CIHM Microfiche Series (l\Aonographs) ICiyAH Collection de microfiches (monographies) Canadian InatHuta for HIaterieal MIeraraprodiictlana / InatHut Canadian da mleroraproductiona Materiquaa ©1995 TiM ImtituM hM •tumpMd to oiMain th* bm orlfimi com naiMI* for filmlnt. Fwturw of tMt eopy «iMdi of tiM kiHin in Mm fwnduetion. or wfiWi nay •IfnifiMmlv dnnfi tho UMMl noAod of fikiiint, «• □ Colovrad ooMft/ CoMwrturo do c o u ltur D D Cowr i dm i Hid / Conrs i wt oiod and/or laminattd/ Counnura raitauria at/o« p allcii M a □ Conar tMa mMn«/ La iHra tfa oomartiiro aunqua D Canai fioirapltiqaai an aoulaur L'lnnitut a mi ei o f ilm* la maWaor lui a M poaiMa da M proawar. Lai axampMra qui lont paut-Mra iinlqaai i W Mioiiiplil M ua. qui pamant nodifiar rapraduha. ou qui pauMnt axi(K una dam la mithoda normala da f Hmafa aont cMataoui. axaniplaira quit DC Colourad pafat/ □ Paiitdamatad/ I I rattaurtaf at/ou pallkuMaa □ Phh raitorad and/or laminatad/ PagHr ECotowad ink (i.a. othar than Mua or WaakI/ I D I Enera da coulaur (i.a. autra qua Maua ou noiial Colouiad platai ind/or illunratiam/ nanctMf at/ou illunratiam an coulaur n Bound with othar malarial/ RaM amc d'autrat doaucMnti □ Tii^t bindint may aauM ihadowi or diitortion ata La raliura larrta paut cauccr da I'omhra ou da la dbtonion la lonf da la maiti intMawa □ Mank laavct addad durkif racloratioo may appaar wMiki tha tan. Whcnaw poMiMa, Ihaw haaa haan omittad from filming/ II M paat qua aartainai pafH Manchac ajoutiat km d'um ractauration tp par c i w c n t dam la tame, mah. lonqua eala Mait pociiMa. eat patM n'oni n Additional eommantt:/ Conrniantairac wppliniantairat: I Oualiti in*(ala da I'imprauion Continuous paginatian/ ition continua r~n Showthroufh/ L^U Tramparanea □ Ouality of print vartai/ ( n □ Indudat indax(ai)/ Comprand un (dac) indax Titia on haadar takan f rom: / La titra da I'an-lMa proniant: □ Tittapaiaafisraa, Paia da titra da la □ Caption of inua/ rina da d«part da la limaiion □ Maithaad/ (Mniriqua (piriodiqii jt) da la li>raicon Thit Itam it fihnad at tha raduction ratio chackad balow/ Cc doeumant art film< au taui dc rWuetion liMI<iu< «i-danoui. ""» MX Itx 22X ax 12X 1(X aox 24X Tlw eepy fllmad h«ra to th* gmarailtv of: noo boon fopfootiooo ttMiMO LRMwy I fWit UiNvmlly, Tho 'mogoo oppooring horo oro tiio boot qtioUty potwblo eonoMoftng tho oondltlon m of tho eriglnol copy ond In kooptaig w Originol coploo in printod popor oovoro oro Mmod boginning with tho front covof ond onding on tho loot pogo wHh o printod or HhMirotod i m pro o •Ion, or tlM booli covor whon opproprfoto. All fbot pogo with o printod or iHuotrotod improo- •ion, ond onding on tho loot pogo wMh o printod or iW uit r o tod improooion. L'oxomptaira film4 fut roproduit grteo * lo gdndrooit* do: Ubrwy „._^__ Trant UnlMiMly, PMMnofouyi loo Imogos tuivontoo ont M roprodultoo woe l« phn grond loin, eompto tomi do lo condition M do lo nottot* do i'oxamplolro flim4, ot on oonformitd ovoo loo oondltiona du controt da fUmogo. Loo oxoniplolroo orlglnoux dont lo couvorturo on popior oot imprhndo torn flimdo on commonfont por lo promior plot ot on torminont tolt por la dorn tt ro pogo qui eompona uno ompralnta dlmproaaton ou dlHuotrotion. aoit por lo wcond plot, aolon lo eoo. Touo ioa outroa oxomplalraa orlglnoux aont fHmdo on eomnionfont par la promMra pogo qui comporto uno omprolnto di m proaalon ou dlNuotrotlan ot on torminant par lo domMro pogo qui comporto uno toilo Tho loot locordod fromo on oooh •hoN eontoin tho oymbol — « TINUED"). or tho aymbol ▼ "CON- ENO"). Mopo, piotoa. eharta. ate., may bo fMmod ot difforont reduction rotioo. Thoao too lorgo to bo ontlroly ineludod In ono ospoouro ara fHmod bogirming in tho uppor loft bond oomor, loft to right and top to bottom, oo mony fromoa aa raquirod. Tho foHowring diogroma Nhntrata tho Un doo aymboloo auivonta opporaltra iur la damlAra Imago do ehoquo microfieho. aolon lo eoa: lo aymbolo -^ aigniflo "A SUIVRE". lo aymbolo ▼ aigniflo "FIN". Laa cartaa, planehoa, ubiooux, ote., pouvont ttra fHmda * daa taux do rMuctlon dHfOronta. Loraquo lo doeumont oat trop grand pour ttra loproduit on un aoul elichd. II oat fllmd t partir do I'onglo aupOrlour goucho, do goucho t drolta. ot do bout on boo. on pronant la nombra dlmagoa ndcoaaairo. Laa diagrammaa auivamt Nhialrontio mdthodo. 1 2 3 1 2 3 4 5 6 I MOOCOPV RBOtUTION TBT CHAIT (Ar4SI ond ISO TEST CHART No. 2) 2S |Z5 ^ ■ 2.2 ^ ■■B i£ ■ 2.0 I ■Hi I 1.8 1.6 /APPLIED IMHGE Inc 1653 East Main SfrMt Rochmter. New York 14600 USA {716) 482 - 0300 - Phofw (716) 288-5989 -Fox THE TEMPLE PRIMERS INTERNATIONAL LAW By F. E. SMITH, M.A., RCL. J L^mt- amfarC 1901 ft' 9O'WieiiI,rNGT0N' 3TR€eT« WfiST 'S)C i^ao. X^ \Wv JU rifklt rmmi 'V TO THS HON. GEORGE BRODRTCK WARMN or MUTON COLLIOI, OXIOno IN RtcoiucnoN or many ouat unonmsm THIS LITTtS BOOK It OKATlrVLLY duncatid 13222 I PREFACE Im writing thii little book, I have continually referred to th^ work, of FhUlimore, Wheaton, Kenr, Manning, Lorime/, f** w*'!!^''' ''"' "y obligation, have been greate.t to the Ute Mr. W. E. Hall, and the late Mr. Dana, both of whom brought to the Mudy of International Law exteauve learn- ing and remarkable common senie. Among living writer. I murt mention with grateful appreciation Profeswr Weitlake of Cambridge, and Profe.«r Holland hose lecture. I had the opportunity of attending at C jrd. Both theM gentlemen have done much by their aniduou. attention to the great que.tion. of the day to keep alive the tradition that Profewor. of International Law .hall alw be men of affairt. I have read ^-ith profit the brightly written book of Mr. T. G. Lawrence, the very learned re.earche. of Mr. T. A. Walker, and the judiciou. article, by Mr Barclay in the En<,clope£a of EngR^h La-a,. My thank. «re particularly due to my fnend., Mr. E. G. Hemmerde •nd Mr. Ledie Scott, both of the Inner Temple, for read- ing through the proof-sheett, and for wme uwfUl .ugge.tion. It will be noticed that I have given ncmerou. extract, from the judgment, of Lord Stowell in that portion of the work which deal, with neutrality. It aid not appear to me that the attMnpt to paraphraK them would add either to the authority or attractiveneM of my book. ^ WTBRNATIONAL IJIW V ^ I c«not hope to have ..SL^° '^" '!'^'«* Page.. •wJ. above all. , doomatL T ,""""««». oirnW attempt to see and .ute Ae P„ i' r\? ""^' « h"""* I am not altogether Jthout ho^;:^ ^"^^ " « i". and of •«* to .tudent,. politicianrfnH ""\°«°"al may be cannot .pare timeToJLSTnfi^,,'"''' °^ '^"^ '^ho »o which I ^ .„ muchlndeb^^l "'''^ "°" "^^ '^"'•- •o Cocw Stmxt, F. E. SMITH. LIST OF CASES Alahma, the Akumnlka, the . Anm, the jbkL, the Arthir, the Jtilmla, the Bultica, the IteUeitle, can of BtrmaJa, the &«fli, the . Bnin(wiclc,Dukeof, ofHanoTer . Jn^inui^ the . Cmffa*^ the Cattioni, in rt , Ctj/bn, the OarUttt, the ChiTCaae,M^rn Cherokee Nation 17. ; Georgia Circamait, the , Clarke v. Crctico Co/imiiaf the . CMn<rai.,the . CRoleeue '»3 King PAOI . 136 . 136 140 note ' , i6z 171 96 41 •57 161 77 158 . .65 . 80 116, note 1 • ^SS 146 State of 60, D« WSti V. Hcodrieka • 3> 160 • 4» 161, i6z . Ij6 • 79 • '33 • 9i Don Pacifio, case of , Dupont V. Pichon . Emmena v. Pottle . Emma, the Eriut Merck, the £>po«ito V. Bowden . Exchange v. M'Fadden Fans/, the Fiaher v. Begvei Flad Ojtn, the . FrtJtriek Mtlie, the . Gon V. Withera GyUenbourg^ caie of , Btnuiy, the Hart, the . Haver v. Yaker Hermanoi, Dot Hcffmitg, the . My«, the . Hmausr, cate of burnt, the , Immmtm/, the lM»caoo V. Durant rAoi 164 94 9< 93 7» • '71 ■ 40 . 126 162, 163 . 126 • 39 95 '57 «7 103 i6a 94 •57 "49 73 7—, the. ^*°tf'*- Chamber. '^•yn, R. ». Klingender », Bond . Lord V. Colvin . WTERNATrONAL LAW • '55 • 111 . 163 • '33 '4,65 • 94 "X- Parhmem Bdg,, P«-e.fc„„s.,ca.eof' ^TkuiMo „. Potter '"'"»!^, the . ^•'^■.the. 40 M»«d»lc« Co. «. Martin «'^», the . jt ,„ *^"-««,th; /^' '"• '73. '74 ^'"■ia,KaF/,ir4,tiK ' ' '" Manyat «. Wibon .' Mendoa, caie of Mtiaa; the ''*"!0, the MontaU,no^.Chri..iaa ^"•gc, the 95 I R'Pperda, caae of *• "• Keyn '75 »7 3« izS 118 40 ^''/-Jma Trinidad, ,h. •>«■■»* GacMttiutin ^"if, the Springer, caie of Sutton „. Sntton ^'ftrantit, the . Nertid,, the ' N« XT. DawMn Or«fl»fo,the . P'cket di Bittoa P'-lnteHMiaw. Ttiage, the Trent, the • 70 • 39 • J9 ■ 'S4 • 151 *i • is« ■ 39 '4.«5 . 136 ■ '»3 i6s 39 89 laa »S8 ,7j United Sute.^. Re ntiga, ,„ 8, lUaparicha^.Noble ^ I ■ • 9* • '*5ViVaihT,. Becker I '''■-^ ?»diti, the • •« I '5.note«|»w;^j^^ • 4» • 161 '5« Si 39 '♦.«5 SHORT LIST OF AUTHORITIES 1582. merdum com- Ayala, Dejw, .t ^iU heUUU a Jhciflin, mUitari. Gentili,, Dtjur, Mti amm,uti«u,. 1583 Gmnxt, Dejw. Mli ac fact,. 1625. Selden, Dejurt miurati et geniium. 1638 f Poffendorf, Dejwe naturae tt gcntiim. 1672. Leibnitr, C«Ux juri, gmium diflcmaticn.. ,693. Hemecdu., D, na^ih., ^ „„^„ witarum mlittt. 1721. Bynkenhoefc, Siuaeiiima jwii fyhlki. 1737. yfolSfJu, gentium. 1749. "VttXxl, Droit del gent. 1758. Chitty, rrw/iK m ri, iaro j^ JVa,;^,. ,g, j, Kluber, Le dr,i, rf„ ^«„ „^^„ j^ ^^ ' MutM., C««„ c/reire, d, droit de. gent. , 827, Wheaton, Elemm of International Lam. 1836. 1^«>S,Cmmentariet on tie La^ of Nation,. "iS„ Hemer, Da, Eurofa-Khe yHhrreckt der g,,enwar, lUi H.«t.f™m.. Droit ntaritinte international ^^f "" TwiM, L^ .f Nation, eonudered a. Indifatden, PMica Com- mnniiie,. 1861. Kent, Commentary on International Law. Hiworia,., I^„^, „ ,^, ^„„,i,„ of International Lav,. ,863. Philhrnore, OwMM/arj, ,;», International Lm Fiore, rr««*/, * rf^m intern4««onaU fMico. i86t. StdadnKh dargenttcltt. ig68. Criw, i. *„, i«^„ri,„/ ,^^^„ etfratian,. ,868. ^»)iiK]^ Ekmtm, of International Lm. 1874. xi xfl INTERNATIONAL LAW i«79- 1884. 1886. Wool«j,, AtrcJ^iUn „ ,i, S,m/j c/ Imtrnati^nal £«,. HoUiQd^ jHrhfrnkiue. i88o. Lorimer, /,«>„„ ./■ ,^ i^ .fNatk,,. ,ggj. Wharton, D,p„ ,f In,r-natu,H.I Lan ,f Vni,.d Sut». Maine, Internationa/ Law, 1888, K« Cobbctt. leading Ca.,. « ln,'n„,i^ £„. „ Walker. T. A, &„,„.//„^,„„/^^ ^ W«tl.ke, iV«„;,/„ .//»r«r«,;.«/ i^. ,g "^^ I..*rcncc T. G., Pr.ncifU. ./ W„,/„,/ i^." ,g Walker T. A.. Hi...y ,f ,^ i^ „^ ^ "*«• «rhe.t tune, to the Peace of Weatphalia, ,648 .8o„ ""'Lr'..^;f ^^' ^ ^' '^ ^"^'"'^ :.t! Int^L'^'-ona. Wilheto Ka^jnann I)i ;j„,.,,,y5 ^, W„,i^ j,„^„ ^ LapradeUe, O. de, U cinf(r.„» d, U f.U. ,900. CONTENTS Introductory Chapter — Definition of International Law , Inter-state Customs in Greece The jut fitiale .... Ayala, O-ntilis, and Grotius Law of Nature .... The Analysts and International Law The Hague Peace Conference International Law and Municipal Law Summary of Conclusions , . Arrangement of Subject s 3 J-7 8-ia SI t« »7 I PART I ChaFTER I. — Nomenclature and Sources. The Name International Law .... 19 Sources of International Law .... 19-17 Chapter II — International Persons and their Representatives. I. International Persons jg Elements of Personality examined . . 19 Protectorates .0 States under Suzerainty , . . . ji Confederations .-,,.. jj Theory of Equality ja Neutralised Sutes . , , •• . Chartered Companies .... )6 dv INTBRMATIONAL LAW R^^atmu rf States in Foreign Camtrite "ectdence of Diplomatic Agenti Privilege* of Ambassadors Exteiiitoriality . . _' Immunity from Criminal Jurisdiction Immunity from Civil Jurisdiction Duties of Diplomatic Agentt Consul Consular Privileges . Consular Duties . ' Consular Courts Foreign Jurisdiction Act, 1890 Moa J7-4S J7 3« S* '-J9 39-40 4« 4«-+S 4a-4J 43 44 44M^5 PART 11 WOHTS AMD OBLIGATIONS OF STATES IN TIME. OK PEACE Chapter l.~IaJepenJence. Definitions of Hall, Lawrence, Phillimore Intervention Grounds of Self-Preservation . Holy Alliance . Monroe Doctrine Venezuela . Concert of Powers Chapter II -Pr^^^^ w ^gasi Proprietofy Right, and Duttet, Rights over Land Occupation Cession Conquest , , Prescription Spheres of Influence Leasehold Territory 4«-4« 49 50 SO 51 5» 54 55 59-«4 59 59 59 6% «4 «4 CON ; '.NTS Right! over Water The Ocean .... The King*! Chambers Riven .... Rights over Miscellaneous Objects Chapter lU.—JurisMcHon. Natural-Bom Subjects .... Inalienable Allegiance ..." Naturalised Subjects . Aliens Exemptions from Jurisdiction Foreign Sovereigns Diplomatic RepresenAtives . Foreign Armed Forces Foreign Public Vessels . '. Jurisdiction over Subjects in Foreign Countries Over Public Ships Over Merchant Ships . Over Pirates • . . Chapter Vf.— Treaty Law. Transitory Conventions Treaties of Guarantee . . . .' ' Forms and Ratification Interpretation .... Commencement and Termination of Obligations Effect of War , rAcs 6$ 65-66 «7 6t 70-71 7« 75 75-7S 76-77 77 7« 7« 7« 7» 79 Si 81 la «4 85 86 »7 «7 *9 PART III BELLIOERENCr Chah-er l—PrebeUiga-ent Acts, Qmmencment of War. Retorsions and Reprisals P»cific Blockades . . ' ' ' 90 9« s*l INTBRNATIOMAL LAW Commencement of War Person* aifected by W«r Panporti and Licencea to Trade DomidI , Enemy Penoni in a Sute , Keroludonary Hostilitiea Chafter U.-Cm,iata«t Per,c,»j wU PtrmbsOU Limit Connbatants and Non-Coinbatonts I^ea en masae , Privateen .... Permissible Limits of Violence Bombaidment of Coast Tonns Dum-Dum Bullets PiisonenofWar Spies . . Treatment of Wounded Chaptsr hi.