules of inter-

1 Patrick Henry.

PREFACE TO THE THIRD EDITION. XXI

national morality. " The opinions of these eminent men,''
says Mr. *Fox, "formed without prejudice upon subjects
which they have carefully studied, under circumstances the
most favorable to an impartial judgment, cannot but be
considered as entitled to the highest respect. The maxims
laid down by them are uninfluenced by national prejudices
or particular interests ; they reason upon great principles
and with enlarged views of the welfare of nations ; and by
comparing the results of their own reflections with the les-
sons taught by the experience of preceding ages, they have
established that system which they considered as of the
greatest utility and of the most general application." 1

The rules of international morality recognized by these
writers are founded on the supposition, that the conduct
which is observed by one nation towards another, in con-
formity with these rules, will be reciprocally observed by
other nations towards it. The duties which are imposed
by these rules are enforced by moral sanctions, by appre-
hension on the part of sovereigns and nations of incurring
the hostility of other States, in case they should violate
maxims generally received and respected by the civilized
world. These maxims may, indeed, be violated by those
who choose to suffer the consequences of that hostility ;
but they cannot be violated with impunity, nor without
incurring general obloquy. The science which teaches the
reciprocal duties of sovereign States is not, therefore, a
vain and useless study, as some have pretended. If it were
so, the same thing might be affirmed of the science of pri-
vate morality, the duties inculcated by which are frequently

1 Mackintosh, Hansard's Pari. Deb. vol. xxx. p. 894 ; Fox, Pari. Hist, of England,
vol. xxx. p. 1260.

XX11 PEEFACE TO THE THIRD EDITION.

destitute of the sanction of positive law, and are enforced
merely by conscience and social opinion. As- the very
existence of social intercourse in private life depends upon
the observance of these duties, so the existence of that
mutual intercourse among nations, which is so essential to
their happiness and prosperity, depends upon the rules
which have generally been adopted by the great society of
nations to regulate that intercourse.

In preparing for the press the present edition of the
Elements of International Law, the work has been sub-
jected to a careful revision, and has been considerably aug-
mented. The Author has endeavored to avail himself of
the most recent questions which have occurred in the inter-
course of States, the discussion and decision of which have
contributed to throw new light upon that system of rules
by which all civilized nations profess to be bound in their
mutual intercourse. He has especially sought for those
sources of information in the diplomatic correspondence
and judicial decisions of our own country, which form a
rich collection of instructive examples, arising out of the
peculiar position of the United States during the wars of
the French Revolution, and during the war declared by
them against Great Britain, in 1812. That international
law, common to all civilized and Christian nations, which
our ancestors brought with them from Europe, and which
was obligatory upon us whilst we continued to form a part
of the British Empire, did not cease to be so when we
declared our independence of the parent country. Its obli-
gation was acknowledged by the Continental Congress, in
the ordinances published by that illustrious assembly for
the regulation of maritime captures, and by the Court of

PREFACE TO THE THIRD EDITION. XX111

Appeals, established for the adjudication of prize causes
during the "War of the Revolution. In the mean time, the
United States had recognized, in their treaty of alliance
with France, those principles respecting the rights of neu-
tral commerce and navigation which subsequently became
the basis of the armed neutrality of the northern powers
of Europe. The American government has ever since
constantly recognized and respected the same principles
towards those maritime States by whom they are recipro-
cally recognized and respected. As to all others, it con-
tinues to observe the pre-existing rules of the ancient law
of nations, whilst it has ever shown itself ready to adopt
measures for mitigating the practices of war, and render-*
ing them more conformable to the spirit of an enlightened
age.

The Author has also endeavored to justify the confi-
dence with which he has been so long honored by his
country in the different diplomatic missions confided to
him, by availing himself of the peculiar opportunities, and
the means of information thus afforded, for a closer exam-
ination of the different questions of public law which have
occurred in the international intercourse of Europe and
America, since the publication of the first edition of the
present work. Among these questions are those relating
to the exercise of the right of search for the suppression
of the African slave-trade, and to the interference of the
five great European powers in the internal affairs of the
Ottoman Empire. The former of these questions had
already been discussed by the Author, in a separate trea-
tise, published in 1841, in which the immunity of the
national flag from every species and purpose of search, by

XXIV PREFACE TO THE THIRD EDITION.

the armed vessels of another State, in time of peace, except
in virtue of a special compact, was maintained by an appeal
to the oracles of public law both of Great Britain and the
United States, and has since been solemnly sanctioned by
the treaty of Washington, 1842, and by the convention
concluded, during the present year, between France and
Great Britain, for the suppression of the mutual right of
search conceded by former treaties. He indulges the hope
that these additions to the work may be found to render it
more useful to the reader, and make it more worthy of the
favor with which the previous editions have been received.

Berlin, November, 1845.

ADVERTISEMENT TO THE FIRST EDITION.

The object of the Author in the following attempt to col-
lect the rules and principles which govern, or are supposed
to govern, the conduct of States, in their mutual intercourse
in peace and in war, and which have therefore received
the name of International Law, has been to compile an
elementary work for the use of persons engaged in diplo-
matic and other forms of public life, rather than for mere
technical lawyers, although he ventures to hope that it may
not be found entirely useless even to the latter. The great
body of the rules and principles which compose this law is
commonly deduced from examples of what has occurred
or been decided, in the practice and intercourse of nations.
These examples have been greatly multiplied in number
and interest during the long period which has elapsed since
the publication of Vattel's highly appreciated work ; a por-
tion of human history abounding in fearful transgressions
of that law of nations which is supposed to be founded on
the higher sanction of the natural law, (more properly
called the law of God,) and at the same time rich in instruc-
tive discussions in cabinets, courts of justice, and legislative

XXVi ADVERTISEMENT TO THE FIRST EDITION.

assemblies, respecting the nature and extent of the obliga-
tions between independent societies of men called States.
The principal aim of the Author has been to glean from
these sources the general principles which may fairly be
considered to have received the assent of most civilized and
Christian nations, if not as invariable rules of conduct, at
least as rules which they cannot disregard without general
obloquy and the hazard of provoking the hostility of other
communities who may be injured by their violation. Expe-
rience shows that these motives, even in the worst times, do
really afford a considerable security for the observance of
justice between States, if they do not furnish that perfect
sanction annexed by the lawgiver to the observance of the
municipal code of any particular State. The knowledge
of this science has, consequently, been justly regarded as of
the highest importance to all who take an interest in
political affairs. The Author cherishes the hope that the
following attempt to illustrate it will be received with indul-
gence, if not with favor, by those who know the difficulties
of the undertaking.

Berlin, January 1, 1836.

CONTENTS.

PAET FIRST.

DEFINITION, SOURCES, AND SUBJECTS OF INTERNATIONAL LAW.

CHAPTER I.

Definition and Sources of International Law. Sect>

Origin of International Law 1

Natural Law defined 2

Natural Law identical with the Law of God or Divine Law ... 3

Natural Law applied to the Intercourse of States 3

Law of Nations distinguished from Natural Law by Grotius ... 4
Law of Nature and of Nations identical, according to Hobbes and

PufFendorf ^ 5

Law of Nations derived from Reason and Usage . 6

System of Wolf 7

Difference of Opinion between Grotius and Wolf on the Origin of the

Voluntary Law of Nations . . 8

Systems of Vattel and Wolf 9

System of Heffter 10

No Universal Law of Nations . . • 11

Jus and Lex 12

Opinion of Savigny 13

Definition of International Law 14

Sources of International Law 15

CHAPTER II.

Nations and Sovereign States.

Subjects of International Law 16

Definition of a State.* .17

XXV111 CONTENTS.

Sect.

Sovereign Princes the Subjects of International Law 18

Individuals or Corporations the Subjects of International Law . . 19

Sovereignty defined , 20

Internal Sovereignty 20

External Sovereignty • 20

Sovereignty, how acquired 21

Identity of a State 22

Identity of a State, how affected by Internal Revolution .... 22
Conduct of Foreign States towards another Nation involved in Civil

War 23

Parties to Civil War entitled to Rights of War against each other . 23

Identity of a State, how affected by External Violence 24

By the Joint Effect of Internal and External Violence confirmed by

Treaty 25

Province or Colony asserting its Independence, how considered by

other Foreign States 26

Recognition of its Independence by other Foreign States . . . .'27
International Effects of a Change in the Person of the Sovereign, or

in the Internal Constitution of the State 28

Treaties 29

Public Debts 30

Public Domain and Private Rights of Property 31

Wrongs and Injuries 32

Sovereign States defined 33

Equality of Sovereign States 33

Semi-sovereign States . 34

Tributary and Vassal States 37

Single or united States 39

Personal Union under the same Sovereign 40

Real Union under the same Sovereign 41

Incorporate Union . 42

Federal Union 44

Confederated States, each retaining its own Sovereignty .... 45

Supreme Federal Government, or Compositive State 46

Germanic Confederation 47-51

United States of America *.. . 52-56

Swiss Confederation 57-59

CONTENTS. XXIX

PART SECOND.

ABSOLUTE INTERNATIONAL RIGHTS OF STATES.

CHAPTER I.

Bight of Self-preservation and Independence. Sect.

Eights of Sovereign States with respect to one another 60

Rights of Self-preservation 61

Modifications of Right of Self-defence 62

Right of Intervention or Interference 63

Wars of the Reformation 63

Wars of the French Revolution . 64

Congress of Aix-la-Chapelle, of Troppau, and of Laybach ... 65

Congress of Verona 6Q

War between Spain and her American Colonies 67

British Interference in the Affairs of Portugal 68

Interference of Christian Powers in favor of Greece 69

Interference of Austria, &c, in the Internal Affairs of the Ottoman

Empire in 1840 70

Interference of the Great Powers in the Belgic Revolution of 1830 . 71
Independence of the State in respect to its Internal Government . . 72
Mediation of a Foreign State for the Settlement of the Internal Dis-
sensions of a State 73

Treaties of Mediation and Guaranty . 73

Independence of every State in respect to the Choice of its Rulers . 74
Exceptions growing out of Compact, or other Just Right of Interven-
tion 75

Qua&suple Alliance of 1834 76

CHAPTER* II.
Bights of Civil and Criminal Legislation.

Exclusive Power of Civil Legislation 77

Private International Law ........* 77

Conflict of Laws 78

Lex loci rei sitae 81

Droit d'aubaine 82

Lex domicilii 83

Personal status 84

Naturalization 85

XXX CONTENTS.

Sect.

Foreign Marriages 92

Lex fori 94

A Foreign Sovereign, or his Ambassador, Army, or Fleet within

the Territory of another State 95

Exemption of the Person of a Foreign Sovereign from the Local

Jurisdiction 97

Exemption of Foreign Ministers 98

Exemption of Foreign Troops passing through the Territory . 99

Exemption of Foreign Ships of War . 100

Distinction between Public and Private Vessels 101

Jurisdiction of a State over its Public and Private Vessels on the

High Seas 106

Impressment of Seamen 108, 109

Consular Jurisdiction 110

Independence of the State as to its Judicial Power Ill

Extent of the Judicial Power over Criminal Offences 113

Laws of Trade and Navigation 114

Extradition of Criminals 115

Piracy under the Law of Nations 122

Distinction between Piracy by the Law of Nations and under

Municipal Statutes , . 124

The Slave Trade, whether prohibited by the Law of Nations . . 125

Decisions of Courts of Justice in England 127 et sea.

Extent of Judicial Power as to Property within the Territory . . 134
Distinction between the Rules of Decision and of Procedure as

affecting Cases in rem 135

Succession to Personal Property ab intestato . 136

Foreign Will, how carried into Effect in another Country . . . 137

Conclusiveness of Foreign Sentences in rem * 138

Extent of Judicial Power over Resident Foreigners 140

Proceedings against Absent Parties . . , . . 142

Distinction betAveen the Rules of Decision and of Proceeding in

Cases of Contract 143

Bankruptcy 144

Conclusiveness of Foreign Judgments in Personal Actions . . . 147

Foreign Divorces . , 151

CHAPTER III.

Rights of Equality.

Natural Equality of States Modified by Compact or Usage . . . 152
Royal Honors I53

CONTENTS. XXXI

Sect.

Precedence among Princes and States enjoying Royal Honors . . 154

The Great Republics 155

Monarchs not Crowned, and Semi-sovereigns . 156

Usage of the Alternat ....<. 157

Language used in Diplomatic Intercourse 158

Titles of Sovereign Princes and States . 359

Maritime Ceremonials 160

CHAPTER IV.

Bights of Property.

National Proprietary Rights 161v

Public and Private Property 162

Eminent Domain 163

Prescription 164

Conquest and Discovery Confirmed by Compact and the Lapse of

Time . . 165

The Papal Bull of 1493 . 166

Dispute concerning Nootka Sound 167

Disputes concerning North-west Coast of America 168, 171

Claim of United States and England to the Oregon Territory . 172-74

Maritime Territorial Jurisdiction 177

Extent of the Term " Coast " or " Shore " 178

The King's Chambers 179

Right of Fishery 180

Claims to Portions of the Sea on the Ground of Prescription . . 181

Danish Sovereignty over the Sound and Belts 183, 184

The Baltic Sea, whether mare clausum 185

Controversy respecting the Dominion of the Seas 186

Ports, Mouths of Rivers, &c. 188

The Marine League 189

Straits and Sounds . 190

Rivers forming part of the Territory of the State 192

Right of Innocent Passage of Rivers flowing through Different States 193

Incidental Right to use River-banks 194-96

Treaties of Vienna respecting the Great European Rivers . . . 197

Navigation of the Rhine 198

Navigation of the Mississippi 200

Navigation of the St. Lawrence 203-205

XXX11 CONTENTS.

PART THIRD.

INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC
RELATIONS.

CHAPTER I.

Bights of Legation. sect.

Usage of Permanent Diplomatic Missions 206

Right to send, and obligation to receive, Public Ministers . . . 207

Rights of Legation, to what States belonging 208

How affected by Civil War or Contest for the Sovereignty . . . 209

Conditional Reception of Foreign Ministers 210

Classification of Public Ministers 211 et seq.

Diplomatic Precedence 214

Consuls and Commercial Agents . . . * 216

Letters of Credence 217

Full-power 218

Instructions 219

Passport 220

Duties of a Public Minister on arriving at his Post 221

Audience of the Sovereign or Chief Magistrate 222

Diplomatic Etiquette 223

Privileges of a Public Minister 224

Exceptions to the General Rule of Exemption from the Local

Jurisdiction 225

Personal Exemption extending to his Family, Secretaries, Servants,

&c 226

Exemption of the Minister's House and Property 227

Discussion between United States and Russia as to Exemption of

Public Ministers from Local Jurisdiction 228-41

Position of Divers Authorities on the Subject 230-32

Duties and Taxes 242

Messengers and Carriers 243

Public Minister passing through the Territory of another State than

that to which he is Accredited 244-47

Freedom of Religious Worship 248

Consuls not entitled to the Peculiar Privileges of Public Ministers . 249

Termination of Public Mission 250

Letter of Recall .' 251

CONTENTS. XXX111

CHAPTER II.

Bights of Negotiation and Treaties. Sect#

Faculty of Contracting by Treaty, how Limited or Modified . . 252

Form of Treaty 253

Cartels, Truces, and Capitulations 254

Sponsions 255

Full-power and Ratification 256-62

Justification of refusal to ratify 263

When a Treaty becomes binding 264

The Treaty-making Power dependent on the Municipal Constitu-
tion 265

Auxiliary Legislative Measure, how far necessary to the Validity of

a Treaty 266

Freedom of Consent, how far necessary to the Validity of Treaties 267

Transitory Conventions Perpetual in their Nature '268

Controversy concerning the " North-eastern Fisheries " . . . 269-74
Treaties the operation of which ceases in certain Cases . . . . 275
Treaties Revived and Confirmed on the Renewal of Peace . . . 276

Treaties of Guaranty 277

Treaties of Alliance 278

Distinction between General Alliance and Treaties of Limited Suc-
cor and Subsidy 279

Casus foederis of a Defensive Alliance 280

Divers Examples of Defensive Alliance 281-85

Hostages for the Execution of Treaties 286

Interpretation of Treaties 287

Mediation 288

Diplomatic History 289

PART FOUKTH.

INTERNATIONAL RIGHTS OF STATES IN THEIR HOSTILE
RELATIONS.

CHAPTER I.

Commencement of War and its Immediate Effects. Sect>

Redress by Forcible Means between Nations 290

Reprisals 291

Effect of Reprisals 292

XXXIV CONTENTS.

Sect.

Embargo previous to Declaration of Hostilities 293

Eight of making War, in whom vested 294

Public or Solemn War 295

Perfect and Imperfect War 296

Declaration of War, how far necessary 297

Enemy's Property found in the Territory on the Commencement of

War, how far liable to Confiscation 298-300

Rule of Reciprocity . % 301

Droits of Admiralty 302

Seizure of Enemy's Property found within the Territorial Limits of

the Belligerent State on the Declaration of War 303

Debts due to the Enemy 305-308

Trading with the Enemy by Subjects of the Belligerent State unlaw-
ful . . 309-15

Trade with the Common Enemy unlawful on the Part of Allied Sub-
jects 316

Contracts with the Enemy prohibited . . 317

Persons domiciled in the Enemy's Country liable to Reprisals . 318, 319
Species of Residence constituting Domicil ....... 320-23

The Native Character easily reverts 324

Persons removing from the Enemy's Country on the Breaking-out of

War (Case of The Ocean) 326

Merchants residing in the East 333

House of Trade in the Enemy's Country 334

Converse of the Rule 335

Produce of the Enemy's Territory considered as Hostile, so long as it
belongs to the Owner of the Soil, whatever may be his National

Character or Personal Domicil 336-39

National Character of Ships 340

Sailing under the Enemy's License 341

CHAPTER II.

Rights of War as between Enemies,

Rights of War against an Enemy 342

Limits to the Rights of War against the Person of an Enemy . . 343

Exchange of Prisoners of War 344

Persons exempt from Acts of Hostility 345

Enemy's Property, how far subject to Capture and Confiscation . 346 •
Ravaging of the Enemy's Territory, when lawful .... 347 et seq.
Restitution of the Works of Art taken from the Louvre . . . 352, 353
Distinction between Private Property taken at Sea and on Land . 355

CONTENTS. XXXV

Sect.

What Persons are authorized to engage in Hostilities against the

Enemy 356

Non-commissioned Captors 357

Privateers 358

Title to Property Captured in War 359

Recaptures and Salvage 360

Recaptures from Pirates . 361

Recapture of Neutral Property . . . 363-66

Recapture from an Enemy 367

Recapture of Property of Allies 368-70

Laws of different Countries as to Recaptures 371-79

What constitutes a " Setting-forth as a Vessel of War " .... 380

Recapture by a Non-commissioned Vessel 381

Military Salvage for Recapture 382

Salvage on a Second Recapture, a Rescue, or a Restitution . . . 383

Rate of Salvage 384

Validity of Maritime Captures determined in the Courts of the Cap-
tor's Country 385

Condemnation of Property lying in the Ports of an Ally .... 386

Property carried into a Neutral Port 387

»How far the Jurisdiction of the Captor's Courts is Exclusive . . 388
Condemnation by a Consular Tribunal in a Neutral Country . . 389
Responsibility of the Captor's Government for the Acts of its Com-
missioned Cruisers and Courts 390

Unjust Sentence of a Foreign Court is Ground for Reprisal . . . 391
Distinction between Municipal Tribunals and Courts of Prize . . 392

Report on the Silesian Loan Causes 394

Mixed Commissions 395 et seq.

Title to Real Property, how Transferred in War. Jus Postliminii . 398

Good Faith towards Enemies 399

Truce or Armistice . 400

Power to conclude an Armistice 401

Period of its Operation 402

Rules for Interpreting Conventions of Truce 403

Recommencement of Hostilities on the Expiration of Truce . . . 404
Capitulations for the Surrender of Troops and Fortresses . . . 405

Passports, Safe-conducts, and Licenses 408

Licenses to trade with the Enemy 409

Authority to grant Licenses . 410

Ransom of Captured Property 411

XXX VI CONTENTS.

CHAPTER III.

Rights of War as to Neutrals. sECT.

Definition of Neutrality 412

Different Species of Neutrality . . . . 413-15

Historical Examples 416-23

Neutrality Modified by a Limited Alliance with one of the Bellige-
rent Parties 424

Qualified Neutrality arising out of antecedent Treaty Stipulations

admitting the Armed Vessels and Prizes of one Belligerent into
' the Neutral Ports, whilst those of the other are excluded . . . 425

Hostilities within the Territory of a Neutral State 426

Passage through Neutral Territory 427

Captures within the Maritime Territorial Jurisdiction, or by Vessels

stationed within it, or hovering on the Coasts 428

Vessels chased into the Neutral Territory, and there captured . . 429
Claim on the Ground of the Violation of Neutral Territory must be

sanctioned by the Neutral State 430

Restitution, by the Neutral State, of Property captured within its

Jurisdiction, or otherwise in Violation of its Neutrality . . . 431
Extent of the Neutral ^Jurisdiction along the Coasts, and within the

Bays and Rivers 432

Limitations of the Neutral Jurisdiction to restore in Cases of Illegal

Capture 433

Right of Asylum in Neutral Ports dependent on the Consent of the

Neutral State 434

In what Neutral Impartiality consists 435

Arming and Equipping Vessels and Enlisting Men within Neutral

Territory, by either Belligerent, unlawful ..436

United States Neutrality Acts 437

British Foreign-Enlistment Act 438, 439

Immunity of the Neutral Territory, how far extended to Neutral

Vessels on the High Seas 440

Distinction between Public and Private Vessels 441

> Usage of Nations subjecting Enemy's Goods in Neutral Vessels to

Capture 442

Neutral Vessels laden with Enemy's Goods subject to Confiscation

by the Ordinances of some States 443

Goods of a Friend on board the Ships of an Enemy . . . . . 444
The Two Maxims of u Free Ships, Free Goods,'' and " Enemy

Ships, Enemy Goods," not necessarily connected . . . . . 445
Conventional Law as to " Free Ships, Free Goods " 446

CONTENTS. XXXV11

Sect.

Treaties on this Subject 447-49, 451

Armed Neutrality in 1788 450

Armed Neutrality of 1800 453, 527

International Law of Europe Adopted by America, and Modified by

Treaty 454-70

Prize Courts of the United States condemn Enemy's Goods in Neu-
tral Ships 471

A Neutral Ship attempting to cover Enemy's Goods by False Papers,

&c. . 473

The Rule of " Enemy Ships, Enemy Goods," not applicable to Goods

shipped before the War 474

The Two Maxims in later Treaties 475

Contraband of War 476-87

Articles ancipitis usils, — Provisions and Naval Stores .... 488-501
Transportation of Military Persons and Despatches in the Enemy's

Service 502

Fraudulent Conveying of Hostile Despatches 503

Carrying Diplomatic Despatches 504

Penalty for the Carrying of Contraband 505

Must be taken in delicto 506, 507

Rule of the War of 1756 ' . . 508

Breach of Blockade 509-23

Right of Visitation and Search .524

How affected by Neutral Convoy 525

Forcible Resistance by an Enemy Master 528

Right of a Neutral to carry his Goods in an Armed Enemy Vessel . 529
Neutral Vessels under Enemy's Convoy liable to Capture . . . 530-37

CHAPTER IV.

Treaty of Peace.

Power of making Peace dependent on the Municipal Constitution . 537

Power of making Treaties of Peace limited in its Extent . . . 538

Indemnity to Individuals for Losses by Public Cessions .... 539

Dismemberment of States by Treaty 540

Uti possidetis the Basis of every Treaty of Peace, unless the con-
trary be expressed 544

Effect of Restoration of Territory by a Treaty of Peace .... 545

From what Time the Treaty of Peace takes effect . 546

Cessation of Hostilities after Treaty 547

In what Condition Things taken are to be restored 548

Breach of the Treaty 549

Disputes respecting its Breach, how adjusted 550

d

TABLE OF CASES CITED.

Page
Abby, The, 5 Robinson, Adm. 251 . 400
Abigail, The, 4 Robinson, Adm. 72 . 452
Actseon, The, Edwards, 254 .. . 461
Actif, The, Edwards, 185 ... . 472
Adeline, The, 9 Cranch, 244 .. . 468
Adventure, The, 8 Cranch, 227 . . 474

Africa, The, 2 Acton, 1 209

Alerta, The, 9 Cranch, 359 ... . 551
Alexander, The, 8 Cranch, 169 . . 398

Alexandra, The 567

Alfred, The, 3 Dallas, 307 ... . 550
Arnedie, The, 1 Acton, 240

203, 205, 208
Amistad de Rues, La, 5 Wheaton,

385 531,552

Amy Warwick, The, 2 Sprague's

Dec 196, 197, 376, 418

Amy Warwick, The, 2 Black (U.S.),

196, 197, 376, 418
Amy Warwick, The, 24 Law Report-
er, 335, 494, 511, 544 196, 197, 376, 418
Anna, The, 5 Rob. Adm. 373 257, 521, 526
Anna Catharina, The, 4 Robinson,

Adm. 118 . 666

Anne, The, 3 Wheaton, 446 ) onQ ^97
2 Acton, 6 . .J* -zuy>^<
Antelope, The, 10 Wheaton, 66, 123

170, 211, 213
Anthon v. Fisher, Note to Douglas's

• R. 526

Antonia Johanna, The, 1 Wheaton,

159

Apollo, The, 4 Robinson, Adm. 158 .
5 Robinson, Adm. 286r-9
Ariadne, The, 2 Wheaton, 143 . .
Armstrong v. Lear, 12 Wheaton, 169
Arrogante Barcelones, The, 7 Whea-
ton, 519 531, 555

Arthur, The, Edwards, 203 ... 682
Astraa, Jhe, 1 Wheaton, 125 474, 477
Atalanta/The, 3 Wheaton, 409 . . 698
6 Robinson, Adm. 440

636, 641, 663

507

419
635

682
426

218

Athol, The, 1 W. Rob. 379 ... . 169
Aurora, The, 8 Cranch, 203 .. . 426

B.

Baltic, The, 1 Acton, 25 .... 668
Baldwin v. Hale, 1 Wallace, 223 225, 227
Bank of Augusta v. Earle, 13 Peters,

584, 591 134, 136

Banfield v. Solomon, 9 Vesey, 77 . 219
Bas v. Tingy, 4 Dallas, 37 .... 711
Becquet v. McCarthy, 2 Barn. &

Adolph. 951 229

Belle, The, Edwards, 66 . . . 473, 477
Bello Corrunes, 6 Wheaton, 152 . . 553
Bellona, The, Edwards, 63 .... 477
Belton v. Valentine, 1 Curtis, 168 . 227
Betsey, The, 1 Rob. Adm. 92, 93, 332,

334 . . 487, 672, 676, 677, 681, 682, 685

Betsey, The, Bee, 67 543

The Sloop, 3 Dallas, 6 . . 543
Betsey Cathcart, The, Bee, 292 . . 543
Birkenhead, The, 6 Notes of Cases,

365 ... .169

Blake v. Williams, 6 Pickering, 286 227
Blanchard v. Guldy, 4 Modern R.

225 437

Blanchard v. Russell, 13 Massachu-
setts, 4 134, 136

Blendenhal, The, 1 Dodson, 414 . . 476
Boedes-Lust, The, 5 Rob. Adm. 246 . 372
Booth v. Clarke, 17 Howard, 322 . 227
Boussmaker, ex parte, 30 Vesey, jun.

71 390

Briggs v. The Light Ships, 9 Allen

162, 168, 319
British Prisoners, TKe, 1 Woodb. &

M. 67 . . . 184

Brothers, The, Bee, 76 543

Brook v. Brook, 9 House of Lords

Cases 151

Brown v. United States, 3 Cranch,

110 381, 387, 391

xl

TABLE OP CASES CITED.

Brutus, The, 5 Rob. Adm. 331, note . 635
Buchanan v. Alexander, 4 Howard,
20 169

C.

Caledonia, The, 4 Wheaton, 100 . . 426

Calvin's Case, Coke's R. Pt. VII. . 437

Calypso, The, 2 Robinson, Adm. 298 676
Campbell v. Hall, 23 State Trials,

322 437

Campbell v. Hall, 1 Cowper, 205 . . 437

Carlotta, The, 5 Robinson, Adm. 54 . 460
Carolina, The, 4 Robinson, Adm. 256

634, 639, 689
Caroline, The, 6 Robinson, Adm. 461

320, 637, 642

Carpenter, The, 2 Acton, 11 . . . 635
Cassius, Le (previously Les Ju-

meaux), 3 Dallas, 121 .... 544
Cassius, Le, Wheaton's State Trials,

93 544

Catherina Elizabeth, The, 5 Robin-
son, Adm. 232 697

Ceylon, The, 1 Dodson, 105 .. . 472
Charles et George, 5 Martin's Causes

Celebres, 605 154

Charlotte, The, 5 Rob. Adm. 305 . 621

6 Rob. Adm. 382 . 668

1 Acton, 201 .. . 635
Charlotte Caroline, The, 1 Dodson,

192 476

Charlotte Sophia, The, 6 Robinson,

Adm. 204, note 669

Cheriot v. Foussat, 3 Bingham, 253

196, 377
Cherokee Nation v. Georgia, 5 Peters,

1 59,60

Cheshire, The 682

Chirac v. Chirac, 2 Wheaton, 259 . 341
Christina Maria, The, 4 Robinson,

Adm. 166 635

Church v. Hubbard, 2 Cranch, 187 . 258
Citade de Lisboa, The, 6 Robinson,

Adm. 358 604

City of Berne v. Bank of England,

9 Vesey, Ch. 347 41

Collet v. Keith, 2 East, 260 ... 437
Columbia, The, 1 Robinson, Adm.

154-6 676,682

Comet, The, Edwards, 32 .... 686
Commercen, The, 1 Wheaton, 332,

382 ... . 632, 635, 663, 664, 669

Commercen, The, 2 Gallison, 261 . 635

Comus, The, cited 2 Dodson, 464 . 169

Concepcion, La, 6 Wheaton, 235 . 553
Constantia, The, 6 Robinson, Adm.

440, note 641

Cornu v. Blackburn, Douglas, 641 . 507
Cross v. Harrison, 16 Howard, 190

421, 436
Curling v. Thornton, 2 Addams's Ec-

cles. R. 17 140

D.

Daifje, The, 3 Robinson, Adm. 139 . 497

Davis v. Concordia, 9 Howard, 280 . 718

v. Packard, 7 Peters, 276 . )

Davis v. Packard, 6 Wendell, 377, > 325

10 lb. 50 )

Delta, The 682

Diana, The, 1 Dodson, 95 .... 210

5 Robinson, Adm. 60, 91 410
Diligentia, The, 1 Dodson, 404 474, 477
Divina Pastora, The, 4 Wheaton, 63

36,38

Dobrie v. Napier, 3 Scott, 225 . . 377
Dole v. New England M. M. Ins. Co.

6 Allen, 392 200

Dole v. Merchants' M. M. Ins. Co. . 200

Dole v. New England M. M. Ins. Co. 200

Don v. Lippman, 5 C. C. & Ein. 1 . 152
Dorothy Poster, The, 6 Robinson,

Adm. 88 477

Dorsey v. Dorsey, 1 Chandler's Law

R. 287 . 231

Dos Hermanos, The, 2 Wheaton, 76 407

Dos Santos's Case, 2 Brock. 493 . . 184
Dree Gebroeders, The, 4 Robinson,

Adm. 234 411

Duke of Brunswick v. King of Han-
over, 2 House of Lords, 1 . . . 156

E.

Ebenezer, The, 6 Rob. Adm. 256 . 669
Edward, The, 4 Rob. Adm. 68-70

635, 644, 668
Edward and Mary, The, 3 Robinson,

Adm. 305 473

Edward Bernard, The 682

Eleonora Catharina, The, 4 Robin-
son, Adm. 156 460

Eliza, The (Bas v. Tingy) 4 Dallas,

37 711

Eliza Ann, The, 1 Haggard, 259 . . 668
1 Dodson, 244 . . 717
Elsebe, The, 4 Robinson, Adm.

189, 408 693, 695, 718

Emily St. Pierre, The 475

Empress, The 682

Erstern, The, 2 Dallas, 34 .... 605
Essex, The, 5 Robinson, Adm. 365 . 668
Estrella, The, 4 Wheaton, 298 479, 552
Etrusco, The, 3 Robinson, Adm. 31 . 527
Evert, The, 4 Robinson, Adm. 344 . 635
Exchange, The, 7 Cranch, 116

154, 162, 168, 550
Experience, The 475

F.

Eabrigas v. Mostyn, 1 Cowper, 165 . 437

Fairfax v. Hunter, 7 Cranch, 627 . 139

Fanny, The, 9 Wheaton, 658 . . 531, 555

1 Dodson, 443 ... 697

TABLE OP CASES CITED.

xli

Fitzsimmons v. Newport Ins. Co. 4

Cranch, 185 679

Flad Oyen, The, 1 Rob. Adm. 135 . 482, 486
Flemming v. Page, 9 Howard, 615

421, 436
Fletcher v. Peck, 6 Cranch, 146 . . 58
Fortuna, The, 1 Dodson, 81 . . 205, 209
Foster v. Neilson, 2 Peters, 314 . . 339
Franciska, The, 10 Moore's Privy

Council Cases, 58 ... . 682, 683

Franklin v. M'Gusty, 1 Knapp, 274 . 229

Franklin, The, 6 Eob. Adm. 127 . . 400

4 Rob. Adm. 140 . . 473

3 Rob. Adm. 217 . 644, 668

Frau Margaretha, The, 6 Robinson,

Adm. 92 . . 635

Friendschaft, The, 4 Wheaton, 105 . 419
Friendship, The, 6 Rob. Adm. 420 . 640
Furtado v. Rogers, 3 Bos. & Pull.

191 390

G.

Gage, The, 6 Rob. Adm. 273 . 474, 477
Georgia v. Brailsford, 3 Dallas, 45 . 390
Georgiana, The, 1 Dodson, 397 452, 473

Golden Rocket, The 199

Gran Para, The, 7 Wheaton, 471 . 554
Grell v. Levi, 10 Jurist N. S. 210 . 150
Gute Gesellschaft Michael, The, 4
Robinson, Adm. 94 635

H.

Hackett, The, 2 Robinson, Adm. 174 635

Hallie Jackson, The ...... 682

Hampton v. M'Connell, 3 Wheaton,

234 : ... 230

Hannibal and Pomona, The, 2 Whea-
ton, App. 27 408

Harcourt v. Gaillard, 12 Wheaton,

527 ... • 33

Harmony v. United States, 2 Howard,

210 194

Harmony, The, 2 Rob. Adm. 324 . 406

Harris v. Dennie, 3 Peters, 292 . . 169

Harrison v. Sterry, 5 Cranch, 289 . 148

Heilborn's Case, 1 Parker, C. R. 429 184
Helen, The, 3 Rob. Adm. 224 473, 477

Helena, The, 4 Robinson, Adm. 5 . 58
Henrick and Maria, The, 4 Robin- ~\

son, Adm. 43 ( ^g

Henrick and Maria, The, 6 Robin- f

son, Adm. 138, note a. . . J
Hiawatha, The, 2 Black (U.S.), 676

376, 682, 683

Hoffnung, The, 6 Rob. Adm. 112 . 680

Holmes's Case, 12 Vermont, 631 . . 184
Holmes v. Jennison, 14 Peters, 40 . 182, 184

v. f(emson, 20 Johnson, 229 . 227
Hoop, The, 1 Robinson, Adm. 196,

201 394, 403, 507

Hope, The, 1 Dodson, 226 ... . 504

Hope, The, 6 Rob. Adm. 440, note . 641
Horatio, The, 6 Robinson, Adm. 320 472
Hoyt v. Gelston, 3 Wheaton, 324 . 41
Hudson v. Guestier, 4 Cranch, 293,

6 lb. 281 259, 474, 486

Huntress, The, 6 Rob. Adm. 104 . 460

I.

Imina, The, 3 Robinson, Adm. 167 . 668
Indian Chief, The, 3 Robinson, Adm.

12 403, 407, 419

Inflexible, The, Swabey, 32 . . . 169
Invincible, The, 1 Wheaton, 238 . . 551
Ionia, The, 3 Robinson, 168 .. . 648

J.

James Cook, The, Edwards, 261 . . 668
Jecker v. Montgomery, 13 Howard,

515, 18 lb. 110 487

Jeune Eugenie, La, 10 Wheaton, 66 198
John, The, Report of Commissioners

between the United States and

Great Britain, 427 720

John and Jane, The, 4 Robinson,

Adm. 216 474, 477

Johnson v. MTntosh, 8 Wheaton, 571,

605 242

Jonge Klassina, The, 5 Rob. Adm. 297 419
Jonge Margaretha, The, 1 Robinson,

Adm. 189, 192 621, 635

Jonge Pieter, The, 4 Rob. Adm. 79 . 668
Jonge Petronella, The, 2 Robinson,

Adm. 131 676

Jonge Tobias, The, 1 Robinson,

Adm. 329 . 635, 663

Joseph, The, 8 Cranch, 451, 455 399, 403
Juffrow Catharina, The, 4 Rob- \

inson, Adm. 234 . ... L 4oo a-i-i
Juffrow Catharina, The, 5 lb, f '

141 J

Juffrow Maria Schroeder, The, 3

Robinson, Adm. 147 .. . 684, 685
Julia, The, 8 Cranch, 181 . . 401, 426
Jumeaux, Les (see Cassius, Le) . . 544

K.

184

Kane's Case, 14 Howard, 103 . .
Kenneth v. Chambers, 14 Howard,

150, 557
Ketland v. Cassius, 2 Dallas, 365 . . 549
King, The, v. Casks of Brandy, 3
Haggard, 275 270

L.

Lattimer v. Poteet, 14 Peters, 4 . . 60

Leucade, The, 1 Jurist, n. s., 549 . 55
Lewis v. Ogden, 4 Barn. & Adolph.

654 227

xlii

TABLE OF CASES CITED.

Light Ships, The, Briggs v. 11 Allen

162, 169, 319
Lilla, The, 2 Sprague's}

Decisions >• 466 477 527

Lilla, The, 25 Law Be- f 4bb> 4"> w'

porter, 92 )

Lisette, The, 6 Eobinson, Adm. 387,

394 669,687

Liverpool Packet, The, 1 Gallison,

526 ... . 66$

Lolly's Case, 1 Dow's Pari. Cases,

124 231

Lord Hobart, The, 2 Dodson, 103 . 169
Lord Nelson, The, Edwards, 79 . 474, 477
Louis, Le, 2 Dodson, 210

170, 198, 206, 210, 258, 477
•Louisa Agnes, The 682

M.

M'llvaine v. Cox's Lessee, 4 Cranch,

212 33

Madison, The, Edwards, 224 . . 642,660
Madonna della Gracie, 4 Eobinson,

Adm. 195 400

Madrazo v. Willes, 3 Barn. & Alder-
son, 353 208

Magdalena, The, 3 Dallas, 133 . . 549
Maisonnaire v. Keating, 2 Gallison,

325,337 506,635

Major Barbour, The 686

Mary Adhel, The, 2 Howard, 210

194, 195
Manche, La, 2 Sprague's De- \

cisions I 18i *%»

Manche, La, 25 Law Eeporter, I ^>™1

585 '

Margaret, The, 1 Acton, 333 .. . 668
Marguerite, The ....... 477

Maria, The, 1 Eobinson, Adm. 340,

373 .. . . 616,635,692,693,695

Maria, The, 5 Eobinson, Adm. 365,

367 667,668

Maria, The, 6 Eobinson, Adm. 201 . 669
Marianna, The, 5 Eobinson, Adm. 28 605
Marianna Flora, The, 11 Wheaton,

39, 40 170

Marquis of Huntley, The, 3 Hag-
gard, 247 169

Mary, The, 2 Wheaton, 123 .. . 474
9 Cranch, 126 ... . 668
Mary and Susan, The, 1 Wheaton, 54 417
Mary Eord, The, 3 Dallas, 188 . . 474
Matchless, The, 1 Haggard, 97 . . 668
Med Good's Hielp, Tl^e, 1 Eobinson,

Adm. 89 (cited) 635

Medway v. Needham, 16 Massachu-
setts, 157 151

Melan v. Duke of Eitz James, 1 Bos.

& Pull. 131 227

Mentor, The, 1 Eobinson, Adm. 121 719
Edwards, 207 „ . . . 668
Merchant, The, Marvin on Salvage,
§ 122 169

Mercurius, The, 1 Eobinson, Adm.

83, 288 644, 676

Mercurius, The, 5 Eob. Adm. 82 . 682

Mersey, The 686

Meteor, The 561

Metzger's Case, 5 Howard, 176 ; N.Y.

Legal Observer, 83; 1 Barb. 248 184

Miller v. Miller, 2 Dallas, 15 . . . 507

Mills v. Duryee, 7 Cranch, 481 . . 230

Milne v. Morton, 6 Binney, 353 . . 227
Mitchell v. United States, 9 Peters,

711 60

Moore v. Davell, 4 Haggard, 346, 354 140

N.

Nancy, The, 3 Eobinson, Adm. 122;

2 Acton, 2 209, 649

Nancy, The, Bee, 73 543

Neptunus, The, 1 Eob. Adm. 171 403, 677
3 Eob. Adm. 108 . 635
6 Eob. Adm. 403 . 635
Neptunus, The, Hempel, 2 Eobinson,

Adm. 112 678

Nereide, The, 9 Cranch, 438

581, 693-8, 709
Neutralitet, The, 3 Eobinson, Adm.

295,297 , .644,686

Nostra Signora de Begona, 5 Eobin-
son, Adm. 97 635

Novelli v. Eossi, 2 Barn. & Adolph.

757 229

Nuestra Senora de la Caridad, 4

Wheaton, 502 36

Nuestra Senora de los Dolores, The,

Edwards, 60 390

Nueva Anna et Liebre, 6 Wheaton,

193 38

O.

Oakley v. Bennet, 11 Howard, 44 . 227
Ocean, The, 3 Eob. Adm. 297 . . 410, 668
Ogden v. Saunders, 12 Wheaton, 153,

163, 213 148, 225

Olivera v. Union Ins. Co. 3 Whea-
ton, 183 685

Orozembo, The, 6 Eob. Adm. 430 635, 640
Osborn v. Bank of the United States,
9 Wheaton, 870 169

Panaghia Ehomba, The, 12 Moore's
Privy Council Cases, 168 . . 682, 686

Feggy, The, 1 Cranch, 103 ... . 715

Pensamento Eelix, The, Edwards,
116 ... ' 473

People v. McLeod, 1 Hill, 377; 25
Wendell, 483; 36 Wendell, 663,
App 371

Phoebe Ann, The, 3 Dallas, 319 . . 550

TABLE OF CASES CITED.

xliii

Phoenix, The, 5 Robinson, Adm. 21 . 422

Polly, The, 2 Robinson, Adm. 361 . 668

4 Rob. Adm. 217, note . 477

Polka, The, 1 Spink, 447 ... . 487

Portland, The, 2 Robinson, Adm. 41 419

Potsdam, The, 4 Robinson, Adm. 89 685

Potter v. Brown, 5 East, 124 .. . 227

Princessa, The, 2 Robinson, Adm. 52 666
Prize Causes, The, 2 Black (U.S.),

635 197,376,418,710

Purissima Concepcion, The, 6 Robin-
son, Adm. 43 717

Putnam v. Putnam, 8 Pickering, 433 151

Q.

Quinn v. Keefe, 2 H. Blackstone, 553 227

R.

Ranger, The, 6 Rob. Adm. 125 . 635, 644
Rapid, The, 8 Cranch, 155 .. . 398, 403
Edwards, 228 . .642,652
Rendsborg, The, 4 Rob. Adm. 121 . 666
Resolute, The, 33 Law Times, 80 . 169
Respublica v. Deacon, 10 Sargent &

Rawle, 125 . 182-

Respublica v. Green, 17 Massachu- *

setts, 515, 548 182

Richmond, The, 5 Rob. Adm. 325 . 635,668
Ringende Jacob, The, 1 Robinson,

Adm. 89, 91 635, 644, 663

Robbins' (Nash's) Case, Wharton's )

State Trials, 392, 456 .... > 184
Robbins, (Nash's) Case, Bee, 267 )
Robinson v. Campbell, 3 Wheaton,

212 137

Rogers v. Ragendro Dutt, 13 Moore's

Privy Council Cases, 236 ... 169
Rolla, The, 6 Robinson, Adm. 364 . 682
Rosalie & Betty, The, 2 Robinson,

Adm. 343 649, 668

Rose v. Himely, 4 Cranch, 241, 272

196, 197, 259, 377, 486

St. Lawrence, The, 8 Cranch, 434 ;
9 Cranch, 120 398

Sampson, The (unreported) . . . 709

Sansom, The, 6 Robinson, Adm. 410 461

Santa Cruz, The, 1 Robinson, Adm.
64 •. 382,463,465

Santissima Trinidad, The, 7 Whea-
ton, 283, 337, 352, 377

38, 168, 377, 479, 531

Santissima Trinidad, The, 1 Brocken-
brough, 470 . 551, 553

Santos v. Illidge 211

Sarah Christina, The, 1 Robinson,
Adm. 237, 241, 244 . . . .635,644

Savannah Pirates, The 377

Saul v. His Creditors, 17 Martin, 569,

596 136

Sedulous, The, 1 Dodson, 253 . . 477
Selkrig v. Davies, 2 Rose's Cases in

Bankruptcy, 311 219

Serhassan, The, 2 William Rob. 357 195

Shallcross v. Dyzort, 2 Glyn, J., 87 227

Short Staple, The, 9 Cranch, 55 . .* 477
Siren, The, U. S. Dist. Ct. (Mass.

Dist.) 1866 319

Smith v. Buchanan, 1 East. 6 ... 227
Society for the Propagation of the
Gospel v. New Haven, 8 Wheaton,

464 342,352

Sophia, The, 6 Robinson, Adm. 138 . 717

South Carolina, The, Bee, 422 . . 169

Spalding v. Preston, 21 Vermont, 9 . 150

Spes & Irene, 5 Rob. Adm. 77, 281 . 682

Sprat v. Sprat, 4 Peters, 393 .. . 720

Staat, The, 4 Robinson, Adm. . . 668

Staat-Embden, The, 1 Rob. Adm. 26 635
Stanly v. Bernes, 3 Haggard, 393,

465 . „ 140

Steele v. Braddell, 1 Milward's Con-
sist. R. 1 "\ . 151

Stert, The, 4 Robinson, Adm. 65 . . 686

Success, The, 1 Dodson, 131 .. . 425

Susa, The, 2 Robinson, Adm. 255 . 419

Susan, The, 6 Rob. Adm. 440, note . 641
Sutton v. Sutton, 1 Russell & Mylne,

663 342

Swallow, The, Swabey, 30 .... 169

T.

Talbot v. Jansen, 3 Dallas, 133 . . 549
Talbot v. Seaman, 4 Dallas, 34; 1

Cranch, 1 460, 477

Terret v. Bartlett, 21 Vermont, 184 . 150
Thirty Hogsheads of Sugar v. Boyle,

9 Cranch, 191 421, 424

Thomas A. Scott, The, 10 Law Times,

n. s., 726 169

Thomyris, The, Edwards, 17 . . 667, 668
Tirnan's Case, 5 Best & Smith, 643 . 184
Tovey v. Lindsay, 1 Dow's Pari.

Cases, 117 .. 231

Trent, The 644 et seq.

Triheton, The, 6 Robinson, Adm. 65 680

Tropic Wind, The 684

Trotter v. Trotter, 3 Wilson & Shaw,

407 141

Tulip, The, 3 Washington, 181 . . 644
Twee Gebroeders, The, 3 Robinson,

Adm. 336 270, 521

Twee Juffrowen, The, 4 Robinson,

Adm. 242 635

Twende Brodre, The, 4 Rob. Adm. 33 635
Two Friends, The, 1 Rob. Adm. 278 477
Two Nancies, The, 2 and 3 Robinson,

Adm. 122 668

xliv

TABLE OF CASES CITED.

U. *

United States v. Arredondo, 6 Peters,
735 339

United States v. Barney, 3 Hall's
Law Journ. 128 169

United States v. Crosby, 7 Cranch,
115 137

United States v. Davis, 2 Sumner,
482 184

United States v. Fernandez, 10 Pe-
ters, 303 60

United States v. Gideon Henfield,
Wheaton's State Trials, 49 . . . 543

United States v. Guillem, 11 Howard,
60 417

United States v. Gurnet, Wheaton's
State Trials, 93 544

United States v. Holmes, 5 Wheaton,
412 194, 195

United States v. Cazinski, 8 Law Re-
porter, 254 557

United States v. Clintock, 5 Whea-
ton, 144, 184 194-197

United States v. Palmer, 3 "Wheaton,
610, 634 . . 36, 38, 41, 194, 195, 377

United States v. Peters, 3 Dallas, 121 544

United States v. the Pirates, 5 Whea-
ton, 185 194-196

United States v\ Quincy, 6 Peters,
445 556

United States v. Reynes, 9 Howard,
127 718

United States v. Rice, 4 Wheaton,
246 421,436

United States v. Rogers, 4 Howard,
467,572 60

United States v. Smith, 5 Wheaton,
157 192

United States v. Stowell, 2 Curtis,
160 184

V.

Valerino v. Thompson, 3 Selden

(N.Y.), 576 325

Venus, The, 8 Cranch, 253, 277 . 417, 419
Veremaitre's Case, 3 Am. Law

Journal, 438 184

Yigilantia, The, 1 Rob. Adm. 1 . 419, 425
Virginie, La, 5 Robinson, Adm. 99 . 507
Vrow Anna Catharina, The, 5 Robin-
son, Adm. 150 . . 422,425,524,666
Vrow Judith, The, 1 Rob. Adm. 150 685

W.

War Onskan, The, 2 Robinson, Adm.

199 460, 715

Ware v. Hylton, 3 Dallas, 242 . 139, 390
Warrender v. Warrender, 9 \

Bligh, 129 f m 231

Warrender v. Warrender, 2 i '
. Clark & Finelly, 488 . )
Washburn's Case, 4 Johnson's \

Ch. 196 \ 1R2 m

Washburn's Case, 3 Wharton's I 10Z> 10*

Criminal Trials, 473 . . '
Welvaart Van Pillaw, The, 1 Robin-
son, Adm. 128 684, 687

West Cambridge v. Lexington, 1

Pickering, 506 151

Wight, The, 6 Robinson, Adm. 315 . 473
William, The, 5 Robinson, Adm.

349, 385 667, 668

Wolff v. Oxholm, 6 Maule & Selwyn,

92 391

Worcester v. Georgia, 6 Peters, 515 60

Z.

Zelden Rust, The, 6 Rob. Adm. 93 . 635

TABLE

PRINCIPAL MATTERS IN THE EDITOR'S NOTES.

• No. Page.

7 21

8 22

10 25

11

27

15

34

16

41

18

49

20

55

21

55

24

60

26

61

27

64

30

77

31

79

32 82

36 97

Jus and Lex.

International Law extended to
Turkey and China.

Prize Jurisdiction in the United
States.

Sources of International Law.

Kecognition of Belligerency.

Recognition of Independence.

Texan Bonds.

The Ionian Republic.

The Danubian Principalities.

Indian Titles in the United
States.

Hungary.

Poland.

The German Confederation.

The United States Judiciary.

The United States a Supreme
Government.

The Monroe Doctrine. The
Colonization Question on the
American Continent, pp-
97-100. The distinct His-
tory and Character of the
Declaration respecting Colo-
nization, 98-100. The Pana-
ma Congress, 99-101. De-
bates on the Panama Mission,
100, 101. It tests the Mon-
roe Doctrine, 101. Congress

No. Page.

37
38
40

116
118
120

never willing to commit the
Country to the Colonization
Subject, beyond the Mes-
sage, 100. President Polk
on the Texas Question, 102.
Debate on the Yucatan Ques-
tion, 102, 103. Debate on the
Clayton-Bulwer Treaty, 104,
105. The other branch of
the Monroe Doctrine re-
specting European Interven-
tion, 105. Designs of the
Despotic Powers on the Con-
tinent of Europe as to Amer-
ica, 105-109. Propositions
of Mr. Canning to the United
States, 107. The Subject in
Mr. Monroe's Cabinet, 107-
Mr. Jefferson's Advice, 107.
Mr. Canning's Proposal de-
clined, 107, 108. The actual
Declaration of Mr. Monroe
respecting European Inter-
vention, 107-109. Cuba, in
this Connection, 106, 107, 111.
Position of Congress, 109-
111.

The Greek Throne.

Intervention in Turkey.

Mediation.

xlvi

PRINCIPAL MATTERS IN THE EDITOR'S NOTES.

No. Page.

41 126

49 142

62 165

63 168

67 175

73 182

74 184

75 186

77 189

78 190

83 193

84 196

85 201

86 208

88 211

89 213

92 223

93 225

101 239

104 255

105 255

108 258

112 266

113 269

116 276

118 287

124 298

128 303

129 303

130 318

135 324

142 350

Intervention in Mexico.

Naturalization.

The Case of the Creole.

Exemption of Public Vessels
from Local Jurisdiction.

Impressment of Seamen from
Foreign Vessels.

Extradition.

Piracy, in Extradition Treaties.

Judicial Construction of Extra-
dition Treaties.

Extradition by a State of its
own Subjects.

Later Extradition Treaties.

Piracy.

Rebels as Pirates.

Slave Trade as Piracy.

The Case of the Amedie, and
subsequent Cases. Slave
Trade. Seizure under Mu-
nicipal Law.

The Case of the Antelope.
Slave Trade.

Slave Trade. Visit and Search.

Limitations and Prescription.

Extra-territorial Effect of Bank-
rupt Laws.

International Prescription.

Guano Islands.

Territorial Waters. The Ma-
rine League ; Cannon-shot.

Municipal Seizures beyond the
Marine League.

The Sound Dues. Tolls on the
Elbe.

National Appropriation of Open
Seas.

The Scheldt Dues.

Navigation of the St. Law-
rence, the Great Lakes, and
South American Eivers.

Passports.

Criminal Jurisdiction by Am-

Diplomatic Immunity in For-
eign States.

Liens on Public or Diplomatic
Property.

Privileges of Consuls.

The North-eastern Fisheries.

No.

Page

143

352

147

364

151

370

152

372

153

374

156 387

157 391

158
166
169

400

428
432

170 449

171 451

173

453

175

466

183

475

184

476

186

480

196

504

199

506

202

514

207

521

208

524

215 536

Effect of War on Treaties.

Treaty Obligations to aid in
Defensive Wars.

Reprisals.

Embargo.

Belligerent Powers exercised
in Civil Wars.

Enemy's Property found in the
Country on the Breaking-out
of Civil War.

Confiscation of Private Debts
due to Enemies.

Intercourse with Enemies.

Usages*of War.

Conquest and Belligerent Oc-
cupation.

Restitution of the Collections
at the Louvre.

Distinction between Enemy's
Property at Sea and on Land.

Privateering.

Recaptures.

Rescue by Neutrals.

Salvage for Rescue or Recap-
ture.

Prize Jurisdiction.

License to trade with Enemies.

Ransom.

Neutrality of Switzerland and
Savoy.

The Case of the Chesapeake.

Belligerent Acts in Neutral
Waters.

The Neutrality or Foreign En-
listment Acts of the United
States and England. (I.)
Political History of the Sub-
ject in the United States be-
fore the passage of the Acts.
(II.) Judicial Constructions
of the Acts. (III.) Political
History of the Subject since
the passage of the Acts.
(IV.) The British Foreign-
Enlistment Acts ; their Polit-
ical and Judicial History.
The Statutes and their En-
forcement and Construction
during the Civil War in the
United States, 1861-65.

PRINCIPAL MATTERS IN THE EDITOR'S NOTES.

xlvii

No. Page.
223 606

226

228

629
637

230 663

231 667

Free Ships, Free Goods, Politi-
cal and Judicial History of
the Maxim.

Contraband of War.

Carrying Hostile Persons and
Papers. The early English
Decisions as to engaging in
the Enemy's Service, carry-
ing Despatches, &c. The
Results of the English Cases.
The Case of the Trent.
European Writers »on the
Trent Case. Political His-
tory of the Trent Case.
Right of a Belligerent to take
Hostile Military Persons from
a Neutral Vessel. Postal
Vessels and Mail-bags.

Penalty for carrying Contra-
band.

Continuous Voyages. In Cases
of Blockade, Contraband,

No.

Page.

Trading with the Enemy,
&c.

232

671

Commercial Blockades.

233

674

Effective Blockades.

235

680

Notifications of Blockades,
Warnings, &c.

239

687

Municipal Surveillance, as dis-
tinguished from Blockade.

240

688

The Case of the Cagliari.

242

692

Convoy. Right of Search of
Convoyed Vessel. Neutral
Convoy.

243

698

Neutral Goods in armed Ene-
my Merchantmen.

245

708

Neutrals under Enemy Con-
voy.

246

710

Declarations of War.

250

714

The Treaty -making Power un-
der the United States Con-
stitution.

258

722

Treaties of Peace.

ELEMENTS OF INTEKSTATICXNAL LAW.

PART FIRST.

DEFINITION, SOURCES, AND SUBJECTS OF INTER-
NATIONAL LAW.

CHAPTER I.

DEFINITION AND SOURCES OF INTERNATIONAL LAW.

§ 1. There is no legislative or judicial authority, rec- Origin of
ognized by all nations, which determines the law that ai Law.
regulates the reciprocal relations of States. The origin of this law
must be sought in the principles of justice, applicable to those
relations. While in every civil society or State there is always a
legislative power which establishes, by express declaration, the
civil law of that State, and a judicial power, which interprets
that law, and applies it to individual cases, in the great society
of nations there is no legislative power, and consequently there
are no express laws, except those which result from the conven-
tions which States may make with one another. As nations
acknowledge no superior, as they have not organized any com-
mon paramount authority, for the purpose of establishing by an
express declaration their international law, and as they have not
constituted any sort of Amphictyonic magistracy to interpret and
apply that law, it is impossible that there should be a code of inter-
national law illustrated by judicial interpretations.

The inquiry must then be, what are the principles of justice
which ought to regulate the mutual relations of nations, that is
to say, from what authority is international law derived.

When the question is thus stated, every publicist will decide
it according to his own views, and hence the fundamental dif-
ferences which we remark in their writings.

§ 3 DEFINITION AND SOUKCES [PART I.

Natural § 2. The leading pbject of Grotius, and of his immedi-

Law denned. a^e disciples and successors, in the science of which he
was the founder, seems to have been, First, to lay down those rales
of justice which would be binding on men living in a social state,
independently of any positive laws of human institution; or, as
is commonly expressed, living together in a state of nature ; and,

Secondly, To apply those rules, under the name of Natural
Law, to the mutual relations of separate communities living in
a similar state with respect to each other.

With a view to the first of these objects, Grotius sets out in
his work, on the rights of war and peace, (de jure belli ac pads,}
with refuting the doctrine of those ancient sophists who wholly
denied the reality of moral distinctions, and that of some modern
theologians, who asserted that these distinctions are created en-
tirely by the arbitrary and revealed will of God, in the same
manner as certain political writers, (such as Hobbes,) afterwards
referred them to the positive institution of the civil magistrate.
For this purpose, Grotius labors to show that there is a law
audible in the voice of conscience, enjoining some actions, and
forbidding others, according to their respective suitableness or
repugnance to the reasonable and social nature of man. " Nat-
ural law," says he, " is the dictate of right reason, pronouncing
that there is in some actions a moral obligation, and in other
actions a moral deformity, arising from their respective suitable-
ness or repugnance to the rational and social nature, and that,
consequently, such actions are either forbidden or enjoined by
God, the Author of nature. Actions which are the subject of
this exertion of reason, are in themselves lawful or unlawful,
and are, therefore, as such necessarily commanded or prohibited
by God." (a)

Natural § 3. The term Natural Law is here evidently used for
caTwiththe those rules of justice which ought to govern the conduct
orVDivine°d' °^ men? as moral and accountable beings, living in a
Law. social state, independently of positive human institutions,

(a) " Jus naturale est dictatum rectae rationis, indicans actui alicui, ex ejus con-
venientia aut disconvenientia cum ipsa natura rationali, inesse moralem turpitudinem,
aut necessitatem moralem, ac consequenter ab auctore naturae, Deo, talem actum aut
vetari aut praecipi.

" Actus de quibus tale extat dictatum, debiti sunt aut illiciti per se, atque ideo a
Deo necessario praecepti aut vetiti intelliguntur." Grotius, de Jur. Bel. ac Pac. lib.
i. cap. 1, § x. 1, 2.
4

PART I.] OF INTERNATIONAL LAW. § 4

(or, as is commonly expressed, living in a state of nature,) and
which may more properly be called the law of God, or the divine
law, being the rule of conduct prescribed by Him to his rational
creatures, and revealed by the light of reason, or the sacred
Scriptures.1

As independent communities acknowledge no common La^a*ur{jJed
superior, they may be considered as living in a state of to the inter-
nature with respect to each other : and the obvious in- states.
ference drawn by the disciples and successors of Grotius was, that
the disputes arising among these independent communities must
be determined by what they call the Law of Nature. This gave
rise to a new and separate branch of the science, called the Law of
Nations, Jus Gentium?

§ 4. Grotius distinguished the law of nations from the Law of
natural law by the different nature of its origin and ^n^shed8"
obligation, which he attributed to the general consent ^a^"
of nations. In the introduction to his great work, he Grotius.'
says, " I have used in favor of this law, the testimony of philoso-
phers, historians, poets, and even of orators ; not that they are
indiscriminately to be relied on as impartial authority ; since they
often bend to the prejudices of their respective sects, the nature
of their argument, or the interest of their cause; but because
where many minds of different ages and countries concur in the
same sentiment, it must be referred to some general cause. In
the subject now in question, this cause must be either a just
deduction from the principles of natural justice, or universal con-
sent. The first discovers to us the natural law, the second the
law of nations. In order to distinguish these two branches of
the same science, we must consider, not merely the terms which
authors have used to define them, (for they often confound the
terms natural law and law of nations^) but the nature of the sub-
ject in question. For if a certain maxim which cannot be fairly
inferred from admitted principles is, nevertheless, found to be
everywhere observed, there is reason to conclude that it derives
its origin from positive institution." He had previously said, " As

\} In Maine's Ancient Law, 52-58, 73-96, will be found a full and learned discus-
sion of the jus gentium of the Romans, and the jus naturale, in its technical sense, with
the latest lights thrown on them by historical researches.] — D.

[2 Maine's Ancient Law, 47-59 ; Twiss's Intern. Law, 2, 3 ; Marezoll, Lehrbuch
der Inst, des rom. Rechtes, § 15; Woolsey's Introduction, §§ 3, 4, 9. 10.] — T>.

1* 5

§ 4 DEFINITION AND SOURCES [PART I.

the laws of each particular State are designed to promote its
advantage, the consent of all, or at least the greater number of
States, may have produced certain laws between them. And, in
fact, it appears that such laws have been established, tending to
promote the utility, not of any particular State, but of the great
body of these communities. This is what is termed the Law of
Nations, when it is distinguished from Natural Law." (a) 3

All the reasonings of Grotius rest on the distinction, which he
makes between the natural and the positive or voluntary Law of
Nations. He derives the first element of the Law of Nations from
a supposed condition of society, where men live together in what
has been called a state of nature. That natural society has no
other superior but God, no other code than the divine law engraved
in the heart of man, and announced by the voice of conscience.
Nations living together in such a state of mutual independence
must necessarily be governed by this same law. Grotius, in de-
monstrating the accuracy of his somewhat obscure definition of
Natural Law, has given proof of a vast erudition, as well as put
us in possession of all the sources of his knowledge. He then
bases the positive or voluntary Law of Nations on the consent of
all nations, or of the greater part of them, to observe, certain rules
of conduct ill their reciprocal relations. He has endeavored to
demonstrate the existence of these rules by invoking the same
authorities, as in the case of his definition of Natural Law. We
thus see on what fictions or hypotheses Grotius has founded the
whole Law of Nations. But it is evident that his supposed state
of nature has never existed. As to the general consent of na-

(a) " Usus sum etiam ad juris -hujus probationem testimoniis philosophorum, his-
toricorum, poetarum, postremo et oratorum; non quod illis indiscrete credendum
sit ; solent enim sectae, argumento, causae servire : sed quod ubi multi diversis tem-
poribus at locis idem pro certo affirmant, id ad causam universalem referri debeat ;
quae in nostris quaestionibus alia esse non potest quam aut recta illatio ex naturae
principiis procedens, aut communis aliquis consensus. Ilia jus naturae indicat, hie
jus gentium: quorum discrimen non quidem ex ipsis testimoniis, (passim enim
scriptores voce juris naturae, et gentium permiscent,) sed ex materiae qualitate intelli-
gendum est. Quod enim ex certis principiis certa argumentatione deduci non potest,
et tamen ubique observatum apparet, sequitur ut ex voluntate libera ortum habeat."

" Sed sicut cuj usque civitatis jura utilitatem suae civitatis respiciunt, ita

inter civitates aut omnes aut plerasque ex consensu jura quaedam nasci potuerunt ; et
nata apparent, quae utilitatem respicerent non ccetuum singulorum sed magnae illius
universitatis. Et hoc jus est quod gentium dicitur, quo ties id nomen a jure naturali
distinguimus." Grotius, de Jur. Bel. ac Pac. Prolegom. 40, 17.

[3 Woolsey's Introd. § 11; Maine's Ancient Law, 114.] — D.
6

PART I.] OF INTERNATIONAL LAW. |5

tions of which he speaks, it can at most be considered a tacit
consent, like the jus non scriptum quod consensus faeit of the.
Roman jurisconsults. This consent can only be established by
the disposition, more or less uniform, of nations to observe among
themselves the rules of international justice, recognized by the
publicists. Grotius would, undoubtedly, have done better had he
sought the origin of the Natural Law of Nations in the prin-
ciple of utility, vaguely indicated by Leibnitz, (5) but clearly
expressed and adopted by Cumberland, (c) and admitted by
almost all subsequent writers, as the test of international mo-
rality. (<J) But in the time that Grotius wrote, this principle
which has so greatly contributed to dispel the mist with which
the foundations of the science of International Law were obscured,
was but very little understood. The principles and details of
international morality, as distinguished from international law,
are to be obtained not by applying to nations the rules which
ought to govern the conduct of individuals, but by ascertaining
what are the rules of international conduct which, on the whole,
best promote the general happiness of mankind. The means of
this inquiry are observation and meditation ; the one furnishing
us with facts, the other enabling us to discover the connection
of these facts , as causes and effects, and to predict the results
which will follow, whenever similar causes are again put into
operation. (#)

§ 5. Neither Hobbes nor Puffendorf entertains the same Law of
opinion as Grotius upon the origin and obligatory force of Lawtf i$L
the positive Law of Nations. The former, in his work, *^ beSert"
Be Cive, says, " The natural law may be divided into the identically

tip t i i -. * n m Hobbes and

natural law ol men, and the natural law of fetates, com- Puffendorf.
monly called the Law of Nations. The precepts of both are the
same ; but since States, when they are once instituted, assume the

(b) Et jus quidem merum sive strictum nascitur ex principio servandae pads ;
sequitas sive caritas ad majus aliquid contendit, ut dum quisque alteri prodest quan-
tum potest, felicitatem suam augeat in aliena ; et ut verbo dicam, jus strictum mise-
riam vitat, jus superius ad felicitatem tendit, sed qualis in hanc mortalitatem cadit.
Leibnitz, de Usu Actorum Publicorum, § 13.

(c) Lex naturae est propositio naturaliter cognita, actiones indicans effectrices com-
munis boni. Cumberland, de Legibus Naturae, cap. v. § 1.

(d) Bentham's Principles of International Law. Works, Part VIII. 537. Edit.
Bo wring.

(e) Senior, Edinburgh Review, No. 156, pp. 310, 321.

7

§ 5 DEFINITION AND SOURCES [PART I.

personal qualities of individual men, that law, which when speak-
ing of individual men we call the Law of Nature, is called the Law
of Nations when applied to whole states, nations, or people." (a) 4
To this opinion Puffendorf implicitly subscribes, declaring that
" there is no other voluntary or positive law of nations properly in-
vested with a true and legal force, and binding as the command of
a superior power." (6)

After thus denying that there is any positive or voluntary law of
nations founded on the consent of nations, and distinguished from
the natural law of nations, Puffendorf proceeds to qualify this
opinion by admitting that the usages and comity of civilized na-
tions have introduced certain rules, for mitigating the exercise of
hostilities between them ; that these rules are founded upon a gen-
eral tacit consent ; and that their obligation ceases by the express
declaration of any party, engaged in a just war, that it will no
longer be bound by them. There can be no doubt that any belli-
gerent nation which chooses to withdraw itself from the obligation
of the Law of Nations, in respect to the manner of carrying on
war against another State, may do so at the risk of incurring the
penalty of vindictive retaliation on the part of other nations, and of
putting itself in general hostility with the civilized world. As a
celebrated' English civilian and magistrate (Lord Stowell) has well
observed, " a great part of the law of nations stands upon the usage
and practice of nations. It is introduced, indeed, by general prin-
ciples, but it travels with those general principles only to a certain
extent ; and if it stops there, you are not at liberty to go further,
and say that mere general speculations would bear you out in a
further progress ; thus, for instance, on mere general principles, it
is lawful to destroy your enemy ; and mere general principles make
no great difference as to the manner by which this is to be effected ;
but the conventional law of mankind, which is evidenced in their
practice, does make a distinction, and allows some, and prohibits

(a) Praecepta utriusque eadem sunt ; sed quia civitates semel institute inducunt
proprietates hominum personates, lex quam, loquentes de hominum singulorum
officio, naturalem dicimus, applicata totis civitatibus, nationibus sive gentibus, vocatur
jus gentium. Hobbes, De Cive, cap. xiv. § 4.

(b) Cui sententiae et nos plane subscribimus. Nee praeterea aliud jus gentium,
voluntarium seu positivum dari arbitramus, quod quidem legis propriae dictae vim
habeat, quae gentes tamquam a superiore profecta stringat. Puffendorf, De Jure
Naturae et Gentium, lib.ii. cap. 3, § 23.

[4 Maine's Ancient Law, 114; Woolsey's Introd. § 12.] — D.

PART I.] OF INTERNATIONAL LAW. § 5

other modes of destruction ; and a belligerent is bound to confine
himself to those modes which the common practice of mankind has
employed, and to relinquish those which the same practice has not
brought within the ordinary exercise of war, however sanctioned
by its principles and purposes." (c) tt1*

The same remark may be made as to what PufFendorf says re-
specting the privileges of ambassadors, which Grotius supposes to
depend upon the voluntary law of nations ; whilst Puffendorf says
they depend, either upon natural law which gives to public minis-
ters a sacred and inviolable character, or upon tacit consent, as
evidenced in the usage of nations, conferring upon them certain
privileges which may be withheld at the pleasure of the State where
they reside. The distinction here made between those privileges of
ambassadors, which depend upon natural law, and those which
depend upon custom and usage, is wholly groundless ; since both
one and the other may be disregarded by any State which chooses
to incur the risk of retaliation or hostility, these being the only
sanctions by which the duties of international law can be enforced.

Still it is not the less true that the law of nations, founded upon
usage, considers an ambassador, duly received in another State, as
exempt from the local jurisdiction by the consent of that State,
which consent cannot be withdrawn without incurring the risk of
retaliation, or of provoking hostilities on the part of the sover-
eign by whom he is delegated. The same thing may be affirmed
of all the usages which constitute the Law of Nations. They
may be disregarded by those who choose to declare themselves
absolved from the obligation of that law, and to incur the risk
of retaliation from the party specially injured by its violation, or of
the general hostility of mankind. (J) 5

(c) Robinson's Admiralty Rep. i. 140.

(d) Wheaton's History of the Law of Nations, 96.

[5 " Puffendorf commits the mistake of failing to distinguish sufficiently between
natural justice and the law of nations ; of spinning the web of a system out of his own
brain, as if he were the legislator of the world ; and of neglecting to inform us what
the world actually holds to be the law by which nations regulate their intercourse. "
Woolsey's Introd. § 12.

"Puffendorf entirely denies the authority of general usage; and his doctrine,
putting aside the mass of words that encumbers it, amounts to this : that the rules of
abstract propriety, resting merely on unauthorized speculations, and applied to inter-
national transactions, constitute international law, and acquire no additional authority
when, by the usage of nations, they have been generally received and approved of."
Wildman's Institutes, i. 28. See also Maine's Ancient Law, 96-112.] — D.

9

§ 6 DEFINITION AND SOURCES [PART I.

Law of § 6. BynkersTioek, (who wrote after Puffendorf, and be-
rived from fore Wolf and Vattel,) derives the law of nations from
usage. reason and usage, (ex ratione et usu^) - and founds usage

on the evidence of treaties and ordinances, (pacta et edicta^) with
the comparison of examples frequently recurring. In treating of
the rights of neutral navigation in time of war, he says, " Reason
commands me to be equally friendly to two of my friends who are
enemies to each other ; and hence it follows that I am not to prefer
either in war. Usage is shown by the constant, and, as it were,
perpetual custom which sovereigns have observed of making trea-
ties and ordinances upon this subject, for they have often made such
regulations by treaties to be carried into effect in case of war, and
by laws enacted after the commencement of hostilities. I have said
6y, as it were, a perpetual custom ; because one, or perhaps two
treaties, which vary from the general usage, do not alter the law of
nations." (a)

In treating of the question as to the competent judicature in
cases affecting ambassadors, he says, " The ancient jurisconsults
assert, that the law of nations is that which is observed in accord-
ance with the light of reason, between nations, if not among all, at
least certainly among the greater part, and those the most civilized.
According to my opinion, we may safely follow this definition,
which establishes two distinct bases of this law ; namely, reason
and custom. But in whatever manner we may define the law of
nations, and however we may argue upon it, we must come at last
to this conclusion, that what reason dictates to nations, and what
nations observe between each other, as a consequence of the colla-
tion of cases frequently recurring, is the only law of those who are
not governed by any other — (unicum jus sit eorum qui alio jure

non reguntur.} If all men are men, that is to say, if they make use
of their reason, it must counsel and command them certain things
which they ought to observe as if by mutual consent, and which
being afterwards established by usage, impose upon nations a recip-

(a) " Jus Gentium commune in hanc rem non aliunde licet dicere, quam ex ratione
et usu. Eatio jubet ut duobus, invicem hostibus, sed mihi amicis, aeque amicus
sim ; et inde efncitur, ne in causa, belli alterum prseferam. Usus intelligitur ex per-
petua quodammodo paciscendi edicendique consuetudine ; pactis enim Principes saepe
id egerunt in casu belli, saepe etiam edictis contra quoscunque, flagrante jam bello.
Dixi, ex perpetud quodammodo consuetudine, quia unum forte alterumve pactum, quod a
consuetudine recedit, Jus Gentium non mutat." Bynkershoek, Quaest. Jur. Pub.
lib. i. cap. 10.
10

PART I.] OF INTERNATIONAL LAW. § 7

rocal obligation ; without which law, we can neither conceive of war,
nor peace, nor alliances, nor embassies, nor commerce." (5) Again,
he says, treating the same question : " The Roman and pontifical
law can hardly furnish a light to guide our steps ; the entire ques-
tion must be determined by reason and the usage of nations. I
have alleged whatever reason can adduce for or against the ques-
tion ; but we must now see what usage has approved, for that must
prevail, since the law of nations is thence derived." (c) In a subse-
quent passage of the same treatise, he says, "It is nevertheless
most true, that the States-General of Holland alleged, in 1651, that,
according to the law of nations, an ambassador cannot be arrested,
though guilty of a criminal offence ; and equity requires that we
should observe that rule, unless we have previously renounced it.
The law of nations is only a presumption founded upon usage, and
every such presumption ceases the moment the will of the party
who is affected by it is expressed to the contrary. Huberus asserts
that ambassadors cannot acquire or preserve their rights by pre-
scription ; but he confines this to the case, of subjects who seek an
asylum in the house of a foreign minister, against the will of their
own sovereign. „I hold the rule to be general as to every privilege
of ambassadors, and that there is no one they can pretend to enjoy
against the express declaration of the sovereign, because an express
dissent excludes the supposition of a tacit consent, and there is no
law of nations except between those who voluntarily submit to it
by tacit convention." (d)

§ 7. The public jurists of the school of Puffendorf had system of
considered the science of international law as a branch Wolf*
of the science of ethics. They had considered it as the natural
law of individuals applied to regulate the conduct of independ-
ent societies of men, called States. To Wolf belongs, accord-
ing to Vattel, the credit of separating the law of nations from
, that part- of natural jurisprudence which treats of the duties of
individuals.

In the preface of his great work, he says, " That since such is
the condition of mankind that the strict law of nature cannot
always l^e applied to the government of a particular community,
but it becomes necessary to resort to laws of positive institution

(b) De Foro Legatorum, cap. iii. § 10.

(c) Ibid. cap. vii. § 8.

(d) Ibid. cap. xix. § 6.

11

§ 8 DEFINITION AND SOURCES [PART I.

more or less varying from the natural law, so in the great society
of nations it becomes necessary to establish a law of positive insti-
tution more or less varying from the natural law of nations. As
the common welfare of nations requires this mutation, they are
not less bound to submit to the law which flows from it than
they are bound to submit to the natural law itself, and the new
law thus introduced, so far as it does not conflict with the
natural law, ought to be considered as the common law of all
nations. This law we have deemed proper to term, with Grotius,
though in a somewhat stricter sense, the voluntary Law of Na-
tions." (a)

Wolf afterwards says, that " the voluntary law of nations derives
its force from the presumed consent of nations, the conventional
from their express consent ; and the consuetudinary from their
tacit consent." (6)

This presumed consent of nations (consentium gentium prce-
sumptum) to the voluntary law of nations he derives from the
fiction of a great commonwealth of nations (civitate gentium
maxima) instituted by nature herself, and of which all the nations
of the world are members. As each separate society of men is
governed by its peculiar laws freely adopted by itself, so is the
general society of nations governed by its appropriate laws freely
adopted by the several members, on their entering the same.
These laws he deduces from a modification of the natural law,
so as to adapt it to the peculiar nature of that social union,
which, according to him, makes it the duty of all nations to sub-
mit to the rules by which that union is governed, in the same
manner as individuals are bound to submit to the laws of the
particular community of which they are members. But he takes no
pains to prove the existence of any such social union or universal
republic of nations, or to show when and how all the human race
became members of this union or citizens of this republic.

Differ- § 8. Wolf differs from Grotius, as to the origin of the

option be- voluntary law of nations, in two particulars:
tiuseandr°" !• Grotius considers it as a law of positive institu-
S>ri0Iin of ^on' an(* rests its ^ligation upon the general consent
thevoiim- 0f nations, as evidenced in their practice. Wolf, on
of Nations, the other hand, considers it as a law which nature has

(a) Wolfius, Jus Gentium, Pref. § 3. (b) Wolfius, Proleg. § 25.

12

PART I.] OF INTERNATIONAL LAW. § 9

imposed upon all mankind as a necessary consequence of their
social union ; and to which no one nation is at liberty to refuse
its assent.

2. Grotius confounds the voluntary law of nations with the cus-
tomary law of nations. ' Wolf maintains that it differs in this
respect, that the voluntary law of nations is of universal obliga-
tion, whilst the customary law of nations merely prevails between
particular nations, among whom it has been established from long
usage and tacit consent.

§ 9. It is from the work of Wolf that Vattel has drawn Systems
the materials of his treatise on the law of nations. He, and Wolf.
however, differs from that publicist in the manner of establish-
ing the foundations of the voluntary law of nations. Wolf deduces
the obligations of this law, as we have already seen, from the
fiction of a great republic instituted by nature herself, and of
which all the nations of the world are members. According to
him the voluntary law of nations is, as it were, the civil law of
that great republic. This idea does not satisfy Vattel. " I do
not find," says he, " the fiction of such a republic either very
just or sufficiently solid, to deduce from it the rules of a univer-
sal law of nations, necessarily admitted among sovereign States.
I do not recognize any other natural society between nations than
that which nature has established between all men. It is the
essence of all civil society, (civitatis^) that each member thereof
should have given up a part of his rights to the body of the
society, and that there should exist a supreme authority capable
of commanding all the members, of giving to. them laws, and of
punishing those who refuse to obey. Nothing like this can be
conceived or supposed to exist between nations. Each sovereign
State pretends to be, and in fact is, independent of all others.
Even according to Mr. Wolf, they must all be considered as so
many free individuals, who live together in a state of nature,
and acknowledge no other law than that of nature itself, and its
Divine Author." (a)

According to Vattel, the Law of Nations, in its origin, is nothing
but the law of nature applied to nations.

Having laid down this axiom, he qualifies it in the same man-
ner, and almost in the identical terms of Wolf, by stating that
the nature of the subject to which it is applied -being different,

(a) Vattel, Droit des Gens, Preface.

2 13

§ 9 DEFINITION AND SOURCES [PART I.

the law which regulates the conduct of individuals must neces-
sarily be modified in its application to the collective societies of
men called nations or states. A State is a very different subject
from a human individual, from whence it results that the obliga-
tions and rights, in the two cases, are very different. The same
general rule, applied to two subjects, cannot produce the same
decisions, when the subjects themselves differ. There are, con-
sequently, many cases in which the natural law does not furnish
the same rule of decision between State and State as would be
applicable between individual and individual. It is the art of
accommodating this application to the different nature of the sub-
jects in a just manner, according to right reason, which constitutes
the law of nations a particular science.

This application of the natural law, to regulate the conduct of
nations in their intercourse with each other, constitutes what both
Wolf and Yattel term the necessary law of nations. It is neces-
sary, because nations are absolutely bound to observe it. The
precepts of the natural law are equally binding upon States as
upon individuals, since States are composed of men, and since the
natural law binds all men, in whatever relation they may stand
to each other. This is the law which Grotius and his followers
call the internal law of nations, as it is obligatory upon nations
in point of conscience. Others term it the natural law of nations.
This law is immutable, as it consists in the application to States of
the natural law, which is itself immutable because founded on the
nature of things, and especially on the nature of man.

This law being immutable, and the law which it imposes neces-
sary and indispensable, nations can neither make any changes in
it by their conventions, dispense with it in their own conduct, nor
reciprocally release each other from the observance of it. (6)

Vattel has himself anticipated one objection to his doctrine that
States cannot change the necessary law of nations by their con-
ventions with each other. This* objection is, that it would be
inconsistent with the liberty and independence of a nation to
allow to others the right of determining whether its conduct
was or was not conformable to the necessary law of nations. He
obviates the objection by a distinction which pronounces treaties
made in contravention of the necessary law of nations to be
invalid, according to the internal law, or that of conscience,

(6) Droit des Gens, Preliminaires, §§ yi. vii. viii. ix.
U

PART I.] OF INTERNATIONAL LAW. § 9

at the same time that they may be valid by the external law ;
States being often obliged to acquiesce in such deviations from
the former law in cases where they do not affect their perfect
rights, (e)

From this distinction of Vattel, flows what Wolf had denomi-
nated the voluntary law of nations, (jus gentium voluntarium,")
to which term his disciple assents, although he differs from Wolf
as to the manner of establishing its obligation. He however
agrees with Wolf in considering the voluntary law of nations as
a positive law, derived from the presumed or tacit consent of
nations to consider each other as perfectly free, independent, and
equal, each being the judge of its own actions, and responsible to
no superior but the Supreme Euler of the universe.

Besides this voluntary law of nations, these writers enumerate
two other species of international law. These are:

1. The conventional law of nations, resulting from compacts
between particular States. As a treaty binds only the contracting
parties, it is evident that the conventional law of nations is not a
universal, but a particular law.

2. The customary law of nations, resulting from usage between
particular nations. This law is not universal, but binding upon
those States only which have given their tacit consent to it.

Vattel concludes that these three species of international law,
the voluntary ', the conventional, and the customary, compose to-
gether the. positive law of nations. They proceed from the will of
nations ; or (in the words of Wolf) " the voluntary, from their pre-
sumed consent ; the conventional, from their express consent ; and
the customary, from their tacit consent." (d)

It is almost superfluous to point out the confusion in this
enumeration of the different species of international law, which
might easily have been avoided by reserving the expression,
" voluntary law of nations," to designate the genus, including all
the rules introduced by positive consent, for the regulation of
international conduct, and divided into the two species of conven-
tional law and customary law, the former being introduced by
treaty, and the latter by usage ; the former by express consent,
and the latter by tacit consent between nations, (e)

(c) Droit des Gens, Preliminaires, § ix.

(d ) Droit des Gens, Preliminaires, § xxvii. ; Wolf, Proleg. xxy.

(e) Vattel, Droit des Gens, edit, de Pinheiro Ferreira, torn. iii. p. 22.

16

§ 10 DEFINITION AND SOURCES [PART I.

Svstem of § ^' According to Heffter, one of the most recent and
Hefter. distinguished public jurists of Germany, " the law of
nations, jus gentium, in its most ancient and most extensive ac-
ceptation, as established by the Roman jurisprudence, is a law
(RecM) founded upon the general usage and tacit consent of
nations. This law is applied, not merely to regulate the mutual
relations of States, but also of individuals, so far as concerns their
respective rights and duties, having everywhere the same character
and the same effect, and the origin and peculiar form of which are
not derived from the positive institutions of any particular State."
According to this writer, the jus gentium consists of two distinct
branches :

1. Human rights in general, and those private relations which
sovereign States recognize in respect to individuals not subject to
their authority.

2. The direct relations existing between those States themselves.
" In the modern world, this latter branch has exclusively

received the denomination of law of nations, Volkerrecht, Droit
des Gens, Jus Grentium. It may more properly be called external
public law, to distinguish it from the internal public law of a
particular State. The first part of the ancient jus gentium has
become confounded with the municipal law of each particular
nation, without at the same time losing its original and essential
character. This part of the science concerns, exclusively, certain
rights of men in general, and those private relations which are con-
sidered as being under the protection of nations. It has been usually
treated of under the denomination of private international law"

Heffter does not admit the term international law (droit inter-
national) lately introduced and generally adopted by the most
recent writers. According to him this term does not sufficiently
express the idea of the jus gentium of the Roman jurisconsults.
He considers the law of nations as a law common to all mankind,
and which no people can refuse to acknowledge, and the protection
of which may be claimed by all men and by all States. He places
the foundation of this law on the incontestable principle that
wherever there is a society, there must be a law obligatory on all
its-members ; and he thence deduces the consequence that there
must likewise be for the great society of nations an analogous law.6

[6 The French translator of Heffter, M. Bergson, has entitled his work " Le Droit
International Public de TEurope ; " and Heffter has said that he did not intend the
16

PART I.] OF INTERNATIONAL LAW. § 11

" Law in general (Recht im Allgemeineri) is the external freedom
of the moral person. This law may be sanctioned and guaranteed
by a superior authority, or it may derive its force from self-protec-
tion. The jus gentium is of the latter description. A nation
associating itself with the general society of nations, thereby
recognizes a law common to all nations by which its international
relations are to be regulated. . It cannot violate this law, without
exposing itself to the danger of incurring the enmity of other
nations, and without exposing to hazard its own existence. The
motive which induces each particular nation to observe this law
depends upon its persuasion that other nations will observe towards
it the same law. The jus gentium is founded upon reciprocity of
will. It has neither lawgiver nor supreme judge, since independ-
ent States acknowledge no superior human authority. Its organ
and regulator is public opinion : its supreme tribunal is history,
which forms at once the rampart of justice and the Nemesis by
whom injustice is avenged. Its sanction, or the obligation of all
men to respect it, results from the moral order of the universe,
which will not suffer nations and individuals to be isolated from
each other, but constantly tends to unite the whole family of man-
kind in one great harmonious society." (a)

§ 11. Is there a uniform law of nations ? There cer- There is
tainly is not the same one for all the nations and states of "a0wu^ ™™d
the world. The public law, with slight exceptions, has tions-
always been, and still is, limited to the civilized and Christian

construction put upon his language by the author. He considers International Law
as a proper term to express that portion of the ancient idea of jus gentium which related
to the intercourse and obligations of independent States with each other.] — D.

(a) Heffter, Das europaische Volkerrecht, § 2.

The learned Jesuit Saurez has anticipated this view of the moral obligation of the
jus gentium. " Ratio hujus juris est, quia humanum genus, quamvis in varios populos
et regna divisum, semper habeat aliquam unitatem, non solum specificam, sed etiam
quasi politicam et moralem, quam indicat naturale praeceptum mutui amoris et niiseri-
cordise, quod ad omnes extenditur, etiam extraneos et cujuscunque nationis. Qua-
propter, licet unaquaque civitas perfecta, respublica, aut regnum, sit in se communitas
perfecta et suis membris constans, nihilominus quaelibet illarum etiam membrum
aliquo modo hujus universi prout genus humanum spectat. Nunquam enim illae com-
munitates adeo sunt sibi sufficientes sigillatim, quin indigeant aliquo mutuo juvamine,
et societate, ac communicatione, interdum ad melius esse majoremque utilitatem,
interdum vero et ob moralem necessitatem. Hac ergo ratione indigent aliquo jure,
quo dirigantur et recte ordinentur in hoc genere communicationis et societatis. Et
quamvis magna ex parte hoc fiat per rationem naturalem, non tamen sufiicienter et
immediate quoad omnia: ideoque potuerunt usu earumdem gentium introduci."
Saurez, de Legibus et Deo Legislatore, lib. ii. cap. xix. n. g.