— £«w, Pnpertf. Appropriable Property. Occupation of Enemy Property Law and Policy . Devastation Contributions and Requisitions Capture of Merchant Vessels Changes of Nationality Chapter N.—PortBrnnium and OmcUslon rflTa rPostliminium, Meaning of . , , Salvage ... Conclusion of War ... Conquest ... Other Effects of Conquest . '. \ ' 9» 9» 9* 94 9« 97 too loi «»» 104. los lot loS no III "J 116 lit lit 119 119 lai 134 »5 »»7 i»9 ijo C0NTSNT8 :art IV NBUTRALITY CHAm* L-Gtmrtd PrhuipU, i^ NtutraUlj brt^„ Statt ami Statt. Supply of Troops Neutnd Money Loans Foreign Enliitment JUabama Ciue The Awairf Tereeita Incident Neuttal Righti . Right of Asylum Passage through Neutral Territory Chaptbk VL—Brmgtrtnt hStnduaU. General Principles Commercial lilockade Kuleof Warof 1756 Continuo>2s Voyage Cvutriunents a.id Neutral Chaptbr Wl—rht Lami of Contraband. Classification of . Arms . Naval Stores Provisions . Destination . . . _ Contraband in the Boer War Penalty .... Chapter W.—The Lmu ofBhckaJe. Different Views . . , , Paper Blockade Effectiveness, meaning of , »3« »33 «3J •3S "3« IJ9 140 >4> '43 »4S '47 •4« »5« 153 '54 'SS 158 'S« •59 161 "« INTERNATIONAL LAW CeotiiMiita] Pnedce . ^ mm Epcu '*» Pnwltjr ...'**■•• '*! Ime-vu/iult in PtnaUiti. Onpatchn ... Enemy Pawengen **♦ Incident of the rrrat ''j Penalty ...'**••'** Free Ships, Free Goodi Enemy ShijM, Enemy Goods ' * * " '** American View . . ' • • • 170 Declaration of Pari* ''' 17a Cha pti» VII.-JW/ and Starch. Convoyed Veueli English and American View ' ' " * '7J Fonnalitie* of Search " * " " »74 • • • . 175 ArPJHD.xA.-T'Ara^p^C^if^*,, • '77 ^^^^^^^-S^^ueriUaWa^are and Combatant Character .8, INTERNATIONAL LAW INTRODUCTORY CHAPTER I. By International Law ii meant the rulei acknowledged by the general body of ciyilised independent tutei to be binding upon -them m their mutual relation*. In a form more or leM rudimentary we may tuppoxe such rules to hare existed almoit from the infancy of society, for national isoJation or recognition of intemacional righu and duties must always hare been necessa.y alternatiyes. SmaU mdeed was the area covered by t' .jse rough and ready conventions, and when a new rule *^ added to the code, It sprang from the impei ions promptings of mutual con- venience or mutual safety. The sanctity conceded by ancient sentiment to the office of herald supplies a well- known instance of this class of rules. The duty of respect to this office u insisted on in the Homeric poems, and when the people ot Ammon sent back David's ambassadors! vathout one side of their beards, it was felt that the Umits of international outrage had been reached. We must not trace in the immunity of envoys the germs of a nascent humanity; it was an immunity involved in the necessity of international intercourse. Outrages would naturally have been followed by reprisals, until the calling of a herald gradually ceased to attract. The constitution of ancient societies was little favourable to the development of a •ystemauc body of rules. Since states are iu units, inter- ' 2 Samuel i ^ * INTERNATIONAL LAW No doubt these v(5/t.^ were consolidated by pride in Helenic nationaitv and the abhorrence of 8aya«e%?actfce . i^s ne2;f Cj !*/' i" '"""^°^^ intelle^^afsSV 5P™. X- ^Jt -VprtiJi^^ frbiti^ ^.^iSnror^tf^^r-^^^^^ ,:J1: '**Jy--7'r"°''>g to the early history of the Italian .ooth^f ''"• "' "'"'■ = ">' "«ht. which Hell«„ m,y e«ct fro» one INTRODUCTORY in EaMern and Western Europe men were warin» rf^ tpem^ war,, the bloody record, of which were t^l! 1 authorities of Ayala id Gentili. TK .'•" appeared almost tJgetheTfowS t cIol'^f'thT^ixTrh ard^/^L^Xe^ahtS, T'''' ^f^^^^^" ;.d the facjty of dts^iisciherpu^Lsr' Now forX /^ '?""'?''' ^'^^'"^'^ '" international morality Wow for the first time it was boldly affirmed that the Zl duct of states should be controlled bV Wal rdes rt," lawLr: "'£m'"\'j" '^'^ ''^'-ativfJatcomS lawlessneas. Immeasurably greater than tljese two write™ Hugo Grotius, who was born in 1583, the year after A«U'' work was published. It would Vi,,r/!-y"'" writer in »L fi«l/ r i- "*'^'' '° mention any wnicn tfleir science was to rest Wn ^n„uf »i. precedents, but they were mol^^'of ^,iSt ^TvadeT of ^arfrom'thrb^f-"''''' ''^' ^^'^^ ''-veJirS; wi war trom the belligerent recordii nf fK« _ j- Ttroft 'r '^'^=' i-"fi^tslgt h^aS^ and^f r? P'^**"*— The labours of Ayala. of Gent£ thev nn?i^ """^^ V" ^''' P^<^""d ^'uJt so gTea° fi Jonc«//, vol. i. p. ,7',. '"'"^ "'• John'on. See Croker'. WTERNATIONAL LAW Srjy- "S-^Jy received .„ie. of „k.„„^ •?«« the oc««ona cont«X:!"r„ f ??•' ^^ '^^ pve law i. familiar enough n Greek ,r, IT' ^^""r^ P"^" Many things are shockina Z i- "^^^^ *°<1 elsewhVre. venient to Jronou^« 5 L'^ "" T^''^ «'h'<=i' « is not con- be broken/ for insunc" ch S H™!"*^^.'"'"'^ '»*« '^Y rather than ;*«'^J„°^-^-r"f,'" '^^ w'th W^ ;>«^i/,i None but a -native ^iSn^ 3^ f^^J?^'^ '='- afnend rides his bicycle on 7h» ^e shocked because where the ro.' i is M?The ^L^"'"^' '°. * ^°"'y P'^'ce ;law of nature' does not d1(ftr/"rr°'^ ""^ "p'""'"" Thus Sir Frederick Po ff X« / ^^ "l' -hest. school I mean .i. ■ ""tes — «ijy ti,j 5.1,:-. i J-ngAlnTnTes-dgltW tl S^^Lr'" 'K^ "•- -^° duion. of governLnt^nd Ws "S T*' ""'^ '^^^''^^ ^n* government and laws, and ex^L/- ."^ '^^ ""«»«! ment and laws are. or^oul ^^t^f *''" ""='' g°«™- conformity to the,; condiffons Th^ jf^ ''''"'"''«'* ^-y I can g,ve in ky, words of what is im^Ni?" "T """""^ by the terms law of nature Jl! ^, '° ""^'"i "^ge To this account it mTSrhl TZ^,^ ^'^"rr.iJ^ nature' in modern usage e^Jrer. ^ "^^ '■"" ''"«' »f By Which the outward fctsTr aSrstet^hl^S ^-fTh^Si^'*^-^-'. '"• 3. pp. .8.35 , and Maine. ^^, pa«ag.fonowmgitf^n, A°i.toae !i *'"" ''>' C'""- with the convJni^l; iirS^i^tS^ r t "^r* '«"' "-■ « «J-. inewe moralcm turpitudinem anfn! •?" °'*''" "'■'"'"li ac lociaH INTRODUCTORY that the W o7L „ f LTcii:, trr "' ""^^^ "- OTer international Jaw Tn ,!:/ '"5"''?" '^ P'°''°>'''d brief reference mu t be I^^.fT"^ '''" '''''"«=»<=<^. « figured in the sTo" phiKp^:? ^\'^,j;°J "«- « it Zeno the law of nature indicated thtr^l ■ S°"",°8°"y "^ determined the dependence S.,- ^^"^'^ rules which of W^a or prin^rivrsubstanct . W^^^^^^^^ T'"''"" a fashionable creed in Rome fL . ^'°"'.'™ '*"^}«^ vividly impressed bv thT' "".f .W'^r m-nd was most its voiariesTn an aje of a™? '"7 *'''"='' distinguished picture, ideally attAaive TTH "T"^' ^T '^'"« « which the artificialhv of a 1 "■' """^ of »ociety to acteristic of ancient Z.°V «'^«''«"". which is so char- /"^ «W,. or na^fve RomT'. ^"^ ''°f* ''''^ ''""^ of the adjun di;putes Xn onfof 7' '° •"''"" ''^"'^'^'«'- To Piitor had pieced tLtherfhnH ^r"'? ^''^ =«" '«''•«. the from the co^mmuJlKheh lineVthe M .""" "^"""'^^'y hoard. To these ml.. " . Mediterranean sea- «o»rce, the nfme > "r: Til ''^"'"^"" '° "^-^ origin it was despised 1 InTnfi. • "'^ '"""'"''• ^° it* in the ceremonTourorse va tsTwr!:?-^'"^^^^^ I-« ■ndigenous code. In facTit «L k1 '''fngu^hed the ' V- Verg. .«,. vi. 7^4 ,_ INTERNATIONAL LAW Roman "n, J„ t J\Gdrn^^^^^^^^ " '«'«^ vemence to the two dixtmrt . standard ot con- proce., was no doubt hastened ht.K-'°'*.' """ '^' of Stoic simplicity It wouU be tL^' '""'"■'"« "°«"« the various steps which preceded th ''^- ■" '"°'"" ^"' chile fell far shorTof th/. ! , . r^ognition that the > w o/2Lr:e^^irn?/?^ir -r -^^ '^' which demanded no*Sing mr^hrn a fl^^ '■'' ''•''f ^"^^ Grotius woulThave b^:^/:^''«'^°"'y. *' -<>'=« of wilderness, if he h!d nrescrih H r^^u-Tf "^"« " ^^e outspoken reference lo"^ the .t.°'/°'r''^''"° ""''»« by moraT wrong. B". the tltT"^ ?^ '"°"' "S^t and When rules\hfch tlo^^^T^l^.t^ri ''^1 Sa^'sC 't;[,^?;rs; -. 'i-t-i^^tho^i;;' tion of the law of natuJ^a'd k'''^ '"".J^"™" identified contributed. The sub ect of r'Jr°^ "''"?"' ""''^"""y monly.ndconvenientlXcribe?Ts theT'"; ^=' =°'"- s:a^^htrJ^o„1:;£™i^ morJity. I„ I^oX, waTThe^.' f""" °^ '•"™'"'" ^«,rf«m and the dawnL ^- "^onf^^'on between >, reaching in>portant"7t^e' To'.i' w^^^^^^ ^- ■nto international iaw of tJ^hK^Stnc:;^^^^^^^^^ 3, Introduction, p. 36. "^ ' ' * '♦■ See also Moyle Juttinian, ed. INTRODUCTORY of nature. Be^wew the mnr f "T'u"'' ' "' '^"^ P'^^P" . shadowy W JintirnlCl/'V'"?"^''' ''''^^''' long been (he battlefiSof etWcK 1" 'Ir*''"'' •"" commentators Thfs confi,." ^ T'^l"^' °- '"^ *' ""ere are discredit uAZtZf^Z'^^'^r^^Ss ""^'TT' with concrete matn.™ „f „ ^ writers in dea ing law of n ure Tnthe te ms T"^ •"' "PP^'^'^ '° 'hf barrister who hands ud tn?h "--?""'<= '» an English the House of Lords An . I '"."I" '"""' '^'^^'^O" « the « natural ' standard ^n T ""-"^ r "'"'}' ^^ter ^ applies complacent ewaritv and th '"T'"y/^'" ''°°'her with of tLestri^'^^a t't 'l£:^''ZT 'Y"""^ becomes a BuhHo ,„^ j- • aoused, the law of nature international law exactlv^,! v • ?^ ""'"''« " 'o cannot be cited to omLlf the n„"v'° ^""'"^ ^^^- I' but these precepts wUMfnlfhl ^kI '^' P'""?" "^ ""'«^. With the Lr^^r'^nitrrjrs INTERNATIONAL LAW .3!' What then C tl. ■' R"'""^'- 1° be cited in it* teeth national t rc:j:esnhT;tVi%*''?> jMom precedent, from which thlL„ ? ^?"°'* '" ">« in their mutual dealbgst dXi^le tT'.'" "fu""'" practice as it is, and not. at W nif -i '^f*'' *"'' "'a* BJackstone's Camm^t^l pnmanly, as it ought to be. TJ^ory »/Z,^SrSer'"TheTe '"■"«' »"'^»"''» Benthams in the history of .W™;.-. r*^ '^° '«> "«»ny failure to distinguKween IT. ' •"'' ^"'T >*' '"'^ "-"^ has te^ed to f rediTerredt^eS '"'" °"«''' *° ^^ -n?-ci?;tet^rth?mo^.*''™«?"*» W-The pre- howfartLpraS?f„arn?fr'°'''l' S''*" '° '=°'''^" I. internattrnaMaw ," r'"fer1f%"';ft- 'T'" observed, « It can Iv. «„f j ■! ' °™ Salisbury has fore to a'ppf; Tit'^he'S "C'tr'' ''" ''''- misleading.'* The late Mr a ■ ." *° »ome extent law rests merely on the sun J,, f l :*' 'nternational cannot therefore'^be prowrl?«lL .P""''.^?''"'""' ""«* Analytical SchoorofS Austin ''• ['"^/"S'"'' the greatest, is irretrierrwl , • .'''' ">* ^"t and Putti'ng on one s ide Au' £ ouer^"f , '? "^^ '^'^^""^ .chemeof the W of G^ w^ fiXtl '"-^'--o".- hi. positive aw as a commanH^I^T j *' ''^ conceives of by a political soSnl'lr:!-'" ' P°«tical inferior lowed by a sanction in thTevent rf"^^- 'LT^' =""* f"'" conception clearly excludes iwLf '^r,'*'*'"'^'^- ^h" posed to consider how far thf 1 •"'' "''• ^' " P'-^ how far it is .upXd by/s^turdir"'^'"'^'* answer to these .ueJSons dejenmh/fe- Z^ writer, of t„t-book..' '^'"" «"•"'"'' o" "»« P«j»di«. oV ihc ' Ix, cit. II INTRODUCTORY do gravitate. Thene Unll '""cted and object. characteristl™ w!?t doefn'ot^Tt t ^"""jf' very closene.. of it. resem^e theWfo the ' vV^ .ociety involve, le lawbreaker anTf '^■' '»^hich is characteristic of tSr word ~Wh Ji" th^ '"" ' "^'l international law' It U ..If i. T • ^' sanction of form: for in"r;atiolV^ f t^^^^^^^ regulate the occasions on which resort ^!ftJ"''^\' '° war, the litigation of states Th 7 ^ """^'^ '° paradoxical. As b^ we'n M r /""'V """S'^'y international law deSres A ^°^ ^ .""^ N«'°" » A refuse,: it h!, £1^ tht W^'wart,,! ^^^'^ .n A 8 victorious <?« f-"^'^*- War follow, in which cerned tS, i'L^^^^T^^T;^ Ijr practice is almost anarchical anH L i ■ . '"^'' * strJUnrr o, ""••ri.nicai, and no analogies, however 10 mXERNATIONAL LAW on the .ubjlity of international rule.. An attentl^ « a of European hi.tory iueee.!. thr^r„n-.i • '"*™*« "«<Jy for irlcome internaLnToLa^n. tr^" ""' "'J*." comcidentwiththelackofn,.!-? '"\'*«> commonly The Ru.,ian dltl'liol Tthe' S:^V° P^-' '•''"' instance n point. In iScfi n! ^/e«y of Parn ig an treaty not to 'l^aintain a fl'e tin fh'^acklr S ''^'''" of treaties. ^^^.-Hn' tt:Sfo™MV''w't'Sr tion i. .ometTme, cited a ?'»'""*<='"« *" '^e Declara- of intern«ionaT wf i' i TZ '°L^! ^'^^'^ pnnciplea will not be expo ed to m.„ ^''u "S" '" victorfes. It wa. reservX however/or 'the ^^"'" European jtateaman cf .K- .""wever, tor the greatest will not soon Fecover Lm ,h. ^ ""ernational law which Prince Bismarck-rraself T """'"JP' ^'''^ people adrairablv moral .nH 7 • 5? ^epresentatiTe of a of bespattSi^ """r. '"^^ ^''"-''O'd'ng-was never tired which have been cit,i LT "'^ '° '■'' *" '''^ '""'Jogie, have been dtcus'sedbvt^'"" T. """' international rule, dence. and „ot bv thoJof '""'''J'^'u^?P'°P"^'^ to jurispru- doubt true, bu a nrlct^.! "^T"^ Phi'o'ophy. Thi, i.^o • 1 . ' °"' a practical explanation sueeests itself Tt,. ■ncojjvenience of submitting every interS,! !?• . * a .upposed absolute standard oFri'^ht anT '^ " I? be intolerable. Diplomat!^ L^ f ^^°''^ ^°"''' INTRODUCTORY iSt:£i^Xt'v.t: "'" ''^' •^- ^'^^^^ The method' of ?n"^rf":e^''7'"« ^""'-"f't'te.! ptient examination of /recS. .7 •^'•''^ " ">* inevitably assume, a ^.^170™ T! "k"''"'"''''"" ^^ich F. PoJlock points out tf,f X ■ ^^' ""^ parage Sir di.tinct from^° „d compa b e with 'V"'"?'"?*! n,lrality usual sense. I am notCre th! ^' "'''''■°''''' '"* '" '^^ than that those w™o first sou^It V ■" "«■"""' '""°» •»«>'« upon states saw that Verfwer^ Td'e"! T^ °^''^='''''''' exalted for international accewance Lit" ""•"? ''^*' they exacted the hiehest .f^nX,,? r ... P"«ical men to be hoped, and dS^isl^H "u .