2* 17

§ 12 DEFINITION AND SOUKCES [PAKT I.

people of Europe or to those of European origin. This distinction
between the European law of nations and that of the other races
of mankind has long been remarked by the publicists. Q-rotius
states that the jus gentium acquires its obligatory force from the
positive consent of all nations, or at least of several. " I say of
several, for except the natural law, which is also called the jus
gentium, there is no other law which is common to all nations. It
often happens, too, that what is the law of nations in one part of
the world is not so in another, as we shall show in the proper
place." (a) So also Bynkershoeh, in the passage before cited, says
that "the law of nations is that which is observed, in accordance
with the light of reason, between nations, if not among all, at least
certainly among the greater part, and those the most civilized" (5)
Leibnitz speaks of the voluntary law as established by the tacit
consent of nations. " Not," says he, " that it is necessarily the
law of all nations and of all times, since the Europeans and
the Indians frequently differ from each other concerning the ideas
which they have formed of international law, and even among us
it may be changed by the lapse of time, of which there are numer-
ous examples. The basis of international law is natural law,
which has been modified according to times and local circum-
stances." (c?) Montesquieu, in his Esprit des Lois, says, that
" every nation has a law of nations — even the Iroquois, who eat
their prisoners, have one. They send and receive ambassadors ;
they know the laws of war and peace ; the evil is, that their law
of nations is not founded upon true principles." (d)

There is then, according to these writers, no universal law of
nations, such as Cicero describes in his treatise De Republica, bind-
ing upon the whole human race — which all mankind in all ages
and countries, ancient and modern, savage and civilized, Christian
and Pagan, have recognized in theory or in practice, have pro-
fessed to obey, or have in fact obeyed.

Jus and § 12. An eminent French writer on the science of
Lex. which we propose to treat, has questioned the propriety

of using the term droit des gens (law of nations) as applicable to
those rules of conduct which obtain between independent societies

(a) De Jur. Bel. ac Pac. lib. i. cap. 1, § xiv. 4.

(6) Bynkershoek, De Foro Legatorum. Vid. supra.

(c) Leibnitz, Cod. Jur. Gent, diplom. Pref.

(d ) Esprit des Lois, liv. i. ch. 3.
18

PART I.] OF INTERNATIONAL LAW. § 12

of men. He asserts that " there can be no droit (right) where
there is no hi (law) ; and there is no law where there is no
superior : without law, obligations, properly so called, cannot
exist; there is only a moral obligation resulting from natural
reason ; such is the case between nation and nation. The word
gens imitated from the Latin, does not signify in the French
language either people or nations." (a)

The same writer has made it the subject of serious reproach to
the English language that it applies the term law to that system
of rules which governs, or ought to govern, the conduct of na-
tions in their mutual intercourse. His argument is, that law is
a rule of conduct, deriving its obligation from sovereign author-
ity, and binding only on those persons who are subject to that
authority; — that nations, being independent of each other, ac-
knowledge no common sovereign from whom they can receive the
law; — that all the relative duties between nations result from
right and wrong, from convention and usage, to neither of which
can the term law be properly applied ; — that this system of rules
had been called by the Roman lawyers the jus gentium, and in all
the languages of modern Europe, except the English language, the
right of nations, or the laws of war and peace, (h)

That very distinguished legal reformer, Jeremy Bentham, had
previously expressed the same doubt how far the rules of conduct
which obtain between nations can with strict propriety be called
laws, (c) And one of his disciples has justly observed, that " laws,
properly so called, are commands proceeding from a determinate
rational being, or a determinate body of rational beings, to
which is annexed an eventual evil as the sanction. Such is
the law of nature, more properly called the law of God, or the
divine law; and such are political human laws, prescribed by
political superiors to persons in a state of subjection to their
authority. But laws imposed by general opinion are styled laws
by an analogical extension of the term. Such are the laws of
honor imposed by opinions current in the fashionable world, and
enforced by appropriate sanction. Such, also, are the laws which

(a) Rayneval, Institutions du Droit de la Nature et des Gens, Note 10 du lr liv.
p. viii.

(b) Droit des gens, Fr. Diritto delle genti, Ital. Derecho de gentes, Span.
Direito das Gentes, Portug. Volkerrecht, Germ. Volkenregt, Dutch. Folkeret, Dan.
Folkratt, Swed.

(c) Bentham, Morals and Legislation, ii. 256. Ed. 1823.

19

§ 12 DEFINITION AND SOUKCES [PART I.

regulate the conduct of independent political societies in their
mutual relations, and which are called the law of nations, or
international law. This law obtaining between nations is not
positive law; for every positive law is prescribed by a given
superior or sovereign to a person or persons in a state of subjec-
tion to its author. The rule concerning the conduct of sovereign
States, considered as related to each other, is termed law by its
analogy to positive law, being imposed upon nations or sovereigns,
not by the positive command of a superior authority, but by
opinions generally current among nations. The duties which it
imposes are enforced by moral sanctions : by fear on the part of
nations, or by fear on the part of sovereigns, of provoking general
hostility, and incurring its probable evils, in case they should
violate maxims generally received and respected." (d)

This law has commonly been called the jus gentium in the
Latin, droit des gens in the French, and law of nations in the
English language. It was more accurately termed the jus inter
gentesy the law between or among nations, for the first time, by
Dr. Zouch, an English civilian and writer on the science, dis-
tinguished in the celebrated controversy between the civil and
common lawyers during the reign of Charles II., as to the
extent of the Admiralty jurisdiction. He introduced this term
as more appropriate to express the real scope and object of this
law. (/) An equivalent term in the French language was subse-
quently proposed by Chancellor D'Aguesseau, as better adapted
to express the idea properly annexed to that system of jurispru-
dence commonly called le droit des gens, but which, according to
him, ought properly to be termed le droit entre les gens, (/) The
term international law has been since proposed by Mr. Bentham
as well adapted to express in our language, " in a more signifi-
cant manner that branch of jurisprudence, which commonly goes
under the name of law of nations, a denomination so uncharacter-
istic, that were it not for the force of custom, it would rather seem
to refer to internal or municipal jurisprudence." (#) The terms
international law and droit international have now taken root in .the
English and French languages, and are constantly used in all

(d) Austin, Province of Jurisprudence determined, 147, 207.

(e) Zouch, Juris et Judicii Fecialis, sive Juris inter Gentes. Lond. 1650.
(/) (Euvres de D'Aguesseau, torn. ii. p. 337. Ed. 1773.

(g) Bentham, Morals and Legislation, ii. 256.
20

PART I.] OF INTERNATIONAL LAW. § 13

discussions connected with the science, and we cannot agree with
Heffter in proscribing them.7

§ 13. According to Savigny, " there may exist between opinion of
different nations the same community of ideas which con- Savigny.
tributes to form the positive unwritten law {das positive Recht) of a
particular nation. . This community of ideas, founded upon a com-
mon origin and religious faith, constitutes international law as we
see it existing among the Christian States of Europe, a law which
was not unknown to the people of antiquity, and which we find
among the Romans under the name of jus feciale. International
law may therefore be considered as a positive law, but as an imper-
fect positive law, (eme unvollendete Rechtsbildung ,) 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. The progress of civilization, founded
on Christianity, has gradually conducted us to observe a law anal-

V

[7 Jus and Lex. — This seems to be merely a question of nomenclature. The object
is to find the most suitable term by which to designate those rules of conduct which
govern nations in their intercourse with each other. There seems to be no reason in
the nature of things why the term jus gentium, and the corresponding words in modern
languages, droit des gens (or, des nations), and law of nations, should not be satisfactory.
The objection is only that the Romans did in fact use the term jus gentium in a wider
sense, so as to include more than we seek to express. But that objection has never
attached itself to the corresponding words in the languages of modern Europe. Still, to
obviate the objection that such wider and more undefined sense might be transferred
from one to the other, the new terms, International law, Jus inter gentes, Droit Interna-
tional, Derecho Internacional, &c, have been invented, and apparently for no other rea-
son. As technical terms, they will probably be continued ; but, in ordinary discourse,
the older terms, Law of Nations, Droit des gens, &c, are more commonly used, and
with a signification not misunderstood, or liable to doubt. The infirmity of the Eng-
lish language in having but one word, " law," by which to express the two ideas the
Romans expressed by jus and lex, and the French express by droit and hi, the Ger-
mans by Recht and Gesetz, and for which all other modern nations seem to have two
words, appears to be beyond remedy. None has even been proposed. But, in prac-
tice, the word "law " is understood by its context, as is the case with a great number of
words : and no one, speaking of a law of nations, or an international law, would under-
stand the word in the sense of lex or hi, as distinguished from jus and droit ; for all
who 'use the English language are obliged to make a corresponding distinction,
secundum subjectam materiam, wherever the word " law " is employed, in matters
human or divine. See Manning on Intern. Law, 2; Heron's Hist, of Jurisprudence,
146 ; Felix, Droit Intern. Prive, ch. i. § 1, note 1 ; Hautefeuille, Droits des Nations
Neutres, i. 3. The Spanish writers, Riquelme and Bello use the term Derecho Inter-
nacional. Kent's Comm. i. 2, note a ; Westlake's Pr. Intern. Law, 1 ; Phillemore's
Intern. Law, i. 2; Woolsey's Introd., § 9.] — D.

21

§ 13 DEFINITION AND SOURCES [PART I.

ogous to this in our intercourse with all the nations of the globe,
whatever may be their religious faith, and without reciprocity on
their part." (a)

It may be remarked, in confirmation of this yiew, that the
more recent intercourse between the Christian nations in Europe
and America and the Mohammedan and Pagan nations of Asia
and Africa indicates a disposition, on the part of the latter, to
renounce their, peculiar international usages and adopt those of
Christendom. The rights of legation have been recognized by,
and reciprocally extended to, Turkey, Persia, Egypt, and the
States of Barbary. The independence and integrity of the Otto-
man Empire have been long regarded as forming essential ele-
ments in the European balance of power, and, as such, have
recently become the objects of conventional stipulations between
the Christian States of Europe and that Empire, which may be
considered as bringing it within the pale of the public law of the
former. (&)

The same remark may be applied to the recent diplomatic
transactions between the Chinese Empire and the Christian nations-
of Europe and America, in which the former has been compelled
to abandon its inveterate anti-commercial and anti-social princi-
ples, and to acknowledge the independence and equality of other
nations in the mutual intercourse of war and peace.8

(a) Savigny, System des heutigen romischen Rechts, 1 B'd, 1 Buch, Kap. ii. § 11.

(b) Wheaton's Hist. Law of Nations, 583.

[8 By the Treaty of Paris, of March 30, 1856, the great powers invited the Sultan
to participate in the advantages of the public law and system of Europe. There are
treaties of the Sultan with Austria, Venice, and Poland, in 1699 ; with Austria in 1718
(the Peace of Passarowitz) ; and with Russia in 1774, 1792, 1812, 1826, 1829, and 1833.
The United States and the maritime nations of Europe have treaties with China and
Japan, and ministers resident at Peking and Yedo. The United States have treaties
with China, of 1844 and 1858 ; and with Japan, of 1854 and 1858 ; with the Ottoman
Empire, of 1830 and 1862; with Siam, of 1833 and 1858; with Algiers, of 1795, 1815,
and 1816; Tripoli, of 1796 and 1805; Tunis, of 1799 and 1824; Persia, of 1856 ; the
Sultan of 'Muscat, of 1833 ; Morocco, of 1836 ; and Borneo, of 1850.

The most remarkable proof of the advance of Western civilization in the East, is the
adoption of this work of Mr. Wheaton, by the Chinese Government, as a text-book
for its officials, in International Law, and its" translation into that language, in 1864,
under imperial auspices. The translation was made by the Rev. W. A. P. Martin,
D.D., an American missionary, assisted by a commission of Chinese scholars ap-
pointed by Prince Kung, Minister of Foreign Affairs, at the suggestion of Mr. Bur-
lingame, the United States Minister, to whom the translation is dedicated. Already
this work has been quoted and relied upon by the Chinese Government, in its diplo-
matic correspondence with ministers of Western Powers resident at Peking.] — D.
22

PART I.] OF INTERNATIONAL LAWV § 15

5 14. International law, as unde&tood among civilized Definition

. s: l\ of mterna-

nations, may be denned as Jjonsistuig of those rules of tionai law.
conduct which reason deuces, as consonant to justice, from the
nature of the society "existing among independent nations ; with
such definitions and modifications as may be established by general
consent. (#) 9

§ 15. The various sources of international law in these Sources of
different branches are the following : — a*i law? 10n~

1. Text-writers of authority, showing what is the approved
usage of nations, or the general opinion respecting their mutual
conduct, with the definitions and modifications introduced by
general consent.

Without wishing to exaggerate the importance of these writ-
ers, or to substitute, in any case, their authority for the principles
of reason, it may be affirmed that they are generally impartial
in their judgment. They are witnesses of the sentiments and
usages of civilized nations, and the weight of their testimony

(a) Madison, Examination of the British Doctrine which subjects to Capture a
Neutral Trade not open in Time of Peace, 41. London ed. 1806.

[9 Halleck defines the Law of Nations to be" the rules of conduct regulating the
intercourse of States." Halleck's Intern. Law, 42.

Woolsey defines it as " the aggregate of the rules which Christian States acknowl-
edge as obligatory in their relations to each other and to each other's subjects."
Woolsey's Introd. § 5.

Professor Cairns says : " International law is the formal expression of the public
opinion of the civilized world respecting the rules of conduct which ought to govern
the relations of independent nations, and is, consequently, derived from the source from
which all public opinion flows, — the moral and intellectual convictions of mankind."

Kent describes it as " that code of public instruction which defines the rights and
prescribes the duties of nations in their intercourse with each other," and as existing
" according to the general usages of nations." Kent's Comm. i. 1.

" Self-protection and intercourse are the two sources of international law. They
make it necessary ; and the conception in man of justice, of rights and obligations, must
follow, because he has a moral nature." Woolsey's Introd. § 6, note.

Austin points out the fault of the older Continental writers in confounding rules of
international morality, as, in their opinion, they should be, with the actual international
law in operation among nations. Province of Jurisprudence, 235, note. Hautefeuille
divides international law into two parts, which he calls primitif and secondaire, — the
first containing, as he says, the principles, the absolute basis, of the law; and the second,
the measures or provisions for calling up these principles and securing their execution.
Droits des Nations Neutres i. 6-13. In the application of this theory, it will be found
that the distinguished writer usually treats the primitive law, or the well or fountain
of first principles, as of actual authority, where no express agreement departs from it ;
and so much of the practice of nations as consists in judicial decisions adopted,
enforced, and acquiesced in, he considers as of less authority than the primitive law
as it lies in the breast of the text- writers.] — D.

23

§ 15 DEFINITION AND SOURCES [PART I.

increases every time that their authority is invoked by states-
men, and every year that passes without the rules laid down in
their works being impugned by the avowal of contrary prin-
ciples.

2. Treaties of peace, alliance, and commerce declaring, modi-
fying, or denning the pre-existing international law.

What has been called the positive or practical law of nations
may also be inferred from treaties ; for though one or two treaties,
varying from the general usage and custom of nations, cannot
alter the international law, yet an almost perpetual succession of
treaties, establishing a particular rule, will go very far towards
proving what that law is on a disputed point. Some of- the most
important modifications and improvements, in the modern law of
nations have thus originated in treaties, (a)

" Treaties," says Mr. Madison, " may be considered under
several relations to the law of nations, according to the several
questions to be decided by them."

" They may be considered as simply repeating or affirming the
general law; they may be considered as making exceptions to
the general law, which are to be a particular law between the
parties themselves ; they may be considered explanatory of the
law of nations on points where its meaning is otherwise obscure
or unsettled, in which they are, first, a law between the parties
themselves, and next, a sanction to the general law, according
to the reasonableness of the explanation, and the number and
character of the parties to it ; lastly, treaties may be considered
a voluntary or positive law of nations." (5)

3. Ordinances of particular States, prescribing rules for the
conduct of their commissioned cruisers and prize tribunals.

The marine ordinances of a State may be regarded, not only
as historical evidences of its practice with regard to the rights of
maritime war, but also as showing the views of its jurists with
respect .to the rules generally recognized as conformable to the
universal law of nations. The usage of nations, which consti-
tutes the law of nations, has not yet established an impartial
tribunal for determining the validity of maritime captures. Each
belligerent State refers the jurisdiction over such cases to the
courts of admiralty established under its own authority within

(a) Bynkershoek, Quest. Jur. Pub. lib. i. cap. 10.
(6) Madison, Examination of the British Doctrine, &c, 39.
24

PART I.] OF INTERNATIONAL LAW. § 15

its own territory, with a final resort to a supreme appellate
tribunal, under the direct control of the executive government.
The rule by which the prize courts thus constituted are bound
to proceed in adjudicating such cases, is not the municipal law
of their own country, but the general law of nations, and the
particular treaties by which their own country is bound to other
States. They may be left to gather the general law of nations
from its ordinary sources in the authority of institutional writers ;
or they may be furnished with a positive rule by their own
sovereign, in the form of ordinances, framed according to what
their compilers understood to be the just principles of interna-
tional law.10

The theory of these ordinances is well explained by an emi-
nent English civilian of our own times. " When," says Sir
William Grant, " Louis XIV. published his famous ordinance
of 1681, nobody thought that he was undertaking to legislate
for Europe, merely because he collected together and reduced
into the shape of an ordinance the principles of marine law as
then understood and received in Prance. I say as understood
in Prance, for although the law of nations ought to be the same
in every country, yet as the tribunals which administer the law
are wholly independent of each other, it is impossible that some
differences shall not take place in the manner of interpreting and
administering it in the different countries which acknowledge its
authority. Whatever may have been since attempted it was
not, at the period now referred to, supposed that one State could
make or alter the law of nations, but it was judged convenient

[10 In the United States, the prize jurisdiction is not given to commissions ap-
pointed by the executive government, but to the regular and standing courts of the
republic, whose judges have a permanent and independent tenure, being appointed
by the President, confirmed by the Senate, and holding for life, subject to be removed
only upon conviction after impeachment. In matters of prize law, the rules laid
down by their own government on the subject, whether as interpretations of the
rules of war, or as deviations from them, are binding upon the courts., In the
absence of such, they must presume their government intends to act in conformity
with the practice of nations. A rule of war, adopted by the proper constitutional
authority, must be accepted by the court as the actual rule for the nation in that war,
adopted on its international responsibility. These are familiar principles ; and except
as they give it color, it cannot be said that the prize courts of the United States " are
under the direct control of the executive government." All that can be said is, that,
whatever under our Constitution, in its division of functions between legislative, judi-
cial, and executive departments, is a competent legislative or executive function in
respect to the acts or rules of war, is binding on the prize courts.] — D.

3 25

§ 15 DEFINITION AND SOURCES [PART I.

to establish certain principles of decision, partly for the purpose
of giving a uniform rule to their own courts, and partly for the pur-
pose of apprising neutrals what that rule was. The French courts
have well and properly understood the effect of the ordinances of
Louis XIY. They have not taken them as positive rules binding
upon neutrals ; but they refer to them as establishing legitimate
presumptions, from which they are warranted to draw the con-
clusion, which it is necessary for them to arrive at, before they are
entitled to pronounce a sentence of condemnation." (c)

4. The adjudications of international tribunals, such as boards
of arbitration and courts of prize.

As between these two sources of international law, greater
weight is justly attributable to the judgments of mixed tribu-
nals, appointed by the joint consent of the two nations between
whom they are to decide, than to those of admiralty courts estab-
lished by and dependent on the instructions of one nation only.

5. Another depository of international law is to be found in
the written opinions of official jurists, given confidentially to
their own governments. Only a small portion of the controver-
sies which arise between States become public. Before one
State requires redress from another, for injuries sustained by
itself, or its subjects, it generally acts as an individual would do
in a similar situation. It consults its legal advisers, and is
guided by their opinion as J;o the law of the case. Where that
opinion has been adverse to the sovereign client, and has been
acted on, and the State which submitted to be bound by it was
more powerful than its opponent in the dispute, we may con-
fidently assume that the law of nations, such as it was then sup-
posed to be, has been correctly laid down. The archives of the
department of foreign affairs of every country contain a collec-
tion of such documents, the publication of which would form a
valuable addition to the existing materials of international law.(cf)

(c) Marshall on Insurance, i. 425. The commentary of Valin upon the marine
ordinance of Louis XIV., published in 1760, contains a most valuable body of mari-
time law, from which the English writers and judges, especially Lord Mansfield, have
borrowed very freely, and which is often cited by Sir W. Scott (Lord Stowell) in his
judgments in the High Court of Admiralty. Valin also published, in 1763, a separate
TraiUdes Prises, which contains a complete collection of the French prize ordinances
down to that period.

(d) Senior, Edinburgh Review, No. 156, art. 1, p. 211.

The written opinions delivered by Sir Leoline Jenkins, Judge of the High Court
of Admiralty in the reign of Charles II., in answer to questions submitted to him by
26

PART iX] OF INTERNATIONAL LAW. § 15

8. The history of the wars, negotiations, treaties of peace, and
other transactions relating to the public intercourse of nations,
may conclude this enumeration of the sources of international
law.11

the King or by the Privy Council, relating to prize causes, were published as an
Appendix to Wynne's Life of that eminent civilian. (2 vols. fol. London, 1724.)
They form a rich collection of precedents in the maritime law of nations, the value of
which is enhanced by the circumstance that the greater part of these opinions were
given when England was neutral, and was consequently interested in maintaining the
right of neutral commerce and navigation. The decisions they contain are dictated
by a spirit of impartiality and equity, which does the more honor to their author as
they were addressed to a monarch who gave but little encouragement to those virtues,
and as Jenkins himself was too much of a courtier to practise them, except in his
judicial capacity. Madison, Examination of the British Doctrine, &c, 113. Lond.
edit. 1806.

[V; Sources of International Law. — Commentators seem agreed as to what are the
sources of international law. They differ as to the relative importance and authority
of these sources. Hautefeuille, especially, gives little weight to the decisions of prize
courts, and places far before them the speculations of writers. It is noticeable that
continental writers incline the same way, although they may not go as far ; while
Wheaton, Kent, Story, Halleck, and Woolsey in America, and Phillimore, Manning,
Wildman, Twiss, and others in England, give a higher place to judicial decisions.
This is attributable to the different systems of municipal law under which they are
educated. In England and America, judicial decisions are authoritative declarations of
the common law, i.e. the law not enacted by decrees of legislators, but drawn from
the usages and practices of the people, and from reason and policy. They are, at the
same time, the highest evidence of what the law is. Under those systems, writers are
brought to the test of judicial decisions ; and even those portions of the opinions of the
court itself, not necessary to the decision of the cause before it, are termed obiter dicta,
and are not authority, but stand on no higher ground than voluntary speculations of
learned men as to what the law might prove to be in a supposed case. The continen-
tal writers, on the other hand, — living under municipal systems in which judicial de-
cisions hold no such place, and are neither precedents, authoritative declarations, nor
authentic evidence of the law, — are led by their education to look to but one authori-
tative source of law, the decrees of legislators ; and, in the absence of these, naturally
put the scientific treatises of learned men, systematic, and enriched with illustrations,
above the special decisions of tribunals on single cases, which, by their systems, do no
more than settle the particular controversy, without settling the principles evoked for
its decision. With the English and American lawyer or scholar, it is the habit of life
to consider a decision by a judicial tribunal, on an actual case, as ordinarily the best
attainable evidence of what the law applicable to that case is. The fact that parties
have been engaged in actual conflict, in which property, character, or life, have
been staked upon the law of that case, and learned counsel employed, creates a
probability that the law has been thoroughly examined, and shown in the various
lights in which open contestation tends to place it. It is thought, too, that the law
evoked by actual cases, after they have arisen and been presented, with all their con-
sequences, is more likely to be practical, than the mere abstract speculations of the
wisest. The court, too, in ascertaining the law and applying it, beside having the
aids referred to, is acting under the sanctions of public official duty on a matter known
to involve interests, which the law it shall declare will settle finally ; and with the

27

§ 15 DEFINITION AND SOURCES, ETC. [PART I.

further caution of knowing that the principle or rule it adopts is to become a general
precedent for the law of other cases, and to be subjected afterwards to the test of
time, not only by critical examinations of text-writers, but in respect of its applica-
bility to the actual transactions of life, brought before the same or other courts, under
other circumstances and in other times.

This discussion does not require an award of general superiority between the pub-
licist and the judge. In the United States, Story and Kent were distinguished alike
in each capacity ; and, while they saw the value of their own connected systematic
treatises, and might attribute their personal fame chiefly to them, yet, on a simple and
direct question of a particular point of law, either of them would have preferred, cceteris
paribus, to stand by a decision he had made on an actual case argued and tried before
him, than on what he might have said in a treatise upon a point which had not been
the subject of his judicial decision.

But, on the subject of judicial decisions on international questions, there is another
view even higher than this. So far as international law rests on the practice of
nations, judicial decisions in prize causes are parts of the law itself. The condemna-
tion or release of a prize, the granting or withholding of the claim of a neutral, is a
sovereign act, on sovereign responsibility. The State to which the individual belongs
whose claim is rejected by the belligerent State, is not bound by the decision, but
may hold the belligerent State responsible. The custom of nations requires the
belligerent sovereign to submit the question to his own court, before he shall reject
the claim of the neutral ; but he may allow the claim, without submitting it to a
prize court, or even after the prize court shall have decided against it. If the decision
is thus adverse, and the sovereign determines to adopt it, it becomes an act of the
nation, upon national responsibility. The decision, therefore, of a prize court,
adopted and carried out by the sovereign, has double authority. It is all that a
solemn judicial decision by a magistrate can be, upon an actual case, investigated and
argued by deeply interested parties, and known by the judge to involve vast conse-
quences not only to the parties, but possibly of peace or war for nations. It is also
a national act, on national responsibilities. If a prize court decides against its own
sovereign, and his immediate interests, and he restores or makes indemnity, this is
surely better proof of what is the law on that point, than the opinion of a writer
treating of abstract questions. But it is also an inherent part of international law
itself; for it is one of those national acts that constitute that law. The same is true
in kind, though not so striking in degree, of a decision made in favor of the sovereign,
which he carries out with the acquiescence of the neutral sovereign whose subject is
the loser. And even where the belligerent carries out the decision against the remon-
strance of the neutral sovereign, and at the peril of war, or actually goes to war to
maintain it, it is a national act, — the highest possible declaration by that nation
of what, at the time, it intends to consider as the law of nations, then and after-
wards.

Every decision of a prize tribunal is, or results in, a national act. The sovereign
must either carry it out, or set it aside. The latter he will not be permitted to do,
unless it be in his own favor. As a judicial decision, it is the most solemn and
responsible opinion a learned doctor of the law can give ; and, as a national act, it is
done on the most solemn responsibility that can rest on a sovereign.

The consideration most favorable to the text- writer is his probable impartiality.
Not that, personally, he is more impartial than the magistrate, or has less of nation-
ality, but that he is engaged on a scientific treatise, where his reputation must rest on
the consistency and reasonableness of the whole, tested by time, and where he takes
up subjects in the abstract, either past transactions, whose passions and interests
28

PART I.] NATIONS AND SOVEREIGN STATES. § 17

are passed or changed, or as speculations for the future, around which interests
and passions are not formed. As an offset to this, it is to be remembered, that
the commentator will often be a man of books and speculations, rather than of
affairs ; and that the judicial habit of determining actual controversies, in full view
of both their nature and consequences, is most likely to evoke such rules of law
as will be able to hold their place among the interests, policies, passions, and neces-
sities of life.

Attempts to deduce international law from a theory that each individual is by
nature independent, and has, by an implied contract, surrendered some of his natural
rights and assumed some artificial obligations, for the purpose of establishing society
for the common advantage ; and that each State is, in like manner, independent, and
has made like concessions for a like purpose of international advantages, — such
attempts fall with the theories on which they rested. As no such state of things ever
existed, and no such arrangements or compacts have ever been made, it is safer to
draw principles of law from what is actual. Later writers, since philosophy has
dropped the theory of the social compact, go upon the assumption that men and com-
munities are by nature what they have always been found to be; that the rights
and duties of each man are by Divine ordination, originally and necessarily, those at
once of an individual and a member of society ; and that the rights and duties of a
State are, in like manner, those at once of an individual State and one among a num-
ber of States ; and that neither class of these rights or duties is artificial, voluntary, or
secondary.

In considering, therefore, whether a certain rule should or should not be adopted,
the test is not its capacity to be carried through a circuitous and artificial course,
beginning in a supposed natural independence of the human being, and ending in
another supposed entity compounded of all civilized States; but various elements
enter into the solution of international questions, and in various degrees, as fitness
to conduce to the highest and most permanent interests of nations as a whole, of
nations taken separately, differing as nations do in power and pursuits and interests,
and of the human beings that compose those societies. If the question involves high
ethics, it must be met in the faith that the highest justice is the best interest of all.
If it be a question chiefly of national advantage, and of means to an admitted end, it
must be met by corresponding methods of reasoning.] — D.

CHAPTER II.

NATIONS AND SOYEREIGN STATES.

§16. The peculiar subjects of international law are. Subjects of
Nations, and those political societies of men called 2 law?1011"
States.

§ 17. Cicero, and, after him, the modern public jurists, Definition
define a State to be a body political, or society of men, ofaState-

3* 29

§ 17 NATIONS AND SOVEREIGN STATES. [PART I.

united together for the purpose of promoting their mutual safety
and advantage by their combined strength, (a)

This definition cannot be admitted as entirely accurate and com-
plete, unless it be understood with the following limitations : —

1. It must be considered as excluding corporations, public or
private, created by the State ifeelf, under whose authority they
exist, whatever may be the purposes for which the individuals,
composing such bodies politic, may be associated. .

Thus the great association of British merchants incorporated,
first, by the crown, and afterwards by Parliament, for the pur-
pose of carrying on trade to the East Indies, could not be con-
sidered as a State, even whilst it exercised the sovereign powers
of war and peace in that quarter of the globe, without the direct
control of the crown, and still less can it be so considered since it
has been subjected to that control. Those powers are exercised
by the Bast India Company in subordination to the supreme power
of the British empire, the external sovereignty of which is repre-
sented by the company towards the native princes and people,
whilst the British government itself represents the company to-
wards other foreign sovereigns and States.

2. Nor can the denomination of a State be properly applied to
voluntary associations of robbers or pirates, the outlaws of other
societies, although they may be united together for the purpose of
promoting their own mutual safety and advantage. (6)

3. A State is also distinguishable from an unsettled horde of
wandering savages not yet formed into a civil society. The legal
idea of a State necessarily implies that of the habitual obedience
of its members to those persons in whom the superiority is vested,
and of a fixed abode, and definite territory belonging to the people
by whom it is occupied.

4. A State is #also distinguishable from a Nation, since the
former may be composed of different races of men, all subject to

(a) "Respublica est coetus multitudinis, juris consensu et utilitatis communione
societas." Cic. de Rep. 1. i. § 25.

" Potestas civilis est, qui civitati prseest. Est autem civitas coetus perfectus libero-
rum hominum, juris fruendi et communis utilitatis causa sociatus." Grotius, de Jur.
Bel. ac Pac. lib. i. cap. i. § xiv. No. 2. Vattel, Prelim. § 1, et liv. 1, ch. 1, § 1.
Burlamaqui, Droit Naturel, torn. ii. part 1, ch. 4.

(b) . . . " nee coetus piratarum aut latronum civitas est, etiam si forte aequalitatem
quandam inter se servent, sine qua nullus coetus posset consistere." Grotius, de Jur.
Bel. ac Pac. lib. iii. cap. iii. § ii. No. 1.

30

PART I.] NATIONS AND SOVEREIGN STATES. § 20

the same supreme authority. Thus the Austrian, Prussian, and
Ottoman empires, are each composed of a variety of nations
and people. So, also, the same nation or people may be subject
to several States, as is the case with the Poles, subject to the
dominion of Austria, Prussia, and Eussia, respectively.

§ 18. Sovereign princes may become the subjects of Sovereign

# i« * -I • -t prmcCo trie

international law, in respect to their personal right, or subjects of
rights of property, growing out of their personal relations S law? 10n"
with States foreign to those over whom they rule, or with the
sovereigns or citizens of those foreign States. These relations
give rise to that branch of the science which treats of the rights of
sovereigns in this respect.12

§ 19. Private individuals, or public and private cor- individu-
porations may, in like manner, incidentally, become the ^rations1,"
subjects of this law in regard to rights growing out of of^^na-8
their international relations with foreign sovereigns and tional law-
states, or their subjects and citizens. These relations give rise to
that branch of the science which treats of what has been termed
private international law, and especially of the conflict between the
municipal laws of different States.13

But the peculiar objects of international law are those The terms
direct relations which exist between nations and states. andTtate
"Wherever, indeed, the absolute or unlimited monarchical nonymous-
form of government prevails in any State, the person of Jy> or the ,

° L * *■ former used

the prince is necessarily identified with the State itself: metaphori-
VEtat c'est moi. Hence the public jurists frequently use Ster.01
the terms sovereign and State as synonymous. So also the term
sovereign is sometimes used in a metaphorical sense merely to
denote a State, whatever may be the form of its government,
whether monarchical, or republican, or mixed.

§ 20. Sovereignty is the supreme power by which any sovereign-
State is governed. This supreme power may be exer- ty defined-
cised either internally or externally.

Internal sovereignty is that which is inherent in the Internal
people of any State, or vested in its ruler, by its muni- sovereignty.
cipal constitution or fundamental laws. This is the object of what

[12 On the conflicting rights and duties of a person who is a sovereign over one
State, and a subject in another, see Heflter, § 52.] — D.

[13 On this branch of Law, see Story's Conflict of Laws ; Westlake's Private
International Law; Burge's Commentaries; Folix's Traite du Droit International
Prive ; Savigny's System des Romischen Rechtes, vol. viii. (translated into French by

31

§ 21 NATIONS AND SOVEREIGN STATES. [PAET I.

has been called internal public law, droit public interne, but which
may more properly be termed constitutional law.

External External sovereignty consists in the independence of
sovereignty. one political society, in respect to all other political
societies. It is by the exercise of this branch of sovereignty that
the international relations of one political society are maintained,
in peace and in war, with all other political societies. The law by
which it is regulated has, therefore, been called external public
law, droit public externe, but may more properly be termed inter-
national law.

The recognition of any State by other States, and its admission
into the general society of nations, may depend, or may be made
to depend, at the will of those other States, upon its internal con-
stitution or form of government, or the choice it may make of its
rulers. But whatever be its internal constitution, or form of
government, or whoever may be its rulers, or even if it be dis-
tracted with anarchy, through a violent contest for the government
between different parties among the people, the State still subsists
in contemplation of law, until its sovereignty is completely extin-
guished by the final dissolution of the social tie, or by some other
cause which puts an end to the being of the State.

Sovereign- § 21. Sovereignty is acquired by a State, either at the
quiredWa°" origin of the civil society of which it is composed, or
when it separates itself from the community of- which it previously
formed a part, and on which it was dependent, (a)

This principle applies as well to internal as to external sover-
eignty. But an important distinction is to be noticed, in this
respect, between these two species of sovereignty. The internal
sovereignty of a State does not, in any degree, depend upon its
recognition by other States. A new State, springing into exist-
ence, does not require the recognition of other States to confirm its
internal sovereignty. The existence of the State de facto is suffi-
cient, in this respect, to establish its sovereignty de jure. It is a
State because it exists.

Thus the internal sovereignty of the United States of America
was complete from the time they declared themselves " free,
sovereign, and independent States," on the 4th of July, 1776. It

Guenoux, as Traite de Droit Romaine) ; Walker's Introd. to American Law, edit. 2,
647, &c. ; and, for the general literature of this subject, see MoM's Geschichte und
Literatur der Staatswissenschaften, i. 441, &c.

(a) Kliiber, Droit des Gens Moderne de TEurope, § 23.
32

PART I.] NATIONS AND SOVEREIGN STATES. § 22

was upon this principle that the Supreme Court determined, in
1808, that the several States composing the Union, so far as
regards their municipal regulations, became entitled, from the
time when they declared themselves independent, to all the rights
and powers of sovereign States, and that they did not derive them
from concessions made by the British king. The treaty of peace
of 1782 contained a recognition of their independence, not a
grant of it. From hence it resulted, that the laws of the several
State governments were, from the date of the declaration of inde-
pendence, the laws of sovereign States, and as such were obligatory
upon the people of such State from the time they were enacted.
It was added, however, that the court did not mean to intimate
the opinion, that even the law of any State of the Union, whoso
constitution of government had been recognized prior to the 4th of
July, 1776, and which law had been enacted prior to that period,
would not have been equally obligatory. (5) 14

The external sovereignty of any State, on the other hand, may re-
require recognition by other States in order to render it perfect and
complete. So long, indeed, as the new State confines its action to
its own citizens, and to the limits of its own territory, it may well
dispense with such recognition. But if it desires to enter into that
great society of nations, all the members of which recognize rights
to which they are mutually entitled, and duties which they may be
called upon reciprocally to fulfil, such recognition becomes essen-
tially necessary to the complete participation of the new State in all
the advantages of this society. Every other State is at liberty to
grant, or refuse, this recognition, subject to the consequences of
its own conduct in this respect ; and until such recognition be-
comes universal on the part of the other States, the new State
becomes entitled to the exercise of its external sovereignty as to
those States only by whom that sovereignty has been recognized.

§ 22. The identity of a State consists in its having the identity
same origin or commencement of existence ; and its dif- of a State-
ference from all other States consists in its having a different
origin or commencement of existence. A State, as to the indi-
vidual 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

(b) Cranch's Rep. iv. 212, M'llvaine v. Coxe's Lessee.
P Harcourt v. Gaillard, 12 Wheat. Rep. 527.] — D.

§ 23 NATIONS AND SOVEREIGN STATES. [PART I.

new members. This existence continues until it is interrupted by-
some change affecting tlie being of the State, (a)

How af- If this change be an internal revolution, merely alter-
ed rev*-" *n§ ^e municipal constitution and form of government,
lution. the State remains the same ; it neither loses any of its
rights, nor is discharged from any of its obligations, (7>)

The habitual obedience of the members of any political society
to a superior authority must have once existed in order to consti-
tute a sovereign State. But the temporary suspension of that
obedience and of that authority, in consequence of a civil war,
does not necessarily extinguish the being of the State, although it
may affect for a time its ordinary relations with other States,
of Si11!? § ^' Until tne revolution is consummated, whilst the
states to- civil war involving a contest for the government contin-

wards an- ...

other nation ues, other States may remain indifferent spectators of the
civil war.m controversy, still continuing to treat the ancient govern-
ment as sovereign, and the government 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 first case, the foreign State fulfils all its obligations
under the law of nations ; and neither party has any right to com-
plain, provided it maintains an^ impartial neutrality. In the latter,
it becomes, of course, the enemy of the party against whom it de-
clares itself, and the ally of the other ; and as the positive law of
nations makes no distinction, 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, (a) 15

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 9, § 3. Rutherforth's Inst. b. ii. c. 10,
§§ 12, 13. Heffter, Das europaische Volkerrecht, § 24.

(b) Grotius, lib. ii. cap. 9, § 8. Rutherforth, b. ii. c. 10, § 14. Puffendorf, de Jur.
Nat. et Gent. lib. viii. cap. 12, §§ 1-3.

(a) Vattel, Droit des Gens, liv. ii. ch. 4, § 56. Martens, Precis du Droit des Gens,
liy. iii. ch. 2, §§ 79-82.

[15 Recognition of Belligerency. — 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 interests are so far affected as to require a definition of
its own relations to the parties. Where a parent government is seeking to sub-
due an insurrection by municipal force, and the insurgents claim a political nation-
ality and belligerent rights which the parent government does not concede, a
recognition by a foreign State of full belligerent rights, if not justified by neces-
sity, is a gratuitous demonstration of moral support to the rebellion, and of censure
upon the parent government. But the situation of a foreign State with reference
34

PART I.] NATIONS AND SOVEREIGN STATES. § 23

If the foreign State professes neutrality, it is bound to Parties to
allow impartially to both belligerent parties the free exer- entitled^
cise of those rights which war gives to public enemies wf raJfinst
against each other ; such as the right of blockade, and of each other-

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 determine 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 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 recognition is falsified, for the recogni-
tion 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 organization of the insurgents, sufficient
in character, population and resources, to constitute it, if left to itself, a State among
the nations, reasonably capable of discharging the duties of a State ; the actual em-
ployment of military forces on each side, acting in accordance with the rules and cus-
toms of war, such as the use of flags of truce, cartels, exchange of prisoners, and the
treatment of captured insurgents oy the parent State as prisoners of war ; and, at sea,
employment by the insurgents of commissioned cruisers, and the exercise by the pa-
rent 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 they are
all ripened into activity.

As to the relation of the foreign State to the contest, if it is solely on land, and
the foreign State is not contiguous, it is difficult to imagine a call for the recog-
nition. If, for instance, the United States should formally recognize belligerent rights
in an insurgent community at the centre of Europe, with no seaports, it would require
a hardly supposable necessity to make it else than a mere demonstration of moral sup-
port. But a case may arise where a foreign State must decide whether to hold the
parent State responsible for acts done by the insurgents, or to deal with the insurgents
as a de facto government. (Mr. Canning to Lord Granville on the Greek War, June
22, 1826.) If the foreign State recognizes belligerency in the insurgents, it releases
the parent State from responsibility for whatever may be done by the insurgents, or
not done by the parent State where the insurgent power extends. (Mr. Adams to Mr.
Seward, June 11, 1861, Dip. Corr. 105.) In a contest wholly upon land, a contigu-
ous State may be obliged to make the decision whether or not to regard it as war ;
but, in practice, this has not been done by a general and prospective declaration, but
by actual treatment of cases as they arise. I 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 of the con-
tending parties have considerable naval force, and the domestic contest must ex-
tend itself over the sea, then the relations of the foreign State to this contest 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,

35

§ 23 NATIONS AND SOVEREIGN STATES. [PART I.

capturing contraband and enemy's property. (6) But the exercise
of those rights, on the part of the revolting colony or province
against the metropolitan country, may be modified by the obliga-
tion of treaties previously existing between that country and for-
eign States, (jo)

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 ships of war of the foreign State may attack
and capture any cruiser persisting in the attempt. If it is war, foreign nations must
await the adjudication of prize tribunals. If it is not war, no such tribunal can be
opened. If it is a war, the parent State may institute a blockade jure gentium of the
insurgent ports, which foreigners must respect ; but, if it is not a war, foreign nations,
having large commercial intercourse with the country, will not respect a closing of
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 insurgents, 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 category, but into the category of piracy, or of crimes by municipal
law.

Now, all private citizens of a foreign State, and all its^executive officers and judicial
magistrates, look to the political department of their government to prescribe the rule
of their conduct, in all their possible relations with the parties to the contest. This
rule is prescribed in the best and most intelligible 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 the decision, it must be made by the political department of
the government. It is not fit that cases should be left to be decided as they may arise,
by private citizens, or naval or judicial officers, at home or abroad, by sea or land. It
is, therefore, the custom of nations 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 seasonably. If it issues a formal declaration
of belligerent rights prematurely, or in a contest with which it has no complexity, it is
a gratuitous and unfriendly act. If the parent government complains of it, the com-
plaint must be upon one of these grounds. To decide whether the recognition was un-
called-for and premature, requires something more than a consideration of proximate
facts, and the overt and formal acts of the 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 organization and preparations on each side ;
the probable extent of the conflict, by sea and land ; the probable extent and rapid-
ity 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

(6) Wheaton's Rep. iii. 610, United States v. Palmer; — lb. iv. 63, The Divina
Pastora ; — lb. 502, The Nuestra Signora de la Caridad.
(c) See Part IV. ch. 3, § 3, Rights of War as to Neutrals.
36

PART I.] NATIONS AND SOVEREIGN STATES. § 24

§ 24. If, on the other hand, the change be effected by identity
external violence, as by conquest confirmed by treaties of pf a state,

' J \ J how affected

peace, its effects upon the being of the State are to be de- by external
termined by the stipulations of those treaties. The con-
quered and ceded country may be a portion only, or the whole of

decision ; while, on the other hand, if it makes the recognition prematurely, it is liable
to the suspicion of an unfriendly purpose to the parent State. The recognition of bel-
ligerent rights is not solely to the advantage of the insurgents. They gain the great
advantage of a recognized status, and the opportunity to employ commissioned cruis-
ers at sea, and to exert all the powers known to maritime warfare, with the sanction
of foreign 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, their revenue laws are respected, and they acquire a quasi political rec-
ognition. On the other hand, the parent government 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 neutral commerce, all the powers of a party to a
maritime war.

This subject received a full discussion in the correspondence between Mr.
Adams and Earl Russell, beginning April 7, and ending Sept. 18, 1865. The
principal contest was, whether the recognition by Great Britain of belligerent
rights in the rebel States was " unprecedented and precipitate," as alleged by
Mr. Adams. This belongs rather to history than to law; but the principles of
international law applicable to the facts were adduced on each side. The rule
Mr. Adams lays down is this : " Whenever an insurrection against the established
government of a country takes place, the duty of governments, under obligations
to maintain peace and friendship with it, appears to be, at first, to abstain carefully
from any step that may have the smallest influence* in affecting the result. When-
ever facts occur of which it is necessary to take notice, either because they involve
a necessity of protecting personal interests at home, or avoiding an implication
in the struggle, then it appears to be just and right to provide for the emergency
by specific measures, precisely to the extent that may be required, but no farther.
It is, then, facts alone, and not appearances or presumptions, that justify action.
But even these are not to be dealt with farther than the occasion demands : a rigid
neutrality in whatever may be done is of course understood. If, after the lapse
of a reasonable period, there be little prospect of a termination of the struggle,
especially if this be carried on upon the ocean, a recognition of the parties as
belligerents appears to be justifiable ; and at that time, so far as I can ascertain,
such a step has never in fact been objected to." He contends that the recog-
nition of belligerent rights in the American colonies, in their war of independence,
by France and Holland, was not made generally and for all purposes, but only to
meet existing facts, and not until the presence of American war- vessels in their
ports made a decision necessary; and that France and England alike seemed to
consider that a recognition of belligerency was an unfriendly act, unless justified
by necessity. He considers the belligerent rights of the South American prov-
inces to have been recognized upon the same principles, and refers to late civil
wars in Europe, involving States more or less maritime, where no such recognition
had been made. He contends that the recognition in this instance created all the
naval power the rebellion possessed, and was so influential upon its subsequent
history that Great Britain and France are not entitled to the argument, that the
event justified their action. Earl Russell does not seem to differ from Mr. Adams

4 37

§ 25 NATIONS AND SOVEREIGN STATES. [PART I.

the vanquished State. If the former, the original State still con-
tinues ; if the latter, it ceases to exist. In either case, the
conquered territory may be incorporated into the conquering State
as a province, or it may be united to it as a co-ordinate State with
equal sovereign rights.

B the § 25. -Such a change in the being of a State may also

joint effect foe produced by the conjoint effect of internal revolution

of internal ? J J 1 . .

andexter- and foreign conquest, subsequently confirmed, or modi-
confirmed.0 ' fled and adjusted by international compacts. Thus the
by treaty. jjouse 0f Orange was expelled from the Seven United
Provinces of the Netherlands, in 1797, in consequence of the
French Revolution and the progress of the arms of Prance, and a

on the general principles. He contends that the state of things upon which the
government was required to act had no exact parallel, and must be judged by itself.
He protests that the overt and formal acts of the two parties to the war are not alone
to be considered ; and, referring to the extent of the territory, population, and re-
sources of the rebellion ; the existence of its completely organized State and general
governments ; its unequivocal determination to treat as war, by sea and land, any
acts of authority which the United States, on the other hand, had equally deter-
mined to exert ; the long antecedent history and preparations for this revolution ;
and the certainty of the magnitude and extent of the war and its rapid development
whenever it should begin, and that it would require the instant decision of mari-
time questions by neutral vessels of war and merchantmen alike, — he argues that
it was necessary for England to determine at once, upon facts and probabilities,
whether she should permit the right of search and blockade as acts of war, and
whether the letters-of-marque or public ships of the rebels, which might appear at
once in many parts of the world, should be treated as pirates or as lawful belliger-
ents. On this subject, see further Mr. Bemis's pamphlets on the Recognition of
Belligerency, Boston, 1865; letter of Mr. Harcourt ("Historicus"), London Times,
March 22, 1865 ; Lord Lyons to Lord J. Russell, April 22, 1861 ; Mr. Bright's speech,
March 13, 1865 ; Earl Russell's speech, March 23, 1865 ; proclamations of President
Lincoln of 15th and 19th April, 1861, and of Jefferson Davis, 17th April, 1861, and
of Queen Victoria, 13th May, 1861.

As to the recognition of belligerency by France and Holland in the American Revo-
lution, see the above correspondence between Mr. Adams and Earl Russell; the
Annual Register, 1776, pp. 182, 183; 1779, p. 249 ; Martens' Causes Celebres, i. 113;
Baron Van Zuylen to Mr. Pike, Sept. 17, 1861, U. S. Dip. Corr. 368.

Upon our claim for a recognition of our belligerency by Denmark during the war
of the Revolution, and the demand for compensation for Paul Jones's prizes surren-
dered by Denmark to England, see Sparks's Dip. Corr. iii. 121 ; Sparks's Life of
Eranklin, viii. 407-462 ; U. S. Laws, vi. 61 ; State Papers, iii. 4 ; despatch of Mr.
Wheaton to Mr. Upshur, Nov. 10, 1843.

During the civil war between Spain and her South American colonies, the belliger-
ency of the latter was recognized by the United States. U. S. v. Palmer, Wheaton's
Rep. iii. 610 ; La Divina Pastora, lb. iv. 52 ; La Santissima Trinidad, lb. vii. 337 ; Nueva
Anna, lb. vi. 193. So in the case of the civil war between Texas and Mexico. Mr.
Forsyth to the Mexican Minister, Sept. 20, 1836 ; Opinions of Attorneys-General,
120. iii. As to the belligerent status of the Greeks during their war with Turkey, see
38

PART I.] NATIONS AND SOVEREIGN STATES. § 26

democratic republic substituted in the place of the ancient Dutch
constitution. At the same time the Belgic provinces, which had
long been united to the Austrian monarchy as a co-ordinate State,
were conquered by Prance, and annexed to the French republic by
the treaties of Campo Formio and Luneville. On the restoration
of the Prince of Orange, in 1813, he assumed the title of Sovereign
Prince, and afterwards King of the Netherlands ; and by the
treaties of Vienna, the former Seven United Provinces were united
with the Austrian Low Countries into one State, under his sov-
ereignty, (a)

Here is an example of two States incorporated into one, so as to
form a new State, the independent existence of each of the former
States entirely ceasing in respect to the other ; whilst the rights
and obligations of both still continue in respect to other foreign
States, except so far as they may be affected by the compacts
creating the new State.

In consequence of the revolution which took place in Belgium,
in 1830, this country was again severed from Holland, and its in-
dependence as a separate kingdom acknowledged and guarantied
by the five great powers of Europe, — Austria, France, Great
Britain, Prussia, and Russia. Prince Leopold of Saxe-Cobourg
having been subsequently elected king of the Belgians by the
national Congress, the terms and condition of the separation were
stipulated by the treaty concluded on the 15th of November, 1831,
between those powers and Belgium, which was declared by the
conference of London to constitute the invariable basis of the sep-
aration, independence, neutrality, and state of territorial possession
of Belgium, subject to such modifications as might be the result of
direct negotiation between that kingdom and the Netherlands. (6)

§ 26. If the revolution in a State be effected by a prov- Province
ince or colony shaking off its sovereignty, so long as the or colony as-
independence of the new State is not acknowledged by independ-

6I1C6 llOW

other powers, it may seem doubtful, in an international considered
point of view, whether its sovereignty can be considered foreign*
as complete, however it may be regarded by its own gov- states-

Lord Kussell's speech, May 6, 1861 ; Mr. Canning to Lord Granville, June 22, 1826 ;
Stapleton's Life of Canning, 476. Also as to belligerent rights of the South American
provinces, see the British Cabinet decision of July 23, 1824, Canning's Life, 399,
British Annual Kegister, 1823, 146.]— D.

(a) Wheaton's Hist. Law of Nations, 492.

(b) Wheaton's Hist. Law of Nations, 538-555.

§ 26 NATIONS AND SOVEREIGN STATES. [PART I.

ernment and citizens. It has already been stated, that whilst the
contest for the sovereignty continues, and the civil war rages,
other nations may either remain passive, allowing to both contend-
ing parties all the rights which war gives to public enemies ; or
may acknowledge the independence of the new State, forming with
it treaties of amity and commerce ; or may join in alliance with
one party against the other. In the first case neither party has
any right to complain so long as other nations maintain an im-
partial neutrality, and abide the event of the contest. The two
last cases involve questions which seem to belong rather to the
science of politics than of international law ; but the practice of
nations, if it does not furnish an invariable rule for the solution
of these questions, will, at least, shed some light upon them.
The memorable examples of the Swiss Cantons and of the Seven
United Provinces of the Netherlands, which so long levied war,
concluded peace, contracted alliances, and performed every other
act of sovereignty,, before their independence was finally acknowl-
edged, — that of the first by the German empire, and that of the
latter by Spain, — go far to show the general sense of mankind
on this subject.

The acknowledgment of the independence of the United States
of America by France, coupled with the assistance secretly ren-
dered by the French court to the revolted colonies, was considered
by Great Britain as an unjustifiable aggression, and, under the
circumstances, it probably was so. (a) But had the French court
conducted itself with good faith, and maintained an impartial neu-
trality between the two belligerent parties, it may be doubted
whether the treaty of commerce, or even the eventual alliance
between France and the United States, could have furnished any
just ground for a declaration of war against the former by the Brit-
ish government. The more recent example of the acknowledg-
ment of. the independence of the Spanish American provinces by
the United States, Great Britain, and other powers, whilst the
parent country still continued to withhold her assent, also concurs
to illustrate the general understanding of nations, that where a
revolted province or colony has declared and shown its ability
to maintain its independence, the recognition of its sovereignty by
other foreign States is a question of policy and prudence only.

(a) Wheaton's Hist. Law of Nations, Part III. § 12, 220-294. Ch. de Martens,
Nouvelles Causes Celebres du Droit des Gens, torn. i. 370-498.
40

PART I.] NATIONS AND SOVEREIGN STATES. § 27

§ 27. This question must be determined by the sover- Recogni-
eign legislative or executive power of these other States, i^aepend-
and not by any subordinate authority, or by the private ^er^or-
judgment of their individual subjects. Until the inde- eisn States-
pendence of the new State has been acknowledged, either by the
foreign State where its sovereignty is drawn in question, or by
the government of the country of which it was before a province,
courts of justice and private individuals are bound to consider the
ancient state of things as remaining unaltered, (a) 16

(a) Vesey's Ch. Kep. ix. 347, The City of Berne v. The Bank of England; —
Edwards's Adm. Rep. i. 1, The Manilla, Appendix IV. Note D. ; — Wheaton's Rep.
iii. 324, Hoyt v. Gelston; — lb. 634, The United States v. Palmer.

[16 Recognition of Independence. — It is an established general principle that each
nation is to settle for itself the form in which it will live ; and, when that is settled,
foreign nations recognize it. So, it is purely an internal matter whether a com-
munity, previously one, shall divide itself by force or by agreement, and become
two or more States. When that matter is settled, foreign nations recognize it as
a fact. No questions can arise on either of these points when the parties to the
change have agreed or acquiesced, and the fact has passed into history. Doubts
arise where a foreign State does some act which, to a greater or less extent, recog-
nizes a new dynasty in a State, before the old dynasty has surrendered its claim,
or recognizes a new State created by rebellion, before the parent government has
acquiesced. It would be a wrong view, and lead to false results, if we assumed
that the foreign State is to recognize every thing possible in the new State, once
for all, or to recognize nothing. There are, in truth, stages and degrees of recog-
nition. Where the purpose of the foreign State is just and friendly, it will go
no farther than its own necessities require. We have already seen [Note 15 to § 19]
that these necessities may require it to recognize belligerent rights in the insurgent
government. Another stage in the contest may require it to treat with that gov-
ernment with reference to its de facto revenue and commercial regulations, and the
rights of foreign subjects, in their persons or property, being within the territory
under the control of that government, or for reparation for past and prevention
of future wrongs. If the necessities of the foreign State require these acts to be
done, the parent government has no cause of complaint. . It is her misfortune
that the insurrection has dimensions and power which exclude her authority 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 foreign State require the
act, and did the act recognize no more than existed and than those necessities
required'? The acts referred to are special and casual and temporary, and are
not inconsistent with a recognition of the fact, that the contest is still undecided.
But, if the foreign State makes a general treaty with the new State, substantially as
with an independent nation, with terms looking to general and permanent relations,
that act is a general recognition of independence. Whether this final step is justifi-
able, depends upon the same tests : namely, the necessities of foreign States, and the
truth of the fact implied, that the State treated with was, at the time, in the con-

4* 41

§ 28 NATIONS AND SOVEEEIGN STATES. [PART I.

interna- § 28. The international effects produced by a change

tional effects • , i n ,^ • j_i i* £>

of a change in the person ol the sovereign or m the form 01 govern-
sonrf the" nient °f any State, may be considered : —
sovereign or j ^s ^0 ^s treaties of alliance and commerce.

m the inter-
nal constitu- II. Its public debts.

State. III. Its public domain and private rights of property.

dition de facto of an independent State. 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 sojourning, and all
the forms of intercourse beneficial to humanity ; and to make arrangements for the
protection of its citizens in these pursuits. To that end, among the frequent con-
vulsions of States, it is often necessary for a foreign power to deal with the party
in possession of a portion of the State. To wait till the question of right is deter-
mined, would be to suspend no small part of the life of nations. The justification
of special acts short of absolute and formal recognition 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 been already made. But, with
reference to the final recognition by a general treaty, or by the establishing of full
diplomatic intercourse, a more positive rule can be laid down. The only test
required is, that the new State shall be in fact what the recognizing state assumes
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 prac-
tice 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 deposed dynasty should have ceased from all efforts to regain
its power. On the other hand, it is necessary that the contest should have been
virtually decided.

It was nearly seventy years after the declaration of independence by the Nether-
lands that it was recognized by Spain, in the treaty of Munster, of 1648 ; but, at vari-
ous stages during that period, the Netherlands were dealt with as a sovereign State
by all the powers of Europe, except Austria. (Dumont, v. 507 ; vi. 429. Mackin-
tosh's Works, iii. 444.) The new dynasty of Braganza was established over Portugal
by a revolt against Spain in 1640, and was not acknowledged by Spain until the
treaty of Lisbon, of 1688 ; but the King of England made a general treaty with
the King of Portugal, as a lawful sovereign, in 1641, on the ground of " his solicitude
to preserve the tranquillity of his kingdoms, and to secure the liberty of trade of his
beloved subjects." (Dumont, vi. 238, vii. 238. Mackintosh's Works, iii. 446.) All
the Continental powers treated with the Commonwealth as the English sovereignty,
though the Stuarts were asserting their claim, which they afterwards made good.
And, after the Revolution of 1688, and the establishment of the Orange dynasty, the
refusal of France and Spain to recognize it, and their persistent recognition of the son
of James II., were resented by England as acts of hostility, and led to her alliance
with Holland and Germany against them. Mackintosh's Works, iii. 446.

As to the recognition of the independence of the North American provinces by
France and Holland, see Phillimore's Intern. Law, iii. § 15. Martens' Causes Cele-
42

PART I.] NATIONS AND SOVEREIGN STATES. § 29

IV. As to wrongs or injuries done to the government or citizens
of another State. .

§ 29. Treaties are divided by the text-writers into Treaties.
personal and real. The former relate exclusively to the persons of

bres, i. 103, 466. Canning's Speeches, v. 322. British Annual Eegister, 1776, 182;
1779, 249. Baron Van Zuylen to Mr. Pike, Sept. 17, 1861, U. S. Dip. Corr. 368.
Correspondence between Mr. Adams and Earl Russell, April to September, 1865.
The reasons assigned by England and other powers for not recognizing the French
Republic of 1792 were the unsettled state of France, and the character of the acts
of the Republic, and their alleged effect upon the internal affairs of neighboring
nations ; and the refusal of England to treat with Napoleon from 1808 to 1814 has
been put upon special grounds, and not upon his want of competency to act as
a sovereign. Phillimore's Intern. Law, i. § 390; ii. § 19. Canning's Speeches,
v. 323. The European powers recognized successively the revolutionary govern-
ments of Louis Phillipe in 1830, of the Republic in 1848, and of the Empire in
1852. In the Greek war, Great Britain, France, and Russia, as early as 1827,
made consular and commercial arrangements with Greece, and recognized her inde-
pendence formally in 1832. The independence of Belgium was recognized at once,
in 1830, without the consent of Holland. (But these cases of Greece and Belgium are
both instances of forcible intervention, and not of mere recognition. )

The independence of the South American republics was recognized first by
the United States, and tardily by England, but by both upon the ground, that,
after long-recognized belligerency and the practically unobstructed exercise by them
of sovereign powers, Spain, separated by an ocean, had abandoned actual efforts
for their reduction, and only clung to a nominal right. Canning's speech, Feb. 4,
1825. Hansard, xii. 78. Mackintosh's speech, June 15, 1824. Mackintosh's
Works, iii. 749. President Jackson's message, Dec. 21, 1836. In 1818, Mr.
Clay proposed in Congress a mission to the South American provinces, to ex-
press the sympathy of the United States, and with a view to enter into friendly
relations with them at a future day. The proposition was rejected by a vote of
115 to 45, on the ground of the still unsettled state of the provinces and the con-
tinuance of actual war. At the next session of Congress, in November 1818, Presi-
dent Monroe, in his annual message, referred to the condition of those provinces ;
to the probable mediation of the allied powers ; and expressed his hope and belief
that they would not intervene by force, and his satisfaction with the course of
neutrality adopted by the United States. In his message of December, 1819, he says
that Buenos Ayres " still maintains unshaken the independence which it declared in
1816, and has enjoyed since 1810. Like success has attended Chili and the provinces
north of La Plata, and likewise Venezuela." He speaks of the situation and re-
sources of the provinces as giving them advantages very difficult .for Spain, so distant
a power, to overcome ; and adds : " The steadiness, consistency, and success, with
which they have pursued their object, as evinced more particularly by the undisputed
sovereignty which Buenos Ayres has so long, enjoyed, evidently give them a strong
claim to the favorable consideration of other nations. These sentiments on the part
of the United States have not been withheld from other powers with whom it is
desirable to act in concert. Should it become manifest to the world, that the efforts of
Spain to subdue these provinces will be fruitless, it may be presumed that the Span-
ish Government itself will give «p the contest. In producing such a determination,
it cannot be doubted that the opinions of friendly powers who have taken no part in
the controversy will have their merited influence." At the same time, the President

43

§ 29 NATIONS AND SOVEREIGN STATES. [PART I.

the contracting parties, such as family alliances and treaties guar-
anteeing the throne to a particular sovereign and his family. They
expire, of course, on the death of the king or the extinction of
his family. The latter relate solely to the subject-matters of the

recommended a revision of the laws for the preservation of neutrality, so as to give
them greater effect. In his message of December, 1820, he refers to the continued
success of the revolutionists, while " in no part of South America has Spain made
any impression on the colonies ; " and, expressing the hope that the change in the gov-
ernment of Spain will lead to the recognition of their independence by that power,
adds, " To promote that result by friendly counsels with other powers, including Spain
herself, has been the uniform policy of this government." In February, 1821, Mr.
Clay again brought forward a resolution for acknowledging the independence of the
provinces, which passed the House of Kepresentatives, but did not pass the Senate.
In his second inaugural address, in March, 1821, Mr. Monroe renews expressions of
hope that the change in the government of Spain will lead to a recognition, but still
advises neutrality. In his message of December, 1821, he says : " It has long been
manifest that it would be impossible for Spain to reduce these colonies by force, and
equally so that no conditions short of their independence would be satisfactory to
them." In January, 1822, in accordance with a recommendation of the President,
a resolution for the acknowledgment of the independence of Mexico and the Spanish
provinces of South America was adopted by Congress, by a nearly unanimous vote,
and diplomatic missions established, to which the President soon afterwards made
appointments/ It was many years after this, that their independence was acknowl-
edged by Spain.

In Texas, the declaration of independence was made in December, 1835, after a
year of fighting. The decisive battle of San Jacinto was in April, 1836, which practi-
cally ended the war ; and Mexico did not again invade Texas, though she still refused
to acknowledge its independence. During the summer of 1836, Congress passed a
resolution to the following effect: "That the independence of Texas ought to be
acknowledged by the United States, whenever satisfactory information should be
received that it had in successful operation a civil government capable of performing
the duties and fulfilling the obligations of an independent power."

In December, 1836, President Jackson sent a special message, recommending delay
in the recognition. He says : " The acknowledgment of a new State as independent,
and entitled to a place in the family of nations, is at all times an act of great delicacy
and responsibility ; but more especially so when such State has forcibly separated
itself from another, of which it had formed an integral part, and which still claims
dominion over it. A premature recognition under these circumstances, if not looked
upon as a justifiable cause of war, is always liable to be regarded as a proof of an
unfriendly spirit to one of the contending parties. All questions relative to the
government of foreign nations have been treated by the United States as questions
of fact only ; and our predecessors have cautiously abstained from deciding upon
them, until the clearest evidence was in their possession to enable them not only to
decide correctly, but to shield their decisions from every unworthy imputation. ... In
the contest between Spain and her revolted colonies, we stood aloof, and waited not
only until the ability of the new States to protect themselves was fully established,
but until the danger of their being again subjugated had entirely passed away.
Then, and not until then, they were recognized. Sueh was our course in regard to
Mexico herself. The same policy was observed in all the disputes arising out of the
separation into distinct governments of those Spanish-American States which began
44

PART I.] NATIONS AND SOYEEETGN STATES. § 29

convention, independently of the persons of the contracting par-
ties. They continue to bind the State, whatever intervening
changes may take place in its internal constitution, or in the
persons of its rulers. The State continues the same, notwith-

or carried on the contest with the parent country, united under one form of govern-
ment. We acknowledged the separate independence of New Grenada, of Venezuela,
and of Ecuador, only after their independent existence was no longer a subject of dis-
pute, or was actually acquiesced in by those with whom they had been previously
united. It is true, that, with regard to Texas, the civil authority of Mexico has been
expelled, its invading army defeated, the chief of the republic himself captured, and
all present power to control the newly organized government of Texas annihilated
within its confines. But, on the other hand, there is, in appearance at least, an im-
mense disparity of physical force on the side of Texas. The Mexican Republic,
under another executive, is rallying its forces under a new leader, and menacing a
fresh invasion to recover its lost dominion. Upon the issue of this threatened inva-
sion the independence of Texas may be considered as suspended ; and, were there
nothing peculiar in the relative situation of the United States and Texas, our acknowl-
edgment of its independence at such a crisis could hardly be regarded as consistent
with the prudent reserve with which we have heretofore held ourselves bound to
treat all similar questions. . . . Prudence, therefore, seems to dictate that we should
still stand aloof and maintain our present attitude, if not until Mexico itself or one of
the great foreign powers shall recognize the independence of the new government, at
least until the lapse of time or the course of events shall have proved, beyond cavil
or dispute, the ability of the people of that country to maintain their separate sover-
eignty, and to uphold the government established by them."

The attempt to invade Texas having been abandoned by Mexico, her independence
was acknowledged by the United States in March, 1837, and by England and France,
1840.

Of this history, Mr. Webster said in 1842, in his official letter to Mr. Thompson,
in answer to the complaints of Mexico : " It is true that the independence of Texas
has not been recognized by Mexico. It is equally true that the independence of
Mexico has only been recently recognized by Spain : but the United States, having
acknowledged both the independence of Mexico before Spain acknowledged it, and
the independence of Texas, although Mexico has not yet acknowledged it, stands
in the same relation towards both those governments. ... No effort for the subjugation
of Texas has been made by Mexico, from the time of the battle of San Jacinto on the
4th April, 1836, to the commencement of the present year ; and, during all this period,
Texas has maintained an independent government, carried on commerce, made
treaties with nations in both hemispheres, and kept aloof all attempts at invading
her territory."

The action of the United States with reference to Hungary, in 1849, has been
a subject of some discussion. Hungary, although long a component part of the
Austrian empire, had been, for centuries before, an independent kingdom, with its
distinct history ; and the Hungarians had still strong national feeling, and a different
language and very different institutions from those of Austria. In the general dis-
turbance of 1848, the Hungarians established a government completely organized
in all its parts, with a large army, and successfully resisted the Austrian attempts
to subjugate it. A civil war of such an origin presents a very different case from
one originating in an insurrection of a portion of a single nation, where the insur-
gents act together for the first time, and make an original experiment at forming

45

§ 29 NATIONS AND SOVEREIGN STATES. [PART I.

standing such change, and consequently the treaty relating to
national objects remains in force so long as the nation exists as
an independent State. The only exception to this general rule,
as to real treaties, is where the convention relates to the form of

themselves into a nationality. Such a movement as that of Hungary more rapidly
and naturally takes form and consistency, or, rather, gives an independent direction to
its ancient and never-abandoned form and consistency ; and its chances for success are
better. In the autumn of 1848, M. Kossuth, the chief of the insurrectionary movement,
applied to Mr. Stiles, the United States Charge d' Affaires at Vienna, to use his good
offices with the Imperial Government, with a view to a cessation of hostilities. Mr.
Stiles, without instructions from home, opened communication with the Imperial
Government, and was received by the Imperial ministers, Princes Schwarzenberg
and Windischgratz, with respect, and expressions of thanks for his friendly purpose.
Some Hungarian agents came to the United States, and urged upon the government
the recognition of their independence, and the making of a treaty of commerce.
President Taylor declined all immediate action in that direction; but sent Mr.
Dudley Mann to Europe, with secret instructions ato obtain minute and reliable
information in regard to Hungary in connection with the affairs of adjoining coun-
tries, the probable issue of the present revolutionary movements, and the chances
he may have of forming commercial arrangements with that power favorable to the
United States ; " and, in another sentence, " The object of the President is to obtain
information in regard to Hungary and her resources and prospects, with a view to an
early recognition of her independence, and the formation of commercial relations with
her."

On this duty, Mr. Mann went to the neighborhood of the contending parties,
in 1849, but did not enter Hungary, or hold any direct communication with her
leaders ; and reported that he found the prospects of the revolution less promising
than they had been, or had been believed to be, and advised against the recognition
of independence. The intervention of Russia, with her vast military force, had
overborne the until then successful movement. Mr. Mann, in compliance with his
instructions, forbore to give publicity to his mission ; and the nature of his instruc-
tions first became known by the communication made by President Taylor to
the Senate of the United States, 28th March, 1850, after the Hungarian war was
ended. M. Hiilsemann, the Austrian Charge d' Affaires at Washington, inquiring of
Mr. Clayton, Secretary of State, was told that " Mr. Mann's mission had no other
object in view than to obtain reliable information as to the true state of affairs in
Hungary by personal observation."

This was all that was done by the United States. The state of things in Hungary,
in 1849, would doubtless have justified any nation in recognizing the belligerency of
Hungary, if her own relations with the parties to the contest had been such as to
require such a declaration, as a guide to her own officials and private citizens, and as a
notice to both parties. But, as the United States had no such complication, and no
immediate cause to apprehend it, the government did no act in the nature of such a
recognition ; and the mission of Mr. Mann was secret and confidential, and did not
become known so as to have influenced the result.

M. Hiilsemann, in a letter to Mr. Webster, Secretary of State, of Sept. 30, 1850,
re-opens the subject, and complains of the mission as a past transaction, on the ground
that it was a violation of the law of nations, and unfriendly to Austria. He ob-
jects to the language used in the instructions, especially the characterizing of " the
rebel chief Kossuth as an illustrious man," and of the terms in which the Austrian
46 '

PART I.] NATIONS AND SOVEREIGN STATES. § 29

government itself, and is intended to prevent any such change in
the internal constitution of the State, (a)

The correctness of this distinction between personal and real
treaties, laid down by Vattel, has been questioned by more mod-
system and the intervention of Russia, the ally of Austria, are spoken of, as offensive
to Austria; and adds, that the publicity given to the instructions by the communica-
tion to the Senate, requires the Austrian Government to make a formal protest against
them.

Mr. Webster replied, by letter of Dec. 21, 1850, that the United States regards
a communication from one department of its government to another, as from the
President to the Senate, as a domestic communication, of which ordinarily no foreign
State has cognizance ; and that great inconvenience would result from making such
communications matter of diplomatic correspondence and discussion. Mr. Webster
says : " The undersigned re-asserts to M. Hiilsemann and to the Cabinet of Vienna,
and in the presence of the world, tjiat the steps taken by President Taylor, now pro-
tested against by the Austrian Government, were warranted by the law of nations,
and agreeable to the usages of civilized States." As to the language in which the
confidential instructions to Mr. Mann were couched, Mr. Webster says they were
confidential between the President and his agent, " in reference to which the United
States cannot admit the slightest responsibility to the government of His Imperial
Majesty. No State, deserving the appellation of independent, can permit the
language in which it may instruct its own officers, in the discharge of their duties
to itself, to be called in question, under any pretext, by a foreign power." He
reminds M. Hiilsemann that they were communicated to the Senate after the war was
over ; and that Austria obtained its first knowledge of the instructions from that com-
munication.

It would seem that the only objection to the course of the United States was, that
it showed a desire to be prompt in recognizing Hungary. This Mr. Webster admits.
He says that the people of the United States have a deep interest in the move-
ments made by a nation to regain its independence with institutions like our own,
which we deem to be real blessings to a people, against the force of governments
which are not only hostile to those institutions, but affect to consider them as never
having a lawful origin : not being derived from the consent of those holding thrones
by divine right. Mr. Webster's position is, that, in such a contest, governments
hostile to popular institutions must expect to see demonstrations of sympathy and
feeling by the people of a free country, and expressions of it may appear in confi-
dential domestic communications of the government itself; but such powers must be
content, if the government, in its relations with them during the contest, performs
faithfully the duties enjoined upon it by international law, gives no public and official
moral support to the insurrection, abstains from recognizing independence until it
exists in fact, and executes faithfully the duties of neutrality in the contest, as regards
all material aid. In reply to M. Hiilsemann's complaint of the language of the Presi-
dent towards Russia, he reminds the writer that Russia has made no complaint. Mr.
Webster's letter is, no doubt, a grave and skilful censure of Austria and of her system
and relations to freedom, and would have been open to the charge of being undiplo-
matic, if the note of M. Hiilsemann had not given Mr. Webster fair opportunity, if not
provocation, to introduce the topics into his reply. Webster's Works, vi. 488-506.

As a point in international law, the transaction has little significance, as the United

{a) Vattel, Droit des Gens, liv. ii. ch. 12, §§ 183-197.

47

§ 30 NATIONS AND SOVEREIGN STATES. [PART I.

ern public jurists as not being logically deduced from acknowl-
edged principles. Still it must be admitted that certain changes
in the internal constitution of one of the contracting States, or in
the person of its sovereign, may have the effect of annulling pre-
existing treaties between their respective governments. The obli-
gation of treaties, by whatever denomination they may be called, is
founded, not merely upon the contract itself, but upon those mutual
relations between the two States which may have induced them to
enter into certain engagements. Whether the treaty be termed
real or personal, it will continue so long as these relations exist.
The moment they cease to exist, by means of a change in the
social organization of one of the contracting parties, of such a
nature and of such importance as would have prevented the other
party from entering into the contract had he foreseen this change,
the treaty ceases to be obligatory upon him.17

Public § ^' ^s ^° Pu^lic debts — whether due to or from

debts. the revolutionized State — a mere change in the form of
government, or in the person of the ruler, does not affect their obli-
gation. The essential form of the State, that which constitutes it
an independent community, remains the same ; its accidental form
only is changed. The debts being contracted in the name of the
State, by its authorized agents, for its public use, the nation con-
tinues liable for them, notwithstanding the change in its internal
constitution, (a) The new government succeeds to the fiscal
rights, and is bound to fulfil the fiscal obligations of the former
government.

It becomes entitled to the public domain and other property

States undoubtedly did no act in the way of recognizing the independence or eren
belligerency of Hungary, but confidentially and secretly took its own mode of making
sure of its ground in being the earliest, consistently with international law, to recognize
the independence of a nation with whose cause it sympathized. The episode belongs
rather to history, as indicating the policy and feeling of the United States.

See note 41, on Intervention on Mexico.] — D.

[17 The separation of Belgium from the kingdom of the Netherlands, and the
change wrought thereby in the relations of Holland with the great powers, were
held by the United States to justify it in withdrawing from an agreement to accept
the King of the Netherlands as an umpire on the north-eastern boundary question.
When Texas agreed to unite itself to the Republic of the United States, France
and England notified her that she did not thereby cease to be bound by her treaty
obligations with those powers. Lord Aberdeen to Mr. Eliot, Dec. 3, 1845. Sen.
Doc. vii. 375.]— D.

(a) Grotius, de Jur. Bel. ac Pac. fib. ii. cap. 9, §§ 8, 1-3. Puffendorf, de Jur. Nat.
et Gent. lib. viii. cap. 12, §§ 1, 2, 3.
48

PART I.] NATIONS. AND SOVEREIGN STATES. §31

of the State, and is bound to pay its debts previously con-
tracted. (5) 18

§31. As to the public domain and private rights of Pu^lic'd°-

° j. x o mam and

property. If the revolution be successful, and the inter- private
nal change in the constitution of the State is finally property.
confirmed by the event of the contest, the public domain passes

(b) Heffter, Das europaische Volkerrecht, § 24. Bona non intelliguntur nisi
deducto aere alieno.

[18 Texan Bonds. — By the annexation of Texas to the United States, the power
to lay and collect duties on imports passed to the latter : but Texas retained her
public lands, pledged to the payment of her debts ; and the act of annexation de-
clared that they should in no event be a charge on the United States. Afterwards,
the United States took portions of those public lands, agreeing to pay therefor ten
millions of dollars, half to be retained until the holders of the bonds of Texas, for
which her customs duties were pledged, should release their claims. By a later act,
the United States reserved three-quarters of the sum, to be paid pro rata among the
bondholders, on their releasing their claims. Some of these bondholders were British
subjects ; and the claims of one (James Holford) were submitted to the mixed com-
mission established under the convention of Feb. 8, 1853 ; but the commission decided
that the claims were not within the jurisdiction of the commission, as they had never
been matter of diplomatic demand by Great Britain on the United States. Keport of
the Commission under the Convention of 1853, 382-426. U. S. Laws, v. 797 ; viii.
446; x. 617.

It certainly would not be satisfactory to say that the United States discharges its
obligation to the creditors of Texas, to whom her customs were pledged, by paying
only the amount of the customs received. The United States determines what those
duties shall be, in reference to the interests and policy of the whole republic. The
condition of Texas is changed by her annexation. The new government has a large
control over the material resources of the inhabitants, in the way of internal revenues,
excise, or direct taxation, in its demands on the services of the people, and in the
debts it can impose ; in fact, the entire public system of Texas has passed into other
hands, and no such state of things any longer exists as that to which the creditor
looked. It may be better or worse, but it is not the same ; and, if the duties laid by
the United States and collected in Texan ports did not in fact pay the debts, it would
be unjust for the United States to limit the payment of the creditor to them. The
truth is, by the annexation the United States changed the nature of the thing pledged,
and is bound generally to do equity to the creditor.

In the separations and re-arrangements of nations in Europe, special provisions
are usually made for the payment of public debts ; and the principle seems admitted,
that, in case of a division of a State, each new State is bound for the whole debt
contracted by the former ; and, in the case of a union of States, it seems equally
clear that, as the whole must defend the part in war, which is the international process
of attachment, it must practically pay the debt, although the foreign power may
look only to the people and land of the State which made the contract. The for-
mation of the new State so alters the nature of all the securities the creditor looked
to, that the new State has a general obligation to see that he does not suffer by
the change.

See Art. 13 of treaty of 1839, for the separation of Belgium ; and the treaty of
Zurich, ceding Lombardy to Sardinia.] — ~D.

5 49

§ 31 NATIONS AND SOVEREIGN STATES. [PART I.

to the new government ; but this mutation is not necessarily
attended with any alteration whatever in private rights of property.

It may, however, be attended by such a change : it is competent
for the national authority to work. a transmutation, total or partial,
of the property belonging to the vanquished party ; and if actually
confiscated, the fact must be taken for right. But to work such a
transfer of proprietary rights, some positive and unequivocal act
of confiscation is essential.

If, on the other hand, the revolution in the government of the
State is followed by a restoration of the ancient order of things,
both public and private property, not actually confiscated, revert
to the original proprietor on the restoration of the legitimate gov-
ernment, as in the case of conquest they revert to the former
owners, on the evacuation of the territory occupied by the pub-
lic enemy. The national domain, not actually alienated by any
intermediate act of the State, returns to the sovereign along
with the sovereignty. Private property, temporarily sequestered,
returns to the former owner, as in the case of such property
recaptured from an enemy in war on the principle of the jus
postliminii.

But if the national domain has been alienated, or the private
property confiscated by some intervening act' of the State, the ques-
tion as to the validity of such transfer becomes more difficult of
solution.

Even the lawful sovereign of a country may, or may not, by the
particular municipal constitution of the State, have the power of
alienating the public domain. The general presumption, in mere
internal transactions with his own subjects, is, that he is not so
authorized, (a) But in the case of international transactions,
where foreigners and foreign governments are concerned, the
authority is presumed to exist, and may be inferred from the gen-
eral treaty-making power, unless there be some express limitation
in the fundamental laws of the State. So, also, where foreign
governments and their subjects treat with the actual head of the
State, or the government de facto, recognized by the acquiescence
of the nation, for the acquisition of any portion of the public
domain or of private confiscated property, the acts of such govern-
ment must, on principle, be considered valid by the lawful sover-

(a) Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12, §§ 1-3. Vattel, Droit des
Gens, liv. i. chap. 21, §§ 260, 261.
50

PART I.] NATIONS AND SOVEREIGN STATES. § 32

eign on his restoration, although they were the acts of him who
is considered by the restored sovereign as an usurper. (6) On the
other hand, it seems that such alienations of public or private
property to the subjects of the State, may be annulled or con-
firmed, as to their internal effects, at the will of the restored
legitimate sovereign, guided by such motives of policy as may
influence his counsels, reserving the legal rights of bonce fidei
purchasers under such alienation to be indemnified for ameliora-
tions, (c)

Where the price or equivalent of the property sold or exchanged
has accrued to the actual use and profit of the State, the transfer
may be confirmed, and the original proprietors indemnified out of
the public treasury, as was done in respect to the lands of the
emigrant French nobility, confiscated and sold during the revolu-
tion. So, also, the sales of the national domains situate in the
German and Belgian provinces, united to France during the revo-
lution, and again detached fronrthe French territory by the treaties
of Paris and Vienna in 1814 and 1815, or in the countries com-
posing the Rhenish Confederation in the kingdom of Italy, and
the Papal States, were, in general, confirmed by these treaties,
by the Germanic Diet, or by the acts of the respective restored
sovereigns. But a long and intricate litigation ensued before the
Germanic Diet, in respect to the alienation of the domains in
the countries composing the kingdom of Westphalia. The Elector
of Hesse Cassel and the Duke of Brunswick refused to confirm
these alienations in respect to their territory, whilst Prussia, which
power had acknowledged the King of Westphalia, also acknowl-
edged the validity of his acts in the countries annexed to the Prus-
sian dominions by the treaties of Vienna. (eT)

§ 32. As to wrongs or injuries done to the government wrongs
or citizens of another State; — it seems, that, on strict and injuries.
principle, the nation continues responsible to other States for the
damages incurred for such wrongs or injuries, notwithstanding an
intermediate change in the form of its government, or in the persons
of its rulers. This principle was applied in all its rigor by the vic-

(b) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 14, § 16.

(c) Kliiber, Droit des Gens, sec. ii. chap. 1, § 258.

(d) Conversations Lexikon, art. Domainen-verkauf. Heffler, Das europaische V61-
kerrecht, § 188. Kliiber, Oeffentliches Recht des deutschen Bundes, § 169. Rotteck
und Welcker, Staats-Lexikon, art. Domainen-kaufer.

51

§ 33 NATIONS AND SOVEREIGN STATES. [PART I.

torious allied powers in their treaties of peace with France in 1814
and 1815. More recent examples of its practical application have
occurred in the negotiations between the United States and France,
Holland, and Naples, relating to the spoliations committed on
American commerce under the government of Napoleon and the
vassal States connected with the French empire. The responsibility
of the restored government of France for those acts of the preced-
ing ruler was hardly denied by it, even during the reigns of the
Bourbon kings of the elder branch, Louis XVIII. and Charles X. ;
and was expressly admitted by the present government (Louis Phi-
lippe's) in the treaty of indemnities concluded with the United
States in 1831. The application of the same principle to the meas-
ures of confiscation adopted by Murat in the kingdom of Naples
was contested by the restored government of that country ; but the
discussions which ensued were at last terminated, in the same
manner, by a treaty of indemnities concluded between the Ameri-
can and Neapolitan governments.19

Sovereign § 33. A sovereign State is generally denned to be any
fined? e" nation or people, whatever may be the form of its inter-
nal constitution, which governs itself independently of foreign
powers, (a)

This definition, unless taken with great qualifications, cannot be
admitted as entirely accurate. Some States are completely sover-
eign and independent, acknowledging no superior but the Supreme
Ruler and Governor of the universe. The sovereignty of other
States is limited and qualified in various degrees.

Equality All sovereign States are equal in the eye of interna-
states?reign tional law, whatever may be their relative power. The
sovereignty of a particular State is not impaired by its occasional
' obedience to the commands of other States, or even the habitual
influence exercised by them over its councils. It is only when
this obedience, or this influence, assumes the form of express com-
pact, that the sovereignty of the State, inferior in power, is legally
affected by its connection with the other. Treaties of equal alli-
ance, freely contracted between independent States, do not impair

[19 The British and French governments made reclamations on Mexico for prop-
erty of British subjects seized by a faction, which, during a civil war, was in actual
possession of the capital. The tripartite treaty between Great Britain, France, and
Spain of Oct. 31, 1861, and Lord John Russell's instructions to Sir C. Wycke, 1861.
Annual Register, 1861, p. 216.] — D.

(a) Vattel, Droit des Gens, liv. i. chap. 1, § 4.
52

PAET I.] NATIONS AND SOVEREIGN STATES. § 35

their sovereignty. Treaties of unequal alliance, guarantee, media-
tion, and protection, may have the effect of limiting and qualifying
the sovereignty according to the stipulations of the treaties.

§ 34. States which are thus dependent on other States, Semi--
in respect to the exercise of certain rights, essential to s°tltes!gn .
the perfect external sovereignty, have been termed semi-sovereign
States, (a)

Thus the city of Cracow, in Poland, with its territory, City of
was declared by the Congress of Vienna to be a perpetu- Cracow-
ally free, independent, and neutral State, under the protection of
Russia, Austria, and Prussia. (&)

By the final act of the Congress of Vienna, Art. 9, the three
great powers, Austria, Russia, and Prussia, mutually engaged to
respect, and cause to be respected, at all times, the neutrality of
the free city of Cracow and its territory ; and they further de-
clared that no armed force should ever be introduced into it under
any pretext whatever.

It was at the same time reciprocally understood and expressly
stipulated that no asylum or protection should be granted in the
free city or upon the territory of Cracow to fugitives from justice,
or deserters from the dominions of either of the said high powers,
and that upon a demand of extradition being made by the compe-
tent authorities, such individuals should be arrested and delivered
up without delay under sufficient escort to the guard charged to
receive them at the frontier, (c)

§ 35. By the convention concluded at Paris on the 5th United
of November, 1815, between Austria, Great Britain, Prus- f^^6
sia, and Russia, it is declared (Art. 1,) that the islands ands*
of Corfu, Cephalonia, Zante, St. Maura, Ithaca, Cerigo, and Paxo,
with their dependencies, shall form a single, free, and independent
State ; under the denomination of the United States of the Ionian
Islands. The second article provides that this State shall be
placed under the immediate and exclusive protection of His

(a) Kliiber, Droit des Gens Moderne de PEurope, § 24. Heffter, Das europaische
Volkerrecht, § 19.

(b) Acte du Congres de Vienne du 9 Juin, 1815, arts. 6, 9, 1J).

(c) Martens, Nouveau Eecueil, torn. ii. 386. Kliiber, Acten des Wiener Congresses,
Band V. § 138. By a Convention signed at Vienna, Nov. 6, 1846, between Kussia,
Austria, and Prussia, the city of Cracow was annexed to the Empire of Austria. The
governments of Great Britain, France, and Sweden protested against this proceeding
as a violation of the Federal act of 1815.

5* 53

§ 35 NATIONS AND .SOVEREIGN STATES. [PART I.

Majesty the King of the United Kingdom of Great Britain and
Ireland, his heirs and successors. By the third article it is pro-
vided that the United States of the Ionian Islands shall regulate,
with the approbation of the protecting power, their interior organ-
ization : and to give all parts of this organization the consistency
and necessary action, His Britannic Majesty will devote particular
attention to the legislation and general administration of those
States. He will appoint a Lord High Commissioner who shall be
invested with the necessary authority for this purpose. The fourth
article declares, that, in order to carry into effect without delay
these stipulations, the Lord High Commissioner shall regulate the
forms of convoking a legislative assembly, of which he shall direct
the operations, in order to frame a new constitutional charter for
the State, to be ratified by His Britannic Majesty. The fifth article
stipulates, that, in order to secure to the inhabitants of the United
States of the Ionian Islands the advantages resulting from the high
protection under which they are placed, as well as for the exercise
of the rights incident to this protection, His Britannic Majesty
shall have the right of occupying and garrisoning the fortresses
and places of the said States. Their military forces shall be under
the orders of the commander of the troops of His Britannic Majesty.
The sixth article provides that a special convention with the gov-
ernment of the United States of the Ionian Islands shall regulate,
according to their revenues, the object relating to the maintenance
of the fortresses and the payment of the British garrisons, and
their numbers in the time of peace. The same convention shall
also ascertain the relations which are to subsist between jliis armed
force and the Ionian government. The seventh article declares
that the merchant flag of the Ionian Islands shall bear, together
with the colors and arms it bore previous to 1807, those which His
Britannic Majesty may grant as a sign of the protection under
which the United Ionian States are placed; and to give more
weight to this protection, all the Ionian ports are declared, as to
honorary and military rights, to be under the British jurisdic-
tion, commercial agents only, or consuls charged only with the care
of commercial relations, shall be accredited to the United States of
the Ionian Islands ; and they shall be subject to the same regula-
tions- to which consuls and commercial agents are subject in other
independent States, (a)

(a) Martens, Nouveau Kecueil, torn. ii. 663.
54

PART I.] NATIONS AND SOVEREIGN STATES. § 36

On comparing this act with the stipulations of the treaty of
Vienna relating to the Republic of Cracow, a material distinction
will be perceived between the nature of the respective sovereignty
granted to each of these two States. The " free, independent, and
strictly neutral city of Cracow" is completely sovereign, though
under the protection of Austria, Prussia, and Russia ; whilst the
Ionian Islands, although they are to form " a single free and inde-
pendent State," under the protection of Great Britain, are closely
connected with the protecting power both by the treaty itself an<£
by the constitution framed in pursuance of its stipulations, in such
a manner as materially to abridge both its internal and external
sovereignty. In practice, the United States of the Ionian Islands
are not only constantly obedient to the commands of the protecting
power, but they are governed as a British colony by a Lord High
Commissioner named by the British crown, who exercises the en-
tire executive, and participates in the legislative power with the
Senate and legislative Assembly, under the constitution of the
State. (5) 20

§ 36. Besides the free city of Cracow and the United States
of the Ionian Islands, several other semi-sovereign or dependent
States are recognized by the existing public law of Europe.
These are :

1. The Principalities of Moldavia, Wallachia, and Servia, under
the suzerainete of the Ottoman Porte and the protectorate of Russia,
as denned by the successive treaties between these two powers,
confirmed by the treaty of Adrianople, 1829. (a) 21

(b) Martens, Precis, du Droit des Gens, liv. i. ch. 2, § 20, note a, 3me edition.

(a) Wheaton's Hist, of the Law of Nations, 556-560.

[20 During the Crimean war, the British courts held that the Ionian Islands were
not parties, not being so made by Great Britain; and that their vessels were not
forbidden to trade in«Bussian ports. The Leucade, Jurist, i. 549.

In 1864, the protectorate of Great Britain over the Ionian Republic was withdrawn,
and those islands united to the kingdom of Greece. This was effected by the course
described in the speech of the Queen of Great Britain to Parliament, in that year : —

"Her Majesty having addressed herself to the powers who were contracting
parties to the treaty by which the, Ionian Republic was placed under the protec-
torate of Great Britain, and having obtained their consent to the annexation of
that republic to the kingdom of Greece, and the States of the Ionian Republic
having agreed thereto, the republic of the seven islands has been formally united
to the kingdom of Greece; and Her Majesty trusts that the union so made will
conduce to the welfare and prosperity of all the subjects of His Majesty the *King
of the Hellenes."] — D.

[21 The result of various changes in the condition of the principalities is, that, in

55

§ 36 NATIONS AND SOVEREIGN STATES. [PART I.

2. The Principality of Monaco, which had been under the Pro-
tectorate of France from 1641 until the French Revolution, was
replaced under the same protection by the treaty of Paris, 1814,
art. 3, for which was substituted that of Sardinia by the treaty of
Paris, 1815, art. 1.(6) 22

3. The Republic of Polizza in Dalmatia under the Protectorate
of Austria, (c) 23

4. The former Germanic Empire was composed of a great
number of States, which, although enjoying what was called
territorial superiority, (Landeshoheit,') could not be considered
as completely sovereign, on account of their subjection to the
legislative and judicial power of the emperor and the empire.
These have all been absorbed in the sovereignty of the States
composing the present Germanic Confederation, with the .exception
of the Lordship of itniphausen, on the North Sea, which still
retains its former feudal relation to the Grand Duchy of Olden-
burgh, and may, therefore, be considered as a semi-sovereign
State, (d)

5. Egypt had been held by the Ottoman Porte, during the
dominion of the Mamelukes, rather as a vassal State than as a
subject province. The attempts of Mehemet Ali, after the de-

1861, Moldavia and Wallachia were formed into one province, under the name of
Roumania, or, more commonly, Moldo- Wallachia, with one" legislature and one hos-
podar. The united legislature met in February, 1862. The suzerainete of Turkey
continues, and the principalities are guarantied their privileges and immunities by
the parties to the convention of 19th August, 1858, and the treaty of Paris of 30th
March, 1856. Almanach de Gotha, 1862, 962, 966. Annuaire des deux Mondes, 1858,
pp. 3, 689 ; 1859, p. 6-12 ; 1861, p. 560.

As to Servia, it was settled by the treaty of Paris of 1856, that it should be under
the suzerainete of the Porte, but with an hereditary prince, whose authority and the
rights and. immunities of the Servians are under the guaranty of the parties to
the treaty. Almanach de Gotha, 1861, p. 884.

After the campaign of 1862, Turkey insisted on her sovereign rights over Monte-
negro, and provided, by a convention to which the prince was compelled to agree, that
Turkish garrisons should be received in the country. The convention recognizes the
suzerainete of the Porte. Russia remonstrated against these terms, but England de-
clined to interfere. Lord Russell to the English Ambassador at St. Petersburg, Sept.
30, 1862. Prince Gortschakoff to Baron Brunow, 28 Sept., 1862.] — D.

[22 Sardinia had included the communes of Monaco in Nice ; and, when Nice was
ceded by Italy to France, the Prince of Monaco, by treaty of 2 Feb., 1861, ceded his
little territory, except the city, to France, for a pecuniary indemnity.] — D.

[2f Heffter, Das europ. Volkerrecht, § 20, note.] — D.

(6) Martens, Nouveau Recueil, torn. ii. pp. 5, 687.

(c) Martens, Precis du Droit des Gens, liv. i. chap. 2, § 20.

(d) Heffter, Das europ. Volkerrecht, § 19.

56

PART I.] NATIONS AND SOVEREIGN STATES. § 37

struetion of the Mamelukes, to convert his title as a prince-vassal
into absolute independence of the Sultan, and even to extend his
sway over other adjoining provinces of the empire, produced the
convention concluded at London the 15th July, 1840, between four
of the great European powers, — Austria, Great Britain, Prussia,
and Russia, — to which the Ottoman Porte acceded. In conse-
quence of the measures subsequently taken by the contracting
parties for the execution of this treaty, the hereditary Pachalick of
Egypt was finally vested by the Porte in Mehemet Ali, and his
lineal descendants, on the payment of an annual tribute to the Sul-
tan, as his suzerain. All the treaties and all the laws of the
Ottoman Empire were to be applicable to Egypt, in the same man-
ner as to other parts of the empire. But the Sultan consented
that, on condition of the regular payment of this tribute, the Pacha
should collect, in the name and as the delegate of the Sultan, the
taxes and imposts legally established, it being, moreover, under-
stood that the Pacha should defray all the expenses of the civil
and military administration ; and that the military and naval force
maintained by him should always be considered as maintained for
the service of the State, (e)

§ 37. Tributary States, and States having a feudal rela- Tributary
tion to each other, are still considered as sovereign, so far states*8 a
as .their sovereignty is not affected by this relation. Thus, it is
evident that the tribute, formerly paid by the principal maritime
powers of Europe to the Barbary States, did not at all affect the
sovereignty and independence of the former. So also the King of
Naples had been a nominal vassal of the Papal See, ever since the
eleventh century ; but this feudal dependence, abolished in 1818,
was never considered as impairing the sovereignty of the kingdom
of Naples, (a)

The political relations between the Ottoman Porte and Relations
the Barbary States are of a very anomalous character, ottoman-
Their occasional obedience to the commands of the Sul- ^Barbary
tan, accompanied with the irregular payment of tribute, states.
does not prevent them from being considered by the Christian
powers of Europe and America as independent States, with whom
the international relations of war and peace, are maintained, on the
same footing as with other Mohammedan sovereignties. During

(e) Wheaton, Hist. Law of Nations, 572-583.
(a) Ward's Hist, of the Law of Nations, ii. 69.

57

§ 38 NATIONS AND SOVEREIGN STATES. [PART I.

the Middle Age, and especially in the time of the Crusades, they
were considered as pirates :

" Bugia ed Algieri, infami nidi di corsari,"

as Tasso calls them. But they have long since acquired the char-
acter of lawful powers, possessing all those attributes which dis-
tinguish a lawful State from a mere association of robbers. (6)
" The Algerinesj Tripolitans, Tunisians, and those of Salee,"
says Bynkershoek, " are not pirates, but regular organized socie-
ties, who have a fixed territory and an established government,
with whom we are alternately at peace and at war, as with other
nations, and who, therefore, are entitled to the same rights as
other independent States. The European sovereigns often enter
into treaties with them, and the States:General have done it in
several instances. Cicero defines a regular enemy to be : Qui
haberet rempublicam, curiam, cerarium, eonsensum et concordiam
civium rationem aliquant, si res itd tulisset, pads et foederis.
(Philip, p. iv. c. 14.) All these things are to be found among the
barbarians of Africa ; for they pay the same regard to treaties of
peace and alliance that other nations do, who generally attend
more to their convenience than to their engagements. And if
they should not observe the faith of treaties with the most scrupu-
lous respect, it cannot be well required of them ; for it would be
required in vain of other sovereigns. Nay, if they should even act
with more injustice than other nations do, they should not, on that
account, as Huberus very properly observes, (De Jure Civitat. 1.
iii. sect. 4, c. 5, n. ult.) lose the rights and privileges of sovereign
States." 0)

§ 38. The political relation of the Indian nations on this con-
tinent towards the United States, is that of semi-sovereign States,
under the exclusive protectorate of another power. Some of these
savage tribes have totally extinguished their national fire, and
submitted themselves to the laws of the States within whose
territorial limits they reside ; others have acknowledged, by treaty,
that they hold their national existence at the will of the State ;
others retain a limited sovereignty, and the absolute proprietorship
of the soil. The latter is the case with the tribes to the west of
Georgia, (a)

(b) Sir L. Jenkins's Works, ii. 791. Kobinson's Adm. Rep. iv. 5, The Helena.

(c) Bynkershoek, Quaest. Jur. Pub. lib. i. cap. xvii.
(a) Cranch's Eep. vi. 146, Fletcher v. Peck.

58

PART I.] NATIONS AND SOVEREIGN STATES. § 38

Thus the Supreme Court of the United States determined, in
1831, that, though the Cherokee nation of Indians, dwelling within
the jurisdictional limits of Georgia, was not a " foreign State "
in the sense in which that term is used in the Constitution, nor
entitled, as such, to proceed in that Court against the State of
Georgia, yet the Cherokees constituted a State, or a distinct politi-
cal society, capable of managing its own affairs and governing
itself, and that they had uniformly been treated as such since the
first settlement of the country. The numerous treaties made with
them by the United States recognize them as a people capable of
.maintaining the relations of peace and war, and responsible in their
political capacity. Their relation to the United States was never-
theless peculiar. They were a domestic dependent nation ; their
relation to us resembled that of a ward to his guardian ; and they
had an unquestionable right to the lands they occupied, until that
right should be extinguished by a voluntary cession to our govern-
ment. (6)

The same decision was repeated by the Supreme Court, in
another case, in 1832. In this case, the Court declared that the
British crown had never attempted, previous to the Eevolution, to
interfere with the national affairs of the Indians, further than
to keep out the agents of foreign powers, who might seduce
them into foreign alliances. The British Government purchased
the alliance and dependence of the Indian nations by subsidies,
and purchased their lands, when they were willing to sell, at the
price they were willing to take, but it never coerced a surrender
of them. The British crown considered them as nations, com-
petent to maintain the relations of peace and war, and of govern-
ing themselves under its protection. The United States, who
succeeded to the rights of the British crown, in respect to the
Indians, did the same, and no more ; and the protection stipu-
lated to be afforded to the Indians, and claimed by them, was
understood by all parties as only binding the Indians to the
United States as dependent allies. A weak power does not
surrender its independence and right to self-government by asso-
ciating with a stronger and taking its protection. This was the
settled doctrine of the Law of Nations ; and the Supreme Court
therefore concluded and adjudged, that the Cherokee nation was
a distinct community, occupying its own territory, with boundaries

(b) Peters's Kep. v. 1, the Cherokee Nation v. The State of Georgia.

59

§ 40 NATIONS AND SOVEREIGN STATES. [PART I.

accurately described, within which the laws of Georgia could not
rightfully have any force, and into which the citizens of that State
had no right to enter but with the assent of the Oherokees them-
selves, or in conformity with treaties, and with the acts of Con-
gress, (c) 2*
Single § 39. States may be either single, or may be united

or united , , -, n . -. n j

states. together under a common sovereign prince, or by a led-
eral compact.

Personal § 40. If this union under a common sovereign is not
thi0sameder an mcorPorate union, that is to say, if it is only per-
sovereign. sonal in the reigning sovereign ; or even if it is real, yet •
if the different component parts are united with a perfect equality
of rights, the sovereignty of each State remains unimpaired. (&)
Thusj the kingdom of Hanover was formerly held by the king of

(c) Kent's Comment, on American Law, iii. 383.

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 9, §§ 8, 9. Klaber, Droit des Gens
Moderne de FEurope, Part I. cap. 1, § 27. Heffter, Das europaische Volkerrecht,
§20.

[24 It is important to notice the underlying fact, that the title to all the lands occu-
pied by the Indian tribes, beyond the limits of the thirteen original States, is in the
United States. The republic acquired it by the treaties of peace with Great Britain,
by cessions from France and Spain, and by relinquishments made by the several
States. The Indian tribes have only a right of occupancy. Their possession was held
to be of so nomadic and uncivilized a character as to amount to no more than a kind ot
servitude or lien upon the land, chiefly for fishing, and hunting : the absolute title being
in the republic. Whenever the republic has bought out an Indian tribe, and induced
it to remove from a section of country, the act has always been called an " extinguish-
ment of the Indian title " upon the lands of the United States. This title of occupancy
the tribes are not permitted to convey to any other than the United States. The United
States protect the Indians in their possession, and make treaties with the tribes ; at
the same time, the government makes laws, which have effect within the occupancy
of the tribes, to punish, Indians as well as white persons for crimes, and to decide
questions between whites, or between Indians and whites, and provide for the educa-
tion of the tribal Indians in agriculture and the arts of life, and plain school-teaching,
at the public expense. A tribe is not a " foreign State," within the meaning of the
Constitution, for the purpose of suing in the Federal courts. Where a tribe holds
a district within a State, and is recognized by the United States as having tribal
authority and jurisdiction, the State cannot make penal and criminal* laws to arrest
Indians, remove them, and try them for crimes in the State courts. The Indian
tribes are not under State jurisdiction where they hold lands within the State, as a
tribe, under treaties and laws of the republic ; and their relations with the republic
are sui generis, having been shaped and modified by time and events. Worcester v.'
Georgia, Peters, vi. 515 ; Mitchell v. United States, Peters, ix. 711 ; Lattimer v. Poteet,
Peters, xiv. 4 ; United States v. Fernandez, Peters, x. 303 ; United States v. Rogers,
How. iv. 467 ; Cherokee Nation v. Georgia, Peters, v. 1 ; Brightly's Digest of United
States Laws, title " Indians."] — D.
60

PART I.] NATIONS AND SOVEREIGN STATES. § 41

the United Kingdom of Great Britain and Ireland, separately from
his insular dominions. Hanover and the United Kingdom were
subject to the same prince, without any dependence on each other,
both kingdoms retaining their respective national rights of sov-
ereignty. It is thus that the king of Prussia is also sovereign
prince of Neufchatel, one of the Swiss Cantons ; which does not,
on that account, cease to maintain its relations with the Confedera-
tion, nor is it united with the Prussian monarchy.25

So, also, the kingdoms of Sweden and Norway are united under
one crowned head, each kingdom retaining its separate constitu-
tion, laws, and civil administration, the external sovereignty of
each being represented by the king.

§ 41. The union of the different States composing the Real
Austrian monarchy is a real union. The hereditary t*he°same er
dominions of the House of Austria, the .. kingdoms of sovereisn-
Hungary and Bohemia, the Lombardo -Venetian kingdom, and
other States, are all indissolubly united under the same sceptre,
but with distinct fundamental laws, and other political institutions.

It appears to be an intelligible distinction between such a union
as that of the Austrian States, and all other unions which are
merely personal under the same crowned head, that, in the case
of a real union, though the separate sovereignty of each State may
still subsist internally, in respect to its co-ordinate States, and in
respect to the imperial crown, yet the sovereignty of each is merged
in the general sovereignty of the empire, as to their international
relations with foreign powers. The political unity of the States
which compose the Austrian Empire forms what the German pub-
licists call a community of States, (G-esammtstaat) ; a community
which reposes on historical antecedents. It is connected with the
natural progress of things, in the same way as the empire was
formed, by an agglomeration of various nationalities, which de-
fended, as long as possible, their ancient constitutions, and only
yielded, finally, to the overwhelming influence of superior force.26

[26 The independence of Neufchatel was recognized by Prussia in 1857, and it is
now simply a canton of the Swiss Confederation.] — D.

[23 By the treaty of Zurich, of 1859, carrying out the preliminaries of Villafranca,
Lombardy, with the exception of the fortresses of Mantua and Peschiera, was trans-
ferred by Austria to France, and by France to Sardinia, and is now part of the king-
dom of Italy. Venetia remains under Austrian control.

The relations of Hungary with Austria have been in a state of change since the

6 61

§ 42 NATIONS AND SOVEREIGN STATES. [PART I.

in or- § 42. An incorporate union is such as that which
ate union, subsists between Scotland and England, and between
Great Britain and Ireland ; forming out of the three kingdoms an
empire, united under one crown and one legislature, although each
may have distinct laws and a separate administration. The sov-
ereignty, internal and external, of each original kingdom is com-
pletely merged in the united kingdom, thus formed by their
successive unions.

rebellion of 1848. On the suppression of the rebellion, the emperor made the attempt
to merge Hungary in the Austrian Empire, and assumed and exercised absolute power
over it until 1860, when he issued his diploma of 20 October, 1860, and his patent of
27 February, 1861. By the diploma and patent, he proposed a plan of government in
this form : There should be an Imperial diet, or Reichsrath, for the entire empire, and
separate diets for the component parts of the empire. The supreme legislative power
was to be in the emperor ; but the Reichsrath was to have a consultative vote, and its
concurrence was necessary for certain exercises of authority, as the laying of taxes,
the raising of troops, and the imposition of duties, — the usual guaranties of constitu-
tional government. The ancient constitution of Hungary was to be restored, except
that the Diet was to part with its jurisdiction over subjects placed in the class of
imperial powers, and conceded to the emperor and the Reichsrath. Under the
patent, the Hungarian Diet assembled; but Hungary refused to send deputies to
the Reichsrath, so that the latter never had an existence in fact. An . Austrian
Diet held its sessions at Vienna, having jurisdiction only over Austria proper and
some of the dependencies. The Hungarian Diet insisted on retaining to itself
two powers, — the laying of taxes, and the raising of troops. By a steady adherence
to the exercise of these functions, and a refusal to take part in the Reichsrath on
the terms of October, 1860, Hungary at length brought the emperor to suggest the
possibility of further concessions; the results of the Italian war, and the fact of. an .
empty treasury and impaired credit, and the increasing assumptions of Prussia in the
affairs of the German Confederation, having forced upon him some decided change of
system. On the 14th of December, 1865, the emperor opened the Hungarian Diet in
person, at Pesth, and offered to be crowned King of Hungary, and to sustain their
ancient constitution ; submitting to them again the diploma of October, 1860, to which
he admitted the possibility of some amendments. The Hungarian Diet was to be com-
posed of Hungary and its dependencies, Croatia and Transylvania; while the other
Diet was to represent Austria and Bohemia, and the German provinces of the
empire. The point of difference was chiefly upon the raising of troops and taxes.
Hungary was willing to concede to the Reichsrath the subjects of duties on exports and
imports, foreign international relations, the declaration of war, and the making of
peace ; as well as the post, public railroads, education, ecclesiastical affairs, and the
currency. It was plain, however, that, if Hungary could determine what taxes she
should lay, and what troops she should raise, she had an effective veto on the central
power. At the Diet of 1866, an address to the throne (the throne of Hungary) was
adopted, in general terms expressing readiness to come into the plan of the central
government, " if the political and administrative autonomy of Hungary be maintained
intact." It accepts the Pragmatic Sanction, but rejects the diploma of October, 1860,
as it then stood. So, the adjustment remains, at this time, unsettled.] — D.
62

PART I.] NATIONS AND SOVEREIGN STATES. § 43

§ 43. The union established by the Congress of Vi- union be-
enna, between the empire of Russia and the kingdom ^andPo^
of Poland, is of a more anomalous character. By the land-
final act of the congress, the Duchy of Warsaw, with the exception
of the provinces and districts otherwise disposed of, was re-united
to the Russian Empire ; and it was stipulated that it should be
irrevocably connected with that empire by its constitution, to
be possessed by His Majesty the Emperor of all the Russias, his
heirs and successors in perpetuity, with the title of King of
Poland ; His Majesty reserving the right to give to this State,
enjoying a distinct administration, such interior extension as he
should judge proper ; and that the Poles, subject respectively to
Russia, Austria, and Prussia, should obtain a representation and
national institutions, regulated according to that mode of political
existence which each government, to whom they belong, should
think useful and proper to grant, (a)

In pursuance of these stipulations, the Emperor Alex- charter
ander granted a constitutional charter to the kingdom of the°Emperor
Poland, on 15th (27th) November, 1815. By the pro- ^hiking-
visions of this charter, the kingdom of Poland was do™ °.f p°-
declared to be united to the Russian Empire by its con- isis!
stitution ; the sovereign authority in Poland was to be exercised
only in conformity to it ; the coronation of the King of Poland was
to take place in the Polish capital, where he was bound to take an
o&th to observe the charter. The Polish nation was to have a per-
petual representation, composed of the king and the two chambers
forming the Diet ; in which body the legislative power was to be
vested, including that of taxation. A distinct Polish national
army and coinage, and distinct military orders, were to be pre-
served in the kingdom.

(a) " Le Duche de Varsovie, a Pexception des provinces et districts, dont il a ete
autrement dispose dans les articles suivans, est reuni a l'Empire de Russie. II y sera
lie irrevocablement par sa Constitution, pour etre possede par S. M. l'Empereur de
toutes les Russies, ses heritiers et ses successeurs a perpetuite. Sa Majeste Impe'riale
se reserve de donner a cet etat, jouissant d'une administration distincte, Textension
interieure qu'elle jugera convenable. Elle prendra, avec ses autres titres celui de
Czar, Roi de Pologne, conformement au protocle usite et consacre par les titres
attaches a ses autres possessions.

" Les Polonais, sujets respectifs de la Russie, de l'Autriche, et de la Prusse, obti-
endront une representation et des institutions nationales, reglees d'apres la mode
d'existence politique que chacun des Gouvernemens auxquelles ils appartiennent
jugera utile et convenable de leur accorder." — Art. 1.

63

§ 43 NATIONS AND SOVEREIGN STATES. [PART I.

Manifesto In consequence of the revolution and reconquest of
pCTor^cho- P°land by Russia, a manifesto, was issued by the Em-
las, 1832. peror Nicholas, on the 14th (26th) of February, 1832,
by which the kingdom of Poland was declared to be perpetually
united (reuni) to the Russian Empire, and to form an integral
part thereof ; the coronation of the emperors of Russia and kings
of Poland hereafter to take place at Moscow, by one and the same
act ; the Diet to be abolished, and the army of the empire and of
the kingdom to form one army, without distinction of Russian or
Polish troops ; Poland to be separately administered by a Gover-
nor-General and Council of Administration, appointed by the
Emperor, and to preserve its civil and criminal code, subject to
alteration and revision by laws and ordinances prepared in the
Polish Council of State, and subsequently examined and con-
firmed in the Section of the Council of State of the Russian
Empire, called The Section for the Affairs of Poland ; consulta-
tive Provincial States to be established in the different Polish
provinces, to deliberate upon such affairs concerning the general
interest of the kingdom of Poland as might be submitted to their
consideration ; the Assemblies of the Nobles, Communal Assem-
blies, and Council of the Waiwodes to be continued as formerly.
Great Britain and France protested against this measure of the
Russian government, as an infraction of the spirit if not of
the letter of the treaties of Vienna. (6) 27

(b) Wheaton's Hist, of the Law of Nations, 434.

[27 In 1861, the Diet of Poland was re-established, and the emperor was to act as
King of Poland, in matters relating to that kingdom. A new revolution in Poland, in
1862, growing out of the revival of a stringent system of conscription enforced there,
was followed by a convention between Russia and Prussia ; in which Prussia agreed to
drive back from her borders all Polish insurgents, and to permit the entry of Russian
forces into Prussia in pursuit of insurgents. This convention (known as the Convention
of St. Petersburg) was strongly objected to by France and England, but not effectually.
They proposed, on the 17th June, 1863, six points of arrangement with Poland, look-
ing to the restoring of Poland to its condition under the treaty of Vienna. These
were refused by Russia ; and France and England, being left to the alternative of war,
abandoned any further attempt to aid Poland ; and the insurrection was suppressed
by the exercise of the most extreme measures. It can no longer be pretended that
Poland is held by Russia under the treaty of Vienna, whatever be the right of the
case, or the forms' kept up. Russia, in fact, holds her Polish territories by the sword,
and in defiance of the remonstrances of France and England respecting breaches of
the treaty ; and Austria and Prussia are either neutral, or abettors of Russia, hav-
ing strong interests in common ; and the relations of Russian Poland to Russia, not
yet fully adjusted, may be said to depend on the will of the Czar. Annual Register,
64

PART I.] NATIONS AND SOVEEEIGN STATES. § 47

§ 44. Sovereign States permanently united together Federal
by a federal compact, either form a system of confeder- umon-
ated States, (properly so called,) or a supreme federal government,
which has been sometimes called a compositive State, (a)

5 45. In the first case, the several States are connected Confeder-

3 ' ated States,

together by a compact, which does not essentially diner each retain-
from an ordinary treaty of equal alliance. Consequently sovereignty.
the internal sovereignty of each member of the union remains
unimpaired ; the resolutions of the federal body being enforced,
not as laws directly binding on the private individual subjects, but
through the agency of each separate government, adopting them,
and giving them the force of law within its own jurisdiction.
Hence it follows, that each confederated individual State, and the
federal body for the affairs of common interest, may become, each
in its appropriate sphere, the object of distinct diplomatic relations
with other nations.

8 46. In the second case, the federal government „ Supreme

° • federal gov-

created by the act of union is sovereign and supreme, eminent or
within the sphere of the powers granted to it by that act ; stSe.°S1 "*
and the government acts not only upon the States which are
members of the Confederation, but directly on the citizens. The
sovereignty, both internal and external, of each several State is
impaired by the powers thus granted to the federal government,
and the limitations thus imposed on the several State govern-
ments. The compositive State, which results from this league,
is alone a sovereign power.

§ 47. Germany, as it has been constituted under the Germanic
name of the Germanic Confederation, presents the ex- tion.e
ample of a system of sovereign States, united by an equal and
permanent Confederation. All the sovereign princes and free
cities of Germany, including the Emperor of Austria and the King
of Prussia, in respect to their possessions which formerly belonged
to the Germanic Empire, the King of Denmark for the Duchy of
Holstein, and the King of the Netherlands for the Grand Duchy
of Luxembourg, are united in a perpetual league, under the
name of the Germanic Confederation, established by the Federal

1863, pp. 281-292. Appendix to ditto, 330-351. Ditto, 1864, pp. 133-207. Le Nord,
March 17, 24, 1863.] — D.

(a) These two species of federal compacts are very appropriately expressed in the
German language, by the respective terms of Staatenbund and Bundesstaat.

6* 65

§ 47 NATIONS AND SOVEREIGN STATES. [PART I.

Act of 1815, and completed and developed by several subsequent
decrees.

The object of this union is declared to be the preservation of the
external and internal security of Germany, the independence and
inviolability of the confederated States. All the members of the
Confederation, as such, are entitled to equal rights. New States
may be admitted into the union by the unanimous consent of the
members, (a)

The affairs of the union are confided to a Federative Diet, which
sits at Frankfort-on-the-Main, in which the respective States are
represented by their ministers, and are entitled to the following
votes, in what is called the Ordinary Assembly of the Diet : —

Votes.

Austria 1

Prussia 1

Bavaria 1

Saxony 1

Hanover 1

Wurtemburg 1

Baden 1

Electoral Hesse 1

The Grand Duchy of Hesse 1

Denmark (for Holstein) 1

The Netherlands (for Luxembourg) 1

The Grand Ducal and Ducal Houses of Saxony .... 1

Brunswick and Nassau 1

Mecklenburg-Schwerin and Strelitz 1

Oldenburg, Anhalt, and Schwartzburg 1

Hohenzollern, Lichtenstein, Reuss, Schaumburg, Lippe,

Waldeck, and Hesse Homburg 1

The Free Cities of Lubeck, Frankfort, Bremen, and

Hamburg . . 1

Total 17

Austria presides in the Diet, but each State has a right to pro-
pose any measure for deliberation.

The Diet is formed into what is called a Creneral Assembly,
(Plenum^) for the decision of certain specific questions. The
votes in pleno are distributed as follows : —

(a) Acte final du Congres de Vienne, arts. 53, 54, 55. Deutsche Bundesacte, vom
8 Juni, 1815, art. 1. Wiener Schlussacte, vom 15 Mai, 1820, arts. 1, 6.
66

PART I.] NATIONS AND SOVEREIGN STATES. § 47

Votes.

Austria 4

Prussia .4

Saxony 4

Bavaria 4

Hanover 4

Wurtemburg . . 4

Baden 3

Electoral Hesse 3

The Grand Duchy of Hesse 3

Holstein 3

Luxemburg 3

Brunswick . 2

Mecklenburg-Schwerin 2

Nassau 2

Saxe Weimar

Gotha

Coburg . .

Meiningen

Hildburghausen

Mecklenburg-Strelitz

Oldenburg

Anhalt-Dessau

Anhalt-Bernburg

Anhalt-Coethen

Schwartzburg-Sondershausen

Schwartzburg-Rudolstadt

Hohenzollern-Hechingen

Lichtenstein

Hohenzollern-Sigmaringen

Waldeck

Reuss (elder branch)

Reuss (younger branch)

Schaumburg-Lippe . . . . . .

Lippe

Hesse-Homburg

The Free City of Lubeck

Frankfort . . . .

Bremen

Hamburg

Total 70

67

§ 47 NATIONS AND SOVEREIGN STATES. [PART I.

Every question to be submitted to the general assembly of
the Diet is first discussed in the ordinary assembly, where it is
decided by a majority of votes. But, in the general assembly,
(inpleno^) two thirds of all the votes are necessary to a decision.
The ordinary assembly determines what subjects are to be sub-
mitted to the general assembly. But all questions concerning
the adoption or alteration of the fundamental laws of the Con-
federation, or organic regulations establishing permanent institu-
tions, as means of carrying into effect the declared objects of the
union, or the admission of new members, or concerning the affairs
of religion, must be submitted to the general assembly; and,
in all these cases, absolute unanimity is necessary to a final de-
cision, (b)

The Diet has power to establish fundamental laws for the Con-
federation, and organic regulations as to its foreign, military, and
internal relations, (e)

All the States guarantee to each other the possession of their
respective dominions within the union, and engage to defend,
not only entire Germany, but each individual State, in case of
attack. When war is declared by the Confederation, no State
can negotiate separately with the enemy, nor conclude peace or an
armistice, without the consent of the rest. Each member of the
Confederation may contract alliances with other foreign States,
provided they are not directed against the security of the Confed-
eration, or the individual States of which it is composed. No State
can make war upon another member of the union, but all the
States are bound to submit their differences to the decision of
the Diet. This body is to endeavor to settle them by mediation ;
and if successful, and a juridical sentence becomes necessary,
resort is to be had to an austregal proceeding, (Austrdgal-
Instanz^) to which the litigating parties are bound to submit
without appeal, (d)

Each country of the Confederation is entitled to a local con-
stitution of States, (e) The Diet may guarantee the constitution
established by any particular State, upon its application; and
thereby acquire the right of settling the differences which may

(b) Acte final, art. 58. Wiener Schlussacte, arts. 12-15. (c) Acte final, art. 62.

(d) Acte final, art. 63.

(e) " In alien Bundesstaaten wird eine landestandische Verfassung stattfinden."
Bundesacte, art. 13.

68

PART I.] NATIONS AND SOVEREIGN STATES. § 47

arise respecting its interpretation or execution, either by mediation
or judicial arbitration, unless such constitution shall have provided
other means of determining controversies of this nature, (f)

In case of rebellion or insurrection, or imminent danger thereof
in one or more States of the Confederation, the Diet may interfere
to suppress such insurrection or rebellion, as threatening the gen-
eral safety of the Confederation. And it may in like manner inter-
fere on the application of any one State ; or, if the local government
is prevented by the insurgents from making such application, upon
the notoriety of the fact of the existence of such insurrection, or
imminent danger thereof, to suppress the same by the common
force of the Confederation. (#)

In case of the denial or unreasonable delay of justice by any
State to its subjects, or others, the aggrieved party may invoke
the mediation of the Diet ; and if the suit between private indi-
viduals involves a question respecting the conflicting rights and
obligations of different members of the union, and it cannot be
amicably arranged by compromise, the Diet may submit the con-
troversy to the decision of an austregal tribunal. Qi)

The decrees of the Diet are executed by the local governments
of the particular States of the Confederation, on application to
them by the Diet for that purpose, excepting in those cases where
the Diet interferes to suppress an insurrection or rebellion in one
or more of the States ; and even in these instances, the execution
is to be enforced, so far as practicable, in concert with the local
government against whose subjects it is directed, (i)

The subjects of each member of the union have the right of
acquiring and holding real property in any other State of the
Confederation ; of migrating from one State to another ; of enter-
ing into the military or civil service of any one of the confed-
erated States, subject to the paramount claim of their own native
sovereign ; and of exemption from every droit de detraction, or
other similar tax, on removing their effects from one State to
another, unless where particular reciprocal compacts have stipu-
lated to the contrary. The Diet has power to establish uniform
laws relating to the freedom of the press, and to secure to authors
the copyright of their works throughout the Confederation. (/)

(f) Wiener Schlussacte, art. 60. (g) Wiener Schlussacte, arts. 25-28.

(h) lb. arts. 29, 30. (i) Wiener Schlussacte, art. 82.

(j) Bundesacte, art. 18.

§ 48 NATIONS AND SOVEREIGN STATES. [PART I.

The Diet has also power to regulate the commercical intercourse
between the different States, and the free navigation of the rivers
belonging to the Confederation, as secured by the treaty of
Vienna. (&) ^

The different Christian sects throughout the Confederation are
entitled to an equality of civil and political rights ; and the Diet is
empowered to take into consideration the means of ameliorating
the civil condition of the Jews, and of securing to them in all the
States of the Confederation the full enjoyment of civil rights, upon
condition that they submit themselves to all the obligations of other
citizens. In the mean time, the privileges granted to them by any
particular State are to be maintained. (Z)

Of the in- § 48. Notwithstanding the great mass of powers thus
temaisover- given to the Diet, and the numerous restraints imposed

eigntyofthe ° 7 ...

States of upon the exercise of internal sovereignty, by the individual
manic Con- States of which the union is composed, it does not appear
e eration. ^^ ^e Germanic Confederation can be distinguished, in
this respect, from an ordinary equal alliance between independent
sovereigns, except by its permanence, and by the greater number
and complication of the objects it is intended to embrace. In
respect to their internal sovereignty, the several States of the Con-
federation do not form, by their union, one compositive State, nor
are they subject to a common sovereign. Though what are called
the fundamental laws of the Confederation are framed by the Diet,
which has also power to make organic regulations respecting its
federal relations ; these regulations are not, in general, enforced as
laws directly binding on the private individual subjects, but only
through the agency of each separate government adopting them,
and giving them the force of laws within its own local jurisdiction.
If there be cases where the Diet may rightfully enforce its own
resolutions directly against the individual subjects, or the body of
subjects within any particular State of the Confederation, without
the agency of the local governments, (and there appear to be some
such cases,) then these cases, when they occur, form an exception
to the general character of the union, which then so far becomes a

(Jc) Bundesacte, art. 19. Acte final, arts. 108-117. (I) Bundesacte, art. 16.

[28 The duties as to commerce and free navigation have not been performed by
the Diet, but by a Zollverein, of which Prussia and nearly all the German States are
members, and in which Austria is indirectly included by the operation of a treaty
with Prussia.] — D.
70

PAET I.] NATIONS AND SOVEREIGN STATES. . § 49

compositive State, or supreme federal government. All the mem-
bers of the Confederation, as such, are equal in rights ; and the
occasional obedience of the Diet, and through it of the several
States, to the commands of the two great preponderating members
of the Confederation, Austria and Prussia, or even the habitual
influence exercised by ttiem over its councils, and over the coun-
cils of its several States, does not, in legal contemplation, impair
their internal sovereignty, or change the legal character of their
union.

§ 49. In respect to the exercise by the confederated of the ex-
States, of their external sovereignty, we have already seen ^tyof er~
that the power of contracting alliances with other States, these states.
foreign to the Confederation, is expressly reserved to all the con-
federated States, with the proviso that such alliances are not
directed against the security of the Confederation itself, or that of
the several States of which it is composed. Each State also retains
its rights of legation, both with respect to foreign powers and to its
co-States, (a) Although the diplomatic relations of the Confed-
eration with the five great European powers, parties to the Final
Act of the Congress of Vienna, 1815, are habitually maintained by
permanent legations from those powers to the Diet at Frankfort,
yet the Confederation itself is not habitually represented by public
ministers at the courts of these, or any other foreign powers ;
whilst each confederated State habitually sends to, and receives
such minister from other sovereign States, both within and without
the Confederation. It is only on extraordinary occasions, such, for
example, as the case of a negotiation for the conclusion of a peace
or armistice, that the Diet appoints plenipotentiaries to treat with
foreign powers. (5)

According to the original plan of confederation as proposed by
Austria and Prussia, those States, not having possessions out of
Germany, were to have been absolutely prohibited from making
alliances or war with any power foreign to the Confederation, with-
out the consent of the latter. But this proposition was subse-
quently modified by the insertion of the above 63d article of the
Federal Act of 1815. And the limitations contained in that article
upon the war-making and treaty-making powers, both of the Con-
fa) Kliiber, Oeffentliches Eecht des teutschen Bundes, §§ 137-143.
(b) Kliiber, §§ 148, 152 a. Wiener Schlussacte, § 49.

71

§ 49 NATIONS AND SOVEREIGN STATES. [PART I.

federation itself and of its several members, were more completely
defined by the Final Act of 1820. (c)

It results clearly from these provisions, that such of the confed-
erated States, as have possessions without the limits of the Confedera-
tion, retain the authority of declaring and carrying on war against
any power foreign to the Confederation, independently of the Con-
federation itself, which remains neutral in such a war, unless the
Diet shall recognize the existence of a danger threatening the
federal territory. The sovereign members of the Confederation,
having possessions without the limits thereof, are the Emperor of
Austria, the King of Prussia, the King of the Netherlands, and the
King of Denmark. Whenever, therefore, any one of these sover-
eigns undertakes a war in his character of a European power, the
Confederation, whose relations and obligations are unaffected by
such war, remains a stranger thereto ; in other words, it remains
neutral, even if the war be defensive on the part of the confeder-
ated sovereign as to his possessions without the Confederation,
unless the Diet recognizes the existence of a danger threatening
the federal territory. (c£) 29

It seems, also, to result from these provisions, taken in connec-
tion with the above-mentioned modification in the original plan of
Confederation, that even those States not having possessions without
the limits of the Confederation, retain the sovereign authority of

(c) Wheaton's Hist. Law of Nations, 447, 448, 457-460.

(d) Wiener Schlussacte, arts. 46, 47. Kliiber, Oeffentliches Recht des teutschen
Bundes, § 152 f.

[29 During the Italian war of 1859, Austria invoked the 47th article of the Final
Act, on the allegation that her territory within the Confederation was threatened by
Prance and Sardinia. Prussia refused to consider that war as a matter affecting the
Confederation, and gave official notice that she would not be bound by a decision of a
majority of the Diet to that effect. At the same time, she agreed to the federal
contingent being put upon a war footing. The more southern German powers favored
the Austrian application ; but the attitude of Prussia defeated it. Russia also remon-
strated against any construction of the confederative union which carried it beyond a
purely defensive combination. Anriuaire des deux Mondes, 1859. Annual Register,
1859. The correspondence of 1859 shows that the construction of the articles relating
to defence is not settled ; that the action of the Confederation depends largely on either
Prussia or Austria ; and that the parties to the treaty of Vienna consider themselves
entitled to a voice, to the extent of seeing that the Confederation adheres to its limits
of duties, they having admitted it into the public law of Europe, and being interested
in its action. The threat of coercion by Prussia on Saxony, in 1865, and the acquies-
cence of Austria, and the results of the Schleswig-Holstein war (vide infra), have com-
bined to impair very much the guaranties of the Confederation.] — D.
72

PART I.] NATIONS AND SOVEREIGN STATES. § 50

separately declaring and carrying on war, and of negotiating and
making peace with any power foreign to the Confederation, except-
ing in the single case of a war declared by the Confederation itself;
in which case, no State can negotiate with the enemy, nor conclude
peace or an armistice, without the consent of the rest.

In other cases of disputes, arising between any State of the Con-
federation and foreign powers, and the former asks the intervention
of the Diet, the Confederation may interfere as an ally, or as a
mediator ; may examine the respective complaints and pretensions
of the contending parties. If the result of the investigation is, that
the co-State is not in the right, the Diet will make the most serious
representations to induce it to renounce its pretensions, will refuse
its interference, and, in case of necessity, will take all proper means
for the preservation of peace. If, on the contrary, the preliminary
examination proves that the confederated State is in the. right, the
Diet will employ its good offices to obtain for it complete satisfac-
tion and security, (e)

It follows, that not only the internal but the external The Ger-
sovereignty of the several States composing the Germanic federatSTis
Confederation, remains unimpaired, except so far as it confederated
may be affected by the express provisions of the funda- States.
mental laws authorizing the federal body to represent their external
sovereignty. In other respects, the several confederated States
remain independent of each other, and of all States foreign to the
Confederation. Their union constitutes what the German public
jurists call a Staatenhund, as contradistinguished from a Bundes-
staat; that is to say, a supreme Federal Government. (/)

§50. Very important modifications were introduced Act of the
into the Germanic Constitution, by an act of the Diet of Dietof1832-
the 28th of June, 1832. By the 1st article of this act it is declared,
that, whereas, according to the 57th article of the Final Act of the

(e) Wiener Schlussacte, arts. 35-49. Kliiber, § 462.

(/) Kliiber, §§ 103 a, 176, 248, 460, 461, 462. Heffler, Das europaische Volker-
recht, § 21.

The Treaty of Paris, 1814, art. 6, declares : " Les etats de TAllemagne seront inde-
pendans et unis par un lien federatif."

The Final Act of the Congress of Vienna, 1815, art. 54, declares : " Le but de
cette Confederation est le maintien de la surete exterieure et interieure de TAlle-
magne, de l'independance et de l'inviolabilite de ses etats confederes."

And the Schlussacte, of 1820, declares : —

Art. 1. The Germanic Confederation is an international union of the sovereign
Princes and Free Cities of Germany, formed for the maintenance of the independence

7 73

§ 50 NATIONS AND SOVEREIGN STATES. [PART I.

Congress of Vienna, the powers of the State ought to remain in the
hands of its chief, and the sovereign ought not to be bound by
the local constitution to require the co-operation of the legislative
Chambers, except as to the exercise of certain specified rights ; the
sovereigns of Germany, as members of the Confederation, have not
only the right of rejecting the petitions of the Chambers, contrary
to this principle, but the object of the Confederation makes it their
duty to reject such petitions.

Art. 2. Since according to the spirit of the said 57th article of
the Pinal Act, and its inductions, as expressed in the 58th article,
the Chambers cannot refuse to any German sovereign the neces-
sary means of fulfilling his federal obligations, and those imposed
by the local constitution ; the cases in which the Chambers en-
deavor to make their consent to the taxes necessary for these pur-
poses depend upon the assent of the sovereign to their propositions
upon any other subject, are to be classed among those cases to
which are to be applied the 25th and 26th articles of the Pinal Act,
relating to resistance of the subjects against the government.

Art. 3. The interior legislation of the States belonging to the
Germanic Confederation, cannot prejudice the objects of the Con-
federation, as expressed in the 2d article of the original act of
confederation, and in the 1st article of the Final Act ; nor can this
legislation obstruct in any manner the accomplishment of the
federal obligations of the State, and especially the payment of
the taxes necessary to fulfil them.

Art. 4. In order to maintain the rights and dignity of the Con-
federation, and of the assembly representing it, against usurpations
of every kind, and, at the same time, to facilitate to the States
which are members of the Confederation the maintenance of the
constitutional relations between the local governments and the
legislative Chambers, there shall be appointed by the Diet, in
the first instance, for the term of six years, a commission charged
with the supervision of the deliberations of the Chambers, and with
directing their attention to the propositions and resolutions which
may be found in opposition to the federal obligations, or to the

and inviolability of the confederated States, as well as for the internal and external
security of Germany.

Art. 2. In respect to its internal relations, this Confederation forms a body of
States independent between themselves, and bound to each other by rights and duties
reciprocally stipulated. In respect to its external relations, it forms a collective power
established on the principle of political union.
74

PART I.] NATIONS AND SOVEREIGN STATES. § 51

rights of sovereignty, guarantied by the compacts of the Confedera-
tion. This commission is to report to the Diet, which, if it finds
the matter proper for further consideration, will put itself in rela-
tion with the local government concerned. After the lapse of six
years, a new arrangement is to be made for the prolongation of
the commission.

Art. 5. Since according to the 59th article of the Final Act, in
those States where the publication of the deliberations of the
Chambers is secured by the constitution, the free expression of
opinion, either in the deliberations themselves, or in their publica-
tion through the medium of the press, cannot be so extended as to
endanger the tranquillity of the State itself, or of the Confederation
in general, all the governments belonging to it mutually bind
themselves, as they are already bound by their federal relations, to
adopt and maintain such measures as may be necessary to prevent
and punish every attack against the Confederation in the local
Chambers.

Art. 6. Since the Diet is already authorized by the 17th article
of the Final Act, for the maintenance of the true meaning of the
original act of confederation, to give its provisions such an inter-
pretation as may be consistent with its object, in case doubts
should arise in this respect, it is understood that the Confederation
has the exclusive right of interpreting, so as to produce their legal
effect, the original act of the Confederation and the Final Act,
which right it exercises by its constitutional organ, the Diet, (a)

§ 51. Further modifications of the federal constitution Act of the
were introduced by the act of the Diet of the 30th 0f Dietof1834-
October, 1834, in consequence of the diplomatic conferences held
at Vienna in the same year, by the representatives of the different
States of Germany.

By the 1st article of this last-mentioned act, it is provided that,
in case of differences arising between the government of any State
and the legislative Chambers, either respecting the interpretation
of the local constitution, or upon the limits of the co-operation
allowed to the Chambers, in carrying into effect certain deter-
minate rights of the sovereign, and especially in case of the refusal
of the necessary supplies for the support of government, conforma-
bly to the constitution and the federal obligations of the State,
after every legal and constitutional means of conciliation have

(a) Wheaton's Hist. Law of Nations, 460-486.

75

§ 51 NATIONS AND SOVEREIGN STATES. [PART I.

been exhausted, the differences shall be decided by a federal tribu-
nal of arbitrators, appointed in the following manner : —

2. The representatives, each holding one of the seventeen votes
in the ordinary assembly of the Diet, shall nominate, once in every
three years, within the States represented by them, two persons
distinguished by their reputation and length of service in the
judicial and administrative service. The vacancies which may
occur, during the said term of three years, in the tribunal of arbi-
trators thus constituted, shall be in like manner supplied as often
as they may occur.

3. Whenever the case mentioned in the first article arises, and
it becomes necessary to resort to a decision by this tribunal, there
shall be chosen from among the thirty-four, six judges arbitrators,
of whom three are to be selected by the government, and three
by the Chambers. This number may be reduced to two, or in-
creased to eight, by the consent of the parties : and in case of the
neglect of either to name judges they may be appointed by the Diet.

4. The arbitrators thus designated shall elect an additional arbi-
ter as an umpire, and in case of an equal division of votes, the
umpire shall be appointed by the Diet.

5. The documents respecting the matter in dispute shall be
transmitted to the umpire, by whom they shall be referred to two
of the judges arbitrators to report upon the same, the one to be
selected from among those chosen by the government, the other
from among those chosen by the Chambers.

6. The judges arbitrators, including the umpire, shall then meet
at a place designated by the parties, or, in case of disagreement, by
the Diet, and decide by a majority of voices the matter in contro-
versy according to their conscientious conviction.

7. In case they require further elucidations before proceeding to
a decision, they shall apply to the Diet, by whom the same shall be
furnished.

8. Unless in case of unavoidable delay under the circumstances
stated in the preceding article, the decision shall be pronounced
within the space of four months at farthest from the nomination of
the umpire, and be transmitted to the Diet, in order to be commu-
nicated to the government of the State interested.

9. The sentence of the judges arbitrators shall have the effect of
an austregal judgment, and shall be carried into execution in the
manner prescribed by the ordinances of the Confederation.

76

PART I.] NATIONS AND SOVEREIGN STATES. § 51

In the case of disputes more particularly relating to the financial
budget, the effect of the arbitration extends to the period of time
for which the same may have been voted.

10. The costs and expenses of the arbitration are to be ex-
clusively borne by the State interested, and, in case of disputes
respecting their payment, they shall be levied by a decree of the
Diet.

11. The same tribunal shall decide upon the differences and
disputes which may arise, in the free towns of the Confederation,
between the Senate and the authorities established by the burghers
in virtue of their local constitutions.

12. The different members of the Confederation may resort to
the same tribunal of arbitration to determine the controversies
arising between them ; and whenever the consent of the States
respectively interested is given for that purpose, the Diet shall
take the necessary measures to organize the tribunal according to
the preceding articles. (6) ^

(b) For further details respecting the Germanic Constitution, see Wheaton's History
of the Law of Nations, 455, et seq.

[30 The German Confederation. — During the revolutionary troubles of 1848, an
attempt was made to create a political union of the entire German nationality. A par-
liament met at Frankfort in May, 1848, with the approbation of the Diet of the confed-
eracy. The parliament proposed a constitution creating a German empire, with an
hereditary emperor, a diet of two chambers, a constitutional government and imperial
judicature, with full freedom of speech and press. Austria, Wurtemburg, Bavaria, and
Hanover having refused to join the empire, the King of Prussia, to whom the imperial
throne had been offered, refused it ; and the attempt fell through. Efforts were after-
wards made by Austria and Prussia separately to construct some form of a united Ger-
man government, but they all failed ; and, in May, 1851, they fell back upon the old
German confederacy of 1815. (Annual Register, 1848, p. 362 ; 1849, pp. 347, 364 ; 1850,
pp. 313, 320 ; 1851, p. 276.) The war of 1864, for the duchies, found Denmark unsup-
ported by any European power ; and, after a short, brave struggle with the combined
Austrian, Prussian, and German-Confederate armies and navy, Denmark sent a pleni-
potentiary directly to Vienna to settle terms of peace with Austria and Prussia, without
the intervention of any of the other great powers. The preliminaries of peace
were signed at Vienna, on the 1st August, 1864. The terms were as follows : I. The
King of Denmark renounced his rights to the duchies of Schleswig, Holstein, and
Lauenburg, in favor of the King of Prussia and Emperor of Austria ; engaging to
respect such arrangements as their Majesties might make respecting the duchies.
II. The boundaries are settled by including in Schleswig the islands belonging to that
duchy, and the Jutland possessions lying south of the southern line of Ribe, which
includes several islands, as Amrom, parts of Fohr, Sylt, &c. ; and by Denmark retain-
ing small portions of Schleswig, to rectify the line. III. The ceded duchies bear their
share of the debts of the kingdom of Denmark, contracted for the general account.
IV. An armistice was established upon the principle of uti possidetis. V. A treaty of
peace is to be made. By the subsequent Convention of Gastein, Prussia takes Schles-

7* 77

§ 53 NATIONS AND SOVEREIGN STATES. [PART I.

United- § 52. The Constitution of the United States of America
America, is of a very different nature from that of the Germanic
Confederation. It is not merely a league of sovereign States, for
their common defence against external and internal violence, but a
supreme federal government, or compositive State, acting not only
upon the sovereign members of the Union, but directly upon all its
citizens in their individual and corporate capacities. It was estab-
lished, as the Constitution expressly declares, by " the people of
the United States, in order to form a more perfect union, establish
justice, insure domestic tranquillity, provide for the common de-
fence, promote the general welfare, and secure the blessings of
liberty to them and their posterity." This Constitution, and the
laws made in pursuance thereof, and treaties made under the au-
thority of the United States, are declared to be the supreme law
of the land and that the judges in every State shall be bound
thereby, any thing in the constitution or laws of any State to the
contrary notwithstanding.

Legisia- § 53. The legislative power of the Union is vested in a
o7th^°wer Congress, consisting of a Senate, the members of which
Union. are chosen by the local legislatures of the several States,
and a House of Representatives, elected by the people in each
State. This Congress has power to levy taxes and duties, to pay
the debts, and provide for the common defence and general welfare
of the Union ; to borrow money on the credit of the United States ;
to regulate commerce with foreign nations, among the several

wig and Lauenburg, with the port of Kiel, and the control of the canal from the Ger-
man Ocean to the Baltic. Austria has Holstein, and receives 375,000/. for the
surrender of Lauenburg. Yet the matter between the two powers is hot entirely
settled, and Prussia holds possession of Lauenburg. The Only thing absolutely settled
is, that the German Confederation is powerless against Prussia, and has little else
remaining to it than a moral influence.

From 1859 to the present time, the constitution of the German confederacy and
of the Zollverein have been the subjects of frequent attempts at reconstruction. The
states of the second order began the movement in 1859, countenanced by Austria,
Saxony taking the lead. Their proposition, known as the Dresden Project, was
declined by Prussia, and the Prussian proposal of a restricted confederation, under
her own direction, was opposed by Austria and the minor powers in sympathy with
her. In the Zollverein, it had been customary for Prussia to negotiate the commercial
treaties with foreign powers, and to sign and exchange them ; leaving the other mem-
bers of the union to give their adherence afterwards. The attempt to introduce Aus-
tria into the Zollverein, and the growing reluctance of the minor States to leave the
treaty-making power to Prussia, make the continuance, or at least the renewal, of
the Zollverein a matter of no little doubt. Le Nord, Aug. 15, Aug. 31, Oct. 18, Nov.
land 21, 1862.]— D.
78

PART I.] NATIONS AND SOVEREIGN STATES. § 54

States, and with the Indian tribes ; to establish a uniform rule
of naturalization, and uniform laws on the subject of bankruptcy
throughout the Union ; to coin money, and fix the standard of
weights and measures ; to establish post-offices and post-roads ;
to secure to authors and inventors the exclusive right to their
writings and discoveries ; to punish piracies and felonies on the
high seas, and offences against the law of nations ; to declare
war, grant letters of marque and reprisal, and regulate captures
by sea and land ; to raise and support armies ; to provide and
maintain a navy ; to make rules for the government of the land
and naval forces; to exercise exclusive civil and criminal legis-
lation over the district where the seat of the federal government
is established, and over all forts, magazines, arsenals, and dock-
yards belonging to the Union, and to make all laws necessary
and proper to carry into execution all these and. the other powers
vested in the federal government by the Constitution.

§ 54. To give effect to this mass of sovereign authori- Executive
ties, the executive power is vested in a President of the Power-
United States, chosen by electors appointed in each State in such
manner as the legislature thereof may direct. The judicial power
extends to all cases in law and equity arising under the Constitu-
tion, laws, and treaties of the Union, and is vested in a Supreme
Court, and such inferior tribunals as Congress may establish.
The federal judiciary exercises under this grant of power the
authority to examine the laws passed by Congress and the sev-
eral State legislatures, and, in cases proper for judicial determina-
tion, to decide on the constitutional validity of such laws.31 The

[31 Relations of the United-States Judiciary to the Constitution and Statutes. — The lan-
guage of this clause may mislead foreign readers. There is no tribunal, under the
Constitution, which has special and direct power to decide questions of constitutional
law. The Supreme Court of the United States, like all the other courts, State or
national, is simply a court of judicature, to decide controverted cases in law, equity,
. or admiralty, that are brought before it by actual litigants. It is not charged with any
special function conservative of the Constitution, like the so-entitled Senate of the
French Constitution of December, 1799. In cases before it, the Supreme Court has no
other jurisdiction over constitutional questions than is possessed by the humblest
judicial tribunal, State or national, in the land. The only distinction is, that it is the
court of final resort, from whose decision there is no appeal. The relations of all
the courts to the Constitution arise simply from the fact, that, being courts of law, they
must give to litigants before them the law; and the Constitution of the United States is
law, and not, like most European political constitutions, a collection of rules and prin-
ciples having only a moral obligation upon the legislative and executive departments of
the government. Accordingly, each litigant, having the right to the highest law, may

79

§ 54 NATIONS AND SOVEREIGN STATES. [PART I.

judicial power also extends to all cases affecting ambassadors,
other public ministers, and consuls ; to all cases of admiralty
and maritime jurisdiction ; to controversies to which the United

appeal from a statute of Congress, or any other act of any officer or department, State
or national, and invoke the Constitution, as the highest law. The court does not form-
ally set aside or declare void any statute or ordinance inconsistent with the Constitu-
tion. It simply decides the case before it according to law; and, if laws are in conflict,
according to that law which has the highest authority : that is, the Constitution. The
effect of the decree of the final court on the status of the parties or property in that suit
is, of course, absolute, and binds all departments of the government. The constitu-
tional principle involved in the decision being ascertained from the opinion, — if the
court sees fit to deliver a full opinion, — has in all future cases, in courts of law, simply
the effect of a judicial precedent, whatever that may be. Upon the political depart-
ments of the government, and upon citizens, the principle decided has, in future cases,
not the binding force of a portion of the Constitution, but the moral effect due to its
intrinsic weight and to the character of the tribunal, and the practical authority derived
from the consideration that all acts inconsistent with it will be inoperative, by reason
of the judicial power, which any litigant may invoke against their operation ; and from
the further consideration that any attempts to act against it can only produce a conflict
between departments of the government, in which the authority of the judiciary must
prevail or be overthrown. But the court itself, in some subsequent case, upon further
consideration, or by reason of changes in its members, may overrule its own prece-
dent ; and thus a law or doctrine long inoperative may be revived, or, long operative,
may be set aside. The precise authority which a precedent of the Supreme Court,
on a question of constitutional law, has upon the court itself, in subsequent cases, is
too complex and uncertain for speculation here.

There need be no difficulty in apprehending the subject, if certain things are borne
in mind : I. The Constitution is a code of positive law, as much as an act of the Legis-
lature, and binding, as positive law, upon all persons, official or unofficial, in all their
relations, public or private, and upon all departments of the government, legislative,
executive, and judicial. II. The courts have no special power to construe the Consti-
tution, or to make interpretations of it which shall have the force of law. They have
no function except to decide actual causes brought before them by litigating parties.
As they must decide these causes according to law, they necessarily interpret the Con-
stitution as they do any other form of law ; but only for the purpose of deciding the
case before them, and that is all they do decide. III. The American system being
that of the Common Law, in which the principle of a judicial decision has the force
of a precedent, the constitutional principle involved in deciding a case has that force.
IV. The decree of the court on the subject-matter before it, must be executed by all
the powers of the government ; but the principle of constitutional law involved in the
decision has not the force of a law, as to future cases, on a department, or a citizen in
the discharge of his political duties. It has the moral and practical force of a judicial
precedent. V. The practical effect of a judicial precedent of the Supreme Court is to
settle a rule of construction for all inferior courts. It also settles a rule for the Supreme
Court itself, not absolute, but practically permanent, unless very strong grounds appear
for reversing it in some future case. The advantage of a settled rule, and the dangers
and disadvantages of uncertain rules, are always great. Moreover, in the case of a
purely judicial tribunal, as it cannot propound abstract rules of law, but only decide
cases, a change of the principle of decision, in a case before it, operates as a surprise
and injustice upon the parties in court, and upon all who have shaped their conduct by
80

PART I.] NATIONS AND SOVEEEIGN STATES. § 55

States shall be a party; to controversies between two or more
States ; between a State and citizens of another State ; between
citizens of different States ; between citizens of the same State
claiming lands under grants of different States ; and between a
State, or the citizens thereof, and foreign States, citizens, or
subjects.

§ 55. The treaty-making power is vested exclusively in Treaty-
the President and Senate ; all treaties negotiated with for- £!>wer.g
eign States being subject to their ratification. No State of the Union
can enter into any treaty, alliance, or confederation ; grant letters
of marque and reprisal ; coin money ; emit bills of credit ; make
any thing but gold and silver coin a tender in the payment of
debts ; pass any bill of attainder ex post facto law, or law impair-
ing the obligation of contracts ; grant any title of nobility ; lay any
duties on imports or exports, except such as are necessary to execute
its local inspection laws, the produce of which must be paid into the
national treasury ; and such laws are subject to the revision and
control of the Congress. Nor can any State, without the consent
of Congress, lay any tonnage duty ; keep troops or ships of war in
time of peace ; enter into any agreement or compact with another
State or with a foreign power ; or engage in war unless actually

the principle once adopted by the court. This simple fact, seldom noticed, — that a
court of law cannot adopt or declare a rule of interpretation in the abstract, to operate
only in future cases, as an act of the legislature operates, with notice to all, but, if it
changes its principle of construction, must do so on a case ex post facto, — goes far to
account for the obligation of judicial precedents. VI. A judicial precedent, on a
question of constitutional political law, has no other than moral force on the legislative
department, in its subsequent acts, and on citizens in their votes. For instance, if the
Supreme Court decides a statute to be constitutional, that does not operate, as law, on
the conscience of a member of the legislature, under his oath, so as to prevent him
from voting to repeal it as unconstitutional ; or to prevent a citizen from voting at elec-
tions, on that ground alone ; or upon the President, to prevent his putting his veto on
a renewal of such a law in a new case. So, if it decides a law unconstitutional, the
legislature may retain the law on the statute-books, and renew it if it expires, leaving
it to be inoperative, in the hope of a reversal of the decision by some changes in the
court. This course raises only a question of comity and prudence. If the Supreme
Court decides a certain bank-charter to be constitutional, Congress may decline to re-
new it when it has expired, or to grant a similar one to another company, solely on the
ground that such charters, in their opinion, are not constitutional. No conflict is cre-
ated, as the existing charter has effect everywhere, by force of the decision. If the
Supreme Court decides that it is unconstitutional to prohibit slavery in a territory, Con-
gress may still prohibit it in all future territorial bills ; taking the chance of the court's
not adhering to its doctrine. These are questions of policy and propriety, not
of law.

This topic is peculiar to American jurisprudence. In England, an act of Parlia-

81

§ 56 NATIONS AND SOVEREIGN STATES. [PART I.

invaded, or in such imminent danger as does not admit of delay.
The Union guarantees to every State a republican form of gov-
ernment, and engages to protect each of them against invasion,
and, on application of the legislature, or of the executive, when
the legislature cannot be convened, against domestic violence.
The Amer- § 56. It is not wi thin the province of this work to de-

ican Union . x

is a supreme termine how far the internal sovereignty of the respective
emmenf. V States composing the Union is impaired or modified by
these constitutional provisions. But since all those powers, by
which the international relations of these States are maintained
with foreign States, in peace and in war, are expressly conferred by
the Constitution on the federal government, whilst the exercise of
these powers by the several States is expressly prohibited, it is
evident that the external sovereignty of the nation is exclusively
vested in the Union. The independence of the respective States,
in this respect, is merged in the sovereignty of the federal govern-
ment, which thus becomes what the German public jurists call a
Bundesstaat.32

ment is supreme law : there being no positive, paramount constitution ; and, on the
continent, the doctrine of public law seems to be, that courts are not to go behind
the external or formal legality of governmental acts.] — D.

[32 The United States a Supreme Government. — The republic of the United States
comes confessedly up to this second class, of a supreme federal government, or com-
posite state, in its practical result. It is a new state or government, acting directly
upon each individual, by its own officers and departments, in execution of its own
laws. Within its sphere, it acts as if there were no separate States in existence. It
is also the final judge, in a dispute between itself and a State, as to the limits of its
sphere of action. It has been the doctrine of a political school, that the Constitution
had its origin and authority from a compact of the States ; but the doctrine more gen-
erally received is, that the people of the entire republic, as a political community,
created the republic, as the people of each State created the separate States : the
organic relation of each citizen to the republic being the same in kind as that he
holds to the State in which he lives. This doctrine arises naturally out of the Ameri-
can principle that the political people are the sources of all authority, and the creators
of the form of government under which they live.

But, whatever may be the theory, its consideration does not belong to international
law. It is enough to say, that the supremacy of the republic within its sphere, and
its supreme right to determine the limits of its sphere, is now settled. Mr. Calhoun
and the politicians of the South Carolina school, in 1831, at first contended for a right
in each State to nullify any act of Congress within the limits of the State which, in
the opinion of the State, should be unconstitutional or oppressive and unjust, and yet
to remain in the Union. The impracticability of recognizing such a right as a legal
right, the State still to remain in the Union and its people assisting to make laws for
the republic, choosing which they will obey, soon brought this theory into disrepute,
even with its original supporters ; and they adopted the more practical doctrine of a
right in a State to secede from the Union altogether, at its discretion. This doctrine,
82

PART I.] NATIONS AND SOVEREIGN STATES. § 57

§ 57. The Swiss Confederation, as remodelled by the Swiss
federal pact of 1815, consists of a union between the tion.
then twenty-two Cantons of Switzerland; the object of which is

known as the Right of Secession, soon supplanted the impracticable theory of Nullifi-
cation. The right of secession was contended for as a constitutional right, binding on
the rest of the Union whenever exercised by a State. No American questions the
moral right of forcible revolution, — that is, the right of any part of a nation to appeal
to force against a government, whenever a case justifying such a course shall arise, —
or doubts the right of a government to suppress a revolution by force. But, in the
attempt at secession in 1861, the movement was not put on the ground of a revolution,
to be justified or condemned by the moral considerations by which revolutions are
always to be judged, but on the ground of the exercise of a strictly legal right, by
each State, which the general government is bound in law to respect. The reasoning
upon which this theory rests is, that a State is supreme over the republic ; for the
doctrine is not only that, in a question of the limits of jurisdiction between a State
and the republic, each State is the final and conclusive judge, but, further, that a
State may withdraw, at any time, on the mere exercise of its discretion, the republic
having no further right than to ascertain whether the State has acted. Such a doc-
trine as this, put in force by a large number of States, admitted of no practical solution
but that which comes from the conflict of arms.

Slavery formed, in the main, the test of disloyalty. Every slave State was involved
in the rebellion, with the exception of three border States, — Maryland, Kentucky, and
Missouri, where there was a good deal of free labor, and in which the government was
able to keep its military force, and where the union influence was strong. A rebel
State itself was often divided geographically, as to loyalty, by the same test of slavery.
In the western part of Virginia and eastern part of Tennessee, where there were few
slaves, the people were loyal by a vast majority, and resisted the secession of their
States, and furnished large bodies of troops for the Union armies. The same state of
things existed, though in a less degree, in the upper and mountainous parts of North
Carolina, Georgia, and Alabama. In some of the States, especially in South Carolina,
there was unquestionably a large majority for secession: but, in other States, the
majority was doubtful, sometimes generally believed to be loyal ; and, in such cases,
the ordinance of secession was either not put to a popular vote, or put to vote under
circumstances that prevented a fair expression of opinion. By one means or another,
eleven States were thrown into rebellion by the use of the political machinery of the
States.

The ground taken by the government was simple. The principle of the Constitu-
tion is asserted in these plain words : " This Constitution, and the laws of the United
States, which shall be made in pursuance thereof, shall be the supreme law of the
land, any thing in the constitution and the laws of any State to the contrary notwith-
standing." The ordinances of secession were treated as void. Each citizen was held
to his direct allegiance to the republic, a breach of which was treason, for which no
action of his State, in whatever form conceived, could furnish any justification.
Where the rebellion could be put down by civil force, .that alone was exerted. Where
military force was necessary, it was resorted to.

The States in rebellion organized a central government, which they called the
Confederate States of America. In its details, it was a copy of the Constitution of
the United States ; but the language was carefully changed throughout, in order to
alter the basis from that of a government created by the whole people to that of a
kind of central agency delegated by sovereign and independent States. Eor " United

83

§ 57 NATIONS AND SOVEREIGN STATES. [PART I.

declared to be the preservation of their freedom, independence,
and security against foreign attack, and of domestic order and
tranquillity. The several Cantons guaranty to each other their

States," or " Union," was substituted, in their constitution, " Confederate States,"
with the phrase added, " each State acting in its sovereign and independent charac-
ter ; " and the words, " form a more perfect union, provide for the common defence,
and promote the general welfare," were stricken out ; and for " granted " was every-
where substituted " delegated ; " and other changes made, to carry out the same theory.
It prohibited the passing of any law " denying or impairing the right of property in
negro slaves." The Confederate Government became at once firmly established
in the eleven States, organized in all its parts, and assumed the position of an inde-
pendent nation. It punished as treason loyalty to the United States of any persons
within its assumed limits. It treated as a war of invasion any attempt of the United
States to exercise authority within the eleven States. When the United States
refused to give up the national fort at the entrance of Charleston harbor (Fort
Sumter), it was reduced by bombardment; and, when the United States attempted to
restore its civil authority by the use of military force, the Confederacy declared war,
and issued letters of marque. The United States did not, of course, declare war ; for
there was no body-politic against which to declare it, the very existence of the Confed-
erate government being treason; and the separate States could not be regarded
as capable of performing any function in hostility to the United States. The state of
things was treated as a rebellion of individuals, risen to the dimensions of a war. It
was met by the exercise of the powers of war on the part of the United States, prac-
tically, and for the purpose of suppressing the insurrection. The government did, in
practice, treat the rebels as belligerents, while the war lasted ; holding them as prison-
ers of war, making use of exchanges and other practices of war. This was from
necessity, to prevent retaliation, and from humanity. No general status of belligerency
was conceded to them by law ; but the legal status of each person engaged in the
rebellion was that of a criminal under the municipal law. When the rebellion was
subdued, and its chief armies, under Lee and Johnston, were about to surrender, the
leaders of the rebellion attempted to make some terms of peace between the Confeder-
ate authorities and the United States ; but the course pursued by the government was
in strict adherence to the principle upon which the secession had been dealt with from
the beginning. The United States could recognize no authority, either of a State or
of confederated States, capable even of making a surrender. It would deal only with
each army before it, and accept its separate surrender to the commander of the Union
army opposed to it, as a military act. The surrender of all the rebel armies left the
confederacy simply to collapse. Neither its existence nor its disappearance was noticed
legally by the United States.

The course pursued by the government as to individuals was this : All who had
surrendered as prisoners of war, or who had been held or actually treated as such,
were not to be proceeded against as criminals for the fact of having been engaged in
the war. The right to try and punish for treason, after the war ended, persons who
had been engaged in the original conspiracy which brought on the war, or, for any act
of treason, persons who had not the privilege attached to prisoners of war, was held to
be unimpaired by the acts of the government during the war. Military government
was continued over all the rebel territory, with the suspension of the privilege of the
writ of habeas corpus, until the civil authority of the republic should be fully restored.
An entire political and civil restitution is not completed until the civil tribunals of the
general government can exercise their authority peacefully within the limits of each
84

PART I.] NATIONS AND SOVEREIGN STATES. § 57

respective constitutions and territorial possessions. The Con-
federation has a common army and treasury, supported by levies
of men and contributions of money, in certain fixed proportions,

State, and the functions of that government be fully discharged. This requires, by
the free system of the United States, a loyal co-operation of the people who exercise
political power within each State, since they must hold many of the offices and compose
the juries for the trial of all offences. It is also necessary that the State governments
should be in active operation in conformity with and subordinate to the Constitution
of the United States, not only for the administration of the internal affairs of each
State, but to enable the people of the State to have their share in the administration
of the government of the republic. Until these results are reached, the regions of
country lately in rebellion, with their inhabitants, are held under the forcible or mili-
tary government of the republic, as far as is necessary, although that government is
exercised, to a great extent, by civil officers and civil methods.

There are various theories as to the status of the portions of the country lately in
rebellion. Some consider the States as having ceased to exist, and the entire region
they formerly occupied to be national domain, under the government of the nation, in
the same manner with what is known as the national " territory," lying beyond the
limits of any States ; while others regard the States as retaining their legal existence,
and only to have been temporarily thrown out of their normal relations, by illegal
force. The former theory admits of the exercise of supreme power by the general
government, as a regular civil function in time of peace, under the Constitution, and
extending over every possible subject of legislation, national or local, organic or func-
tional. The latter theory derives the extraordinary authority of the republic over
these regions and their inhabitants from the state of war, which must be considered as
theoretically continuing until the civil governments, State and national, are satisfacto-
rily restored. But, whatever the theory in these respects, all agree that the American
system is one of separate States with a central State, and that this system must be
restored to complete operation as soon as is practicable ; and that a government over
unrepresented people is an anomaly, dangerous to republican principles and habits,
and to be exercised no longer than the necessity exists which the rebellion created.

The civil war saw the final and complete establishment of that construction of
the Constitution which makes the United States a State in the scientific sense of the
term ; having direct authority over each citizen, to be exercised by its own officers,
independently of the States ; and a right to the direct allegiance of each citizen, from
which no State action can absolve him; with the light to determine the limits of its
own jurisdiction; with no appeal from its decision, except through constitutional
methods of altering the laws or the administration, by the ballot, or through forcible
revolution. The great features, however, in which the independence and safety of
the States appear are, that the same people which constitute the States constitute the
republic, and are the sources of all authority for each ; that the national offices
are all filled by citizens of some State ; that these offices are held by popular elec-
tions for short periods, no family or class or section of people having any national
interest distinct from their State interests ; that the people have the deepest interest
in keeping within their separate State control, where they have always been lodged,
all those subjects which come most home to a people, — the family relations, the
tenure and descent of property, education, religion, the entire civil police, and the civil
relations of the people of each State with one another : all which are administered by
State tribunals and officers, independently of central authority. There has never been
in history a constitution analogous even, to that of the United States. The preserva-

8 85

§ 57 NATIONS AND SOVEREIGN STATES. [PART I.

among the different Cantons. In addition to these contribu-
tions, the military expenses of the Confederation are defrayed
by duties on the importation of foreign merchandise, collected by
the frontier Cantons, according to the tariff established by the
Diet, and paid into the common treasury. The Diet consists of
one deputy from every Canton, each having one vote, and assem-
bles every year, alternately, at Berne, Zurich, and Lucerne, which
are called the directing Cantons, (Vorort.') The Diet has the
exclusive power of declaring war, and concluding treaties of
peace, alliance, and commerce, with foreign States. A majority
of three fourths of the votes is essential to the validity of these
acts ; for all other purposes, a majority is sufficient. Each Can-
ton may conclude separate military capitulations and treaties,
relating to economical matters and objects of police, with foreign
powers ; provided they do not contravene the federal pact, nor
the constitutional rights of the other Cantons. The Diet pro-
vides for the internal and external security of the Confederation ;
directs the operations, and appoints the commanders of the fed-
eral army, and names the ministers deputed to other foreign
States. The direction of affairs, when the Diet is not in session,
is confided to the directing Canton, ( Vorort,) which is empowered
to act during the recess. The character of directing Canton alter-
nates every two years, between Zurich, Berne, and Lucerne.
The Diet may delegate to the directing Canton, or Vorort, special
full powers, under extraordinary circumstances, to be exercised
when the Diet is not in session ; adding, when it thinks fit, federal
representatives, to assist the Vorort in the direction of the affairs
of the Confederation. In case of internal or external danger, each
Canton has a right to require the aid of the other Cantons ; in

tion of the distribution of powers would be in danger, if the central government were
administered by a family or class which had a permanent interest in it ; or if it derived
its authority from any other source than that from which the States derive theirs ; or
if any one State had a larger interest or greater control over it than another ; or if it
had charge of any such subjects as have been enumerated ; or, perhaps, if the tenure
of national office was for life, or for very long periods, so as to create a permanent
central interest, tempted to usurp upon the States. But, as the central government
is administered only by agents sent out from the people of the States for short intervals,
to return to the States again, having all their property and dearest interests within the
States and subject to State control, and as the States offer employment and honors to
talents, and no citizen can long hold political national life without the approval of the
vote of his State, the reserved State-rights are felt to be in as much safety as can be
predicated of human institutions.] — D.
86

PART I.] NATIONS AND SOVEREIGN STATES. § 59

which case, notice is to be immediately given to the Vorort, in order
that the Diet may be assembled, to provide the necessary measures
of security, (a)

§ 58. The compact, by which the sovereign Cantons of tio^fst^"
Switzerland are thus united, forms a federal body, which, Swiss Con-
in some respects, resembles the Germanic Confederation, compared
whilst in others it more nearly approximates to the 0f the Ger-
American Constitution. Each Canton retains its origi- g^tf0°nn"
nal sovereignty unimpaired, for all domestic purposes, United the
even more completely than the German States ; but the states,
power of making war, and of concluding treaties of peace, alliance,
and commerce, with foreign States, being exclusively vested in the
federal Diet, all the foreign relations of the country necessarily
fall under the cognizance of that body. In this respect, the pres-
ent Swiss Confederation differs materially from that which existed
before the French Revolution of 1789, which was, in effect, a mere
treaty of alliance for the common defence against external hos-
tility, but which did not prevent the several Cantons from making
separate treaties with each other, and with foreign powers, (a)

8 59. Since the French Revolution of 1830, various Abortive

° 7 attempts,

changes have taken place in the local constitutions of the since isso,
different Cantons, tending to give them a more democratic the federal
character ; and several attempts have been made to revise isi5.°
the federal pact, so as to give it more of the character of a supreme
federal government, or JBundesstaat, in respect to the internal rela-
tions of the Confederation. Those attempts have all proved abor-
tive ; and Switzerland still remains subject to the federal pact of
1815, except that three of the original Cantons, — Basle, Unter-
walden, and Appenzel, — have been dismembered, so as to increase
the whole number of Cantons to twenty-five. But as each division
of these three original Cantons is entitled to half a vote only in the
Diet, the total number of votes still remains twenty-two, as under
the original federal pact, (a)23

(a) Martens, Nouveau Recueil, torn. viii. p. 173.

(a) Merlin, Repertoire, tit. Ministre Public.

(a) Wheaton, Hist. Law of Nations, 494-496.

[33 On the 12th September, 1848, a new constitution was adopted, having the same
general character with the preceding, and, though giving more powers to the Confed-
eration, still not coming within the definition of a Bundesstaat. The federal legisla-
ture has two houses, — the National Council and the Council of States. The former
consists of representatives chosen according to population, and the latter of two deputies

87

§ 59 NATIONS AND SOVEREIGN STATES. [PART I.

from each canton. A federal council of seven, chosen by the legislature for three years,
has charge of foreign affairs and certain executive duties, and is responsible to the
legislature, in which its members have seats and a voice. The confederacy has charge
of foreign affairs, posts, public roads, currency, weights and measures, and matters
arising between the cantons. The distribution of jurisdiction between the cantons
and the confederacy remains substantially as stated in the text. The confederacy has
no army, but can organize and govern the contingents of the cantons when called into
service. Annuaire des deux Mondes, 1850, p. 37. Constitution Federate Suisse.

Neufchatel, as has been seen (ante, note 25), is now, by the treaty of 26th May,
1857, a regular canton of the confederacy ; and the authority of the King of Prussia
over it is abrogated,] — D.

PAUT SECOND.

ABSOLUTE INTERNATIONAL EIGHTS OF STATES.

CHAPTER I.

RIGHT OF SELF-PRESERVATION AND INDEPENDENCE.

§ 60. The rights, which sovereign States enjoy with Rights of
regard to one another, may be divided into rights of states, with
two sorts : primitive, or absolute rights ; conditional, or one another.
hypothetical rights, (a)

Every State has certain sovereign rights, to which it is entitled
as an independent moral being ; in other words, because it is a
State. These rights are called the absolute international rights,
of States, because they are not limited to particular circum-
stances.

The rights to which sovereign States are entitled, under par-
ticular circumstances, in their relations with others, may be
termed their conditional international rights ; and they cease with
the circumstances which gave rise to them. They are conse-
quences of a quality of a sovereign State, but consequences which
are not permanent, and which are only produced under particular
circumstances. Thus war, for example, confers on belligerent or
neutral States certain rights, which cease with the existence of the
war.34

§ 61. Of the absolute international rights of States, one Right of
of the most essential and important, and that which lies vation.

(a) Kliiber, Droit des Gens Moderne de l'Europe, § 36.

[34 Is this distinction any thing more than the objective distinction between the per-
manent and the occasional ? Self-preservation is classed by the author among absolute
rights ; and war, and all done by virtue of war, may be treated as only instances of the
exercise of powers derived from the " absolute right" of self-preservation.] — D.

8* 89

§ 62 RIGHT OF SELF-PRESERVATION [PART II.

at the foundation of all the rest, is the right of self-preservation.
It is not only a right with respect to other States, but a duty
with respect to its own members, and the most solemn and impor-
tant which the State owes to them. This right necessarily involves
all other incidental rights, which are essential as means to give
effect to the principal end.

Right of § 62. Among these is the right of self-defence. This
modmed1^6 a&am mv°lves the right to require the military service of
the equal all its people, to levy troops and maintain a naval force,
other states, to build fortifications, and to impose and collect taxes

y rea y. £or ^\ these purposes. It is evident that the exercise
of these absolute sovereign rights can be controlled only by the
equal correspondent rights of other States, or by special compacts
freely entered into with others, to modify the exercise of these
rights.

In the exercise of these means of defence, no independent State
can be restricted by any foreign power. But another nation may,
by virtue of its own right of self-preservation, if it sees in these
preparations an occasion for alarm, or if it anticipates any possible
danger of aggression, demand explanatjpns ; and good faith, as
well as sound policy, requires that these inquiries, when they are
reasonable and made with good intentions, should be satisfactorily
answered.

Thus, the absolute right to erect fortifications within the terri-
tory of the State has sometimes been modified by treaties, where
the erection of such fortifications has been deemed to threaten the
safety of other communities, or where such a concession has been
extorted in the pride of victory, by a power strong enough to
dictate the conditions of peace to its enemy. Thus, by the
treaty of Utrecht, between Great Britain and France, confirmed
by that of Aix-la-Chapelle, in 1748, and of Paris, in 1763, the
French government engaged to demolish the fortifications of Dun-
kirk. This stipulation, so humiliating to France, was effaced in
the treaty of peace concluded between the two countries, in 1783,
after the war of the American Revolution. By the treaty signed
at Paris, in 1815, between the Allied Powers and France, it was
stipulated that the fortifications of Huningen, within the French
territory, which had been constantly a subject of uneasiness to
the city of Basle, in the Helvetic Confederation, should be demol-
ished, and should never be renewed or replaced by other fortifi-

90

PART II.] AND INDEPENDENCE. § 63

cations, at a distance of less than three leagues from the city
of Basle, (a) «

§ 63. The right of every independent State to increase Right of
its national dominions, wealth, population, and power, by ortnterfei-n
all innocent and lawful means ; such as the pacific acqui- ence-
sition of new territory, the discovery and settlement of new coun-
tries, the extension of its navigation and fisheries, the improvement
of its revenues, arts, agriculture, and commerce, the increase of its
military and naval force ; is an incontrovertible right of sover-
eignty, generally recognized by the usage and opinion of nations.
It can be limited in its exercise only by the equal correspondent
rights of other States, growing out of the same primeval right
of self-preservation. Where the exercise of this right, by any of
these means, directly affects the security of others, — as where it
immediately interferes with the actual exercise of the sovereign
rights of other States, — there is no difficulty in assigning its pre-
cise limits. But where it merely involves a supposed contingent
danger to the safety of others, arising out of the undue aggrandize-
ment of a particular State, or the disturbance of what has been
called the balance of power, questions of the greatest difficulty
arise, which belong rather to the science of politics than of public
law.

The occasions on which the right of forcible interference has
been exercised, in order to prevent the undue aggrandizement of
a particular State, by such innocent and lawful means as those
above mentioned, are comparatively few, and cannot be justified
in any case, except in that where an excessive augmentation of
its military and naval forces may give just ground of alarm to its
neighbors. The internal development of the resources of a coun-
try, or its acquisition of colonies and dependencies at a distance
from Europe, has never been considered a just motive for such
interference. It seems to be felt, with respect to the latter, that
distant colonies and dependencies generally weaken, and always
render more vulnerable the metropolitan State. And with respect
to the former, although the wealth and population of a country
is the most effectual means by which its power can be augmented,
such an augmentation is too gradual to excite alarm. To which

(a) Martens, Recueil de Traites, torn. ii. p. 469.

[35 By the treaty of Paris, of 30 March, 1856, Russia and the Sultan agree not to
establish or continue any marine arsenals on the shores of the Black Sea.] — D.

91

§ 63 RIGHT OF SELF-PRESERVATION [PART II.

it must be added that the injustice and mischief of admitting
that nations have a right to use force, for the express purpose of
retarding the civilization and diminishing the prosperity of their
inoffensive neighbors, are too revolting to allow such a right to
be inserted in the international code. Interferences, therefore,
to preserve the balance of power, have been generally confined to
prevent a sovereign, already powerful, from incorporating con-
quered provinces into his territory, or increasing his dominions
by marriage or inheritance, or exercising a dictatorial influence
over the councils and conduct of other independent States, (a)

Each member of the great society of nations being entirely
independent of every other, and living in what has been called a
state of nature in respect to others, acknowledging no common
sovereign, arbiter, or judge; the law which prevails between
nations being deficient in those external sanctions by which the
laws of civil society are enforced among individuals ; and the per-
formance of the duties of international law being compelled by
moral sanctions only, by fear on the part of nations of provoking
general hostility, and incurring its probable evils in case they
should violate this law; an apprehension of the possible conse-
quences of the undue aggrandizement of any one nation upon
the independence and the safety of others, has induced the States
of modern Europe to observe, with systematic vigilance, every
material disturbance in the equilibrium of their respective forces.
This preventive policy has been the pretext of the most bloody
and destructive wars waged in modern times, some of which
have certainly originated in well-founded apprehensions of peril
to the independence of weaker States, but the greater part have
been founded upon insufficient reasons, disguising the real motives
by which princes and cabinets have been influenced. Wherever
the spirit of encroachment has really threatened the general
security, it has commonly broken out in such overt acts as not
only plainly indicated the ambitious purpose, but also furnished
substantive grounds in themselves sufficient to justify a resort to
Wars of arms by other nations. Such were the grounds of the
mation. r" confederacies created, and the wars undertaken to check
the aggrandizement of Spain and the house of Austria, under
Charles V. and his successors ; — an object finally accomplished
by the treaty of Westphalia, which so long constituted the written

(a) Senior, Edinb. Rer. No. 156, art. 1, p. 329.
92

PART II.] AND INDEPENDENCE. § 64

public law* of Europe. The long and violent struggle between the
religious parties engendered by the Reformation in Germany,
spread throughout Europe, and became closely connected with
political interests and ambition. The great Catholic and Prot-
estant powers mutually protected the adherents of their own faith
in the bosom of rival States. The repeated interference of Austria
and Spain in favor of the Catholic faction in France, Germany, and
England, and of the Protestant powers to protect their persecuted
brethren in Germany, Prance, and the Netherlands, gave a pecu-
liar coloring to the political transactions of the age. This was
still more heightened by the conduct of Catholic Prance under the
ministry of Cardinal Richelieu, in sustaining, by a singular refine-
ment of policy, the Protestant princes and people of Germany
against the house of Austria, whilst she was persecuting with
unrelenting severity her own subjects of the reformed faith. The
balance of power adjusted by the peace of Westphalia was once
more disturbed by the ambition of Louis XIV., which compelled
the Protestant States of Europe to unite with the house of Aus-
tria against the encroachments of France herself, and induced the
allies to patronize the English Revolution of 1688, whilst the French
monarch interfered to support the pretensions of the Stuarts.
These great transactions furnished numerous examples of inter-
ference by the European States in the affai-rs of each other, where
the interest and security of the interfering powers were supposed
to be seriously affected by the domestic transactions of other
nations, which can hardly be referred to any fixed and definite
principle of international law, or furnish a general rule fit to be
observed in other apparently analogous cases. (&)

§ 64. The same remarks will apply to the more recent, th^resn^
but not less important events, growing out of the French Revolution.
Revolution. They furnish a strong admonition against attempt-
ing to reduce to a rule, and to incorporate into the code of nations,
a principle so indefinite, and so peculiarly liable to abuse, in its
practical application. The successive coalitions formed by the
great European monarchies against France subsequent to her first
revolution of 1789, were avowedly designed to check the progress
of her revolutionary principles, and the extension of her military
power. Such was the principle of intervention in the internal
affairs of France, avowed by the Allied Courts, and by the pub-
(b) Wheaton, Hist. Law of Nations, Part I. §§ 2, 3, pp. 80-88.