^ u'""'' °'*'''«"« ^a, but not obl^^atory Kh^^^^^^^ international\w^;„dttYtir^^^^^^^^^^^ of degree and not of lrm,< - j • """"ty " a difFerence the judgment of pubSawould'"'!^ '^ ''''''''«' *''"''" adverse upon a nation Ik ••.. "^ '""« <"■ «ronBly ad.it.doVra e^n'TnU'ltlrtltr' "^ -"^"^ '" -op;of ^h:^erVStan° "!;• ^''V''" '"« P-P^r perfect examples of Maw 'Tlv' '''""fof 'he^mS^e admitted that the word atiJj'-^^ 'T" ^ doubtfully de«:ribe the usagw of a 2Z ■l''^ ^''"' '"='>' ^ ^^<^ ^ help is the only^red°e,. forT ^^^ u^"" '^ '"S"'""* «If- become clearly LnSa if theT^^ '"i' '"='' observances party are equally eSde,^ to n^ •'?''" "^"^ '^^ '"j"^«d .uccess is retrospective^ allowed t^:;'f'°'!^ '" ^'^' ^^'^ '^ their original qua-reL^ determine the justice of herl^etVorthTaTcelin°h^^'""ri^''="' *■"• 'he view. the laws of co'nSb'nt .e^e^S f binr'""' '^"' '-?• tribunals. The reason is tW?^ i. ."^ '° municipal the ranicipal law oTth Va "wfeh''T •'^"' '''°P'^'* '''» England this adoption mav t Hn li- "'',""""'"'' them. In ' 7 Anne, c. iz. tj INTERNATIONAL LAW to purely moral rule. 2 f«!l "' m^ce within a ittte, or in an imperfectly oraam.^- ""r* "^ ^^'r^^ncj, exact one. but it S aLyX^eJeVh! ^"t ' ^"^''7 appearance., international a^t ha. Ttui^e^ J*""' %'" deyelopmentoftype- it i. ft,.;.f„ '"?"'~ to a perfect de.tin^ to reach'^aiull," "''^"'' " ""=•"""' ''>«' "'^r trfbunaf .ittin'e'to d/dSrl .^ u*^ '*?" "'"pri'edl li.hed princiffe^ and able rtf'''^ '''t'^''" '» «'»'^ recalcitrant member, of i* n=.r Tr "?,"' »"'"''• «« then become W withom c« •°'''' ^'T^^' ^' ''""W The recent proZa^ of th^r * '°r ^ '""national, conference at WagVL which'?Jiev J^?'^ '"«* '''^ directed attention to Th!. 1 -u-r I '^' ''"« naturally Seriou. thinCnot dtin^g"? hl° hat" thf ff ^4 to the morraSou"oW'f '••"'''* """"«•■»"' charge of cyniciTm riilil 'l"" P'°P°"'»- The believe in tC iryilablJ^^of"^::/'';^^^^ consistent with a rprv .;„ "war. for such a new . There i, a tendenc;^b,Trv'we Sf' "" •°^■". ''°"''»- those whose occupation. h,n^/^ 5^' P?"'="Jarly among the other side ofT pictu^" ThJ''^^'' '° ""gS^atf "le picture. Their view, receive little conifihiton of societv i,MA„r i" '• .">♦)•— To itat™ byth? rfiriiw Of pun-W To .e.i.t i-J-r.^ot/^t-^^^cX-'loTve'^ttt WTRODUCTORV (3 "^nrorienr r-.^ r? - f- . r,ce! which our modcrrSma£.'*il''t?''=*''»r^»t» •ttODgert argument i. drawn from !k *^"'"' ""« ""eir of modern weapon,^^ i Jo „orh'^t«[°'"°« '•^^^^^^ will di.pute thVgUmv "'l^u" '".'="«• »'''"-"■ unim.afp.ace haHeT/om S2„X. tt ''' • '""P*'='* "^ II. International Uw wd iJ«^,T'?'^«- S'lewion ha. been often difcu.^ I^-i^ I«W.-The how for civili«d .ta^.con.wlr^K^^r""y ""'*"«'. international Jaw to be bJnHJn ' •Emitted rule, of in ca«, not covered bv^K * "'?"? '*"' "^o '"bunal. thi, .o-ntry i.";:,!^]^ ^ S^ ^^- -"' ^'> "' exprcMed to 'declare' not .„ . ? .'"'*' =• " is •mlamdor., and tS^prembfe ' T** '^^ J^""''fi^« "^ to the law of nation.!''^ Sjud"" "" l"'"'' '™ntmry in Triquet t-. Bath 'contaii. ^^T' °^ ^°"^ Mansfield thi. point!- ""'•'"""' ««w«lng ob«;rvation on inwhrcri^^'rV^S-Z^'-^.Taib^.^B Mtions in its full extent wMnLJ:k,°P'"'°" ">« 'he law of ;*^ W of nation,'wa.Tr^'^^Wtr/f ="«'-''. '"'' '"at he argued and determined from 7,rh ZT^ ^'^^ accordingly of. Grotiu.. Barbeyrac, iX^hlek w"''^''''''»"'''°"*y h^mg no English write^ o^.^^n^t o^T^°'^- '''•' ">"* J^^li '" »l>e case and have a foil note o? • ' x'"''-""- ^ "»» ."ght, c„lti„,e the moral ch,?Xl„T'''' "t'''^ *^» '««iied throughout mankind.' The paX' i w^^l '" ,"" ""« "f J-'igmg MidlothUn .p.„h :-« Hore"? d"p7o "bu"""" '™" "'• OuitoJ. vhich may tend to war.' " °"'«'"' "> undtrtake meajureli 3 Burr. 1478. • • INTBRNATIOHAL LAW Etco more emohatic wrr* »i.« _ pHncipi. b, the CTcjr^^ £':rr, ';:!?^ - nafon^Md the policy in "gW to .hi t''" T*^ '°«'P> Con.t,tution in the hand. ?f th. PcT, V'?? P'""' •'X *« deciiioni upon these .uWert. . J^ ''"'e'»l Government, iu principle. o7intemation2Tw?bl^,oT"*"'' '^'^o^^Jd law of nations unlike foreiJn m. • ^ ?7 "" 'veiybody. f he American prize court.. If thi r^! J, r ^*""°°» "^^ ">« foundetl.CE„gli.hl^ge V«,iXdS?'»/°'*^''' "* *«"- * whether the English Jaw provia« him \ ^'°^' «* not. The generou. verh.? ?'k '" '""' * *""« or which .«-^aSr/a^'^l2„fo' d\'"''™"'°»^^ '«''• ?;>■«. and the opp^.i,, "'!! °1 , ^ P^^^^^ cockbum. c. J.. ^R. .. r^^Vraiiri^;-;" ^y of'thr^l^o^iSarallll^^tLd- • ^•'— >re to be affected by .uch a ™u T^ ^"? ""e nation, who another, have laid ^do^^, .iStfic" £!?!"'"''"' ^oUo^ing one nothing of the difficulty whSmiXL.''"*,'? '" «° "7 which of these conflicting oDinL^ /'I •* '°""'' '° «y'ng to For even if enti:. una^^it^ hTeZ'^ed ^ ?' "'"' "V" ^^"^ portant particular, to which iCe Sd 1 f'" °/ *''« •™- discrepancy of opinion, the qu""^n woJw's.^l.'' " '^ 1° '""='' the law as stated by the publicisf. K J • 'J' '*'""'''' how far cvilised nation, of^hc wS 'Vor v^ri""'!'''.'';* "'^"' °f th" however valuable their laboun may b^l ^^.i"'-"""'""*' '»'». taming the principle, and ruleT/f U» ''"""^^'n^ and a«er- L """ °* '»". t^annot make the law *" '*• * "• D- pp. 202, 103. "^ "■ INTRODUCTORY without an Act of Parliament »h« u" ^"n'7 ^ «Pply to a ne„ la«r. i„ «, j„i„=™;« J^hat .vould practically amount he province of the lcgi,Iafur? ThJ, ** "T"''''''''/'""'?!"* le.. .ufficient to give the Jower of mrl ""* "^ "»"'""• '• d^bt? matter otherwise'' within rte lh2 „f™?'"y.''Si»l»tion in , It .woiild be powerles. to coS?'»°f, '"'""«"'"»' 'aw, but ^un«l,ction befond and unknown. o/k"?* '"''' ''K'»'ation , inusted on.' "Wnown to the law, .uch a? that now To the «me effect Lu.h. J... observed,, • •Inftmational law • f * • municiMl law, nor could 'trS^li^I! i?* J*" "« of our 'weepin. affirmation, of d'^foreSTh^ve'^"'^''^ ">' be;^^rditi^ci^rhrcfr:ro^'^''''^r'^»"'.«> of nation, and the gene^ doctrin- T™ P""^'?'" and usaw, a» to municipal mafterl the W.houwT,™"'"""' '"'^- ^v^" conform to the law of natinn. „ J ^ '^ "" construed as to prescribed. An a« of the Fedmrc *' '^°'"™y ^ "p'es. y construed so as to violate the law of n«"^'"-/"Sht "everto Z construction remains, nor should"t b " n^' J^^ °""" P°''^' nght. or to affect neutral comme ree fuX'^.^'' '? violateVieutra the law of nations as understood in tfcum^." ^""^'"^ ^r LI. s. at p. 239. r"^" , S?°".'' Maine, &„r»«A„^i^ „ ,. y^" iS INTERNATIONAL LAW Bumedj (ii) Municipal law will where possible be so con- strued in doubtful cases as not to conflict with the nilrs of international law. 12. To summarise briefly the views expressed in this chapter as to the real nature of international law, it con- sists of rules to control relations which have a legal rather than a moral character; its treaties and controversies have assumed a legal guise, encouraged by a general wiUingness to increase their apparent obligatoriness, but it is habituaUy deficient m that coercive side of the terra law, which is above all others essential and characteristic. All civUised nauons agree that they are bound by its principles, and in the majority of cases find it convenient to observe them. On the other hand, they are not infrequently broken, and breaches may be consecrated by adding successfiil violence to the original offence. In reality the sources of i j strength are three : (i) a regard— which in a moral community often flickers but seldom entirely dies— for national reputation as affected by international public opinion j (ii) an unwillingness to incur the risk of war for any but a paramount national interest; (in) the realisation by each nation that the con- venience of settled rules is cheaply purchased, in the majority of cases, by the habit of individual compliance. ARRANGEMENT OF THE SUBJECT Part I — i Nomenclature and Sources. *. The Subjects of International Law. and the Agents by whom they are represented in Foreign Countries. Part II.-The Right, and Duties of States in Time of Peace. PARTIIL-Beliigerency, or the Rights and Duties of States in Time of War. Part IV.-Neutrality, or the Rights and Duties of NeutnJ States. 'mkiimmM ms!m!m^j*!s^'mmg^ems;;^^''f^am PART I CHAPTER I Nomenclature and Sourtea I. The name 'International Law' is due to Jeremy Bentham. In a well-known passage he observes :— 'The word «• international," it must be acknowledfied, w a new one, though it is hoped sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacter- isuc that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor D Aguesseau has already made, I find, a similar remark : he says that what is commonly called droit Jet gem ought rather to be termed droit entre les gens.' i International Law is to be carefully distinguished from «ie body of rules variously known as Conflict of Laws, l-nvate International Law, and Comity of Nations. These rules form part of the private law of every civilised nation, and determine the appropriate >/ and the appropriate/orum m disputes between two persons acknowledging different nationahties. They are in no way concerned with the reciprocal legal relations of states. 2. Sources of International Law.— It was suggested m the introductory chapter that the rules of inter- national law are not a perfect system, existing som*- • Scnthani i Tii Prmiflet t/Af>rmli, xvii. 15, note. U «> INTERNATIONAL LAW where in the clouds and intuitively determinable, but are generalisations inductively drawn from the practice of civilised states in their mutual dealings. The adoption of this view effects an immense simplification in the study of international law; when once the a priori method is laid aside, the occasions for obscurity become infinitely fewer, and the science at least rests upon a firm historical basis. 1 o decide whether a given practice is legal or illegal, an examination of precedents is necessary, of a kind very familiar to all lawyers. If authority pronounces itself in favour of a particular practice, a writer who disapproves of It must content himself with advocating a change. Inter- national law will never acquire the strength sufficient to carry it through a period of strain unless authority is made to exclude individual opinion almost as decisively as it does in our English system. To underrate "i<; influence of the great jurists would be a proof of inattention or ignorance, but aggressive states are little likely to soothe the suggestions of ambition by admonitions drawn from Grotius, Puffendorf, Vattel, or Heffter, unless the practice of rival nations has lent them an additional semblance of authority. If these views are well founded, the sources of international law ought not to be very difficult to discover. It is to history that the writer of international law must turn for his authorities, and It IS hardly too much to say that the sole source of law 18 national practice, but that several media of proof are admissible to establish this practice.! Two further qualifica- tions are necessary. Recent practice is more binding than that which it is older, and where nations differ the value of ' It u .ubmitted that the above use of the term '.ource' of law is the-most correct and analogous. The Roman expression was fin, jwi, Md the metaphor was responsible for a like ambiguity in Latin usage. In both popular and strict language the source of a legal rule is the author of Its legal character. Thus in England the only source of law is the crown and the two chambers acting harmoniously. Political specula- tion and the science of legislation are the 'sources' whence spring the i*« by which the 'source of law* is excited into activity (f/, however, NOMENCLATURE AND SOURCES „ The following areX^Wef aL ■ 'T' \"'.''""°S ^ '"^h- (i) The writers of text-books, (n) International treaties. ("0 Opinions invited by their oum „„ riv) DeT^^"' '" ■^titTp^^ier™'""' '^°'" (•v; Declarations of law maW/h,, . -u i , , , national arbitra' ^ ''"''"■'''''' "^ '"t*--- sentatives. ' "* d'plomatic repre- It is proposed to treat of these in order. I. Text-Books PuUo^. BShot/at, ^uer'hat/^'^^rr how their influenc?ha;\t;':;,TtTl:° "°"" «-"' minute historical investieation T .'""'^ "*«»' ^y fluenced practice S reSitt tt ^'t'' J"f"'' '^"^ '"" forgottenVecedent?^ In othi" thev hat'"'''' f '^ ''''"°^' changes which, by their iZrenf r ''"« "l^^'yadrocated ward, procured Lceptan" for .K°"f'""'' ''^''^ '''"'"- mediate'^and circuitoursensetx bnTw'''"' .?'^'' •■> <» just a. the persnasire tonsue of f^- i ' ^'^^ '""'' '» '"w. adoption or abandonr Int^of an d?°T"\ '"'^ ""* '''^ the real source of the law thJd. ""'"''' .P^''«''=^-- hut existence, is not the argument of thrrt"""?" "'' ''» -p-.