§ 65 RIGHT OP SELF-PBESERVATION [PART II.

licists who sustained their cause. Prance, on her side, relying on

Alliance tne independence of nations, contended for non-interven-

of the five tion as a right. The efforts of these coalitions ultimately

great Euro- °

pean pow- resulted in the formation of an alliance, intended to be
permanent, between the four great powers of Russia,
Austria, Prussia, and Great Britain, to which France subsequently
acceded, at the Congress of Aix-la-Chapelle, in 1818, constituting
a sort of superintending authority in these powers over the inter-
national affairs of Europe, the precise extent and objects of which
were never very accurately denned. As interpreted by those of
the contracting powers, who were also the original parties to the
compact called the Holy Alliance, this union was intended to form
a perpetual system of intervention among the European States,
adapted to prevent any such change in the internal forms of their
respective governments, as might endanger the existence of the
monarchical institutions which had been re-established under
the legitimate dynasties of their respective reigning houses. This
general right of interference was sometimes defined so as to be
applicable to every case of popular revolution, where the change
in the form of government did not proceed from the voluntary
concession of the reigning sovereign, or was not confirmed by his
sanction, given under such circumstances as to remove all doubt
of his having freely consented. At other times, it was extended
to every revolutionary movement pronounced by these powers to
endanger, in its consequences, immediate or remote, the social
order of Europe, or the particular safety of neighboring States.

The events, which followed the Congress of Aix-la-Chapelle,
prove the inefficacy of all the attempts that have been made to
establish a general and invariable principle on the subject of in-
tervention. It is, in fact, impossible to lay down an absolute rule
on this subject ; and every rule that wants that quality must neces-
sarily be vague, and subject to the abuses to which human passions
will give rise, in its practical application.

Con ress § ^" ^e measures adopted by Austria, Russia, and
of Aix-ia- Prussia, at the Congress of Troppau and Laybach, in re-
Troppauknd spect to the Neapolitan Revolution of 1820, were founded
ay ac . Up0n pruicipies adapted to give the great powers of the
European continent a perpetual pretext for interfering in the in-
ternal concerns of its different States. The British government
expressly dissented from these principles, not only upon the ground
94

PART II.] AND INDEPENDENCE. § 66

of their being, if reciprocally acted on, contrary to the fundamental
laws of Great Britain, but such as could not safely be admitted as
part of a system of international law. In the circular despatch,
addressed on this occasion to all its diplomatic agents, it was stated
that, though no government could be more prepared than the Brit-
ish government was to uphold the right of any State or States to
interfere, where their own immediate security or essential interests
are seriously endangered by the internal transactions of another
State, it regarded the assumption of such a right as only to be
justified by the strongest necessity, and to be limited and regulated
thereby; and did not admit that it could receive a general and
indiscriminate application to all revolutionary movements, without
reference to their immediate bearing upon some particular State
or States, or that it could be made, prospectively, the basis of an
alliance. The British government regarded its exercise as an ex-
ception to general principles of the greatest value and importance,
and as one that only properly grows out of the special circum-
stances of the case ; but it at the same time considered, that
exceptions of this description never can, without the utmost dan-
ger, be so far reduced to rule, as to be incorporated into the
ordinary diplomacy of States, or into the institutes of the Law
of Nations, (a)

§ 66. The British government also declined being a Congresg
party to the proceedings of the Congress held at Verona, of Verona.
in 1822, which ultimately led to an armed interference by France,
under the sanction of Austria, Russia, and Prussia, in the internal
affairs of Spain, and the overthrow of the Spanish Constitution of
the Cortes. The British government disclaimed for itself, and
denied to other powers, the right of requiring any changes in
the internal institutions of independent States, with the menace
of hostile attack in case of refusal. It did not consider the Span-
ish Revolution as affording a case of that direct and imminent
danger to the safety and interests of other States, which might
justify a forcible interference. The original alliance between
Great Britain and the other principal European powers was spe-
cifically designed for the reconquest and liberation of the Euro-
pean continent from the military dominion of France ; and, having
subverted that dominion, it took the state of possession, as estab-

(a) Lord Castlereagh's Circular Despatch, Jan. 19, 1821. Annual Register, vol. lxii.
Part II. p. 737.

95

§ 6T EIGHT OF SELF-PRESERVATION [PART II.

lished by the peace, under the joint protection of the alliance. It
never was, however, intended as an union for the government of
the world, or for the superintendence of the internal affairs of other
States. No proof had been produced to the British government of
any design, on the part of Spain, to invade the territory of France ;
of any attempt to introduce disaffection among her soldiery ; or of
any project to undermine her political institutions ; and, so long
as the struggles and disturbances of Spain should be confined within
the circle of her own territory, they could not be admitted by the
British government to afford any plea for foreign interference. If
the end of the last and the beginning of the present century saw
all Europe combined against Prance, it was not on account of
the internal changes which France thought necessary for her own
political and civil reformation ; but because she attempted to prop-
agate, first, her principles, and afterwards, her dominion, by the
sword. (£)

War be- § 67. Both Great Britain and the United States, on the
and her same occasion, protested against the right of the Allied
co^niSn Powers to interfere, by forcible means, in the contest be-
tween Spain and her revolted American Colonies. The British
government declared its determination to remain strictly neutral,
should the war be unhappily prolonged ; but that the junction of
any foreign power, in an enterprise of Spain against the colonies,
would be viewed by it as constituting an entirely new question,
and one upon which it must take such decision as the interests
of Great Britain might require. That it could not enter into any
stipulation, binding itself either to refuse or delay its recognition
of the independence of the colonies, nor wait indefinitely for an
accommodation between Spain and the colonies ; and that it would
consider any foreign interference, by force or by menace, in the
dispute between them, as a motive for recognizing the latter with-
out delay, (a)

The United States government declared that it should consider
any attempt, on the part of the allied European powers, to extend
their peculiar political system to the American continent, as dan-

(b) Confidential Minute of Lord Castlereagh on the Affairs of Spain, communicated
to the Allied Courts in May, 1823. Annual Kegister, lxv. ; Public Documents, 93.
Mr. Secretary Canning's Letter to Sir C. Stuart, 28th January, 1823, 114. Same to the
Same, 31st March, 1823, 141.

(a) Memorandum of Conference between Mr. Secretary Canning and Prince Polig-
nac, 9th October, 1823. Annual Register, lxvi. 99. Public Documents,
96

PART II.] AND INDEPENDENCE. § 67

#

gerous to the peace and safety of the United States. With the
existing colonies or dependencies of any European power they had
not interfered, and should not interfere ; but with respect to the
governments, whose independence they had recognized, they could
not view any interposition for the purpose of oppressing them, or
controlling in any other manner their destiny, in any other light
than as a manifestation of an unfriendly disposition towards the
United States. They had declared their neutrality in the war
between Spain and those new governments, at the time of their
recognition ; and to this neutrality they should continue to adhere,
provided no change should occur, which, in their judgment, should
make a correspondent change, on the part of the United States,
indispensable to their own security. The late events in Spain and
Portugal showed that Europe was still unsettled. Of this impor-
tant fact no stronger proof could be adduced than that the Allied
Powers should have thought it proper, on any principle satisfactory
to themselves, to have interposed by force in the internal concerns
of Spain. To what extent such interpositions might be carried, on
the same principle, was a question on which all independent powers,
whose governments differed from theirs, were interested, — even
those most remote, — and none more so than the United States.

The policy of the American government, in regard to Europe,
adopted at an early stage of the war which had so long agitated
that quarter of the globe, nevertheless remained the same. This
policy was, not to interfere in the internal concerns of any of the
European powers ; to consider the government, de facto, as the
legitimate government for them ; to cultivate friendly relations
with it, and to preserve those relations by a frank, firm, and manly
policy ; meeting, in all instances, the just claims of every power,
— submitting to injuries from none. But, with regard to the
American continents, circumstances were widely different. It was
impossible that the Allied Powers should extend their political
system to any portion of these continents, without endangering the
peace and happiness of the United States. It was therefore im-
possible that the latter should behold such interposition in any
form with indifference. (V) m

(b) President Monroe's Message to Congress, 2d December, 1823. Annual Kegis-
ter, fxv. Public Documents, 193.

f36 The Monroe Doctrine. — Certain declarations in the annual message of President
Monroe of Dec. 2, 1823, relating to foreign affairs, have become known in history by

9 97

§ 68 RIGHT OF SELF-PRESERVATION [PART II.

British in- S 68. Great Britain had limited herself to protesting

t61"f6r6nC6 jjj *^

the affairs of against the interference of the French government in the
^ ortuga m in^ernai affairs 0f Spain, and had refrained from interpos-

the compendious phrase, the " Monroe Doctrine." They have been the subject of a
good deal of controversy and misunderstanding ; and, as they have considerable moral
influence among American traditions, it is important that they should be carefully
examined in the light of the circumstances of the time, and of contemporaneous and
subsequent exposition.

It will be found that the message contains two declarations, separated widely in
the order of the message, and not less so in the circumstances out of which they
arose, the state of things to which they were to be applied, and the principles of
public law upon which they depended. Yet these have often been combined, if not
confounded, into one doctrine. The first declaration related to new acquisition of
sovereign title by European powers over any portions of the American continent, by
occupation or colonization, as of unoccupied country. It was introduced in connection
with the unsettled boundaries in the North-west. The second declaration related to
interposition by European powers in the internal affairs of American States, and was
introduced in connection with the Spanish- American wars of independence. These
two declarations require a separate treatment. I shall take up first that respecting
colonization.

To understand the subject, it is necessary to refer to the state of things at the time
of the declaration. The only European powers on the northern continent were Russia
and Great Britain ; for Spain had, by the treaty of 1819, ceded to the United States
all her territory north of the forty-second parallel, and the successful revolution in I
Mexico had deprived her of the rest. The Czar, by a ukase of 4th September, 1821,
had asserted exclusive territorial right, from the extreme northern limit of the conti-\
nent to the fifty-first parallel ; while, by the treaty of 1818 between Great Britain and
the United States, these two powers had agreed to a joint occupation for ten years of
all the country that might be claimed by either on the north-west coast, westward
of the Rocky Mountains, without prejudice to the rights or claims of either party.
At some future time or other, the boundaries between these powers must be settled ;
and, in a country situated as that was, it was well known that the sovereign title to
most parts of it must depend upon original discovery, exploration, and occupation.
In such controversies, it is known to be a question as obscure as it is important, what
kind or degree of occupation, and under what circumstances made, is necessary to
give exclusive sovereign jurisdiction. On the north-west coast, the facts of discovery,
exploration, and occupation were already in dispute, and the meaning of the terms
rendered more doubtful by the Nootka-Sound Convention, of 28th October, 1790, made
by Great Britain with Spain, to whose rights in that region the United States suc-
ceeded. While Great Britain and the United States had a boundary line to run
between themselves, they were yet united against the imperial ukase of 1821. In
this position of things, Mr. J. Q. Adams, then Secretary of State, in a letter of July 2,
1823, wrote to Mr. Rush, our Minister at London, inclosing copies of his instructions
to Mr. Middleton, our minister at St. Petersburg, and asking him to confer freely with
the British government upon the subject. In this letter and instructions, Mr. Adams
takes the ground that the exclusive rights of Spain to any portion of the American
continent have ceased, by force of treaties and of successful revolutions. He refers
particularly to the burdensome and injurious restrictions and exclusions which have
marked the European colonial systems in America, in respect of commerce, naviga-
tion, residence, and the use of rivers for passage, trade, and fishing. He contends
98

PAET II.] ANP INDEPENDENCE. § 68

ing by force, to prevent the invasion of the peninsula by France.
The constitution of the Cortes was overturned, and Ferdinand VII.
restored to absolute power. These events were followed by the

that the entire continent is closed against the establishment, by any European power,
of any such colonial systems hereafter, in any places not now in their actual occupation,
because of the sufficient sovereign title of the powers already established there to cover «
the entire continent. He says : " A necessary consequence of this state of things
will be, that the American continents henceforth will no longer be subject to colonization.
Occupied by civilized nations, they will be accessible to Europeans and each other on
that footing alone ; and the Pacific Ocean, in every part of it, will remain open to the
navigation of all nations in like manner with the Atlantic. Incidental to the condition
of national independence and sovereignty, the rights of interior navigation of their
rivers will belong to each of the American nations within its own territories." In this
letter is the germ of that portion of the Monroe Doctrine relating to non-colonization.
Indeed, its paternity belongs to Mr. Adams. It rests on the assertion that the conti-
nent is " occupied by civilized nations," and is " accessible to Europeans and each other on
that footing alone/'

When Mr. Rush made known Mr. Adams's letter to the British Cabinet, he asserts
that they totally denied the correctness of the position, and that " Great Britain con-1
sidered the whole of the unoccupied parts of America as being open to her future
settlements in like manner as heretofore;" that is, "by priority of discovery and occu-
pation."

Four months after this letter, President Monroe, in his annual message, speaking
of the North-western Boundary and the proposed arrangements with Great Britain
and Russia, uses this language : "In the discussions to which this interest has given
rise, and in the arrangements in which they may terminate, the occasion has been
judged proper for asserting, as a principle in which the rights and interests of the
United States are involved, that the American continents, by the free and independent
condition which they have assumed and maintained, are henceforth not to be consid-
ered as subjects for future colonization by any European power." In taking this
position, Mr. Monroe did not intend to establish a new system for America, defensive
and exclusive against European powers, but intended only to apply to the state of
things in America a recognized principle of public law. The only questio'n can be,
whether the state of things in America did or did not, at that time, warrant the appli-
cation of the principle. In other words, was any part of the country so unoccupied
and unappropriated by any civilized power as to be open to new acquisition on that
ground ; or was the whole continent so occupied and held as, upon principles of public
law, to exclude the acquisition of sovereign title by virtue of subsequent occupation ?
The question presented was, in fact, one of political geography.

It is known that neither Great Britain nor Russia assented to the position taken
by Mr. Adams, and now publicly announced by the President under his advice ; for
those powers had plans of extending their colonization and occupation, and contended
that portions of the country were still open thereto upon principles of public law. In
1825-26, Mr. Adams, as President, had occasion to explain this declaration by reason
of the proposal for the Panama Congress ; and, in the debates upon the Panama mis-
sion, the subject was fully discussed. The Congress at Panama was pfoposed by the
Spanish- American States, whose independence the United States had acknowledged,
but who were still nominally at war with Spain. Their purpose was to form an alliance
among the American States for self-defence, for the maintenance of peace upon the
continent, and to settle some principles of public law to govern their relation with each

§ 68 RIGHT OF SELF-PRESERVATION [PART II.

death of John VI., King of Portugal, in 1825. The constitution
of Brazil had provided that its crown should never be united on
the same head with that of Portugal ; and Dom Pedro resigned the

other. The United States was invited to take part in the Congress ; and the proposal
was well received by President Adams and Mr. Clay, his Secretary of State. Among
the measures to be adopted by the Congress, the following was officially announced by
Colombia, then the leading Spanish- American power : " To take into consideration the
means of making effectual the declaration of the President of the United States
respecting any ulterior design of a foreign power to colonize any portion of this con-
tinent, and also the means of resisting all interference from abroad with the domestic
concerns of the American governments." A strong opposition arose in Congress
to the Panama mission, and Mr. Adams offered an explanation of its probable
results. In his special message to the Senate of Dec. 26, 1825, he says : " An agree-
ment between all the parties represented at the meeting, that each will guard by its
own means against the establishment of any future European colony within its borders,
may be found advisable. This was more than two years since announced by my
predecessor, as a principle resulting from the emancipation of both the American
continents." Again, in his message to the House of Representatives, of March 26,
1826, referring to this doctrine of non-colonization in Mr. Monroe's message of 1823,
he says : " The principle had first been assumed in the negotiation with Russia. It
rested upon a course of reasoning equally simple and conclusive. With the exception
of the existing European colonies, which it was in nowise intended to disturb, the
two continents consisted of several sovereign and independent nations, whose terri-
tories covered their whole surface. By this their independent condition, the United
States enjoyed the right of commercial intercourse with every part of their posses-
sions. To attempt the establishment of a colony in those possessions would be to
usurp, to the exclusion of others, a commercial intercourse which was the common
possession of all."

The Spanish- American States had appeared to understand Mr. Monroe's message
as " a pledge," by the United States, to the other American States, of mutual support
in maintaining this doctrine ; and to consider the United States bound to join with
them in some alliance, offensive and defensive, for that purpose. Congress was
unwilling to adopt the policy of entangling alliances. A resolution of the House of
Representatives declared that the United States " ought not to become parties with
the Spanish-American republics, or either of them, to any joint declaration for the
purpose of preventing the interference of any of the European powers with their
independence or form of government, or to any compact for tfie purpose of preventing
colonization upon the continents of America ; but that the people of the United
States should be left free to act, in any crisis, in such a manner as their feelings of
friendship towards these republics, and as their own honor and policy may at the
time dictate."

The Senate confirmed the appointment of two commissioners for the Panama Con-
gress, and the House of Representatives voted the appropriation ; but, owing to the
death of one commissioner and the delay of the other, the United States was not
represented at the first session of the Congress, and a second session was never held.
This was owing in part to the disturbed condition of the Spanish- American States,
but more to their disappointment at the attitude of the United States. What-
ever view the administration of Mr. Adams may first have taken, and however
popular the proposal of the mission may have been at first, it is certain that the
administration at last came to a narrow limitation of the project ; and the public
100

PART II.] AND INDEPENDENCE. § 68

latter to his infant daughter, Dona Maria, appointing a regency to
govern the kingdom during her minority, and, at the same time,
granting a constitutional charter to the European dominions of

judgment soon settled upon an opposition to the entire scheme. The opposition in;
Congress successfully contended, that, if the Panama meeting amounted to any thing,,
it would tend to establish on this continent, in the interests of republicanism, the same
kind of system which had been established in Europe in the interests of despotism,
and that the United States would necessarily be its protector, and the party responsible
to the world ; while the Spanish- American States would get the benefits of a system
of mutual protection which the United States did not need.

In criticising Mr. Adams's language in his message of December 26, — " Each shall
guard, by its own means, against the establishment of any future European colony
within its borders," which, he says, was the principle announced by his predecessor, —
it is often said that he reduced this branch of the Monroe Doctrine to insignificance,
as this is no more than States will naturally and necessarily do, without compact.
But this is not a correct or siffficient view of the subject. Mr. Monroe had equally
assumed, in 1823, that a sovereign State would not permit other sovereign States to
appropriate its territory by colonization. On that assumption, he declared simply thel
fact, that the whole continent was within the territory of some responsible State, and •
not ferce naturae, and so open to appropriation. It was this fact that was, at the time,
disputed by European powers. Mr. Monroe did not declare or intimate, directly or
indirectly, a policy — what the United States would do if a European power should
attempt colonization within what he claimed to be our territory ; still less, what we ;
would do if a European power should attempt it in what we held to be the territory
of some other American sovereign State. Our action, in either event, was left to be
determined upon when the case should arise. When, therefore, the administration
and Congress refused to make any compact, or commit the government in advance by
pledge or understanding, to any system of co-operation in a future contingency, they
did not abandon or qualify Mr. Monroe's position. The proper view, therefore, of
Mr. Adams's proposal is, that each State represented at the Congress should make,
for itself, the declaration which Mr. Monroe made for the United States in 1823 : that
is, that its territories were not open to appropriation by colonization, and pledge itself
to resist any attempts in tl^at direction. Even this proposal, simple and inefficient as it
seemed, was objected to, as liable to be construed into an implied pledge of assistance
to any State that should be driven to war to maintain it.

Mr. Everett, in his speech, said : " On one of these points, — the resistance to
colonization, — when the southern republics shall become fully informed of the position
of the United States in reference to that question, most assuredly they will withdraw
the wish, if they now entertain it, to enter into an alliance with us." Mr. Webster
said : " We have a general interest, that, through all the vast territories rescued from
the dominion of Spain, our commerce may find its way, protected by treaties with
governments existing on the spot. These views, and others of a similar character, render
it highly desirable to us that these new States should settle it, as a part of their policy,
not to allow colonization within their respective territories. True, indeed, we do not
need their aid to assist us in maintaining such a course for ourselves ; but we have
ari interest in their assertion and their support of the principle as applicable to their
own territories." Mr. Clay, then Secretary of State, in his despatch of March 25,
1825, to Mr. Poinsett, our Minister to Mexico, referring to Mr. Monroe's declaration
respecting colonization, says : " Whatever foundation may have existed three cen-
turies ago, or even at a later period, when all this continent was under European

9* 101

§ 68 EIGHT OF SELF-PRESERVATION [PART II.

the House of Braganza. The Spanish government, restored to the
plenitude of its absolute authority, and dreading the example of
the peaceable establishment of a constitutional government in a

subjection, for the establishment of a rule, founded on priority of discovery and occu-
pation, for apportioning among the powers of Europe parts of this continent, none
can now be admitted as applicable to its present condition. There is no disposition
to disturb the colonial possessions, as they now exist, of any of the European powers ;
but it is against the establishment of new European colonies upon this continent,
that this principle is directed. The countries in which any such new establishments
might be attempted, are now open to the enterprise and commerce of all Americans ;
and the justice or propriety cannot be recognized of arbitrarily limiting and circum-
scribing that enterprise and commerce by the act of voluntarily planting a new colony,
without the consent of America, under the auspices of foreign powers belonging to
another and a distant continent. Europe would be indignant at an attempt to plant
a colony on any part of her shores ; and her justice must perceive, in the rule con-
tended for, only perfect reciprocity."

President Polk, in his annual message to Congress, of Dec. 2, 1845, after dealing
with the Oregon boundary question, and defending the annexation of Texas, and
protesting against any ..possible interposition of European powers to prevent it, seeks
to bring into service this portion of the Monroe Doctrine. Quoting the passage
Respecting colonization, he says : " In the existing circumstances of the world, the
present is deemed a proper occasion to reiterate and re-affirm the principle avowed by
Mr. Monroe, and to state my cordial concurrence in its wisdom and sound policy.
Existing rights of every European nation should be respected : but it is due alike to
our safety and our interests that the efficient protection of our laws should be extended .
over our whole territorial limits ; and that it should be distinctly announced to the
world as our settled policy, that no future European colony or dominion shall, with our
consent, be planted or established on any part of the North- American continent." It
will be seen that Mr. Polk quotes no part of Mr. Monroe's message except the single
paragraph relating to colonization. Professedly re-affirming that, he states a broader
and very different doctrine ; namely, not only that the continent is not open to colo-
nization, but that no European " dominion " shall be " established " with our consent
on any part of the North-American continent. This doctrine of Mr. Polk would
require our consent to any acquisition of dominion by a European power, whether by
voluntary cession or transfer, or by conquest.

Toward the close of the Mexican war, on the 29th April, 1848, -Mr. Polk sent a
special message to Congress on the subject of Yucatan. He represented that country
as suffering severely from an insurrection of the native Indians, and as having offered
to transfer to the United States " the dominion and sovereignty of the peninsula,"
if we would give them material aid in suppressing the insurrection. He added that
they had applied also to Great Britain and Spain ; and expressed the opinion, that, if
we did not accept the offer, Yucatan might pass under the control of one of those
powers. He then refers to the Monroe Doctrine as opposed to the transfer of Ameri-
can territory to any European power, and to the extension of their system to this hemis-
phere ; quotes his own message of Dec. 2, 1845 (cited above) ; and recommends
Congress to take measures to prevent Yucatan becoming a European colony, which,
he says, " in no event could be permitted by the United States." A bill was immedi-
ately introduced into the Senate, authorizing the raising of an additional military
force to enable the President to " take temporary military possession " of Yucatan, and
to aid its people against the Indians. A motion was made to amend the bill so as to
102

PART II.] AND INDEPENDENCE. § 68

neighboring kingdom, countenanced the pretensions of Dom Miguel
to the Portuguese crown, and supported the efforts of his partisans
to overthrow the regency and the charter. Hostile inroads into

change entirely the character of the proposed step. The amendment was upon the
theory that Yucatan might be treated by us as a part of the republic of Mexico,
and occupied by us as part of our war against that power. This was supported by
Mr. Jefferson Davis ; but the administration party generally, led by Mr. Cass and Mr.
Hannegan, favored the original bill, and supported it on the ground of preventing by
anticipation a new European dependency. The opposition resisted both schemes
throughout. While the discussion was going on, news arrived of a treaty between the
Indians and whites in Yucatan ; and the project of taking possession was abandoned.
During this debate, Mr. Calhoun made a speech upon the Monroe Doctrine, significant
from the fact that he was a leading member of Mr. Monroe's Cabinet at the time of the
message, and at this time the only survivor. He gave the history of the declaration
respecting foreign interposition in American affairs, now well known, and referred to
hereafter ; its origin in the attempt to extend the arm of the Holy Alliance over Span-
ish America; and states that the subject was gravely considered by the Cabinet, on
receiving from Mr. Eush Mr. Canning's proposal, and that the language in which the
declaration was couched was carefully weighed and agreed upon by the entire Cabinet.
These are the passages at the close of the message, in connection with the affairs of
Spanish America, relating to attempts of the European powers to extend their system
over this hemisphere, and interpositions to oppress or control the destiny of any
American State. As to the paragraph relating to colonization, introduced into the
early part of the message, in connection with the British and Eussian boundaries, Mr.
Calhoun says that was not submitted to the Cabinet, and formed no part of the princi-
ple they intended to announce ; but was a disconnected position taken by Mr. Adams,
in the negotiations under his sole charge with Eussia and England, which the Presi-
dent introduced into his message, by Mr. Adams's advice, in that connection. Mr.
Calhoun treated it as limited to acquisitions of sovereignty over unoccupied regions
of country by virtue of prior colonization, and as having no relation to such transfers of
acknowledged sovereign territory as may be made by coercion or voluntary agree-
ment between civilized nations. He says : " The word * colonization ' has a specific
meaning. It means the establishment of a settlement, by emigrants from the parent
country, in a territory either uninhabited, or from which the inhabitants have been
partially or wholly expelled." No doubt, the same objections existed against new
foreign dominions, however they might be derived ; but the paragraph only declared
against deriving dominion from colonization, as not admissible in the condition which
the continent had reached. As to the other and more general doctrine of opposition
to European intervention, Mr. Calhoun took the ground which had been taken in
the Panama discussion, and which the opposition was then holding in the case before
the Senate, — that the United States was under no pledge to intervene against inter-
vention, but was to act in each case as policy and justice required; and that, in this
case, there was no proof of a danger of actual transfer to a European power, or if there
were, that the object was important enough to us to warrant our intervention.

At the time Mr. Calhoun made this speech, as has been said, neither Mr. Adams
nor Mr. Monroe was living; but Mr. Calhoun referred back to his speech on the
Oregon question, where he says he made the statement that the clause respecting
colonization was not submitted to the Cabinet. " I stated it in order that Mr. Adams
might have an opportunity of denying it, or asserting the real state of the facts. He
remained silent; and I presume that my statement is correct." Calhoun's Works,

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§ 68 EIGHT OF SELF-PRESERVATION [PART II.

the territory of Portugal were concerted in Spain, and executed
with the connivance of the Spanish authorities, by Portuguese
troops, belonging to the party of the Pretender, who had deserted

iv. 454. Mr. Calhoun's statement derives confirmation also from the fact that this
subject of colonization is not noticed in the correspondence, hereafter cited, between
Mr. Monroe and Mr. Jefferson, to whom the subject of a declaration had been referred
by Mr. Monroe.

In explanation of this movement respecting Yucatan, and the attempt to invoke,
in its aid, the popularity of the Monroe Doctrine, it should be remembered that the
slave-power had obtained an ascendency in the counsels of the nation ; that Mr.
Polk's administration was devoted to its interests ; and that its purpose was to add
slave States to the Union by extending our territory southward, and, eventually, by
the acquisition of Cuba. It was not politic, with reference to its Northern adherents,
to avow the motive ; and its movements were made under the color of preventing
foreign intervention or the acquisition of foreign dominion, and under the sanction of
a popular tradition. Mr. Calhoun not only saw that the Monroe Doctrine was per-
verted, but believed that the cause of slavery extension would be perilled by involving
the country in foreign complications in its behalf, on novel and doubtful principles.

A careful examination of this history, from the first letters of Mr. Adams to Mr.
Kush and Mr. Middleton, in 1823, to the close of the Yucatan debate, will show that the
general object of Mr. Adams was to prevent the establishment on this continent of new
colonial dependencies of European powers. These were objectionable by reason of
the restrictions and exclusions on commerce and navigation which, to that time, formed
part of the European colonial systems, especially when such colonies lay at the mouth
of a river occupied above by American colonies, or the converse ; and by reason of the
totally different political systems of which they would become a part, as distant from
our own in principle as in geographic space. It was not necessary to declare that
one State shall not appropriate by colonization part of the recognized territory of
another State. That would be an act of war, the world over. It was not necessary
to take the new and peculiar position, that, if any parts of this continent were lying
ferce naturce and beyond the recognized limits of a civilized State, they still should be
closed to the colonization of any but the independent States of this continent : ex-
cluding not only European States unconnected with the continent, but those that now
had possessions here. Mr. Adams thought the end could be attained by declaring
that no part of the continent was in that condition ; that it was all, in his own words,
" occupied by civilized nations/' and "accessible to Europeans and each other on
that footing alone." It will be seen that this declaration has ceased to be of much
consequence, as no doubt can now be made that such is the present condition of the
continent. By treaties and long possession, the boundaries of the continent have been
adjusted, among the American States and the previously existing foreign colonies,
upon the theory of including all parts of the continent within the domain of a recog-
nized State, from the Polar Seas to the Straits of Magellan. If any portion of an
American State should hereafter become a foreign dependency, it must be as a result
of coercion or of voluntary compact, and not by virtue of title founded on appropria-
tion by recent primary occupation.

In the debates in the Senate of the United States in 1855-56, on the construction to
be given to the Clayton-Bulwer treaty of 1850, there was some discussion as to the
effect of the phrase "occupy and colonize." That treaty, which was intended to
secure an inter-oceanic transit across the Isthmus, and, for that purpose, to maintain
the neutrality of the region in use, contained this clause : " The governments of the
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PART II.] AND INDEPENDENCE. § 68

into Spain, and were received and succored by the Spanish authori-
ties on the frontiers. Under these circumstances, the British gov-
ernment received an application from the regency of Portugal,

United States and Great Britain hereby declare, that neither one nor the other will
ever occupy or fortify or colonize, or assume or exercise any dominion over, Nicara-
gua, Costa Rica, the Mosquito coast, or any part of Central America ; nor will either
make use of any protection which either affords or may afford, or any alliance which
either has or may have to or with any State or people, for the purpose of erecting or
maintaining any such fortifications, or of occupying, fortifying, or colonizing Nicara-
gua, Costa Rica, the Mosquito coast, or any part of Central America, or of assuming
or exercising dominion over the same." The British Government took the position
that this clause related only to future acts, and did not embrace places in their posses-
sion at the time the treaty was made. This construction was rejected by the United
States. The words "fortify or colonize, or assume . . . dominion over," doubtless
look solely to the future. The word " occupy " may be ambiguous. It has, in the Law
of Nations, a technical sense, derived from the Roman law, signifying the taking origi-
nal possession of any thing not at the time in possession, and therefore open to appro-
priation, — as of animals ferce naturce, or of things derelict, &c. ; and, when applied to
territory, signifying the acquisition of sovereign title by original occupation of a place
not at the time within the occupation and jurisdiction of a recognized sovereignty. But,
in its general and popular sense, it signifies merely the act or condition of possessing :
as successive tenants are said to occupy a house, or a military force a town. In the for-
mer sense, the word would be limited to future acts ; while, in the latter sense, it would
not. But the American argument did not rest on the character of one word, but on the
sense of the entire clause, especially as colored by the words " exercise dominion."

We now proceed to examine that distinct branch of the Monroe Doctrine which
relates to European intervention in American affairs.

The result of the congresses at Laybach and Verona was an alliance of Russia,
Prussia, Austria, and France ; the ostensible object of which was to preserve the
peace of Europe, and to put down conspiracies against established power, consecrated
rights, and social order : but, as the allies acknowledged no legitimate basis of right and
order except the existing hereditary sovereign houses of Europe, the practical result
was a combination of forces against all changes in the direction of liberal institutions
not voluntarily made by the sovereigns. In accordance with the spirit of this alliance,
the movements for free constitutions in 1821 in Spain, Naples, and Piedmont, were
put down by armed intervention, and absolutism re-instated. At this time, the
Spanish colonies in America, after years of warfare, had substantially secured their
independence, which had been recognized by the United States ; but Spain still
asserted her claim; and the independence of the provinces had not been acknowl-
edged by Great Britain diplomatically, though she had sent consuls to their prin-
cipal ports. In 1823, to carry out the purposes of the Holy Alliance, France
invaded Spain, to suppress the constitutional government of the Cortes established
there, and restore absolutism in the person of Ferdinand VII. As the success of the
French invasion became certain, there were signs that the parties to the Holy Alliance
intended to go further, and lend their aid to Ferdinand VII. to restore his dominion
over the Spanish- American provinces. The fears of this course were justified by
the previous language of the Holy Alliance. In the Laybach circular of May 12,
1821, they distinctly declared that they regarded " as equally null, and disallowed by
the public law of Europe, any pretended reform effected by revolt and open force ; "
and in their circular of Dec. 5, 1822, respecting the constitutional government in

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§ 68 RIGHT OF SELF-PRESERVATION [PART II.

claiming, in virtue of the ancient treaties of alliance and friend-
ship subsisting between the two crowns, the military aid of Great
Britain against the hostile aggression of Spain. In acceding to

Spain, they declared their resolution " to repel the maxim of rebellion, in whatever
place or under whatever form it might show itself;" thus repeating their claim
made at Troppau, "that the European powers have an undoubted right to take a
hostile attitude in regard to those States in which the overthrow of the government
might operate as an example." England professed, also, to see indications "that
France intended to be compensated for her effective intervention, by a cession of
some American province, and Cuba was the suspected reward.

Great Britain, who had never been party to this alliance, and protested against
the intervention of 1821, took special umbrage at the French invasion of Spain,
her late ally, from whose borders she had, only ten years before, expelled the
French armies. There was a strong popular inclination in England to make this
invasion a cause of war ; but this was not seconded by the ministry, who betook
themselves to diplomatic efforts to defeat the schemes of the continental powers.
The French Government, on its part, had its suggestion that the British Cabinet]
was determined to send a squadron, and take possession of Cuba. The people of
Cuba, already divided between the parties of the king and the Cortes, and terrified
by symptoms of slave insurrections, had among them large numbers who, dissatisfied {
with Spanish rule, looked to other powers for protection, — some to Great Britain, but
far the larger part to the United States. About September, 1822, the latter party 1
sent a secret agent to confer with President Monroe. They declared, that, if the
United States Government would promise them protection, and ultimate admission,
into the Union, a revolution would be made to throw off the Spanish authority, of the
success of which they had no doubt. While this proposition was before Mr. Monroe's
Cabinet, he received an unofficial and circuitous communication from the French
Minister, asserting that his government had positive information of the design of
Great Britain to take possession of Cuba. The American Government replied to the
Cuban deputation, that the friendly relations of the United States with Spain did not
permit us to promise countenance or protection to insurrectional movements, and
advised the people of Cuba to adhere to their Spanish allegiance ; at the same time
informing them that an attempt upon Cuba, by either Great Britain or France, would
place the relations of Cuba with the United States in a very different position. Mr.
Bush was instructed to inform Mr. Canning that the United States could not see with
indifference the possession of Cuba by any European power other than Spain, and to
inform him of the rumors that had reached the Cabinet. Mr. Canning disavowed
emphatically all intention on the part of Great Britain to take possession of Cuba,
but avowed her determination not to see with indifference its occupation by either
France or the United States ; and proposed an understanding between the British,)
French, and American governments, without any formal convention, that Cuba|
should be left in the quiet possession of Spain. This was assented to by Mr. Monroe j
but he had no communication with France on the subject, leaving that to the manage-
ment of Great Britain.

As respects the Spanish colonies which had been at war with Spain for their
independence, the United States were naturally anxious about the movements of the
allies ; and Mr. Adams had communicated to Mr. Rush at London, in general terms,
the strong feeling of the government, and the earnest popular opinion on that
subject. The British Government was also very solicitous to prevent all interven-
tion against those provinces by the continental powers, and to leave them free to
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PART II.] AND INDEPENDENCE. § 68

that application, and sending a corps of British troops for the de-
fence of Portugal, it was stated by the British minister that the
Portuguese Constitution was admitted to have proceeded from a

complete their independence. This would not only, with the arrangement respect-,
ing Cuba, defeat the Transatlantic schemes of France, if she had any, and, in the
famous words of Mr. Canning, " call the new world into existence to redress the bal-
ance of the old," but would repress generally the absolutist powers on the continent,
avenge the affront to Great Britain by the invasion of Spain, and procure for England
the benefit of an unrestricted commerce with Spanish America. Mr. Canning feared
that a formal recognition of the independence of those colonies might involve England
in a war with the continental powers ; but was confident that their independence would
be secured, if all intervention or hope of intervention in aid of Spain, could be effectually
precluded. With this view, Mr. Canning, in August and September, 1823, urged
upon Mr. Rush a combined declaration by Great Britain and the United States to the
effect, that, while they aimed at the possession of no portion of the Spanish colonies
for themselves, and would not obstruct any amicable negotiations between the colo-
nies and the mother country, they could not see with indifference the intervention of
any foreign power, or the transfer to such power of any of the colonies. In support
of his request, Mr. Canning stated that a proposal would be made for a European
Congress, to settle the affairs of Spanish America ; and said that Great Britain would
take no part in it, except upon the terms that the United States should be represented.
Mr. Rush replied, as to the Congress, that it was the traditional policy of the United
States to take no part in European politics ; and, having no instructions from his
government, said he would still take the responsibility, of joining in the declaration,
if Great Britain would first acknowledge the independence of the colonies. Mr.
Canning not being ready to take this decisive step, the proposed joint declaration was
never made ; but Mr. Rush communicated the proposal to his government ; the
result of which was the celebrated declaration against European intervention in Mr.
Monroe's annual message of Dec. 2, 1823.

In Mr. Monroe's Cabinet at that time, John Quincy Adams was Secretary of State,
and Mr. Calhoun Secretary of War ; and, beside the advice derived from them, Mr.
Monroe laid the subject of Mr. Canning's proposal before Mr. Jefferson, — then in
retirement, — and asked his opinion. Mr. Jefferson replied by an elaborate letter, of
24 October, 1823. (Jefferson's Life, iii. 491.) He says : " Our first maxim should be,
never to entangle ourselves in the broils of Europe ; our second, never to suffer Europe
to intermeddle with Cisatlantic affairs." Referring to the great power Great Britain
could wield for good or evil in these controversies, and expressing his gratifica-
tion at the stand she was then taking, and recognizing the fact that we could not join
in the declaration if we had any designs upon Cuba or any American State ourselves,
he advised Mr. Monroe to join in the declaration, which Mr. Jefferson worded thus :
" That we aim not at the acquisition of any of those possessions ; that we will not
stand in the way of any amicable arrangement between the colonies and their mother
country ; that we will oppose with all our means the forcible- interposition of any
other power as auxiliary, stipendiary, or under any other form or pretext, and most
especially their transfer to any power by conquest, cession, or acquisition in any
other way."

It will be seen that the administration did not accept Mr. Canning's proposal for a
joint declaration, but spoke for the United States alone ; and, in doing so, did not adopt
the declaration proposed by Mr. Canning and recommended by Mr. Jefferson, but
a very different one. After treating of various other matters, foreign and domestic, as

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§ 68 RIGHT OF SELF-PRESERVATION [PART II.

legitimate source, and it was recommended to Englishmen by the
ready acceptance which it had met with from all orders of the Por-
tuguese people. But it would not be for the British nation to

usual in the annual message, Mr. Monroe passes, towards its close, to speak of the
efforts in Spain and Portugal to improve the condition of the people, and of the general
disappointment of the expectations of the American people in favor of the liberty and
happiness of their fellow-men on that side of the Atlantic, and says : " In the wars of
the European powers, in matters relating to themselves, we have never taken any part,
nor does it comport with our policy so to do. It is only when our rights are invaded
or seriously menaced that we resent injuries, or make preparation for our defence.
With the movements in this hemisphere we are, of necessity, more immediately
connected, and by causes which must be obvious to all enlightened and impartial
observers. The political system of the allied powers is essentially different in this
respect from that of America. This difference proceeds from that which exists in
their respective governments. And to the defence of our own, which has been
achieved by the loss of so much blood and treasure, and matured by the wisdom of our
most enlightened citizens, and under which we have enjoyed an unexampled felicity,
this whole nation is devoted. We owe it, therefore, to candor and to the amicable
relations existing between the United States and those powers to declare, that we
should consider any attempt on their part to extend their system to any portion of
this hemisphere as dangerous. to our peace and safety. With the existing colonies or
dependencies of any European power, we have not interfered, and shall not interfere.
But with the governments who have declared their independence and maintained it,
and whose independence we have, on great consideration and on just principles,
acknowledged, we could not view any interposition for the purpose of oppressing
them, or controlling in any other manner their destiny, by any European power, in
any other light than as the manifestation of an unfriendly disposition toward the
United States. In the war between those new governments and Spain, we declared
our neutrality at the time of their recognition ; and to this we have adhered, and shall
continue to adhere, provided no change shall occur which, in the judgment of the
competent authorities of this government, shall make a corresponding change on
the part of the United States indispensable to their security." Then, speaking of the
recent forcible interposition by the allies in the internal concerns of Spain, he says :
" To what extent such interposition may be carried, on the same principle, is a ques-
tion in which all independent powers whose governments differ from theirs are
interested, and even those most remote, and surely none more so than the United
States. Our policy in regard to Europe, which was adopted at an early stage of the
wars which have so long agitated that quarter of the globe, nevertheless remains
the same ; which is, not to interfere in the internal concerns of any of its powers ; to
consider the government de facto as the legitimate government for us ; to cultivate
friendly relations with it ; and to preserve those relations by a frank, firm, and manly
policy, meeting in all instances the just claims of every power, submitting to injuries
from none. But, in regard to these continents, circumstances are eminently and
conspicuously different. It is impossible that the allied powers should extend their
political system to any portion of either continent without endangering our peace and
happiness ; nor can any one believe that our Southern brethren, if left to themselves,
would adopt it of their own accord. It is equally impossible, therefore, that we should
behold such interposition in any form with indifference. If we look .to the compara-
tive strength and resources of Spain and those new governments, and their distance
from each# other, it must be obvious that she can never subdue them. It is still the
108

PART II.] AND INDEPENDENCE. § 68

force it on the people of Portugal, if they were unwilling to receive
it ; or if any schism should exist among the Portuguese them-
selves, as to its fitness and congeniality to the wants and wishes

true policy of the United States to leave the parties to themselves, in the hope that
the other powers will pursue the same course."

This message of President Monroe reached England while the correspondence
between Mr. Canning and the Prince Polignac was in progress ; and it was received
not only with satisfaction, but with enthusiasm. Mr. Brougham said : " The question
with regard to Spanish America is now, I believe, disposed of, or nearly so ; for an
event has recently happened than which none has ever dispersed greater joy, exulta-
tion, and gratitude over all the free men of Europe : that event, which is decisive
on the subject, is the language held with respect to Spanish America in the message
of the President of the United States." Sir James Mackintosh said : " This coinci-
dence of the two great English commonwealths (for so I delight to call them ; and I
heartily pray that they may be for ever united in the cause of justice and liberty)
cannot be contemplated without the utmost pleasure by every enlightened citizen of
the earth." This attitude of the American government gave a decisive support to
that of Great Britain, and effectually put an end to the designs of the absolutist
powers of the continent to interfere with the affairs of Spanish America. Those
dynasties had no disposition to hazard a war with such a power, moral and material,
as Great Britain and the United States would have presented, when united in the
defence of independent constitutional governments.

It is to be borne in mind that the declarations known as the Monroe Doctrine have
never received the sanction of an act or resolution of Congress ; nor have they any
of that authority which European governments attach to a royal ordinance. They
are, in fact, only the declarations of an existing administration of what its own policy
would be, and what it thinks should ever be the policy of the country, on a subject of
paramount and permanent interest. Thus, at the same session in which the message
was delivered, Mr. Clay introduced the following resolution : " That the people of
these States would not see, without serious inquietude, any forcible interposition by
the allied powers of Europe, in behalf of Spain, to reduce to their former subjection
those parts of the continent of America which have proclaimed and established for
themselves, respectively, independent governments, and which have been solemnly
recognized by the United States." But this resolution was never brought up for
action or discussion. It is seen also, by the debates on the Panama mission and
the Yucatan intervention, that Congress has never been willing to commit the nation
to any compact or pledge on this subject, or to any specific declaration of purpose
or methods, beyond the general language of the message.

In the debates on the Clayton-Bulwer treaty, in 1855-56, above referred to, all the
speakers seemed to agree to this position of the subject. Mr. Clayton said : " In refer-
ence to this particular territory, I would not hesitate at all, as one Senator, to assert
the Monroe Doctrine and maintain it by my vote ; but I do not expect to be sustained
in such a vote by both branches of Congress. Whenever the attempt has been made
to assert the Monroe Doctrine in either branch of Congress, it has failed. The present
Democratic party came into power, after the debate on the Panama mission, on the
utter abnegation of the whole doctrine, and stood upon Washington's doctrine of non-
intervention. You cannot prevail on a majority, and I will venture to say that you
cannot prevail on one-third, of either house of Congress to sustain it." Mr. Cass said :
" Whenever the Monroe Doctrine has been urged, either one or the other house of
Congress, or both houses, did not stand up to it." Mr. Seward said : " It is true that

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§ 68 RIGHT OF SELF-PRESERVATION [PART II.

of the nation. They went to Portugal in the discharge of a sacred
obligation, contracted under ancient and modern treaties. When
there, nothing would be done by them to enforce the establishment

each house of Congress has declined to assert it ; but the honorable senators must do
each house the justice to acknowledge that the reason why they did decline to assert
the doctrine was, that it was proposed, as many members thought, as an abstraction,
unnecessary, not called for at the time." Mr. Mason spoke of it as having " never been
sanctioned or recognized by any constitutional authority." Mr. Cass afterwards, in a
very elaborate speech (of Jan. 28, 1856), gave his views of the history and character
of the doctrine. He placed it upon very high ground, as a declaration not only
against European intervention or future colonization, but against the acquisition of
dominion on the continent by European powers, by whatever mode or however
derived ; and seemed to consider it as a pledge to resist such a result by force, if neces-
sary, in any part of the continent. He says : " We ought years ago, by Congressional
interposition,* to have made this system of policy an American system, by a solemn
declaration ; and, if we had done so, we should have spared ourselves much trouble and
no little mortification." Referring to Mr. Polk's message, in 1845, he said there was
then an opportunity for Congress to adopt the doctrine, not as an abstraction, but on a
practical point. " We refused to say a word ; and, I repeat, we refused then even to
take the subject into consideration." He denied the correctness of Mr. Calhoun's
explanation (vide supra), and contended that the non-colonization clause was intended
to be, and understood by England to be, a foreclosure of the whole continent
against all future European dominion, however derived. It may well be said, how-
ever, and such seems now to be the prevalent opinion, that the complaints of
Mr. Cass and others of his school, of the neglect and abandonment of the Monroe
Doctrine, apply rather to their construction of the doctrine than to the doctrine
itself.

That the declarations in Mr. Monroe's message arose out of the apprehension
that the Holy Alliance sought to extend its system to the American colonies, and
possibly to independent American States, there can be no doubt. The only points
made by Mr. Monroe are — "Any attempt on their part to extend their system
[the political system of the Holy Alliance] to any portion of this hemisphere ; " and
"Any interposition for the purpose of oppressing them [the American States], or
controlling in any other manner their destiny." It is observable that the protest is
against certain modes of European action, and not against new acquisitions specifi-
cally, nor even inferentially, if made, for instance, by treaties in which there should be
no coercion and no interposition by third powers, or by conquest in a war not waged
for the policy or purpose objected to. Mr. Jefferson, in his letter above referred to,
had noticed this subject, and placed among the acts we should oppose " their transfer
to any power by conquest, cession, or acquisition in any other way." Still, Mr. Mon-
roe's Cabinet made no declaration on the point of transfer of dominion. It is also
to be observed that Mr. Canning's proposition to Mr. Rush was for a joint declaration
by the two governments of a double proposition, — 1st, That they did not aim at the
possession of any portion of the Spanish colonies for themselves ; and, 2d, That
" they could not see the transfer of any portion of them to any other power with
indifference." This double proposition, communicated by Mr. Rush to the President
and by him to Mr. Jefferson, and recommended by Mr. Jefferson and laid before the
Cabinet, is still not a'dopted in the message. Confining itself to a declaration against
interposition to oppress or control, or to extend the system of the Holy Alliance to
this hemisphere, the message avoids committing the government on the subject of
110

PART II.] AND INDEPENDENCE. § 68

of the constitution ; but they must take care that nothing was doiife
by others to prevent it from being fairly carried into effect. The
hostile aggression of Spain, in countenancing and aiding the party

acquisition, either by the United States or the European powers, and whether by
voluntary cession or conquest. Possibly the administration may have paused at
Mr. Jefferson's caution in his letter referred to : — " But we must first ask ourselves
a question, — Do we wish to acquire any one or more of the Spanish provinces ? —
before we can unite in the proposed joint declaration." Mr. Jefferson confesses
that, in his opinion, Cuba would be " the most interesting addition that could ever be
made to our system of States ; " yet is willing, in view of the great advantages to
be gained by the joint declaration, to forego Cuba. The slaveholding interest was
clearly looking to Cuba, not only as an addition to its political power in the Union, but
to prevent abolition of slavery there by some other power ; and it is known that Mr.
Adams had a noticeable leaning in favor of its importance to us in a military and com-
mercial view. The Texas question was already looming in the distance ; and it was
but three years since we had acquired Florida, and but twenty years since we had
purchased the vast Louisiana territory. Twenty-two years after this, we annexed
Texas ; and, twenty-five years after, we acquired by conquest California and New
Mexico; and, for several years before the civil war of 1861, the slave-power in the
Union was exerting itself to annex Cuba. It is true the government had, as has
been seen, exchanged declarations with England as to Cuba ; but then, as later, when,
in 1854, the tripartite alliance for the retention of Cuba by Spain was proposed, we
were not willing to commit ourselves to absolute guaranties on that point : and a suc-
cessful revolution in Cuba might have made, at any time, an opening for her annex-
ation. When we compare the declarations in the message with the joint declaration
proposed by Mr. Canning and recommended by Mr. Jefferson, and consider our own
prior history and our then position, it certainly is a fair inference that the administra-
tion purposely avoided any specific and direct statement as to transfer of dominion
by competent parties, in the way of treaty, or by conquest in war.

In further explanation of the Monroe Doctrine, it is to be noticed that it'is correctly
called a doctrine, and no more. There is no intimation what the United States will
do in case of European interposition, or what means it will take to prevent it. The
United States have steadily refused to enter into any arrangement with the other
American States for establishing a continental system on that point, or for mutual
defence, or even to commit themselves in the way of pledge or promise. When the
Spanish- American States wished to treat the message of 1823 as a "pledge" to
them for the future, that construction of it was successfully resisted by the opposition,
however favorably it may be thought Mr. Adams and his Cabinet at first regarded it.
And public opinion may be considered as settled on the point that the action of the
nation, in any case that may arise, must be unembarrassed by pledge or compact ;
and, further, as equally settled, against the introduction of any thing approaching the
nature of a Holy Alliance for this continent, though it be in the interests of repub-
lican institutions.

It has sometimes been assumed, that the Monroe Doctrine contained some declara-
tion against any other than democratic-republican institutions on this continent,
however arising or introduced. The message will be searched in vain for any thing of
the kind. We were the first to recognize the imperial authority of Don Pedro in Brazil,
and of Iturbide in Mexico ; and more than half the northern continent was under
the sceptres of Great Britain and Russia ; and these dependencies would certainly

111

§ 68 RIGHT OF SELF-PRESERVATION [PART II.

opposed to the Portuguese Constitution, was in direct violation of
repeated solemn assurances of the Spanish cabinet to the British

be free to adopt what institutions they pleased, in case of successful rebellion,
or of peaceful separation from their parent States. (See Mr. Seward's corres-
pondence respecting Mexico, from 1862 to 1866, as illustrative of the position of
the United States at the present time on this subject, given at length in note 41 to
§ 76 infra).

As a summary of this subject, it would seem that the following positions may be
safely taken : I. The declarations upon which Mr. Monroe consulted Mr. Jefferson
and his own Cabinet related to the interposition of European powers in the affairs of
American States. II. The kind of interposition declared against was that which
may be made for the purpose of controlling their political affairs, or of extending to
this hemisphere the system in operation upon the continent of Europe, by which the
great powers exercise a control over the affairs of other European States. III. The
declarations do not intimate any course of conduct to be pursued in case of such
interpositions, but merely say that they would be " considered as dangerous to our
peace and safety," and as " the manifestation of an unfriendly disposition toward
the United States," which it would be impossible for us to " behold with indiffer-
ence ; " thus leaving the nation to act at all times as its opinion of its policy or duty
might require. IV. The declarations are only the opinion of the administration of
1823, and have acquired no legal force or sanction. V. The United States has never
made any alliance with, or pledge to, any other American State on the subject cov-
ered by the declarations. VI. The declaration respecting non-colonization was on
a subject distinct from European intervention with American States, and related to
the acquisition of sovereign title by any European power, by new and original occu-
pation or colonization thereafter. Whatever were the political motives for resisting
such colonization, the principle of public law upon which it was placed was, that the
continent must be considered as already within the occupation and jurisdiction of
independent civilized nations.

On this subject, the reader is referred to the following authorities : — Mr. Adams to
Mr. Rush, July 2, 1823 ; Mr. Monroe's message, Dec. 2, 1823 ; Mr. Rush's Memo-
randa of Residence at the Court of London ; Staple ton's Life of Canning ; Brief wech-
sel zwischen Varnhagen von Ense und Oelsner, vol. hi. ; Mr. Clay's resolution, offered
Jan. 20, 1824 ; the ukase of the Emperor Alexander, Sept. 4, 1821 ; the treaty between
the United States and Spain, 22 February, 1819 ; the Nootka-Sound Convention
between Spain and Great Britain of 28 October, 1790 ; Mr. Monroe's annual message,
Dec. 7, 1824 ; Mr. Adams's messages of Dec. 26, 1825, and March 26, 1826 ; Mr. Clay's
despatch to Mr. Poinsett, March 25, 1825 ; Mr. Webster's speech on the Panama mis-
sion, Webster's Works, iii. 178 ; Mr. Everett's speech on the same, Cong. Debates,
1826; Mr. Calhoun's speech on the Yucatan question, Calhoun's Works, iv. 454;
Mr. Polk's annual message of Dec. 2, 1845; his special message on Yucatan, of
April 29, 1848 ; the debate in the Senate on the Yucatan question, April and May,
1848, Congress. Globe, 1848, p. 712 et seq.; the Clayton-Bulwer treaty, United-States
Laws, x. 995 ; Debates in the United-States Senate on the Clayton-Bulwer treaty,
1855-56, Congress. Globe and Appendix for 1st Sess. 34th Cong. ; North- American
Review, 1856, p. 478 ; Mr. Everett's letter of Sept. 2, 1863, on the Monroe Doctrine, in
the New- York Ledger ; Letter of J. Q. Adams on the same, to the Rev. Dr. Channing,
of Aug. 11, 1837; Mr. Canning's speech of Dec. 12, 1826 ; Mr. Buchanan's article on
the Monroe Doctrine, in his History of his Administration, p. 276.] — D.
112

PART II.] AND INDEPENDENCE. § 69

government, engaging to abstain from such interference. The sole
object of Great Britain was to obtain the faithful execution of those
engagements. The former case of the invasion of Spain by France,
having for its object to overturn the Spanish Constitution, was
essentially different in its circumstances. France had given to
Great Britain cause of war by that aggression upon the independ-
ence of Spain. The British government might lawfully have in-
terfered, on grounds of political expediency ; but they were not
bound to interfere, as they were now bound to interfere on behalf
of Portugal, by the obligations of treaty. War might have been
their free choice, if they had deemed it politic, in the case of
Spain ; interference on behalf of Portugal was their duty, unless
they were prepared to abandon the principles of national faith and
national honor, (a)

§ 69. The interference of the Christian powers of Interfer.
Europe, in favor of the Greeks, who, after enduring ages £J?e? °.f the
of cruel oppression, had shaken off the Ottoman yoke, powers of
affords a further illustration of the principles of inter- favoTofThe
national law authorizing such an interference, not only ree s*
where the interests and safety of other powers are immediately
affected by the internal transactions of a particular State, but
where the general interests of humanity are infringed by the
excesses of a barbarous and despotic government. These prin-
ciples are fully recognized in the treaty for the pacification of
Greece, concluded at London, on the 6th of July, 1827, between
France, Great Britain, and Russia. The preamble of this treaty
sets forth, that the three contracting parties were " penetrated
with the necessity of putting an end to the sanguinary contest,
which, by delivering up the Greek provinces and the isles of the
Archipelago to all the disorders of anarchy, produces daily fresh
impediments to the commerce of the European States, and gives
occasion to piracies, which not only expose the subjects of the
high contracting parties to considerable losses, but, besides, ren-
der necessary burdensome measures of protection and repres-
sion." It then states that the British and French governments,
having received a pressing request from the Greeks to interpose
their mediation with the Porte, and being, as well as the Em-
peror of Russia, animated by the desire of stopping the effusion

(a) Mr. Canning's Speech in the House of Commons, 11th December, 1826.
Annual Register, lxviii. 192.

10* 113

§ 69 RIGHT OF SELF-PRESERVATION [PART II.

of blood, and of arresting the evils of all kinds which might arise
from the continuance of such a state of things, had resolved to
unite their efforts, and to regulate the operations thereof by a
formal treaty, with the view of re-establishing peace between the
contending parties, by means of an arrangement, which was
called for as much by humanity as by the interest of the repose
of Europe. The treaty then provides, (article 1,) that the three
contracting powers should offer their mediation to the Porte, by
a joint declaration of their ambassadors at Constantinople ; and
that there should be made, at the same time, to the two con-
tending parties, the demand of an immediate armistice, as a
preliminary condition indispensable to opening any negotiation.
Article 2d provides the terms of the arrangement to be made, as
to the civil and political condition of Greece, in consequence of
the principles of a previous understanding between Great Britain
and Russia. By the 3d article it was agreed, that the details of
this arrangement, and the limits of the territory to be included
under it, should be settled in a separate negotiation between the
high contracting powers and the two contending parties. To
this public treaty an additional and secret article was added,
stipulating that the high contracting parties would take imme-
diate measures for establishing commercial relations with the
Greeks, by sending to them and receiving from them consular
agents, so long as there should exist among them authorities
capable of maintaining such relations. That if, within the term
of one month, the Porte did not accept the proposed armistice,
or if the Greeks refused to execute it, the high contracting par-
ties should declare to that one of the two contending parties
that should wish to continue hostilities, or to both, if it should
become necessary, that the contracting powers intended to exert
all the means, which circumstances might suggest to their pru-
dence, to give immediate effect to the armistice, by preventing,
as far as might be in their power, all collision between the con-
tending parties. The secret article concluded by declaring, that
if these measures did not suffice to induce the Ottoman Porte to
adopt the propositions made by the high contracting powers ; or
if, on the other hand, the Greeks should renounce the conditions
stipulated in their favor, the contracting parties would neverthe-
less continue to prosecute the work of pacification on the basis
agreed upon between them ; and, in consequence, they author-

114

PART II.] AND INDEPENDENCE. § 69

ized, from that time forward, their representatives in London to
discuss and determine the ulterior measures to which it might
become necessary to resort.

The Greeks accepted the proffered mediation of the three
powers, which the Turks rejected, and instructions were given to
the commanders of the allied squadrons to compel the cessation
of hostilities. This was effected by the result of the battle of
Navarino, with the occupation of the Morea by French troops ;
and the independence of the Greek State was ultimately recog-
nized by the Ottoman Porte, under the mediation of the con-
tracting powers. If, as some writers have supposed, the Turks
belong to a family or set of nations which is not bound by the
general international law of Christendom, they have still no
right to complain of the measures which the Christian powers
thought proper to adopt for the protection of their religious
brethren, oppressed by the Mohammedan rule. In a ruder age,
the nations of Europe, impelled by a generous and enthusiastic
feeling of sympathy, inundated the plains of Asia to recover the
holy sepulchre from the possession of infidels, and to deliver the
Christian pilgrims from the merciless oppressions practised by
the Saracens. The Protestant princes and States of Europe,
during the sixteenth and seventeenth centuries, did not scruple
to confederate and wage war, in order to secure the freedom of
religious worship for the votaries of their faith in the bosom
of Catholic communities, to whose subjects it was denied. Still
more justifiable was the interference of the Christian powers of
Europe to rescue a whole nation, not merely from religious per-
secution, but from the cruel alternative of being transported from'
their native land, or exterminated by their merciless oppressors.
The rights of human nature wantonly outraged by this cruel
warfare, prosecuted for six years against a civilized and Christian
people, to whose ancestors mankind are so largely indebted for
the blessings of arts and of letters, were but tardily and imper-
fectly vindicated by this measure. "Whatever," as Sir James
Mackintosh said, " a nation may lawfully defend for itself, it may
defend for another people, if called upon to interpose." The inter-
ference of the Christian powers, to put an end to this bloody con-
test might, therefore, have been safely rested upon this ground
alone, without appealing to the interests of commerce and of the
repose of Europe, which, as well as the interests of humanity, are

115

§ 70 RIGHT OF SELF-PRESERVATION [PART II.

alluded to in the treaty, as the determining motives of the high
contracting parties, (a)37

interfer- § ^' ^e nave a^rea^7 seen, that the relations which
ence of nave prevailed between the Ottoman Empire and the other

Austria, x

Great Brit- European States have only recently brought the lormer
and RuSa^' within the pale of that public law by which the latter
Miaffaiiseof are governed, and which was originally founded on that
Em°re°?nan community of manners, institutions, and religion, which
184°- ' distinguish the nations of Christendom from those of the
Mohammedan world, (a) Yet the integrity and independence of
that empire have been considered essential to the general balance
of power, ever since the crescent ceased to be an object of dread
to the western nations of Europe. The above-mentioned interfer-
ence of three of the great Christian powers in the affairs of
Greece had been complicated, by the separate war between Russia
and the Ottoman Empire, which was terminated by the treaty of
Adrianople, in 1829, followed by the treaty of alliance between the
two empires, of Unldar-Skelessi, in 1833. The casus foederis of
the latter treaty was brought on by the attempts of Mehemet Ali,
Pacha of Egypt, to assert his independence, and of the Porte,
which sought to recover its lost provinces. The status quo, which
had been established between the Sultan and his vassal by the
arrangement of Kutayah, in 1833, under the mediation of France
and Great Britain, on which the peace of the Levant depended, and

(a) Another treaty was concluded at London, between the same three powers, on
the 7th of May, 1832, by which the election of Prince Otho of Bavaria, as King of
Greece, was confirmed, and the sovereignty and independence of the new kingdom
guaranteed by the contracting parties, according to the terms of the protocol signed by
them on the 3d of February, 1830, and accepted by Greece and the Ottoman Porte.

[37 The treaty of London of Nov. 20, 1852, between Great Britain, Russia, France,
Bavaria and Greece, admits the binding force of the article in the Greek Constitution
which requires the successors to. the throne to profess the religion of the Greek
Church. On the abdication of King Otho, in 1862, the Bavarian dynasty was set
aside, and the Greeks permitted to elect a successor, though upon the nomination of
the three powers who guaranty the independence of Greece, — Great Britain, Russia,
and France. After some diplomacy, which very nearly resulted in the abrogation of
the self-denying clause of the original treaty, by which no member of the reigning
family of those powers should ascend the throne, that agreement was adhered to,
and the almost unanimous election of Prince Alfred of England was declined. The
choice then fell upon Prince George of Denmark, who accepted the throne. The ces-
sion of the Ionian Islands to Greece by Great Britain, with the assent of the parties to
the treaties of 1827 and 1832 and of the legislature of the islands, is noticed supra, note
20 to §35.]— D.

(a) Vide supra, note 8 to § 13.
116

PART II.] AND INDEPENDENCE. § 70

with it the peace of Europe was supposed to depend, was thus con-
stantly threatened by the irreconcilable pretensions of the two great
divisions of the Ottoman Empire. The war again broke out be-
tween them in 1839, and the Turkish army was overthrown in the
decisive battle of Nezib, which was followed by the desertion
of the fleet to Mehemet Ali, and by the death of Sultan Mah-
moud II.

In this state of things, the western powers of Europe thought
they perceived the necessity of interfering to save the Ottoman
Empire from the double danger with which it was threatened ;
by the aggressions of the Pacha of Egypt on one side, and the
exclusive protectorate of Russia on the other. A long and intri-
cate negotiation ensued between the five great European powers,
from the voluminous documents relating to which the following
general principles may be collected, as having received the formal
assent of all the parties to the negotiations, however divergent
might be their respective views as to the application of those prin-
ciples.

1. The right of the five great European powers to interfere in
this contest was placed upon the ground of its threatening, in its
consequences, the general balance of power and the peace of
Europe. The only difference of opinion arose as to the means
by which the desirable end of preventing all future conflict be-
tween the two contending parties could best be accomplished.

2. It was agreed that this interference could only take place on
the formal application of the Sultan himself, according to the rule
laid down by the Congress of Aix-la-Chapelle, in 1818, that the
five great powers would never assume jurisdiction over questions
concerning the rights and interests of another power, except at
its request, and without inviting such power to take part in the
conference.

3. The death of Sultan Mahmoud . being imminent, and the
dangers of the Ottoman Empire having increased by a compli-
cation of disasters, each of the five powers declared its determina-
tion to maintain the independence of that empire, under the
reigning dynasty ; and as a necessary consequence of this deter-
mination, that neither of them should seek to profit by the present
state of things to obtain an increase of territory or an exclusive
influence.

The negotiations finally resulted in the conclusion of the con-

117

§ 70 RIGHT OF SELF-PRESERVATION [PART II.

vention of the 15th July, 1840, between four of the great Euro-
pean powers, Austria, Great Britain, Prussia, and Russia, to which
the Ottoman Porte acceded, and in consequence of which Mehemet
Ali was compelled to relinquish ther possession of all the provinces
held by him, except Egypt, the hereditary pachalic of which was
confirmed to him, according to the conditions contained in the
separate article of the convention. (5) 38

(b) Wheaton's Hist. Law of Nations, 563-583.

[38 Intervention in the Ottoman Empire. — The moving causes of intervention in the
affairs of the Ottoman Empire were the apprehension that Russia would gain a
formidable preponderance in Europe, if she became, substantially if not in form, the
mistress of the Black Sea and the Dardanelles, and the great interest of England to
preserve the existence of a neutralized and guarantied power in Egypt and the
Levant with reference to her Indian empire. In the controversy between Turkey
and Kussia in 1853-54, which arose in part out of the claim of the Czar to a protec-
torate over the Christian subjects of the Sultan, and resulted in the Crimean war,
Great Britain and France intervened on the side of Turkey, as parties to the treaties
for guarantying her independence. Sardinia afterwards joined the alliance. The
result of the war was the treaty of Paris of March 30, 1856, between Great Britain,
France, Kussia, Austria, Prussia, Sardinia, and Turkey. Article VII of this treaty
declares the Sublime Porte " admise a participer aux avantages du droit public et du
concert Europeens ; " and all the parties promise to respect the independence and
territorial integrity of the Ottoman Empire ; and they declare any act in derogation of
the same to be a matter of general interest. By Article VIII, it is agreed, that, if any
dispute shall arise between either of the parties and Turkey, menacing their peaceful
relations, an opportunity for mediation shall be given to the other powers. Article
IX refers to the firman of the Sultan, of Feb. 18, 1856, securing civil equality to his
Christian subjects, as a spontaneous offer by the Sultan ; and the parties disclaim any
right to interfere between the Sultan and his subjects, or in the internal affairs of his
empire. By Articles XI-XIV, the Black Sea is neutralized, and open to the com-
merce of the world ; but closed against vessels of war, except a limited force of Russia
and Turkey, for coast-service. By Articles XV-XIX, the Danube is thrown open
to commerce, on the principle of a river common to several independent nations.
Articles XX-XXVI alter the limits of Bessarabia, with the view of depriving Russia
of the control of the mouths of the Danube, which are now included in the provinces
of Moldavia and Wallachia, guarantied by Articles XXI-XXVII. Servia is placed
under similar guaranties by Articles XXVIII and XXIX. The boundaries in Asia
of Russia and Turkey are to be maintained, and, if necessary, to be traced by a mixed
commission.

By a treaty between Great Britain, France, and Austria, signed at Paris on the
15th April, 1856, those powers guaranty jointly and severally the independence and
integrity of the Ottoman Empire, as recorded in the treaty of Paris of 30 March,
1856, and agree that they will consider any infraction of the stipulations of that
treaty as a casus belli.

A supplementary treaty of Paris, of March 30, 1856, between Great Britain,
France, Russia, Prussia, and Austria, as parties to the treaty of London of 13 July,
1841, and Sardinia as a new party, on the one part, and the Sultan on the other, the
Sultan agrees to adhere to the rule of excluding all vessels of war from the Darda-
nelles while he is at peace, except such as the treaty powers shall agree to maintain at
118

PART II.] AND INDEPENDEN€E. § 72

§ 71. The interference of the five great European pow- interfer-
es represented in the conference of London, in the fivTgreat1
Belgic Revolution of 1830, affords an example of the ap- p^^n
plication of this right to preserve the general peace, and ^^lution
to adapt the new order of things to the stipulations of of 18.30.
the treaties of Paris and Vienna, by which the kingdom of the
Netherlands had been created. We have given, in another work,
a full account of the long and intricate negotiations relating to
the separation of Belgium from Holland, which assumed alter-
nately the character of a pacific mediation and of an armed
intervention, according to the varying circumstances of the con-
test, and which was finally terminated by a compromise between
the two great opposite principles which so long threatened to dis-
turb the established order and general peace of Europe. The
Belgic Revolution was recognized as an accomplished fact, whilst
its legal consequences were limited within the strictest bounds,
by refusing to Belgium the attributes of the rights of conquest
and of postliminy, and by depriving her of a great part of the
province of Luxembourg, of the left bank of the Scheldt, and of
the right bank of the Meuse. The five great powers, representing
Europe, consented to the separation of Belgium from Holland, and
admitted the former among the independent States of Europe, upon
conditions which were accepted by her and have become the bases
of her public law. These conditions were subsequently incorpo-
rated into a definitive treaty, concluded between Belgium and Hol-
land in 1839, by which the independence of the former was finally
recognized by the latter, (a)

§ 72. Every State, as a distinct moral being, independ- Inde_
ent of every other, may freely exercise all its sovereign p^nt^ng^at
rights in any manner not inconsistent with the equal m respect
rights of other States. Among these is that of estab- nai ^
lishing, altering, or abolishing its own municipal consti-

i govern-
ment.

the mouths of the Danube, to preserve their neutrality, and the small vessels agreed
upon between Russia and the Sultan, with the consent of the other powers, for
coast-service in the Black Sea ; and with the reservation of a right to give licenses
to light vessels of war in the service of foreign legations. On the same day (March
30, 1856), the Czar and the Sultan made a convention, fixing the armament and
tonnage of the vessels each might employ for coast-service in the Black Sea. By
Article XIV of the great treaty, this latter convention cannot be altered but by con-
sent of the parties to that treaty.] — D.

(a) Wheaton's Hist. Law of Nations, 538-555.

119

§ 73 RIGHT OF SELF-PRESERVATION [PART II.

tution of government. No foreign State can lawfully interfere
with the exercise of this right, unless such interference is author-
ized by some special compact, or by such a clear case of necessity
as immediately affects its own independence, freedom, and security.
Non-interference is the general rule, to which cases of justifiable
interference form exceptions limited by the necessity of each par-
ticular case.39
Mediation § 73. The approved usage of nations authorizes the

of foreign A x °

states for proposal by one State of its good offices or mediation for

mentof the settlement of the intestine dissensions of another

dissensions State. When such offer is accepted by the contending

Treati!»of Parties? ** becomes a just title for the interference of the

mediation mediating power.40

and guar- .

anty. Such a title may also grow out of positive compact

[39 Heflter asserts that the right of States is, like that of private persons, to fly to
the assistance of neighbors whose existence or fundamental rights are threatened. In
view of the serious consequences of such interventions, he recommends and urges
the duty of amicable mediation, and other measures short of force. He applies this
right to civil wars as well as to wars between recognized nations. Europaische
Volker, §46.]— D.

(40 Mediation. — Publicists have assigned the words " intervention " and " interpo-
sition " to express the interference of one State in the affairs of another by force, or
with force as the known ultimate sanction. Of that character were the interventions
of the Holy Alliance, and all those interventions made by the five great powers to
control the relations of the States of Europe, usually at first in the form of advice, but
with the purpose of using coercion if necessary : as in the war for Greek independ-
ence, and in the revolution of Belgium in 1830. But the term " mediation " is limited
to an offer of advice or of assistance in the way of arbitration, leaving the acceptance
of the offer to the free will of the other party. The Emperor of Russia has several
times made such an offer where the United States were concerned. In 1812, he
offered to mediate between them and Great Britain ; an offer which was accepted by
the United States, but declined by the latter power. (Wait's State Papers, ix. 223;
President Madison's message, May 25, 1813; Hansard's Debates, xxx. 526.) In this
case, he did not offer himself as an arbitrator whose award the parties would agree to
accept, but as one who, by permission of the parties, after examining into the causes
of the controversy, should give advice and recommendations. Again, he offered
himself as an arbitrator in the difference as to the construction of the clause of the
treaty of Ghent respecting the restoration of captured slaves. In this case, his offer
was accepted, and an award made, which was carried into effect by the convention
of July 12, 1822. United States Laws, viii. 282, 344 ; Martens' Nouveau Recueil,
vi. 66.

In 1836, the King of England offered his mediation between France and the United
States, when President Jackson had threatened reprisals for the failure of France to
pay the indemnities under the convention of July 4, 1831. The offer was accepted
by both parties ; but the mediation became unnecessary, as France complied with the
demand of the United States. Ann. Reg. 1836, i. 327. England again offered mediation
between the United States and Mexico in 1847 ; but the offer wTas not accepted by either
120

PART II.] AND INDEPENDENCE. § 73

previously existing, such as treaties of mediation and guaranty.
Of this nature was the guaranty by France and Sweden of the Ger-
manic Constitution at the peace of Westphalia in 1648, the result
of the thirty years' war waged by the princes and States of Ger-
many for the preservation of their civil and religious liberties
against the ambition of the House of Austria.

The Republic of Geneva was connected by an ancient alliance
with the Swiss Cantons of Berne and Zurich, in consequence of
which they united with Prance, in 1738, in offering the joint
mediation of the three powers to the contending political parties
by which the tranquillity of the Republic was disturbed. The

party. There have heen instances of offers of mediation in civil wars ; but they
present cases of such delicacy and difficulty as to have been seldom accepted, or, if
accepted, successful. The offer of Great Britain, in 1847, to mediate between the
Queen of Portugal and the insurgents, was accepted by the Queen, but the terms
suggested by the four powers were rejected by the Junta ; and the end was a com-
pulsory demonstration on the part of England, France, and Spain. (Hansard's De-
bates, xcii. 306, 1291; xciii. 417-466. Annual Register, 1847, p. 346.) In 1849,
France and England offered mediation between the King of Naples and his Sicilian
subjects ; but it was declined by the Sicilians, and they were left to be subjugated by
the king. Annuaire, 1849, p. 615. In 1856, France and England remonstrated with the
King of the Two Sicilies for the unfair trials and cruel treatment of political prisoners.
The king taking offence at this, those powers withdrew their legations, and sent a
naval force to give instant protection to their subjects and property within the king-
dom, if they should be in peril. The Russian Government protested against this
course, as an attempt to coerce a sovereign in the management of the internal affairs
of his State. (Annual Register, 1856, p. 234. Martens' Nouveau Recueil, xv. 759.)

During the civil war in the United States, Russia made to the government an offer
of its friendly offices to put an end to the war ; but, upon the theory of preserving the
integrity of the Union. (Prince Gortschakoff to Baron Stoeckl, July 10, 1861.) Mr.
Seward acknowledged the offer and expressed the satisfaction with which the Presi-
dent regarded this new proof of the long friendship between the two countries, but
expressed no intention to accept it. The French Government afterwards asked the
attention of England and Russia to a joint offer of mediation. The British Government
thought it not expedient to take any step in that direction at that time. The Russian
Government apprehended that the proposed joint action would have the appearance in
the United States of pressure, and would excite fears of intervention. The French
Government, however, by a despatch of M. Drouyn de l'Huys to M. Mercier, of Jan.
9, 1863, offered to place itself at the disposal of the belligerent parties to facilitate
negotiations between them. This was declined by Mr. Seward, in a despatch to Mr.
Dayton, of Feb. 6, 1863 ; and the European powers became satisfied that any further
offers of mediation would not be regarded by the United States as prompted^ by a
friendly spirit. Circular of the French Minister of Foreign Affairs, of Oct. 30, 1862.
Earl Russell to Earl Cowley, Nov. 18, 1862. The Emperor's address to the Legisla-
tive Chambers, Jan. 12, 1863. Le Livre Jaune, 1863. M. Drouyn de l'Huys to M.
Mercier, Jan. 9, 1863. Mr. Seward to Mr. Dayton, Feb. 6, 1863. Mr. Dayton to Mr.
Seward, Feb. 26, 1863. U. S. Dipl. Corr. 1863, i.] — D.

11 121

§ 74 RIGHT OF SELF-PRESERVATION [PART II.

result of this mediation was the settlement of a constitution,
which giving rise to new disputes in 1768, they were again
adjusted by the intervention of the mediating powers. In 1782,
the French government once more united with these Cantons
and the court of Sardinia in mediating between the aristocratic
and democratic parties ; but it appears to be very questionable
how far these transactions, especially the last, can be reconciled
with the respect due, on the strict principles of international
law, to the just rights and independence of the smallest, not
less than to those of the greatest States, (a)

The present constitution of the Swiss Confederation was also
adjusted, in 1815, by the mediation of the great allied powers, and
subsequently recognized by them at the Congress of Vienna as the
basis of the federative compact of Switzerland. By the same act
the united Swiss Cantons guaranty their respective local constitu-
tions of government. (6)

So also the local constitutions of the different States composing
the Germanic Confederation may be guaranteed by the Diet on the
application of the particular State in which the constitution is
established ; and this guarantee gives the Diet the right of deter-
mining all controversies respecting the interpretation and execution
of the constitution thus established and guarantied, (c)

And the Constitution of the United States of America guar-
antees to each State of the federal Union a republican form of
government, and engages to protect each of them against invasion,
and, on application of the local authorities, against domestic vio-
lence, (d)

inde- § 74. This perfect independence of every sovereign

eve^statf State, in respect to its political institutions, extends to the
thecholceof cn°ice °f ^ne supreme magistrate and other rulers, as
its rulers, well as to the form of government itself. In hereditary
governments, the succession to the crown being regulated by
the fundamental laws, all disputes respecting the succession
are rightfully settled by the nation itself, independently of the
interference or control of foreign powers. So also in elective

(a) Flassan, Histoire de la Diplomatic Fran^aise, torn. v. p. 78, torn. vii. pp. 27, 297.

(b) Acte Final du Congres de Vienne, art. 74.

(c) Wiener Schlussacte, vom 15 Mai, 1820, art. 62. Corpus Juris Germanici, von
Mayer, torn. ii. p. 196.

(d) Constitution of the United States, art. 3.

122

PART II.] AND INDEPENDENCE. § 76

governments, the choice of the chief or other magistrates ought

to be freely made, in the manner prescribed by the constitution of

the State, without the intervention of any foreign influence or

authority, (a)

§ 75. The only exceptions to the application of these Excep„

general rules arise out of compact, such as treaties of \^ns0^ °J~

alliance, guarantee, and mediation, to which the State compact or
i „ . -it other Just

itself whose concerns are in question has become a party ; right of in-

n -i i j_i i-i p j tervention.

or formed by other powers in the exercise ot a supposed
right of intervention growing out of a necessity involving their
own particular security, or some contingent danger affecting the
general security of nations. Such, among others, were the wars
relating to the Spanish succession, in the beginning of the
eighteenth century, and to the Bavarian and Austrian succes-
sions, in the latter part of the same century. The history of
modern Europe also affords many other examples of the actual
interference of foreign powers in the choice of the sovereign or
chief magistrate of those States where the choice was constitu-
tionally determined by popular election, or by an elective council,
such as in the cases of the head of the Germanic Empire, the
King of Poland, and the Roman Pontiff; but in these cases no
argument can be drawn from the fact to the right. In the par-
ticular case, however, of the election of the Pope, who is the
supreme pontiff of the' Roman Catholic Church, as well as a tem-
poral sovereign, the Emperor of Austria, and the Kings of Prance
and Spain have, by ancient usage, each a right to exclude one can-
didate. (#)

§ 76. The quadruple alliance, concluded in 1834 be- Quadruple
tween France, Great Britain, Spain, and Portugal, affords f^*^ of
a remarkable example of actual interference in the ques- tween

i • i • ,, • ,i i France,

tions relating to the succession to the crown in the two Great Brit-
latter kingdoms, growing out of compacts to which they gS]andU"
were parties, formed in the exercise of a supposed right of Spam*
interference for the preservation of the peace of the Peninsula as
well as the general peace of Europe. Having already stated in
another work the historical circumstances which gave rise to the
quadruple alliance, as well as its terms and conditions, it will
only be necessary here to recapitulate the leading principles, which

(a) Vattel, Droit des Gens, liv. i. ch. 5, §§ 66, 67.

(a) Kliiber, Droit des Gens Moderne de l'Europe, Part. II. tit. 1, ch. 2, § 48.

123

§ 76 EIGHT OF SELF-PRESERVATION * [PART II.

may be collected from the debate in the British Parliament, in
1835, upon the measures adopted by the British government to
carry into effect the stipulations of the treaty.

1. The legality of the order in council permitting British sub-
jects to engage in the military service of the Queen of Spain, by
exempting them from the general operation of the act of Parlia-
ment of 1819, forbidding them from enlisting in foreign military
service, was not called in question by Sir Robert Peel and the
other speakers on the part of the opposition. Nor was the obli-
gation of the treaty of quadruple alliance, by which the British
government was bound to furnish arms and the aid of a naval
force to the Queen of Spain, denied by them. Yet it was asserted,
that without a declaration of war, it would be with the greatest
difficulty that the special obligation of giving naval aid could be
fulfilled, without placing the force of such a compact in opposition
to the general binding nature of international law. Whatever
might be the special obligation imposed on Great Britain by the
treaty, it could not warrant her in preventing a neutral State from
receiving a supply of arms. She had no right, without a positive
declaration of war, to stop the ships of a neutral country on the
high seas.

2. It was contended that the suspension of the foreign enlistr
ment law was equivalent to a direct military interference in the
domestic affairs of another nation. The general rule on which
Great Britain had hitherto acted was that of non-interference.
The only exceptions admitted to this rule were cases where the
necessity was urgent and immediate \ affecting, either on account
of vicinage, or some special circumstances, the safety or vital
interests of the State. To interfere on the vague ground that
British interests would be promoted by the intervention, on the
plea that it would be for their advantage to see established a
particular form of government in Spain, would be to destroy
altogether the general rule of non-intervention, and to place the
independence of every weak power at the mercy of its formidable
neighbors. It was impossible to deny that an act which the
British government permitted, authorizing British soldiers and
subjects to enlist in the service of a foreign power, and allowing
them to be organized in Great Britain, was a recognition of the
doctrine of the propriety of assisting by a military force a foreign
government against an insurrection of its own subjects. When

, 124

PART II.] AND INDEPENDENCE. § 76

the Foreign Enlistment Bill was under consideration in the House
of Commons, the particular clause which empowered the king
in council to suspend its operation was objected to on the ground,
that if there was no foreign enlistment act, the subjects of Great
Britain might volunteer in the service of another country, and
there could be no particular ground of complaint against them ;
but that if the king in council were permitted to issue an order
suspending the law with reference to any belligerent nation, the
government might be considered as sending a force under its own
control.

Lord Palmerston, in reply, stated: — 1. That the object of the
treaty of quadruple alliance, as expressed in the preamble, was
to establish internal peace throughout the Peninsula, including
Spain as well as Portugal ; the means by which it was proposed
to effect that object was the expulsion of the infants Don Carlos
and Dom Miguel from Portugal. When Don Carlos returned to
Spain, it was thought necessary to frame additional articles to the
treaty in order to meet the new emergency. One of these addi-
tional articles engaged His Britannic Majesty to furnish Her
Catholic Majesty with such supplies of arms and warlike stores
as Her Majesty might require, and further to assist Her Majesty
with a naval force. The writers on the law of nations all agreed
that any government, thus stipulating to furnish arms to another,
must be considered as taking an active part in any contest in
which the latter might be engaged ; and the agreement to furnish
a naval force, if necessary, was a still stronger demonstration to
that effect. If, therefore, the recent order in council was objected
to on the ground that it identified Great Britain with the cause of
the existing government of Spain, the answer was, that, by the
additional articles of the quadruple treaty, that identification had
already been established, and that one of those articles went even
beyond the measure which had been impugned.

2. As to what had been alleged as to the danger of establish-
ing a precedent for the interference of other countries, he would
merely observe that, in the first place, this interference was
founded on a treaty arising out of the acknowledged right of
succession of a sovereign, decided by the legitimate authorities
of the country over which she ruled. In the case of a civil war
proceeding either from a disputed succession, or from a prolonged
revolt, no writer on international law denied that other countries

11* 125

§ 76 RIGHT OF SELF-PRESERVATION [PART II.

had a right, if they chose to exercise it, to take part with either
of the two belligerent parties. Undoubtedly it was inexpedient
to exercise that right except under circumstances of a peculiar
nature. That right, however, was general. If one*country exer-
cised it, another might equally exercise it. One State might
support one party, another the other party; and whoever em-
barked in either cause must do so with their eyes open to the
full extent of the possible consequences of their decision. He
contended, therefore, that the measure under consideration estab-
lished no new principle, and that it created no danger as a pre-
cedent. Every case must be judged by the considerations of
prudence which belonged to it. The present case, therefore,
must be judged by similar considerations. All that he main-
tained was, that the recent proceeding did not go beyond the
spirit of the engagement into which Great Britain had entered,
that it did not establish any new principle, and that the engage-
ment was quite consistent with the law of nations, (a)41

(a) Wheaton's Hist. Law of Nations, 523-538.

[**■ Intervention in Mexico. Recognition of the Empire. — r The intervention by France,
Spain, and Great Britain in the affairs of Mexico, presents a striking instance of the
practice of the European powers in such cases, and will contribute a precedent to
international law, at least as against the parties concerned.

A convention was made at London, on the 31st October, 1861, between Great
Britain, France, and Spain, professedly for the purpose of obtaining redress and secu-
rity from Mexico for citizens of the contracting powers. The claim was declared
to be, that bonds of the Mexican Government were held by citizens of those countries,
for which the Mexican Government had neglected to provide payment, and which it
was doubtful if Mexico had either the ability or willingness to pay. Injuries, it was
declared, had been inflicted on citizens of those countries residing in Mexico, in their
persons and property, by powers in possession of the government, for which no
redress could be obtained. In general, the object of the convention was defined to
be, " to demand more efficacious protection for the persons and property of their sub-
jects, as well as a fulfilment of the obligations contracted towards their Majesties."
The second article of the convention declares that the contracting parties " engage
not to seek for themselves, in the employment of the contemplated coercive measures,
any acquisition of territory, or any special advantage, nor to exercise in the internal
affairs of Mexico any influence of a nature to prejudice, the right of the Mexican
nation to choose and constitute the form of its government." The convention pro-
vided for such occupation of territory and " such other operations " as should be
judged suitable to secure its objects.

It is clear that this convention authorized a war of conquest upon Mexico, with no
limitation except such as might be afforded by the agreement of the allies to leave the
conquered people free to choose and constitute their own form of government. The
payment of debts might, indeed, be obtained from the existing government ; but the
other object — permanent protection for the persons and property of resident foreign-
ers— could, in the opinion of the parties to the convention, be secured only by a change
126

PART II.] AND INDEPENDENCE. § 76

of government. The second article, therefore, assumed that there would be such
a change, and declared only that it should be effected by the Mexicans themselves.
The convention may, therefore, be said to have contemplated an armed occupation of
Mexico, until the people should have adopted such a government as, in the opinion
of the allies, would be responsible and stable.