^TSdoS^S"^^^ 2t INTERNATIONAL LAW have often been judicially considered: the explanation is to be found in the presumption, inevitably drawn by English lawyers, that such authorities may be relied upon to supply a trustworthy statement of existing practice. They are cited much as Blackstone and Coke are cited, not to make legal ruled, but to prove their existence, and to construe them in a doubtful case. The passage in Kent 1 is well known in which he affirms that ' no civilised nation that does not arrogantly set all law and justice at defiance will venture to disregard the uniform sense of the established writers in international law.' The truth of this remark may be unreservedly conceded. But it is quite certain that no conclusions resting upon a priori reasoning, and unsupported by international practice, ever have commanded the 'uniform sense* of such writers. Their unanimity will usually coincide with a reasonable unanimity, or at least a preponderating weight, of inter- national precedent. ir. Treaties 4. We are here concerned not generally with the con- ventional law of nations, but with treaties as evidentiary of legal rules. For this purpose a broad classification of treaties may be usefully made into (a) Treaties which purport to be declaratory of existing law new law ; (b) Non-declaratory treaties. aw, or formative of [a) Declaratory Treattei -5. The value of such agreements is very high, though it will naturally vary with the influence and number of the nations who are co-signatories. If a majority of the civilised powers formally and deliberately sanction a principle, its legal character becomes definitively binding upon those who assent to the treaty, and it may be, by effluxion of • Ccmmtntmj m ImtiriuuMul Ltna, Lecture I, p. 2. NOMKCLATOUE AND SOURCES >, Convent on of 18/;^ ,k. n 1 • i 5"» the Geneva the Treatv nf w'^'J ^''='"«'on of London of 1871, and even wher^ »!,» . '""fi.oy an isolated non-signatocy, (i) Non-declaratory Treaties * The Declaration of Pari, was rnnrrt.rf I,, . power, during the Spaniah-AmcrirMWaT ^ "on-ignatory Ms««i«„;,,™ ^ri*^ L. i. c. 14, § 65. '4 INTERNATIONAL LAW moment of change may be difficult to detem.ine, but illu.- trauons of the completed procew could be readily multiplied. in. Opinions by Juriits in Answir to their owm GoTERNMINT 7. The yalue of such opinions as evidence of international Jaw is clearly somewhat one-sided. At most they can only bind the country which elicits them, and even then, if thi point of submission be genuinely doubtful, the obligation is mainly conscientious. Still there are occasions when such opinions may be usefiilly employed by an opponent in reJiance on a principle which in English law is called tstoppel.' A civilised nation could scarcely act in the teeth of Its own law advisers. In this country the opinions of the law officers of the Crown in international disputes certainly supply a weighty indication of English practice, •nd It toreign countries associate themselves with such .,r^I.""l!r- ^'"°^<^ °T.' ™n"". " general rule spring, disre ard "^' ^""''' ""''' """"y IV. Tribunals of Intbrnational Arbitration 8. In the last hundred years about thirty considerable disputes have been settled by means of arbitration tribunals. 1 he importance which the judgments in such cases mieht be expected to possess has been sometimes lessened bv a previous agreement on the legal points involved, leaving onJy the facts to be dealt with in the submission. Thus in the Geneva Arbitration the United States insisted upon a preliminary statement of the principles which were to guide the arbitrators in their consideration of the facts Where a reference is unlimited, and the tribunal impressive! the moral weight of its decision will no doubt be consider- able: third parties, of course, are in no way bound by its NOMENCLATURE AND SOURCES a^ concluiioni, and in at least one case ■ party to the sub- mission has repudiated the decision.* V. Prize Courts 9- Prize courts are often called international courts, and the name is justified in so far that the law administered by such tribunals is not municipal but international. They are, however, the creatures of positive municipal law, and their decisions are binding, not through any international sanction, but because the court is seised, in the legal phrase, of the subject in dispute, and can make practically effective the jurisdiction committed to it by its own positive law. These courts are set up by belligerents to try disputes between their own subjects and the citizens of neutral states. Their decisions supply very valuable evidence of international practice, and by comparing the judgments of the prize courts of different countries on similar points, one is often enabled to arrive at positive conclusions of international law. The functions of such courts were well described by Sir W. Scott in the Maria ' : — ' in forming that judgment, I trust that it has not escaped my anxious recollection for one moment, what it is that the duty of ' In 1863 the United Statei rejected a hostile «w«rd on the Brithh American boundary queition. It u probable, however, that the Hagne Peace Conference hat extended the icope of international arbitration. Sir J. Pauncefote and Sir H. Howard, neither of them idealiiti, reported to Lord Saliabury on July 31, 1899 : ' The most important result of the Conference is the great work it has produced in its « Project of a Convention for the pacific settlement of international conflicts." That work, even if it stood alone, would proclaim the success of the Conference. It was elaborated by a com- mittee composed of distinguished jurists and diplomatists, and it consti- tutes a complete 'Jode on the subject of good offices, mediation, and arbitration. Its mo8t strikiiig aiui novel feature is the establishment of a Permanent Court of International Arbitration, which has so long been the dream of the advocates of peace, destined, tpparently, until now never to be realised.' * I C. Rob. at p. 349. * INTERNATIONAL LAW nation, how. out without d"«inctio„ to :n? ''"i"'' '^^ '»" "f h.pp«,ing to b. neutnil. anHmi^o bi tr**'"' ""i*' "»■»* of Judical authority i, indeeTloJSlv K «^"1!'- ^'"« ««« county, according to the knn»„ i '^ ,' '" *< l^lliwrent who sit. here to detemin^ li?' • *"* ''"'X "^ 'he penon dctennine the ^J'^^Ton. f ' inr 'itV.^^kh''; "! "' ^ no pretemion on the part of Gre« I,! • i'-''?''? -'" "«« allow to Sweden in the Jl. ■ '""" "'"='' ^' "ould not dutie, on Sweden a. , n^t^?"'";2""^ ""■ *° i™POM l» adn,it to belong t'o"re«B^'jn*^' "'"'='' ^' ''<'"" no? therefore I mi.tfke the ?aw ,^ t?^ „^^ «"" ,"»"" "=''»"«"•• If 1 consider^ and which I ^^'u^'i";^ "''•'"J'« that which univer^lla'wupontlTeqJes^r.'!"':?" "^ ~""'"«^' " «"' coJi^- «:t.'u;o^™iSp\7t^^^^^^^^ r n .°^ p'- the grounds upon which th^^ -4 • ■ P*"^" °<^ dictating logically inyolv^ in rtrfacJlnH'""" ''"" P'°<="d » and F/ancc in tlTe N^e'onTc' Ji^ ''S '^ ^"«^''°.'l unfortunate, and it mav C jT^j ■' i"' practice ia iaw wa. thereby ^ered^on'r^l™'',?;. '"'"-'-' VI. Instructions issued bv Stats? t„ -^ a FoKCS.DlP.OM.T.cToH'N^Ir'^*"" ■ Of VfficS^n''"h'leW rtt'^'r^'L'"''!: ''"' S^"*-" States, after the America^ War "f s ^^^ • ''y 't U°"«l ferenee of Brussels ^30™!^^ K ^'"«'°»- The Con- manuals, and insti^cT'n, S'^S.Lnd'" "^''''"'''•" ''^•"^'' -ual ™ay Be of^litaSr^.^^^^^^^^^^ > The neutr.1 li,ig.„, ^ „, jwedW, n,ti«,.li,y. NOMENCLATURE AND SOURCES »7 unanimouily, or eyen generally affirmed in these private instructioni, it it very reasonable to suppose that it hat made Its way mto international law. The result is highly satii- factory. It is above all things desirable that the rules of war should be ascertainable, and a collation of the manuals of usage maket it possible to state with confidence many general rules on belligerent practice.' A^uJ!'i'l' IT^* BuM^'rMicoBtTowny with Gtrminy.LordSUiiburv declined to be bound by the English Admiralty reinUtions. ^ ' CHAPTER ir INT1RN4TI0NAL Persons of "aUo"': tytr tfcr^ " '""" « ■" ">. law .onality. TWfac! hi. t^ '' "''"■"' °^ international per h. individual citizen, of another and t " '". ^« ^"h ^unadiction over them of a Z,; L i ".P«""'"«l 'o as8ume « them«;Ive. ilJeaal The C^,?*"" '''"''""' «>f act. not be considered in fte place ^ " '=««P'''"'al, «,d will are^notlt^^rSr;? °n?"" '■" t f^" «-- Profe«or Holland huloLf W^Trf- '''^' ""*• " them a. international pe^so^ R " ."""'"S '° '**•<="'* undoubtedly derive a r^flt .^ *' -* '*■»= '■'"e they principaljand b; thl, ;S ^^'"'.'"y '■'°'» "'«r international law mTy Kcn^^ ' T/'""" '^t '"«*°'''« "^ ■ocety, belonging to thef^ir^ f " ^"""'"""'5' '''«'"'i»«l a government aufhoris3trS?d f j"7"V'P^^'«"«' ''5' INTERNATIONAL STATUS ^ ''' "■S.^iTT"!?'-'''' ■, «°«™™ .bid, I,^.T. ^ ■ '"'S'""' f"" It. .ubiccu. Ii mim «tab,e reuombl, p,„„i„ of d„,bllit. It mo.1 pono, dctiii, „„l,„ri^ """'• vwed that they appea- to rest upon a stable basis fh. reservauon « necessary, and is only an apXadon nfT^ caution, so familiar in private wl ," f PP'"^*' °". «» 'he unsafe with an imperfcctly'r L'ted' a^t. "'"""°" ''' their dealing, with barbar.n. i, .', pu u:m?y to tL^Juz " V'", "• biilktuupplic, a curiou. iUu.traf.on of th-^ fT^! -f-^ Dum-dum bulkt WM defended becau« it w.rfoir „ ' '\^""'°° "''^ »l»nght. of .avaet e„,™T. 4-1 , • .""'""y «<> check ihe on- .dn^tUd on SVweuT; W„ST?„ "^ '!;« PJ?' »«y be JCM birbarou, theck i. uaJcnowl ' "'""'' effective and 30 INTERNATIONAL LAW «Ute. This requirement » fiindamental in moderTinter- Mhonal pracuce It is, however, in no way w^tiaTto the conception of pual relation, between stato^ HStfe tf aCSK'''- '"""'■^'^ ''^ of medi.;S,aS tf a law had come into existence at a particular epoch in Europ^ history, Mr. Hall truly observ^ . I? mr^have S^ '"'I"? ?°«'''fi""°° of the su'perioriry of the f^v' l T^'°^ "' ""^ •'*■"'» of the PopI' The C:s^th°f w Ti:t" '!r ""'.^"^"^^ "«'«™% from !n^„- I J ,. ,.*' '***' '**8''* of dependence upon a not cdled upon to deal. It is, however. imporUnt to notici feul o the contenuon put forward by President £ug;r and h^s Sute Secretary. A nation cannot indefinitely «Jrender the treaty-making power to another, and at^he «n^ time keep alive its claim to be a sovereign int«„atL^ „:L ^0*«t<»»t«B.-The case of a protectorate sometimes raises mce questions: here it is evident that the view taken mustdepend on the degree of intimacy subsisting bltw^n^^^ tKri'°^ the protected states. A convenient eJI^n of of oS 5^ '*■""''?' *" P°'"'°" "'■'he protected suteTone ofquahfiedorimperfectpersonality. During the Crimean W^ ^eJomanlslands were under theprotectorafeofGreTtBritTi" The case IS a strong one, becaui the internal and exS affai s of the islands were both controlled by this cm ^« their neutrahty was scrupulously respect^ed thr^uSom !7J ^^ «planation may be that STe immunity from attack w*. conventional, for agreements were concluded^ • btennuitntl Law, ed, ii. p. 15, INTERNATIONAL STATUS 31 this country with Austria, Russia, and Prussia, and that tlie dTect of these conventions reacted upon the decisions of pnze courts. It is certain that such a neutrality would not be respected for a moment if the protecting sute derived any belligerent advantage from his occupation. It is not obvious that any characteristic attribute of personality survives to a state whose executive and foreign relations have passed mto other hands, and it might be less misleading to note the claim to neutrality as exceptional, than to magnify a temtilla juris by such a description as imperfect personality. It may be further observed that if one of two belligerents was hkely to derive any advantage from attacking a state, protected and controlled internally and externally by the other, It is not clear on what principle he is bound to absuin from doing so : the protected state has made a surrender of all that 18 essential to national character, and the claim to respect an independence which has become purely nominal IS litUe hkely to impress practical statesmen.i The position of a state under suzerainty does not differ in international theory from that of an individual state in a federal system.' The mouthpiece, so to speak, is elsewhere. Thus the United States collectively form an international person, though none of the individual states does so. On the other hand, in the case of a personal union such as that which subsisted between Great Britain and Hanover from 17 14 to 1837, 'the states so connected are properly regarded as wholly independent persons who merely happen to employ gf *e Cherokee Nation -u. State of Georgia, 5 Peten Report, i. The international po«ition of Egypt ii curiou.. Nominally a vanal it..e of the Sultan'., it ha., in fact, become a part of the Briti'h fimpu-e. It u immaterial whether the occupation will be, or ought to be, permawnt or temporary. Egypt po>K.K. to-day hardly « .inrfe element of international character, and neither the outward deferewe paid to European .uaceptibilitie^ nor the .hadow of control .tiU enioved by the mtemational court., can diaguiK the real facts. It may be noticed m pauing that any other view would open up highly difficult qnettion. a. to t^ temtorie. lately conquered from the Khalifa bv Bgyptiin troop, officered by Engliahmen. ' 3a INTERNATIONAL LAW tl n,'/^™' t » I?"^'=»J'"- daw of purpose! and who aie^jnno way bound by. or responsible for, each other'" 6. OonfederatloM.