Provision was made in the treaty for the accession of the United States, as a fourth
party ; but it was to become a party to a treaty the terms of which the other parties had
already settled, and even after its execution had been begun. The note from the three
powers, inviting the United States to join, was dated a month after the date of the
treaty. The United States were sensitive to the intervention of European monarchies
in the internal affairs of a neighboring republic on the American continent ; and the
Secretary of State, Mr. Seward, endeavored to remove the more definite and specific
occasion for the enterprise by an arrangement with Mexico, by which the United
States should give her such aid as would enable her to discharge the just pecuniary
demands of the three powers. The United- States Minister at Mexico was authorized
by the President to make a treaty to that effect. In Mr. Seward's reply (bearing
date Dec. 4, 1861) to the note from the three powers, inviting the co-operation of the
United States, he informs them of this contemplated arrangement, and expresses
the hope that it will remove the necessity for the proposed intervention. This was
immediately rejected as unsatisfactory by each of the three powers. (Earl Cowley to
Earl Kussell, Sept. 24, 1861. Ditto, Sept. 27, 1861. Sir J. Crampton to Earl Russell,
Dec. 15, 1861. Earl Russell to Sir C. Wyke, 30 March, 1861.J) It was made plain
by these letters^ and the diplomatic conversations to which they refer, that the three
powers would not be satisfied with the payment of the debts, ascertained and ascertain-
able, due to their subjects. They insisted on the further object of the convention, —
security for the future good treatment of resident foreigners. The correspondence con-
firms the view that this security could not, in their opinion, be obtained except by a
change of government. The Queen's speech (February, 1862) also assigns as a motive
for the convention " the wrongs committed by various parties and by successive govern-
ments in Mexico upon various foreigners resident in Mexico, and for which no satis-
factory redress could be obtained." The instructions of M. Thouvenel, the French
Minister of Foreign Affairs, to the admiral commanding the French fleet in the
Gulf of Mexico, say : " The presence of the forces of the allies on the Mexican terri-
tory may lead the better part of the population, fatigued with anarchy and desirous
of order and repose, to make an effort to establish in the country a government
affording those guaranties of strength and stability which have been wanting in all
those that have followed each other since the independence." Referring then to
the great interest the allies have in such a result, he adds, " That interest induces
them not to discourage attempts of the nature of those I have suggested to you ; and
you ought not to refuse them your encouragement and moral aid, if, by the position of
the men who take the initiative in them, and by the sympathy they meet with among
the body of the people, they should present chances of success for the institution of
such an order of things as would secure to the interests of resident foreigners the pro-
tection and guaranties which have hitherto been wanting." The letter concludes
with leaving it to the discretion of the admiral and the commissioner to determine
" to what extent you may be called upon to take part in these movements." The
annual statement of the condition of the French Empire, made in January, 1862, to the
Legislative Chamber, expresses the satisfaction the French Government will feel if
the intervention " should produce a crisis for Mexico of a nature to favor the recognition
of that country." The most complete exposition of the views of the French emperor
is to be found in his letter to General Forey, dated July 3, 1862, directing him to

127

§ 76 EIGHT OF SELF-PRESERVATION [PART II.

march upon the capital. The motives for French intervention he states to be,
to redress grievances ; to establish bounds to the extension of the United States
further south, and prevent her becoming the sole dispenser of the products of the new-
world ; the restoration of the prestige of the Latin races in America ; and the extension
of the influence and interest of France by the gratitude and sympathy of a government
established through her efforts. He disclaims an intention to force a government on
Mexico, yet directs General Forey " to establish either a monarchy, if it be not incom-
patible with the national sentiment of the country, or, at all events, a government
which promises some stability." In his letter to Lorencez, the emperor made his
celebrated declaration, — " It is contrary to my interests, my origin, and my principles
to impose any kind of government upon the Mexican people. They may freely
choose that which suits them best." U. S. Dipl. Corr. 1862, p. 401. Michel Chevalier,
however, admits (Revue des deux Mondes, April 1, 1862) that the probable expecta-
tion of the three powers was " the overthrow of the system of government established
in Mexico since its independence, and the substitution of a monarchical system."
Indeed, the general purposes of indemnity and security for foreign residents furnished
to the allies their most tenable position for intervention, if the state of facts warranted
it : for it is not the custom for nations to interfere authoritatively in behalf of their citi-
zens who have chosen to lend money to foreign governments ; and, in this case, the
genuineness of the debts, the amounts actually due, and the liability of Mexico, were
matters of very grave doubt.

In Mr. Seward's reply of Dec. 4, 1861 (before referred to), to the invitation to join
the alliance, he admits the right of the three powers to judge for themselves whether
they have sustained grievances that require them to levy war upon Mexico. He
reminds the allies that the United States have a deep interest that the allies shall not
acquire territory in Mexico, or gain any advantages in Mexican territory peculiar to
themselves ; and, especially, that they shall not, " as a result or consequence of the
hostilities to be inaugurated under the convention, exercise, in the subsequent affairs
of Mexico, any influence of a character to impair the right of the Mexican people to
choose and freely constitute the form of its own government." Mr. Seward declines, in
behalf of the President, joining in any manner in the alliance ; and assigns, as reasons
for the refusal, the traditional policy of the United States not to join in European po-
litical combinations, and the prevailing feeling and interest of the United States in
Mexico, as a neighbor, and as having a republican form of government like their own.
The claims the United States have against Mexico, they prefer to manage by them-
selves, and by peaceful means.

As might have been expected from these antecedents, a question soon arose
among the allies, as to how far they should go in exercising coercion upon Mexico,
and what should be the test and rule of their forcible interference in her internal
affairs. At a conference held at Orizaba on the 9th April, 1862, the Spanish and
English commissioners, objecting that the French had gone beyond the terms of the
convention in giving military aid to the party in favor of establishing an imperial gov-
ernment, withdrew from further co-operation. Their course was approved by their
respective governments. The French Government, whose pecuniary claims upon
Mexico were much smaller than those of the other powers and more questionable,
left to itself in Mexico, proceeded, by military aid to the Imperialist party, to estab-
lish that party in possession of the capital ; and, under the protection of the French
forces, an Assembly of Notables was called, which had been selected and designated by
the Imperialist party, without even the pretenoe of a general vote of the Mexican
people ; and this Assembly undertook to establish an imperial form of government,
and to offer the throne to the Archduke Maximilian of Austria. The Emperor of the
128

PART II.] AND INDEPENDENCE. § 76

French treated this as a conclusive expression of the will of the Mexican people,
acknowledged the new sovereign at once, and entered into a treaty with him for
military aid to secure his authority.

The position taken by Mr. Seward in 1862 was, that the explanations given by
the French emperor to the United States made the French intervention a war upon
Mexico for the settlement of claims which Mexico had not met to the satisfaction
of France. This explanation the United States relied upon, and did not intend to
interfere between the belligerents. (Mr. Seward to Mr. Dayton, June 21, 1862; .
August 23, 1862; and November 10, 1862: U. S. Dipl. Corr. 1862. J)

On the 4th of April, 1864, the House of Eepresentatives passed a resolution, by
unanimous vote, denouncing the French intervention in Mexico ; but these resolves
were not acted upon by the Senate ; and the position of the government continued to
be that of recognizing a war made by France upon Mexico for professed international
objects of which we did not assume to judge, accompanied with a military occupation
of a large part of Mexico by the French, which we recognized as one of the facts of
the war. But the government steadily refused to regard the empire as established by
the Mexican people, and treated Maximilian as a kind of provisional ruler established
by the French, in virtue of their military occupation. Mr. Seward, in his despatch to
Mr. Bigelow, the United States Minister to France, of June 30, 1865, says : " It will be
well, at your convenience, to make this explanation to M. Drouyn de THuys. — So
far as our relations are concerned, what we hold in regard to Mexico is, that France
is a belligerent there, in war with the republic of Mexico. We do not enter into the
merits of the belligerents, but we practise in regard to the contest the principles of
neutrality ; as we have insisted on the practice of neutrality by all nations in regard
to our civil war. Our friendship towards the republic of Mexico, and our sympathies
with the republican system on this continent, as well as our faith and confidence in
it, have been continually declared. Political intervention in the affairs of foreign
States is a principle thus far avoided by our government." And again, in his despatch
of Sept. 6, 1865, he says : " It is perceived with much regret, that an apparent, if
not a real, a future if not an immediate, antagonism between the policies of the two
nations [France and the United States] seems to reveal itself in the situation of Mexico.
The United States have at no time left it doubtful that they prefer to see a domestic
and republican system of government prevail in Mexico, rather than any other system.
This preference results from the fact, that the Constitution of the United States itself
is domestic and republican ; and from a belief, that, so far as is practically and justly
attainable by the exercise of moral influences, the many American States by which
the United States are surrounded should be distinguished by the same peculiarities
of government." Disclaiming for the United States political propagandism or aggran-
dizement by conquest, he states it as the belief of the American people, that the
advance of civilization in this hemisphere is best secured when the political institu-
tions of the other American States assimilate to our own ; and adds : " France appears
to us to be lending her great influence, with a considerable military force, to destroy
the domestic republican government in Mexico, and to establish there an imperial
system, under the sovereignty of a European prince, who, until he assumed the crown,
was a stranger to that country. We do not insist or claim that Mexico and the other
States on the American continent shall adopt the political institutions to which we are
so earnestly attached ; but we do hold that the peoples of those countries are entitled
to exercise the freedom of choosing and establishing institutions like our own, if
they are preferred." Again, in his despatch of Nov. 6, 1865, he says the United
States " still regard the effort to establish permanently a foreign and imperial govern-
ment as disallowable and impracticable ; " and adds that the United States " are not

129

§ 76 EIGHT OF SELF-PRESERVATION [PART II.

prepared to recognize, or to pledge themselves hereafter to recognize, any political
institutions in Mexico which are in opposition to the republican government with
which we have so long and so constantly maintained relations of friendship."

M. Drouyn de l'Huys, in a letter of Oct. 18, 1865, to M. de Montholon, the French
Minister, communicated to Mr. Seward, says : " What we ask of the United States is to
be assured that their intention is not to impede the consolidation of the new order of
things founded in Mexico ; and the best guaranty we could receive of their intention
would be the recognition of the Emperor Maximilian by the Federal Government."
And again : " But the acknowledgment of the Emperor Maximilian by the United
States would, in our opinion, have sufficient influence upon the state of the country to
allow of taking into consideration their susceptibilities on this subject ; and, should the
Cabinet of Washington decide to open diplomatic relations with the Court of Mexico,
we should see no difficulty in entering into arrangements for the recall of our troops
within a reasonable period, of which we might consent to fix the termination."

Mr. Seward, in a letter of Dec. 6, 1865, to M. de Montholon, in reply to the
above, says : " The effect of the emperor's suggestions, when they are reduced to a
practical shape, seems to be this : That France is willing to retire from Mexico as soon
as she may, but that it would be inconvenient for her without first receiving from the
United States an assurance of a friendly or tolerant disposition to the power which
has assumed to itself an imperial form in the capital city of Mexico. The President
is gratified by the assurance you have thus given of the emperor's good disposition.
I regret, however, to be obliged to say that the condition the emperor suggests is one
which seems quite impracticable. ... I cannot but infer, from the tenor of your
communication, that the principal cause of the discontent prevailing in the United
States with regard to Mexico is not fully apprehended by the emperor's government.
The chief cause is not that there is a foreign army in Mexico ; much less does that
discontent arise from the circumstance that that foreign army is a French one. We
recognize the right of sovereign nations to carry on war with each other, if they do
not invade our rights, oiynenace our safety or just influence. The real cause of our
national discontent is,' that the French army which is now in Mexico is invading a
domestic republican government there, which was established by her people and with
whom the United States sympathize most profoundly, for the avowed purpose of sup-
pressing it, and establishing upon its ruins a foreign monarchical government, whose
presence there, so long as it should endure, could not but be regarded by the people of
the United States as injurious and menacing to their own chosen and endeared repub-
lican institutions." Again disclaiming any purpose of the United States to make a
war of propagandism in the republican cause, he adds : " On the other hand, we have
constantly maintained, and still feel bound to maintain, that the people of every State
on the American continent have a right to secure for themselves a republican govern-
ment, if they choose; and that interference by foreign States to prevent the enjoyment
of such institutions deliberately established is wrongful, and in its effects antagonistical
to the free and popular form of government existing in the United States." And he
expresses the hope that France " may find it compatible with its interests and high
honor to withdraw from its aggressive attitude in Mexico, within some convenient
and reasonable time, and thus leave the people of that country to the free enjoyment
of the system of republican government which they have established for themselves."

In a despatch of Dec. 16, 1865, to Mr. Bigelow, he says : " It has been the
President's purpose that France should be respectfully informed upon two points ;
namely, first, That the United States earnestly desire to continue and to cultivate
sincere friendship with France ; second, That this policy would be brought into
imminent jeopardy, unless France could deem it consistent with her interest and
130

PART II.] AND INDEPENDENCE. § 76

honor to desist from the prosecution of armed intervention in Mexico to overthrow
the domestic republican government existing there, and to establish upon its ruins
the foreign monarchy which has been attempted to be inaugurated in the capital
of the country."

In July, 1864, a question was put to Lord Palmerston in Parliament as to the recog-
nition by Great Britain of the Imperial Government of Maximilian. He stated, in
reply, that the Archduke, before leaving Europe, applied to Great Britain to recognize
his government on the basis of the election ; and that the British Government was not
inclined to do so, and informed the Archduke that the recognition must depend upon
whether the people of Mexico did in fact receive and accept his government, so that
it should be actually the established government of Mexico. The election, in the
circumstances under which it was made, was not considered proof of a free choice
of the Mexican people, in advance ; and the actual establishment of the government
was matter for the future to decide. Lord Palmerston closed with these words : " If
we find there is a prospect of a government being established, we shall be very glad
to acknowledge it. If, on the other hand, we find matters still uncertain, and a war
still going on, which may result one way or the other, we shall say the government
is not of a kind that would justify us in agknowledging the Archduke as Emperor of
Mexico." Lord Palmerston stated the earnest desire of Great Britain to see a stable
and responsible government in Mexico, instead of the anarchy and successions of mili-
tary chiefs, holding by conquest, on short and uncertain terms of ofiice, which had
prevailed for many years past.

A proposal having been made to the United States Government to receive a com-
missioner from the new empire, to make an arrangement respecting the recognition of
consuls in the United States from the imperial government, Mr. Seward replied:
" It is a fixed habit of this government to hold no official intercourse with agents
of parties in any country which stand in an attitude of revolution antagonistic to
the sovereign authority in the same country with which the United States are on
terms of friendly diplomatic intercourse. It is equally a fixed. habit of this govern-
ment to hold no unofficial or private interviews with persons with whom it cannot
hold official intercourse." (Mr. Seward's memoranda of March 13 and July 17, 1865 :
Ex. Doc. No. 20, 39th Cong., 1st Sess.) In August, 1865, the Minister of the Mexican
Republic represented to the Department of State that a commercial agent of Maxi-
milian in New York was attempting to exercise the duties of a consul by giving
certificates of invoices and manifests, and inquired whether he was recognized by the
United States. Mr. Seward replied that no other than the Republican Government
in Mexico was recognized, but added : " You are aware, however, that the party in
arms against that government is, and for some time past has been, in possession of
some, at least, of the ports of Mexico. That possession carries with it, for the time
being, a power to prescribe the terms upon which foreign commerce may be carried
on with those ports. If, as is presumed to be the case, one of those conditions is that
the invoices and manifests of vessels from abroad bound to those ports must be certi-
fied by a commercial agent of the party in possession, residing in the port of the
foreign country from which the vessel may proceed, it is not perceived what effective
measures this government could properly take in the premises. Such a commercial
agent can perform no consular act relating to the affairs of his countrymen in the
United States. To prohibit him from attesting invoices and manifests under the cir-
cumstances referred to, would be tantamount to an interdiction of trade between the
United States and those Mexican ports which are not in possession of the Republican
Government of that country. The consuls of the United States in Mexico, who have
their exequaturs from that government only, themselves discharge duties as commer-

131

§ 77 RIGHTS OP CIVIL AND [PART II.

cial agents, in the ports wMch are not under the control of that government, in all
respects like those which the person Arroyo, in the same way and to the same extent,
claims to do at New York in respect to said ports." Mr. Seward to Sen. Romero,
Aug. 9,1865.]— D.

CHAPTER II.

RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.

Exclusive § 77. Every independent State is entitled to the ex-
chTn °L- elusive power of legislation, in respect to the personal
lation. rights and civil state and condition of its citizens, and in
respect to all real and personal property situated within its terri-
tory, whether belonging to citizens or aliens. ' But as it often
happens that an individual possesses real property in a State
other than that of his domicil, or that contracts are entered
into and testaments executed by him, or that he is interested in
successions ah intestato, in a country different from either; it
may happen that he is, at the same time, subject to two or
three sovereign powers ; to that of his native country or of his
domicil, to that of the place where the property in question
is situated, and to that of the place where the contracts have
been made or the acts executed. The allegiance to the sov-
ereign power of his native country exists from the birth of the
individual, and continues till a change of nationality.42 In
the two other cases he is considered subject to the laws, but only
in a limited sense. In the foreign countries, where he possesses
real property, he is called a non-resident land owner, (sujetforain ;)
in those in which the contracts are entered into, a temporary resi-
dent, (mjet passager). As, in general, each of these different
countries is governed by a distinct legislation, conflicts between
their laws often arise ; that is to say, it is frequently a question
which system of laws is applicable to the case. The collection of
rules for determining the conflicts between the civil and criminal

Private iaws 0f different States, is called private international

interna- . x . .

tionaiiaw. law, to distinguish it from public international law,
which regulates the relations of States, (a)43

[42 See note on the subject of Naturalization, infra, No. 49.] — D.
(a) Foelix, Droit International Prive, § 3.

[43 Story's Conflict of Laws, §§ 9, 10, 11. Kent's Com. ii. 39.] — D.
132

PART II.] CRIMINAL LEGISLATION. § 78

§ 78. The first general principle on this subject results conflict
immediately from the fact of the independence of nations. of laws*
Every nation possesses and exercises exclusive sovereignty and
jurisdiction throughout the full extent of its territory. It follows,
from this principle, that the laws of every State control, of right,
all the real and personal property within its territory, as well as
the inhabitants of the territory, whether born there or not, and
that they affect and regulate all the acts done, or contracts entered
into within its limits.

Consequently, " every State possesses the power of regulating
the conditions on which the real or personal property, within its
territory, may be held or transmitted; and of determining the
state and capacity of all persons therein, as well as the validity
of the contracts and other acts which arise there, and the rights
and obligations which result from them ; and, finally, of prescrib-
ing the conditions on which suits at law may be commenced and
carried on within its territory." (a)

The second general principle is, " that no State can, by its laws,
directly affect, bind, or regulate property beyond its own terri-
tory, or control persons who do not reside within it, whether
they be native-born subjects or not. This is a consequence of
the first general principle ; a different system, which would rec-
ognize in each State the power of regulating persons or things
beyond its territory, would exclude the equality of rights among
different States, and the exclusive sovereignty which belongs to
each of them." (6)

From the two principles, which have been stated, it follows
that all the effect, which foreign laws can have in the territory
of a State, depends absolutely on the express or tacit consent of
that State. A State is not obliged to allow the application of for-
eign laws within its territory, but may absolutely refuse to give
any effect to them. It may pronounce this prohibition with regard
to some of them only, and permit others to be operative, in whole
or in part. If the legislation of the State is positive either way,
the tribunals must necessarily conform to it. In the event only
of the law being silent, the courts may judge, in the particular
cases, how far to follow the foreign laws, and to apply their
provisions. The express consent of a State, to the application
of foreign laws within its territory, is given by acts passed by

{a) Folix Droit Int. Prive, § 9. (b) Id. § 10.

12 133

§ 79 RIGHTS OF CIVIL AND [PART II.

its legislative authority, or by treaties concluded with other
States. Its tacit consent is manifested by the decisions of its
judicial and administrative authorities, as well as by the writings
of its publicists.44

§ 79. There is no obligation, recognized by legislators, public
authorities, and publicists, to regard foreign laws ; but their appli-
cation is admitted, only from considerations of utility and the
mutual convenience of States — ex comitate, ob reciprocam utili-
tatem. The public good and the general interests of nations have
caused to be accorded, in every State, an operation more or less
extended to foreign laws. Every nation has found its advan-
tage in this course. The subjects of every State have various
relations with those of other States ; they are interested in the
business transacted and in the property situate abroad. Thence
flows the necessity, or at least utility, for every State, in the
proper interest of its subjects, to accord certain effects to foreign
laws, and to acknowledge the validity of acts done in foreign coun-
tries, in order that its subjects may find in the same countries a
reciprocal protection for their interests. There is thus formed
a tacit convention among nations for the application of foreign
laws, founded upon reciprocal wants. This understanding is not
the same everywhere. Some States have adopted the principle of
complete reciprocity, by treating foreigners in the same manner as
their subjects are treated in the country to which they belong ;
other States regard certain rights to be so absolutely inherent in
the quality of citizens as to exclude foreigners from them ; or they
attach such an importance to some of their institutions, that
they refuse the application of every foreign law incompatible with
the spirit of those institutions. But; in modern times, all States
have adopted, as a principle, the application within their territories
of foreign laws; subject, however, to the restrictions which the
rights of sovereignty and the interests of their own subjects
require. This is the doctrine professed by all the publicists who
have written on the subject.

" Above all things," says President Bohier, " we must remember

[44 Story's Conflict of Laws, §§ 17-22. Boullenois, Traite des Statuts, i. 2, 3, 4,
152. Henry on Foreign Law, Part I. ch. 1, § 1. Huberus, lib. i. tit. 3, § 2. Vattel,
Part II. ch. 7, §§ 84, 85. Rodenburg de Stat. ch. 3, § 1, p. 7. Voet de Stat. ch. 2, § 4,
n. 7, pp. 124, 138, 139. Bank of Augusta v. Earle, Peters's Rep. xiii. 584-591.
Blanchard v. Russell, Mass. Rep. xiii. 4. Henry on Statutes, Part I. ch. 1, p. 1.]
— D.

134

PART II.] CRIMINAL LEGISLATION. § 80

that, though the strict rule would authorize us to confine the opera-
tion of laws within their own territorial limits, their application
has, nevertheless, been extended, from considerations of public
utility, and oftentimes even from a kind of necessity. But, when
neighboring nations have permitted this extension, they are not to
be deemed to have subjected themselves to a foreign statute ; but
to have allowed it, only because they have found in it their own
interest by having, in similar cases, the same advantages for their
own laws among their neighbors. This effect given to foreign laws
is founded on a kind of comity of the law of nations ; by which
different peoples have tacitly agreed that they shall apply, when-
ever it is required by equity and common utility^ provided they do
not contravene any prohibitory enactment." (a)

§' 80. Huberus, one of the earliest and best writers on this sub-
ject, lays down the following general maxims, as adequate to solve
all the intricate questions which may arise respecting it : —

1. The laws of every State have force within the limits of that
State, and bind all its subjects.

2. All persons within the limits of a State are considered as
subjects, whether their residence is permanent or temporary.

3. By the comity of nations, whatever laws are carried into exe-
cution within the limits of any State, are considered as having the
same effect everywhere, so far as they do not occasion a prejudice
to the rights of other States and their citizens.

From these maxims, Huberus deduces the following general
corollary, as applicable to the determination of all questions aris-
ing out of the conflict of the laws of different States, in respect to
private rights of persons and property.

All transactions in a court of justice, or out of court, whether
testamentary or other conveyances, which are regularly done or
executed according to the law of any particular place, are valid,
even where a different law prevails, and where, had they been so
transacted, they would not have been valid. On the other hand,
transactions and instruments which are done or executed contrary
to the laws of a country, as they are void at first, never can be
valid ; and this applies not only to those who permanently reside
in the place where the transaction or instrument is done or exe-
cuted, but to those who reside there only temporarily ; with this
exception only, that if another State, or its citizens, would be

(a) Bohier, Observations sur la Coutume de Bourgogne, ch. 23, §§ 62, 63, p. 457.

135

§ 81 RIGHTS OF CIVIL AND [PART II.

affected by any peculiar inconvenience of an important nature, by
giving this effect to acts performed in another country, that State
is not bound to give effect to those proceedings, or to consider
them as valid within its jurisdiction, (a) 45

Lex loci § 81. Thus, real property is considered as not de-
rei sitae. pending altogether upon the will of private individuals,
but as having certain qualities impressed upon it by the laws of
that country where it is situated, and which qualities remain in-
delible, whatever the laws of another State, or the private disposi-
tions of its citizens, may provide to the contrary. That State,
where this real property is situated, cannot suffer its own laws
in this respect to J)e changed by these dispositions, without great
confusion and prejudice to its own interests. Hence it follows,
that the law of a place where real property is situated governs
exclusively as to the tenure, the title, and the descent of such
property, (a)

This rule is applied, by the international jurisprudence of the
United States ancl Great Britain, to the forms of conveyance of
real property, both as between different parts of the same confed-

(a) Huberus, Praeleet, torn. ii. lib. i. tit. 3, de Conflictu Legum.

[45 On the subject of comity, see Judge Redfield's edition of Story's Conflict of
Laws, § 38 a. The learned editor offers a suggestion, that the policy of each
nation must determine whether it will give judicial remedies for breaches of obliga-
tion committed abroad, and what is called comity may enter into that question ;" but,
if the remedies are allowed, the court must necessarily learn and apply the law of the
foreign country, in order to understand the rights and duties of the parties. This is
not, he says, of comity, but of necessity.

On the general subjects treated of in these sections, see Savigny's System, 1. viii.
Mohl's Gesch. und Liter, i. 441. Story's Conflict of Laws, §§ 23-32. Dalrymple v.
Dalrymple, Hagg. Cons. Rep. ii. 59. Fergusson on Marriage and Divorce, 395, 410.
Hertii Opera, de Coll. Leg. 120, 123, 170, 171. Boullenois, Traite des Stat. I. 2, 3, 4,
and 6 ; 3 Ob. 10, p. 152, 155 ; ii. App. p. 8. Livermore on Contr. of Laws, 28.
Kent's Comm. ii. 457. Henry on Foreign Law, Part I. ch. 1, § 1. Rodenburg de
Stat. ch. 3, § 1, p. 7. Bank of Augusta v. Earle, Peters's Rep. xiii. 584. Blanchard v.
Russell, Mass. Rep. xiii. 4. Saul v. His Creditors, Martin's Rep. xvii. 569-596.] — D.

(a) "Fundamentum universae hujus doctrinae diximus esse, et tenemus, subjectio-
nem hominum infra leges cuj usque territorii, quamdiu illic agunt, qua? facit ut actus
ab initio validus aut nullus, alibi quoque valere aut non valere non nequeat. Sed haec
ratio non convenit rebus immobilibus, quando illae spectantur, non ut dependentes a
libera dispositione cujusque patris-familias, verum quatenus certae notae lege cujusque
reipublicae ubi sitae sunt, illis impressae reperiuntur ; hae notae manent indelebiles in
ista republica, quidquid aliarum civitatum leges, aut privatorum dispositiones, secus
aut contra statuant; nee enim sine magna confusione prejudicioque reipublicae ubi
sitae sunt res soli, leges de illis latae, dispositionibus istis mutari possunt." Huberus,
liv. i. tit. 3, de Conflictu Leg. § 15.
136

PART II.] CRIMINAL LEGISLATION. § 81

eration or empire, and with respect to foreign countries. Hence
it is that a deed or will of real property, executed in a foreign
country, or in another State of the Union, must be executed with
the formalities required by the laws of that State where the land
lies. (5)

But this application of the rule is peculiar to American and
British law. According to the international jurisprudence recog-
nized among the different nations of the European continent, a
deed or will, executed according to the law of the place where it
is made, is valid ; not only as to personal, but as to real property,
wherever situated ; provided the property is allowed by the lex loci
rei sitce to be alienated by deed or will ; and those cases excepted,
where that law prescribes, as to instruments for the transfer of real
property, particular forms, which can only be observed in the place
where it is situated, such as the registry of a deed or the probate
of a will, (c) 46

(b) Wheaton's Rep. iii. 212. Robinson v. Campbell. Cranch's Rep. vii. 115.
United States v. Crosby.

(c) Folix, Droit International Prive, § 52. " Hinc Frisius habens agros et domos
in provincia Groningensi, non potest de illis testari, quia lege prohibitum est ibi de
bonis immobilibus testari, non valente jure Frisico adficere bona, quse partes alieni
territorii integrantes constituunt. Sed an hoc non obstat ei, quod antea diximus, si
factum sit testamentum jure loci validum, id eflectum habere etiam in bonis alibi sitis,
ubi de illis testari licet 1 Non obstat : quia legum diversitas in ilia specie non afficit.
res soli, neque de illis loquitur, sed ordinat actum testandi ; quo recte celebrato, lex
Reipublicaa non vetat ilium actum valere in immobilibus, quatenus nullus character
illis ipsis a lege loci impressus laeditur aut imminuitur." Huberus, ubi supra.

[46 Story's Conflict of Laws, §§ 424, 434, 448. Burge on Col. and For. Laws, ii.
840-870; iv. 150, 576. Foelix, Conflit des Lois, 216-230, 307-312, 346-7, 350-4. As
to hens on immovable property, see Boullenois, i. 683-689, 818 ; Rodenburg de Stat,
tit. ii. ch. 5, § 16 ; and note 4 to Story's Conflict of Laws, § 424. " No one maintains
that a form expressly imposed as an exclusive one by the lex situs can ever be dis-
pensed with." Westlake's Pr. Intern. Law, § 87. The French law of March, 1855,
requires the transfer inter vivos of real property and of corporeal personal property to
be recorded in the Bureau of Hypothecations.

The general rules as to the transfer of immovable property inter vivos, on which the
greatest agreement among the courts and- jurists is found, are that the lex loci rei sitce
must govern in determining — I. The disposition of immovable property (real estate) ;
II. The personal capacity to take or to transfer immovable property ; III. The
formalities of passing title to immovable property ; IV. The extent of the dominion
over immovable property; V. The question what is and what is not real estate.
These questions are found discussed at great length, with the latest authorities, in
Redfield's edition of Story's Conflict of Laws, ch. 10, §§ 424-454.

As to wills of immovable property, the rules most generally adopted are that
the lex loci rei sitce must govern in determining — I. The capacity or incapacity

12* 137

§ 82 RIGHTS OF CIVIL AND [PART II.

proit § 82. The municipal laws of all European countries

d'aubaine. formerly prohibited aliens from holding real property
within the territory of the State. During the prevalence of the
feudal system, the acquisition of property in land involved the
notion of allegiance to the prince within whose dominions it lay,
which might be inconsistent with that which the proprietor owed
to his native sovereign. It was also during the same rude ages
that the jus albinagii or droit d'aubaine was established ; by which
all the property of a deceased foreigner (movable and immovable)
was confiscated to the use of the State, to the exclusion of his
heirs, whether claiming ab intestato, or under a will of the dece-
dent, (a) In the progress of civilization, this barbarous and in-
hospitable usage has been, by degrees, almost entirely abolished.
This improvement has been accomplished either by municipal
regulations, or by international compacts founded upon the basis
of reciprocity. Previous to the French Eevolution of 1789, the
droit d'aubaine had been either abolished or modified, by treaties
between Prance and other States ; and it was entirely abrogated
by a decree of the Constituent Assembly, in 1791, with respect to
all nations, without exception and without regard to reciprocity.
This gratuitous concession was retracted, and the subject placed
on its original footing of reciprocity by the Code Napoleon, in
1803 ; but this part of the Civil Code was again repealed, by the
Ordinance of the 14th July, 1819, admitting foreigners to the right

of the testator ; II. The extent of the testator's power to dispose of the property ;

III. The forms and solemnities necessary to give the will its due attestation and
effect. If a will is made in execution of a power, it is valid if made in con-
formity with the law governing the granting of the power. The law of the
testator's domicil governs in determining — I. The construction of the will, as to
whether it does pass real estate ; II. What is real estate when the will purports
to pass it; III. The quantity or nature of the estate in lands which the devisee
takes, as in fee simple or for life, &c, if the domicil is also the locus rei sitce ;

IV. The designatio personarum ; V. The import of ambiguous terms. Still it is a
rule of construction, that, if the testator evidently refers to the law of the situs rei,
that will be invoked for the interpretation of the will.

See, on these points, Savigny's System, 1. viii. Bedfield's edition of Story's Con-
flict of Laws, §§ 474-479.]— D.

(a) Du Cange (Gloss. Med. iEvi, voce Albinagium et Albani) derives the term
from advenoz. Other etymologists derive it from alibi natus. During the Middle
Age, the Scots were called Albani in Trance, in common with all other aliens;
and as the Gothic term Albanach is even now applied by the Highlanders of Scot-
land to their race, it may have been transferred by the continental nations to all
foreigners.
138

PART II.] CRIMINAL LEGISLATION. § 82

of possessing both real and personal property in Prance, and of
taking by succession ah intestate, or by will, in the same manner
with native subjects. (F)

The analogous usage of the droit de detraction, or droit de retraite,
(jus detractus) by which a tax was levied upon the removal from
one State to another of property acquired by succession or testa-
mentary disposition, has also been reciprocally abolished in most
civilized countries.

The stipulations contained in the treaties of 1778 and 1800,
between the United States and Prance, for the mutual abolition
of the droit d'aubaine and the droit de detraction between the two
countries, have expired with those treaties ; 47 and the provision
in the treaty of 1794, between the United States and Great Britain,
by which the citizens and subjects of the two countries, who then
held lands within their respective territories, were to continue to
hold them according to the nature and tenure of their respective
estates and titles therein, was limited to titles existing at the sig-
nature of the treaty, and is rapidly becoming obsolete by the lapse
of time, (c) But by the stipulations contained in a great num-
ber of subsisting treaties, between the United States and various
powers of Europe and America, it is provided, that " where on the

(b) Rotteck und Welcker, Staats-Lexicon, art. Gastrecht, Band 6, § 362. Vattel,
liv. ii. ch. 8, §§ 112-114. Kliiber, Droit des Gens, Part II. tit. 1, ch. 2, §§ 32, 33.
Von Mayer, Corp. Jur. Confaed. Germanicae, torn. ii. p. 17. Merlin, Repertoire,
tit. Aubaine.

[47 The treaty of the United States with France, of 23 February, 1853, is intended
to authorize citizens of each country to hold real and personal estate in the other, in
the same manner with its own citizens ; but the treaty was made upon the theory that
each State of the Union had exclusive control over that subject within its own limits.
It accordingly takes the form of authorizing it as far as the laws of each State of the
Union permit, with an engagement on the part of the President to recommend to
the several States to pass laws to enable the treaty to operate, and with a right reserved
to France to govern herself by rules of reciprocity. U. S. Laws, x. 992. The better
opinion seems to be, that the treaty-making power of the general government is
sufficient, under our Constitution, to reach the objects of this treaty, and to establish,
by its own force, a law which shall be paramount in each State. Fairfax v. Hunter,
Crunch, vii. 627. Ware v. Hylton, Dall. iii. 242. Opinions of Att'y.-Gen. viii. 415.
Halleck's Inter. Law, 157, where a great many cases are cited in support of this
power in the general government. Kent's Comm. iv. 420. Jefferson's Works, iii. 365.
Treaties on this subject, more or less for the same general purpose, exist with France,
Russia, Austria, Naples, with most of the German States and of the States of South
America, and with Mexico and the Hawaiian Islands. U. S. Laws, viii. ix. x. and xi.,
under the name of each nation.] — D.
. (c) Kent's Comm. ii. 67-69, 5th edit.

139

§ 83 RIGHTS OF CIVIL AND [PART II.

death of any person holding real estate within the territories of
the one party, such real estate would, by the laws of the land,
descend on a citizen or subject of the other, were he not disquali-
fied by alienage, such citizen or subject shall be allowed a reason-
able time to sell the same, and to withdraw the proceeds without
molestation, and exempt from all duties of detraction on the part
of the government of the respective States. (cT>

Lexdomi- § ^* -^s ^° Personal property, the lex domicilii of its
ciiii. owner prevails over the law of the country where such

property is situated, so far as respects the rule of inheritance : —
Mobilia ossibus inhcerent, personam sequuntur. Thus the law of the
place, where the owner of personal property was domiciled at
the time of his decease, governs the succession ab intestato as to
his personal effects wherever they may be situated, (a) Yet it had
once been doubted, how far a British subject could, by changing
his native domicil for a foreign domicil without the British em-
pire, change the rule of succession to his personal property in
Great Britain ; though it was admitted that a change of domicil,
within the empire, as from England to Scotland, would have that
effect. (6) But these doubts have been overruled in a more
recent decision, by the Court of Delegates in England establish-
ing the law, that the actual foreign domicil of a British subject
is exclusively to govern, in respect to his testamentary dispo-
sition of personal property, as it would in the case of a mere
foreigner, (c)

So also the law of a place where any instrument, relating to
personal property, is executed by a party domiciled in that place,
governs, as to the external form, the interpretation, and the effect
of the instrument: Locus regit actum. Thus a testament of per-
sonal property, if executed according to the formalities required by
the law of the place where it is made, and where the party making
it was domiciled at the time of its execution, is valid in every other

(d) Treaty of 1828, between the United States and Prussia, art. 14. Elliot's Am.
Diplom. Code, i. 388.

(a) Huberus, Prselect. torn. ii. lib. i. tit. 3, de Conflict. Leg. §§ 14, 15. Bynker-
shoek, Quaest. Jur. Pub. lib. i. cap. 16. See also an opinion given by Grotius as
counsel in 1613, Henry's Foreign Law, App., 196 ; Merlin, Repertoire, tit. Loi, § 6,
No. 3 ; Folix, Droit International Prive, § 37.

(b) Per Sir J. Nicholl, in Curling v. Thornton, Addams' Eccles. Rep. ii. 17.

(c) Stanley v. Bernes, Haggard's Eccles. Rep. iii. 393-465. Moore v. Davell, iv.
346, 354.

140

PART II.] CRIMINAL LEGISLATION. § 84

country, and is to be interpreted and given effect to according to
the lex loci.

This principle, laid down by all the text-writers, was recently
recognized in England in a case where a native of Scotland, domi-
ciled in India, but who possessed heritable bonds in Scotland, as
well as personal property there, and also in India, having executed
a will in India, ineffectual to convey Scottish heritage ; and a
question having arisen whether his heir at law (who claimed the
heritable bonds as heir) was also entitled to a share of the movable
property as legatee under the will : It was held by Lord Chancel-
lor Brougham, in delivering the judgment of the House of Lords
affirming that of the court below, that the construction of the will,
and the legal consequences of that construction, must be deter-
mined by the law of the land where it was made, and where the
testator had his domicil, that is to say, by the law of England
prevailing in that country ; and this, although the will was made
the subject of judicial inquiry in the tribunals of Scotland ; for
these courts also are bound to decide according to the law of the
place where the will was made. (J)48

§ 84. The sovereign power of municipal legislation personal
also extends to the regulation of the personal rights of status-
the citizens of the State, and to every thing affecting their civil
state and ' condition.

It extends (with certain exceptions) to the supreme police over
all persons within the territory, whether citizens or not, and to all
criminal offences committed by them within the same, (a)

Some of these exceptions arise from the positive law of nations,
others are the effect of special compact.

There are also certain cases where the municipal laws of the
State, civil and criminal, operate beyond its territorial jurisdiction.
These are,

(d) Trotter v. Trotter, Wilson and Shaw's Rep. iii. 407-414.

[48 Story's Conflict of Laws, §§ 465-479. Burge's Col. and For. Laws, iv. 169, 217,
577-581, 588-590. Boullenois, ii. App. 38; i. 696-721. Folix, Conflit des Lois,
204-216, 346-360 (Revue Etr. et Franc. 1840). P. Voet de Stat. 255 (a.d. 1715).
Hertii Opera, de Coll. Leg. 112 (a.d. 1737). J. Voet, Ad. Pand. I. lib. i. pp. 44, 45;
lib. xxviii. tit. 1 ; II. lib. xxviii. lib. xxxviii. Eodenburg de Div. Stat. tit. 2, ch. 5.
Huberus, lib. i. tit. 3. Henry on Foreign Law, 97.] — D.

(a) " Leges cujusque imperii vim habent intra terminos ejusdem reipublicae, omnes-
que ei subjectos obligant, nee ultra. Pro subjectis imperio habendi sunt omnes, qui
intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commoren-
tur." Huberus, torn. ii. lib. i. tit. 3, de Conflict. Leg. § 2.

141

§ 85 RIGHTS OF CIVIL AND [PART II.

Laws re- I. Laws relating to the state and capacity of persons.
state^nV e In general, the laws of the State, applicable to the
peraonsymay c^v^ condition and personal capacity of its citizens,
operate ex- operate upon them even when resident in a foreign

tra-ternton- l r °

ally. country.

Such are those universal personal qualities which take effect
either from birth, such as citizenship, legitimacy, and illegitimacy ;
at a fixed time after birth, as minority and majority ; or at an
indeterminate time after birth, as idiocy and lunacy, bankruptcy,
marriage, and divorce, ascertained by the judgment of a competent
tribunal. The laws of the State affecting all these personal quali-
ties of its subjects travel with them wherever they go, and attach
to them in whatever country they are resident, (b)

This general rule is, however, subject to the following excep-
tions :

Natural- § ^5. -^ ^° ^ne right °f every independent sovereign
ization. State to naturalize foreigners and to confer upon them
the privileges of their acquired domicil.

Even supposing a natural-born subject of one country cannot
throw off his primitive allegiance, so as to cease to be responsible
for criminal acts against his native country, it has been deter-
mined, both in Great Britain and the United States, that he may
become by residence and naturalization in a foreign State entitled
to all the commercial privileges of his acquired domicil and citi-
zenship. Thus, by the treaty of 1794, between the United States
and Great Britain, the trade to the countries beyond the Cape of
Good Hope, within the limits of the East India Company's charter,
was opened to American citizens, whilst it still continued prohibited
to British subjects : it was held by the Court of King's Bench that
a natural-born British subject might become a citizen of the United
States, and be entitled to all the advantages of trade conceded
between his country and that foreign country ; and that the cir-
cumstance of his returning to his native country for a mere tem-
porary cause would not deprive him of those advantages.49

(b) Pardessus, Droit Commercial, Part VI. tit. 7, ch. 2, § 1. Folix, Droit Inter-
national Prive, liv. i. tit. 1, § 31. " Qualitates personales certo loco alicui jure impres-
sas, ubique circumferri et personam comitari, cum hoc effectu, ut ubivis locorum eo
jure, quo tales personae alibi gaudent vel subjecti sunt, fruantur et subjiciantur."
Huberus, torn. ii. lib. i. tit. 3, de Conflict. Leg. § 12.

[49 Naturalization. — Naturalization, in most of its aspects, belongs to the depart-
ment of municipal law, or private international law. Most questions involving the
142

PART II.] CRIMINAL LEGISLATION. § 86

§ 86. 2. The sovereign right of every independent sovereign
State to regulate the property within its territory con- risht °f ,

° r r J J every mde-

stitutes another exception to the rule. pendent

. . State over

Ihus the personal capacity to contract a marriage, as the property
to age, consent of parents, &c, is regulated by the law of tutorial
the State of which the party is a subject ; but the effects limits<
of a nuptial contract upon real property (immobilia) in another

private rights of a naturalized citizen to property and to commercial privileges and
exemptions, whether in war or peace, are tested by the fact of domicil rather than of
political citizenship. Public international law can seldom be concerned in the ques-
tion of political citizenship acquired by naturalization, unless the State of the natural-
ized citizen's birth makes some claim upon him which it could not make upon
an alien under the same circumstances : for instance, if it claims military service, or
compels him to remain in the country to perform civil duties, or should treat him as a
traitor if taken in arms in the service of his adopted country against the country of
his birth.

Every nation claims the right to give the complete character of a citizen to an
alien, without consulting the wish of the State of his birth. Most nations admit, that
if a native voluntarily emigrates and makes a permanent domicil in another country,
and receives from that country the full rights of citizenship, the country of his birth
cannot enforce claims upon him originating after his naturalization. It is the Eng-
lish doctrine, however, that the obligation of allegiance is for life. Yet Dr. Twiss
says of the English doctrine, that it is the creature of municipal law, and " finds no
countenance in the law of nations, as it is in direct conflict with the incontestable rule
of that law." Law of Nations, i. 231. How far nations that do not hold this extreme
doctrine may go, in enforcing obligations originating before naturalization, is by no
means settled in the practice of nations.

In the United States, the inclination of the judiciary had been to follow the rule of
the English common law, and to hold that neither a native nor a naturalized citizen
can throw off his allegiance without consent of the State. Kent's Comm. ii. 49.
Story on the Constitution, iii. 3, n. 1. Wharton's State Trials, 654. Opinions of
Attorney-General, viii. 157. But the legislative and executive departments have
acted upon the principle that actual expatriation and new naturalization, when the act
and the intent combine, not only deprive the citizen of all claim upon the protection
of his original country, but deprive that country of claims upon its former citizen
against the will of the country of his adoption. But no man can renounce allegiance
to a country in which he continues to reside, whatever forms he may go through.
Daily on Naturalization, 26. And, if a naturalized citizen returns to the country
of his birth, the United States has not interfered to protect him against the claims
of that country for duties actually due from him as a subject before his naturalization.
But it asserts a right to protect him against claims not ascertained and perfected
before that time. For instance, if a foreign subject has been completely enlisted into
the military service by conscription before expatriation, and voluntarily returns, the
United States does not protect him against the obligation to perform the military
duty ; but if, at the time of expatriation, his obligation was that of a general liability of
a class, which had not been ascertained and fixed upon him personally, the United
States does interfere for his protection. Mr. Cass, in a letter to the United States
Minister at Berlin, of July 8, 1859, says : " The right of expatriation cannot at this
day be doubted or denied in the United States. The idea has been repudiated, ever

143

§ 86 RIGHTS OF CIVIL AND [PART II.

State are determined by the lex loci rei sitce. Huberus, indeed lays
down the contrary doctrine, upon the ground that the foreign law,
in this case, does not affect the territory immediately, but only in

since the origin of our government, that a man is bound to remain for ever in the
country of his birth. . . . The doctrine of perpetual allegiance is a relic of barbarism,
which has been disappearing from Christendom during the last century." Mr.
Attorney- General Black, in the case of Amthor, a Bavarian, naturalized in the United
States, who returned to Bavaria, gave an opinion, in 1857, admitting the right to
renounce the citizenship of naturalization and resume that of birth, by an actual and
bond-Jide return, with family and property, and a change of permanent domicil. Mr.
Black said that no mode of renunciation was prescribed ; but, as the right was admitted,
if the fact and intent coincided and were sufficient to satisfy the government of the
United States, and Bavaria treated Amthor as a citizen, he could not claim the rights
of a citizen from the United States, or invoke its protection. In the war of 1812, Great
Britain threatened to punish as traitors its native subjects naturalized in the United
States and taken in arms. This was met by the arrest of British officers as hostages,
with a threat of retaliation, which settled the question practically for the time, the Brit-
ish Government afterwards including those native Britons in the cartels of exchange.
Annual Keg. 1813, p. 190 ; 1814, p. 182. Mr. Wheaton, while Minister at Berlin, declined
to interfere to protect a Prussian subject, naturalized in the United States and returned
to Prussia, from the military service. He said : " Had you remained in the United
States, or visited any foreign country except Prussia on your lawful business, you
would have been protected by the American authorities, at home and abroad, in the
enjoyment of your rights and privileges as a naturalized citizen of the United States.
But, having returned to the country of your birth, your native domicil and national
character revert, so long as you remain in the Prussian dominions ; and you are bound
in all respects to obey the laws exactly as if you had never emigrated." Mr. Wheaton
to Mr. Forsyth, July 29, 1840. Mr. Everett, Secretary of State, wrote to Mr.
Barnard, Jan. 14, 1853 : ^" If a Prussian subject chooses to emigrate to a foreign
country without obtaining the certificate which alone can discharge him from the
obligations of military service, he takes that step at his own risk. He elects to go
abroad under the burden of a duty he owes to his government. His departure is of
the nature of an escape from her laws ; and, if at any subsequent period, he is indis-
creet enough to return to his native country, he cannot complain if those laws are
executed to his disadvantage." Mr. Webster, when Secretary of State, took the
ground, that, if a country does not acknowledge the right of a native to renounce his
allegiance, it may enforce its claims if he is found within its jurisdiction. Mr. Cass,
Secretary of State, writes to our minister at Berlin, July 9», 1859 : " I confine the
foreign jurisdiction in regard to our naturalized citizens to such of them as were in
the army, or actually called into it, at the time they left Prussia ; that is, to the case of
actual desertion, or of refusal to enter the army after having been regularly drafted
and called into it by the government." The Prussian Government refused to admit
the distinction set up by the United States between inchoate and perfected obligations,
where a permit of emigration was not obtained, and claimed unlimited authority over
its returned subjects. Baron Manteufiel to Mr. Pay, Oct. 22, 1852. Still Prussia and
the other German States have avoided collision with the United States by granting
discharges on the application of the United States Minister. For the documents cited
above, see Senate Ex. Doc. No. 37, 36th Cong. 1st Sess. pp. 7, 49, 54, 135, 167.

Another question has been mooted between the United States and Prussia, as to
the right of naturalized Prussians, who left Prussia under a permit of emigration,
144

PART II.] CRIMINAL LEGISLATION. § 86

an incidental manner, and that by the implied consent of the
sovereign, for the benefit of his subjects, without prejudicing his
or their rights. But the practice of nations is certainly different,

to return to Prussia and reside there as American citizens, within the terms of the
treaty of 1828. In such case, the. Prussian Government claims the right, at its dis-
cretion, to order the person out of the country, or to put restrictions upon his resi-
dence. Baron Manteuffel to Mr. Wright, Nov. 9, 1857.

A similar question arose between France and the United States in the case of
Michel Zeiter in 1859-60. The French Government claimed military service from
Zeiter, on the ground that he emigrated and naturalized himself before he had satis-
fied the obligation of military service that lay upon him by law. The United States
Government contended that the rights of France did not extend to military duty, " the
performance of which has not been actually demanded of him before his emigration.
A prospective liability to service in the army is not sufficient. The obligation of
contingent duties, depending upon time, sortition, or events thereafter to occur, is not
recognized." Correspondence between Mr. Mason and Count Walewski, November,
1859 ; and Mr. Faulkner and M. Thouvenel, April, 1860. The case of Zeiter came
before the French judicial tribunals, and was decided in his favor.

Spain contends for an unlimited right over the returned subject for subsequent as
well as past obligations. The case of Gavino de Liano, Senate Ex. Doc. No. 38, 36th
Cong. p. 167.

During the civil war in the United States, the draft was confined to citizens, native
or naturalized, and " persons of foreign birth who shall have declared on oath their
intention to become citizens " (United-States Laws, xii. 731) ; and all such persons
were, for a time, prohibited from leaving the country.

On the subject of naturalization, see Folix, Droit Intern. Prive, i. 81-100. Kent's
Comm. i. lect. 4. Woolsey's Introd. § 66. Phillimore, Intern. Law, i. 350-354.
Folix, Kevue Franqaise et Etrangere, ii. 328. Martens' Nouv. Receuil, ii. De Beau-
dant, de la Naturalization. Westlake, Pr. Intern. Law. Twiss, Law of Nations,
i. ch. 9. New American Cyclopaedia, xii. " Naturalization." Heffter, Europ.
Volkerr. liv. i. ch. 1, § 4.

The Cases arising out of the Bombardment of Greytown. — In the cases arising out of the
bombardment of Greytown by the United-States fleet in 1854, when a good deal of
neutral as well as American property was destroyed, the rule was adopted by the
United States, and acquiesced in by the British and French governments, that, if a
person takes up a residence in a foreign place, and his property suffers there by
reason of belligerent acts committed against that place by another foreign nation, he
cannot have remuneration from the latter nation by the intervention of his own
sovereign. He must take the chances of the country in which he chooses to reside ;
and, if injury is done to his property by acts of war committed against that country,
his only claim, if any, is a personal one against the government of the country of his
residence, in which his own sovereign will not interest himself. The utmost that
such a citizen, domiciled abroad, can require of his own government is to see that no
discriminations are made against him in the belligerent acts of the nation attacking
the place, or by the nation under whose protection he is residing. See Mr. Marcy,
Secretary of State, to M. Sartiges, Feb. 26, 1857, Senate Ex. Doc. No. 9 ; and the
speeches of Lord Palmerston and the Attorney-General in Parliament, in June and
July, 1857. Hansard's Pari. Debates, cxlvi. 37-49, 1045.

The Cases arising out of the Bombardment of Antwerp. — Property of foreign citizens

13 145

§ 86 EIGHTS OF CIVIL AND [PART II.

and therefore no such consent can be implied to waive the local
law which has impressed certain indelible qualities upon immova-
ble property within the territorial jurisdiction.

deposited in the warehouses of the government of the Netherlands at Antwerp, before
the revolution of 1830, was destroyed by the Dutch, in the bombardment of that
place, in their attempt to defeat the revolution. The independence of Belgium was
established by the intervention of the great powers. These powers concurred in
holding that the foreign merchants could not ask their governments to make reclama-
tions on the Dutch Government after the independence of Belgium was acknowledged.
The powers, however, claimed compensation from the newly established State of
Belgium, on the ground that property so situated must be protected by the govern-
ment of the country in which it lay, which government was then the State of
Belgium, recognized as independent afterwards.

The Case of Mat-tin Koszta. — Martin Koszta, a Hungarian, had taken part with his
country in the civil war and fled to Turkey, where he was arrested, but released upon
a promise to leave Turkey. He came to the United States, and had acquired a resi-
dence there, and made the declaration preliminary to naturalization, but had not
become a citizen. In this state of things, he went to Smyrna for temporary com-
mercial purposes, and placed himself under the protection of the Consul of the United
States at Smyrna and their Charge d' Affaires at Constantinople, and was furnished
with a tezkerch (a passport) by them. He was seized by Austrian officials, and placed
in confinement on board an Austrian vessel of war in the harbor. The Turkish
authorities disavowed and protested against this act, as a violation of Turkish sov-
ereignty. The commander of a vessel of war of the United States demanded of the
Austrian vessel the release of Koszta, and prepared to open fire upon her, when Koszta
was, by agreement, placed under the protection and custody of the French Consul-
General, to await the action of the powers concerned. In the subsequent correspon-
dence upon this subject between the governments of the three countries involved,
the United States claimed the right to relieve a domiciled subject of the United
States, although not naturalized, from arrest of his person, made within the terri-
tories of a friendly State where he was temporarily sojourning for business purposes,
by the agents of any other State, although that of his birth ; and, if the arrest was in
violation of the sovereignty of the State within which it was made, and that State
could not or would not release the prisoner, the United States would do so by force,
within that territory. And, at all events, the objection of violation of territorial
sovereignty by a forcible release was not one which the arresting government could
make against the United States. Mr. Marcy to M. Hiilsemann, Sept. 26, 1853, Senate
Ex. Doc. No. 1, 33d Congress.

The Case of Simon Tousig. — This differed materially from that of Koszta. Tousig,
a subject of Austria, had acquired a domicil in the United States, but was not natural-
ized, and voluntarily returned to Austria with a passport from the American Depart-
ment of State. He was arrested on charge of offences committed before leaving
Austria. He appealed to the United States Minister for protection, who laid the case
before the Department of State. Mr. Marcy replied, that the passport was improperly
granted, being deliverable only to citizens ; and that, although a domiciled resident of
the United States, by voluntarily returning to Austria and placing himself under her
jurisdiction, he lost the protection of the United States. Koszta, on the other hand,
had not returned to Austria, but was arrested in Turkish territory, by Austrian agents,
while under the protection of the passport usually granted by the consuls of Christian
146

PART II.] CRIMINAL LEGISLATION. § 88

§ 87. As to personal property (mooilia) the lex loci contractus
or lex domicilii may, in certain cases, prevail over that of the place
where the property is situated. Huberus holds that not only the
marriage contract itself, duly celebrated in a given place, is valid
in all other places, but that the rights and effects of the contract,
as depending upon the lex loci, are to be equally in force every-
where. If this rule be confined to personal property, it may be
considered as confirmed by the unanimous authority of the public
jurists, who unite in maintaining the doctrine that the incidents
and effects of the marriage upon the property of the parties, wher-
ever situated, are to be governed by the law of the matrimonial
domicil, in the absence of any other positive nuptial contract.
But if there be an express ante-nuptial contract, the rights of the
parties under it are to be governed by the lex loci contractus®*

§ 88. By the general international law of Europe and Effect of
America, a certificate of discharge obtained by a bankrupt bankrupt

" g j i discharge

in the country of which he is a subject, and where the and title of

,..,,. ,.n assignees in

contract was made and the parties domiciled, is valid to another
discharge the debtor in every other country ; but the c° ry*
opinions of jurists and the practice of nations have been much
divided upon the question, how far the* title of his assignees or
syndics will control his personal property situated in a foreign
country, and prevent its being attached and distributed under the
local laws in a different course from that prescribed by the bank-
rupt code of his own country. According to the law of most
European countries, the proceeding which is commenced in the
country of the bankrupt's domicil draws to itself the exclusive
right to take and distribute the property. The rule thus estab-
lished is rested upon the general principle that personal (or mova-

nations in the Levant to residents of their respective countries, and respected by the
Turkish powers. Cong. Doc. 33d Congress : Ex. Doc. No. 41.] — D.

[50 The questions arising out of marriages made in a foreign country, whose laws
differ from those of the place of domicil of the parties, as to the capacity of the
parties to make the contract, the solemnities and conditions required by positive law,
and the effect of the marriage on the movable and immovable property of the par-
ties, have been fully treated, with the light of the latest judicial decisions and text-
writers, in Redfield's edition of Story's Conflict of Laws, chs. 5, 6.

See also Fergusson on Marriage and Divorce. Burge on Col. and For. Law, i. Part I.
Kent's Comm. ii. lect. 28. Huberus, lib. i. tit. 3, de Conflict. Leg. Hertii Opera, de
Coll. Leg. Pothier, Traite du Marriage. Boullenois, I. Rodenburg de Div. Stat.
Merlin, Repert. Autor. Marital. Henry on For. Laws. Le Brun, Traite de la Com-
munautes. Froland, Memoire.] — D.

147

§ 89 EIGHTS OF CIVIL AND [PART II.

ble) property is, by a legal fiction, considered as situated in the
country where the bankrupt had his domicil. But the principles
of jurisprudence, as adopted in the United States, consider the lex
loci rei sitce as prevailing over the lex domicilii in respect to credi-
tors, and that the laws of other States cannot be permitted to have
an extra-territorial operation to the prejudice of the authority,
rights, and interests of the State where the property lies. The
Supreme Court of the United States has, therefore, determined
that both the government under its prerogative priority, and pri-
vate creditors attaching under the local laws, are to be preferred
to the claim of the assignees for the benefit of the general creditors
under a foreign bankrupt law, although the debtor was domiciled
and the contract made in a foreign country, (a)

The Ux § 89. 3. The general rule as to the application of per-
^ often™" sonal statutes yields in some cases to the operation of the

causes ex- fex ]Q(£ contractuS.
ceptions to

this rule. Thus a bankrupt's certificate under the laws of his own

country cannot operate in another State, to discharge him from his
debts contracted with foreigners in a foreign country. And though
the personal capacity to enter into the nuptial contract as to age,
consent of parents, and prohibited degrees of affinity, <fcc, is gen-
erally to be governed by the law of the State of which the party is
a subject, the marriage ceremony is always regulated by the law
of the place where it is celebrated ; and if valid there, it is con-
sidered as valid everywhere else, unless made in fraud of the laws
of the country of which the parties are domiciled subjects.51

(a) Bell's Commentaries on the Law of Scotland, ii. 681-687. Hose's Cases in
Bankruptcy, i. 462. Kent's Commentaries on American Law, ii. 393, 404-408, 459,
5th edit. Cranch's Rep. v. 289, Harrison v. Sterry. Wheaton's Rep. xii. 153-163,
Ogden v. Saunders.

[51 This subject presents itself in several aspects as regards — I. The operation of
the discharge granted in the State of the bankrupt s domicil to bar proceedings against
him or his property, by citizens of other countries in their own courts. II. The title
of the assignee in bankruptcy to the property of the bankrupt in other countries.
III. His right to it as against proceedings by a creditor in a foreign country, com-
menced before the appointment of the assignee. IV. The effect of a sequestration
and transfer of property by force of mere statutory enactment in a foreign country,
irrespective of possession, and its retro-active power to divest intervening titles and pos-
session bond fide, and to invalidate prior judicial proceedings by a creditor. V. The
effect of a priority secured to certain classes of creditors, as against a foreign creditor
suing in a court of his own country, where property of the bankrupt is situated.
VI. The validity and effect of a private transfer of property to trustees by an in-
148

PART II.] CRIMINAL LEGISLATION. § 91

§ 90. II. The municipal laws of the State may also Lex loci
operate beyond its territorial jurisdiction, where a con- contractus-
tract made within the territory comes either directly or incident-
ally in question in the judicial tribunals of a foreign State.

A contract, valid by the law of the place where it is made, is,
generally speaking, valid everywhere else. The general comity
and mutual convenience of nations have established the rule, that
the law of that place governs in every thing respecting the form,
interpretation, obligation, and effect of the contract, wherever the
authority, rights, and interests of other States and their citizens
are not thereby prejudiced, (a)

§ 91. This qualification of the rule suggests the excep- Excep-

x« i • i ± •! t j_« a i tions to its

tions which arise to its application. And, operation.

1. It cannot apply to cases properly governed by the lex loci rei
sitce, (as in the case, before put, of the effect of a nuptial contract
upon real property in a foreign State,) or by the laws of another
State relating to the personal state and capacity of its citizens.

2. It cannot apply where it would injuriously conflict with the
laws of another State relating to its police, its public health, its
commerce, its revenue, and generally its sovereign authority, and
the rights and interests of its citizens.

Thus, if goods are sold in a place where they are not prohibited,
to be delivered in a place where they are prohibited, although the
trade is perfectly lawful by the lex loci contractus, the price cannot
be recovered in the State where the goods are deliverable, because
to enforce the contract there would be to sanction a breach of its
own commercial laws. But the tribunals of one country do not
take notice of, or enforce, either directly or incidentally, the laws
of trade or revenue of another State, and therefore an insurance of

solvent person, for the benefit of all creditors equally, or giving priority to certain
creditors, when it operates against the foreign creditor.

As this subject, like those of transfers of movable and immovable property by
deed or will, and of marital rights, belongs to private international law, it is enough to
refer to Story on Conflict of Laws (Redfield's), §§ 338, 403-423, 341 a, 347 a, 325 a
to s. Bell's Comm. ii. B. Merlin, Repertoire, Faillite et Banqueroute. Eodenburg
de Div. Stat. tit. 2. Burge's Col. and For. Laws, Part II.] — D.

(a) " Rectores imperiorum id comiter agunt, ut jura eujusque populi intra terminos
ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius
imperantis ejusque civium praejudicitur." Huberus, torn. ii. lib. i. tit. 3, de Conflict.
Leg. § 2. " Effecta contractuum, certo loco initorum, pro jure loci illius alibi quoque
observantur, si nullum inde civibus alienis creetur praejudicium, in jure sil^i quaesito."
lb. § 11.

13* 149

§ 92 RIGHTS OF CIYIL AND [PART II.

prohibited trade may be enforced in the tribunals of any other
country than that where it is prohibited by the local laws, (a)52

Foreign § 92. Huberus holds that the contract of marriage is to
marriages. ^e governed by the law of the place where it is celebrated,
excepting fraudulent evasions of the law of the State to which the
party is subject, (a) Such are marriages contracted in a foreign

(a) Pardessus, Droit Commercial, part. vi. tit. 7, ch. 2, § 3. Emerigon, Traite
<T Assurance, torn. i. pp. 212-215. Park on Insurance, 341, 6th edit. The moral
" equity of this rule has been strongly questioned by Bynkershoek and Pothier.

[52 Story, in his Conflict of Laws, regrets this state of the law, but admits it
to be settled too firmly perhaps to be shaken, except by legislation. Conflict of
Laws, § 257. Westlake, also (Pr. Intern. Law, § 199), condemns the principle, and
gives his opinion that each nation should refuse to take cognizance of a contract
which has for its object the violation of the revenue or navigation laws of another, or in-
demnity for losses incurred by such violation. Heffter (Europ. Volker. §§ 36-39) takes
.the same view of what the law should be, and cites a case decided by the Court of
Appeals for the Rhenish provinces, to the effect that a contract to smuggle goods into
another country was void as against good morals and the public interests. Of the
same opinion are Pothier (Assurance, n. 58), Kent (Comm. iii. 266-8), Marshall (In-
surance, 59-61), and Chitty (Commerce, 83).

This rule probably had its origin in the rival, retaliatory, and often permanently
hostile navigation and revenue systems of the great commercial nations. The unwil-
lingness of the courts of the United States to give effect to foreign bankrupt-laws,
against the interests of their own citizens, arose from a like jealousy of systems
which foreign countries adopt and alter at their pleasure; for the, courts of the
United States give effect to voluntary conveyances of property by parties themselves.
The same jealousy prevents courts enforcing the purely political laws of other
nations, and has always excluded from treaties for extradition, with the utmost care,
the cases of persons charged with any other than offences against the general morality
of nations. But courts in the United States have held that contracts are void, if made
in the United States with a view to excite war or insurrection in a friendly State, or
to furnish military supplies to citizens of a State at war with a State friendly to the
United States. Kennett v. Chambers, Howard's Rep. xiv. 38. So of a contract
made in one State which contemplates a violation of the police-laws for the preserva-
tion of health or morals of another State. Terrett v. Bartlett, Vermont Rep. xxi. 184.
Spalding v. Preston, lb. 9. See also Grell v. Levy, Jurist x. n.s. 210.] — D.

(a) " Si licitum est, eo loco ubi contractum et celebratum est, ubique validum erit,
effectumque habebit, sub eadem exceptione, prejudicii aliis non creandi." Huberus,
de Conflict. Leg. 1. i. tit. 3, § 8. He puts, as an example of this exception, the case
of parties going into another country, merely to evade the law of their own as to
majority and guardianship. " Ssepe fit, adolescentes sub curatoribus agentes, fur-
tivos amores nuptiis conglutinare cupientes, abeant in Frisiam Orientalem, aliave loca,
in quibus curatorum consensus ad matrimonium non requiritur, juxta leges Romanas,
quae apud nos hac parte cessant. Celebrant ibi matrimonium, et mox redeunt in
patriam. Ego ita existimo, hanc rem manifeste pertinere ad eversionem juris nostri ;
et ideo non esse magistratus, huic obligatos, e jure gentium, ejusmodi nuptias agnos-
cere et ratas habere. Multoque magis statuendum est, eos contra jus gentium facere
videri, qui oivibus alieni imperii sua facilitate, jus patriis legibus.contrarium, scientes,
volentes, impertiuntur." De Conflict. Leg., Id. § 123.
150

PART II.] CRIMINAL LEGISLATION. § 93

State, and according to its laws, by persons who are minors, or
otherwise incapable of contracting, by the law of their own country.
But according to the international marriage law of the English law.
British Empire, a clandestine marriage in Scotland, of parties ori-
ginally domiciled in England, who resort to Scotland, for the sole
purpose of evading the English marriage act, requiring the consent
of parents or guardians, is considered valid in the English Ecclesi-
astical courts.53 This jurisprudence is said to have been adopted
upon the ground of its being a part of the general law and practice
of Christendom, and that infinite confusion and mischief would
ensue, with respect to legitimacy, succession, and other personal
and proprietary rights, if the validity of the marriage contract
was not determined by the law of the place where it was made.
The same principle has been recognized between the different
States of the American Union, upon similar grounds of public
policy, (fr)54

§ 93. On the other hand, the age of consent required French law.
by the French Civil Code is considered, by the law of France, as a
personal quality of French subjects, following them wherever they
remove ; and, consequently, a marriage by a Frenchman, within
the required age, will not be regarded as valid by the French
tribunals, though the parties may have been above the age re-
quired by the law of the place where it was contracted. (a)55

[53 By the act of 19 & 20 Vict. ch. 96, "no irregular marriage contracted in Scotland
by declaration, acknowledgment, or ceremony, shall be valid, unless one of the parties
had at the date thereof his or her usual place of residence there, or had lived in Scot-
land twenty-one days next preceding such marriage. " Stephens's (Blackstone's)
Commentaries, ii. 269.] — D.

(b) Haggard's Cons. Rep. ii. 428-433. Kent's Commentaries, ii. 93.

[54 Story's Conflict of Laws, § 124, Redfield's note 5. Burge's Col. and For. Laws,
i. 192. Woolsey's Introd. § 74. Halleck's Intern. Law, 157. Steele v. Braddell, Milw.
Cons. Rep. i. 1. Warrenden v. Warrenden, Blight's Rep. ix. 129. Brook v. Brook,
House of Lords Cases, ix. Fergusson on Marr. and Div. 63. Medway v. Needham,
Massachusetts Rep. xvi. 157. Putnam v. Putnam, Pick. Rep. viii. 433. W. Cam-
bridge v. Lexington, Pick. Rep. i. 506.] — D.

(a) Merlin, Repertoire, tit. Loi, § 6. Toullier, Droit Fran9ais, torn. i. Nos. 118, 576.

p xhe Cour Imperiale, in 1861, enforced this rule in the case of the marriage of
Jerome Bonaparte to Miss Patterson, contracted in the United States in 1803, valid by
the law of the place of celebration. Jerome Bonaparte had not attained the required
age ; and official notice of the disability under the French law had been given to the
parents of the bride before the marriage. The Pope refused to annul this marriage, on
the application of Napoleon I. Jerome, notwithstanding, married a princess of Wiir-
temberg, his American wife being alive. The case arose on a claim of the son by
the American marriage, Jerome Napoleon Bonaparte, to a share in the division of his

151

§ 94 EIGHTS OF CIVIL AND [PART II.

3. Wherever, from the nature of the contract itself, or the law of
the place where it is made, or the expressed intention of the parties,
the contract is to be executed in another country, every thing which
concerns its execution is to be determined by the law of that coun-
try. Those writers who affirm that this exception extends to every
thing respecting the nature, the validity, and the interpretation of
the contract, appear to have erred, in supposing that the authorities
are at variance on this question. They will be found, on a critical
examination, to establish the distinction between what relates to
the validity and interpretation, and what relates to the execution,
of the contract. By the usage of nations, the former is to be de-
termined by the lex loci contractus, the latter by the law of the
place where it is to be carried into execution. (7>)56

Lex fori. § 94. 4. As every sovereign State has the exclusive
right of regulating the proceedings, in its own courts of justice,
the lex loci contractus of another country cannot apply to such cases
as are properly to be determined by the lex fori of that State where
the contract is brought in question.

Thus, if a contract made in one country is attempted to be
enforced, or comes incidentally in question, in the judicial tribu-
nals of another, every thing relating to the forms of proceeding, the
rules of evidence, and of limitation, (or prescription,) is to be deter-
mined by the law of the State where the suit is pending, not of that
where the contract is made, (a)57

father's estate. The French rule would have no effect out of France. Story's Conflict
of Laws, § 90. The British Royal-Marriage Act prohibits marriage by certain mem-
bers of the royal family without the consent of the sovereign. Under this, it was held
that the marriage of His Royal Highness the Duke of Sussex, celebrated at Rome,
and admitted to be valid there, was void in England, the consent of the sovereign
having been withheld. See Westlake, Pr. Intern. Law, § 348.

British statutes give the same validity as if celebrated in England to marriages
solemnized abroad, in the chapels or houses of ambassadors, or before resident consuls,
or chaplains in the army within their lines. 4 Geo. IV., and 12 & 13 Yict.

A statute of the United States of 1860 gives efficacy to marriages before American
consuls, as if celebrated at home.

For the details of the decisions of the conflicts of laws respecting marriage, see
Bishop on Marr. and Div. § 125. Story's Conflict of Laws, § 113. Opinions of Attor-
neys-General (U. States), vii. 22.]— D.

(6) Folix, Droit International Prive, § 74.

[56 Story's Conflict of Laws, §§ 242, 260, 263-266, 279 a, 280-283, 309, 314.] — D.

(a) Kent's Commentaries, ii. 459, 5th edit. Folix, Droit International Prive, § 76.

[W Story's Conflict of Laws, §§ 557-576. Savigny, § 374, p. 277. Don v. Lipp-
man, C. C. & Fin. v. 1. Boullenois, Ob. 33, 46. Rodenburg, de Div. Stat. tit. 2.
Woolsey's Introd. § 73.] — D.
152

PART II.] CRIMINAL LEGISLATION. § 95

§ 95. III. The municipal institutions of a State may Foreign
also operate beyond the limits of its territorial iurisdic- sovereign,

. his ambas-

tion, in the following cases: — sador,army,

1. The person of a foreign sovereign, going into the within the
territory of another State, is, by the general usage and another" °
comity of nations, exempt from the ordinary local juris- state*
diction. Eepresenting the power, dignity, and all the sovereign
attributes of his own nation, and going into the territory of another
State, under the permission which (in time of peace) is implied
from the absence of any prohibition, he is not amenable to the
civil or criminal jurisdiction of the country where he temporarily
resides, (a)

2. The person of an ambassador, or other public minister,
whilst within the territory of the State to which he is delegated,
is also exempt from the local jurisdiction. His residence is con-
sidered as a continued residence in his own country, and he retains
his national character, unmixed with that of the country where he
locally resides. (5)

3. A foreign army or fleet, marching through, sailing over, or
.stationed in the territory of another State, with whom the foreign
sovereign to whom they belong is in amity, are also, in like manner,
exempt from the civil and criminal jurisdiction of the place, (c)

If there be no express prohibition, the ports of a friendly State
are considered as open to the public armed and commissioned
ships belonging to another nation, with whom that State is at
peace. Such ships are exempt from the jurisdiction of the local
tribunals and authorities, whether they enter the ports under the
license implied from the absence of any prohibition, or under an
express permission stipulated by treaty. But the private vessels
of one State, entering the ports of another, are not exempt from
the local jurisdiction, unless by express compact, and to the extent
provided by such compact.58

(a) Bynkershoek, de Foro Legat. cap. iii. § 13, and cap. ix. § 10.

(b) Vide infra, Part III. ch. 1.

(c) " Exceptis tamen ducibus et generalibus, alicujus exercitiis, vel classis mari-
time, vel ductoribus etiam alicujus navis militaris, nam isti in suos milites, gentem,
et naves, libere jurisdictionem sive voluntariam sive contentiosam, sive civilem, sive
criminalem, quod occupant tanquam in suo proprio, exercere possunt," etc. Casare-
gis, Disc. 136, 174.

I58 The author is understood to have qualified this general statement respecting
private vessels, in his review of Ortolan's Diplomatic de la Mer, in vol. ii. of the

153

§ 96 RIGHTS OF CIVIL AND [PART II.

The ship § 96. The above principles, respecting the exemption
Exchange. 0f vesseis belonging to a foreign nation from the local
jurisdiction, were asserted by the Supreme Court of the United
States, in the celebrated case of The Exchange, a vessel which
had originally belonged to an American citizen, but had been
seized and confiscated at St. Sebastien, in Spain, and converted
into a public armed vessel by the Emperor Napoleon, in 1810,
and was reclaimed by the original owner, on her arrival in the
port of Philadelphia.59

In delivering the judgment of the Court in this case, Mr.
Chief Justice Marshall stated that the jurisdiction of courts of
justice was a branch of that possessed by the nation as an inde-
pendent sovereign power. The jurisdiction of the nation, within
its own territory, is necessarily exclusive and absolute. It is sus-
ceptible of no limitation not imposed by itself. Any restriction
upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction, and
an investment of that sovereignty, to the same extent, in that
power which could impose such restriction.

All exceptions, therefore, to the full and complete power of a
nation, within its own territories, must be traced up to the consent

Eevue Etr. et Franc. The treaty of 1853 between France and the United States
adopts, as to private vessels, substantially the distinction made in the French law,
as laid down and explained in § 102. The state of international law on the subject of
private vessels in foreign ports is judiciously explained by Mr. Halleck in his treatise,
pp. 171-2. It may be said to be this : So far as regards acts done at sea before her
arrival in port, and acts done on board in port, by members of the crew to one another,
and so far as regards the general regulation of the rights and duties of those belonging
on board, the vessel is exempt from local jurisdiction ; but, if the acts done on board
affect the peace of the country in whose port she lies, or the persons or property of its
subjects, to that extent that State has jurisdiction. The local authorities have a right
to visit all such vessels, to ascertain the nature of any alleged occurrence on board.
Of course, no exemption is ever claimed for injuries done by the vessel to property or
persons in port, or for acts of her company not done on board the vessel, or for their
personal contracts or civil obligations or duties relating to persons not of the ship's
company.] — D.

[59 In the case of the Charles et George (Martens' Causes Celebres, v. 605), the
French Government claimed the exemption of a public ship for a private vessel engaged
on a private commercial enterprise, on the ground that she had on board an agent of
the French Government to see that she did not violate the law of France forbidding the
slave trade. The Portuguese Government had arrested the vessel for being engaged in
that trade in Portuguese waters. The exemption was denied by Portugal, who yielded
to the demand for restoration only on the ground of inability to resist the superior powrer
of France. France refused to submit the case to arbitration. No European power
offered aid to Portugal. The case has painfully the look of mere vis major.] — D.
154

PART II.] CRIMINAL LEGISLATION. § 97

of the nation itself. They could flow from no other legitimate
source.

This consent might be either express or implied. In the latter
case it is less determinate, exposed more to the uncertainties of
construction ; but, if understood, not less obligatory.

The world being composed of distinct sovereignties, possessing
equal rights and equal independence, whose mutual benefit is
promoted by intercourse with each other, and by an interchange
of those good offices which humanity dictates and its wants re-
quire, all sovereigns have consented to a relaxation in practice,
under certain peculiar circumstances, of that absolute and com-
plete jurisdiction, within their respective territories, which sov-
ereignty confers.

This consent might, in some instances, be tested by common
usage, and by common opinion growing out of that usage. A
nation would justly be considered as violating its faith, although
that faith might not be expressly plighted, which should suddenly,
and without previous notice, exercise its territorial jurisdiction in
a manner not consonant to the usages and received obligations of
the civilized world.

This perfect equality and absolute independence of sovereigns,
and this common interest impelling them to mutual intercourse,
has given rise to a class of cases, in which every sovereign is under-
stood to waive the exercise of a part of that complete, exclusive
territorial jurisdiction, which has been stated to be the attribute of
every nation.

§ 97. 1. One of these was the exemption of the person Exemp-
of the sovereign from arrest or detention within a foreign person of6

tprri tnrv the foreiSn

territory. sovereign

If he enters that territory with the knowledge and fr°™ the

J ° local juris-

license of its sovereign, that license, although containing diction.
no express stipulation exempting his person from arrest, was uni-
versally understood to imply such stipulation.

Why had the whole civilized world concurred in this construc-
tion ? The answer could not be mistaken. A foreign sovereign
was not understood as intending to subject himself to a jurisdic-
tion incompatible with his dignity and the dignity of his nation,
and it was to avoid this subjection that the license had been
obtained. The character of the person to whom it was given, and
the object for which it was granted, equally required that it should

155

§ 98 RIGHTS* OF CIVIL AND [PART II.

be construed to impart full security to the person who had obtained
it. This security, however, need not be expressed ; it was implied
from the circumstances of the case.

Should one sovereign enter the territory of another, without
the consent of that other, expressed or implied, it would present
a question which did not appear to be perfectly settled, a decision
of which was not necessary to any conclusion to which the court
might come in the case under consideration. If he did not thereby
expose himself to the territorial jurisdiction of the sovereign
whose dominions he had entered, it would seem to be because all
sovereigns impliedly engage not to avail themselves of a power over
their equal, which a romantic confidence in their magnanimity had
placed in their hands.60

Exem - § ^' ^' ^ secon(i case? standing on the same prin-
tion of ciples with the first, was the immunity which all civilized

foreign min- . . .

isters from nations allow to foreign ministers.

jurisdic- Whatever might be the principle on which this imnra-

tion. n^.y might he established,, whether we consider the minis-

ter as in the place of the sovereign he represents, or by a political
fiction suppose him to be extra-territorial, and, therefore, in point
of law, not within the jurisdiction of the sovereign at whose court
he resides ; still the immunity itself is granted by the governing
power of the nation to which the minister is deputed. This fiction
of extra-territoriality could not be erected and supported against
the will of the sovereign of the territory. He is supposed to assent
to it.

This consent is not expressed. It was true that in some coun-
tries, and in the United States among others, a special law is
enacted for the case. But the law obviously proceeds on the
idea of prescribing the punishment of an act previously unlawful,
not of granting to a foreign minister a privilege which he would not
otherwise possess. The assent of the local sovereign to the very
important and extensive exemptions from territorial jurisdiction
which are admitted to attach to foreign ministers, is implied from
the consideration, that, without such exemptions, every sovereign
would hazard his own dignity by employing a public minister
abroad. His minister would owe temporary and local allegiance

[60 For a case of a foreign sovereign also a subject in the country of the forum, see
Duke of Brunswick v. the King of Hanover, House of Lords Cases, ii. 1. Westlake's
Pr. Intern. Law, § 137.] — D.
156

PART II.] CRIMINAL LEGISLATION. § 99

to?a foreign prince, and would be less competent to the objects of
his mission. A sovereign committing the interests of his nation
with a foreign power to the care of a person whom he has selected
for that purpose, cannot intend to subject his minister in any
degree to that power; and, therefore, a consent to receive him
implies a consent that he shall possess those privileges which his
principal intended he should retain, privileges which are essential
to the dignity of his sovereign, and to the duties "he is bound to
perform.

In what case a public minister, by infracting the laws of the
country in which he resides, may subject himself to other punish-
ment than will be inflicted by his own sovereign, was an inquiry
foreign to the present purpose. If his crimes be such as to render
him amenable to the local jurisdiction, it must be because they
forfeit the privileges annexed to his character ; and the minister,
by violating the conditions under which he was received as the
representative of a foreign sovereign, has surrendered the im-
munities granted on those conditions ; or, according to the true
meaning of the original consent, has ceased to be entitled to
them.

§ 99. A third case, in which a sovereign is under- Exemp.
stood to cede a portion of his territorial jurisdiction, was tjon from
where he allows the troops of a foreign prince to pass jurisdiction

. . of foreign

through his dominions. troops pass-

In such case, without any express declaration waiving Sf terr°i-g
jurisdiction over the army to which this right of passage tory'
has been granted, the sovereign who should attempt to exercise it
would certainly be considered as violating his faith. By exercising
it, the purpose for which the free passage was granted would be
defeated, and a portion of the military force of a foreign, inde-
pendent nation would be diverted from those national objects and
duties to which it was applicable, and would be withdrawn from
the control of the sovereign whose power and whose safety might
greatly depend on retaining the exclusive command and dis-
position of this force. The grant of a free passage, therefore,
implies a waiver of all jurisdiction over the troops during their
passage, and permits the foreign general to use that discipline and
to inflict those punishments which the government of his army
may require.

14 157

§ 100 RIGHTS OF CIVIL AND [PAET II.

But if, without such express permission, an army should be led
through the territories of a foreign prince, might the territorial
jurisdiction be rightfully exercised over the individuals .composing
that army ?

Without doubt, a military force can never gain immunities of
any other description than those which war gives, by entering a
foreign territory against the will of its sovereign. But if his con-
sent, instead of being expressed by a particular license, be ex-
pressed by a general declaration that foreign troops may pass
through a specified tract of country, a distinction between such
general permission and a particular license is not perceived. It
would seem reasonable, that every immunity which would be con-
ferred by a special license, would be, in like manner, conferred by
such general permission.

It was obvious that the passage of an army through a foreign
territory would probably be, at all times, inconvenient and injuri-
ous, and would often be imminently dangerous to the sovereign
through whose dominions it passed. Such a passage would break
down some of the most decisive distinctions between peace and
war, and would reduce a nation to the necessity of resisting by war
an act not absolutely hostile in its character, or of exposing itself
to the stratagems and frauds of a power whose integrity might be
doubted, and who might enter the country under deceitful pre-
texts. It is for reasons like those that the general license to
foreigners, to enter the dominions of a friendly power, is never
understood to extend to a military force ; and an army marching
into the dominions of another sovereign without his special per-
mission, may justly be considered as committing an act of hostility ;
and, ev^n if not opposed by force, acquires no privilege by its
irregular and improper conduct. It might, however, well be ques-
tioned whether any other than the sovereign of the State is capa-
ble of deciding that such military commander is acting without a
license.

Exemp- § 100. But the rule which is applicable to armies did
eign shipsof not appear to be equally applicable to ships of war enter-
therportsriofg mg tne ports of a friendly power. The injury inseparable
under^n11' fr°m the march of an army through an inhabited coun-
expressor try, and the dangers often, indeed generally, attending
mission. it, do not ensue from admitting a ship of war without
158

PART II.] CRIMINAL LEGISLATION. § 100

special license into a friendly port. A different rule, therefore,
with respect to this species of military force, had been generally
adopted. .If, for reasons of State, the ports of a nation generally, or
any particular ports, be closed against vessels of war generally,
or against 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.

The treaties between civilized nations, in almost every instance,
contain a stipulation to this effect in favor of vessels driven in
by stress of weather or other urgent necessity. In such cases
the sovereign is bound by compact to authorize foreign vessels
to enter his ports, and this is a license which he is not at liberty to
retract.

If there be no treaty applicable to the case, and the sovereign,
from motives deemed adequate by himself, permits his ports to
remain open to the public 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 for distinguishing their case from that of vessels which
enter by express assent.

The whole reasoning, upon which such exemption had been
implied in the case of a sovereign or his minister, applies with
full force to the exemption of ships of war in the case in ques-
tion.

" It is impossible to conceive," said Vattel, " that a prince who
sends an ambassador, or any other minister, can have any in-
tention of subjecting him to the authority of a foreign power f
and this consideration furnishes an additional argument, which
completely establishes the independence of a public minister. If
it cannot be reasonably presumed that his sovereign means to
subject him to the authority of the prince to whom he is sent,
the latter, in receiving the minister, consents to admit him on the
footing of independence ; and thus there exists between the two
princes a tacit convention, which gives a new force to the natural
obligation." (a)

Equally impossible was it to conceive, that a prince who stipu-

(a) Yattel, Droit des Gens, liv. iv. ch. 7, § 92.

159

§ 101 RIGHTS OF CIVIL AND [PART II.

lates 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 juris-
diction of a foreign sovereign.. And if this could not be presumed,
the sovereign of the port must be considered as having conceded the
privilege to the extent in which it must have been understood to
be asked.

. § 101. According to the judgment of the Supreme

tion between Court of the United States, where, without treaty, the
private ves- ports of a nation are open to the public and private ships
ses* of a friendly power, whose subjects have also liberty,

without special license, to enter the country for business or amuse-
ment, a clear distinction was 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.

When private individuals of one nation spread themselves through
another as business or caprice may direct, mingling indiscriminately
with the inhabitants of that other ; or when merchant vessels enter
for the purposes of trade, it would be obviously inconvenient and
dangerous to society, and would subject the laws to continual in-
fraction, and the government to degradation, if such individuals
did not owe temporary and local allegiance, and were not amenable
to the jurisdiction of the country. Nor can the foreign sovereign
have any motive for wishing such exemption. His subjects, then,
passing into foreign countries, are not employed by him, nor are
they engaged in national pursuits. Consequently there are power-
ful motives for not exempting persons of this description from the
jurisdiction of the country in which they are found, and no motive
for requiring it. The implied license, therefore, under which they
tenter, can never be construed to grant such exemption.

But the situation of a public armed ship was, in all respects,
different. She constitutes a part of the military force of her nation,
acts under the immediate and direct command of the sovereign, is
employed by him in national 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 seriously affecting his power and his dignity. The
implied license, therefore, under which such vessel enters a friendly
port, may reasonably be construed, and it seemed to the court ought
to be construed, as containing an exemption from the jurisdiction
160

PART II.] CRIMINAL LEGISLATION. § 101

of the sovereign, within whose territory she claims the rites of
hospitality.

Upon these principles, by the unanimous consent of nations, a
foreigner is amenable to the laws of the place ; but certainly, in
practice, nations had not yet asserted their jurisdiction over the
public armed ships of a foreign sovereign, entering a port open for
their reception.

Bynkershoek, a public jurist of great reputation, had indeed
maintained that the property of a foreign sovereign was not distin-
guishable, by any legal exemption, from the property of an ordinary
individual ; and had quoted several cases in which courts of justice
had exercised jurisdiction over cases in which a foreign sovereign
was made a party defendant, (a)

Without indicating any opinion on this question, it might safely
be affirmed, that there is a manifest distinction between the pri-
vate property of a person who happens to be a prince and that
military force which supports the sovereign power, and maintains
the dignity and independence of a nation. A prince, by acquiring
private property in a foreign country, may possibly be considered
as subjecting that property to the territorial jurisdiction ; he may
be considered as, so far, laying down the prince and assuming
the character of a private individual ; but he cannot be presumed
to do this with respect to any portion of that armed force which
upholds his crown and the nation he is intrusted to govern.