— A difficulty, chiefly of analvsi. i. K« £ S: r °' » StaatenU. /r Ifofe^ to .?fi? ^ i •"'".'"' ^°'' *'>'<='' '»«ed from 1 81. .^s^m for whth ^r " '° '^'^ '"''i°g»i»hed from a fedend system, lor which it has sometimes prepared the wav wher^ the central authority is clearly the only'TnternationKn 2^ dearfthf "' •''°"''' co'-tro/such cases ap^a^^to oe Clear. If the constituent nations have reserved the rioht ^S''""'^;'"' ^r'S" ^«'^'"' ='°d havemJre y stckfed Uieir mdependence of action by revocable conventions, there 1. no loss of status. As far as outsiders are concerned, it i! ru jnter Uos acta. The ruling analogy is tiat of an ordmary alliance such a, the Tr^ Alliance. If on the Sfcv tWrd'^: r'°;." ^^'^ ^" ^ question. o?hgh policy third parties address themselves to the central authority, the confederate nations individually sX a 1^ of mtenia lonal status. The question isalwa/s one of &? durability: ^^^"^"^y """' •'^bit reasonable promise of ir,^^lJ'°f^°^'^'^^^'^'' «'»t«ce must obviously precede mternational recogmtion. The question when such re cogmtion oyght to take place becomes pressing when a new akes 1^"^ '"'". !'''"^""- Such new birth L^j takes place in one of three ways. ' 1. Previously uninhabited districts are colonised, and a political society organised in them. 2. Associations of men originally non-political change their character, and form themselves into a state? 3. A people hitherto dependent on another asserts its mdependence by a successful revolt. Instences of the first mode will occur at once; the cases u« Congo Free State and the Barbary Sute. wUl illust^ * Hall, ed. 2, p. 26. of INTERNATIONAL STATUS 33 cStieThai t'"^'^ •'?'''^."'* '•'« international diffi- cuines have been most ser ous y felt The o„lf \Z. ^hetlZ " ''"'/' "' "PP""""" " •ometime7difficdt to yranent faul "^^j 'o '"bdue the revolt i, doomed rirSir"'"™'"^ 'y '^'^ interchange'of diploJ? 8. (iii) The society muat possess fixed territories. The framework of international law was fon^ed at a tin,. P« ticrh"as Se'd ^"' '— '^'^ ''y terntriand:a^.rd of itsXations andlft ^ ,'."° '"T.'? '^'^ '^* '""'fi^'^'^"' to fom, coCc"' Sh't W ''"'' *""''* '"^ '""^ '-P"'- natL!."^ '^^" '°''''y """ '^ » '"^ber of the ftmily of J« whStlh '^f ?'' with precision the circumstance, I id»a ,!,„ ' "^roarous. 1 he assmiilation of Earonean Sd?:nCri:r?or"? '^''"'./'"^ frank attempt:: Jprepare tie wav In ' "r"' ="" "^'"^ *"' '""'"'ihly 34 INTERNATIONAL LAW admitted Tnrkey to share in the advantages of the system of Europe. 10. Theory of EautUty. — In international as in muni- cipal law the units are conceived of as equal. The equality of all citizens before the law is axiomatic in civilised systems, and the doctrine has received much verbal allegi- ance from statesmen on the larger stage of international relations. Sir Henry Maine ^ traces its origin to the old confusion between jut gentium and jut nature. If the society of nations is governed by natural law, the atoms which compose it must be absolutely equal. Men und«i the sceptre of nature are all equal, and accordingly com- monwealths are equal if the international state be one of nature. > ' The proposition that independent communities, however different in size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age.' ^ The influence for good which Sir H. Maine attributes to the theory of equality is a striking instance of the effect yi idealism on the world's history. Nothing can be i certain than that the theory, in municipal law truistic , when applied to the position of states, inept and misleading. When we affirm that in England all men are equal before the law, we mean that the meanest peasant may litigate in equal terms with a powerful nobleman; what place can such a theory have in a system of self-redress i Can it be said without absurdity to a small state injured by a great one, • Your cause is just : be not concerned at the poverty of your resources: in international disputes all states are equal : war, however, is the only litigation we know, and equality ends when you enter its court ' i The fiction has no doubt reacted upon international sentiment, and in this way prevented much wrongful aggres- sion ; but it must be noted that it has little correspondence with the facts of international life, and that in the rough and 1 ^ckni Lew, pp. loo, loi. ' It, eit. IMTERKATIONAL STATUS „ ISUS^ "f -i"" "■ "/"«<A»f,~ i. .„ • hop,. to mamtain the integrity of its t^rrhorfes In^8?rr coSns of li~r r " ■rP"'T'5' observe/the n::^J?^^J° sv^ ^& -1/^tSrv- n^ ted to «^ntl"/h; r?" "''" B^'gi™ was not per- against a neutralised state for a refiLal to r^n/ • ""'^5: » iw«rMr»»a/iflw, p. 489. 36 INTERNATIONAL LAW for immediate redresi, it can hardly be doubted that a powerful nation would take the law into its own hand«.> 12. Chartered Oompanies.— From what has been said above, it will be clear that strictly speaking a chartered company has no claim whatever to international status, The facts perhaps are hardly so clear as the theory. These great corporations have played a part so extraordinary in the history of the world ; they have exercised jurisdiction of so high a kind, and with such immunity from supervision ; that it is impossible to put them on one side with the observation that they are merely trading companies, and that their character is therefore extraneous to the subject of international law. A juster, and certainly a more convenient view, is to conceive of a chartered company of the normal type as enjoying a delegation of sovereign power over a defined area. The terms of the delegation concern only the company, and the nation whence the authority proceeds. It is sufficient to third parties to know that a political act of the company is prima facie the act of the country to which it belongs, and that redress may be sought from that country for wrongs done by the company. So much seems to be involved in general principle. A nation cannot commit political functions to associations of its citizens and then disclaim responsibility for their abuse. The degree of satisfaction is very likely to vary according to the position of the injured party, but it is hardly credible that a first-class power injured by a chartered company would acquiesce in a lower degree of satisfaction from the accrediting state than if the latter had directly been the aggressor. The tempta- tion to employ chartered companies is obviously great. The administration of the East India Company was stained by much that was discreditable, but it none the less rendered splendid service to this country, and perhaps in the long- run to humanity as well. Yet the objections must not be overlooked. Many of the defects in company government ' Biamarck threatened to diiregard the neutralitjr oi Liuemburf oa the occuioD referred to in the text INTERNATIONAL STATUS 37 S'S.''^ the noble eloquence of Fox and Burke were no doubt particular and accidental, but ,ome of them are pemjanentry inherent m the system. Government by char- tered company necessar.ly subordinates the social organism l^r K f r"t" T'""^ '° '"'^'■"2 considerations. In no ,1 ^^"\^-f ^"«'".^ P"'''''^ '«^ *°"'d ^ government b^ tolerated which avowedly existed for purpose, of exploiu! IhUv^l t ™i'"^'?d'y '"«= 'h« pioneer work of incalcul- able value haa been done by such companies in the past, 3 occasion, may recur when their employment is the least of a?3 n^ "■''•• ''"'.""P"""' ""'• economical taste, are no fh™,M r"'°u"'''',''"'* ""= "=" of chartered compan°e should at most be a phase in the work of reclamation.'^ l^e Bepresentatives of States in Foreign Oonn- »3- tr4.. Tu- — L- — r"*"'""* "* osawB in roreign Conn- mternational ight, : an arrangement supported by a supposed nght of legation. The claim appears some whaf acad'^miV acctdi^^T "T '""'' hardly insist that another should ^mlL.L """n °" *° "; N° ''""b' *« withdrawal of an r^^n. H°ff "'"*"y f'T'^'' "» o""'^^'''' of war: but ante cedent difference, and not the withdrawal are the c^Z odH 1'^'= ""^ °" '^-^ °"'" ''^"''' - '*o »^"' t'me of Ja^f" f •'' '° """change representative, in 1; Llfcrernte'^"^ '^ '""^"'''''''y '^^^'^'^ ^S^9^1?fc-^VSrp=i;^;^ chTs:iftI:r/t-L'iiit"°"«-'°^^^^^^^^ 1. Amba,sador,, legates, and nuncios. 2. Diplomatic minister, particularly accredited to ,overeign8. Resident ministers accredited to sovereigns. Charge, d affaires accredited to foreign bureaux, lo the above list must be fifthly added those who awcharge consular functions. 3- 5- 38 INTERNATIONAL LAW Notwithstanding the nice gradationa of thi> hierarchy, a •ufficient account of the subject can be given under the two headi of ( I ) ambasaadon ; (2) consuls. (l) Ambattadori 14. The practice of sending ambassadors to reside at foreign courts seems to date from the Reformation. The passage from Coke has been often cited in which he says that Henry vu. of England « would not in his time suffer Lieger ambassadors of any foreign king or prince within his realm, or he with them, but upon occasion used ambassadors.* So Grotins' affirms that a nation is not bound to receive resident embassies, for such are unknown to ancient practice. It is ofttn somewhat largely stated that an ambassador enjoys the privilege of exterritoriality. By this is meant, or should be, that though de facto resident in the country to which he is accredited, his position de jure is regulated on the supposition that he still resides in his own country. It is more accurate, though less dramatic, to say that certain immunities from the jurisdiction of municipal courts are conceded to ambassadors by the practice of nations. These immunities may be considered under two heads : (a) Immunity from the criminal jurisdiction of the country to which the agent is accredited. [h) Immunity from the civil jurisdiction of the country to which he is accredited. (a) Under no circumstances can an ambassador be tried for a criminal offence in the country to which he is accredited. The practice is well settled, and has been established in England since the case of Mendoza, the Spanish ambassador, who conspired to dethrone Queen Elizabeth. Nor can he be arrested under ordinary criminal process : » he may, however, be arrested by a high assertion ' ii. 1 8. 3., cited by Wooliey, Introductieit to Liteniaiiimal Law. • Ci« of die Dutch ambauador and the Landgrave of Hene CaaieL 1763. ^ INTERNATIONAL STATUS 39 of MTereign power for intriguing against the country in wh,ch h.. miMion li«. •rf.n. ''count GyllenJth" Swedish ambamdor in ,717, wa, detained for .ome^ time d"vna",tv 1 T.''"r ^"l ^0"'"^ "S"'"" '^^ HanoTerian PZTku ' ^u^'o G°«™™«'"' i" '718 arrested cZll ^h?"'' ">; Spanish an,bas«,dor. on a similar ■^J\, " "'.' °^ Panwleon Sa" is hardly consistent with modem practice. Sa was the brother of the Portuguese ambassador accredited to the Commonwealth: under out- ^nXn^"'"'"'"'*!.'''' °'I"'" ""'"« »'"^" his direction, Itilled one person and wounded several others, and for this offence he was indicted, tried, and executed. The accepted ZZZ^X' TV ' •r'^f •'•'" P""''8" of »" "nibassad^ are shared by his family hvmg with him, and by his official ^d domestic suite » The correct course when an «n bassador is suspected of criminal acts was indicated so lone Ego as 1 57 1, ,n an opinion which Gentilis and Hotman Zr 1^1V° T '° M«"'J??^'« "=<=• He must be handed over to the authorities of his own country. The claim that an ambassador's house is a « city of refiige ' to criminals. ht'tn'"'?^'* ""•^''.T "T"'^"* '" '"• exterritorial ™^^ has long been generally abandoned in practice.* It diri exL't°t?"°' 'V-''''^/' '"'y''''' "'^ ^ P^°-0'«"=ed extinct there, and it still appears to surrive in the South Amencan Republics. A diplomatic agent cannot be com pelled to give evidence before a criminal court in the country of his sojourn : tlie immunity, however, is waived .n a proper case, and the refusal to do so has been held to justify a demand for the agent's recall.* (i) Immunity from Civiljuriidfction 15. The English common law seems to have allowed ^ De Martens, Cautet Ce'litrei, i. loi. PhiUimore ii. zii. I ?," ''"''"■'on -'■ Potter, L. R. 16, O. B. D. i« ^ * nalleck, i. a^ m$^ 40 INTERNATIONAL LAW no Mich immunity to ambaiMdon. There it ■ dictum in Coke igaiMt the claim, but the law apparently re- mained uncertain until 1708. In that year the Czar'i ambawador in London wai arretted for a debt of £S0. A criminal information wu entered aeaintt thote resBonsible for the arre.t. While the point of law waa •till under conaideraiion the statute 7 Anne, c. la waa pawed. The Act, which wa. in form declaratory, provided by aection 3 That all writ, and procewe. that shall at any time hereafter be sued forth or prosecuted whereby the person of any ambassador ... of any foreign prince • . . receired as such by her Majesty, or the domestic servant of such ambassador ... may be arrested or im- prisoned er his goods or chattels be distrained . . . shall be deemed utterly null and void. By section 4 attorneys suing such processes were made liable to punishment. Section 5 provides that the immunity of an ambassador's servants is forfeited by their occupation in trade. On this statute It has been held' that a person claiming the benefit ot this Act as domestic servant to a public minister must be really and iena^/iJe the servant of such minister at the time of the arrest. The privilege is that of the ambassador not of the servant.* The court will not compel a foreign ambassador to give security for C08ts.» A public minister particularly accredited to the Queen by a foreign state is privileged from all liability to be sued here in civil actions.* The United States Congress in 1890 passed an act of « sinnlar scope,* and continental practice has been almost uniformly favourable to the claim in its most generous form. It^may be mentioned here in passing that ambassadors enjoy no exceptional privileges at the hands of third persona or ' Phillimorc ii. 2z8. • Fither v. Bf^vn, i C. srH M. 240. • Duke de Montellano v. Chrittian, 5 M. and S. 503 Magdakn. Navigation Company v. Martin, 16 L. I.. Q. B. 210. See alto Parkinion V. Patter, 16 Q. B. D. I ci • Cf. Dupontv. Pichon, 4 Dall, 311. INTERNATIONAL STATUS 41 enemiei. Thii rule wa> long ago Mated by Bynkerihoek,' Nop valere ju« legationis nisi inter utrumque principem qui mittit legato, et ad qucm mitsi lunt : csctera (eoi) privato. ewe. Practice ha« been in accord with thi» sutement of I, L*; A well-known insunce was the arrest in 1744 of Marshal Beliei.le, the French ambassador, while on hi. way through Hanover, during the Franco-l-ngjish war. 16. Dnties of Diplomatic Agents.— The duties which tnch agents owe to their own countries hardly concern us here, but are a branch of the public law of the stete to which they belong. Ambassadors, however, are forbidden by rules which are most jealously enforced, from any awociation, direct or indirect, with the public affairs of the country to which they are accredited, Mr. Hall » collects the msunces in which violations of this rule have been followed by a reauest to the accrediting state to recall or in an extreme case by dismissal. A well-known instance ot dismissal occurred in 1888, when Lord Sackville, the tinghsh ambassador at New York, was given his passports and required to leave the country within three days. Lord hackville had been asked to advise an unknown corre- spondent of English extraction and sympathies, how to rote in the Presidential election of that year. He replied sug- gesting ,n a general way that the then government was friendly to this country, whereas Mr. Cleveland's intentions were unascertainable. The letter may have been an in- discretion, but, as Mr. Hall observes, 'it was treated as an open and international offence.' (2) Conjult . '7- The term international agent should mean one who n a link in a chain of communication between two states. In this sense a consul is not, as such, an inter- national agent. He is an official of the country for which he acts, intrusted with duties of a multifarious kind in t foreign country, and permitted by that country to discharge ' Cited h, WoolKjr. • P. 319. 4S INTERNATIONAL LAW prmlegM, the conccion of which ii wmewhere rIodk the border line between courtesy and law. He ha. not, indeed, any immunity from the ordinary tribunal.,' though thdJ jurisdicuon i. *»erted w a. to inconvenience him a. little a. poMible in the di.charge of hi. dutie.. In the Uni ed htate. practice I. ,imilar,« though American policy ha. added con.iderabIy by treaty to the function, and immunitie. of tl e consular .ervice. The liability of a con.nl to be arre.ted i. inconvenient, and if .uddenly exercised misht be very prejudicial to member, of the state for which he act.. 1. he point wa. considered in this country in the caK of CUrkej,. Cretico,' when Mansfield, C. J., obwrved at page •The office of consul is indeed widely different from that of an ambassador, but still the duties of it cannot be performed by a person in prison. ... The words of the statute* are: Ambassador or other public minister." But a consul i. certainly not a public minister. In Vivea.h v. Becker* .7m k-j "^•°"2'' '""""'''• "P ">« ""««" M follow.: Nobody IS disposed to deny that a consul is entitled to privilege to a certain extent, such as for safe-conduct, and if that be violated the sovereign has a right to complain of such Tiolauon. Then it is expressly laid down that he i« not a public minister, and more than that, that he i. not Tflt '° '■•'fi^'?"'""- And I cannot help thinking that the Act of Parliament which mentions only «amba^ sadors and public ministers,' and which was pwsed at « time when It was an object studiously to comprehend all kind,8 of pubhc ministers entitled to these privileges, must be considered a. declaratory, not only of what the law of nations is, but of the extent to which that law is to be carriwl. It appears to me that a different construction would lead to enormous inconveniences, for there is a power ' Viveash v. Becker, 3 M. and S. 284. • The Anne, 3 Wheat. 435. . 6 Taunt, 106. «7Anne,«.4. ' 3 M. and S, .t page a,^ INTBRNATIOKA. STATUS 43 of creating rice-conrol, , tnd they too matt hare nmflar priTiieget. The general force of thew argumenu is great: the practice 1. common of choosing consul, from among the natiTe* of the particular country in which their services are required, and it would be intolerable that men so appointed should be protected from the jurisdiction of thelT own tribunals. But though he may not be 'entitled to the fu^genlwm, certain privileges are in practice conceded to a consul. He is allowed to place the arms of his country over his house; he is immune from personal uxaUon, and ftom liability to jury service; soldiers may not be iMlleted upon him, and his house is inviolable in time ot war. We are not here concerned with the modes in which consuls are appointed, but it must be noticed that they cannot enter upon their duties until authorised to do so by an exi^uatur issuing from the country in which their duties lie. An exequatur is a more or less formal authorisation to do, within the junsdiction of the country, granting it the ditterent acts incidental to consular authority. 18. Duties of OonsulB.— The duties of consuls are of a very various character, and can only be generally indicated, in the hrst place, as commercial agents, they are found to succour tradesmen and sailors of the country by which they are employed: more generally, its citizens are entitled to look to their consul for advice and countenance in any of the innumerable difficulties which spring up among foreign surroundings Consultative duties are among the most usefiil ot those which fall upon consuls, and much invaluable knowledge is derived from the commercial reports which they are in the habit of submitting periodically to their govern- ments. Still more important are • he judicial functions which they are permitted to di, harge. These mav be arranged under three heads in an ascending order of importance. .1. ^*'j ■ ■ '*'^.'^=3tion of births, marriages, and deaths, and the administration of intestate estates abroad among citizens ot the country for which they act. 44 INTERNATIONAL LAW thimLT V'^r"' ^'^"' *e '-niits locally conceded to tibe employing .tate, an J the decision, as arbitrators appointed by consent, of commercial disputes among its citizens. 19- ("0 In non-Christian and partially civilised statei he consuls of civilised power, exe?ci«> bl conseM a very responsible jurisdiction. They are the judge,, aeneJally speaking. ,„ all matters civil Ld criminai whi h^conceS from X TT- • ^*i- '^''^ '^°'"""'^' •" *'"=h i"""»ni? from the local jurisdiction still survives are Turkey! S,am and China. In these countries the practice is S c2.rt h /' -^ """•' *8='in8t foreigners in the local court, by foreigners aga nst natives in the consular court of iLrlfh ''*'"''•''"** '° '^^ "^"""of the defendant's con«U ine exemption from jurisdiction must be regarded as conventional where the country in which it is aaS is" ^^Sf •°^-5' "^"^^ "' °'^'' " «° extension of the sT, »nV •""'°°' '=°"'P='^''We to that claimed on the high seas and in savage countries, when it is not. In England this ju^isAction now rests on the Foreign Jurisdiction Art J 890.1 Sections i, 2, 3, of that Act are as follows :— It is ana shall be lawful for her majesty the queen to hold, exercise, and enjoy any jurisdiction which Jier majesty now has, or may at any time here- after have, within a foreign country in the same and as ample a manner as if her majesty had acquired that jurisdiction by the cession or conquest of territory. ^ Where a foreign country is not subject to any govern- ment from whom her majesty the queen might obtain junsdiction in the manner recited by thi» act, her majesty shall, by virtue of this act, have jurisdiction over her majesty's subjects for the time bemg resident in or resorting to that country, ' Si »'"' S4 Vict c. 37. I. INTERNATIONAL STATUS 4S and that jurisdiction shall be jurisdiction of her majesty in a foreign country within the meaning of the other provisions of this act. J. Every act and thing done in pursuance of any juris- diction of her majesty in a foreign country shall be as valid as if it had been done according to the local law then in force in that country. Similar provisions for the regulation of American consular, courts are contained in an Act of Congress passed in i860. The mixed tribunals in Egypt supply an instance of a jurisdiction originally falling within this class, and now kept p'ive for political reasons. ft will be apparent that these judicial duties demand a high degree of knowledge and competence for their proper discharge : and it may be hoped that the tendency will grow for natiot^s to engage at every important centre their own subjects in consular employment, excluding them at the same time from private trade. Under such conditions it would probably be found practicable to extend the im- munities of consuls to the point rather prematurely assumed by Heffter.i when he affirms that they enjoy 'that inviolability of person which renders it possible for them to perform their consular duties without personal hindrance.' PART II THE RIGHTS AND OBLIGATIONS OF STATES m TIME OF PEACE Sn a^: Tm^an'thatT ^^""'''^^ » "«'>' ^ do a will view the doTng of that actfi' "P"""? °^ °"^«' ''»'^» acquiescence. Corre aSv aT.« FP'°'"> "' *' '^'"^ ^i"' to do or forW C a cmain ,T r "■"*" "" °''«8»tion or non-forbearancHro; doW ^iTl t:"*- °T'°?;° '^°' approval and perhaps by |^^'attTil^, *"^ ,*"'' '*^*- rights and obli^tions are ^ f ^ J° .''°™P'='- Such fose of rn^^^^^'-^^LTl'J^T^t': ''""^ by the strong arm of sociWv 171- r-^ " necessary, word, a consideration of Se'riits and T"^- ""%°^ '^' in peace, war, and neutraUtv fom,. "W'gations of state, exhibiting the^holer^?;^- S-^^ -hod of CHAPTER I ladependeBce '^■m^im INDEPENDENCE ^j i'ken m.T '° ""* P°"^'!'y '^* constituent rights which, Uken together, amount to independence. Mr. W. E Hal has laid It down in general language! that 'independence is the power of giv.ng effect to the decision, of a will which .. free, m so far as absence of restraint by other JersTsh CrS; 7-"^ "g>' of -dependence^ therefore Tni largest extent, is a right possessed by a state to exercise « will without interference on the part of foreign statej n all matters and upon all occasions with reference to which It acts as an independent community.' The last limitation IS made necessary by the fact that 'a sute is capable of occupying the position of a private individual within foreion Tm K °°' "?' ^°J "^ o^'"P''=' '" '^'^ "»e of England, whifh holds shares in the Suez Canal Company.'' Mr T G Lawrence a defines independence as «the right of a'stat'e to mariage all its affairs whether external or internal, without mterference from other states as long as it respects the corresponding right possessed by each fully sovereign member of the family of nations.'' Both these definiS or descriptions are of a general character, and may require «nt^n " / "jpd'fied in practice, but the essendal ^con! ception IS familiar, and therefore readily grasped. An independent state is entitled to live its own hfe Tiu own way the sole judge within the law of its domestic govern- ment and Its foreign policy. The particular form of ftrrr", z^""^ " ^^^ '=''°''^° '■> "^e ^'^^^^^s oZ of everr^H T'""^ ""l'™ "'"'f ^""^ "»elf alone, for every independent sUte has the right of setting its own foZ Z ""^"^ •^° ""■''"e how far these incfdents are found at present in states claiming to be independent, it must be remembered that here, as elsewhere. auCrtorive mternational practice must be regarded, and no the repetitions of text-books. A consideration of the history of Europe and the American continent, in the prS century wiii make it clear that the rights to independence ':^r;:;ta:M\-'°- ' ^*. p. so, footnote. 48 INTERNATIONAL LAW can only be claimed for many nominally independent com munitiM with subsuntial qualifications. ^ pend^n^e a' fo"ow~^^^^^ ''' "«'" •""'^^-' '» -'J- I. The right to a free choice, settlement, a ' altera- uon ot the internal constitution and government without the intermeddling of any foreign state a. Ihe right to territorial inviolability, and the free use and enjoyment of property. 