The only applicable case cited by Bynkershoek was that of
the Spanish ships of war, seized in 1668, in Flushing, for a debt
due from the King of Spain. In that case the States-General
interposed ; and there is reason to believe, from the manner in
which the transaction is stated, that either by the interference of
government, or by the decision of the tribunal, the vessels were
released. (6)

This case of the Spanish vessels was believed to be the only case

(a) Bynkershoek, de Foro Legat. cap. iv.

(b) " Anno 1668, privati quidam Regis Hispanici creditores, tres ejus regni naves
bellicas, quae portum Flissingensem subiverant, arresto detinuerunt, ut inde ipsis satis-
fieret, Rege Hispanico ad certum diem per epistolam in jus vocato ad judices Flissin-
genses ; sed ad legati Hispanici expostulationes Ordines Generales, 12 Dec. 1668,
decreverunt, Zelandise Ordines curare vellent, naves illas continuo demitterentur
liberse, admoneretur tamen per literas Hispaniaa Regina, ipsa curare vellet, ut illis
creditoribus, in causa, justissima, satisfieret, ne repressalias, quas imploraverunt, lar-
giri tenerentur." Bynkershoek, cap. iv.

14* 161

§ 101 EIGHTS OF CIYIL AND [PART II.

furnished by the history of the world, of an attempt made by an
individual to assert a claim against a foreign prince, by seizing the
armed vessels of the nation. That this proceeding was at once
arrested by the government, in a nation which appears to have
asserted the power of proceeding against the private property of
the prince, would seem to furnish no feeble argument in support
of the universality of the opinion in favor of the exemption claimed
for ships of war. The distinction made in the laws of the United
States between public and private ships, would appear to proceed
from the same opinion.

Without doubt, the sovereign of the place is capable of destroy-
ing this implication. He may claim and exercise jurisdiction,
either by employing force, or by subjecting such vessels to the
ordinary tribunals. But until such power be exerted in a man-
ner not to be misunderstood, the sovereign cannot be considered
as having imparted to the ordinary tribunals a jurisdiction which
it would be a breach of faith to exercise. Those general statutory
provisions, therefore, which are descriptive of the ordinary juris-
diction of the judicial tribunals, which give an individual whose
property has been wrested from him, a right to claim that property
in the courts of the country in which, it is found, ought not, in the
opinion of the Supreme Court, to be so construed as to give them
jurisdiction in a case in which the sovereign power had implicitly
consented to waive its jurisdiction.

The court came to the conclusion, that the vessel in question
being a public armed ship, in the service of a foreign sovereign,
with whom the United States were at peace, and having entered an
American port open for her reception, on the terms on which ships
of war are generally permitted to enter the ports of a friendly
power, must be considered as having come into the American ter-
ritory under an implied promise that, while necessarily within it
and demeaning herself in a friendly manner, she should be exempt
from the jurisdiction of the country, (c)61

(c) Craneh's Rep. vii. 135-147, The Schooner Exchange.

[01 It has recently been decided by the Supreme Court of Massachusetts, that a
vessel owned and employed by the government of the United States, as an instru-
mentality for the performance of its public duties, cannot be proceeded against by a
citizen, even to enforce a lien which attached before she became a public vessel.
Briggs v. The Light-ships, Allen's Rep., xi. It may be presumed that the comity of
nations will extend to public property of friendly States the exemption which public
policy requires a State to maintain for its own.] — D.
162

PART II.] CRIMINAL LEGISLATION. § 102

Law of § 102. The maritime jurisprudence of France, in re-

tothe^ spect to foreign private vessels entering the French ports
erivat°enves- f°r tne PurPoses 0I> trade, appears to be inconsistent with
seis from the the principles established in the above judgment of the

local juris- jt i «/ <->

diction. Supreme Court of the United States ; or, to speak more
correctly, the legislation of France waives, in favor of such ves-
sels, the exercise of the local jurisdiction to a greater extent than
appears to be imperatively required by the general principles of
international law. As it depends on the option of a nation to
annex any conditions it thinks fit to the admission of foreign ves-
sels, public or private, into its ports, so it may extend, to any degree
it may think fit, the immunities to which such vessels, entering
under an implied license, are entitled by the general law and usage
of nations.

The law of France, in respect to offences and torts committed on
board foreign merchant vessels in French ports, establishes a two-
fold distinction between :

1. Acts of mere interior discipline of the vessel, or even crimes
and offences committed by a person forming part of its officers and
crew, against another person belonging to the same, where the peace
of the port is not thereby disturbed.

2. Crimes and offences committed on board the vessel against per-
sons not forming part of its officers and crew, or by any other than
a person belonging to the same, or those committed by the officers
and crew upon each other if the peace of the port is thereby dis-
turbed. /

In respect to acts of the firstf class, the French tribunals decline
taking jurisdiction. The French law declares that the rights of
the power to which the vessel belongs, should be respected, and
that the local authority should not interfere, unless its aid is
demanded. These acts, therefore, remain under the police and
jurisdiction of the State to which the vessel belongs. In respect to
those of the second class, the local jurisdiction is asserted by those
tribunals. It is based on the principle, that the protection accorded
to foreign merchantmen in the French ports cannot divest the ter-
ritorial jurisdiction, so far as the interests of the State are affected ;
that a vessel admitted into a port of the State is of right subjected
to the police regulations of the place ; and that its crew are amena-
ble to the tribunals of the country for offences committed on board
of it against persons not belonging to the ship, as well as in actions

163

§ 103 BIGHTS OF CIVIL AND [PAET II.

for civil contracts entered into with them ; that the territorial juris-
diction for this class of cases is undeniable.

It is on these principles that the French authorities and tribu-
nals act, with regard to merchant ships lying within their waters.
The grounds upon which the jurisdiction is declined in one class
of cases, and asserted in the other, are stated in a decision of the
Council of State, pronounced in 1806. This decision arose from
a conflict of jurisdiction between the local authorities of Prance
and the American consuls in the French ports, in the two following
cases :

§ 103. The first case was that of the American

The case °

of The merchant vessel, The Newton, in the port of Antwerp ;

Newton. . i i -i i i • • i i

where the American consul and the local authorities both
claimed exclusive jurisdiction over an assault committed by one of
the seamen belonging to the crew against another, in the vessel's
boat. The second was that of another American vessel, The Sally,
in the port of Marseilles, where exclusive jurisdiction was claimed
both by the local tribunals and by the American consul, as to a
severe wound inflicted by the mate on one of the seamen, in
the alleged exercise of discipline over the crew. The Council of
State pronounced against the jurisdiction of the local tribunals
and authorities in both cases, and assigned the following reasons
for its decision :

" Considering that a neutral vessel cannot be indefinitely regard-
ed as a neutral place, and that the protection granted to such vessels
in the French ports cannot oust the territorial jurisdiction, so far
as respects the public interests of the State ; that, consequently,
a neutral vessel admitted into the ports of the State is rightfully
subject to the laws of the police of that place where she is received ;
that her officers and crew are also amenable to the tribunals of the
country for offences and torts (a) committed by them, even on board
the vessel, against other persons than those belonging to the same,
as well as for civil contracts made with them ; but that, in respect
to offences and torts committed on board the vessel, by one of the
officers and crew against another, the rights of the neutral power
ought to be respected, as. exclusively concerning the internal disci-
pline of the vessel, in which the local authorities ought not to inter-
fere, unless their protection is demanded, or the peace and tran-

(a) The term used in the original is delits, which includes every wrong done to the
prejudice of individuals, whether they he delits publics or delits prives.
164

PART II.] CRIMINAL LEGISLATION. § 103

quillitj of the port is disturbed, — the Council of State is of
opinion that this distinction, indicated in the report of the Grand
Judge, Minister of Justice, and conformable to usage, is the only
rule proper to be adopted, in respect .to this matter ; and applying
this doctrine to the two specific cases in which the consuls of the
United States have claimed jurisdiction ; considering that one of
these cases was that of an assault committed in the boat of the
American ship Newton, by one of the crew upon another, and
the other case was that of a severe wound inflicted by the mate
of the American ship Sally upon one of the seamen, for having
made use of the boat without leave ; is of opinion that the juris-
diction claimed by the American consuls ought to be allowed, and
the French tribunals prohibited from taking cognizance of these
cases." (S)62

(b) Ortolan, Kegles Internationales de la Mer, torn. i. pp. 293-298. Appendice,
Annexe H. p. 441.

[62 Case of the Creole. — The brig Creole, an American merchant- vessel, sailed
from a port in Virginia in 1841, bound to New Orleans, having on board one hundred
and thirty-five slaves. A portion of the slaves rose against the officers and got
complete possession of the vessel, killing one passenger and severely wounding the
captain and others of the crew, in the struggle. They compelled the mate, under
threat of death, to navigate the vessel to Nassau, where she arrived and came to
anchor. At the request of the United States Consul at Nassau, nineteen of the
slaves, who were identified as having taken part in the acts of violence, were arrested
by the local authorities, and held to await the decision of the British Government. As
to the rest of the slaves, there was a question whether they got on shore and gained
their liberty by their own act, or through the positive and officious interference^ of the
colonial authorities, while the vessel was under control of the Consul and master. Mr.
Webster addressed a letter to Lord Ashburton on this subject. His position is, that
" if vessels of the United States, pursuing lawful voyages from port to port along
their own shore, are driven by stress of weather, or carried by unlawful force, into
British ports, the government of the United States cannot consent that the local
authorities in those ports shall take advantage of such misfortunes, and enter them,
for the purpose of interfering with the condition of persons or things on board, as
established by their own laws. If slaves, the property of citizens of the United States,
escape into British territories, it is not expected that they will be restored. In that
case, the territorial jurisdiction of England will have become exclusive over them,
and must decide their condition. But slaves on board of American vessels lying in
British waters are not within the exclusive jurisdiction of England, or under the
exclusive operation of English law ; and this founds the broad distinction between
the cases. If persons guilty of crimes in the United States seek an asylum in the
British dominions, they will not be demanded until provision for such cases be made
by treaty ; because the giving up of criminals, fugitives from justice, is agreed and
understood to , be a matter in which every nation regulates its conduct according to
its own discretion. It is no breach of comity to refuse such surrender. On the other
hand, vessels of the United States, driven by necessity into British ports, and staying
there no longer than the necessity exists, violating no law, and having no intent to

165

§ 104 RIGHTS OF CIVIL AND [PART II.

§ 104. Whatever may be the nature and extent of the Exemp-
exemption of the public or private vessels of one State }j° orpnvate
from the local jurisdiction in the ports of another, it -is ^7oca?°m
evident that this exemption, whether express or im- jurisdiction

t -i • n does not

plied-, can never be construed to justify acts of hostility extend to
committed by such vessel, her officers, and crew, in vio- ofVggres-8
lation of the law of nations, against the security of thTsecurity
the State in whose ports she is received, or to exclude of the state-
the local tribunals and authorities from resorting to such measures
of self-defence as the security of the State may require.

This just and salutary principle was asserted by the French
Court of Cassation, in 1832, in the case of the private Sardinian

violate any law, will claim, and there will be claimed for them, protection and
security, freedom from molestation and from all interference with the character or
condition of persons or things on board. In the opinion of the government of the
United States, such vessels, so driven and so detained by necessity in a friendly port,
ought to be regarded as still pursuing their original voyage, and turned out of their
direct course by disaster or by wrongful violence ; that they ought to receive all
assistance necessary to enable them to resume that direct course ; and that interfe-
rence and molestation by the local authorities, where the whole voyage is lawful both
in act and intent, is ground for just and grave complaint/' Webster's Works, vi.
303-318.

Mr. Wheaton wrote an article jrpon this subject in the Revue Fran9aise et
Etrangere, ix. 345, in which he took the ground, that the Creole never passed under
British jurisdiction so as to affect the legal relations of persons and things on board,
or to give the British Government such jurisdiction over the persons on board as
to make the case one of extradition; and that the master, with such aid as he
could obtain from the Consul or otherwise, was entitled not only to carry to the
United States all the persons on board, whether held as slaves or criminals, without
molestation from the authorities, but to receive the assistance of those authorities
to regain and hold possession of his vessel.

The United States Government demanded the restoration of the slaves, which
was refused by the British Government, on the ground, that, being in fact at liberty
within the British dominions, they could not be seized there when charged with no
crime against British law, and while there was no treaty of extradition. This case was
then submitted, as a private claim for pecuniary indemnity, to the Commission under
the convention of Feb. 8, 1853. The commissioners being unable to agree, it was, by
the terms of the convention, referred to an umpire, Mr. Joshua Bates, of London.

In deciding the case, Mr. Bates stated two propositions of law, —

First, That, as the slaves were perfectly quiet, and on board an American ship
under the command of the captain, the authorities should have seen that the captain
was protected in his rights over them.

Second, That " the municipal law of England cannot authorize a magistrate to
violate the law of nations, by invading with an armed force the vessel of a friendly
nation that has committed no offence, and forcibly dissolving the relations which, by
the laws of his country, the master is bound to preserve and enforce on board."

There would seem to be no doubt of the latter proposition ; but the facts which Mr.
166

PAET II.] CRIMINAL LEGISLATION. § 104

steam-vessel, The Carlo Alberto, which, after having landed on the
southern coast of France the Duchess of Berry and several of her
adherents with the view of exciting civil war in that country, put
into a French port in distress. The judgment of the Court, pro-
nounced upon the conclusions of M. Dupin, ain£, Procureur-Gene-
ral, reversed the decision of the inferior tribunal releasing the
prisoners taken on board the vessel, upon the following grounds :

1. That the principle of the law of nations according to which
a foreign vessel, allied or neutral, is considered as forming part
of the territory of the nation to which it belongs, and consequently
is entitled to the privilege of the same inviolability with the ter-
ritory itself, ceases to protect a vessel which commits acts of hos-
tility in the French territory, inconsistent with its character of ally,
or neutral ; as if, for example, such vessel be chartered to serve
as an instrument of conspiracy against the safety of the State, and
after having landed some of the persons concerned in these acts,
still continues to hover near the coast, with the rest of the con-
spirators on board, and at last puts into port under pretext of
distress.

2. That supposing such allegation of distress be founded in
fact, it could not serve as a plea to exclude the jurisdiction of the

Bates considered to be proved were hardly sufficient for its application. At the same
time, they made a stronger case than was necessary for the first proposition. Although
there was no "invading with an armed force, and forcibly dissolving the relations,"
the authorities still not only gave no aid to the master, but officially announced to the
negroes that they were free to go or stay on board, and this while there were private
boats alongside ready to take them off, in which were men apparently ready to resist
the use of force by the master to retake them. As to the former proposition of Mr.
Bates, I do not find a course of precedents acted upon or acquiesced in by nations ;
and it seems open to speculation. It may be conceded, as a general statement, that
local authorities ought to give active aid to a master in defending and enforcing,
against the inmates of his vessel, the rights with which his own nation has intrusted
him, if these rights are of a character generally recognized among all nations, and not
prohibited by the law of the place. But it may well admit of doubt, whether the local
authorities must give active aid to the master against persons on board his vessel who
are doing no more than peacefully and quietly dissolving, or refusing to recognize, a
relation which exists only by force of the law of the nation to which the vessel be-
longs, if the law is peculiar to that nation, and one which the law of the other country
regards as against common right and public morals. The local authorities might not
interfere to dissolve such relations, where the peace of the port or the public morals
are not put in peril ; but they might, it would seem, decline to lend force to compel
their continuance. The most tenable ground for Mr. Bates's decision is, that the
facts, as he found them, showed an active and officious, though not forcible, interven-
tion by the authorities to encourage the negroes in leaving the vessel, and to discour-
age the master from using such means as he had to prevent it.] — D.

167

§ 105 RIGHTS OF CIVIL AND [PART II.

local tribunals, taking cognizance of a charge of high treason
against the persons found on board, after the vessel was compelled
to put into port by stress of weather, (a)

§ 105. So also it has been determined by the Supreme
emption of Court of the United States, that the exemption of foreign
from the public ships, coming into the waters of a neutral State,
dictiorTdoes from the local jurisdiction, does not extend to their prize
to°theirend snips or goods captured by armaments fitted out in its
taken1n°ds Por^s? m violation of its neutrality, and of the laws enacted
violation of to enforce that neutrality.

the neutral- nti i • • n • i r» i n • i

ity of the buch was their judgment in the case ot the Spanish
which'theV0 sn*P Santissima Trinidad, from which the cargo had been
are brought. ^aken out? on ^ie ^g^ seas? ^y armed vessels commissioned

by the United Provinces of the Rio de la Plata, and fitted out in
the ports of the United States in violation of their neutrality.
The tacit permission, in virtue of which the ships of war of a
friendly power are exempt from the jurisdiction of the country,
cannot be so interpreted as to authorize them to violate the rights
of sovereignty of the State, by committing acts of hostility against
other nations, with an armament supplied in the ports where they
seek an asylum. In conformity with this principle, the court
ordered restitution of the goods claimed by the Spanish owners, as
wrongfully taken from them, (a)63

(a) Sirey, Recueil General de Jurisprudence, torn, xxxii. partie i. p. 578. M.
Dupin, aine, has published his learned and eloquent pleading in this memorable case,
in his Collection des Requisitoires, torn. i. p. 447.

(a) Wheaton's Rep. vii. 352, The Santissima Trinidad.

[63 It may be considered as established law, now, that the public vessels of a
foreign State, coming within the jurisdiction of a friendly State, are exempt from all
forms of process in private suits. Nor will such ships be seized, or in any way inter-
fered with, by judicial proceedings in the name and by authority of the State, to
punish violations of public laws. In such cases, the offended State will appeal
directly to the other sovereign. Any proceeding against a foreign public ship would be
regarded as an unfriendly if not hostile act, in the present state of the law of nations.
Prizes made by a foreign vessel of war in violation of territorial rights, or when the
capturing vessel had been fitted out in violation of neutrality, have been seized in
admiralty on proceedings for restitution ; but that is on the ground that the prizes
were not vessels of war of the capturing State. If they shall have become such by
actual transfer to that sovereign, and by an actual and bond fide setting-forth and com-
missioning as public vessels, they will not be so proceeded against by a municipal
tribunal, but will have the immunity of public vessels. The Exchange, Cranch, vii.
116. See note 49, infra, on Neutrality or Foreign-Enlistment Acts. It has recently
been decided by the Supreme Court of Massachusetts, that a citizen having a lien
upon a vessel, which would have been enforceable had the vessel been private
168 ^

PART II.] CRIMINAL LEGISLATION. § 106

§ 106. Both the public and private vessels of every Juris-
nation, on the high seas, and out of the territorial limits fhfst^tf
of any other State, are subject to the jurisdiction of the i^m pri-"
State to which they belong. vate vessels

, . on the high

Vattel says that the domain of a nation extends to all seas.
its just possessions ; and by its possessions we are not to under-
stand its territory only, but all the rights (droits) it enjoys. And
he also considers the vessels of a nation on the high seas as por-
tions of its territory, (a) Grotius holds that sovereignty may be
acquired over a portion of the sea, ratione personarum, ut si classis
qui maritimus est exercitus, aliquo in loco maris se habeat. But, as
one of his commentators, Rutherforth, has observed, though there
can be no doubt about the jurisdiction of a nation over the persons
who compose its fleets when they are out at sea, it does not fol-
low that the nation has jurisdiction over any portion of the ocean
itself. It is not a permanent property which it acquires, but a
mere temporary right of occupancy in a place which is comriion to
all mankind, to be successively used by all as they have occa-
sion. (5)

property, cannot proceed against her, if, after the lien attached, she became the
property of the United States, and was held by the government as one of the instru-
strumentalities by which it discharged its public duties. (See note 61, supra.) In the
case before the court, the vessel was fitted out for a lightship, but, at the time of the suit,
had not been put upon her station, and was still lying in a private dock. Briggs v.
The Lightships, Allen's Rep. xi. In the opinion, the court says, " The exemption of a
public ship of war of a foreign government from the jurisdiction of our courts depends
rather upon its public than upon its military character." It seems now established,
both in England and America, that no vessel or other property used by the govern-
ment for public purposes, whether those purposes be military, fiscal, or of police, are
subject to judicial proceedings, without the consent of the government, whether to
enforce a lien, or an open claim, whatever be the nature of the demand. Buchanan
v. Alexander, Howard, iv. 20. Harris v. Dennie, Peters, iii. 292 ; The South Caro-
lina, Bee, 422. The Lord Hobart, Dodson, ii. 103. The Comus, cited in Dodson, ii,
464. The Marquis of Huntley, Haggard, iii. 247. The Merchant, Marvin on Sal-
vage, § 122. The Thomas A. Scott, Law Times, n.s. x. 726. The Athol, W. Rob. i.
379. The Birkenhead, Notes of Cases, vi. 365. The Resolute, Law Times, xxxiii.
80. Rogers v. Ragendro Dutt, Moore, P. C. xiii. 236. The Swallow, Swabey, i. 30.
The Inflexible, lb. 32. United States v. Barney, HalFs Law Journal, iii. 128. Osborn
v. Bank of U. States, Wheaton's Rep. ix. 870. If this general rule of immunity is to
be considered as established in municipal law in favor of the State, it may well be
presumed that nations will be prepared to extend its benefits, on like principles, to the
public property of friendly States.] — D.

(a) Vattel, liv. i. ch. 19, § 216, liv. ii. ch. 7, § 80.

(6) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. iii. § 13. Rutherforth's Inst. vol. ii.
b. ii. ch. 9, §§ 8, 19.

15 169

§ 107 RIGHTS OF CIVIL AND [PART II.

This jurisdiction which the nation has over its public and pri-
vate vessels on the high seas, is exclusive only so far as respects
offences against its own municipal laws. Piracy and other offences
against the law of nations, being crimes not against any particular
State, but against all mankind, may be punished in the competent
/tribunal of any country where the offender may be found, or into
which he may be carried, although committed on board a foreign
vessel on the high seas, (c)64

Though these offences may be tried in the competent court of
any nation having, by lawful means, the custody of the offenders,
yet the right of visitation and search does not exist in time of
peace. This right cannot be employed for the purpose of execu-
ting upon foreign vessels and persons on the high seas the prohibi-
tion of a traffic which is neither piratical nor contrary to the law
of nations, (such, for example, as the slave-trade,) unless the
visitation and search be expressly permitted by international com-
pact. (d)65

Every State has an incontestable right to the service of all its
members in the national defence, but it can give effect to this right
only by lawful means. Its right to reclaim the military service of
its citizens can be exercised only within its own territory, or in
some place not subject to the jurisdiction of any other nation.
The ocean is such a place, and any State may unquestionably there
exercise, on board its own vessels, its right of compelling the mili-
tary or naval services of its subjects. But whether it may exercise
the same right in respect to the vessels of other nations, is a ques-
tion of more difficulty.

§ 107. In respect to public commissioned vessels belonging to
the State, their entire immunity from every species and purpose of
search is generally conceded. As to private vessels belonging to
the subjects of a foreign nation, the right to search them on the
high seas, for deserters and other persons liable to military and na-
val service, has been uniformly asserted by Great Britain, and as
constantly denied by the United States. This litigation between
the two nations, who by the identity of their origin and language

(c) Sir L. Jenkin's Works, i. 714.

[64 See note 83, infra, on Piracy.] — D.

(d ) The Louis, Dodson's Adm. Rep. ii. 238. The Antelope, Wheaton's Rep. X;
122, 123. The Marianna Flora, Wheaton's Rep. xi. 39, 40 ; et vide infra, § 120 et seq.

[65 See note 85, infra, on the Slave Trade.] — D.
170

PART II.] CRIMINAL LEGISLATION. § 108

are the most deeply interested in the question, formed one of the
principal objects of the late war between them. It is to be hoped
that the sources of this controversy may be dried up by the substi-
tution of a registry of seamen, and a system of voluntary enlistment
with limited service, for the odious practice of impressment which
has hitherto prevailed in the British navy, and which can never be
extended, even to the private ships of a foreign nation, without
provoking hostilities on the part of any maritime State capable of
resisting such a pretension, (a)

§ 108. The subject was incidentally passed in review,
though not directly treated of, in the negotiations which ment of sea-
terminated in the treaty of Washington, 1842, between men'
the United States and Great Britain. In a letter addressed by the
American negotiator to the British plenipotentiary on the 8th
August, 1842, it was stated that no cause had produced to so
great an extent, and for so long a period, disturbing and irritating
influences on the political relations of the United States and Eng-
land, as the impressment of seamen by the British cruisers from
American merchant vessels.

Prom the commencement of the French revolution to the break-
ing out of the war between the two countries in 1812, hardly a year
elapsed without loud complaint and earnest remonstrance. A deep
feeling of opposition to the right claimed, and to the practice exer-
cised under it, and not unfrequently exercised without the least
regard to what justice and humanity would have dictated, even if
the right itself had been admitted, took possession of the public
mind of America ; and this feeling, it was well known, co-operated
with other causes to produce the state of hostilities which ensued.

At different periods, both before and since the war, negotiations
had taken place between the two governments, with the hope of
finding some means of quieting these complaints. Sometimes the
effectual abolition of .the practice had been requested and treated
of; at other times, its temporary suspension ; and, at other times,
again, the limitation of its exercise and some security against its
enormous abuses.

A common destiny had attended these efforts : they had all
failed. The question stood at that moment where it stood fifty
years ago. The nearest approach to a settlement was a conven-

(a) Edinburgh Review, xi. art. 1. Mr. Canning's Letter to Mr. Monroe, Septem-
ber 23, 1807. American State-Papers, vi. 103.

171

§ 108 RIGHTS OF CIVIL AND [PART II.

tion, proposed in 1803, and which had come to the point of sig-
nature, when it was broken off in consequence of the British
government insisting that the " Narrow Seas " should be ex-
pressly excepted out of the sphere over which the contemplated
stipulations against impressment should extend. The American
minister, Mr. King, regarded this exception as quite inadmissible,
and chose rather to abandon the negotiation than to acquiesce in
the doctrine which it proposed to establish.

England asserted the right of impressing British subjects. She
asserted this as a legal exercise of the prerogative of the crown ;
which prerogative was alleged to be founded on the English law
of the perpetual and indissoluble allegiance of the subject, and his
obligation, under all circumstances, and for his whole life, to ren-
der military service to the crown whenever required.

This statement, made in the words of eminent British jurists,
showed at once that the English claim was far broader than the
basis on which it was raised. The law relied on was English law ;
the obligations insisted on were obligations between the crown of
England and its subjects. This law and these obligations, it was
admitted, might be such as England chose they should be. But
then they must be confined to the parties. Impressment of seamen,
out of and beyond the English territory, and from on board the
ships of other nations, was an interference with the rights of other
nations ; it went, therefore, further than English prerogative could
legally extend ; and was nothing but an attempt to enforce the
peculiar law of England beyond the dominions and jurisdiction
of the crown. The claim asserted an extra-territorial authority
for the law of British prerogative, and assumed to exercise this
extra-territorial authority, to the manifest injury of the citizens
and subjects of other States, on board their own vessels, on the
high seas.

Every merchant vessel on those seas was rightfully considered
as part of the territory of the country to which it belonged. The
entry, therefore, into such vessel, by a belligerent power, was an
act of force, and was prima facie a wrong, a trespass, which could
be justified only when done for some purpose allowed to form a
sufficient justification by the law of nations. But a British cruiser
enters an American vessel in order to take therefrom supposed
British subjects ; offering no justification therefor under the law
of nations, but claiming the right under the law of England re-
172

PART II.] CRIMINAL LEGISLATION. § 108

specting the king's prerogative. This could not be defended.
- English soil, English territory, English jurisdiction, was the ap-
propriate sphere for the operation of English law. The ocean was
the sphere of the law of nations ; and any merchant vessel on the
high seas was, by that law, under the protection of the laws of her
own nation, and might claim immunity, unless in cases in which
that law allows her to be entered or visited.

If this notion of perpetual allegiance, and the consequent power
of the prerogative, were the law of the world ; if it formed part of
the conventional code of nations, and was usually practised, like the
right of visiting neutral ships, for the purpose of discovering and
seizing enemy's property ; then impressment might be defended as
a common right, and there would be no remedy for the evil until
the international code should be altered.66 But this was by no
means the case. There was no such principle incorporated into
the code of nations. The doctrine stood only as English law, not
as international law ; and English law could not be of force beyond
English dominion. Whatever duties or relations that law creates
between the sovereign and his subjects, could only be enforced
within the realm, or within the proper possessions or territory of
the sovereign. There might be quite as just a prerogative right to
the property of subjects as to their personal services, in an exigency
of the State ; but no government thought of controlling, by its own
laws, the property of its subjects situated abroad ; much less did
any government think of entering the territory of another power,
for the purpose of seizing such property and appropriating it to
its own use. As laws, the prerogatives of the crown of England
have no obligation on persons or property domiciled or situated
abroad.

" When, therefore," says an authority not unknown or unre-
garded on either side of the Atlantic, " we speak of the right of a
State to bind its own native subjects everywhere, we speak only of

[66 But surely, on the question of the right to enter, and exercise authority on
board of, a foreign vessel, to enforce a municipal demand, it is immaterial whether
the demand, as it is not belligerent, be one which every nation recognizes as valid,
or one which is peculiar to the nation enforcing it. It is not the validity of the
demand, under municipal law or international law, that is in question, but the right
to enforce it on board a foreign vessel. It is a question of territorial jurisdiction
solely. And if, by the words " usually practised, like the right of visiting neutral
ships," the author means, for the purpose of the argument, to assume impressment
from foreign vessels to be, like the practice he refers to, a recognized right, he would
seem to assume the question in dispute.] — T>.

15* 173

§ 109 EIGHTS OF CIVIL AND [PART II.

its own claim and exercise of sovereignty over them, when they
return within its own territorial jurisdiction, and not of its right
to compel or require obedience 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 persons and things
within its own territory, according to its sovereign will and public
polity."

impress- § 109. But impressment was subject to objections of a
men— fCon^" m"acn wider range. If it could be justified in its applica-
tinued. tion to those who are declared to be its only objects, it
still remained true that, in its exercise, it touched the political
rights of other governments, and endangered the security of their
own native subjects and citizens. The sovereignty of the State
was concerned in maintaining its exclusive jurisdiction and pos-
session over its merchant ships on the seas, except so far as the
law of nations justifies intrusion upon that possession for special
purposes ; and all experience had shown that no member of a
crew, wherever born, was safe against impressment when a ship
was visited.

In the calm and quiet which had succeeded the late war, a con-
dition so favorable for dispassionate consideration, England herself
had evidently seen the harshness of impressment, even when exer-
cised on seamen in her own merchant service ; and she had adopted
measures, calculated if not to renounce the power or to abolish the
practice, yet, at least, to supersede its necessity, by other means of
manning the royal navy, more compatible with justice and the
rights of individuals, and far more conformable to the principles
and sentiments of the age.

Under these circumstances, the government of the United States
had used the occasion of the British minister's pacific mission, to
review the whole subject, and to bring it to his notice and to that
of his government. It had reflected on the past, pondered the
condition of the present, and endeavored to anticipate, so far as it
might be in its power, the probable future; and the American
negotiator communicated to the British minister the following, as
the result of those deliberations.

The American government, then, was prepared to say that the

practice of impressing seamen from American vessels could not

hereafter be allowed to take place. That practice was founded on

principles which it did not recognize, and was invariably attended

174

PART II.] CRIMINAL LEGISLATION. § 109

by consequences so unjust, so injurious, and of such formidable
magnitude, as could not be submitted to.

In the early disputes between the two governments, on this so
long contested topic, the distinguished person to whose hands were
first intrusted the seals of the Department of State, declared, that
" the simplest rule will be, that the vessel being American shall be
evidence that the seamen on board are such."

Fifty years' experience, the utter failure of many negotiations,
and a careful reconsideration of the whole subject when the pas-
sions were laid, and no present interest or emergency existed to
bias the judgment, had convinced the American government that
this was not only the simplest and best, but the only rule which
could be adopted and observed, consistently with the rights and
honor of the United States, and the security of their citizens.
That rule announced, therefore, what would hereafter be the prin-
ciple maintained by their government. In every regularly docu-
mented American merchant vessel, the crew who navigated it would
find their protection in the flag which was over them, (a) 67

(a) Wheaton's Hist. Law of Nations, 737-746. Mr. Webster's Letter to Lord
Ashburton, August 8, 1842.

[67 Impressment of Seamen. — This subject has been confused by the questions which
have been discussed in connection with it. Oi>e of these is the conflicting claims of
Great Britain and the United States to the allegiance of the naturalized seaman,
growing out of the theory of inalienable allegiance asserted by the former nation
and denied by the latter. But that is not a maritime question. Great Britain
makes no claim to the inalienable allegiance of a seaman which it does not make to
that of all other persons. Suppose the United States had conceded the general
principle, that naturalization' is powerless against the claim of an original sovereign,
— it would not have touched the question where and how that claim should be
asserted. As has been said before (note 66), the question is one of territorial juris-
diction, and not of merits. It presents itself in the same form if the seaman has
never been naturalized. The question of territorial jurisdiction has also been obscured
by connecting it with the admitted belligerent right of search and capture. The right
in question has nothing to do with that belligerent right. The seaman is not an
enemy, or contraband ; nor is the vessel in which he is serving, or on board which
he is a passenger, either violating neutrality, or engaged in the enemy's service.
On the contrary, the ground of the demand is, that the seaman is a subject of the
capturing power, and owes it allegiance and service, which it requires him to render.
The demand is the same in principle upon all other persons as upon seamen, and
upon men who left their country when infants as upon actual deserters from public
service. It can be enforced in profound peace as well as during a war, if enforceable
at all. And it is immaterial what the immediate object of the sovereign is in demand-
ing his subject, whether to try him as a criminal or to put him to service, and to what
service,, and on what grounds due. Admitting the validity of the demand, — the ques-
tion remains, whether it can be enforced on board the vessel of a friendly State at sea.

When the proposition is brought down to its strict limits, it is found to be this, and

175

§ 110 RIGHTS OF CIVIL AND [PART II.

Consular § HO. The municipal laws and institutions of any
jurisdiction. State may operate beyond its own territory, and within
the territory of another State, by special compact between the two
States.

no more : Can a State* take from a merchant-vessel of a friendly State, at sea, a person
on whom it has a sovereign claim, assumed to be valid ? It is sufficient to state this
proposition, to ensure its rejection. The truth is, the necessities of a great maritime
belligerent led it to assert this claim to secure seamen for its fleets, at a time when
the rules of maritime international law were not as well settled or understood as
now ; and when, perhaps, it was possible to cite some analogous practices occasion-
ally enforced, and yielded to of necessity, in earlier times of still obscurer law. To
make the claim less odious and more defensible on usage, it was limited to seamen
who owed naval service to the State, and to times when the State was engaged in
war. At last, to give it further countenance, it was disclaimed as a general right,
even in such cases, and appended as an incident to the admitted belligerent right
of search. In the royal declaration of 1812, on the occasion of the American war,
the Prince Regent says it is not claimed that Great Britain can stop and search a
foreign vessel to find and remove British seamen ; but that it is claimed that, if, in
the exercise of the right of belligerent search, a British seaman happens to be found
on board, he maybe removed. (Ann. Reg. 1813, p. 2.) It will be seen that this
reduces the claim from one resting on a general principle to an exception from a
principle, depending upon its incidental if not accidental quality to reverse its char-
acter into a right. To sustain it in this limited sense, a usage of nations must be
shown ; for no one will pretend, in this age of international law, that a belligerent
cruiser, finding nothing that he can claim under laws of war, can, on closing his
search and visit, take away with hirn all persons or things he may happen to find to
which his State has a municipal claim. There is neither usage nor principle to that
effect ; nor would the practice now be tolerated nor probably asserted by any civilized
nation. In the discussions that arose out of the case of the Trent, neither of the
parties to the correspondence, and no writer on the subject, pretended that Mason and
Slidell could be removed as citizens, rebels, or criminals. A right to take them out,
as distinct from the arrest of the Trent, as a prize proceeding, was not claimed by
the United States Government, and their release was placed on that ground. The
only justification possible was one to be drawn from a probable ancient practice of
taking enemies from neutral vessels ; but that justification the United States declined
to invoke, and no nation would probably now assert or admit it. See note 89, infra,
on Carrying Hostile Persons or Papers.

English writers, of late, have either been silent on the right of impressment, or
have stated it in restricted terms, attached to no principle or usage, or have repu-
diated it. The claim wras defended, in the last generation, in an article in the Edin-
burgh Review, xi. 22, as to which Professor Bernard says, " The reviewer confounds
a belligerent right, permitted by international law to be exercised over a neutral
ship, with a claim to enforce English municipal law on board a foreign ship, which
international law no more allows in time of war than in time of peace." Notes on the
Trent Case, 70. An article in the same Review, of January, 1862, admits that the
right was municipal and not under the law of nations, and indirectly abandons it.
A writer in the Quarterly Review, of January, 1862, says, "We imputed to the
ships in which those sailors might be found no breach of neutrality, and conse-
quently we had no right to take them before a prize court ; and therefore, if the right
was to be exercised, it was necessary that it should be exercised by our naval officers.
176

PART II.] CRIMINAL LEGISLATION. § 110

Such are the treaties by which the consuls and other commercial
agents of one nation are authorized to exercise, over their own
countrymen, a jurisdiction within the territory of the State where
they reside. The nature and extent of this peculiar jurisdiction
depend upon the stipulations of the treaties between the two States.
Among Christian nations it is generally confined to the decision of
controversies in civil cases, arising between the merchants, seamen,
and other subjects of the State, in foreign countries ; to the regis-
tering of wills, contracts, and other instruments executed in pres-
ence of the consul ; and to the administration of the estates of
their fellow-subjects, deceased within the territorial limits of the
consulate. The resident consuls of the Christian powers in Tur-
key, the Barbary States, and other Mohammedan countries, exer-
cise both civil and criminal jurisdiction over their countrymen, to
the exclusion of the local magistrates and tribunals. This juris-
diction is ordinarily subject, in civil cases, to an appeal to the
superior tribunals of their own country. The criminal jurisdic-
tion is usually limited to the infliction of pecuniary penalties ;
and, in offences of a higher grade, the functions of the consul are
similar to those of a police magistrate, or juge cTinstruetion. He
collects the documentary and other proofs, and sends them, to-
gether with the prisoner, home to his own country for trial. (a)

. . . But we do not undertake to justify our acts half a century ago. The law of
impressment has been abolished ; and it is very certain, that, during the last fifty
years, nothing of the kind has been attempted, or even imagined, by England. The
law of nations is deduced from the actual practice of nations ; and, as during our last
war (though sorely in need of sailors) we did not revive our claim to take our sailors
out of American ships, the claim must be held to have been conclusively abandoned."
Phillimore dismisses the subject with a single, unintelligible remark, — that "the
right to look for subjects on the high seas," and to "search neutral vessels for
deserters and other persons liable to military or naval service, ought to be confined in
its exercise to merchant vessels." Intern. Law, § 335. Mr. Webster, in 1842, closed the
correspondence with Lord Ashburton on the subject, by the declaration that "the
American Government is prepared to say that the practice of impressing seamen
from American vessels cannot hereafter be allowed to take place." Webster's
Works, vi. 325. It was, indeed, high time that the subject should be put beyond the
pale of juridical or diplomatic discussion.

For the diplomatic history of this subject, see Wait's American State-Papers,
vi. 323, 368. Rush's Residence in London, 432. Mr. Madison to Mr. Rose, March 1,
1808. Parliamentary Papers, 1809, 29. Mr. Adams to Mr. Rush, July 28, 1823.
Sen. Doc. 18th Cong. 2d Sess. Mr. Gallatin to Mr. Clay, July 28, 1827. Mr. Clay
to Mr. Barbour, June 13, 1828. Ex. Doc. Ill, 33d Cong. 1st Sess. Mr. Seward to
Lord Lyons, Dec. 26, 1861.] — D.

(a) De Steck, Essai sur les Consuls, sect. vii. § 30-40. Pardessus, Droit Com-

177

§ 110 RIGHTS OF CIVIL AND [PART II.

By the treaty of peace, amity, and commerce, concluded at
Wang Hiya, 1844, between the United States and the Chinese
Empire, it is stipulated, art. 21, that " 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 authorized, according to the laws of
the United States." Art. 25. " All questions in regard to rights,
whether of property or of person, arising between citizens ^ the
United States in China, shall be subject to the jurisdiction, and
regulated by the authorities, of their own government. And all
controversies occurring in China, between citizens of the United
States and the subjects of any other government, shall be regu-
lated by the treaties existing between the United States and
such governments respectively, without interference on the part
of China." ®

mercial, Part VI. tit. 6, ch. 2, § 2 ; ch. 4, §§ 1, 2, 3. Miltitz, Manuel des Consuls,
torn. ii. Part II. pp. 70-78, 102-135, 162-201, 695-779, 853-866. The various treaties
between the United States and foreign powers, by which the functions and privileges
of consuls are reciprocally regulated, will be found accurately enumerated and fully
analyzed in the above treatise of Baron de Miltitz, torn. ii. Part. II. p. 1498-1598.

[68 Abbott's United States Consul's Manual, 1863, gives the treaties, statutes, and
regulations bearing upon the rights and duties of consuls. The general principle runs
through our treaties, that consuls shall take jurisdiction over questions of wages,
shipment, and discharge of seamen, and over all transactions occurring on board vessels
of the United States lying in a foreign port, whether in the nature of contracts, torts,
or crimes, so far as they concern only the vessels and their cargoes and the persons
belonging on board. If they concern the public peace of the country, or the rights of
persons not belonging on board, they are subjects of local jurisdiction. In many
of the treaties, consuls are permitted to take possession of the personal effects and
estates of deceased citizens of their respective countries, and administer upon them,
or send them home for administration. There are also provisions authorizing consuls
to take depositions and authenticate documents, and making consular copies evidence
in judicial proceedings. In some treaties, consuls are permitted to arrest deserters
from public or private ships, through the local magistrates ; and, in such cases, the
local processes for arrest, and places of detention and imprisonment, are placed at
the disposal of the consul. Provisions are made in the treaty with France author-
izing the intervention of consuls, and directing notice to them, in cases of salvage of
vessels or cargoes of their respective countries. There are no treaty stipulations
between the United States and Great Britain respecting the arrest and detention of
deserting seamen. The last attempt at such an arrangement failed because of Great
Britain's desiring to exclude slaves from the treaty, which was objected to by the
United States. Mr. Cass to Mr. Dallas, Oct. 8, 1860. See treaties with France
(United- States Laws, x. 992), Prussia, Portugal, Belgium, Netherlands, Russia, Sar-
dinia, Spain, Austria, Sweden, Two Sicilies, the Hanseatic Towns ; and with Mexico,
and all the States of South America, Morocco, Turkey, China, Algiers, and Tunis
(United-States Laws, viii. ix. x.) : also, act of March 2, 1829, lb. x. 360, and treaties
with Japan, United-States Laws, xi. 723, Persia, lb. 709, Siam, lb. 683.] — D.
178

PART II.] CRIMINAL LEGISLATION. § 113

§ 111. Every sovereign State is independent of every inde-
other, in the exercise of its judicial power. Sn^state

This general position must, of course, be qualified by ^d^xs
the exceptions to its application, arising out of express power,
compact, such as conventions with foreign States, and acts of con-
federation, by which the State may be united in a league with other
States, for some common purpose. By the stipulations of these
compacts, it may part with certain portions of its judicial power, or
may modify its exercise with a view to the attainment of the object
of the treaty or act of union.

§ 112. Subject to these exceptions, the judicial power of every
State is co-extensive with its legislative power. At the same time,
it does not embrace those cases in which the municipal institu-
tions of another nation operate within the territory. Such are the
cases of a foreign sovereign, or his public minister, fleet, or army,
coming within the territorial limits of another State, which, as
already observed, are, in general, exempt from the operation of the
local laws, (a)

§ 113. The judicial,power of every independent State,
then, extends, with the qualifications mentioned, — the judicial

1. To the punishment of all offences against the mu- criminal™
nicipal laws of the State, by whomsoever committed, offences-
within the territory, (a)

2. To the punishment of all such offences, by whomsoever com-
mitted, on board its public and private vessels on the high seas,
and on board its public vessels in foreign ports. (V)

3. To the punishment of all such offences by its subjects, where-
soever committed.

4. To the punishment of piracy, and other offences against the
law of nations, by whomsoever and wheresoever committed. (<?)

It is evident that a State cannot punish an offence against its
municipal laws, committed within the territory of another State,
unless by its own citizens ; nor can it arrest the persons or property
of the supposed offender within that territory ; but it may arrest
its own citizens in a place which is not within the jurisdiction of
any other nation, as the high seas,69 and punish them for offences

(a) Vide supra, § 95.

(a) Ibid. § 84. (b) Ibid. §§ 95, 106. (c) Vide infra, § 120 et seq.

[69 The author does not mean to include an arrest on the high seas from a vessel
of another nation against its consent.] — D.

179

§ 115 RIGHTS OF CIVIL AND [PART II.

committed within such a place, or within the territory of a foreign
State.

By the common law of England, which has been adopted, in this
respect, in the United States, criminal offences are considered as
altogether local, and are justiciable only by the courts of that coun-
try where the offence is committed. But this principle is peculiar
to the jurisprudence of Great Britain and the United States ; and
even in these two countries it has been frequently disregarded by
the positive legislation of each, in the enactment of statutes, under
which offences committed by a subject or citizen, within the terri-
torial limits of a foreign State, have been made punishable in the
courts of that country to which the party owes allegiance, and
whose laws he is bound to obey. There is some contrariety in the
opinions of different public jurists on this question ; but the pre-
ponderance of their authority is greatly in favor of the jurisdic-
tion of the courts of the offender's country, in such a case, wherever
such jurisdiction is expressly conferred upon those courts, by the
local laws of that country. This doctrine is also fully confirmed
by the international usage and constant legislation of the different
States of the European continent, by which crimes in general, or
certain specified offences against the municipal code, committed by
a citizen or subject in a foreign country, are made punishable in the
courts of his own. (J)70

§ 114. Laws of trade and navigation cannot affect for-

Laws of °

trade and eigners, beyond the territorial limits of the State, but
naviga ion. ^ey ^^ binding upon its citizens, wherever they may be.
Thus, offences against the laws of a State prohibiting or regulating
any particular traffic, may be punished by its tribunals, when
committed by its citizens, in whatever place ; but if committed
by foreigners, such offences can only be thus punished when
committed within the territory of the State, or on board of its
vessels, in some place not within the jurisdiction of any other
State.71

Extradi- § 115. The public jurists are divided upon the ques-
criminais. tion, how far a sovereign State is obliged to deliver up
persons, whether its own subjects or foreigners, charged with or con-

(d) Folix, Droit International Prive, §§ 510-532. See American Jurist, xxii.
381-386.

p° Story's Conflict of Laws, §§ 619-625.] — D.
pi Story's Conflict of Laws, § 625 a, b.] — D.
180

PART II.] CRIMINAL LEGISLATION. § 115

victed of crimes committed in another country, upon the demand
of a foreign State, or of its officers of justice. Some of these
writers maintain the doctrine, that, according to the law and usage
of nations, every sovereign State is obliged to refuse an asylum to
individuals accused of crimes affecting the general peace and secu-
rity of society, and whose extradition is demanded by the govern-
ment of that country within whose jurisdiction the crime has
been committed. Such is the opinion of Grotius, Heineccius,
Burlamaqui, Vattel, Eutherforth, Schmelzing, and Kent, (a) Ac-
cording to PufFendorf, Voet, Martens, Kliiber, Leyser, Kluit, Saal-
feld, Schmaltz, Mittermeyer, and Heffter, on the other hand, the
extradition of fugitives from justice is a matter of imperfect obli-
gation only ; and though it may be habitually practised by certain
States, as the result of mutual comity and convenience, requires to
be confirmed and regulated by special compact, in order to give it
the force of an international law. (6) And the learned Mitter-
meyer considers the very fact of the existence of so many special
treaties respecting this matter as conclusive evidence that there
is no such general usage among nations, constituting a perfect
obligation, and having the force of law properly so called. Even
under systems of confederated States, such as the Germanic Con-
federation and the North American Union, this obligation is
limited to the cases and conditions mentioned in the federal com-
pacts. (<?)72

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xi. §§ 3-5. Heineccius, Praelect. in
Grot. j. t. Burlamaqui, torn. ii. Part IV. ch. 3, §§ 23-29. Yattel, liv. ii. ch. 6, §§ 76, 77.
Eutherforth, Inst, of Nat. Law, ii. ch. 9, p. 12. Schmelzing, systematischer Grundriss
des praktischen europaischen Volkerrechts, § 61. Kent's Comm. i. 36, 37, 5th edit.

(6) Puffendorf, Elementa, lib. viii. cap. 3, §§ 23, 24. Voet, de Stat. § 11, cap. 1,
No. 6. Martens, Droit des Gens, liv. iii. ch. 3, § 101. Kliiber, Droit des Gens,
Part II. tit. 1, ch. 2, § 66. Leyser, Meditationes ad Pandect. Med. 10. Kluit, de
Deditione Profugorum, § 1, p. 7. Saalfeld, Handbuch des positiven Volkerrechts,
§ 40. Schmaltz, europ'aisches Volkerrecht, p. 160. Heffter, europaische Volker-
recht, § 63. Mittermaier, deutsches Strafverfahren, Theil i. § 59, pp. 314-319.

(c) Mittermaier, Ibid.

[72 T/nis statement, without explanation, might give to a foreign reader an imper-
fect notion of American criminal jurisprudence. Por crimes over which the courts
of the general government have jurisdiction, a fugitive may be arrested by warrants
from the federal courts, in any part of the Union. For crimes solely against the laws
of a State and triable only by the State tribunals, the fugitive can be arrested in
another State only by the authority of the State in which he is found. But the Con-
stitution requires each State to make such arrests, and does not limit the obligation to
particular cases, but extends it to all fugitives from justice, " charged with treason,
felony, or other crime," as stated just below, in the text.] — D.

16 181

§ 115 EIGHTS OF CIVIL AND [PART II.

The negative doctrine, that, independent of special compact, no
State is bound to deliver up fugitives from justice upon the demand
of a foreign State, was maintained at an early period by the United
States government, and is confirmed by a considerable preponder-
ance of judicial authority in the American courts of justice, both
State and Federal. (J)73

(d) See Mr. Jefferson's Letter to M. Genet, Sept. 12, 1793. The decision of Mr.
Chancellor Kent, in re Washburn, Johnson's Ch. Rep. iv. 166, is counterbalanced by
that of Chief Justice Tilghman, in Respublica v. Deacon, Sergeant & Rawle's Rep.
x. 125 ; by that of Mr. Chief Justice Parker, in Respublica v. Green, Massachusetts
Rep. xvii. 515-548 ; and by the judgment of the Supreme Court of the United States,
in Holmes v. Jennison, Peters's Rep. xiv. 540.

[73 Extradition. — It may be considered as settled in the United States, that, in the
absence of positive law conferring the power upon a judicial tribunal, that tribunal
has no authorit}', by virtue of its general functions, to make extradition of criminals.
This results from the fact that there is no obligation upon a government, under the
law of nations, to surrender fugitive criminals to a foreign power ; and, consequently,
it is a political and not a judicial question, whether extradition shall be made, — a
question depending on reasons of state, and not upon rules of law. There is not only-
no obligation upon a government to make extradition, but, since treaties upon that
subject have become so common, it is not the custom to ask for extradition in the
absence of a treaty, or in a case which the treaty does not cover. The fact that two
nations have made no arrangement on the subject, may fairly be considered as preclud-
ing a demand on either side. Although there is no obligation in the absence of a
treaty, a State may, in view of its own policy, refuse asylum to fugitive criminals
of certain classes, or remove them from its territory. How it will do this, in what
cases, and by the agency of what functionaries, is purely a matter of municipal law.
Whether the State will surrender fugitive criminals without a treaty, or will make a
compact for the purpose, is to be decided by the political department of the govern-
• ment. The United States have treaties of extradition with nearly all civilized nations.
These treaties have the common feature of never including, and usually expressly
excluding, surrender for political or military offences, or offences triable by military or
summary courts, and of not including petty crimes or misdemeanors. It has been
decided, as matter of constitutional law, that a treaty does not, by its own force, give
jurisdiction to all courts and magistrates, but that an act of Congress is necessary to
authorize a court or magistrate to act under the treaty. As the surrender is a political
act of the State, the function of a court or judicial magistrate is only to determine
judicially whether a case has been made out in accordance with the treaty invoked
and with the statute. Not only is the surrender to the foreign officer an executive act,
but the original arrest may always be made by the executive ; and, if the statute so
provides, it may also be made Ify the court or the examining magistrate. By the
Constitution, whatever under a treaty of extradition is an executive act, the President
may do, or the Secretary of State as his agent, without an enabling statute. The
statutes to carry treaties of extradition into effect have been made and construed in
accordance with these principles. They authorize certain courts and magistrates, upon
complaint made, to issue warrants of arrest ; to hear and decide the question ; and, if a
case for surrender is made out, to certify the result, together with the evidence, to the
Secretary of State ; and the Secretary is authorized, thereupon, to make the extra-
dition. The statutes do not undertake to compel the Secretary to do so, as the case
182

PART II.] CRIMINAL LEGISLATION. § 116

§ 116.. The Constitution of the United States provides, (art. 4,
s. 2,) that " a person charged in any State with treason, felony, or
other crime, who shall flee from justice, and be found in another
State, shall, on demand of the executive authority of the State from
which he fled, be delivered up, to be removed to the State having
jurisdiction of the crime."

becomes then rather diplomatic and international. The legislature interposes the
judicial inquiry as a condition to the surrender under a treaty, but does not give
the judicial magistrate power to require a surrender.

The question still remains, whether, in the absence of treaties and statutes, the
executive can surrender a fugitive criminal. The general tone of the judicial deci-
sions and of political debate has been adverse to such a right ; yet it was exercised in
a remarkable case in 1864, — that of Arguelles. This person, being governor of a
district in Cuba in which a cargo of Africans had been landed from a slave-ship and
set free by the authorities, had reported officially to the government that one hundred
and forty-one of them had died of small-pox ; but it was discovered that he had sold
them into slavery while in his charge, for large sums, with the aid of forged papers,
and had escaped to New York. There was no treaty of extradition between Spain and
the United States ; but the Captain-General of Cuba and the Spanish Minister laid the
matter before the Secretary of State, and requested the arrest and surrender of Ar-
guelles, as an act of favor and comity, not only on account of the enormity of his
offence, but because his presence in Cuba was found necessary to the liberation of the
men he had sold into slavery. Mr. Seward, with the sanction of the President,
ordered the arrest, as a purely executive act ; and Arguelles was delivered to a special
agent of the Spanish Government, and by him taken to Cuba. The Senate, on the
28th May, 1864, adopted a resolution requesting the President to inform them whether
such a surrender had been made, and, if so, under what authority of law or treaty it
was done. The President transmitted a reply, covering a report from the Secretary
of State, and the documents showing the guilt of Arguelles, and the request of the
Spanish Government. Mr. Seward, in his report, says : " There being no treaty of
♦extradition between the United States and Spain, or any act of Congress directing
how fugitives from justice in Spanish dominions shall be delivered up, the extradition
in this case is understood by this department to have been made in virtue of the law
of nations and the Constitution of the United States. Although there is a conflict of
authorities concerning the expediency of exercising comity towards a foreign gov-
ernment, by surrendering at its request one of its own subjects charged with the
commission of crime within its territory, and although it may be conceded that there
is no national obligation to make such a surrender upon a demand therefor, unless it is
acknowledged by treaty or by statute law, yet a nation is never bound to furnish
asylum to dangerous criminals, who are offenders against the human race ; and it is
believed that if in any case the comity could with propriety be practised, the one
which is understood to have called forth the resolution furnished a just occasion for
its exercise." U. S. Dip. Corr. 1864, Part II. 60-74: Cong. Globe, 1864.

A resolution introduced into the House of Representatives, condemning this act, as
a violation of the Constitution and in derogation of the right of asylum, was rejected
by a large majority, and the subject referred to a committee ; but it was followed by
no action of Congress. An indictment was found in New York against the officer
who made the arrest under the Secretary's warrant, on a charge of kidnapping, but
the case has not been adjudicated ; and, as no petition for habeas corpus was filed in

183

§ 117 RIGHTS OF CIVIL AND [PART II.

Extra- § 117. By the 10th article of the treaty concluded at

^heAshbur- Washington on the 9th August, 1842, between the United
ton Treaty. States and Great Britain, it was " agreed that the United
States and Her Britannic Majesty shall, upon mutual requisitions by
them, or their ministers, officers, or authorities, respectively made,
deliver up to justice all persons, who, being charged with the crime
of murder, or assault with intent to commit murder, or piracy,74 or

behalf of Arguelles before his removal from the country, the legality of the act of the
Secretary has not been judicially passed upon.

Upon the matters embraced in this note, see U. S. Laws, viii. Treaties, U. S.
Laws, ix. 302; lb. xii. 84. United States v. Davis, Sumner, ii. 482. Kane's case,
Howard, xiv. 103. Metzger's case, N. Y. Legal Obs. 83 ; Barb. i. 248 ; Howard, v. 176.
Heilborn's case, Parker, C. R., i. 429. Holmes v. Jennison, Peters, xiv. 40. Holmes's
case, Vermont R. xii. 631. Robbins's (Nash'sJ) case, Wharton's State Trials, 392-456 ;
and Bee, 267. Washburn's case, 4 Johns's Ch. Rep. iv. 106 ; Wharton's C. R. T. R.
iii. 473. Veremaitre's case, Am. Law Journ. iii. 438. The British Prisoners, Woodb.
and M. i. 67. Dos Santos's case, Brock, ii. 493. United States v. Stowell, Curtis,
ii. 160. Opinions of Attorney- General, i. 384-392; ii. 832, 902; vi. 85, 91, 217, 227, 237,
270, 290, 431 ; vii. 6, 285, 536, 612. Halleck's Intern. Law, 174. Gardner's Institutes,
153-170. Mr. Webster to Lord Ashburton on the case of The Creole, Webster's Works,
vi. 305. Ortolan, Regl. Intern, liv. ii. ch. 14. Kliiber, europ. Volkr. § 86. Heffter,
europ. Volkr. § 63. Phillimore's Intern. Law, i. §§ 360-385. Woolsey's Elements, § 79.
Story's Conflict of Laws, §§ 626-628. Correspondence between Earl Russell and Mr.
Adams on The Emily St. Pierre, U. S. Dipl. Corr.1862. (See note, infra, Rescue by
Neutrals.) Nations bound by treaties of extradition must still have the right to protect
themselves against being defrauded of their right to give asylum. If, for instance, a
political refugee, an escaped slave, or a deserter from military service, has asylum by
the practice of a nation, it will look behind the mere formal proofs of a crime com-
mitted by such a person, to see that the real object is not to get possession of him for
a purpose to which the treaty does not apply. In many cases, the government of the
country making the demand may not be cognizant of the motives of parties who have
procured an indictment, and set on foot the proceedings for surrender.

Before the abolition of slavery in the United States, demands were sometimes
made on a free State, under the extradition clause in the Constitution, for surrender,
on a charge of larceny, of a colored man who had fled from slavery, — the charge
being perhaps for stealing a horse with which he made his escape ; and the free States
have refused the surrender, when satisfied that the real object was to reduce the man
to slavery.] — D.

p4 « piracy " in Extradition Treaties. — The meaning of the word " piracy " in this
treaty has received a construction by the Court of Queen's Bench in England, in the
case of the crew of the Gerity. ( Tirnan's case, Best & Smith, v. 648.) The American
schooner Gerity sailed from Matamoras, in November, 1863, with a cargo of cotton,
bound to New York. Six or more men embarked in her as passengers, and, when
about seventy miles out at sea, rose and took possession of the vessel, set the master
adrift in a boat, took the vessel to British Honduras, and, after selling the cargo, aban-
doned her. Three of these men, being at Liverpool, were arrested by a warrant
issued by a commissioner under the treaty of extradition of 1842, by direction of a
Secretary of State, at the request of the United States Minister. The prisoners con-
tended that they were acting under authority of the Confederate States, whom Great
184

PAET II.] CRIMINAL LEGISLATION. § 117

arson, or robbery, or forgery, or the utterance of forged paper, com-
mitted within the jurisdiction of either, shall seek an asylum, or
shall be found, within the territories of the other : Provided, That
this shall only be done upon such evidence of criminality as,
according to the laws of the place where the fugitive or person
so charged shall be found, would justify his apprehension and
commitment for trial, if the crime or offence had been there corn-
Britain had recognized as belligerent, and that their act was not triable as a crime.
The magistrate held that their act was prima facie the crime of piracy, and that the
defence of belligerent authority was one to be made at their trial, and held them for
extradition. A writ of habeas corpus was issued from the Queen's Bench, May, 1864 ;
and, on the return, the cause was elaborately argued by counsel instructed respectively
by the United States Minister, and by the agent of the Confederate States, who came
forward to adopt the act. The court were unanimous in the opinion that there was
sufficient evidence to warrant the magistrate in holding the prisoners, and that their
defence of belligerency was properly to be made on their trial ; and that the act, if a
crime and not an act of war, was piracy jure gentium, and triable in England. The
only question then was, whether it was within the legal authority of the magistrate to
deliver up a person for a crime which each country had jurisdiction to try. The
majority of the court, the Lord Chief Justice dissenting, held that the case did not
come within the terms of the treaty and of the act of 6 & 7 Victoria, ch. 76, pro-
viding for its execution. Justices Crompton, Blackburn, and Shee held that the
treaty was intended to apply only to crimes justiciable by one country, and not by
the other. They drew this conclusion from the words of the treaty, " committed
within the jurisdiction of either/' ..." seek an asylum, or shall be found within the
territories of the other ; " from the preamble of the Act, " committed within the juris-
diction of the United States," and " found within the territories of Her Majesty," and
the words, " fugitive," " deliver up to justice ; " and from the probability that the con-
tracting parties would desire to provide only for cases which the nation making the de-
mand had jurisdiction to try and the other nation had not. It was admitted that the
word "piracy" in the treaty, if it could mean only piracy jure gentium, triable anywhere,
would be against this construction ; but it was held that the word was introduced to
meet acts made piracy by the statute law of America, not being so jure gentium, and of
which the United States would have exclusive jurisdiction, as by the acts of 30 April,
1790, and 5 May, 1820. The Lord Chief Justice Cockburn was of opinion that the
treaty and statute of 6 & 7 Victoria were not necessarily confined to crimes of which the
nation making the demand had exclusive jurisdiction; that it might be applicable, for in-
stance, to certain offences committed in a foreign territory by British subjects against
other British subjects, or against the State, which either nation could try, but which,
in respect of testimony or otherwise, could be more conveniently and justly tried in the
country where the act was done. "Within the jurisdiction" did not necessarily mean
"exclusive" jurisdiction; and, if it did, it referred to the area over which the laws
of the particular State prevail ; and that a ship is constructively such a place, and
within the jurisdiction of the State. He saw no objection to including in the treaty
piracy jure gentium, for the like reasons of convenience and justice. Piracy jure
gentium would be committed " within the jurisdiction," not exclusive, of the demand-
ing nation, if committed on board one of its vessels at sea. Professor Abdy, in his
recent edition of Kent's Intern. Law, 441-2, considers the opinion of the Lord Chief
Justice to have been the more correct interpretation of the statute and treaty.] — D.

16* 185

§117 EIGHTS OF CIVIL AND [PART II.

mitted ; and the respective judges and other magistrates of the
two governments shall have power, jurisdiction, and authority,
upon complaint made under oath, to issue a warrant for the
apprehension of the fugitive or person so charged, that he may be
brought before such judges or other magistrates, respectively, —
to the end that the evidence of criminality may be heard and
considered ; and if, on such hearing, the evidence be deemed
sufficient to sustain the charge, it shall be the duty of the exam-
ining judge or magistrate to certify the same to the proper execu-
tive authority, that a warrant may issue for the surrender of such
fugitives. The expense of such apprehension and delivery shall
be borne and defrayed by the party who makes the requisition and
receives the fugitive." 75

[75 Judicial Construction of Extradition Treaties. — The points raised and decided in
the Gerity Case are given in note 74, supra. The point actually decided was, that the
word " piracy," in the Ashburton treaty, did not include piracy jure gentium, but was
confined to acts made piracy by the municipal law. The main reason given was, that
a nation could not be presumed to promise extradition of criminals whom it had itself
jurisdiction to try, equally with the nation demanding extradition.

Windsor's Case. — This case was before the Queen's Bench, April 27, 1865. Wind-
sor was arrested for extradition under the treaty, as a person " charged with forgery " in
New York. The acts done by him were false entries, for the purpose of defrauding,
in books of account of a bank, kept by him as its clerk. By a statute of New York, it
is provided that a person convicted of such acts shall be " adjudged guilty of forgery/'
The court was satisfied that there was sufficient evidence of his guilt under that
statute to require extradition, if the offence came within the treaty ; and it was con-
ceded by the counsel for the requisition that the acts done would not be forgery by the
common law, or by the statute law of England, or by the laws of the American States
generally. The only question was, whether the treaty providing for extradition of
persons charged with " forgery " covered this case. The Lord Chief Justice said:
" The act is restricted to cases which have the essential and substantial elements of
the offences specified, and according to the law of both countries ; and the mere fact
that an act which, according to the general law of either country, has not the character
of a particular offence, is treated as such by the law of one of them, does not bring
the case within such a treaty as this. We must assume that the terms employed are
used in a sense which they would have in the law of both countries, and not in a
sense wholly peculiar to some local law in one of them." Mr. Justice Blackburn
said : " It must be taken that the terms were used in a sense common to both parties to
the treaty. The mere fact that the law of one country, or of one part of it, described
an act as being an offence which, in its own nature, in any sense common to both
countries, it was not, did not bring the case within the treaty. This act was not
really forgery ; and what the State of New York had enacted was, that it should be
punished as forgery." Mr. Justice Shee being of the same opinion, the prisoner was
released.

Anderson's Case. — Anderson was a slave by the law of Missouri, and killed a white
citizen of that State who endeavored to arrest him while he was making his escape
from Missouri. By the law of Missouri, any citizen may arrest a slave found beyond
186

PART II.] CRIMINAL LEGISLATION. § 118

§ 118. By the convention concluded at Washington on the 9th
November, 1843, between the United States and France, it was
agreed :

"Art. 1. That the high contracting parties shall, on requisitions
made in their name, through the medium of their respective diplo-
matic agents, deliver up to justice persons who, being accused of the
crimes enumerated in the next following article, committed within
the jurisdiction of the requiring party, shall seek an asylum or
shall be found within the territories of the other : Provided, That
this shall be done only when the fact of the commission of the
crime shall be so established, as that the laws of the country, in
which the fugitive or the person so accused shall be found, would
justify his or her apprehension and commitment for trial, if the
crime had been there committed.

limits without a pass. He succeeded in reaching Canada, and was demanded, under the
treaty, as a person " charged with murder." The objection made was, that the act done
by Anderson was not murder by the law of England or the common law, inasmuch
as, slavery not being allowed by those laws, the killing of a person who attempted to
reduce another to slavery, or to retain him in slavery by force, was justifiable or
excusable. Eeliance was placed especially on the language of the tenth article of the
treaty, — " provided that this [extradition] shall only be done upon such evidence of
criminality as, according to the laws of the place where the fugitive or person so
charged shall be found, would justify his apprehension and commitment for trial if
the crime or offence had been there committed." The majority of the judges of the
Queen's Bench of Upper Canada sustained the requisition ; while the Courl; of Com-
mon Pleas of Canada held that the act did not come within the treaty, and discharged
the prisoner. The principle, therefore, has had no authoritative decision.

The question is an interesting one. Assuming that the offence charged must have
the substantial elements of that offence by the general law of both countries, still
Missouri had no new or peculiar law of murder. The definition of the offence was
the same there as in Canada ; and the same general rules of evidence and instructions
to the jury would be applied to the facts in each country. In each, the rule would be,
that the knowingly and intentionally killing by the prisoner of a person who had a
legal right to arrest him, in wilfully resisting the arrest, is murder, in the absence of
sufficient provocation to reduce it to manslaughter. The point where the law of the
two countries would differ is, as to the right to make the arrest in the particular case,
and the consequent illegality of resisting it. The right of the deceased to arrest the
prisoner grew out of the slave system ; but it was part of the law touching the rela-
tions of inhabitants to each other and to the public, which each nation must regulate
for itself, and which existed when the treaty was made. If two nations have an
identical code as to murder, and as to the mode of trial and the rules of evidence,
there may yet be great diversities in the systems of the two nations, resulting in rights
to use force, or to resist the use of force, in one, directly opposite to what would
exist in the other. Can this state of things be fairly held to constitute a difference in
the substantial elements of the offence in the laws of the two countries ? Does it
not rather address itself to the policy of the two countries in making treaties of
reciprocal extradition, calling for exceptions or qualifications 1 As to the clause of the

187

§ 118 RIGHTS OF CIVIL AND [PART II.

" Art. 2. Persons shall be so delivered up who shall be charged,
according to the provisions of this convention, with any of the
following crimes, to wit: murder, (comprehending the crimes
designated in the French penal code by the terms assassination,
parricide, infanticide, and poisoning,) or with an attempt to com-
mit murder, or with rape, or with forgery, or with arson, or with
embezzlement by public officers, when the same is punishable
with infamous punishment.

" Art. 3. On the part of the French government the surrender
shall be made only by authority of the Keeper of the Seals, Minis-
ter of Justice ; and on the part of the Government of the United
States, the surrender shall be made only by the authority of the
Executive thereof.

" Art. 4. The expenses of any detention and delivery, effected

tenth article of the Ashburton treaty, there can be little doubt that it relates to the
quantum of proof. It is found, in the same words, in Jay's treaty of 1794, art. 27.
It is inserted to meet the question how much proof the examining magistrate is en-
titled to require. It might have been contended that the proof must be such as would
be required to convict, and such as to remove all reasonable doubt of guilt; or that it
must be such as to create a preponderance of belief, as in a civil suit ; or that the
showing of that probable cause to believe guilt would be sufficient, which, by the
rule of the common law, authorizes an examining magistrate to commit for trial.
Instead of attempting to settle and define these degrees of proof, the parties adopted
the rule which the country called upon to make the surrender should have established
for its examining magistrates, in case of offences committed within its jurisdiction.
In Anderson's case, the facts were sufficiently proved, and the only question was
one lying behind the words of the treaty. Supposing an examining magistrate in
Canada, in case of an offence committed there, is satisfied that the prisoner before him
intentionally killed a person who was attempting to exercise an act of force upon
him, and the question whether the homicide was murder or self-defence depended
upon the relative rights of the parties to do or resist the attempted act, the magistrate
would commit him for trial, unless the law in that respect was settled and clearly in
favor of the prisoner. The dQubt as to the law, in a clear state of facts, leaves that
condition of things denominated probable cause to believe the prisoner guilty, — in
other words, leaves a state of things proper for judicial investigation. If the same
magistrate, sitting for extradition in a clear case of homicide, should be satisfied that
the law respecting homicide was identical in the two countries, but that there would
be a right to do the act attempted in Missouri and a right to resist it in Canada, could
he refuse to commit the prisoner on the sole ground that there was a lack of sufficient
evidence to establish a probable cause 1 Suppose the law of a country to authorize
corporal punishment of a seaman by the master of a vessel, and the seaman commits
murder in resisting an attempt to inflict it in a proper case, and, escaping to another
country, is demanded under a treaty of extradition, — can the latter country refuse the
surrender on the ground, that, while killing in resistance to lawful force is a crime in
each country, the force attempted in the particular case was not lawful by the law of
the latter country ?] — D.
188

PART II.] CRIMINAL LEGISLATION. § 120

in virtue of the preceding provisions, shall be borne and defrayed
by the government in whose name the requisition shall have been
made.

" Art. 5. The provisions of the present convention shall not be
applied in any manner to the crimes enumerated in the second
article, committed anterior to the date thereof, nor to any crime or
offence of a purely political character."

§ 119. The following additional article to the above convention
was concluded between the contracting parties at Washington on
the 24th February, 1845, and subsequently ratified.

" The crime of robbery, defining the same to be the felonious
and forcible taking from the person of another, of goods or
money, to any value, by violence or putting him in fear; and
the crime of burglary, defining the same to be, breaking and enter-
ing by night into a mansion-house of another, with intent to com-
mit felony; and the corresponding crimes included under the
French law in the words vol qualifie crime, not being embraced in
the second article of the convention of extradition concluded
between the United States and France on the 9th of November,
1843, it is agreed by the present article, between the high con-
tracting parties, that persons charged with -those crimes shall
be respectively delivered up, in conformity with the first article
of the said convention; and the present article, when ratified
by the parties, shall constitute a part of the said convention, and
shall have the same force as if it had been originally inserted in
the same."76

§ 120. In the negotiation of treaties stipulating for the extradi-
tion of persons accused or convicted of specified crimes, certain
rules are generally followed, and especially by constitutional gov-
ernments. The principal of these rules. are, that a State should
never authorize the extradition of its own citizens or subjects,77

[76 The supplemental convention between France and the United States of Feb.
10, 1858, extends the duty of extradition to principals, accessories, and accomplices in
the following crimes : " Forging or knowingly passing or putting in circulation coun-
terfeit coin or bank-notes or other paper current as money, with intent to defraud any
person or persons ; embezzlement by any person or persons, hired or salaried, to the
detriment of their employers, — when these crimes are subject to infamous punish-
ment."]—D.

[77 Extradition by a State of its own Subjects. Territoriality of Criminal Law. — The
obligation or willingness of a State to surrender its citizens who are charged with
crimes committed abroad, and have sought refuge in their own country, is affected by
the consideration whether such State punishes its citizens for crimes so committed.

189

§ 120 RIGHTS OF CIVIL AND [PAET II.

or of persons accused or convicted of political or purely local
crimes, or of slight offences, but 'should confine the provision
to such acts as are, by common accord, regarded as grave
crimes, (a)78

In that respect there is a marked difference among nations. Russia, Norway, most of
the German States, some of the Swiss cantons, and Portugal, try their subjects for
offences of almost all kinds committed abroad ; and that not only against their own.
citizens, but against foreigners. In Great Britain, France, and the United States, the
general principle is to regard crimes as of territorial jurisdiction. Trying their citizens
in foreign countries for offences committed there, for which they have jurisdiction by
treaty, as in China and many of the non- Christian States, does not invalidate the prin-
ciple. These three nations take jurisdiction over the crime of slave-trading committed
by their own citizens, without reference to the nationality of the vessel in which it may
have been committed ; but that is because they have attached to this offence, by treaty
and by legislation, the character of piracy. France, however, does punish crimes com-
mitted by Frenchmen abroad against the safety of France, and the counterfeiting of
her public seals and money, which may circulate anywhere. Belgium and Holland
punish all offences of their subjects committed abroad against their own State or its
subjects, and certain great crimes against foreigners committed abroad, without adopt-
ing the general rule. The Italian monarchy punishes high crimes of its subjects
committed abroad, but treats misdemeanors by the rule of reciprocity.

The question whether a State shall punish a foreigner found within its limits for a
crime previously committed abroad against that State or its subjects, also depends
upon its system respecting punishing generally for crimes committed abroad. Great
Britain and the United States, respecting strictly the principle of the territoriality
of crime, leave them unpunished. France follows the analogy of its treatment of its
own subjects under like circumstances. It seems to be a rule almost without exception,
that a State will not try its own subjects for offences committed abroad against foreign
States or their subjects, although some States of the more despotic character refuse
asylum to political offenders. Mold's Staatsr. Volk. und Pol. i. 644 et seq. Woolsey's
Introd. § 78.]— D.

(a) Ortolan, Regies Internationales de la Mer, torn. i. p. 340.

[78 Later Extradition Treaties. — Since the author's text and notes to his own last edi-
tion, some new extradition treaties have been made. One between the United States
and Prussia, negotiated by Mr. Wheaton himself in 1845, was rejected by the Senate
of the United States, it is supposed on the ground that it exempted each party from
the obligation to surrender its own subjects ; but, in later cases, that objection seems to
have been waived, as the treaty of June 16, 1852, between the United States and
Prussia (U. S. Statutes, x. 1022), provides in Art. X that "none of the contracting
parties shall be bound to deliver up its own citizens or subjects under the stipulations
of the treaty." Nearly all the German States, either originally or by subsequent
action, are parties to this treaty. The objections heretofore made to such a pro-
vision rested on two considerations, — the wrant of reciprocity, as the United States did
not try its citizens for crimes committed abroad, while the other parties to the treaty
did; and the difficulties that might arise, if Prussia and the German powers should
claim to treat as subjects persons naturalized in the United States committing crimes
here, and seeking asylum in their native country.

The same exception as to extradition of citizens or subjects is found in the
treaties of the United States with Bavaria in 1853, with Hanover in 1855, with
the Two Sicilies in 1856, with Austria in 1856, with Baden in 1857, and with
190

. PAET II.] CRIMINAL LEGISLATION. § 121

The delivering up by one State of deserters from the military or
naval service of another also depends entirely upon mutual comity,
or upon special compact between different nations. (6)79

§ 121. A criminal sentence pronounced under the mu-
nicipal law in one State can have no direct legal effect in territorial
another. If it is a sentence of conviction, it cannot be aPcriminai°
executed without the limits of the State in which it is sentence*
pronounced, upon the person or property of the offender ; and if he
is convicted of an infamous crime, attended with civil disqualifica-
tions in his own country, such a sentence can have no legal effect
in another independent State, (a)

But a valid sentence, whether of conviction or acquittal, pro-
Sweden and Norway in 1860. The treaties with the Hawaiian Islands in 1849,
with the Swiss Confederation in 1850, with Venezuela in 1861, and with Mexico
in 1862, do not contain the exception. In no treaty do the United States include
political or military offences, or offences against peculiar local laws, or petty crimes or
misdemeanors. The provision in Mr. Jay's treaty, respecting the quantum of evidence
necessary to require extradition, is repeated in the subsequent treaties.

Great Britain has steadily refused to surrender political offenders, or to deny
them asylum. Hansard's Debates, 1853, cxxiv. 805. Lord Palmerston's Despatch
upon the demand of Austria and Kussia on Turkey for the extradition of the
Hungarian refugees. Annual Register, 1849, p. 342. HefFter, europ. Volkr. § 63.
Phillimore's Intern. Law, i. 407-432. The Emperors of Russia and Austria receded
from this demand. Extradition of political offenders obtains between the States of the
German Confederation.

The Emperor of the French, not disputing the right of England to give asylum to
political offenders, represented that plots to assassinate him had been formed by
refugees in England, and asked that England should provide for the punishment of
such offences. In accordance with this request, Lord Palmerston, being Prime Min-
ister, introduced a bill into Parliament to punish conspiracies formed in England to
commit murder beyond Her Majesty's dominions; but the bill was rejected. The
controlling reason evidently was a feeling that the French Government had used too
high a tone in demanding the passage of such a law.] — D.

(b) Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 22. Note to Duponceau's Transl.
p. 174.

[79 The United States have made no treaties for the extradition of deserters from
military or naval service. Negotiations for a treaty with Great Britain to include
such deserters and fugitive slaves, while slavery existed in the British West-India
Islands, were begun in 1826 by the United States, and renewed in 1828-29, but failed
from the refusal of the British Government to surrender fugitive slaves. Correspond-
ence between Mr. Clay and Mr. Gallatin, June 19, 1826, and Sept. 26, 1827 ; and Mr.
Clay and Mr. Barbour, June 13, 1828, and Oct. -2, 1828. Br. and For. State-Papers,
1829-30, p. 1221. There is a convention between Russia and Prussia, Aug. 8, 1857,
for the mutual surrender of deserters and persons owing future military service.
Nouveau. Recueil, xvi. 595.] — D.

(a) Martens, Precis, &c, liv. iii. ch. 3, § 86. Kliiber, Droit des Gens Moderne de
l'Europe, Part II. tit. 1, ch. 2, §§ 64, 65. Folix, Droit International Prive, § 565.

191

§ 123 RIGHTS OF CIVIL AND [PART II.

nounced in one State, may have certain indirect and collateral
effects in other States. If pronounced under the municipal law
in the State where the supposed crime was committed, or to which
the supposed offender owed allegiance, the sentence, either of
conviction or acquittal, would, of course, be an effectual bar
(exceptio rei judicatce) to a prosecution in any other State. If
pronounced in any other foreign State than that where the offence
is alleged to have been committed, or to which the party owed
allegiance, the sentence would be a nullity, and of no avail to pro^
tect him against a prosecution in any other State having jurisdic-
tion of the offence.80

Piracy § i^. ^ne judicial power of every State extends to the

Ew^f *na punishment of certain offences against the law of nations,
tions. among which is piracy.

Piracy is defined by the text-writers to be the offence of dep-
redating on the seas without being authorized by any sovereign
State, or with commissions from different sovereigns at war with
each other, (a)

The officers and crew of an armed vessel, commissioned against
one nation, and depredating upon another, are not liable to be treat-
ed as pirates in thus exceeding their authority. The State by whom
the commission is granted, being responsible to other nations for
what is done by its commissioned cruisers, has the exclusive juris-
diction to try and punish all offences committed under color of its
authority. (5)81

§ 123. The offence of depredating under commissions from differ-
ent sovereigns, at war with each other, is clearly piratical, since the
authority conferred by one is repugnant to the other; but it has
been doubted how far it may be lawful to cruise under commis-
sions from different sovereigns allied against a common enemy.

[80 Halleck's Intern. Law, 175. Westlake's Pr. Intern. Law, ch. ii. Riquelme,
Derecho Pub. Intern, ii. 2, 3. Woolsey's Introd. § 77. If a criminal should fly to
another State for the purpose of obtaining a milder sentence, such sentence would
be no bar to a trial in the State in which the crime was committed. Halleck's Intern.
Law, 175.]— D.

(a) See authorities cited in note to the case of United States v. Smith, Wheaton's
Rep. v. 157.

(b) Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 17. Rutherforth's Ins. ii. 595.

[81 The author doubtless would confine this statement to acts done under color of
national authority, but exceeding it. The mere fact of having a commission to cruise
against a certain nation would not exempt the possessor from trial as a pirate, if the
192

PART II.] CRIMINAL LEGISLATION. § 124

The better opinion, however, seems to be, that although it might
not amount to the crime of piracy, still it would be irregular and
illegal, because the two co-belligerents may have adopted different
rules of conduct respecting neutrals, or may be separately bound
by engagements unknown to the party, (a)82

§ 124. Pirates being the common enemies of all mankind, and
all nations having an equal interest in their apprehension and
punishment, they may be lawfully captured on the high seas by
the armed vessels of any particular State, and brought within its
territorial jurisdiction, for trial in its tribunals, (a)83

acts done by him to vessels of a different nation were such as could not, in any sense,
be said to be done under color of belligerent authority.] — D.

(a) Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 17, p. 130; Duponceau's Transl.
Valin, Commentaire sur l'Ord. de la Marine, torn. ii. p. 236. " The law/' says Sir*
L. Jenkins, " distinguishes between a pirate who is a highwayman, and sets up for
robbing, either having no commission at all or else hath two or three, and a lawful
man-of-war that exceeds his commission." Works, ii. 714.

[82 Hautefeuille contends that a privateer taking commissions from two sovereigns,
though they be allies in the war, is a pirate. Droits des Nat. Neutr. torn. i. liv. 3, p. 190.
Such cruising is condemned by Masse (Droit Comm. liv. ii. tit. 1, No. 166) and by
Martens (Essai sur les Armateurs, ch. 2, § 14), although they do not positively say that
persons so cruising are pirates. Aliter, Abreu, Presas Marit. Part II. ch. 1, §§ 7, 8.
The objection is, that the cruiser should be responsible to one sovereign, whose
instructions and rules of war he must obey exclusively, and who shall be responsible
for him. Phillimore treats such acts as dangerous and to be discountenanced, but
not as necessarily piracy, i. 374.] — D.

(a) " Every man, by the usage of our European nations, is justiciable in the place
where the crime is committed ; so are pirates, being reputed out of the protection of
all laws and privileges, and to be tried in what ports soever they may be taken." Sir
L. Jenkins's Works, ii. 714.

[83 Piracy. — It must be admitted, that the attempted definitions of piracy are unsat-
isfactory ; some being too wideband some too narrow. The author's description, rather
than definition, is perhaps the most adequate. Some writers, and even judges, seem
to have treated the phrase hostis humani generis as if it were a definition of piracy.
Dr. Tindal, Howell's State Trials, xii. 1271-2, note, in the case of the privateers of
James II., reports this point as made and overruled ; and says, " It is neither a defini-
tion nor as much as a description of a pirate, but a rhetorical invective." It is true,
that a pirate jure gentium can be seized and tried by any nation, irrespective of his
national character, or of that of the vessel on board which, against which, or from
which, the act was done. The reason of this must be, that the act is one over which
all nations have equal jurisdiction. This can result only from the fact, that it is com-
mitted where all have a common, and no nation an exclusive, jurisdiction, — i.e., upon
the high seas ; and, if on board ship, and by her own crew, then the ship must be one
in which no national authority reigns. The criminal may have committed but one
crime, and intended but one, and that against a vessel of a particular nation ; yet, if
done on the high seas, under certain circumstances hereafter to be referred to, he
may be seized and tried by any nation. In such case, it cannot be necessary to

17 193

§ 124 RIGHTS OF CIVIL AND [PART II.

Distinc- This proposition, however, must be confined to piracy
ph-ac^etb7en as defined ^y tne law of nations, and cannot be extended
the law of to offences which are made piracy by municipal legis-

nations, and i j j r o

piracy un- lation. Piracy, under the law of nations, may be tried
•municipal and punished in the courts of justice of any nation,
statutes. ^ whomsoeYer an(j wheresoever committed ; but piracy
created by municipal statute can only be tried by that State within
whose territorial jurisdiction, and on board of whose vessels,
the offence thus created was committed. There are certain acts
which are considered piracy by the internal laws of a State, to
which the law of nations does not attach the same signification.
It is not by force of the international law that those who commit
these acts are tried and punished, but in consequence of special

satisfy the court affirmatively, as a fact, that he had a purpose to plunder vessels of
all nations, or vessels irrespective of nationality ; nor would the court be driven to
an artificial presumption of law, contrary to the facts in the case, that such general
hostile purpose existed.

On the other hand, that is too wide a definition which would embrace all acts of
plunder and violence, in degree sufficient to constitute piracy, simply because done
on the high seas. As every crime may be committed at sea, piracy might thus be
extended to the whole criminal code. If an act of robbery or murder were com-
mitted upon one of the passengers or crew by another in a vessel at sea, the vessel
being at the time and continuing under lawful authority, and the offender were
secured and confined by the master of the vessel, to be taken home for trial, — this
state of things would not authorize seizure and trial by any nation that chose to inter-
fere, or within whose limits the offender might afterwards be found. United States
v. Palmer, Wheaton's Rep. iii. 610. United States v. Pirates, lb. v. 184. United
States v. Klintock, lb. v. 144. United States v. Holmes, lb. v. 412. The Malek
Adhel (Harmony v. United States), Howard, ii. 210. United States Laws, ix. 175;
xii. 314-15. Rutherford's Inst. lib. ii. ch. 9. American State Papers, i. 88-94, Mr.
Jefferson to M. Genet.

To constitute piracy jure gentium it is necessary, 1st, That the offence, being
adequate in degree, — for instance, robbery, destruction by fire, or other injury to per-
sons or property, — must be committed on the high seas, and not within the territorial
jurisdiction of any nation ; and, 2d, That the offenders, at the time of the commission
of the act, should be in fact free from lawful authority, or should have made them-
selves so by their deed, or, as Sir L. Jenkins says (ii. 714), " out of the protection of
all laws and privileges," or, in the words of the Due de Broglie (Ecrits, i. 365), "qui
n'ait ni feu ni lieu : " in short, they must be in the predicament of outlaws.

It has sometimes been said, that the act must be done lucri causa, and the English
common-law definition of animus furandi has been treated as a requisite ; but the motive
may be gratuitous malice, or the purpose may be to destroy, in private revenge for
real or supposed injuries done by persons, or classes of persons, or by a particular
national authority.

On these points the following authorities may be consulted : As to the definition,
hostis humani generis, Howell's State Trials, xii. 1271-2, note ; Tindal's Law of
194

PART II.] CRIMINAL LEGISLATION. § 124

laws which assimilate them to pirates, and which can only be
applied by the State which has enacted them, and then with refer-
ence to its own subjects, and in places within its own jurisdiction.
The crimes of murder and robbery, committed by foreigners on
board of a foreign vessel, on the high seas, are not justiciable
in the tribunals of another country than that to which the vessel
belongs ; but if committed on board of a vessel not at the time be-
longing, in fact as well as right, to any foreign power or its sub-
jects, but in possession of a crew acting in defiance of all law, and
acknowledging obedience to no flag whatsoever, these crimes may

Nations, cited there. Phillimore's Intern. Law, i. 406. Le due de Broglie, " Sur la
Piraterie," Ecrits, iii. 335-375. The Serhassan, Wm. Eob. ii. 357. Notes of Cases, iii.
592. The Malek Adhel, Howard, ii. 232. As to other elements necessary to give
general jurisdiction, and constitute piracy jure gentium, Woolsey's Introd. § 137.
Phillimore's Intern. Law, i. 394. Bynkersh. Qusest. Jur. Pub. lib. i. cap. 17. Kent, i.
184-6. Le due de Broglie, " Sur la Piraterie/7 Ecrits, iii. 335-375. Wildman's Intern.
Law, ii. 150. United States v. Palmer, Wheaton's Rep. iii. 610. United States v.
Klintock, Wheaton's Rep. v. 152. United States v. Pirates, lb. 185. United
States v. Holmes, lb. 412. Blackst. Comm. iv. 286.

The following suggestions are offered as to the elements of piracy jure gentium: —

I. It is not necessary that a purpose to depredate on property, beyond such as
belongs to one nation or one class of persons or one individual, should be proved or
artificially presumed.

II. The motive need not be lucri causa ; nor need the acts and intent square them-
selves to the English common-law definitions of animus furandi, or malice. It is enough
if the corpus delicti exists ; and the animus be one which the law of nations regards as
criminal, and hostile to the rights of persons and property on the high seas, — kcitu
rbv KOivbv anavruv uv&pcjTrcov vo/xov.

III. Although the act and intent may be sufficient to constitute piracy, all nations
have not jurisdiction to try it, unless it was committed beyond the exclusive jurisdic-
tion of any nation. To put it in such predicament, the act must have been committed
not only on the high seas, but beyond that kind of jurisdiction which all nations con-
cede to each nation over vessels sailing the seas under at once its de facto and de jure
authority and responsibility, and in the peace of all nations. Crimes, therefore, of
whatever character, committed on board by inmates of such vessels, are not jus-
ticiable of all nations. But, if such a vessel passes into the control of the robbers
or murderers on board, and the lawful authority is in fact displaced, and she becomes
an outlaw, any nation may seize the vessel and try the criminals. So, if persons on
board any kind of sea-craft, not in fact under any national authority and responsibility,
and acting in defiance thereof, board a duly authorized vessel sailing in the peace of
all nations, and commit robbery or murder on board, and depart, leaving the vessel to
its regular authorities, they may still be tried as pirates by any nation in whose juris-
diction they may be found ; although the cruisers of a foreign nation, by reason of the
rule against international interference, could not have taken them out of such a
vessel, if, after their acts were completed, they had been secured by the authorities of
the vessel and confined in her, to be taken to port for trial.] — D.

195

§ 124 RIGHTS OF CIYIL AND [PART II.

be punished as piracy under the law of nations, in the courts of
any nation having custody of the offenders. (&)84

(b) United States v. Klintock, Wheaton's Rep. v. 144 ; United States v. Pirates,
lb. 184.

[84 Rebels as Pirates. — »The question may as well be considered here as elsewhere,
to which prominence has lately been given by the civil war in the United States, in
what sense rebels in arms, cruising on the high seas against the property of the parent
State, are pirates.

The question must first be considered as between the rebels and the parent State.
The parent State must hold the legal status of rebellion to be crime, and that of rebels
to be criminals. The dimensions of the rebellion, its power and organization, do not
alter the strictly legal status of the rebel. Policy or humanity may lead the State to
forego or remit the enforcement of the law, and to treat rebels as belligerents, for
certain purposes ; but this is in the constant control of the political department of the
government, from day to day, and in each case and locality. ( See ante, note 32, on
p. 84.) As a question of law, in the courts, a rebel is a criminal, whether his acts are
done at sea or on land. His acts of violence are treason, and may be robbery or mur-
der. If rebels in control of a vessel at sea plunder and destroy property, and have no
defence except the authority of the rebellious organization, a court of the parent State
cannot recognize that authority. The question of acting bond fide under color of an
asserted belligerent power in the rebels, cannot arise between the State and one of its
own subjects. The only result would seem to be, that, in a court of law, the rebel is
a criminal. Rose v. Himely, Cr. iv. 272. Cheriot v. Foussat, Bing. iii. 253. Nelson J.,
in the trial of the Savannah pirates, 371-3. Grier J., in the trial of Smith, 96-99. Judge
Spraguexs charge to the Grand Jury, Sprague's Decisions, ii. and Law Rep. xxiv. 17, 18.
Judge Sprague's opinion in the Amy Warwick, Sprague's Decisions, ii. and lb. 344.

Is his crime piracy % Whether piracy by the municipal law, is a mere question
of special statutes, not of international law. The State can so denominate the crime
if it chooses. Can the courts of the parent State pronounce the act piracy jure gentium ?
In the case of King James II. 's pirates (Howell's State Trials, xii.J), men cruising
against British commerce under a commission from James II., who claimed to be de
jure king, were adjudged pirates jure gentium. Dr. Phillimore (Intern. Law, i. 406J
says, " The reason of the theory must be allowed to preponderate greatly towards the
position that these privateers were jure gentium pirates."

The proclamation of the President of the United States of 19 April, 1861, declares
that " any person acting under pretended authority of the States in rebellion and
molesting vessels of the United States, would be held amenable to the laws of the
Union for the prevention and punishment of piracy." United States Laws, xii., App.
for 1861, p. 2. This does not necessarily imply piracy jure gentium, as there were
statutes in existence declaring acts to be piracy which would not or might not be so
jure gentium. The crew of The Savannah, commissioned under rebel authority, were
indicted for piracy, and tried at New York before Judge Nelson. He ruled that their
offence, if proved, was piracy under the counts founded upon the statutes, but expressed
a doubt whether it would be piracy jure gentium. The reason, however, which he
assigned for the doubt, is inadequate ; viz., that the prisoners' intention to depredate was
confined to vessels and cargoes of one nation only : while, to constitute such piracy, a
general intent to depredate on vessels of any or all nations was essential. This distinc-
tion is not maintainable in principle or on authority. ( See note 83, supra, on Piracy .)
The real difficulty is in the actual intent of the individuals, which is not to depredate
196

PAET II.] CRIMINAL LEGISLATION. § 125

§ 125. The African slave-trade, though prohibited by siave-
the municipal laws of most nations, and declared to be ther prohib-
piracy by the statutes of Great Britain and the United j^d ^n^_e
States, and, since the treaty of 1841, with Great Britain, tions-

in a criminal sense, but to capture and destroy jure belli. An answer to this objection
is, that a subject of the State cannot be allowed, in a court of his own State, to plead any
such intent under such circumstances. It is inconsistent with the political right which
the State has of treating rebellion as a crime. In the trial of Smith in Philadelphia,
who was acting under a rebel commission, Judge Grier held that the court could treat
him only as a pirate and robber. ( Smith's Trial, 1861.) Smith and his associates were
convicted ; but the President, from motives of policy, and because the rebels threatened
retaliation, transferred them to military custody as prisoners of war : and no cases
afterwards occurred of an attempt by the government to treat rebels in arms as crimi-
nals. But this course of policy does not affect the legal question, in the abstract,
before a court ; as the sovereign, in suppressing a rebellion, may exercise as well
sovereign as belligerent powers against rebels. (Prize Causes, Black, ii. 635. Amy
Warwick, Sprague's Decisions, ii., and Law Rep. xxiv. 344. Rose v. Himely,
Cr. iv. 272.) In the debate in the House of Lords, on the 16th May, 1861, on the
President's proclamation, it was conceded by Lords Brougham, Kingsdown, Chelms-
ford, Derby, and the Lord Chancellor, that it was competent for the United States to
treat their own citizens, cruising under Confederate authority, as pirates ; but whether
jure gentium or under statute law was not distinctly noticed.

If it is conceded that a rebel, indicted in the courts of the parent State for piracy
under the law of nations, cannot be allowed to set up that his intent was to depredate
only jure belli, the logical result would seem to be that such courts may declare him
a pirate jure gentium, unless, to constitute such piracy, an actual intent to depredate
irrespective of the national character of vessels is an essential element in that crime.
That such an intent is not necessary, vide supra, note 83, on Piracy.

The next question is, how such persons will be regarded in the courts of a neutral
country. Lord Chelmsford said, in the debate above referred to : " If the Southern
Confederacy had not been recognized as a belligerent power [i.e. by the British Gov-
ernment], if any Englishman were to fit out a privateer for the purpose of assisting
the Southern States against the Northern States [i.e. the United States], he would be
guilty of piracy." The reasoning would seem to be, that the same rules govern the
courts of the neutral nations as govern those of the parent State. If the acts are
sufficient to constitute piracy, unless the authority is a defence, the court of the neutral
country must follow the lead of the political department of its government, as recog-
nition of belligerency is a political, and not^a judicial, question. Accordingly, if the
neutral government has declined to recognize the parties to a rebellion as belligerents,
its courts cannot allow their commission to be a defence, or treat acts done under it as
belligerent acts. The courts of the parent State and of the neutral power both follow
the lead of the political department. But the further question arises, whether, reject-
ing the authority of the commission and the lawful belligerency of the acts, the court
. may not still open the question of the actual intent of the prisoner. In United States
v. Klintock, Wheaton's Rep. v. 149, Marshall C. J. threw out a suggestion whether a
person, acting in good faith under a commission purporting to be issued by com-
petent foreign authority, might not be clear of the crime of piracy. No State can
admit that defence by its own citizens engaged in a contest against itself. Perhaps
a court of law cannot do so in a case of one of its own citizens acting under a com-
mission from any foreign power not recognized as belligerent by his sovereign. A

17* 197

§ 125 RIGHTS OF CIVIL AND [PART II.

by Austria, Prussia, and Russia, is not such by the general interna-
tional law ; and its interdiction cannot be enforced by the exercise
of the ordinary right of visitation and search. That right does not
exist, in time of peace, independently of special compact, (a)

writer in the Am. Jurist, vol. x. 267-8, contends that " whoever takes a commission
to wage private war from any other than his own sovereign, does it at his own peril,
and must know that the commission he receives is lawful. Any other position
appears inconsistent with the safety of mankind."

The course pursued by the British Government during the war of the American
Revolution seems to have been this : An Act of Parliament was passed (17 Geo. III.
ch. 9, 1777), reciting that acts of treason, piracy, and felony had been committed by
sundry persons, many of whom were, and would thereafter be, confined for trial on
charges of such crimes, and that it might be inconvenient to try them forthwith, and
of evil example to let them go at large, and authorizing the detention of such persons
by the crown, with bail or judicial intervention, for one year. This act was renewed
annually until the end of the war. Its object was to obtain a parliamentary declara-
tion that the legal status of American rebels was that of felons or pirates, and to secure
a mode of detaining them in custody without recognizing them as prisoners of war, or
being obliged to bring them to trial as criminals. In the mean time, between the
armies in America, prisoners were treated as prisoners of war, exchanged, paroled, &c. ;
and it is believed that no persons were judicially tried and punished as criminals
during the war : and the recognition of independence disposed of the question.

The next question is, how foreigners who aid the rebellion by cruising against com-
merce will be regarded by the courts of the parent country. It would seem that the
court can make no distinction in their favor. The rebellion is a crime ; and all who
voluntarily aid it in arms are criminals, whether subjects or intervening foreigners.
The fact that the sovereign, whose subjects those foreigners are, may have recog-
nized the rebellion as belligerent, can have no legal effect on their status in the court of
the State engaged in subduing the rebellion. It is a fact addressing itself solely to the
political department of the government. In the debate in the House of Lords, on
the 16th May, 1861, upon the President's proclamation, strong expressions were used
by Lords Kingsdown and Cran worth and the Lord Chancellor (Westbury), to the
effect that the United States ought not to claim the rights of a belligerent as against
foreign commerce, — viz., search and blockade, and yet treat the rebels as traitors,
and British subjects, cruising under rebel commissions, as criminals ; and that, as
Britain had acknowledged the rebels as capable of commissioning cruisers, she had a
right to demand that their commissions should be respected by the United States in
case of British subjects. These were, however, considerations addressed to statesmen
and not to courts. And, at the same time, it seemed to be conceded by all the law
lords, that, under the terms of the Queen's proclamation of May 13, 1861, recognizing
belligerency, no British subject, making himself a party to the war against the United
States, with which Great Britain was at peace, could expect the intervention of the
crown in his favor.

The terms of the Queen's proclamation bearing on this point are these : It declares
Great Britain to be at peace with the United States, — recognizing the persons in
rebellion as belligerents, and both "the contending parties" as having the rights of
belligerents against neutrals ; declares strict neutrality and non-intervention ; and com-

(a) Dodson's Adm. Rep. ii. 210, Le Louis. Wheaton's Rep. x. 66, La Jeune
Eugenie.

198

PART II.] CRIMINAL LEGISLATION. § 125

The African slave-trade, once considered not only a lawful but
desirable branch of commerce, a participation in which was made
the object of wars, negotiations, and treaties between different
European States, is now denounced as an odious crime, by the
almost universal consent of nations. This branch of commerce
was, in the first instance, successively prohibited by the municipal

mands all British subjects to observe strict neutrality, and " to abstain from violating
or contravening either the law and statutes of the realm in that behalf, or the law of
nations in relation thereto, as they will answer to the country at their peril." It
calls attention to the neutrality or foreign-enlistment act of 59 George III. ; and
declares that British subjects, offending against that statute. or the law of nations
respecting war, will be liable to the penalties of the statute and the law of nations ; and
ends with the declaration, that British subjects " who may misconduct themselves in
the premises . . . will do so at their peril and of their own wrong," and that " they
will in no wise obtain any protection from us against any liabilities or penal conse-
quences, but will, on the contrary, incur our high displeasure by such misconduct."

No case occurred, in this war, of a British subject, engaged in acts which Great
Britain declares and considers belligerent when done by the parties to the war, being
treated by the United States as a pirate, or otherwise as a criminal ; the government
giving all foreigners found in arms under rebel authority the same treatment they
gave to citizens in arms, — that of prisoners of war.

The proclamation of the Emperor of the French, of June, 1861, and of the Queen
of Spain, of 17 June, 1861, are substantially to the same effect; and both warn their
subjects, that, if they make themselves parties to the war, they shall have no claim
to any protection from their government against any acts or measures, whatever they
may be, which the belligerents may exercise or decree.

A question cognate to the present was presented in the cases arising out of the
burning of the American merchant-ship Golden Rocket. This vessel was seized at sea
and burned in July, 1861, by the steamer Florida, commanded by one Semmes, who
held a commission as an officer in the navy of the rebel government. Actions were
brought on the policies of insurance in the Supreme Courts of Maine and Massachu-
setts, and in the Circuit Court of the United States for Massachusetts. Among the
questions of law argued was this : Whether the owners could recover for a loss under
policies which did not insure against belligerent capture, but did insure against pirates
and assailing thieves. The Supreme Court of Massachusetts, by a unanimous opinion,
that of Maine by an opinion of a majority of the court, and Mr. Justice Clifford in the
Circuit Court of the United States, decided, that, this being a mere civil private con-
tract, the question was, what the parties meant by the words they used : and, although
the legal status of the citizens of the United States who committed this act, in the
view of the law of the Union, in any criminal proceeding against them, would be that of
traitors, criminals, and, at least under the statute law, of pirates, the contract between
underwriters and merchants looked, not to the code or policy of any one nation in its
use of the term " pirate" as distinguished from a belligerent, but referred to general
commercial usages of speech, and to such a state of things as constituted piracy by
the general, public, commercial law of the world ; and that, as the rebellion had risen
to the dimensions of an actual war waged by a de facto government, which the chief
commercial nations of the world recognized as belligerent, and in which war the
United States had exercised powers and privileges accorded by neutrals only to a state
of war, the act of destroying The Golden Rocket was not piracy in the sense of the

199

§ 125 RIGHTS OF CIYIL AND [PART II.

laws of Denmark, the United States, and Great Britain, to their
own subjects. Its final abolition was stipulated by the treaties
of Paris, Kiel, and Ghent, in 1814, confirmed by the declaration of
the Congress of Vienna, of the 8th of February, 1815, and reiter-
ated by the additional article annexed to the treaty of peace con-
cluded at Paris, on the 20th November, 1815. The accession of
Spain and Portugal to the principle of the abolition was finally
obtained, by the treaties between Great Britain and those powers,

policy. See The Golden Bocket Cases — viz., Dole v. The N. Eng. M. M. Ins. Co.
Allen, vi. 392 ; Dole v. Merch. M. M. Ins. Co. ; and Dole v. N. Eng. M. M. Ins. Co., in
the United States Circuit Court for Massachusetts, October, 1864.

The following propositions are offered, not as statements of settled law (for most
of them are not covered by a settled usage of nations, by judicial decisions of present
authority, or by the agreement of jurists), but as suggestions of principles : —

I. The courts of a State must treat rebellion against the State as a crime, and
the persons engaged in it as criminals. If the acts are depredations on commerce
protected by the State, they may be adjudged piracy jure gentium by the courts of the
State. It is a political and not a legal question, whether the right so to treat them
shall be exercised.

II. The fact that the State has actually treated its prisoners as prisoners of war,
exchanged prisoners, respected flags of truce, &c, or has claimed and exercised the
powers and privileges of war as against neutrals, does not change the abstract rule of
law, in the Court. If the State presents such persons to the court for trial, the court
must adjudge them criminals. The question whether they shall be so presented is one,
not of law, but of policy, which the political department of the State must hold in its
hands, and which may be varied from time to time, according to circumstances.

III. If a foreigner knowingly cruises against the commerce of a State under a
rebel commission, he takes the chance of being treated as a pirate jure gentium, or
a belligerent. In point of law, his foreign allegiance or citizenship is immaterial. In
this respect, it is immaterial whether the sovereign whose subject he is has recog-
nized the rebel authorities as belligerents or not. It is not the custom for foreign
nations to interfere to protect their citizens voluntarily aiding a rebellion against a
friendly State, if that State makes no discriminations against them.

IV. If a foreigner cruises under a rebel commission, he takes the chance of being
treated as a pirate or a belligerent by his own nation and all other nations, as well as
by that he is cruising against. If his own nation does not recognize the belligerency
of the rebels, he is, by the law of his own country, a pirate. If it does, he is not.
In this respect, each nation acts independently of others and for itself; and the courts
of each nation are governed by the consideration whether their own political authori-
ties have, or have not, recognized the belligerency.

V. Where a rebellion has attained such dimensions and organization as to be a
State de facto, and its acts reach the dimensions of war de facto, and the parent State
is obliged to exercise powers of war to suppress it, and especially if against neutral
interests, it is now the custom for the State to yield to the rebellion such belligerent
privileges as policy and humanity require ; and to treat captives as prisoners of war,
make exchanges, respect flags of truce, &c. Yet this is a matter of internal State
policy only, changeable at any time. See note 82, ante, The United States a Supreme
Government.] — D.

200

PART II.] CRIMINAL LEGISLATION. § 126

of the 23d September, 1817, and the 22d January, 1815. And by
a convention concluded with Brazil, in 1826, it was made piratical
for the subjects of that country to be engaged in the trade after
the year 1830.

§ 126. By the treaties of the 30th November, 1831, and 22d
May, 1833, between France and Great Britain, to which nearly all
the maritime powers of Europe have subsequently acceded, the
mutual right of search was conceded, within certain geographical
limits, as a means of suppressing the slave-trade. The provisions
of these treaties were extended to a wider range by the Quintuple
Treaty, concluded on the 20th December, 1841, between the five
great European powers, and subsequently ratified between them,
except by France, which power still remained only bound by her
treaties of 1831 and 1833 with Great Britain. By the treaty con-
cluded at Washington, the 9th August, 1842, between the United
States and Great Britain, referring to the 10th article of the treaty
of Ghent, by which it had been agreed that, both the contracting
parties should use their best endeavors to promote the entire abo-
lition of the traffic in slaves, it was provided, article 8, that " the
parties mutually stipulate that each shall prepare, equip, and
maintain in service, on the coast of Africa, a sufficient and ade-
quate squadron, or naval force of vessels, of suitable numbers and
descriptions, to carry in all not less than eighty guns, to enforce,
separately and respectively, the laws, rights, and obligations of
each of the two countries, for the suppression of the slave-trade,
the said squadrons to be independent of each other, but the two
governments stipulating, nevertheless, to give such orders to the
officers commanding their respective forces, as shall enable them
most effectually to act in concert and co-operation, upon mutual
consultation, as exigencies may arise, for the attainment of the
true object of this article ; copies of all such orders to be com-
municated by each government to the other, respectively." By
the treaty of the 29th May, 1845, between France and Great Brit-
ain, new stipulations were entered into between the two powers,
by which a joint co-operation of their naval forces on the coast of
Africa, for the suppression of the slave-trade, was substituted for
the mutual right of search, provided by the previous treaties of
1831 and 1833.85

[85 The Slave Trade as Piracy. — As Mr. Wheaton's text and notes leave the sub-
ject, it stands thus : The slave trade was prohibited to their own subjects by the United

201

§ 127 EIGHTS OF CIVIL AND [PART II.

Decisions

§ 127. This general concert of nations to extinguish
of British the traffic has given rise to the opinion, that though once

and Amen- ° x °

can courts tolerated, and even protected and encouraged, by the
jus ice. jawg ^ every maritime country, it ought henceforth to be
considered as interdicted by the international code of Europe and
America. This opinion first received judicial countenance from
the judgment of the Lords of Appeal in Prize Causes, pronounced

States, Great Britain, France, Russia, Prussia, Austria, Spain, Portugal, Brazil, Den-
mark, and other powers. By the treaty of 1841, between Great Britain, Russia, Aus-
tria, and Prussia, the trade is declared piracy, and a mutual right of search is granted.
Between Great Britain and France, and Great Britain and the United States, no
mutual right of search was conceded ; but, instead of that, w7ere stipulations for main-
taining naval cruisers, and for certain modes of naval co-operation. The history of the
question, before as well as since, can be given to advantage in more detail.

By the treaty of Paris, of 1814, the eight powers engaged to exert themselves to sup-
press " the sin of the slave trade ; " and, by a separate article, Great Britain and France
agreed to co-operate in obtaining the assent of all the civilized powers to a treaty
declaring the abolition of the slave trade. Afterwards, in 1815, Great Britain proposed
to France to agree to a mutual right of search within certain latitudes. The French
Government declined the proposition, on the ground that the concession of the right
of search was unpopular and hazardous. (Lord Castlereagh to the Duke of Welling-
ton, and correspondence of Wellington and Talleyrand, October and November, 1815.)
Great Britain made the same proposal, the same year, to Portugal, with like ill success.
The declaration of 8#February, 1815, between the parties to the Congress of Vienna,
was to the effect that they considered the slave-trade as " repugnant to the principles
of humanity and of universal morality ; " and the eight powers bound themselves to
take measures to secure its abolition. Between Great Britain, Sweden, the Nether-
lands, and Portugal, there are stipulations for a right of search, either general or
within certain latitudes, and for trials by a mixed commission. At the Congress of
Verona, in 1822, France refused to consent to a right of search, or to declaring the
trade piracy jure gentium. Wheaton's Hist, of Law of Nations, 614-689. Between
Great Britain and Spain, the treaty of 1835 conceded a right of search, and estab-
lished mixed tribunals.

Between Great Britain and the United States, while there were declarations of a
purpose and desire to suppress the trade, the United States refused to concede any
right of search. (Correspondence between Messrs. Adams, Gallatin, and Rush : Am.
State Papers, v.) In 1820, the United States, by Act of Congress, declared the slave
trade piracy ; and, soon afterwards, Great Britain did the same by Act of Parliament.
In 1824, a convention was signed which conceded a right of search within certain
latitudes ; but, by advice of President Monroe, it was rejected, for that reason, by the
Senate. Both the President and Mr. Adams doubted the power of the government,
under our Constitution, to subject American citizens to trial by mixed tribunals ; and,
in lieu of such tribunals, the proposed convention provided that offenders should be
sent to their respective countries for trial.

The celebrated Quintuple Treaty of 1841 conceded the right of search between

the five great powers ; but France declined to ratify it. It is understood that the

ministers of the United States in Europe, especially Mr. Wheaton in Prussia and Mr.

Cass in Paris, were influential in obtaining this refusal by France ; but between the

202

PART II.] CRIMINAL LEGISLATION. § 128

in the case of an American vessel, The Amedie, in 1807, the trade
having been previously abolished by the municipal laws of the
United States and of Great Britain.

§ 128. The judgment of the court was delivered by Sir The
William Grant, in the following terms : Amedie.

" This ship must be considered as being employed, at the time
of capture, in carrying slaves from the coast of Africa to a Spanish
colony. We think that this was evidently the original plan and

other powers — Great Britain, Russia, Prussia, and Austria — the treaty subsisted. In
1845, between Great Britain and Prance, stipulations for naval co-operation were sub-
stituted for the proposed mutual right of search. Treaties of 1831, 1833, and 1845.

In 1850, Great Britain stood a party to twenly-four treaties for the suppression of
the slave trade. Of these, ten gave a right of search and of mixed courts ; twelve
gave the right of search, with trial only before home tribunals; two (with United
States and France) gave neither right of search nor mixed tribunals, but provided for
naval co-operation. . Phillimore's Intern. Law, i. 332-3.

By the treaty of Washington of 1842 (commonly called the Ashburton Treaty), a
provision was made for naval co-operation : the United States declining to agree to
a right of search, however limited, or to mixed tribunals. But the subject is now
practically settled between the two nations by the treaty of 7 April, 1862, negotiated
by Mr. Seward and Lord Lyons.

The chief provisions of this treaty are as follows : The right to detain, search, seize,
and send in for adjudication, is confined to cruisers of either power, expressly author-
rized for that purpose ; and is to be exercised only over merchant-vessels, and only
within a distance of two hundred and twenty miles from the coast of Africa, and to
the southward of thirty-two degrees north latitude, and within thirty leagues from the
island of Cuba, and never within the territorial waters of either contracting power.
The right to visit is to be exercised where there is " reasonable ground " to suspect a
vessel of having been fitted out for, or engaged in, the trade. The only slave trade re-
ferred to is the " slave trade upon the coast of Africa," or the " African slave trade."

To secure responsibility and freedom from vexation, special provisions are made
as to exhibiting written authority, with names of the cruiser and her commander;
entries on log-books, requiring the boarding-officers and commanders of authorized
cruisers to be of a certain rank in the navy ; providing exchange of notifications
between the two powers of the names of vessels and commanders employed, and as to
the course to be pursued in case of convoy, &c. ; and stipulations that each power will
make indemnification for losses to vessels arbitrarily and illegally detained. As to what
shall constitute reasonable suspicion, certain articles cr arrangements found on board
are specified as authorizing a bringing in for adjudication, and as affording protection
against claims for damages, and as prima facie evidence of being in the trade, and as
authorizing condemnation of the vessel, unless clear and incontrovertible evidence is
adduced that they were engaged in legal business. Mixed tribunals are constituted
for adjudication upon the vessels, but persons are to be sent home to their respective
jurisdictions to be tried. Vessels condemned by the tribunals are to be broken up,
unless either government takes them for its navy, at an appraisement ; and the negroes
found on board are to be delivered to the State whose cruiser made the capture, and
to be by that State set free. U. S. Laws, xii. 279.] — D.

203

§ 128 RIGHTS OF CIVIL AND [PART II.

purpose of the voyage, notwithstanding the pretence set up to veil
the true intention. The claimant, however, who is an American,
complains of the capture, and demands from us the restitution of
property, of which, he alleges, that he has been unjustly dispos-
sessed. In all the former cases of this kind which have come
before this court, the slave-trade was liable to considerations very
different from those which belong to it now. It had, at that time,
been prohibited (so far as respected carrying slaves to the colonies
of foreign nations) by America, but by our own laws it was still
allowed. It appeared to us, therefore, difficult to consider the pro-
hibitory law of America in any other light than as one of those
municipal regulations of a foreign State of which this court could
not take any cognizance. But by the alteration which has since
taken place, the question stands on different grounds, and is open
to the application of very different principles. The slave-trade has
since been totally abolished by this country, and our legislature
has pronounced it to be contrary to the principles of justice and
humanity. Whatever we might think, as individuals, before, we
could not, sitting as judges in a British court of justice, regard the
trade in that light while our own laws permitted it. But we can
now assert that this trade cannot, abstractedly speaking, have a
legitimate existence.

" When I say abstractedly speaking, I mean that this country
has no right to control any foreign legislature that may think fit
to dissent from this doctrine, and to permit to its own subjects
the prosecution of this trade ; but we have now a right to affirm
that primd facie the trade is illegal, and thus to throw on claim-
ants the burden of proof, that, in respect of them, by the author-
ity of their own laws, it is otherwise. As the case now stands,
we think we are entitled to say that a claimant can have no
right, upon principles of universal law, to claim the restitution
in a Prize Court of human beings carried as slaves. He must
show some right that has been violated by the capture, some prop-
erty of which he has been dispossessed, to which he ought to be
restored. In this case, the laws of the claimant's country allow of
no property such as he claims. There can, therefore, be no right
to restitution. The consequence is, that the judgment must be
affirmed." (a)

(a) Acton's Admiralty Keports, i. 240.
204

PART II.] CRIMINAL LEGISLATION. § 129

§ 129. In the case of The Fortuna, determined in 1811, The For_
in the High Court of Admiralty, Lord Stowell, in deliver- tuna-
ing the judgment of the court, stated that an American ship, quasi
American, was entitled, upon proof, to immediate restitution ; but
she might forfeit, as other neutral ships might, that title, by various
acts of misconduct, by violations of belligerent rights most clearly
and universally recognized. But though the Prize Court looked
primarily to violations of belligerent rights as grounds of confis-
cation in vessels not actually belonging to the enemy, it had
extended itself a good deal beyond considerations of that descrip-
tion only. It had been established by recent decisions of the
Supreme Court, that the Court of Prize, though properly a court
purely of the law of nations, has a right to notice the municipal
law of this country in the case of a British vessel which, in the
course of a prize-proceeding, appears to have been trading in vio-
lation of that law, and to reject a claim for her on that account. "
That principle had been incorporated into the prize-law of this
country within the last twenty years, and seemed now fully incor-
porated. A late decision in the case of The Amedie seemed to
have gone the length of establishing a principle, that any trade
contrary to the general law of nations, although not tending to, or
accompanied with, any infraction of the law of that country whose
tribunals were called upon to consider it, might subject the vessels
employed in that trade to confiscation. The Amedie was an
American ship, employed in carrying on the slave-trade ; a trade
which this country, since its own abandonment of it, had deemed re-
pugnant to the law of nations, to justice, and humanity ; though
without presuming so to consider and treat it where it occurs in
the practice of the subjects of a State which continued to. tolerate
and protect it by its own municipal regulations ; but it put upon
the parties the burden of showing that it was so tolerated and
protected, and in failure of producing such proof, proceeded to
condemnation, as it did in the case of that vessel. " How far that
judgment has been universally concurred in and approved," con-
tinued Lord Stowell, " is not for me to inquire. If there be those
who disapprove of it, I certainly am not at liberty to include myself in
that number ', because the decisions of that court bind authoritatively the
conscience of this ; its decisions must be conformed to, and its prin-
ciples practically adopted. The principle laid down in that case
appears to be, that the slave-trade, carried on by a vessel belonging

18 205

§ 131 RIGHTS OF CIVIL AND [PART II.

to a subject of the United States, is a trade which, being un-
protected by the domestic regulations of their legislature and
government, subjects the vessel engaged in it to a sentence of
condemnation. If the ship should therefore turn out to be an
American, actually so employed — it matters not, in my opinion,
in what stage of the employment, whether in the inception, or the
prosecution, or the consummation of it — the case of The Amadie
will bind the conscience of this court to the effect of compelling
it to pronounce a sentence of confiscation." (a)

TheDi- § ^^. In a subsequent case, that of The Diana, Lord
ana- Stowell limited the application of the doctrine invented

by Sir W. Grant, to the special circumstances which distinguished
the case of The Amedie. The Diana was a Swedish vessel, cap-
tured by a British cruiser on the coast of Africa whilst actually
engaged in carrying slaves to the Swedish West-India possessions.
The vessel and cargo were restored to the Swedish owner, on the
ground that Sweden had not then prohibited the trade by law or
convention, and still continued to tolerate it in practice. It was
stated by Lord Stowell, in delivering the judgment of the High
Court of Admiralty in this case, that England had abolished the
trade as unjust and criminal ; but she claimed no right of enforcing
that prohibition against the subjects of those States which had not
adopted the same opinion ; and England did not mean to set her-
self up as the legislator and custos morum for the whole world, or
presume to interfere with the commercial regulations of other
States. The principle of the case of The Amedie was, that where
the municipal law of the country to which the parties belonged had
prohibited the trade, British tribunals would hold it to be illegal
upon general principles of justice and humanity ; but they would
respect the property of persons engaged in it under the sanction of
the laws of their own country, (a)

, The above three cases arose during the continuance of the war,
and whilst the laws and treaties prohibiting the slave-trade were
incidentally executed through the exercise of the belligerent right
of visitation and search.

§ 131. In the case of The Diana, Lord Stowell had

oms* sought to distinguish the circumstances of that case from

those of The Amedie, so as to raise a distinction between the case

of the subjects of a country which had already prohibited the

(a) Dodson's Admiralty Reports, i. 81. (a) Ibid. 95.

206

PART II.] CRIMINAL LEGISLATION. § 131

slave-trade, from that of those whose governments still continued
to tolerate it. At last came the case of the French vessel called
The Louis, captured after the general peace, by a British cruiser,
and condemned in the inferior Court of Admiralty. Lord Stowell
reversed the sentence in 1817, discarding altogether the author-
ity of The Amedie, as a precedent, both upon general reasoning,
which went to shake that case to its very foundations, and upon the
special ground, that even admitting that the trade had been actu-
ally prohibited by the municipal laws of France, (which was doubt-
ful,) the- right of visitation and search (being an exclusively
belligerent right) could not consistently with the law of nations
be exercised, in time of peace, to enforce that prohibition by the
British courts upon the property of French subjects. In delivering
the judgment of the High Court of Admiralty in this case, Lord
Stowell held that the slave-trade, though unjust and condemned
by the statute law of England, was not piracy, nor was it a
crime by the universal law of nations. A court of justice, in the
administration of law, must look to the legal standard of morality
— a standard which, upon a question of this nature, must be found
in the law of nations as fixed and evidenced by general, ancient,
and admitted practice, by treaties, and by the general tenor of the
laws, ordinances, and formal transactions of civilized States ; and
looking to these authorities, he found a difficulty in maintaining
that the transaction was legally criminal. To make it piracy or a
crime by the universal law of nations, it must have been so consid-
ered and treated in practice by all civilized States, or made so by
virtue of a general convention.

The slave-trade, on the contrary, had been carried on by all
nations, including Great Britain, until a very recent period, and
was still carried on by Spain and Portugal, and not yet entirely
prohibited by France. It was not, therefore, a criminal act by
the consuetudinary law of nations ; and every nation, independ-
ently of special compact, retained a legal right to carry it on.
No nation could exercise the right of visitation and search upon
the common and unappropriated parts of the ocean, except upon the
belligerent claim. No one nation had a right to force its way to
the liberation of Africa by trampling on the independence of
other States ; or to procure an eminent good by means that are
unlawful ; or to press forward to a great principle by breaking
through other great principles that stand in the way. The right

207

§ 132 RIGHTS OF CIVIL AND [PART II.

of visitation and search on the high seas did not exist in time of
peace. If it belonged to one nation it equally belonged to all,
and would lead to gigantic mischief and universal war. Other
nations had refused to accede to the British proposal of a recip-
rocal right of search in the African seas ; and it would require
an express convention to give the right of search in time of
peace, (a)86

Madrazo § ^^* ^ne lading principles of this judgment were
v. Wiiies. confirmed in 1820 by the Court of King's Bench, in the

(a) Dodson's Admiralty Reports, ii. 210.

[86 The Amedle, and subsequent Cases. — A careful examination leads to the belief
that the case of The Amedie, and those following it, have been misunderstood by the
author, as well as by others. The report of The Amedie in the Appellate Court dis-
closes so little of the facts, and the opinion is so restricted to the point technically
sufficient for a decision, that it might well mislead persons not familiar with the practice
of prize courts and not informed of the history of the case. England was at war with
Spain ; and her Orders in Council had declared that the ports of Cuba were under
blockade, except for certain specified kinds of neutral trade. The Amedie was cap-
tured jure belli by a British cruiser in the West Indies. She had a cargo of slaves on
board, and was bound from the coast of Africa, under American colors and papers.
The ground of capture was, that she was destined to Cuba in violation of blockade.
She was libelled as prize, in a British Vice-Admiralty Court in the West Indies, and
condemned. The proceeding, from beginning to end, was one of prize of war solely ;
and her condemnation had nothing to do with her being engaged in the slave trade.
An appeal was taken from this decision, and the decree was affirmed by the Appellate
Court. The explanation of the fact, that this case has so almost uniformly been cited
as one of condemnation of a foreign vessel for being engaged in the slave trade, may
be found in the peculiarity of the rules which govern courts of prize in respect to con-
demnation and restitution.

Where a vessel has been captured as prize of war by a regular cruiser, and the
circumstances show the capture to have been with probable cause, so that the captors
and the court are in justifiable possession, there are two contingencies, either of which
requires a decree of condemnation, — first, where the affirmative proof shows that
the vessel is a good prize by the laws of war ; and, second, where, in the absence of
such proof, or irrespective of it, no intervening party establishes a claim to the
property. The absence of claims to the property after sufficient time, or the rejec-
tion by the court, for any cause whatever, of the claims made, leaves the property to
be condemned as prize, irrespective of the question whether the affirmative proofs, of
themselves, make a case for condemnation. It is also to be noticed, that a claim to
prize property is an affirmative proceeding, in which the claimant is a plaintiff or
actor, and has the onus of establishing his title to ownership and possession, and his
right to receive the property from the court. A stranger or amicus curice is not permit-
ted to question the validity of the capture. This is open only to a claimant upon the
basis of a right in himself to receive the property in case it should not be condemned.
Sometimes, therefore, the prize court, especially on an appeal from condemnation, will
give its attention solely or mainly to the legality of the claim ; and, if the only claim
made is rejected, the condemnation is affirmed as of course. Nor is condemnation for
want of legal claim a mere technical rule, but one founded upon the reason that the
208

PART II.] CRIMINAL LEGISLATION. § 132

case of Madrazo v. Willes, in which the point of the illegality of
the slave-trade, under the general law of nations, came incidentally
in question. The court held that the British statutes against the

absence of a good claim to valuable property taken under suspicious circumstances,
furnishes a presumption that there are condemnatory facts of which the court has not
been able to get possession.

When the case of The Amedie came before the Appellate Court, it was argued on
both points, — on the affirmative proof that the vessel was violating the rules of war,
and on the invalidity of the claim made by the asserted owners. The court, in a single
sentence, expressed itself satisfied, that, on all the evidence, the vessel was bound to an
enemy's colony which was under blockade, and therefore a good prize ; and then pro-
ceeded to an examination of the case of the claimant. Assuming the title of the vessel
and cargo to be in him, the question was whether the claim was of a character which
the court could recognize and enforce. And here it is to be remembered, that a court
of prize will reject a claim founded in a transaction prohibited by positive law, or con-
trary to universal principles of justice and humanity ; and the counsel for the captors
had taken the ground that such was the character of the slave trade. • The court
decided, that, if this vessel was to be considered as bond fide American, the claim could
not be rejected on the sole ground that the British law prohibited the slave trade ; for
that was a municipal law, and affected only British subjects and territory. The court
further held, that the slave trade could not be considered as illegal under the law of
nations, so as to authorize a prize court to treat it as illegal in the case of a citizen of a
State which permitted it. The ground taken by the court was, that, in the then con-
dition of British law, and of the laws and treaties of most civilized nations, the slave
trade must be considered as prima facie illegal ; thus throwing on the claimant the
burden of proving that the trade is allowed by the law of his own country. As
the law of the United States prohibited the slave trade, treated slaves in transitu from
Africa as free, declared a vessel so engaged forfeited, and punished the parties con-
cerned with severe penalties, the claimant certainly failed to establish his right. The
court, therefore, confirmed the decree of the court below, on two grounds, either of
which was sufficient, — first, that the proof of attempt to violate blockade was satisfac-
tory, as an affirmative ground for condemnation ; and, second, that, irrespective of that
ground, the claim of the American owner must be dismissed as one not enforceable in
a prize court by reason of the laws both of the United States and Great Britain
respecting the slave trade. On either ground, therefore, the vessel was condemned
solely as prize of war. Yet this case has been represented by eminent writers as a
decision that British cruisers, even in time of peace, may visit and search vessels of
any nation, or at least of a nation that prohibits the slave trade, on suspicion of being
engaged in that trade ; and that vessels of such a nation found to be so engaged will
be condemned in a British court on that ground. ( See this case in Acton, i. 240 ; and
Dodson, i. 84, note.)

The cases of The Africa (Acton, ii. 1), The Nancy (lb. 2), and The Anne (lb. 6),
were all likewise prize causes ; and the capture and condemnation in each were
jure belli, and not for being engaged in. the slave trade. The possession of the captor&
being justifiable, the court rejected the claims of asserted owners, partly on the same
grounds as in The Amedie, and partly for causes connected with the laws of war.

The Fortuna (Dodson, i. 81). — This was exclusively a prize cause. The vessel was
captured and condemned as prize of war. The claimant was an American. On
appeal, the only question considered was, whether the claim was established by
proofs, and was of such a character that it could be admitted. It was held, on the

18* 209

§ 132 RIGHTS OF CIVIL AND [PART II.

slave-trade were applicable to British subjects only. The British
Parliament could not prevent the subjects of other States from
carrying on the trade out of the limits of the British dominions.

authority of The Amedie, that, the vessel being American and the slave trade
illegal by American law, and the negroes by that law free, the claimant was not
entitled to receive his negroes or their value from a prize court of England. The
claim being dismissed, the decree below of condemnation, as prize of war, was af-
firmed, as of course. What direct evidence there was showing the vessel to have
violated belligerent rights does not appear, nor, in strictness of law, was it necessary
that it should appear.

The Diana (Dodson, i. 95). — This is well styled by Lord Stowell a "mongrel
case." The pleadings and proceedings in the Vice-Admiralty Court were partly
prize and partly civil, or instance ; the decree was solely as prize ; while the appeal
was to a court having only a civil, appellate jurisdiction. The vessel was held to be
Swedish, engaged in the slave trade to a Swedish island ; and the court decided that
the law of Sweden permitted the trade. The claim was, therefore, one that the court
could entertain, within the rule in The Amedie. The court treated the cause as one of
civil forfeiture only ; and, no ground for that appearing, the property was restored.

he Louis (Dodson, ii. 210). — This is the case which is treated by Mr. Wheaton
and most others as having overruled The Amedie. It was a civil cause for for-
feiture, and has no relation to prize law or its presumptions or rules. The grounds
taken by the counsel for the captors were, that the vessel was French, and engaged in
the slave trade, which was prohibited by French law, and, as argued, by the law of
nations ; and, further, that the crew had resisted the boarding and search by the
king's ship, and killed some of its crew, and were therefore guilty of piracy, and
out of the protection of the law of nations.

The court held, that the boarding and search, by the king's cruiser, of a foreign
vessel in time of peace, and not on suspicion of piracy jure gentium, but of being
engaged in the slave trade, were unjustifiable, and consequently that resistance to
them was not piratical ; and that the slave trade was not piracy jure gentium, nor pro-
hibited by the law of France. Therefore it was clear that the vessel not only could
not be decreed forfeited by any British tribunal, but was illegally seized and brought
before the court. The original taking was illegal.

In this cause, Sir William Scott made a learned and judicious explanation of the
various positions which had been taken by writers and statesmen as to the right of
visit, search, and bringing in for adjudication ; and of the progress of law and opinion
on the subject of the slave trade : but it will be found that this case in no sense over-
rules The Amedie, or those that followed it.

In The Amedie, the visit, search, capture, and bringing in were in the exercise
of belligerent right. In The Louis, they were in time of peace, and solely for the
purpose of suppressing the slave trade. In The Amedie, the proceedings were in
prize, before a prize court, and governed by the law and rules of prize. In The
Louis, they were civil, and governed by the law and rules of civil forfeiture. In
The Amedie, the condemnation was as prize of war. In The Louis, if the vessel
had been condemned, it could have been only for being engaged in the slave trade.
In The Amedie, the capture and bringing in were justifiable, and the court had
clear jurisdiction. In The Louis, the capture and bringing in were unjustifiable ;
and the general duty of the court was to restore, if a proper claimant appeared.
In The Amedie, the burden was on the claimant to show legal title and a right to
receive the property. In The Louis, the burden was on the seizors to* show cause for
210

PART II.] CRIMINAL LEGISLATION. § 133

If a ship be acting contrary to the general law of nations, she is
thereby subject to condemnation ; but it was impossible to say that
the slave-trade is contrary to the law of nations. It was, until
lately, carried on by all the nations of Europe ; and a practice
so sanctioned could only be rendered illegal on the principles of
international law, by the consent of all the powers. Many States
had so consented, but others had not ; and the adjudged cases had
gone no farther than to establish the rule, that ships belonging to
countries that had prohibited the trade were liable to capture and
condemnation, if found engaged in it. (a)87

§ 133. A similar course of reasoning was adopted by The A*n_
the Supreme Court of the United States in the case of teloPe-
Spanish and Portuguese vessels captured by American cruisers,
whilst the trade was still tolerated by the laws of Spain and Portu-
gal.88 It was stated by Mr. Chief Justice Marshall, in delivering

forfeiture. In The Amedie, the claim was rejected because the slave trade, though
not universally illegal, or piracy jure gentium, was illegal by the law of the claimant's
country. In The Louis, the claim was sustained, because the slave trade was neither
' illegal by the law of nations, nor by the law of the claimant's country.

It may be and probably is true, that British cruisers made use of their belligerent
right of search to discover slaves, and took advantage of the severe and summary
rules of war tribunals to secure the condemnation of their prizes ; but this is only
saying that they made an undue use of opportunities which the criminality of their
antagonists put in their power, and does not touch the law decided.

The result is, that the precedents, from The Amedie to The Louis, will be found
consistent with each other, and with the rules of prize courts, and with the law of
nations as to the slave trade.] — D.

(a) Barnwell's & Alderson's Reports, iii. 353.

[87 Madrazo v. Willes has since been confirmed by the decision of the Exchequer
Chamber in the case of Santos v. Illidge.] — D.

[88 The Antelope. Slave Trade. — The Antelope, Wheaton's Rep. x. 66, was not a
prize case, but one for civil forfeiture. The general doctrines of the case, as applied to
a slave trader, may be stated thus : (1) A cruiser of a State which prohibits the slave
trade cannot search or seize a foreign vessel at sea on suspicion of being engaged in
that trade. (2) If that is done, and the vessel comes under cognizance of the court of
the cruiser's sovereign, its general duty is to treat the vessel as if she had not been
seized, and to restore her. (3) In making restitution, the court may look beyond
possession, and inquire into right. It will do this, and will reject the claim of the origi-
nal and prior captors from whose possession the vessel was wrongfully taken, and treat
their capture also as if it had not been made, if it appears that they made ostensibly
a belligerent capture, but equipped themselves for their cruise in violation of the neu-
trality laws of the nation to which the court belongs. (4) Coming back thus to the
owners from whom the first capture was made, the court may look beyond their pos-
session and inquire into their title. If they are foreigners, and their nation allows the
slave trade, — in which their vessel is found to be engaged, — and their private titles
are sufficiently proved, restitution is made to them. If they are citizens of a nation

211

§ 133 RIGHTS OF CIVIL AND [PART II.

the judgment of the court, that it could hardly be denied that the
slave-trade was contrary to the law of nature. That every man
had a natural right to the fruits of his own labor, was generally
admitted ; and that no other person could rightfully deprive him
of those fruits, and appropriate them against his will, seemed to be
the necessary result of this admission. But, from the earliest
times, war had existed, and war conferred rights in which all had
acquiesced. Among the most enlightened nations of antiquity, one
of these rights was, that the victor might enslave the vanquished.
That which was the usage of all nations could not be pronounced
repugnant to the law of nations, which was certainly to be tried by
the test of general usage. That which had received the assent of
all must be the law of all.

Slavery, then, had its origin in force ; but as the world had
agreed that it was a legitimate result of force, the state of things
which was thus produced by general consent could not be pro-
nounced unlawful.

Throughout Christendom this harsh rule had been exploded, and
war was no longer considered as giving a right to enslave captives.
But this triumph had not been universal. The parties to the mod-
ern law of nations do not propagate their principles by force ; and
Africa had not yet adopted them. Throughout the whole extent
of that immense continent, so far as we know its history, it is still
the law of nations that prisoners are slaves. The question then
was, could those who had renounced this law be permitted to par-
ticipate in its effects by purchasing the human beings who are its
victims ?

Whatever might be the answer of a moralist to this question, a
jurist must search for its legal solution in those principles which
are sanctioned by the usages, the national acts, and the general
assent, of that portion of the world of which he considers himself
a part, and to whose law the appeal is made. If we resort to this
standard as the test of international law, the question % must be
considered as decided in favor of the legality of the trade. Both
Europe and America embarked in it ; and for nearly two centuries,

whose laws prohibit the trade, the slaves are treated as that law requires. On the
first part of this proposition — the restoration of slaves to foreigners whose laws allow
the trade — the court was equally divided. The reasons for the division, and the
exact nature of it, are withheld by the' court; but the division operated to confirm
the decree of the court below, which was of restitution to the foreigners so claim-
ing.]—D.
212

PART II.] CRIMINAL LEGISLATION. § 133

it was carried on without opposition, and without censure. A
jurist could not say that a practice thus supported was illegal, and
that those engaged in it might be punished, either personally or
by deprivation of property.

In this commerce, thus sanctioned by universal assent, every
nation had an equal right to engage. No principle of general law
was more universally acknowledged, than the perfect equality of
nations. Russia and Geneva have equal rights. It results from
this equality, that no one can rightfully impose a rule on another.
Each legislates for itself, but its legislation can operate on itself
alone. A right, then, which was vested in all by the consent
of all, could be devested only by consent; and this trade, in
which all had participated, must remain lawful to those who
could not be induced to relinquish it. As no nation could pre-
scribe a rule for others, no one could make a law of nations ; and
this traffic remained lawful to those whose governments had not
forbidden it.

If it was consistent with the law of nations, it could not in itself
be piracy. It could be made so only by statute ; and the obliga-
tion of the statute could not transcend the legislative power of the
State which might enact it.

If the trade was neither repugnant to the law of nations, nor
piratical, it was almost superfluous to say in that court that the
right of bringing in for adjudication, in time of peace, even where
the vessel belonged to a nation which had prohibited the trade,
could not exist. The courts of justice of no country executed the
penal laws of another ; and the course of policy of the American
government on the subject of visitation and search, would decide
any case against the captors in which that right had been exercised
by an American cruiser, on the vessel of a foreign nation, not vio-
lating the municipal laws of the United States. It followed that a
foreign vessel engaged in the African slave-trade, captured on the
high seas in time of peace, by an American cruiser, and brought
in for adjudication, would be restored to the original owners, (a)89

(a) Wheaton's Rep. x. 66, The Antelope.

[89 Slave Trade. Visit and Search. — The entire subject of the slave trade, in its
international relations, may now be summed up in three principal aspects, referring to
previous notes, Nos. 85, " Slave Trade as Piracy," and 86 and 88 : —

First, Its Judicial Aspect. It has been shown in the notes of the editor (ante,
notes Nos. 85 and 86), that no English court has held the slave trade to be piracy jure
gentium. In The Amedie, it was only said that it was prima facie an illegal trade

213

§ 134 RIGHTS OF CIVIL AND [PART II.

Extent of § 134. II. The judicial power of every State extends
poweire as to *° a^ c^ proceedings in rem, relating to real or personal
wEf the ProP8rty within the territory.

territory. This follows, in respect to real property, as a neces-

sary consequence of the rule relating to the application of the

everywhere ; and, when a person claimed to have redelivered to him negroes, or the
value of negroes, whom he was transporting from Africa into slavery, the burden was
on him to prove that his nation permitted that trade. In the United States, there
was a conflict in the inferior tribunals ; but the Supreme Court, in The Antelope, de-
cided that the trade was not -piracy jure gentium. As to the right of search and bringing
in for trial, — that has, in the courts of both countries, followed the test of piracy jure
gentium, and been excluded. No doubt has been suggested that the American courts
have denied all right of search, unless for piracy jure gentium. That right was held
to be inseparable from a right to bring in for adjudication, and could be used for no
purpose for which the court had not jurisdiction, as it unquestionably had not
over foreign vessels on the high seas, where neither war nor piracy was involved. It
has been thought that the English courts have asserted a right of search, while they
admitted that the trade was not piracy jure gentium. The examination of the cases in
note No. 86, ante, shows, it is hoped, that no such right of search has been supported
by those courts. There is no case to be found in which an English court of the last
resort has directly decided, that, in time of peace, when there was no color of belli-
gerent right, a British cruiser could search a foreign vessel on the ground of suspicion
of being a slaver ; and, in the cases of civil proceedings, as The Diana and Louis,
the seizure was considered illegal. No case has been found where, either in England
or the United States, a distinction has been sustained by the court between a right of
visit and a right of search.

Second, In the Opinions or Statesmen and Jurists. The statesmen of
America, in their diplomatic correspondence, have always contended that a state
of things had not been reached whicli entitled all nations to treat the slave trade as
piracy jure gentium. This has been the opinion of the American commentators, —
Wheaton, Kent, Halleck, and Woolsey. As to the right of search, our statesmen and
jurists have agreed that a right of search did not exist, and that no distinction in
principle existed between a right to visit and a right to search. Mr. Webster, Mr.
Wheaton, Mr. Cass, Mr. Legare, Mr. Stevenson, and Mr. Seward have severally
discussed this subject, in their official action, and have agreed in the reasoning, that
no nation can exercise police jurisdiction over private vessels of other nations on the
high seas ; that such jurisdiction is limited to international questions of war or of piracy
jure gentium ; that the right to detain and search vessels of other nations at sea was
only a means of enforcing a jurisdiction admitted, — that is, in international matters
of war or of piracy jure gentium. They denied all distinction in principle between
visit and search, as rights, though the two things might be very different in their
effects. If the visit is for the purpose for which search is allowed, — that is, in case
of war or piracy, — it is justifiable as a part of the process of investigation. A right
to visit without the right to require production of papers or persons, or to make any
examination, is futile, even if the purpose is to ascertain only national character,
and not guilt or innocence ; and any right to compel production of papers or persons,
or to subject to interrogation, or to make examination of parts of a vessel, is a right of
search. A right to stop a foreign vessel and visit her must carry the right to use the
requisite force, if the exercise of the right is resisted. If not, it is not a right in any
214

PART II.] CRIMINAL LEGISLATION. § 134

lex loci rei sitce. As every thing relating to the tenure, title, and
transfer of real property (immobilia) is regulated by the local law,
so also the proceedings in courts of justice relating to that species
of property, such as the rules of evidence and of prescription, the
forms of action and pleadings, must necessarily be governed by
the same law. (a)

sense worth disputing. The question, then, is on a right, forcibly if necessary, to
stop and board foreign vessels, and to make some kinds of inquiries and examinations.
The only defence made for the right of visit, by those who disclaim a right of search,
is, that the purpose of the visit is to verify the national character of the vessel, and
ascertain whether she belongs to the same nation with the cruiser, or to one with
which that nation has treaties giving a right of search ; in order that, if so, the cruiser
may search or detain, or otherwise deal with, such vessel as the law of his country or
the treaties may allow ; while, if she turns out to belong to another power which has
given no right of search, it will be his duty to release her, whatever the evidence of her
guilt. But, apart from the consideration that visit without search, even for the limited
purpose described, is futile and a mere annoyance, the ground is taken, that all visiting
or detaining or searching by compulsion, exercised by a cruiser upon a vessel of another
power, is a violation of right, except where there is agreement ; and that the consensus
gentium has extended it only to war, and crimes against all nations. A right to visit, sub-
ject to a duty to make apology and reparation in case the vessel turns out to be one not
subject to visit, is not a right at all, but an admission that the visit was against right.

The British Government, in former times, have claimed and exercised a right to
search vessels suspected of being slavers. No exact limits to the right were laid
down or regarded, whether as confined to ascertaining nationality, or as extending to
proofs of guilt or innocence. Lord Palmerston, in reply to Mr. Stevenson, Aug. 27,
1841, avowed the intention of Great Britain to stop vessels of all nations on suspicion
of being engaged in the slave trade ; limiting the examination to the verifying of the
national character the vessel may assume, and ascertaining whether she is "navigated
according to law." That he claimed as a right. It was resisted by Mr. Stevenson, in
his reply. Lord Aberdeen's rejoinder of Oct. 13, 1841, adhered to the claim of right,
promising only safeguards against its abuse ; and the further correspondence between
Lord Aberdeen and Mr. Everett did not vary the posture of the case. The treaty x>f
1842 closed the discussion for the time. Art. 8 of that treaty is a stipulation for a
naval force of each country " to enforce, separately and respectively, the laws, rights,
and obligations of each of the two countries/' It was understood that Great Britain
practically waived the claim while the treaty remained in force.

In 1858, British cruisers had stopped American vessels off the island of Cuba, and
made some examination, slight to be sure, as to their destination and national character.
The American Government at once called the attention of Great Britain to the sub-
ject ; and Lord Derby's Government took the opinion of the law-officers of the crown
as to a right of visit or search, either or both, in time of peace. That opinion was
decidedly that no right existed, in time of peace, to stop, visit, or search. After
receiving this opinion, the British Government answered to the United States that
they claimed no right either to visit or search ; and, suggesting the frequent cases
of the abuse of the American flag by slavers, and the safety this state of the law
practically gave them, requested the American Government to suggest some mode by

(a) Vide supra, § 81.

215

§ 135 RIGHTS OF CIVIL AND [PART II.

Distinc- § 135. A similar rule applies to all civil proceedings
thenru^eofen in rem-> respecting personal property (mobilia) within the
ferule o^ territory, which must also be regulated by the local law,
procedure as ^vitli this qualification, that foreign laws may furnish
cases in rem. the rule of decision in cases where they apply, whilst the
forms of process, and rules of evidence and prescription are still

which the difficulty could be remedied. The diplomatic correspondence, however,
resulted only in settling the question against the right of visit or search. In the
debate which followed in the House of Lords, Lord Lyndhurst said, that England had
not given up the* right of visit, for there was never such a right, but had abandoned
the assumption of a right that never existed. He declared, that no writer on interna-
tional law asserted such a right ; and no court having jurisdiction had ever sustained
it. He further showed, that there was no distinction in principle, and but little in fact,
between search and a visit for the purpose of verifying the national character of a
vessel. Lord Malmesbury, then Secretary for Foreign Affairs, said, that England had
abandoned a claim of right either to visit or search ; and Lord Aberdeen said, that the
question was virtually settled at the time of the treaty of 1842. (Annual Register,
1858, pp. 185-189, 191-196.) Afterwards, in 1859, on the production of the correspond-
ence between the two governments, Lord Malmesbury admitted, that England had
formerly exercised a power of search, but not founded in right and not supported by
international law, when she had the only strong navy afloat ; that, when France rebuilt
her navy, she and the United States had objected to this exercise, and, after nego-
tiations and practical settlements by treaties, the claim was at last abandoned. Lords
Clarendon, Derby, Brougham, and Carlisle agreed that there was no right of visit :
still, if the debate is correctly reported, there seems to be some confusion between the
option of a cruiser, at his peril, to take his chance of a vessel turning out to have
been liable to be detained by him, and the right of a cruiser to detain the vessel for
the purpose of putting the test. The principle, however, is clear. If a cruiser stops
a vessel in the exercise of police power, he takes the chance of her turning out to be
subject to the exercise of that power by him. If she proves to be a vessel of his own
nation, or of one that has conceded to him that right, he turns out to have been in the
exercise of a right ab initio ; and neither he nor his nation is bound to make apology
or compensation, though the vessel proves innocent of the crime suspected. But, if
the vessel proves not to be subject to his police power, then he turns out to have been
a trespasser ab initio, whether the vessel proves innocent or guilty of the crime sus-
pected. He is liable in that case, not for having stopped an innocent vessel, but for
having stopped one not subject to his inspection. The mistake of the cruiser, how-
ever natural or honest, is not a justification. It is only an excuse, addressing itself
to the consideration of the government whose vessel he has interfered with.

What has been said heretofore by unofficial writers is of less consequence, now
that nations themselves have taken the matter in hand and settled it. It is of his-
torical interest, however, to record that Hautefeuille (Droits des Nat. Neutr. torn. iii.
p. 471-487), Masse (Droit Comm. i. 291), Ortolan (Regl. Intern, i. 242, 258-262), and De
Cussy (Droit Marit. ii. 385) agree with Wheaton, that neither visit nor search can be
exercised in time of peace ; and such seems to be the opinion of Riquelme (i. 236),
Heffter (europ. Volkr. § 168), and De Pistoye et Duverdy (Traite des Prises, tit. i.
ch. 3, | 2). Dr. Twiss, in his opinion furnished to the Italian Government, March
22, 1858, in the case of The Cagliari,* says that, in time of peace, no apprehension
of a violation of municipal law gives a cruiser a right to detain and visit a vessel at
216

PART II.] CRIMINAL LEGISLATION. § 135

governed by the lex fori.90 Thus the lex domicilii forms the law in
respect to a testament of personal property or succession ah intes-
tato, if the will is made, or the party on whom the succession
devolves resides, in a foreign country ; whilst at the same time
the lex fori of the State in whose tribunals the suit is pending
determines the forms of process and the rules of evidence and
prescription.

sea. Kent, in the text of his Commentaries, does not notice a distinction between
visit and search; but, in a note to page 153 (a) in later editions, a right of approach
or intervisitation of vessels at sea, to ascertain nationality, seems to be admitted. Dr.
Phillimore (iii. 420-424) defends the distinction, and cites the note to Kent with
approbation. At the same time, he seems to think the question is, whether a British
cruiser may stop and visit a vessel under an American flag ; and that the United
States have denied such a right (p. 421). But the carrying American flags or papers
is a fact as to which nothing can be predicated affecting a right to visit. If the vessel
was American, she was exempt ; if not, the American Government claims no inter-
est, although she carried its flag. If an officer is required by his warrant to arrest
John Doe, charged with a crime, and stops a man wearing the dress and using the
name of Richard Roe, and compels him to submit to reasonable examinations of his
person and papers to ascertain, not his guilt or innocence, but whether he is John
Doe, — then, if he turns out to be John Doe, Richard Roe has no cause of com-
plaint ; but, if he proves to be Richard Roe, the officer is a trespasser, though acting
in good faith. This analogy may serve to clear up the mist that seems to cover the
subject as it has been viewed by some writers. Halleck (Intern. Law, 597-605) care-
fully examines the subject, and declares that no continental writer has recognized the
distinction between visit and search as rights, in time of peace ; denies the accu-
racy of the reasoning of Dr. Phillimore ; and suggests that the note to Kent contra-
dicts the text, and rests on the authority of the annotator, and not of Kent himself.
It is needless to say that Mr. Wheaton, in his diplomatic correspondence as well as
in his tracts and commentaries, has always denied the distinction, in principle as well
as on authority. Dr. Woolsey (§ 196) agrees, that neither visit nor search can be
made, as a right, to ascertain national character; but offers a suggestion (§ 201),
that such inquiry as is necessary to ascertain nationality might well be granted by
nations.

Third, Conventions and Practice of Nations. The details of the treaties
on this point are given in note 85, ante, " Slave Trade as Piracy." The summary
may be stated thus : Nations do not agree that the slave trade is piracy. When
treated as such, it is under municipal law, or between two or more nations by virtue
of treaties confessedly in addition to the law of nations. No treaties distinguish
between a right of visit and a right of search. Where nations have conceded to the
cruisers of each other any reciprocal right in time of peace over vessels of each other,
whether generally or within geographical limits, the right conceded has been a right
to make such detention and examination as is reasonable for the ascertainment both
of national character and of guilt or innocence ; and they usually either provide for
trial by mixed tribunals, or require the persons found on board to be sent for trial to
the nation to which they belonged.] — D.

[90 Savigny (System, viii. §§ 366-7) contends for the lex loci rei sitoz in mobilia, as
well as immobilia, as the most reasonable and convenient. Woolsey (Introd. § 71)
seems to lean to that opinion, to which he says the German publicists also incline.] — D.-

19 217

§ 138 EIGHTS OF CIVIL AND [PART II.

§ 136. Though the distribution of the personal effects
sion to per- of an intestate is to be made according to the law of the
erty ab intes- place where the deceased was domiciled, it does not there-
fore follow that the distribution is in all cases to be made
by the tribunals of that place to the exclusion of those of the
country where the property is situate. Whether the tribunal of
the State where the property lies is to decree distribution, or to
remit the property abroad, is a matter of judicial discretion to be
exercised according to the circumstances. It is the duty of every
government to protect its own citizens in the recovery of their
debts and other just claims ; and in the case of a solvent estate it
would be an unreasonable and useless comity to send the funds
abroad, and the resident creditor after them. But if the estate be
insolvent, it ought not to be sequestered for the exclusive benefit of
the subjects of the State where it lies. In all civilized countries,
foreigners in such a case, are entitled to prove their debts and
share in the distribution, (a)

Foreign § 137. Though the forms in which a testament of per-
camed into sonal property, made in a foreign country, is to be exe-
afother cuted, are regulated by the local law, such a testament
country. cannot be carried into effect in the State where the prop-
erty lies until, in the language of the law of England, probate has
been obtained in the proper tribunal of such State, or, in the lan-
guage of the civilians, it has been homologated, or registered, in
such tribunal, (a)

So, also, a foreign executor, constituted such by the will of the
testator, cannot exercise his authority in another State without
taking out letters of administration in the proper local court.
Nor can the administrator of a succession ab intestato, appointed
ex officio under the laws of a foreign State, interfere with the
personal property in another State belonging to the succession,
without having his authority confirmed by the local tribunal.

8 138. The iudgment or sentence of a foreign tribunal
Conclu- * J. *? _. . -.. . i

siveness of competent jurisdiction proceeding m rem, such as

sentences1 the sentences of Prize Courts under the law of nations,

in rem. or Admiralty and Exchequer, or other revenue courts,

(a) Kent's Comm. on American Law, 6th edit. ii. 431, 432, and the cases there
cited.

(a) Wheaton's Kep. xii. 169, Armstrong v. Lear. Code Civil, liv. iii. tit 2, art.
1000.

218

PART II.] CRIMINAL LEGISLATION. § 139

under the municipal law, are conclusive as to the proprietary inter-
est in, and title to, the thing in question, wherever the same comes
incidentally in controversy in another State.

Whatever doubts may exist as to the conclusiveness of foreign
sentences in respect of facts collaterally involved in the judgment,
the peace of the civilized world and the general security and con-
venience of commerce obviously require, that full and complete
effect should be given to stfch sentences, wherever the title to the
. specific property, which has been once determined in a compe-
tent tribunal, is again drawn in question in any other court or
country.

§ 139. How far a bankruptcy declared under the laws Transfer
of one country will affect the real and personal property under for-7
of the bankrupt situate in another State, is a question of ei£n bank*

L 1 x rapt pro-

which the usage of nations, and the opinions of civil- ceedings.
ians, furnish no satisfactory solution. Even as between co-ordinate
States, belonging to the same common empire, it has been doubted
how far the assignment under the bankrupt laws of one country
will operate a transfer of property in another. In respect to real
property, which generally has some indelible characteristics im-
pressed upon it by the local law, these difficulties are enhanced in
those cases where the lex loci rei sitce requires some formal act to be
done by the bankrupt, or his attorney specially constituted, in the
place where the property lies, in order to consummate the transfer.
In those countries where the theory of the English bankrupt sys-
tem, that the assignment transfers all the property of the bankrupt,
wherever situate, is admitted in practice, the local tribunals would
probably be ancillary to the execution of the assignment by com-
pelling the bankrupt, or his attorney, to execute such formal acts
as are required by the local laws to complete the conveyance, (#)

The practice of the English Court of Chancery, in assuming
jurisdiction incidentally of questions affecting the title to lands in
the British colonies, in the exercise of its jurisdiction in personam,
where the party resides in England, and thus compelling him,
indirectly, to give effect to its decrees as to real property situate
out of its local jurisdiction, seems very questionable on principle,
unless where it is restrained to the case of a party who has fraudu-

(a) See Lord Eldon's Observations in Selkrig v. Davies, Rose's Cases in Bank-
ruptcy, ii. 311. Vesey's Rep. ix. 77, Banfield v. Solomon.

219

§ 140 RIGHTS OF CIVIL AND [PART II.

lently obtained an undue advantage over other creditors by judicial
proceedings instituted without personal notice to the defendant.

But whatever effect may, in general, be attributed to the assign-
ment in bankruptcy as to property situate in another State,
it is evident that it cannot operate where one creditor has fairly
obtained, by legal diligence, a specific lien and right of prefer-
ence, under the laws of the country where the property is situ-
ate. (6) •

Extent § 140. III. The judicial power of every State may be

ciai powe/" extended to all controversies respecting personal rights
eignei^re- an(^ contracts, or injuries to the person or property, when
siding with- ^he party resides within the territory, wherever the cause *

in the tern- . .

tory. of action may have originated.

This general principle is entirely independent of the rule of
decision which is to govern the tribunal. The rule of decision
may be the law of the country where the judge is sitting, or
it may be the law of a foreign State in cases where it applies ; but
that does not affect the question of jurisdiction, which depends,
or may be made to depend, exclusively upon the residence of the
party.

Depends The operation of the general rule of international
cf a/reT-" *aw> as to c^ jurisdiction, extending to all persons
lations. wh0 owe even a temporary allegiance to the State,
may be limited by the positive institutions of any particular
country. It is the duty, as well as the right, of every nation to
administer justice to its own citizens ; but there is no uniform
and constant practice of nations, as to taking cognizance of con-
troversies between foreigners. It may be assumed or declined,
at the discretion of each State, guided by such motives as may
influence its juridical policy. All real and possessory actions
may be brought, and indeed must be brought, in the place where

Law of the property lies ; but the law of England, and of other
andAmer- countries where the English common law forms the
ica- basis of the local jurisprudence, considers all personal

actions, whether arising ex delicto or ex contractu, as transitory ;
and permits them to be brought in the domestic forum, whoever
may be the parties, and wherever the cause of action may origi-
nate. This rule is supported by a legal fiction, which supposes

(b) Kent's Comm. on American Law, ii. 404-408, 5th edit.
220

PART II.] CRIMINAL LEGISLATION. § 141

the injury to have been inflicted, or the contract to have been
made, within the local jurisdiction. In the countries which
have modelled their municipal jurisprudence upon the Roman
civil law, the maxim of that code, actor sequitur forum rei, is gen-
erally followed ; and personal actions must therefore be brought in
the tribunals of the place where the defendant has acquired a fixed
domicil.

§ 141. By the law of Prance, foreigners who have estab- French
lished their domicil in the country by special license law-
(autorisation) of the king, are entitled to all civil rights, and,
among others, to that of suing in the local tribunals as French
subjects. Under other circumstances, these tribunals have ju-
risdiction, where foreigners are parties, in the following cases
only:— ^

1. Where the contract is made in France, or elsewhere, between
foreigners and French subjects.

2. In commercial matters, on all contracts made in France,
with whomsoever made, where the parties have elected a domicil,
in which they are liable to be sued, either by the express terms
of the contract, or by necessary implication resulting from its
nature.

3. Where foreigners voluntarily submit their controversies to
the decision of the French tribunals, by waiving a plea to the juris-
diction.

In all other cases, where foreigners, not domiciled in France
by special license of the king, are concerned, the French tri-
bunals decline jurisdiction, even when the contract is made in
France, (a)

A late excellent writer on private international law considers
this jurisprudence, which deprives a foreigner, not domiciled in
France, of the faculty of bringing a suit in the French tribunals
against another foreigner, as inconsistent with the European law
of nations. The Roman law had recognized the principle, that all
contracts the most usual among men arise from the law of nations,
ex jure gentium; in other words, these contracts are valid, whether
made between foreigners, or between foreigners and citizens, or

(a) Code Civil, arts. 13, 14, 15. Code de Commerce, art. 631. Discussions sur le
Code Civil, torn. i. p. 48. Pothier, Procedure Civile, partie i. ch. 1, p. 2. Yalin sur
l'Ord. de la Marine, torn. i. pp. 113, 253, 254. Pardessus, Droit Commercial, Part
VI. tit. 7, ch. 1, § 1.

19* 221

§ 143 RIGHTS OF CIVIL- AND [PART II.

between citizens of the same State. This principle has been incor-
porated into the modern law of nations, which recognizes the right
of foreigners to contract within the territorial limits of another
State. This right necessarily draws after it the authority of the
local tribunals to enforce the contracts thus made, whether the suit
is brought by foreigners or by citizens. (6)91

Proceed- § 142. The practice which prevails in some countries,
l^en^par- °f proceeding against absent parties, who are not only
ties. foreigners, but have not acquired a domicil within the

territory, by means of some formal public notice, like that of the
viis et modis of the Roman civil law, without actual personal notice
of the suit, cannot be reconciled with the principles of international -
justice. So far, indeed, as it merely affects the specific property of
the absent debtor within the territory, attaching it for the benefit
of a particular creditor, who is thus permitted to gain a preference
by superior diligence, or for the general benefit of all the creditors
who come in within a certain fixed period, and claim the benefit of
a ratable distribution, such a practice may be tolerated ; and in the
administration of international bankrupt law it is frequently allowed
to give a preference to the attaching creditor, against the law of
what is termed the locus concursiis creditorum, which is the place
of the debtor's domicil.

Distinc- § 143. Where the tribunal has jurisdiction, the rule of
tion be- decision is the law applicable to the case, whether it be

xween tne

rule of de- the municipal or a foreign code ; but the rule of proceed-
ruie of pro- ing is generally determined by the lex fori of the place
caSTf m where the suit is pending. But it is not always easy to
contract. distinguish the rule of decision from the rule of proceed-

(6) Folix, Droit International Prive, §§ 122, 123.

[91 In the United States, proceedings are not allowed in the way of private suits
by citizens against non-residents who are not personally subject to the jurisdiction of
the court, and have no property within its control, for the purpose of obtaining a
judgment ex parte to establish the debt. If the non-resident has property which can
be attached by the process of the court, the citizen may proceed ex parte, after such
notice as the statutes require or the courts order, and prove his claim, and satisfy it
from the property seized. But the judgment is not conclusive as to the subject-matter
of the suit ; and usually there are provisions that the plaintiff, before satisfying his
claim, shall furnish security to restore the property in case the defendant shall appear
within a certain time, and succeed in reversing the judgment. Proceedings in rem
rest on a different principle, as they are brought to enforce a right in the thing itself;
and the general owner is bound to take cognizance of such demands, and to be pre-
pared to meet them wherever the property may be.] — D.
222

PART II.] CRIMINAL LEGISLATION. § 143

ing. It may, however, be stated in general, that whatever belongs
to the obligation of the contract is regulated by the lex domicilii, or
the lex loci contractus, and whatever belongs to the remedy for
enforcing the contract is regulated by the lex fori?2,

^Limitations and Prescription. — A rule simply limiting the time within which
proceedings at law may be commenced, is properly called a rule of limitations. Such
rules are established by positive enactment, by the legislative power, and are called,
in England and America, " statutes of limitations." They rest on the policy of the
State, ut sit Jinis litium; although they are further justified by the presumption that
a stale claim is not a valid claim. In the absence of a statute of limitations, rules
have been laid down by the courts, as in chancery and admiralty, against stale
claims, and the periods of time are usually fixed by analogy to the statutes of limita-
tions in like cases ; but, as courts cannot properly enact an arbitrary rule on grounds
of public policy, such judicial rules rest on the presumption that, the claim is satis-
fied, or was never valid, and sometimes admit of evidence to rebut the presump-
tion. But the legislative enactments of later times, as now construed by the courts,
are absolutely extinctive of a right of action, irrespective of its merits, on general
grounds of policy ; and an action so barred is not maintainable. Limitations are
applied alike to criminal and civil proceedings, and to suits to try the right of owner-
ship or use in corporeal things, whether movable or immovable, as well as to suits
on mere personal obligations. Now, as these statutes are rules of repose, resting on
the policy of the State, it seems reasonable that any State may apply them to all
suits in which the aid of its tribunals is invoked ; whether the parties are citizens or
aliens ; whether the thing in dispute is within or without the territory of the State,
and be movable or immovable, corporeal or incorporeal. It is true, that a statute of
limitations indirectly operates upon title to property, and has the same effect in aid
of the party sued as a defensive prescription, and so it may be argued that they
belong to the laws of property and not of mere remedy ; but it is impossible, in inter-
national law, to be governed by these indirect operations. The tribunal may simply
decline to lend its aid to the plaintiff or actor, on the ground of a domestic policy of
repose prescribed by the sovereign power ; and other nations cannot complain, if no
discrimination is made against their citizens.

It has sometimes been said, that the continental writers treat statutes of limitations
as part of the law of property and obligations, and therefore not necessarily to be gov-
erned by the lex fori. Savigny and Folix have been adduced as instances. But any
language that may be cited to that effect will be found to relate to prescription, and
not to mere rules of limitation. Rules of prescription relate directly to ownership, or
title in a thing, and are part of the law of property. This is especially the case in the
Roman law, and in the systems of those countries whose basis is the Roman law.
Prescription, by those systems, is not merely defensive, but creative. As all personal
rights in things may be said to originate in occupancy, the Roman law has recognized
a possession, begun in a certain manner and continued for a certain time, as creative
of a positive title. Such possession does not merely afford presumption of some acts
necessary to create title, as of original occupation of a thing unoccupied, or of a transfer
from the previous owner, but it is itself a prescribed mode of lawful acquisition. For
this reason, it was required to originate bond fide and justo titulo ; that is to say, the
possession must have been begun in an honest belief of a right, justified by an
apparently regular proceeding. Without attempting to follow the Roman law from
the strict usucapio, through the pretorian edict, to the imperial constitutions, it is
enough to say, that such a possession, continued for the appointed time, gave all the

223

§ 143 EIGHTS OF CIVIL AND [PART II.

If the tribunal is called upon to apply to the case the law of the
country where it sits, as between persons domiciled in that country,
no difficulty can possibly arise. As the obligation of the contract
and the remedy to enforce it are both derived from the municipal
law, the rule of decision and the rule of proceeding must be sought
in the same code. In other cases, it is necessary to distinguish
with accuracy between the obligation and the remedy.

The obligation of the contract, then, may be said to consist of
the following parts : —

1. The personal capacity of the parties to contract.

2. The will of the parties expressed, as to the terms and con-
ditions of the contract.

elements of an affirmative title. And these rules respecting creative and defensive
prescription belonged to a distinct class from the rules limiting the commencement of
actions ; and the latter were of less consequence for the protection of rights inherent
in things, as the system of prescriptions was so effective for both creative and defen-
sive purposes.

Without' attempting to settle the doubts that involve the subject of prescription, in
the interesting early history presented by Bracton and Coke, it may be said, that,
in the systems of the United States and England, resting on the common law, the
titles of parties in possession have been secured rather by limitations of actions,
extinctive of remedies by parties out of possession, than by systems of acquisitive
prescription. Yet, in the common law, whatever it was originally, and notwith-
standing dicta from high authority to the contrary, prescription may be considered as
having become limited to incorporeal rights, as of easements or servitudes on land, and
to have required an origin adverse to the general title, and to rest upon a presump-
tion of a grant made by the proprietor in derogation of that title. This places it in
a very different light from the prescription of the Roman law.- In the English and
American systems, statutes of limitations furnish a sufficient defence in case of suits
brought to assert title to corporeal property, absolute or usufructuary ; and, wherever
title is involved, and a party must prove his title affirmatively or defensively, the
courts allow the possessor the benefit of a prescription analogous to the statute of
limitations on the same subject, as a presumption of title.

These considerations show that care must be observed in examining the writings
of continental jurists, when treating of limitations and prescription in private inter-
national law. And it is thought the result will be found to be, that the law of the
forum is to govern when the rule is directly extinctive of remedies, whatever indirect
effect it may have on proprietary rights ; and that, if the rule invoked is not merely
and directly extinctive or prohibitory of the remedy sought, like a statute of limita-
tions, but is a rule applicable to the merits of the case, and part of the law directly
governing rights and titles in the subject-matter of the suit, like a usucaption or pre-
scription, then the law of the forum is not to govern, as such ; and it becomes an
independent inquiry whether a law of that character is to be drawn from the domicil,
the situs rei, or the place of the making or executing of a contract.

Savigny, System, liv. viii. 270. Eolix, Droit Intern. Prive, § 100. Story's Conflict
of Laws, §§ 576-581. Westlake's Pr. Intern. Law, §§ 250-252. New Am. Cyclopae-
dia, xiii. tit. Prescription. Blackstone's Comm. ii. 263.] — D.
224

PART II.] CRIMINAL LEGISLATION. § 144

3. The external form of the contract.

The personal capacity of parties to contract depends upon those
personal qualities which are annexed to their civil condition, by
the municipal law of their own State, and which travel with them
wherever they go, and attach to them in whatever foreign country
they are temporarily resident. Such are the privileges and dis-
abilities conferred by the lex domicilii in respect to majority and
minority, marriage and divorce, sanity or lunacy, and which deter-
mine the capacity or incapacity of parties to contract, independently
of the law of the place where the contract is made, or that of the
place where it is sought to be enforced.

It is only those universal personal qualities, which the laws of all
civilized nations concur in considering as essentially affecting the
capacity to contract, which are exclusively regulated by the lex
domicilii, and not those particular prohibitions or disabilities, which
are arbitrary in their nature and founded upon local policy ; such
as the prohibition, in some countries, of noblemen and ecclesiastics
from engaging in trade and forming commercial contracts. The
qualities of a major or minor, of a married or single woman, &c,
are universal personal qualities, which, with all the incidents be-
longing to them, are ascertained by the lex domicilii ', but which are
also everywhere recognized as forming essential ingredients in the
capacity to contract, (a)

§ 144. How far bankruptcy ought to be considered as Bank,
a privilege or disability of this nature, and thus be re- ruPtcJ-
stricted in its operation to the territory of that State under whose
bankrupt code the proceedings take place, is, as already stated, a
question of difficulty, in respect to which no constant and uniform
usage prevails among nations.93 Supposing the bankrupt code of

(a) Pardessus, Droit Commercial, Part VI. tit. 7, ch. 2, § 1.

[93 Extra-territorial Effect of Bankrupt Law's. — The main question as to what are
termed bankrupt or insolvent laws is, whether they attempt to relieve the bankrupt
ever afterwards from the obligation of his contract, or only regulate the remedies
creditors may afterwards pursue to enforce contracts still legally valid and enforceable.
If the latter, they belong to the laws of remedies ; if the former, to the laws of con-
tracts and of property. If a contract is made and to be executed in a certain country,
it derives its character from the laws of that country, and may be dissolved by its
laws. But the laws of one country cannot operate to dissolve a contract made and to
be performed in another, and against parties not within its jurisdiction. This is the
rule in the courts of the United States. Kent, ii. 393. Story's Conflict of Laws,
Kedfield's note, § 341 a. Baldwin v. Hale, Wallace, Sup. Ct. Rep. i. 223. Ogden v.
Saunders, Wheat, xii. 213. If the laws in question can fairly be held to be merely

225

§ 144 RIGHTS OF CIVIL AND [PART II.

any country to form a part of the obligation of every contract made
in that country with its citizens, and that every such contract is
subject to the implied condition, that the debtor may be discharged
from his obligation in the manner prescribed by the bankrupt laws,
it would seem, on principle, that a certificate of discharge ought to
be effectual in the tribunals of any other State where the creditor

regulative of the remedies upon contracts admitted to be valid, the law of the forum
must prevail ; as each country can control the remedial processes to be pursued or
permitted in its own courts. The bankrupt-laws of most countries seek to sequestrate
and transfer to assignees all personal property wherever situated. But, in the United
States, it is held, that, as such transfer is not an act of the owner in the course of
business or in the exercise of his will, but an operation of municipal law, proprio vigore,
and often in invitum, the law of nations does not give it an operation in foreign coun-
tries over personal property situated there, so as to transfer the title. If a foreign
creditor finds, in his own country, personal property of a bankrupt, and proceeds
against it to satisfy a debt which his own country does not hold to have been dissolved
by the laws of the bankrupt's domicil, he can satisfy his debt in full from this prop-
erty. The title of the assignee in bankruptcy will, however, be respected by comity,
if the rights of no citizen entitled to proceed against the property are involved. It is
matter of State policy how far a title to personal property derived from the act of law
of a foreign country as part of its municipal remedial system, and not from the act of
the owner, shall be respected in the country where the property is situated. The rule
of reciprocity should always be favored, if it be actual and just, and is not a nominal
reciprocity offered by the gaining party. If the foreign assignee in bankruptcy, claim-
ing by act of law of his own State, seeks to get into his possession property of the bank-
rupt lying in another country, by aid of the courts of that country, it is a question of
the policy of the country where the suit is brought, whether the assignee may sue in
his own name, or shall be required to sue in that of the bankrupt ; for the difference
may materially affect defences and set-offs. Kent's Comm. ii. 400-408, and cases
there cited. The British bankrupt-acts contemplate a transfer of the title of all
property wherever situated, and of debts due the bankrupt wherever the debtor may
be ; and the British courts are compelled, on principles of reciprocity, to allow validity
to bankrupt titles, under foreign laws, to personal property in England, as against
English creditors. Real property in England is not subject to distribution under
foreign bankrupt-laws. No country is obliged to recognize a foreign bankrupt appoint-
ment as a valid transfer of lands within its own jurisdiction. Each nation is entitled
to determine for itself the forms and requisites for the transfer of lands. In the
United States, the separate States determine for themselves those forms and requisites.
The result would seem to be, that a foreign bankrupt assignment would have no effect
to transfer title in lands. If, however, the foreign assignee in bankruptcy should
procttre conveyances from the bankrupt in accordance with the laws of the State
where the lands lie, and thus effect a transfer of them, in order to add the proceeds to
the fund under his control, there would be no obstacle except direct proceedings
against the land by resident creditors. In such case, their attachments of the lands to
satisfy their debts would prevail over such conveyances recorded subsequently to the
attachments, and over all conveyances made and recorded prior thereto, unless they
be hona-fide transfers from the bankrupt to a creditor or a purchaser for a valuable
consideration, such as would have been valid against the attaching creditor if there
had been no bankrupt proceedings. See, on all the points embraced in this note,
226

PART II.] CRIMINAL LEGISLATION. § 144

may bring his suit.94 If, on the other hand, the bankrupt code
merely forms a part of the remedy for a breach of the contract,
it belongs to the lex fori, which cannot operate extra-territorially
within the jurisdiction of any other State having the exclusive right
of regulating the proceedings in its own courts of justice ; still less
can it have such an operation where it is a mere partial modifi-
cation of the remedy, such as an exemption from arrest, and
imprisonment of the debtor's person on a cessio bonorum. Such an
exemption being strictly local in its nature, and to be administered,
in all its details, by the tribunals of the State creating it, cannot
form a law for those of any foreign State. But if the exemption
from arrest and imprisonment, instead of being merely contingent
upon the failure of the debtor to perform his obligation through
insolvency, enters into and forms an essential ingredient in the
original contract itself, by the law of the country where it is made,
it cannot be enforced in any other State by the prohibited means.
Thus by the law of France, and other countries where the contrainte
par corps is limited to commercial debts, an ordinary debt con-
tracted in that country by its subjects cannot be enforced by means
of personal arrest in any other State, although the lex fori may
authorize imprisonment for every description of debts, (a)95

Story's Conflict of Laws, § 403-423. Kent's Comm. ii. 392, 400-408. Ogden v. Saun-
ders, Wheat, xii. 213. Oakley v. Bennet, How. xi. 44. Woolsey's Intern. Law, §§ 71,
72. Belton v. Valentine, Curtis's Rep. i. 168. Booth v. Clark, How. xvii. 322. Milne
v. Moreton, Binney, vi. 353. Holmes v. Remsen, Johnson, xx. 229. Blake v. Wil-
liams, Pickering, vi. 286. Merlin, Repertoire, § 1, 3, art. 10, pp. 412-416. Henry on
Tor. Law, 127-135, 175. As to the extra-territorial effect of a discharge under pro-
ceedings in bankruptcy, see infra, note 94.] — D.

[94 In the United States, the discharge of a debtor from the obligation of his con-
tract, given by the bankrupt-law of the State of his domicil, is recognized only as to
contracts made and to be performed in that State. Supra, note 93. In other words,
such a discharge is recognized only in cases where a law affecting the contract
itself, in its construction and obligation, would be recognized. A discharge in bank-
ruptcy is held to be a proceeding judicial in its nature, and binding only on persons
subject to the jurisdiction of the State, or who have voluntarily submitted themselves
to it. As to debts really contracted within a State by debtors residing abroad, or
debts contracted before the passage of the bankrupt-law, a foreign bankrupt discharge
is no defence. Baldwin v. Hale, Wallace, Sup. Ct. Rep. i. 223. Story's Conflict of
Laws, Redfield's note, § 341 a. The English rule seems not to differ from this. Pot-
ter v. Brown, East. v. 124. Smith v. Buchanan, lb. i. 6. Shallcross v. Dyzort, Glyn &
J. ii. 87. Quin v. Keefe, H. Bl. ii. 553. Lewis v. Ogden, B. & A. iv. 654.] — D.

(a) Bosanquet & Puller's Rep. i. 131, Melan v. The Duke of Fitz-James.

[95 The question of the liability of the body to arrest is now considered as part of
the law of remedy, and to be sought for in the law of the forum, both in England and

227

§ 146 EIGHTS OF CIVIL AND [PART II.