3. The right, of self-preservation, and this by the defence which prevents, as well as by that which repels, attack. ■' 4- The right to a free development of national resources by commerce. 5. The right of acquisition, whether original or deriva- , Tr*'- u ",'«™°rial possessions and of rights. 6. The right to absolute and uncontrolled jurisdiction over all persons and things within, and in certain ex- ceptional cases without, the limits of the territory ™' Tf */"" ^""? ^'°'^ 'membership of a universal community' of nation, four other rights -which Tay! « Inrpe^d^ncr'^"'^' "^ ''^° ^'^^"^ '° ^'^ P"-P^ of 7- Therights of a state to afford protection to her Jawtul subjects wheresoever situate. The right to the recognition by foreign states of the national government. The right to external marks of honour and respect. I he right of entering into international covenants or treaties with foreign states.^ of the rights involved in independence. It is in feet an abstract right limited firstly by the maxim. Sic uUr^tul altm«m non l^das, secondly, by the existence of similar ' Inttrnatitnal Lav/, vol. i, p. i6a, • V, S., p. i6j. 8 9- 10. INDEPENDENCE 49 rights in other nationB, and thirdly, by the possibility that It may come into conflict with a competing principle to which It 18 bound to give way. The right to violate the independence of a nation is known as the right of inter- vention, and a consideration of the occasions when interven- tion IS permissible will moot usefidly illustrate the inroads which practice has made upon independence. 3. Intervention.— 'Neither,' says Lord Bacon.i 'is the opinion of some of the schoolmen to be received that a war cannot jusUy be made but upon a precedent injury or pro-" vocation; for there is no question but a just fear of an imminent danger, though there be no blow given, is a lawfiil cause of a war.' This is the principle upon which inter- venuon must ultimately depend. Where 'there is a just tear of an imminent danger,' or, rather more strongly, where the vitol interests of a state are gravely menaced, the paramount principle of self-preservation comes into play. It a neighbounng country swells its armaments to a degree not to be reconciled with the simple aim of self-defence, if the preparations from the nature of the case can only be directed against one object, the community menaced may strike at its own time, without awaiting fiirther provocation. International law is at its weakest, and its writers are least Mnvincing, on the subject of intervention. The laxim, Nemo potest judex esse in re sua, has no place in the law of nauons, and the interested nation itself decides on the extent of provocation, and the imminence of peril. Under these circumstances it is not surprising that the line between pohcy and law is slightly drawn, so that high-handed acts of aggression have been able to masquerade under the name of intervention. The danger of a rule is apparent which would permit one nation to interfere in the concerns ot another m order to prevent the wrongful intervention of a third, being itself the only judge of the likelihood of such intervention and of its moral or legal justifications. It seems possible to base upon the modern practice of nations ' Euajr M Emfire, so INTERNATIONAL LAW a Minple and more exclusive etatement of the occasion, nn l w£ 'l^'"^'/^^«>^by .elf-presemtion. Powe;,. ""'*'"'''" ''^ "^^ 8*"^«' l^y of 4- (i) Self-preservation.— Eyery daim to intervenrinn To deal uncoRtrowrsiaUy with highly controyerbKl 6^ clearly exceeded the hm.ts of proper self-defence, i Whether ^PO,„b,ht.e. opened up by the Jameson Ri^d, ai tte reyoluuonary schemes imputed to Johannesburj;. rai,^ Ae the extraordinary elaborateness of the Boer armamentTi differently. The principle at least is clear. A fiirdher illustration may be drawn from the war in ,^ichSj. SL'^^^kw ;^ % ^''■"^'""" orth'e'tenth n-erojuuon. i'nma facie France n 1792 was as murh enutled to enjoy an uninterrupted revolution as EnglanT iJ ^th ;h, •' '«"'"'' °^ "'^ intervention must stand or &U with the seriousness or otherwise of the apprehension t^ an aggressive propagandism of revolutionary prindX ^ contemplated by the French Convention. ^ Cdoubt Z donner des ordre, aux generaux dis armies pLcaise" pot ^&lf^^:z^^,:°j:Zn':!T' ^-'^ '^' ''^^ ••''-» «o on. w. .hall b« compel"" to «kth° Fr^nchT '™'"^- /' *^ INDEPENDENCE j, •ecourir le. dtoyens qui auraient ete ou qui wraient vex€. ponr la cau«; de la hberti.' It is easy \o »y iow that the menace was never more than verbal, but it must have appeared terrible enough to those who viewed with deepen- ing apprehension the conceptions of la liiertf which were growing in French ferour. S- The Holy AUiance.-The doctrine under considera- uon was pushed to wholly inadmissible lengths by the Holy AUiance, the pretensions of which are of great historical in- Sin^'Ti.*"" "• "«=■" 'P^^-g by revulsion the Monroe" IJoctrine. The parUes to this understanding were the rulers of Russia. Austria. Prussia, and France. Setting aside the idealm ^nge contributed by the dreamy mind of the Emperor Alexander, the object, of^the Alliance as developed ^iZ Congresses of A«.la-Chapelle. Troppau. and Laytoch were P^.'^'T Li ^ "'^^'^ ""^"S ^""^ Austria. Russia, and Jr^ kW ""' ""t/n^of .a vast conspiracy against aU «tabhshed power, and against all the rights consecrated by that social order under which Europe had enjoyed so many centunes of glory and happiness.' , . . They regarded M dmvowed by tie pnnciples which constitute the public ^ f ^,"T f P^««>°ded reform operated by revolt and open h^uhty^ Lord Castlereagh's deVpatch in reply" tu beeu often referred to: such principles "were adlpLl to pretext for interfering m the internal concerns of its different TT,l • M ?'^°"g^°° government could be more prepared than the Bntish Government was to uphold the riX of any sute or states to interfere, where their own immediate purity or essential interests are seriously endangered by the m^emal transactions of another state. It regarded the mp. t«>n of such a right as only to be justified by the stroneert -cesmy, and to be limited and regulated thereby! . . Ih" ^3u -^OTernmeni regarded its exercise as an exception to ^«1 principles of the greatest value and importance, and as one that only properly grows out of the special circum- ' Janiury 19, i8ji. s* INTERNATIONAL LAW •tancw of the caae : but it at the lame time coniidered that exceptions of thw description never can, without the utmost danger, be so fer reduced to rule as to be incorporated into ... the Institutes of the Law of Nations.' 6. The Monroe Doctrine— In 1823 the powers to whom the despatch was addressed had under considera- tion the propriety of helping Spain to subdue her rebellious bouth American colonies. Proposals were actually made to hold a congress to consider South American affairs. Mr. Canmng, then Foreign Minister of Affairs, suggested to the Aniencan minister in London that any attempt by Europe to decide the fate of states, so nearly connected with the United States by community of geographical and political interest as the South American Republics, ought to be most lealously watched. Out of this suggestion arose the cele- brated Monroe Doctrine, which was embodied in the annual message of President Monroe in 1823. It contained two distinct statements : — TT '•■ '}V'* ' P"°PP'« '" "'>'cl> the rights and InteresU of the United States are involved that the American continents, by the tree and independent condition which they have assumed and maintein, are henceforth not to be considered as subjects for colonisation by any European power. ». 'With the existing colonies and independences of any European Power we have not interfered and we shall not inter- tere, but with the governments who have declared their in- dependence and n; iiatained it, and whose independence we have on great consideration and on just principle acknowledged we could not view any interposition for the puipose of oppressing them, or controllmg m any other manner their destiny by any European power m any other light than as the manifesUtion o{ an unfriendly disposition towards the United States.'' T, ''■. The lawyer is not concerned with the wild speech ol President Grant in 1 870 : 'He hoped that the time was not iar distant when in the natural course of evenu the European .u' i"*^ *'*i'^ '"' "*' ''"'o""' <"«"> of the Monroe Doctrine in the Tima for January 8, 1896. INDEPENDENCE 53 connection with the continent would cea.e,' but need only notice the attempt, which have been made to treat the doctrine as a part of international law, and inquire how far they can be supported. Putting on one side the self-denyinR ordinance which precludes America from interference with tnropean questions, two principles are contended for. which may be respectively termed :— I. The non-colonisation principle ; a. The non-intervention principle. '' It is material to notice that the assertion of each was elicited by particular circumstances : the first by a Russian attempt to acquire the North- West Territory, the second by ^e designs of the Holy Alliance. In 1895, however, in cSn7^>,'° ^°^f'"u °i ^«"=«'»l»^ '7, 1895, President Ueveland observed of the doctrine: « It may not have been admitted in so many words to the Code of International Law : • i.rT.'° ^"""^uonal Councils a nation is entitled to the rights belongmg to it, if the enforcement of the Monroe i^T'rJ' "eT'^'^g .*«= ™y j"«tly claim, it has its place m the Code of International Law as certainly and surelv as If It were specifically mentioned.' A more completely circular argument was never devised, and the greatest American wnter in international lawi has taken the other view s^ongly: « The declarations are only the opinion of the Administration of 1823, and have acquired no legal nUZ Z '^°-"°5- °° ^"^ <^" hand, they have often been insisted upon by American sutesmen, and have become more and more a settled principle of American policy. In 1824, when a general negotiation was in progress between this country and the United States, the Mseruon by ^e atter of the non-colonisation principle was met by a refusal on the part of Canning, who represented this country, to proceed any f\,rther in the Anglo-American controversy with Russia. "The English view ^s uneqnivo- ^ DuxM, note to Wheaton, § 67, note 36. eithJrti:.ro?'Hot t/si'^"',s:-i!«° <"««'' •«'-- ^y 54 INTERNATIONAL LAW cally placed on record that Great Britain conridered the whole of the unoccupied part* of America as being open to her future settlemenu in like manner aa heretofore. 8. Venezuela. — It is, howeTer, on it* intervention side that the doctrine has attracted mo*t attention. The American contention in the Venezuela negotiation* in 1895 far ex- ceeded the *cope hitherto claimed by the mo«t extenrire commentator* on President Monroe's message. A long- standing dispute between Great Britain and Venezuela a* to the proper boundary between the Republic and British Guiana became acute in 1895. The British claims were finally affirmed in the form of an ultimatum. Venezuela, it need hardly be said, is a sovereign independent sute. Under these circumstance* appeared the me**age of President Clereland. The material portion* of the me«*age were a* follow : — 'The balance of power ii jastly a cause of jealous anxiety among governments of the Old World, and a subject for our absolute non-interference. None the less is the observance of the M(Hiroe Doctrine a vital concern for our people and their government ... If an European power, by an extension of Its boundaries, takes possession of the territory of one of our neighbouring republics against its will and in derogation of it* rights, It is difficult to see why, to that extent, such European power does not thereby attempt to extend its system of govern- ment to that Dortion of this continent which is thus taken. . . . The dispute has reached such a stage as to make it now in- cumbent upon the United States to determine, with suflScimt certamty for its justification, what is the true divisional line between the Republic of Venezuela and British Guiana. . . . I suggest that Congress make an adequate appropriation for the enenses of a commission, to be appointed by the Executive, vraich shall make the necessary investigation and report upon the matter with the least possible delay. When such report is made and accepted, it will, in my opinion, be the duty of the United Sutes to resist, by eveiy means in its power, as a wilfiil aggression upon its rights and interests, the appropriatirai by Great Britain of any lands, or the exercise of^govemmental jurisdiction over any territory which, after investigation, we have detennined of right to belong to Venezuela.' INDBPBNDBNCB S5 9. If the claim* here made are lanctioned by acquietcence ■o a* to become a portion of international law, the doctrine of equality may be finally banished from our text-booki, to be replaced by a legal hegemony on the part of the United Sutet over the whole of the American continents. It is involTcd in the American claim that no European nation can exact redreu from a South American Republic in the only manner in which a demand for redress is likely to be at all t./ectire. Powerful European nations are not likely to, acquiesce in a view which in effect concedes national character to these states while exonerating them from iu correlative re- sponsibilities. Nor is it to be supposed that the sane judgment ot thoughtful Americans will insist on a view so extreme : it is, however, not impossible that political exigencies may in time compel the United States to declare a protectorate over the South American Republics. Such a step, whatever its political aspects, would at least clear the legal atmosphere, and would effectually meet the legitimate American aversion to a violent European irruption into the New World. Until such a change takes olace, the lawyer may dismiss the doctrine with the comment that in its most moderate form it involves an enormous addition to the commonly received conception of the rights conceded to self-preservation. t. Second Ground of Intervention 10. The Ooncert of Powers. — It was stated that intervention was permissible, in the so-ond place, when undertaken by the general body of ci- ilised states in the interests of general order. This ground of intervention is often ignored by writers who acknowledge much more disputable justifications. No writer who derives his views of law from the practice of states, and not from theoretic reasoniog, can refuse to admit it. It has been repeatedly asserted, and its exercise has not been questioned during the present century.