Obligation § 145. ^G obligation of the contract consists of the will
of a contract. 0f the parties, expressed as to its terms and conditions.

The interpretation of these depends, of course, upon the lex loci
contractus, as do also the nature and extent of those implied con-
ditions which are annexed to the contract by the local law or usage.
Thus the rate of interest, unless fixed by the parties, is. allowed by
the law as damages for the detention of the debt, and the proceed-
ings to recover these damages may strictly be considered as a
part of the remedy. The rate of interest is, however, regulated
by the law of the place where the -contract is made, unless, in-
deed, it appears that the parties had in view the law of some
other country. In that case, the lawful rate of interest of the
place of payment, or to which the loan has reference, by security
being taken upon property there situate, will control the lex loci
contractus, (a)

Form of a § 146. The external form of the contract constitutes an
contract. essential part of its obligation.

This must be regulated by the law of the place of contract, which
determines whether it must be in writing, or under seal, or executed
with certain formalities before a notary, or other public officer, and
how attested. A want of compliance with these requisites renders
the contract void ah initio ; and being void by the law of the place,
it cannot be carried into effect in any other State. But a mere
fiscal regulation does not operate extra-territorially ; and therefore
the Want of a stamp, required by the local law to be impressed on
an instrument, cannot be objected where it is sought to be enforced
in the tribunals of another country.

There is an essential difference between the form of the contract
and the extrinsic evidence by which the contract is to be proved.
Thus, the lex loci contractus may require certain contracts to be in
writing, and attested in a particular manner, and a want of com-
pliance with these forms will render them entirely void. But if
these forms are actually complied with, the extrinsic evidence, by
which the existence and terms of the contract are to be proved in
a foreign tribunal, is regulated by the lex fori.

in America. It was formerly confounded with the question of liability to personal
actions. Story's Conflict of Laws, § 571. Henry on For. Law, 81-86. Westlake,
Pr. Intern. Law, § 411.] — D.

(a) Kent's Comm. on American Law, ii. 459, 5th edit. Folix, Droit International
Prive, § 85.
228

PART II.] CRIMINAL LEGISLATION. § 148

§ 147. The most eminent public jurists concur in as- Conciu-
serting the principle that a final judgment, rendered in a ^^ of
personal action, in the courts of competent jurisdiction |£d^s®^
of one State, ought to have the conclusive effect of a res actions.
adjudicata in every other State, wherever it is pleaded in bar of
another action for the same cause. (#)

But no sovereign is bound, unless by special compact, to exe-
cute within his dominions a judgment rendered by the tribunals of
another State ; and if execution be sought by suit upon the judg-
ment, or otherwise, the tribunal in which the suit is brought, or
from which execution is sought, is, on principle, at liberty to ex-
amine into the merits of such judgment, and to give effect to it or
not, as may be found just and equitable. (5) The general comity,
utility, and convenience of nations have, however, established a
usage among most civilized States, by which the final judgments
of foreign courts of competent jurisdiction are reciprocally carried
into execution, under certain regulations and restrictions, which
differ in different countries, (c)

§ 148. By the law of England, the judgment of a foreign Law of
tribunal, of competent jurisdiction, is conclusive where the England-
same matter comes incidentally in controversy between the same
parties ; and full effect is given to the exceptio rei judicata, where
it is pleaded in bar of a new suit for the same cause of action. A
foreign judgment is primd facie evidence where the party claiming
the benefit of it applies to the English courts to enforce it ;' and it
lies on the defendant to impeach the justice of it, or to show that
it was irregularly obtained. If this is not shown, it is received
as evidence of a debt, for which a new judgment is rendered in
the English court, and execution awarded. But if it appears by the
record of the proceedings, on which the original judgment was
founded, that it was unjustly or fraudulently obtained, without
actual personal notice to the party affected by it ; or if it is clearly
and unequivocally shown, by extrinsic evidence, that the judgment
has manifestly proceeded upon false premises or inadequate reasons,
or upon a palpable mistake of local or foreign law ; it will not be
enforced by the English tribunals, (a)

(a) Yattel, liv. ii. ch. 7, §§ 84, 85. Martens, Droit des Gens, §§ 93, 94, 95. Klii-
ber, Droit des Gens, § 59. Deutsche Bundes Recht, § 366.

(6) Kent's Comm. ii. 119, 5th edit. (c) Folix, §§ 292-311.

(a) Knapp's Rep. in the Privy Council, i. 274, Frankland v, McGusty ; Barnewall
& Adolphus's Rep. ii. 757, Novelli v. Rossi ; lb. iii. 951, Becquet v. McCarthy.

20 229

§ 151 RIGHTS OF CIVIL AND [PART II.

American § 149. The same jurisprudence prevails in the United
law- States of America, in respect to judgments and decrees

rendered by the tribunals of a State foreign to the Union. As be-
tween the different States of the Union itself, a judgment obtained
in one State has the same credit and effect in all the other States,
which it has by the laws of that State where it was obtained ; that
is, it has the conclusive effect of a domestic judgment, (a)

Law of § ISO. The law of Prance restrains the operation of
France. foreign judgments within narrower limits. Judgments
obtained in a foreign country against French subjects are not con-
clusive, either where the same matter comes again incidentally in
controversy, or where a direct suit is brought to enforce the judg-
ment in the French tribunals. And this want of comity is even
carried so far, that, where a French subject commences a suit in
a foreign tribunal, and judgment is rendered against him, the ex-
ception of lis finita is not admitted as a bar to a new action by the
same party, in the tribunals of his own country. If the judgment
in question has been obtained against a foreigner, subject to the
jurisdiction of the tribunal where it was pronounced, it is conclu-
sive in bar of a new action in the French tribunals, between the
same parties. But the party who seeks to enforce it must bring a
new suit upon it, in which the judgment is prima facie evidence
only ; the defendant being permitted to contest the merits, and to
show not only that it was irregularly obtained, but that it is unjust
and illegal, (a)

The execution of foreign judgments in personam is reciprocally
allowed, by the law and usage of the different States of the Ger-
manic Confederation, and of the European continent in general,
except Spain, Portugal, Russia, Sweden, Norway, France, and
the countries whose legislation is based on the French civil
code. (6)

Foreign § 1^1 • A decree of divorce obtained in a foreign coun-
divorces. try, by a fraudulent evasion of the laws of the State to
which the parties belong, would seem, on principle, to be clearly

(a) Cranch's Kep. vii. 481-484, Mills v. Duryee. Wheaton's Eep. iii. 234, Hamp-
ton v. M'Connel.

(a) Code Civil, arts. 2123, 2128. Code de Procedure Civile, art. 546. Pardessus,
Droit Commercial, Part VI. tit. 7, ch. 2, § 2, No. 1488. Merlin, Repertoire, torn. vi.
tit. Jugement. — Questions de Droit, torn. iii. tit. Jugement. Toullier, Droit Civil
Fran^ais, torn. x. Nos. 76-86.

(b) Folix, Droit International Prive, §§ 293-311.

230

PART II.] CRIMINAL LEGISLATION. § 151

void in the country of their domicil, where the marriage took place,
though valid under the laws of the country where the divorce
was obtained. Such are divorces obtained by parties going into
another country for the sole purpose of obtaining a dissolution of
the nuptial contract, for causes not allowed by the laws of their
own country, or where those laws do not permit a divorce d vinculo
for any cause whatever. This subject has been thrown into almost
inextricable confusion, by the contrariety of decisions between the
tribunals of England and Scotland ; the courts of the former re-
fusing to recognize divorces d vinculo pronounced by the Scottish
tribunals, between English subjects who had not acquired a bond
fide permanent domicil in Scotland ; whilst the Scottish courts
persist in granting such divorces in cases where, by the law of
England, Ireland, and the polonies connected with the United
Kingdom, the authority of Parliament alone is competent to dis-
solve the marriage, so as to enable either party, during the lifetime
of the other, again to contract lawful wedlock, (a)96

In the most recent English decision on this subject, the House of
Lords, sitting as a Court of Appeals in a case coming from Scotland,
and considering itself bound to administer the law of Scotland, de-
termined that the Scottish courts had, by the law of that country,
a rightful jurisdiction to decree a divorce between parties actually
domiciled in Scotland, notwithstanding the marriage was contracted
in England. But the court did not decide what effect such a di-
vorce would have, if brought directly in question in an English
court of justice. (6)97

In the United States, the rule appears to be conclusively settled
that the lex loci of the State in which the parties are bond fide dom-
iciled, gives jurisdiction to the local courts to decree a divorce,
for any cause recognized as sufficient by the local law, without
regard to the law of that State where the marriage was originally
contracted, (c) This, of course, excludes such divorces as are

(a) Dow's Parliamentary Cases, i. 117; Tovey v. Lindsay, 124. Lolly's Case.
See Eergusson's Reports of Decisions in the Consistorial Courts of Scotland, passim.

[96 By Act 20 & 21 Vict. 85, divorces a vinculo may now be granted in England by
a court established for the purpose.] — D.

(b) Warrender v. Warrender, Bligh's Rep. ix. 89. S. C, Clark & Einnelly's Rep.
ii. 488.

[97 Story's Conflict of Laws, §§ 200-227. Eergusson on Marriage and Divorce,
383-422, 283-319, 350-356. Heffler, Europ. Volker. § 37. Westlake's Pr. Intern
Law, § 350.]— D.

(c) Dorsey v. Dorsey, Chandler's Law Reporter, i. 287.

231

§ 153 EIGHTS OF EQUALITY. [PART II.

obtained in fraudulent evasion of the laws of one State, by par-
ties removing into another for the sole purpose of procuring a
divorce. (cZ)98

CHAPTER III.

RIGHTS OF EQUALITY.

Natural § 152. The natural equality of sovereign States may
stafesmoV be modified by positive compact, or by consent implied
fiactOT C°m" from constant usage, so as to entitle one State to supe-
usage. riority over another in respect to certain external objects
such as rank, titles, and other ceremonial distinctions.

Ro ai § -^* Thus the international law of Europe has

honors. attributed to certain States what are called royal honors,
which are actually enjoyed by every empire or kingdom in Europe,
as the Pope, the grand duchies in Germany, and the Germanic
and Swiss Confederations. They were also formerly conceded to
the German Empire, and to some of the great republics, such
as the United Netherlands and Venice.

These royal honors entitle the States by which they are pos-
sessed to precedence over all others who do not enjoy the same
rank, with the exclusive right of sending to other States public
ministers of the first rank, as ambassadors, together with certain
other distinctive titles and ceremonies, (a)

(d) Kent's Comm. ii. 107, 5th edit.

[98 Story's Conflict of Laws, §§ 228-230 e. It has never been held in the United
States, that a divorce can be granted in a State in which the parties have acquired a
domicil, for a cause which is sufficient by the law of that State, but not sufficient by
the law of the State in which the parties were domiciled at the time of the alleged act
done ; nor have divorces obtained ex parte in a State where the petitioner has acquired
a domicil, been held valid when granted for an alleged cause occurring in another
State, and where the party petitioned against has not actually resided in the State of
the forum. Story's Conflict of Laws, §§ 206-230 d, and cases there cited.] — D.

(a) Vattel, Droit des Gens, torn. i. liv. ii. ch. 3, § 38. Martens, Precis du Droit
des Gens Moderne de FEurope, liv. iii. ch. 2, § 129. Kliiber, Droit des Gens Mo-
derne, Part II. tit. 1, ch. 3, §§ 91, 92. Heffler, Europ. Volker. § 28.
232

PART II.] RIGHTS OF EQUALITY. § 155

§ 154. Among the princes who enjoy this rank, the Prece_
Catholic powers concede the precedency to the Pope, or <*ence

. . V> o among

sovereign pontiff ; but Russia and the Protestant States princes and

States en-

of Europe consider him as Bishop of Rome only, and a joying royal
sovereign prince in Italy, and such of them as enjoy royal honors-
honors refuse him the precedence.

The Emperor of Germany, under the former constitution of theN
empire, was entitled to precedence over all other temporal princes,
as the supposed successor of Charlemagne and of the Caesars in
the empire of the West ; but since the dissolution of the late Ger-
manic constitution, and the abdication of the titles and prerogatives
of its head by the Emperor of Austria, the precedence of this
sovereign over other princes of the same rank may be considered
questionable. (#)

The various contests between crowned heads for precedence are
matter of curious historical research as illustrative of European
manners at different periods ; but the practical importance of these
discussions has been greatly diminished by the progress of civilizar
tion, which no longer permits the serious interests of mankind to
be sacrificed to such vain pretensions.

§ 155. The text-writers commonly assigned to what The t
were called the great republics, who were entitled to royal Republics.
honors, a rank inferior to crowned heads of that class ; and the
United Netherlands, Venice, and Switzerland, certainly did for-
merly yield the precedence to emperors and reigning kings, though
they contested it with the electors and other inferior princes en-
titled to royal honors. But disputes of this sort have commonly
been determined by the relative power of the contending parties,
rather than by any general rule derived from the form of govern-
ment. Cromwell knew how to make the dignity and equality of
the English Commonwealth respected by the crowned heads
of Europe ; and in the different treaties between the French
Republic and other powers, it was expressly stipulated that the
same ceremonial as to rank and etiquette should be observed
between them and France which had subsisted before the revo-
lution. (#)

(a) Martens, § 152. Kliiber, § 95.

(a) Treaty of Campo Forrnio, art. 23, and of Luneville, art. 17, with Austria.
Treaties of Basle with Prussia and Spain. Schoell, Histoire des Traites de Paix,
torn. i. p. 610, edit. Bruxelles.

20* 233

§ 15T RIGHTS OF EQUALITY. [PART II.

Monarchs § 156. Those monarchical sovereigns who are not
andCsemi1-ed' crowned heads, but who enjoy royal honors, concede
sovereigns, ^q precedence on all occasions to emperors and kings.

Monarchical sovereigns who do not enjoy royal honors yield the
precedence to those princes who are entitled to these honors.

Semi-sovereign or dependent States rank below sovereign
States, (a)

Semi-sovereign States, and those under the protection or Suze-
rainties of another sovereign State, necessarily rank below that
State on which they are dependent. But where third parties are
concerned, their relative rank must be determined by other con-
siderations ; and they may even take precedence of States com-
pletely sovereign, as was the case with the electors under the
former constitution of the Germanic empire, in respect to other
princes not entitled to royal honors. (6)

These different points respecting the relative rank of sovereigns
and States have never been determined by any positive regulation
or international compact : they rest on usage and general acquies-
cence. An abortive attempt was made at the Congress of Vienna
to classify the different States of Europe, with a view to determine
their relative rank. *At the sitting of the 10th December, 1814,
the plenipotentiaries of the eight powers who signed the treaty of
peace at Paris, named a committee to which this subject was re-
ferred. At the sitting of the 9th February, 1815, the report of the
committee which proposed to establish three classes of powers,
relatively to the rank of their respective ministers, was discussed
by the Congress ; but doubts having arisen respecting this* classifi-
cation, and especially as to the rank assigned to the great repub-
lics, the question was indefinitely postponed, and a regulation
established determining merely the relative rank of the diplomatic
agents of crowned heads, (c)

Usage of § 157. Where the rank between different States is equal
the attentat. or undetermined, different expedients have been resorted
to for the purpose of avoiding a contest, and at the same time
reserving the respective rights and pretensions of the parties.
Among these is what is called the usage of the alternate by which
the' rank and places of different powers are changed from time to

(a) Kliiber, § 98.

(6) Heffier, Europ. Volker. § 28, No. III.

(c) Kliiber, Acten des Wiener Congresses, torn. viii. pp. 98, 102, 108, 116.
234

PART II.] EIGHTS OP EQUALITY. § 158

time, either in a certain regular order, or one determined by lot.
Thus, in drawing up public treaties and conventions, it is the
usage of certain powers to alternate, both in the preamble and
the signatures, so that each power occupies, in the copy intended
to be delivered to it, the first place. The regulation of the Con-
gress of Vienna, above referred to, provides that in acts and
treaties between those powers which admit the alternate the order
to be observed by the different ministers shall be determined by
lot. (a)

Another expedient which has frequently been adopted to avoid
controversies respecting the order of signatures to treaties and
other public acts, is that of signing in the order assigned by the
French alphabet to the respective powers represented by their
ministers. (6)

§ 158. The primitive equality of nations authorizes Language
each nation to make use of its own language in treat- {J^1? \^J
ing with others ; and this right is still, in a certain tercourse.
degree, preserved in the practice of some States. But general
convenience early suggested the use of the Latin language in the
diplomatic intercourse between the different nations of Europe.
Towards the end of the fifteenth century, the preponderance of
Spain contributed to the general diffusion of the Castilian tongue
as the ordinary medium of political correspondence. This, again,
has been superseded by the language of Prance, which, since the
age of Louis XIV., has become the almost universal diplomatic
idiom of the civilized world. Those States which still retain the
use of their national language in treaties and diplomatic corre-
spondence, usually annex to the papers transmitted by them a
translation in the language of the opposite party, wherever it is
understood that this comity will be reciprocated. Such is the
usage of the Germanic Confederation, of Spain, and the Italian
courts. Those States which have a common language generally
use it in their transactions with each other. Such is the case
between the Germanic Confederation and its different members,
and between the respective members themselves ; between the dif-
ferent States of Italy ; and between Great Britain and the United
States of America.

(a) Annexe, xvii. a FActe du Congres de Vienne, art. 7.

(6) Kliiber, Uebersicht der diplomatischen Verhandlungen des Wiener Congresses,
§164.

235

§ 159 RIGHTS OF EQUALITY. [PART II.

Titles of § 159. All sovereign princes or States may assume
prlncesgaiid whoever titles of dignity they think fit, and may exact
States. from their own subjects these marks of honor. But their
recognition by other States is not a matter of stript right, especially
in the case of new titles of higher dignity, assumed by sovereigns.
Thus the royal title of King of Prussia, which was assumed by
Frederick I. in 1701, was first acknowledged by the Emperor
of Germany, and subsequently by the other princes and States of
Europe. It was not acknowledged by the Pope until the reign
of Frederick William II. in 1786, and by the Teutonic knights
until 1792, this once famous military order still retaining the
shadow of its antiquated claims to the Duchy of Prussia until that
period, (a) So also the title of Emperor of all the Russias, which
was taken by the Czar, Peter the Great, in 1701, was successively
acknowledged by Prussia, the United Netherlands, and Sweden in
1723, by Denmark in 1732, by Turkey in 1739, by the emperor and
the empire in 1745-6, by France in 1745, by Spain in 1759, and
by the Republic of Poland in 1764. In the recognition of this
title by France, a reservation of the right of precedence claimed by
that crown was insisted on, and a stipulation entered into by Russia
in the form o£ Rev er sales, that this change of title should make no
alteration in the ceremonies observed between the two courts. On
the accession of the Empress Catharine II. in 1762, she refused to
renew this stipulation in that form, but declared that the imperial
title should make no change in the ceremonial observed between
the two courts. This declaration was answered by the court of
Versailles in a counter-declaration, renewing the recognition of that
title, upon the express condition, that, if any alteration should be
made by the court of St. Petersburg in the rules previously ob-
served by the two courts as to rank and precedence, the French
crown would resume its ancient style, and cease to give the title
of Imperial to that of Russia. (6)

The title of Emperor, from the historical associations with which
it is connected, was formerly considered the most eminent and
honorable among all sovereign titles ; but it was never regarded
by other crowned heads as conferring, except in the single case

(a) Ward's History of the Law of Nations, ii. 245-248. Kluber, Droit des Gens
Moderne de FEurope, Part II. tit. 1, ch. 2, § 107, note c.

(6) Flassan, Histoire de la Diplomatic Fran^aise, torn. vi. liv. iii. pp. 328-364.
236

PART II.] RIGHTS OF EQUALITY. § 160

of the Emperor of Germany, any prerogative or precedence over
those princes."

§ 160. The usage of nations has established certain Maritime
maritime ceremonials to be observed, either on the ocean ceremonials-
or those parts of the sea over which a sort of supremacy is claimed
by a particular State.

Among these is the salute by striking the flag or the sails, or by
firing a certain number of guns on approaching a fleet or a ship-
of-war, or entering a fortified port or harbor.

Every sovereign State has the exclusive right, in virtue of its
independence and equality, to regulate the maritime ceremonial to
be observed by its own vessels towards each other, or towards those
of another nation, on the high seas, or within its own territorial
jurisdiction. It has a similar right to regulate the ceremonial to
be observed within its own exclusive jurisdiction by the vessels of
all nations, as well with respect to each other, as towards its own
fortresses and ships of war, and the reciprocal honors to be ren-
dered by the latter to foreign ships. These regulations are estab-
lished either by its own municipal ordinances, or by reciprocal
treaties with other maritime powers, (a)

Where the dominion claimed by the State is contested by foreign
nations, as in the case of Great Britain in the narrow seas, the
maritime honors to be rendered by its flag are also the subject of
contention. The disputes on this subject have not unfrequently
formed the motives or pretexts for war between the powers assert-
ing these pretensions, and those by whom they were resisted. The
maritime honors required by Denmark, in consequence of the su-
premacy claimed by that power over the Sound and Belts, at the
entrance of the Baltic Sea, have been regulated and modified by
different treaties with other States, and especially by the conven-
tion of the 15th of January, 1829, between Russia and Denmark,
suppressing most of the formalities required by former treaties.
This convention is to continue in force until a general regulation
shall be established among all the maritime powers of Europe,

[" The great powers regard the assumption of royal titles as more than matter of
etiquette, and as involving important relations and entailing serious consequences.
They, therefore, make grave points of the recognition of such titles.] — D.

(a) Bynkershoek, de Dominio Maris, cap. 2, 4. Martens, Precis du Droit des
Gens Moderne de l'Europe, liv. iv. ch. 4, § 159. Kliiber, Droit des Gens Moderne de
TEurope, Part II. tit. 1, ch. 3, §§ 117-122.

237

§ 163 EIGHTS OF PROPERTY. [PART II.

according to the protocol of the Congress of Aix-la-Chapelle, signed
on the 9th November, 1818', by the terms of which it was agreed,
by the ministers of the five great powers, Austria, France, Great
Britain, Prussia, and Russia, that the existing regulations observed
by them should be referred to the ministerial conferences at Lon-
don, and that the other maritime powers should be invited to
communicate their views of the subject in order to form some
such general regulation. (5)1?0

CHAPTER IV.

RIGHTS OF PROPERTY.

§ 161. The exclusive right of every independent State
proprietary to its territory and other property, is founded upon the
ng s' title originally acquired by occupancy, conquest, or ces-
sion, and subsequently confirmed by the presumption arising from
the lapse of time, or by treaties and other compacts with foreign
States.

§ 162. This exclusive right includes the public prop-
and private erty or domain of the State, and those things belonging
proper y. ^ private individuals, or bodies corporate, within its
territorial limits.
Eminent § 163. The right of the State to its public property or
ornam. domain is absolute, and excludes that of its own subjects
as well as other nations. The national proprietary right, in
respect to those things belonging to private individuals, or bodies
corporate, within its territorial limits, is absolute, so far as it
excludes that of other nations ; but, in respect to the members of
the State, it is paramount only, and forms what is called the emi-

(b) J. H. W. Schlegel, Staats Kecht des Konigreichs Danemark, Theil I. p. 412.
Martens, Nouveau Recueil, torn. viii. p. 73. Ortolan, Diplomatie de la Mer, tom. i.
liv. ii. ch. 15.

[10° This article has not been executed. On the subject of sovereign and maritime
ceremonials, see also Phillimore's Intern. Law, ii. §§ 27-45. Mackintosh's Works,
iii. 408. Heffter, Europ. Volker. §§ 194-197, 218. Ortolan, Regl. Intern, i. 316, 332,
345.1— D.
238

PART II.] RIGHTS OF PROPERTY. § 164

nent domain ; (a) that is, the right, in case of necessity or for the
public safety, of disposing of all the property of every kind within
the limits of the State.

§ 164. The writers on natural law have questioned how prescr;p_
far that peculiar species of presumption, arising from the tion-
lapse of time, which is called prescription, is justly applicable, as
between nation and nation ; but the constant and approved prac-
tice 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 mu-
nicipal code of every civilized nation, a similar possession by an
individual excludes the claim of every other person to the article
of property in question. This rule is founded upon the supposi-
tion, confirmed by constant experience, that every person will
naturally seek to enjoy that which belongs to him ; and the infer-
ence fairly to be drawn from his silence and neglect, of the origi-
nal defect of his title, or his intention to relinquish it. (a)101

(a) Vattel, Droit des Gens, liv. i. ch. 20, §§ 235, 244. Rutherforth's Inst, of Nat-
ural Law, ii. ch. 9, § 6. Heffler, Europ. Volker. §§ 64, 69, 70.

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 4. Puffendorf, Jus Naturae et Gen-
tium, lib. iv. cap. 12. Vattel, Droit des Gens, torn. i. liv. ii. ch. 11. Rutherforth's
Inst, of Natural Law, i. ch. 8 ; ii. ch. 9, §§ 3, 6.

" Sic qui rem suam ab alio teneri scit, nee quicquam contradicit multo tempore,
i^ nisi causa alia manifeste appareat, non videtur id alio fecisse animo, quam quod
rem illam in suaram rerum numero esse nollet." Grotius, in loc. cit.

[101 The subject of international prescription is treated at great length by Philli-
more. Intern. Law, i. §§ 255-260. He considers Kliiber and Martens as denying to
prescription any place in international law, and cites against them Grotius, Heinec-
cius, Wolff, Mably, Vattel, Bynkershoek, Rutherforth, Wheaton, and Burke. The
last waiter (Works, ix. 449, letter to R. Burke, Esq.) calls prescription "the soundest,
the most general, the most recognized title between man and man, that is known
in municipal or public jurisprudence ; a title in which not arbitrary institutions, but
the eternal order of things, gives judgment ; a title which is not the creature, but the
master, of positive law : " and says that " all nations have always had a prescrip-
tion and limitation against each other." Still the question discussed by Phillimore
is, rather, how far and in what manner the technical rules attending prescription in
private law are to be applied between nations. It cannot be seriously doubted, that
long-continued firm possession, especially if practically undisputed by force, is suffi-
cient to create sovereign title, and to give to all attempts to subvert it the character
of mere rebellion, if by subjects, or of attempted conquest, if by other nations. Where
a nation has lost its separate existence by conquest, but has not submitted farther than
overruling force required, and regains it in a reasonable time, it is remitted to its old
status of independence, and allowed a continuous sovereign recognition. As to what
is a reasonable time in such cases, it is generally said, that the lapse of time allowed

239

§ 165 RIGHTS OF PROPERTY. [PART II.

Conquest § 165. The title of almost all the nations of Europe to
ery con- " the territory now possessed by them, in that quarter of the
compact7 world, was originally derived from conquest, which has
frdthf Deen subsequently confirmed by long possession and
time. international compacts, to which all the European States

have successively become parties. Their claim to the possessions
held by them in the New World, discovered by Columbus and other
adventurers, and to the territories which they have acquired on the
continents and islands of Africa and Asia, was originally derived
from discovery, or conquest and colonization, and has since been
confirmed in the same manner, by positive compact. Independ-
ently of these sources of title, the general consent of mankind has
established the principle, that long and uninterrupted possession by
one nation excludes the claim of every other. Whether this gen-
eral consent be considered as an implied contract, or as positive
law, all nations are equally bound by it ; since all are parties to it ;

for a new generation to be born and educated, and come into possession of the powers
and duties of the State, furnishes the negative limit. Between nations, the question
is one of degree as well as of kind ; and is so complicated with lapse of time and other
circumstances, that no arbitrary rule can be laid down respecting it.

The Supreme Court of the United States, in the case respecting the boundaries
between Massachusetts and Rhode Island, say, " There is no controversy in which
this great principle [prescription] may be invoked with greater justice and propriety
than in a case of disputed boundary." Howard, iv. 639.

Phillimore also applies to this subject the principles of Derivative and Extinctive
Acquisition, as they exist in the Roman private law (ii. §§ 261-294) ; but Mr. Wheaton
has not thought it necessary to pursue that course. The instances given by Phillimore,
of acquisition and extinction of national dominion, form an instructive chapter of his-
tory, yet without settling any great principle beyond that summarily stated in the
text. It may well be doubted if any advantage is gained by importing into the
law of international prescription, terms which have become technical in private
and public municipal law, like postliminium, derelictio, derivative acquisition, extinctive
acquisition, &c. The effect of lapse of time doubtless rests on the same general
reason in the one case as in the other; but the terms have become involved with
reasons and rules peculiar to the systems creating or adopting them. The intercourse
of nations is best managed by referring to those general principles applicable to what
is international, and not in terms and phrases appropriated to other systems, and
colored by their associations. It will be found, that, where lapse of time is invoked as
a corroboration of national title, there are so many elements introduced of original
right, voluntary or passive acquiescence or abandonment, or conquest justo hello, on
the one hand; and, on the other, allegations of temporary and forced submission,
with continued adverse claim, original wrong, imperfect possession, &c, with no possi-
bility, as in civil cases, of settling the facts by a binding decision, — that each case
must rest very much on its own circumstances, and must be met by the application
of general principles and natural presumptions.] — D.
240

PART II.] RIGHTS OF PROPERTY. § 166

since none can safely disregard it without impugning its own title
to its possessions ; and since it is founded upon mutual utility, and
tends to promote the general welfare of mankind.

§ 166. The Spaniards and Portuguese took the lead The Papal
among the nations of Europe, in the splendid maritime Bul1 of 1493,
discoveries in the East and the West, during the fifteenth and
sixteenth centuries. According to the European ideas of that
age, the heathen nations of the other quarters of the globe were
the lawful spoil and prey of their civilized conquerors, and as
between the Christian powers themselves, the Sovereign PonthT
was the supreme arbiter of conflicting claims. Hence the famous
bull, issued by Pope Alexander VI., in 1493, by which he
granted to the united crowns of Castile and Arragon all lands
discovered, and to be discovered, beyond a line drawn from
pole to pole, one hundred leagues west from the Azores, or
Western Islands, under which Spain has since claimed to ex-
clude all other European nations from the possession and use,
not only of the lands but of the seas in the New World west of that
line. Independent of this papal grant, the right of prior discov-
ery was the foundation upon which the different European nations,
by whom conquests and settlements were successively made on the
American continent, rested their respective claims to appropriate
its territory to the exclusive use of each nation. Even Spain did
not found her pretension solely on the papal grant. Portugal
asserted a title derived from discovery and conquest to a portion
of South America ; taking care to keep to the eastward of the line
traced by the Pope, by which the globe seemed to be divided be-
tween these two great monarchies. On the other hand, Great
Britain, France, and Holland, disregarded the pretended authority
of the Papal See, and pushed their discoveries, conquests, and set-
tlements, both in the East and West Indies ; until conflicting with
the paramount claims of Spain and Portugal, they produced bloody
and destructive wars between the different maritime powers of
Europe. But there was one thing in which they all agreed, that
of almost entirely disregarding the right of the native inhabitants
of these regions. Thus the bull of Pope Alexander VI. reserved
from the grant to Spain all lands which had been previously occu-
pied by any other Christian nation ; and the patent granted by
Henry VII. of England to John Cabot and his sons, authorized
them " to seek out and discover all islands, regions, and provinces

21 241

§ 167 'rights of property. [part II.

whatsoever, that may belong to heathens and infidels ; " and " to
subdue, occupy, and possess these territories, as- his vassals and
lieutenants." In the same manner, the grant from Queen Eliza-
beth to Sir Humprey Gilbert empowers him to " discover such
remote heathen and barbarous lands, countries, and territories,
not actually possessed by any Christian prince or people, and to
hold, occupy, and enjoy the same, with all their commodities,
jurisdictions, and royalties." It thus became a maxim of policy
and of law, that the right of the native Indians was subordinate to
that of the first Christian discoverer, whose paramount claim
excluded that of every other civilized nation, and gradually extin-
guished that of the natives. In the various wars, treaties, and
negotiations, to which the conflicting pretensions of the different
States of Christendom to territory on the American continents
have given rise, the primitive title of the Indians has been entirely
overlooked, or left to be disposed of by the States within whose
limits they happened to fall, by the stipulations of the treaties
between the different European powers. Their title has thus been
almost entirely extinguished by force of arms, or by voluntary
compact, as the progress of cultivation gradually compelled the
savage tenant of the forest to yield to the superior power and skill
of his civilized invader, (a)102

Dispute § 167. In the dispute which took place in 1790, between
Greaten Great Britain and Spain, relative to Nootka Sound, the
Britain and iafter claimed all the north-western coast of America as

opain, re-

latingto far north as Prince William's Sound, in latitude 61°,

Nootka . ' '

Sound. upon the ground of prior discovery and long possession,
confirmed by the eighth article of the treaty of Utrecht, referring
to the state of possession in the time of His Catholic Majesty
Charles II. This claim was contested by the British government,
upon the principle that the earth is the common inheritance of
mankind, of which each individual and each nation has a right to
appropriate a share, by occupation and cultivation. This dispute
was terminated by a convention between the two powers, stipulat-
ing that their respective subjects should not be disturbed in their
navigation and fisheries in the Pacific Ocean or the South Seas, or
in landing on the coasts of those seas, not already occupied, for the
purpose of carrying on their commerce with the natives of the coun-

(a) Wheaton's Rep. viii. 571-605, Johnson v. M'Intosh.
[102 See note 24, supra, on Indian Titles.] — D.
242

PART II.] RIGHTS OF PROPERTY. § 168

try, or of making settlements there, subject to the following pro-
visions : —

1. That the British navigation and fishery should not be made
the pretext for illicit trade with the Spanish settlements ; and that
British subjects should not navigate or fish within the space of
ten marine leagues from any part of the coasts already occupied
by Spain.

2. That in all parts of the north-western coasts of North
America, or of the islands adjacent, situated to the north of the
parts of the said coast already occupied by Spain, wherever
the subjects of either of the two powers should have made set-
tlements since the month of April, 1789, or should thereafter
make any, the subjects of the other should have free access, and
should carry on their trade without any disturbance or molesta-
tion.

3. That, with respect to the eastern and western coasts of
South America,. and the adjacent islands, no settlement should
be formed thereafter, by the respective subjects, in such parts of
those coasts as are situated to the south of those parts of the
same coasts, and of the adjacent islands already occupied by
Spain ; provided that the respective subjects should retain the
liberty of landing on the coasts and islands so situated, for the
purposes of their fishery, and of erecting huts and other tempo-
rary buildings, for those purposes only, (a)

§ 168. By an ukase of the Emperor Alexander of Bus- contro-
sia, of the 4- 16th September, 1821, an exclusive ter- ™™y ^
ritorial right on the north-west coast of America was United
asserted as belonging to the Russian Empire, from Russia,
Behring's Straits to the 51st degree of north latitude, thePnorth?
and in the Aleutian Islands, on the east coast of Siberia, col^fof
and the Kurile Islands, from the same straits to the South America.
Cape in the island of Ooroop, in 45° 51' north latitude. The
navigation and fishery of all other nations were prohibited in the
islands, ports, and gulfs, within the above limits; and every for-
eign vessel was forbidden to touch at any of the Russian establish-
ments above enumerated, or even to approach them, within a less
distance than 100 Italian miles, under penalty of confiscation of

(a) Annual Register for 1790, (State Papers,) -pp. 285-305; 1791, pp. 208, 214,
222-227. Greenhow, History of Oregon and California, 4'66, Proofs and Illustra-
tions, K. No. 1.

243

§ 168 RIGHTS OF PROPERTY. [PART II.

the cargo. The proprietary rights of Russia to the extent of the
north-west coast of America, specified in this decree, were rested
upon the three bases said to be required by the general law of
nations and immemorial usage ; that is, — upon the title of first
discovery; upon the title of first occupation; and, in the last
place, upon that which results from a peaceable and uncontested
possession of more than half a century. It was added, that the
extent of sea, of which the Russian possessions on the continents
of Asia and America form the limits, comprehended all the condi-
tions which were ordinarily attached to shut seas (mers fermees) ;
and the Russian government might consequently deem itself au-
thorized to exercise upon this sea the right of sovereignty, and
especially that of entirely interdicting the entrance of foreigners.
But it preferred only asserting its essential rights, by measures
adapted to prevent contraband trade within the chartered limits of
the American Russian Company.

All these grounds were contested, in point of fact as well as
right, by the American government. The Secretary of State, Mr.
John Q. Adams, in his reply to the communication of the Russian
Minister at Washington, stated, that from the period of the exist-
ence of the United States as an independent nation, their vessels
had freely navigated these seas, and the right to navigate them was
a part of that independence ; as was also the right of their citizens
to trade, even in arms and munitions of war, with the aboriginal
natives of the north-west coast of America, who were not under the
territorial jurisdiction of other nations. He totally denied the Rus-
sian claim to any part of America south of . the 55th degree of
north latitude, on the ground that this parallel was declared, in the
charter of the Russian American Company, to be the southern
limit of the discoveries made by the Russians in 1799 ; since which
period they had made no discoveries or establishments south of
that line, on the coast claimed by them. With regard to the sug-
gestion, that the Russian government might justly exercise sover-
eignty over the northern Pacific Ocean, as mare clausum, because
it claimed territories both on the Asiatic and American coasts of
that ocean, Mr. Adams merely observed, that the distance between
those coasts on the parallel of 51 degrees, was not less than four
thousand miles ; and he concluded by expressing the persuasion of
the American government, that the citizens of the United States
would remain unmolested in the prosecution of their lawful com-
244

PART II.] RIGHTS OF PROPERTY. § 169

merce, and that no effect would be given to a prohibition, mani-
festly incompatible with their rights, (a)

§ 169. The negotiations on this subject were finally conven-
terminated by a convention between the two govern- between the
nients, signed at Petersburg, on the 5-17th April, 1824, g££?d d
containing the following stipulations : — Russia.

" Art. 1. It is agreed that, in any part of the great ocean, com-
monly called the Pacific Ocean or South Sea, the respective citizens
or subjects of the high contracting powers shall be neither dis-
turbed nor restrained, either in navigation or in fishing, or in the
power of resorting to the coasts, upon points which may not already
have been occupied, for the purpose of trading with the natives,
saving always the restrictions and conditions determined by the
following articles : —

" Art. 2. With the view of preventing the rights of navigation
and of fishing, exercised upon the great ocean by the citizens and
subjects of the high contracting powers, from becoming the pretext
for an illicit trade, it is agreed that the citizens of the United States
shall not resort to any point where there is a Russian establish-
ment, without the permission of the governor or commander ; and
that, reciprocally, the subjects of Russia shall not resort, without
permission, to any establishment of the United States upon the
north-west coast.

" Art. 3. It is moreover agreed, that hereafter, there shall not
be formed by the citizens of the United States, or under the au-
thority of the said States, any establishment upon the north-west
coast of America, nor in any of the islands adjacent, to the north
of fifty-four degrees and forty minutes of north latitude ; and that,
in the same manner, there shall be none formed by Russian
subjects, or under the authority of Russia, south of the same
parallel.

" Art. 4. It is, nevertheless, understood, that, during a term of
ten years, counting from the signature of the present Convention,
the ships of both powers, or which belong to their citizens or sub-
jects, respectively, may reciprocally frequent, without any hinder-
ance whatever, the interior seas, gulfs, harbors, and creeks, upon
the coast mentioned in the preceding article, for the purpose of
fishing and trading with the natives of the country."

(a) Annual Register, lxiv. 576-584 : Correspondence between Mr. John Q. Adams
and M. Poletica.

21* 245

§ 170 RIGHTS OF PROPERTY. [PART IT.

Conven- § 170. Great Britain had also formally protested against
between 2 the claims and principles set forth in the Russian ukase of
Sneandnt" 1821, immediately on its promulgation, and subsequently
Russia. at the Congress of Verona. The controversy, as between
the British and Russian governments, was finally closed by a con-
vention signed at Petersburg, February 16-28, 1825, which also
established a permanent boundary between the territories respect-
ively claimed by them on the continent and islands of North-western
America.

This treaty contained the following stipulations : —

" Art. 1. It is agreed that the respective subjects of the high
contracting parties shall not be troubled or molested in any part
of the ocean commonly called the Pacific Ocean, either in navi-
gating the same, in fishing therein, or in landing at such part of
the coast as shall not have been already occupied, in order to trade
with the natives, under the restrictions and conditions specified in
the following articles : —

" Art. 2. In order to prevent the right of navigating and fishing,
exercised upon the ocean by the subjects of the high contracting
parties, from becoming the pretext for an illicit commerce, it is
agreed that the subjects of His Britannic Majesty shall not land at
any place where there may be a Russian establishment, without
the permission of the governor or commandant ; and, on the other
hand, that Russian subjects shall not land without permission, at
any British establishment on the north-west coast."

By the 3d and 4th articles it was agreed that " the line of de-
marcation between the possessions of the- high contracting parties
updn the coast of the continent and the islands of America to
the north-west," should be drawn from the southernmost point of
Prince of Wales's Island, in latitude 54 degrees 40 minutes east-
ward, to the great inlet in the continent called Portland Channel,
and along the middle of that inlet to the 56th degree of latitude,
whence it should follow the summit of the mountains bordering
the coast, within ten leagues north-westward, to Mount St. Elias,
and thence north, in the course of the 141st meridian west from
Greenwich, to the Frozen Ocean, " which line shall form the limit
between the Russian and the British possessions in the continent
of America to the north-west."

" Art. 5. It is, moreover, agreed that no establishment shall be
formed by either of the two parties within the limits assigned by

246

PART II.] RIGHTS OF PROPERTY. § 170

the two preceding articles to the possessions of the other. Conse-
quently, British subjects shall not form any establishment, either
upon the coast, or upon the border of the continent comprised
within the limits of the Russian possessions, as designated in
the two preceding articles ; and, in like manner, no establish-
ment shall be formed by Russian subjects beyond the said
limits.

" Art. 6. It is understood that the subjects of His Britannic
Majesty, from whatever quarter they may arrive, whether from the
ocean or from the interior of the continent, shall for ever enjoy
the right of navigating freely, and without any hinderance what-
ever, all the rivers and streams which in their course towards the
Pacific Ocean may cross the line of demarcation upon the line of
coast described in article 3 of the present Convention.

" Art. 7. It is also understood, that, for the space of ten years
from the signature of the present Convention, the vessels of the
two powers, or those belonging to their respective subjects, shall
mutually be at liberty to frequent, without any hinderance what-
ever, all the inland seas, gulfs, havens, and creeks on the coast,
mentioned in article 3, for the purpose of fishing and trading with
the natives.

" Art. 8. The port of Sitka, or Novo Archangelsk, shall be open
to the commerce and vessels of British subjects for the space of ten
years, from the date of the exchange of the ratifications of the
present Convention. In the event of an extension of this term
being granted to any other power, the like extension shall be
granted also to Great Britain.

" Art. 9. The above-mentioned liberty of commerce shall not
apply to the trade in spirituous liquors, in fire-arms, or other arms,
gunpowder or other warlike stores ; the high contracting parties
reciprocally engaging not to permit the above-mentioned articles
to be sold or delivered, in any manner whatever, to the natives of
the country."

The 10th and 11th articles contain regulations respecting British
or Russian vessels, navigating the Pacific Ocean, and putting into
the ports of the respective parties in distress ; and for the settle-
ment of all cases of complaint arising under the treaty, (a)

(a) Greenhow, History of Oregon and California, 469 : Proofs and Illustrations,
I. No. 5.

247

§ 171 RIGHTS OF PROPERTY. [PART II.

Expira- § 171. In the mean time, the period of ten years, estab-
Convention lished by the 4th article of the Convention between the
tVeentfie" United States and Russia, during which the vessels of
Statefand ^oth nati°ns might frequent the bays, creeks, harbors,
Russia. and other interior waters on the north-western coast of
America, had expired. The Eussian government had chosen to
consider that article as the only limitation of its right to exclude
American vessels from all parts of the division of the coast, on
which the United States stipulated to form no establishments ; dis-
regarding entirely the first article of the Convention, by which all
unoccupied places on the north-western coast were declared free
and open to the citizens or subjects of both parties — American
vessels were consequently prohibited by the Russian authorities
from trading on the unoccupied parts of that coast, north of the
parallel of 54th degree 40 minutes. The American government
protested against this prohibition, and at the same time, proposed
to the Russian government to renew the stipulations of the Con-
vention of 1824, for an indefinite period of time. (#)

In the letter of instructions from the Secretary of State, Mr.
Forsyth, to the American Minister at Petersburg, it was stated
that if the 4th article was to be considered as merely applicable
to parts of the coast unoccupied, then it merely provided for the
temporary enjoyment of a privilege which existed in perpetuity,
under the law of nations, and which had been expressly declared
so to exist by a previous article of the Convention. Containing,
therefore, no provision not embraced in the' preceding article, it
would be useless and of no effect. But the rule in regard to the
construction of an instrument, of whatever kind, was, that it should
be so construed, if possible, as that every part may stand.

If the article were construed to include points of the coast al-
ready occupied, it then took effect, thus far, as a temporary excep-
tion to a perpetual prohibition, and the only consequence of the
expiration of the term 'to which it was limited, would be the im-
mediate and continued operation of the prohibition.

It was still more reasonable to understand it, however, as in-
tended to grant permission to enter interior bays, &c, at the
mouths of which there might be establishments, or the shores of
which might be, in part, but not wholly, occupied by such estab-

(a) Greenhow, 343-361.
248

PART II.] RIGHTS OF PROPERTY. § 171

lishments, thus providing for a case which would otherwise admit
of doubt, as without the 4th article it would be questionable
whether the bays, &c, described in it belonged to the first or
second article.

In no sense could it be understood as implying an acknowledg-
ment, on the part of the United States, of the right of Russia to
the possession of the coast above the latitude of 54 degrees 40
minutes north. It must be taken in connection with the other
articles of the Convention, which had, in fact, no reference what-
ever to the question of the right of possession of the unoccupied
part of the coast. In a spirit of compromise, and to prevent future
collisions or difficulties, it was agreed that no new establishments
should be formed by the respective parties to the north or south
of a certain parallel of latitude, after the conclusion of the agree-
ment ; but the question of the right of possession beyond the exist-
ing establishments, as it subsisted previously to, or at the time of
the conclusion of the Convention, was left untouched. The United
States, in agreeing not to form new establishments to the north of
latitude 54 degrees 40 minutes north, made no acknowledgment
of the right of Russia to the territory above that line. If such an
admission had been made, Russia, by the same construction of the
article, must have acknowledged the right of the United States to
the territory south of the designated line. But that Russia did
not so understand the article, was conclusively proved by her
having entered into a similar agreement in a subsequent treaty
(1825) with Great Britain ; and having, in fact, acknowledged in
that instrument the right of the same territory by Great Britain.
The United States could only be considered as acknowledging the
right of Russia to acquire, by actual occupation, a just claim to
unoccupied lands above the latitude 54 degrees 40 minutes north ;
and even this was mere matter of inference, as the Convention of
1824 contains nothing more than a negation of the right of the
United States to occupy new points within that limit.

Admitting that this inference was just, and was in contempla-
tion of the parties to the Convention, it would not follow that the
United States ever intended to abandon the just right acknowl-
edged by the first article to belong to them under the law of na-
tions, i.e. to frequent any part of the unoccupied coasts of North
America, for the purpose of fishing or trading with the natives.

249

§ 172 RIGHTS OF PROPERTY. [PART II.

All that the Convention admitted was an inference of the right of
Russia to acquire possession by settlement north of 54 degrees 40
minutes north. Until that actual possession was taken, the first
article of the Convention acknowledged the right of the United
States to fish and trade as prior to its negotiation. This was not
only the just construction, but it was the one both parties were in-
terested in putting upon the instrument, as the benefits were equal
and mutual, and the object of the Convention, to avoid converting
the exercise of the common right into a dispute about exclusive
privilege, was secured by it.

These arguments were not controverted by the Russian cabinet,
which, however, declined the proposition for a renewal of the en-
gagements contained in the 4th article ; and the matter still rests
on the same footing. (5)
™ . „ § 172. The claim of the United States to the territory

Claim of ° J

the United between the Rocky Mountains and the Pacific Ocean,
Oregon ter- and between the 42d degree and 54th degree and 40
ntory. minutes of north latitude, is rested by them upon the
following grounds : —

1. The first discovery of the mouth of the river Columbia by
Captain Gray, of Boston, in 1792 ; the first discovery of the sources
of that river, and the exploration of its course to the sea by Cap-
tains Lewis and Clark, in 1805-6 ; and the establishment of the
first posts and settlements in the territory in question by citizens
of the United States.

2. The virtual recognition by the British government of the title
of the United States in the restitution of the settlement of Astoria
or Fort George, at the mouth of the Columbia River, which had
been captured by the British during the late war between the two
countries, and which was restored in virtue of the 1st article of the
treaty of Ghent, 1814, stipulating that " all territory, places, and
possessions whatever, taken by either party from the other during
the war," &c, " shall be restored without delay." This restitution
was made, without any reservation or exception whatsoever, com-
municated at the time to the American government.

3. The acquisition by the United States of all the titles of
Spain, which titles were derived from the discovery of the coasts

(b) Mr. Forsyth's letter to Mr. Dallas, Nov. 3, 1837 : Cong. Doc. Sess. 1838-9, i. 36.
Greenhow, 361-363.
250

PART II.] RIGHTS OF PROPERTY. § 172

of the region in question, by Spanish subjects, before they had
been seen by the people of any other civilized nation. By the
3d article of the treaty of 1819, between the United States and
Spain, the boundary line between the two countries, west of the
Mississippi, was established from the mouth of the river Sabine,
to certain points on the Red River and the Arkansas, and running
along the parallel of 42 degrees north of the South Sea; His
Catholic Majesty ceding to the United States " all his rights,
claims, and pretensions, to any territories east and north of the
said line ; and " renouncing " for himself, his heirs and succes-
sors, all claim to the said territories for ever.'* The boundary thus
agreed on with Spain was confirmed by the treaty of 1828, be-
tween the United States and Mexico, which had, in the mean time,
become independent of Spain.

4. Upon the ground of contiguity, which should give to the
United States a stronger right to those territories than could be
advanced by any other power. " If," said Mr. Gallatin, " a. few
trading factories on the shores of Hudson's Bay have been con-
sidered by Great Britain as giving an exclusive right of occu-
pancy as far as the Rocky Mountains ; if the infant settlements
on the more southern Atlantic shores justified a claim thence
to the South Seas, and which was actually enforced to the Mis-
sissippi ; that of the millions of American citizens already within
reach of those seas, cannot consistently be rejected. It will not
be denied that the extent of contiguous country to which an
actual settlement gives a prior right, must depend, in a consider-
able degree, on the magnitude and population of that settlement,
and on the facility with which the vacant adjacent land may,
within a short time, be occupied, settled, and cultivated by such
population, compared with the probability of its being occupied
and settled from any other quarter. This doctrine was admitted
to its fullest extent by Great Britain, as appeared by all her char-
ters, extending from the Atlantic to the Pacific, given to colonies
established then only on the borders of the Atlantic. How much
more natural and stronger the claim, when made by a nation
whose population extended to the central parts of the continent,
and whose dominions were by all acknowledged to extend to the
Rocky Mountains."

The exclusive claim of the United States is opposed by Great
Britain on the following grounds : —

251

§ 174 RIGHTS OP PROPERTY. [PART II.

British § 173. 1. That the Columbia was not discovered by

Oregon Ter- ^raJ? wno na^ on^J entered its mouth, discovered four
ritory. years previously by Lieutenant Meares of the British
navy; and that the exploration of the interior borders of the
Columbia by Lewis and Clark could not be considered as confirm-
ing the claim of the United States, because, if not before, at least
in the same and subsequent years, the British Northwest Company
had, by means of their agents, already established their posts on
the head waters or main branch of the river.

2. That the restitution of Astoria, in 1818, was accompanied by
express reservations of the claim of Great Britain to that territory,
upon which the American settlement must be considered an en-
croachment.

3. That the titles to the territory in question, derived by the
United States from Spain through the treaty of 1819, amounted to
nothing more than the rights secured to Spain equally with Great
Britain by the Nootka Sound Convention of 1790 : namely, to settle
on any part of those countries, to navigate and fish in their
waters, and to trade with the natives.

4. That the charters granted by British sovereigns to colonies
on the Atlantic coasts were nothing more than cessions to the
grantees of whatever rights the grantor, might consider himself to
possess, and could not be considered as binding the subjects of
any other nation, or as part of the law of nations, until they had
been confirmed by treaties.

Negotia- §174. During the negotiation of 1827, the British plen-
tions of i82r. ipotentiaries, Messrs. Huskisson and Addington, present-
ed the pretensions of their government in respect to the territory in
question in a statement, of which the following is a summary.

" Great Britain claims no exclusive sovereignty over any por-
tion of the territory on the Pacific, between the 42d and the 49th
parallels of latitude. Her present claim, not in respect to any
part, but to the whole, is limited to a right of joint occupancy, in
common with other States, leaving the right of exclusive dominion
in abeyance ; and her pretensions tend to the mere maintenance of
her own rights, in resistance to the exclusive character of the pre-
tensions of the United States.

" The rights of Great Britain are recorded and defined in the
Convention of 1790. They embrace the right to navigate the
waters of those countries, to settle in and over any part of them,
262

PART II.] RIGHTS OF PROPERTY. § 175

and to trade with the inhabitants and occupiers of the same.
These rights have been peaceably exercised ever since the date
of that Convention ; that is, for a period of nearly forty years.
Under that Convention, valuable British interests have grown
up in those countries. It is admitted that the United States
possess the same rights, although they have been exercised by
them only in a single instance, and have not, since the year 1813,
been exercised at all ; but beyond those rights they possess
none.

" In the interior of the territory in question, the subjects of
Great Britain have had, for many years, numerous settlements and
trading-posts ; several of these posts are on the tributary waters of
the Columbia; several upon the Columbia itself; some to the
northward, and others to the southward of that river. And they
navigate the Columbia as the sole channel for the conveyance of
their produce to the British stations nearest to the sea, and for its
shipment thence to Great Britain ; it is also by the Columbia and
its tributary streams that these posts and settlements receive their
annual supplies from Great Britain.

" To the interests and establishments which British industry and
enterprise have created, Great Britain owes protection ; that pro-
tection will be given, both as regards settlement, and freedom of
trade and navigation, with every attention not to infringe the co-
ordinate rights of the United States ; it being the desire of the
British government, so long as the joint occupancy continues, to
regulate its own obligations by the same rules which govern the
obligations of every other occupying party.". (a)

§ 175. By the 3d article of the Convention between the United
States and Great Britain, in 1818, it was " agreed, that any country
that may be claimed by either party, on the north-west coast of
America, westward of the Stony Mountains, shall, together with
its harbors, bays, and creeks, and the navigation of all rivers within
the same, be free and open, for the term of ten years from the
date of the signature of the present Convention, to the vessels,
citizens, and subjects of the two powers ; it being well understood
that this agreement is not to be construed to the prejudice of any
claim which either of the two high contracting parties may have
to any part of the said country, nor shall it be taken to affect the

(a) Congress. Documents, 20th Cong, and 1st Sess. No. 199. Greenhow, Proofs
and Illustrations, H.

22 253

§ 176 RIGHTS OF PROPERTY. [PART II.

claims of any other power or state to any part of the said coun-
try ; the only object of the high contracting parties, in that respect,
being to prevent disputes and differences amongst themselves."

In 1827, another Convention was concluded between the two
parties, by which it was agreed : —

"Art. 1. All the provisions of the third article of the Conven-
tion concluded between the United States of America and His
Majesty the King of the United Kingdom of Great Britain and Ire-
land, on the 20th of October, 1818, shall be, and they are, hereby,
further indefinitely extended and continued in force, in the same
manner as if all the provisions of the said article were herein spe-
cifically recited.

Art. 2. It shall be competent, however, to either of the con-
tracting parties, in case either should think fit at any time after
the 20th of October, 1828, on giving due notice of twelve months
to the other contracting party, to annul and abrogate this Con-
vention ; and it shall, in such case, be accordingly entirely annulled
and abrogated, after the expiration of the said term of notice.

" Art. 3. Nothing contained in this Convention, or in the third
article of the Convention of the 20th of October, 1818, hereby con-
tinued in force, shall be construed to impair, or in any manner
affect the claims which either of the contracting parties may have
to any part of the country westward of the Stony or Rocky Moun-
tains." (a)

§ 176. The notification provided for by the Convention having
been given by the American government, new discussions took
place between the two governments, which were terminated by a
treaty concluded at Washington, in 1846. 103 By the first article of
that treaty it was stipulated, that from the point on the 49th par-
allel of north latitude, where the boundary laid down in existing
treaties and conventions between the United States and Great
Britain terminates, the line of boundary shall be continued west-
ward along the said 49th parallel of north latitude to the middle
of the channel which separates the continent from Vancouver's
Island, and thence southerly through the middle of the said chan-
nel, and of Fucas Straits, to the Pacific Ocean ; provided, how-
ever, that the navigation of the whole of the said channel and
straits, south of the 49th parallel of north latitude, remain free

(a) Elliot's American Diplomatic Code, i. 282, 330.
[103 U. S. Laws and Treaties, ix. 109, 869.] — D.
254

PART II.] RIGHTS OF PROPERTY. § 177

and open to both parties. The second article stipulated for the
free navigation of the Columbia River by the Hudson's Bay
Company, and the British subjects trading with them, from the
49th degree of north latitude to the ocean. The third article
provided that the possessory rights of the Hudson's Bay Com-
pany, and of all other British subjects, to the territory south of
the parallel of the 49th degree of north latitude, should be re-
spected.104

§ 177. The maritime territory of every State extends Maritime
to the ports, harbors, bays, mouths of rivers, and adjacent j^dic!?1
parts of the sea inclosed by headlands, belonging to the tion-
same State. The general usage of nations superadds to this ex-
tent of territorial jurisdiction a distance of a marine league, or as
far as a cannon-shot will reach from the shore, along all the coasts
of the State.105 Within these limits, its rights of property and ter-

[104 Guano Islands. — In 1856, the United States adopted a general system respect-
ing the discovery and use of guano islands, set forth in the Act of Congress, of 18th
August, 1856. (JJ. S. Laws, xi. 119.) Its provisions are applicable only to "dis-
coveries " that had been made or might thereafter be made, and " peaceful posses-
sion " taken, of " deposits of guano on any island, rock, or key, not within the lawful
jurisdiction of any other government, and not occupied by the citizens of any other
government." It provides that citizens of the United States, discovering and taking
peaceful possession of such deposits, shall be protected by the government in the use
of the same for the purpose of removing guano ; but it requires thern to sell or ship
the guano to citizens of the United States only, and at rates fixed by statute. It
extends over these places the criminal and penal laws of the United States appli-
cable to vessels of the United States at sea. It provides that nothing in the act shall
be construed as obligatory on the United States to retain possession of such places
after the guano shall have been removed. In fact, it secures to citizens the usufruct
of unoccupied guano deposits which they have discovered and peacefully occupied,
beyond the jurisdiction of any foreign State, upon certain terms as to the sale and
exportation of the guano ; and stipulates for nothing beyond the usufruct while the
guano remains. Under this act, the United States had questions with Venezuela as
to Aves Rock, and with Hay ti as to Navaza, — islands lying off the coasts of those
countries respectively. The former was settled by a payment of an indemnity by
Venezuela. Ex. Doc. No. 25, 34th Cong. 3d Sess. ; and No. 37, 36th Cong. 1st
Sess.]— D.

[105 Territorial Waters. — Grotius extends territorial rights over as much of the sea
as can be defended from the shore. Lib. ii. cap. 3, §§ 13, 14. The argument is, that the
limit of exclusive jurisdiction should be the limit of the power of regular and effective
instruments of war, used on and from the lands and territorial possessions of a nation.
Hautefeuille adheres to the rule of the cannon-shot ; but contends, that, in case of
small bays and gulfs, the line from which the cannon-shot should be measured is a
line drawn from headland to headland. He does not, however, contend for such
a line in case of bays so large as to be parts of a public, ocean. (Droits des Nat.
Neutr. i. 89, 239.) Bynkershoek defines the limits thus : " Terrae potestas finitur, ubi

255

§ 178 RIGHTS OF PROPERTY. [PART II.

ritorial jurisdiction are absolute, and exclude those of every other
nation, (a)

Extent of § 178. The term "coasts" includes the natural ap-
colfcTo? pendages of the territory which rise out of the water,
shore. although these islands are not of sufficient firmness to

'be inhabited or fortified ; .but it does not properly comprehend
all the shoals which form sunken continuations of the land per-
petually covered with water. The rule of law on this subject is
Terrce dominium finitur, ubi fiiiitur armorum vis ; and since the in-
troduction of fire-arms, that distance has usually been recognized
to be about three miles from the shore, (a)106 In a case before

finitur armorum vis, . . . quousque tormenta exploduntur." De Dominio Maris, cap. 2.
Of the same opinion are Vattel (liv. i. ch. 23, § 289), Azuni (t. i. cap. 2, § 14), Kliiber
(§ 130), and De Martens (Droit des Gens, § 40). Eayneval limits it to the horizon,
— an impracticable test. (Instit. liv. ii. ch. 9, § 10.) Valin contends for a line beyond
soundings, " ou Ton ne peut pas trouver le fond." (Comm. sur TOrdonnance-de 1681,
liv. v. tit. 1.) But soundings are now had at great depths, and in many parts of mid-
ocean; and there are great irregularities in soundings, and differences in coasts in
respect of shallowness. Ortolan treats this subject at great length, and comes to the
conclusion that the limit (for which he adopts the phrase of Pinheiro Ferreira, ligne de
respect) should be the extent to wrhich projectiles of wrar can be effectively thrown
from the shore, although that must be an advancing line in the improvements made
by modern science. (Hegl. Intern, i. ch. 8, p. 152-158, edit, of 1864.) Heffier (Europ.
Volker. § 75) adopts the same reasoning, and considers the cannon-shot as the test ;
and that the treaties which fix upon three miles, and formerly fixed upon two miles,
as the limits, are intended to define the range of artillery. See also Riquelme,
Derecho Pub. Intern, i. 253. Jacobson's Sea Laws, 586-590. Tellegen, 50. Hal-
leck's Intern. Law, 130. Emerigon, Des Assurances, ch. 12, § 19. De Cussy, Droit
Marit. liv. i. tit. 2, § 40. Wildman's Intern. Law, i. 70. The treaties between England
and the United States of 1818, and between England and France of 2d August, 1839,
settle the limits of exclusive fishery at three marine miles. The English act, 1833,
assumes the marine league as the limit of jurisdiction over the open sea.] — D.

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 3, § 10. Bynkershoek, Qusest. Jur.
Pub. lib. i. cap. 8. De Dominio Maris, cap. 2. Vattel, liv. i. ch. 23, § 289. Yalin,
Comm. sur FOrdonnance de la Marine, liv. v. tit. 1. Azuni, Diritto Marit, Pt. I.
cap. 2, art. 3, § 15. Galiani, dei Doveri dei Principi Neutrali in Tempo di Guerra,
liv. i. Life and Works of Sir L. Jenkins, vol. ii. 780.

(a) Unde dominium maris proximi non ultra concedimus, quam e terra illi impe-
rari potest, et tamen eo usque ; nulla siquidem sit ratio, cur mare, quod in alicujus
imperio est et potestate, minus ejusdem esse dicamus, quam fossam in ejus territorio.
.... Quare omnino videtur rectius, eo potestatem terrae extendi, quousque tormenta
exploduntur, eatenus quippe ciim imperare, turn possidere videmur. Loquor autem
de his temporibus, quibus illis machinis utimur : alioquin generaliter dicendum esset,
potestatem terra? finiri, ubi finitur armorum vis ; etenim haec, ut diximus, possessionem
tuetur." Bynkershoek, de Dominio Maris, cap. 2. Ortolan, Diplomatic de la Mer,
liv. ii. ch. 8.

[loe See note No. 105, ante.] — D.
256

PART II.] EIGHTS OF PROPERTY. § 179

Sir W. Scott, (Lord Stowell,) respecting the legality of a capture
alleged to be made within the neutral territory of the United
States, at the mouth of the river Mississippi, a question arose as
to what was to be deemed the shore, since there are a number of
little mud islands, composed of earth and trees, drifted. down by
the river, which form a kind of portico to the main land. It was*
contended that these were not to be considered as any part of the
American territory — that they were a sort of " no man's land,"
not of consistency enough to support the purposes of life, unin-
habited, and resorted to only for shooting and taking birds' nests.
It was argued that the line of territory was to be taken only from
the Balize, which is a fort raised on made land by the former
Spanish possessors. But the learned judge was of a different
opinion, and determined that the protection of the territory was
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 were formed. Their elements were derived immedi-
ately 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 remanet, even if it had been carried over to an adjoin-
ing territory. Whether they were composed of earth or solid rock
would not vary the right of dominion, for the right of dominion
does not depend upon the texture of the soil. (5)107

§ 179. The exclusive territorial jurisdiction of the The King's
British crown over the inclosed parts of the sea along Chambers-
the coasts of the island of Great Britain, has immemorially ex-
tended to those bays called the King's Chambers ; that is, portions
of the sea cut off by lines drawn from one promontory to another.
A similar jurisdiction is also asserted by the United States over
the Delaware Bay, and other bays and estuaries forming portions
of their territory. It appears from Sir Leoline Jenkins, that both
in the reigns of James I. and Charles II. the security of British
commerce was provided for, by express prohibitions against the

(b) Robinson's Adm. Eep. v. 385, (c,) The Anna.

[107 See also Halleck's Intern. Law, 130. Wildman's Intern. Law, i. 39. Ortolan,
Domaine Intern. § 93. De Pistoye et Duverdy, Traite des Prises, tit. 2, ch. 1, § 1.
Islands adjacent to the coast of the main land, though not formed from it by alluvium
or increment, are considered as appurtenant, unless some other power has obtained
title to them by some of the recognized modes of acquisition. Halleck's Intern. Law,
131. Ortolan, Regl. Intern, liv. ii. ch. 8.] — D.

22* 257

§ 180 RIGHTS OF PROPERTY. [PART II.

roving or hovering of foreign ships of war so near the neutral
coasts and harbors of Great Britain as to disturb or threaten ves-
sels homeward or outward bound ; and that captures by such
foreign cruisers, even of their enemies' vessels, would be restored
by the Court of Admiralty, if made within the King's Chambers.
So, also, the British " Hovering Act," passed in 1736, (9 Geo. II.
cap. 35,) assumes, for certain revenue purposes, a jurisdiction of
four leagues from the coasts, by prohibiting foreign goods to be
transshipped within that distance, without payment of duties. A
similar provision is contained in the revenue laws of the United
States ; and both these provisions have been declared, by judicial
authority in each country, to be consistent with the law and usage
of nations, (a)108

Right of § 1^0. The right of fishing in the waters adjacent to
fishery. ^ie coasts 0f any nation, within its territorial limits, be-
ta) Life and Works of Sir L. Jenkins, ii. 727, 728, 780. Opinion of the United-
States Attorney- General on the capture of the British ship Grange in the Delaware
Bay, 1793. Waite's American State Papers, i. 75. Dodson's Adm. Keports, ii. 245.
Le Louis, Cranch's Keports, ii. 187. Church v. Hubbard. Yattel, Droit des Gens,
liv. i. ch. 22, § 281.

[108 Municipal Seizures beyond the Marine League or Cannon-shot. — The statement in
the text requires further consideration. It has been seen that the consent of nations
extends the territory of a State to a marine league or cannon-shot from the coast.
Acts done within this distance are within the sovereign territory. The war-right of
visit and search extends over the whole sea. But it will not be found that any
consent of nations can be shown in favor of extending what may be strictly called
territoriality, for any purpose whatever, beyond the marine league or cannon-shot.
Doubtless States have made laws, for revenue purposes, touching acts done beyond
territorial waters ; but it will not be found, that, in later times, the right to make
seizures beyond such waters has been insisted upon against the remonstrance of foreign
States, or that a clear and unequivocal judicial precedent now stands sustaining such
seizures, when the question of jurisdiction has been presented. The revenue laws
of the United States, for instance, provide that if a vessel, bound to a port in the
United States, shall, except from necessity, unload cargo within four leagues of the
coast, and before coming to the proper port for entry and unloading, and receiving
permission to do so, the cargo is forfeit, and the master incurs a penalty (Act 2d March,
1797, § 27) ; but the statute does not authorize a seizure of a foreign vessel when
beyond the territorial jurisdiction. The statute may well be construed to mean only
that a foreign vessel, coming to an American port, and there seized for a violation ot
revenue regulations committed out of the jurisdiction of the United States, may be
confiscated ; but that, to complete the forfeiture, it is essential that the vessel shall
be bound to, and shall come within, the territory of the United States, after the pro-
hibited act. The act done beyond the jurisdiction is assumed to be part of an attempt
to violate the revenue laws within the jurisdiction. Under the previous sections of
that act, it is made the duty of revenue-officers to board all vessels, for the purpose
of examining their papers, within four leagues of the coast. If foreign vessels have
258

PART II.] RIGHTS OF PROPERTY. § 180

longs exclusively to the subjects of the State. The exercise of this
right, between France and Great Britain, was regulated by a Con-
vention concluded between these two powers, in 1839 ; by the 9th
article of which it is provided, that French subjects shall enjoy the
exclusive right of fishing along the whole extent of the coasts of
France, within the distance of three geographical miles from the
shore, at low-water mark, and that British subjects shall enjoy
the same exclusive right along the whole extent of the coasts

been boarded and seized on the high sea, and have been adjudged guilty, and their
governments have not objected, it is probably either because they were not appealed
to, or have acquiesced, in the particular instance, from motives of comity.

The cases cited in the author's note do not necessarily and strictly sustain the
position taken in the text. In The Louis (Dodson, ii. 245), the arrest was held unjusti-
fied, because made in time of peace for a violation of municipal law beyond territorial
waters. The words of Sir William Scott, on pages 245 and 246, with reference to the
Hovering Acts, are only illustrative of the admitted rule, that neighboring waters are
territorial ; and he does not say, even as an obiter dicturfl, that the territory for revenue
purposes extends beyond that claimed for other purposes. On the contrary, he says
that an inquiry for fiscal or defensive purposes, near the coast but beyond the marine
league, as under the hovering-laws of Great Britain and the United States, " has noth-
ing in common with the right of visitation and search upon the unappropriated parts
of the ocean ; " and adds, " A recent Swedish claim of examination on the high seas,
though confined to foreign ships bound to Swedish ports, and accompanied, in a manner
not very consistent or intelligible, with a disclaimer of all right of visitation, was resisted
by the British Government, and was finally withdrawn." Church v. Hubbard (Cranch,
ii. 187) was an action on a policy of insurance, in which there was an exception of
risks of illicit trade with the Portuguese. The voyage was for such an illicit trade,
and the vessel, in pursuance of that purpose, came to anchor within about four
leagues of the Portuguese coast ; and the master went on shore on business, where he
was arrested, and the vessel was afterwards seized at her anchorage and condemned.
The owner sought to recover for the condemnation. The court held, that it was not
necessary for the defendants to prove an illicit trade begun, but only that the risks
excluded were incurred by the prosecution of such a voyage. It is true, that Chief
Justice Marshall admitted the right of a nation to secure itself against intended
violations of its laws, by seizures made within reasonable limits, as to which, he said,
nations must exercise comity and concession, and the exact extent of which, was not
settled ; and, in the case before the court, the four leagues were not treated as rendering
the seizure illegal. This remark must now be treated as an unwarranted admission.
The result of the decision is, that the court did not undertake to pronounce judicially,
in a suit on a private contract, that a seizure of an American vessel, made at four leagues,
by a foreign power, was void and a mere trespass. In the subsequent case of Rose v.
Himely (Cranch, iv. 241), where a vessel was seized ten leagues from the French
coast, and taken to a Spanish port, and condemned in a French tribunal under
municipal and not belligerent law, the court held that any seizures for municipal
purposes beyond the territory of the sovereign are invalid ; assuming, perhaps, that
ten leagues must be beyond the territorial limits, for all purposes. In Hudson v.
Guestier (Cranch, iv. 293), where it was agreed that the seizure was municipal, and was
made within a league of the French coast, the majority of the court held, that the

259

§ 180 RIGHTS OF PROPERTY. [PART II.

of the British Islands, within the same distance ; it being under-
stood, that upon that part of the coasts of France lying between
Cape Carteret and the point of Monga, the exclusive right of
French subjects shall only extend to the fishery within the limits
mentioned in the first article of the Convention ; it being also un-
derstood, that the distance of three miles, limiting the exclusive
right of fishing upon the coasts of the two countries, shall be
measured, in respect to bays of which the opening shall not ex-
jurisdiction to make a decree of forfeiture was not lost by the fact that the vessel was
never taken into a French port, if possession of her was retained, though in a foreign
port. The judgment being set aside and a new trial ordered, the case came up again,
and is reported in Cranch, vi. 281. At the new trial, the place of seizure was dis-
puted; and the judge instructed the jury, that a municipal seizure, made within six
leagues of the French coast, was valid, and gave a good title to the defendant.
The jury found a general verdict for the defendant, and exceptions were taken to
the instructions. The Supreme Court sustained the verdict, — not, however, upon the
ground that a municipal seizure made at six leagues from the coast was valid, hut
on the ground that the French decree of condemnation must be considered as settling
the facts involved : and, if a seizure within a less distance from shore was necessary
to jurisdiction, the decree may have determined the fact accordingly ; and the verdict
in the Circuit Court did not disclose the opinion of the jury on that point. The
judges differed in stating the principle of this case and of Rose v. Himely; and the
report leaves the difference somewhat obscure.

This subject was discussed incidentally in the case of the Cagliari, wThich was a
seizure on the high seas, not for violation of revenue laws, but on a claim somewhat
mixed of piracy and war. In the opinion given by Dr. Twiss to the Sardinian Govern-
ment in that case, the learned writer refers to what has sometimes been treated as an
exceptional right of search and seizure, for revenue purposes, beyond the marine
league; and says that no such exception can be sustained as a right. He adds : "In
ordinary cases, indeed, where a merchant-ship has been seized on -the high seas, the
sovereign whose flag has been violated waives his privilege ; considering the offending
ship to have acted with mala Jides towards the other State with which he is in amity,
and to have consequently forfeited any just claim to his protection." He considers
the revenue regulations of many States, authorizing visit and seizure beyond their
waters, to be enforceable at the peril of such States, and to rest on the express or tacit
permission of the States whose vessels may be seized.

It may be said that the principle is settled, that municipal seizures cannot be made,
for any purpose, beyond territorial waters. It is also settled, that the limit of these
waters is, in the absence of treaty, the marine league or the cannon-shot. It cannot
now be successfully maintained, either that municipal visits and search may be made
beyond the territorial waters for special purposes, or that there are different bounds
of that territory for different objects. But, as the line of territorial waters, if not
fixed, is dependent on the unsettled range of artillery fire, and, if fixed, must be by an
arbitrary measure, the courts, in the earlier cases, were not strict as to standards of
distance, where no foreign powers intervened in the causes. In later times, it is safe
to infer that judicial as well as political tribunals will insist on one line of marine
territorial jurisdiction for the exercise of force on foreign vessels, in time of peace,
for all purposes alike.] — D.
260

PART II.] RIGHTS OF PROPERTY. § 180

ceed ten miles, by a straight line drawn from one cape to the
other, (a)

By the 1st article of the Convention of 1818, between the United
States and Great Britain, reciting, that " whereas differences have
arisen respecting the liberty claimed by the United States, for the
inhabitants thereof to take, dry*, and cure fish, on certain coasts,
bays, harbors, and creeks, of His Britannic Majesty's dominions in
America," it was agreed between the contracting parties, " that the
inhabitants of the said United States shall have, for ever, in com-
mon with the subjects of His Britannic Majesty, the liberty to take
fish of every kind on that part of the southern coast of Newfound-
land, which extends from Cape Ray to the Rameau Islands, on the
western and northern coast of Newfoundland, from the said Cape
Ray to the Quirpon Islands ; on the shores of the Magdalen
Islands ; and also on the coasts, bays, harbors, and creeks, from
Mount Joly, on the southern coast of Labrador, to and through
the Straits of Belleisle, and thence northwardly indefinitely
along the coast ; without prejudice, however, to any of the ex-
clusive rights of the Hudson Bay Company. And that the Ameri-
can fishermen shall also have liberty, for ever, to dry and cure fish
in any of the unsettled bays, harbors, and creeks, of the southern
part of the coast of Newfoundland, here above described, and of
the coast of Labrador ; but so soon as the same, or any portion
thereof, shall be settled, it shall not be lawful for the said fisher-
men to dry or cure fish at such portion so settled, without previ-
ous agreement for such purpose with the inhabitants, proprietors,
or possessors of the ground. And the United States hereby re-
nounce forever any liberty heretofore enjoyed or claimed by the
inhabitants thereof, to take, dry, or cure fish, on or within three
marine miles of any of the coasts, bays, creeks, or harbors, of His
Britannic Majesty's dominions in America, not included within the
above-mentioned limits.109 Provided, however, that the American
fishermen shall be admitted to enter such bays or harbors, for the
purpose of shelter, and of repairing damages therein, of purchasing
wood, and of obtaining water, and for no other purpose whatever.
But they shall be under such restrictions as may be necessary to

(a) Annates Maritimes et Coloniales, 1839, lre Partie* p. 861.

[109 it was decided by the mixed commission between the United States and Great
Britain, under the convention of 1853, that the Bay of Fundy was not a British bay, from
which United States fishermen were excluded by the convention of 1818, but an open
and common sea. See note, infra, on " The North-Eastern Fisheries."] — D.

261

§ 181 RIGHTS OF PROPERTY. [PART II.

prevent their taking, drying, or curing fish therein, or in any
other manner whatever abusing the privileges hereby reserved to
them. (6)110

Claims to § 181. Beside those bays, gulfs, straits, mouths of
thfseaupon rivers, and estuaries which are inclosed by capes and
ofprescri^ headlands belonging to the territory of the State, a juris-
tion- diction and right of property over certain other portions

of the sea have been claimed by different nations, on the ground of
immemorial use. Such, for example, was the sovereignty formerly
claimed by the Republic of Venice over the Adriatic. The mari-
time supremacy claimed by Great Britain over what are called the
Narrow Seas has generally been asserted merely by requiring cer-
tain honors to the British flag in those- seas, which have been
rendered or refused by other nations, according to circumstances ;
but the claim itself has never been sanctioned by general acquies-
cence, (a)

Straits are passages communicating from one sea to another.
If the navigation of the two seas thus connected is free, the navi-
gation of the channel by which they are connected ought also to
be free. Even if such strait be bounded on both sides by the terri-
tory of the same sovereign, and is at the same time so narrow as
to be commanded by cannon shot from both shores, the exclusive
territorial jurisdiction of that sovereign over such strait is con-
trolled by the right of other nations to communicate with the seas
thus connected. Such right may, however, be modified by special
compact, adopting those regulations which are indispensably neces-

(b) Elliot's Diplomatic Code, i. 281.

[m The treaty of June 5, 1854, commonly called the Reciprocity Treaty, adjusted
the open questions as to rights of fishery between British and American subjects. It
gave to citizens of the United States, in addition to their rights under the treaty
of 1818, the right to take fish, except shell-fish, " on the sea coasts and shores, and in
the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, and Prince
Edward's Island, and of the several islands thereunto adjacent, without being. re-
stricted to any distance from the shore," with permission to land for the purpose of
drying nets and curing fish. Corresponding rights were given to British subjects to
take sea-fish and to land and dry nets on the coast of the United States, north of lati-
tude 36° N. The treaty did not embrace the salmon and shad fisheries, or the
fisheries at the mouths of rivers. (U. S. Laws, x. 199.) But this treaty, in accordance
with a provision for the purpose, was terminated, after ten years, by a notice given
by the President, in pursuance of a resolution of Congress of Jan. 18, 1865. U. S.
Laws, xiii. 566.] — D.

(a) Yattel, Droit des Gens, liv. i. ch. 23, § 289. Martens, Pre'cis du Droit des Gens
Moderne de FEurope, liv. ii. ch. 1, § 42. Edinburgh Review, vol. xi. art. 1, pp. 17-19.
Wheaton's Hist. Law of Nations, 154-157. Kliiber, § 132.
262

PART II.] RIGHTS OF PROPERTY. § 182

saiy to the security of the State whose interior waters thus form
the channel of communication between different seas, the naviga-
tion of which is free to other nations. Thus the passage of the
strait may remain free to the private merchant vessels of those
nations having a right to navigate the seas it connects, whilst it is
shut to all foreign armed ships in time of peace.

§ 182. So long as the shores of the Black Sea were

JL 116 -DJclCK.

exclusively possessed by Turkey, that sea might with Sea, the
propriety be considered a mare clausum; and there seems andtheDar-
no reason to question the right of the Ottoman Porte to ane es*
exclude other nations from navigating the passage which connects
it with the Mediterranean, both shores of this passage being at the
same time portions of the Turkish territory ; but since the territo-
rial acquisitions made by Russia, and the commercial establish-
ments formed by her on the shores of the Euxine, both that empire
and the other maritime powers have become entitled to participate
in the commerce of the Black Sea, and consequently to the free
navigation of the Dardanelles and the Bosphorus.> This right was
expressly recognized by the seventh article of the treaty of Adri-
anople, concluded in 1829, between Russia and the Porte, both as
to Russian vessels and those of other European States in amity
with Turkey, (a)

The right of foreign vessels to navigate the interior waters of
Turkey, which connect the Black Sea with the Mediterranean, does
not extend to ships of war. The ancient rule of the Ottoman Em-
pire, established for its own security, by which the entry of foreign
vessels of war into the canal of Constantinople, including the strait
of the Dardanelles and that of the Black Sea, has been at all times
prohibited, was expressly recognized by the treaty concluded at
London the 13th July, 1841, between the five great European
powers and the Ottoman Porte.

By the first article of this treaty, the Sultan declared his firm
resolution to maintain, in future, the principle invariably estab-
lished as the ancient rule of his empire ; and that so long as *the
Porte should be at peace, he would admit no foreign vessel of war
into the said straits. The five powers, on the other hand, engaged
to respect this determination of the Sultan, and to conform to the
above-mentioned principle.

(a) Martens, Nouveau Recueil, torn. viii. p. 143.

263

§ 183 RIGHTS OF PROPERTY. [PART II.

By the second article it was provided, that, in declaring the
inviolability of this ancient rule of the Ottoman Empire, the Sultan
reserved the faculty of granting, as heretofore, firmans allowing
the passage to light armed vessels employed according to usage,
in the service of the diplomatic legations of friendly powers.

By the third article, the Sultan also reserved the faculty of noti-
fying this treaty to all the powers in amity with the Sublime Porte,
and of inviting them to accede to it. (6)111

§ 183. The supremacy asserted by the King of Den-
sovereignty mark over the Sound and the two Belts which form the
Sound and outlet of the Baltic Sea into the ocean, is rested by
tee ts. ^q Danish public jurists upon immemorial prescription,
sanctioned by a long succession of treaties with other powers. Ac-
cording to these writers, the Danish claim of sovereignty has been
exercised from the earliest times beneficially for the protection of
commerce against pirates and other enemies by means of guard-
ships, and against the perils of the sea by the establishment of
lights and land-marks. The Danes continued for several centuries
masters of the coasts on both sides of the Sound, the province of
Scania not having been ceded to Sweden until the treaty of Roes-
kild, in 1658, confirmed by that of 1660, in which it was stipu-
lated that Sweden should never lay claim to the Sound tolls in
consequence of the cession, but should content herself with a com-
pensation for keeping up the light-houses on the coast of Scania.
The exclusive right of Denmark was recognized" as early as 1368,

(b) Wheaton's Hist, Law of Nations, 583-585.

[in The treaty of Paris of 1856, between Great Britain, France, Russia, Prussia,
Austria, Sardinia, and Turkey, re-establishes the principles of the Convention of 1841,
with some changes. It respects the right of Turkey to exclude a.11 vessels of war
from passing the Dardanelles and Bosphorus when she is at peace, and to make an
exception in favor of light armed vessels used in diplomatic service, by special firmans.
It " neutralizes " the Black Sea, by declaring it open to the commerce of all nations,
and by excluding from it vessels of war of all nations, whether possessing territory on
its waters or not, and by prohibiting to Russia and Turkey the maintenance of mili-
tary-maritime arsenals in its ports. It allows the passage of light armed vessels in
diplomatic service, and gives to each of the seven contracting powers the right to
keep two light armed vessels at the mouth of the Danube, to insure the execution
of the regulations made by or under the treaty ; and to Russia and Turkey, the right
to maintain a limited number of small armed steamers for coast-service.

By the treaty of the 25th February, 1862, between the United States and Turkey,
the United States are placed, or rather continued, on the footing of the most favored
nations with regard to passing the Dardanelles and Bosphorus, and to trading in the
Black Sea. U. S. Laws, xii. 271.] — D.
264

PART II.] RIGHTS OF PROPERTY. § 184

by a treaty with the Hanseatic republics, and by that of 1490, with
Henry VII. of England, which forbids English vessels from pass-
ing the Great Belt as well as the Sound, unless in case of unavoid-
able necessity ; in which case they were to pay the same duties at
Wyborg as if they had passed the Sound at Elsinore. The treaty
concluded at Spire, in 1544, with the Emperor Charles V., which
has commonly been referred to as the origin, or at least the first
recognition, of the Danish claim to the Sound tolls, merely stipu-
lates, in general terms, that the merchants of the Low Countries
frequenting the ports of Denmark should pay the same duties as
formerly.

The treaty concluded at Christianople, in 1645, between Den-
mark and the United Provinces of the Netherlands, is the earliest
convention with any foreign power by which the amount of duties
to be levied on the passage of the Sound and Belts was definitely
ascertained. A tariff of specific duties on certain articles therein
enumerated was annexed to this treaty, and it was stipulated that
" goods not mentioned in the list should pay, according to mercan-
tile usage, and what has been practised from ancient times."

A treaty was concluded between the two countries at Copen-
hagen, in 1701, by which the obscurity in that of Christianople as
to the non-specified articles, was meant to be cleared up. By the
third article of the new treaty it was declared that as to the goods
not specified in the former treaty, " the Sound duties are to be paid
according to their value ; " that is, they are to be valued according
to the place from whence they come, and one per centum of their
value to be paid.

These two treaties of 1645 and 1701, are constantly referred to
in all subsequent treaties, as furnishing the standard by which the
rates of these duties are to be measured as to privileged nations.
Those not privileged, pay according to a more ancient tariff for the
specified articles, and one and a quarter per centum on unspecified
articles, (a)

§ 184. By the arrangement concluded at London and conven-
Elsinore, in 1841, between Denmark and Great Britain, tion of 184L
the tariff of duties levied on the passage of the Sound and Belts
was revised, the duties on non-enumerated articles were made
specific, and others reduced in amount, whilst some of the abuses

(a) Schlegel, Staats-Recht des Konigreichs Danemark, 1 Th. Kap. 7, §§ 27-29.
Wheaton, Hist. Law of Nations, 158-161.

23 265

§ 185 RIGHTS OF PROPERTY. [PART II.

which had crept into the manner of levying the duties in general
were corrected. The benefit of this arrangement, which is to sub-
sist for the term of ten years, has been extended to all other
nations privileged by treaty, (a)112

§185. The Baltic Sea is considered by the maritime
ther the powers bordering on its coasts as mare clausum against
iJlnareckm- the exercise of hostilities upon its waters by other States,
sum" whilst the Baltic powers are at peace. This principle was

proclaimed in the treaties of armed neutrality in 1780 and 1800,
and by the treaty of 1794, between Denmark and Sweden, guaranty-
ing the tranquillity of that sea. In the Russian declaration of war
against Great Britain of 1807, the inviolability of that sea and the
reciprocal guaranties of the powers that border upon it (guaran-
ties said to have been contracted with the knowledge of the British
government) were stated «as aggravations of the British proceed-
ings in entering the Sound and attacking the Danish capital in that

(a) Scherer, Der Sundzoll, seine Geschichte, sein jetziger Bestand, uud seine
staats-rechtlich-politische Losung, Beilage Nr. 8-9.

[l12 The Sound Dues. — The subject of the Sound Dues was put at rest by the
treaty of 1857, to which the five powers — the powers on the Baltic and North Sea —
were parties. It avoids a recognition of a right in Denmark to levy duties on passing
vessels. It makes a compensation to Denmark in a capital sum, the payment of which
is put on the ground of indemnity for maintaining lights and buoys, which Denmark
stipulates to maintain, and not for her renunciation of the right to levy duties ; and
Denmark agrees to levy no further duties, Without admitting that the levying of them
theretofore had been objectionable. The United States declined to take part in this
convention, on the ground that it might involve questions of purely European policy,
and because the invitation from Denmark seemed to assume her right to levy the
duties, and to receive compensation for abstaining therefrom ; and made a separate
treaty with Denmark, of the 11th April, 1857, by which Denmark declares the Baltic
open to American vessels, and stipulates to maintain buoys and lights, and to furnish
pilots, if desired, in consideration of which the United States agree to pay $393,011.
(Annual Reg. 1857, p. 12-40; and 1858, p. 830. U. S. Laws, xi. 719. Martens, xvi.
331-345.) For a history of the progress of this subject between 1830 and the adop-
tion of these treaties, see Wheaton's Hist* Law of Nations, 158. Webster's Works,
vi. 406. Ex. Doc. 108 1st Sess. 33d Cong. : Message of President Pierce, Decem-
ber, 1854.