* The international • See the very Mntible obiervatioiu of Mr. T. O. Lawrence, Priiuiflu tfburmttiuuil 1.4m, second edition, pp. 242, 243. -TDT-iSr 56 INTERNATIONAL LAW bmh of Greece in 183a wm the result of a European inttrrention in the aiTairt of Turkey j the petulant child, hood of the kingdom thut called into exinence wai •yitem- aucally regulated by the Concert of Europe, and under the lame tutelage Greece has received periodic accessions of territory at the expense of Turkey. By a similar exercise of junsdiction the independence of Belgium was extorted by the gr«t powers in 1830 from the King of Holland, and m 1878 a conditional independence was bestowed upon Montenegro, Rouraania, and Servia. On each of these occasions the act was clearly one of intervention : the juris- diction IS thus estoblished in pracUce, and is not objection- able in theory. Unanimity of the great powers is the best guarantee against individual self-seeking. 1 . J!.?!'*i'?r""* '" '5* ''" ^"^ ""''« '« impotiihle to limit the •ctmty of the concert of powers to European complicaliont. At the time of writmj (June »3, 1900) • highly interesting emriment ii b proptt m Chins, where it teemi probable that the prototol tb M. M&uimni, m which the power* are believed to have concurred, will be subjected to severe strain. An admirable statement of the condition* on which concerted intervention depends was made by M. Delcasse in the French Chamber on June 1 1. The French minister observed _ For the second time recenUy the legations have been obliged to demand troops of the naval commander*. The common peril dictates resolutions to the powers. I do not know if they haw divergent views, but the affirmation of their solidarity is the surest guarantee for the safety of each. The powerlessness of the Chinese Government to •uppres* an insurrection which does not appear to inspire it with either fear or surprise is becoming irremediable, so that new and serious mis. fortunes must be expected. I have instructed our minister, at whose disposal I have placed all our forces in the Far East, and others if required, to keep himself in constant communication with his coUeaimes of the diplomatic corps whose accord has not ceased to be complete U .l«!'/r".!l' T""?'' t"*"' ' "" •P"''''>8. » '^r » being taken, or is about to be taken, by the various legation, to call the attention of the Chinese Government for the last time to the imperious necessitv of puttmg down a movement which imperils bnth th» .jr-b* snd itKlf as weU as the interests which the powers cannot disregard. If thi* appeal were to remain without effisct, the powers would no looter have to take counsel with any one but themselves, and to take into account nothing bat the mterests of civilisation j and I imagine that if a mis- INDBPBNDBNCB II. It it belicTcd that the two groundi of intervention which h«ve been conaidered are alone consistent with modern practice. It is sometimes suggested that on humanitarian grounds one nation is justified in inter- rening to pre" _ 'lices shocking to humanity within the territory o. nothcr "^he occasional benefiu of such interren ■ . „|H , eighed by its liability to c -.Utt (libit, is regrettable that inter- en by implication, the ', ' M .1 practice tlie number of IB .I'll tc md to be considerable, and r.-. school ■< are content to distinguish c^d applicable respectively to abuse. AK t;„c'r 11\ national law si oiilc suppression of i i ■ n national "7 >n Qv, ...i thinkers oi very Ii'-l between the niojai individuals and fv'„ ritiea.' Sir William Ha'rcourt, in his Lttttrt of Hiiloricui, .ijis described humanitarian intervention at a high act of national policy over and beyond law. This view is indecisive unless such acts are to be with- drawn from the purview of international law altogether, for their legal or illegal quality requires determination all the more imperatively that they have a 'high political' character. It is often suted that intervention depending upon a treaty right is permitted, but the claim is perhaps somewhat academic. If the arrangement is merely dynastic it cannot be supported, for the sovereign who hat exposed his country to an intervention intended to secure his dynasty, has clearly exceeded the limits of his competence as a national agent; if, on the other hand, one country has entitled another to intervene indefinitely in its domestic underitanding were Heitined to arise between them, it would be at to which would be ready the firtt, which would anemble moit rapidly the molt eflfectual mean) to defend with its own cauae the car if civiliiation hself.' — Letter, date June ii, from the SunJari corretpoodent in Parii. > Biamarck't cynical remark, that he placed the bonea of a Pome- ranian grenadier above all Armenia, has been often reprobated and ii ofienaive in exprewion, but the general prmciple of which it waa only a particular application ia commonly acted upon by itatetmen of every country, and even Mr. Bright atronely denounced the views of those who wottld make England the Knight-Errant of Nations, S8 INTBRNATIONAL LAW concern*, the derogation from independence would probably not coniiit with the retention of international character. Intervention in a foreign civil war has been nmetimei declared legal, but the caae hardly requires separate con- sideration. If undertaken at the inyitation of both parties, it is mediation by request and therefore unobjectionable; if at the invitation of one, Mr. Hall's observation is un- answerable : «... The fact that it has been necessary to call in foreign help is enough to show that the issue of the conflict would without it be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal represenutive of the state.' CHAPTER n PnprteUry mad Quasi- Proprietary RIgbtt and Duties I. Th« right* and duties of nations considered at pn^ pnetors may be arranged under three heads :— 1. Rights over land. 2. Rights over water. 3. Rights OTcr miscellaneous objects. I. Rights over Land A state may exercise control over land in a variety of degrees, directly as an integral part of its dominions, or indirectly as over a protectorate or sphere of influence. In the two cases last mentioned it is a question of feet in each case whether the rights claimed are proprietary at all in their character. A state may acquire territory in a variety of ways of which four are sufliciently important to be mentioned here. These are Occupation, Cettion, Cmguett, and Pretcription. Occupation is a good root of title to territories altogether unoccupied or inhabited by savages, who, 1^ a humorous fiction, are considered incapable of possessing territory.^ • It ii better, I think, to tute tbU propotitioii boldly thu lUce PhiUtoore to ucept the .rgoment, 'The North Americ«n Indiuu would h«ve been entitled to have excluded the Britith fur-traden from tUew tanting-groundi 5 and not harinf done 10, the latter muat be coMidered at having been admitted to a joint occupation of the Urritorv, and thna to have become inntted with a aunilar right of excluding •tiangera from inch portioni of the country as their own indoatrial operatwu.' yy&r ^w " J^l ^■■P^ 60 INTERNATIONAL LAW The rules of occupation were borrowed wholesale from the very sensible provisions of Roman private law. Discovery of new territory by a private individual was generally held to confer a good title on the state to which he belonged. For a time the rule was not practically inconvenient, but the discovery of the New World subjected the doctrine to a stram which it was wholly unable to support. The rule which originally determined the right to a derelict article m the streets of Rome was applied to the vast territories which each year's maritime adventure was disclosing to die nations of the world. The pretensions of Spain and Portugal produced a reaction until in our days 'prior discovery, though still held in considerable respect, is not universally held to give an exclusive title.'i Unless followed up by settlement, 'discovery is only so far useful that It gives additional value to acts in themselves doubtful or inadequate.'* Private individuals, bearing no com- mission from their government, are not capable of legal occupation ; but acts of control done by such persons, if ratified afterwards by their governments, may be retrospec- tively validated. The underlying principle is that occupa- tion to be valid must be reasonably effective, having regard to the circumstances of the particular case. Formal annexation, without more, is not therefore a root of title, though the fact of such previous occupation may lend a different colour to later acts which, if they stood alone, would be indifferent or indecisive. These conclusions have been stated with great common sense by Mr. Hall : «— ' ' It can only be said, in a broad way, that when territory has been duly annexed, and the fact has either been published or has been recorded by monuments or inscriptions on the spot, a good title has always been held to have been acquired as against a state making settlements within such time as allowing for * Maine, bitnutiuuil Law, p, 66, * Htll, ed. 2, p. 108. * U. S^ pp. log, 109. PROPRIETARY RIGHTS AND DUTIES 6i iccident^ dicumstances, or moderate negligence, might elapse before a force or a colony were sent out to some par. o? the liid intended to be occupied ; but that in the course of a few years thj presumption of permanent intention afforded by such acts has died away, it they stood alone, and that more con- tinuous acts or actual settlement by another power became a stronger root of title.' "^ >^ <= a 3. It is clearly important to define the area over which a geographically partial act of occupation may be allowed to extend. In the early days of American colonisation extravagant pretensions were put forward by both England and France, and the view was probably held in this country that occupation of the coast carried with it the whole continent to the Pacific Ocean.i A more reasonable rule IS now generally adopted that occupation of a coast shall comprehend the intenor as far as the watershed of the river flowing into the sea at the point of occupation : laterally such occupauon embraces the tributaries of such rivers, and the termory covered by them.2 It may be supposed that the area within which the doctrines above stated can be pracucally applied is rapidly lessening, although in recent tunes the opening up of the African continent has brought them into prominence. The future lines of African colomsation have now been generally determined by agree- ment, but useful illustrations of the principles of occupation may still be drawn from the Oregon territory dispute between this country and the United States in 1844,8 and the Louisiana dispute between the latter country and Spain in 1803.* ' 3. Occupation can only come into play when there is a ' Tlwre wwno limit specified in the EogUdi colooial tranti .„J * Srititi and FortigH Statt Psfers, i8i7-i«i|. 63 INTERNATIONAL LAW ret nulliiu to be occupied, but the requirement it of course satisfied when territories preTiously occupied by a civilised country are definitiTely relinquished. In the Santa Lucia negotiation between this country and France in 1763, it was admitted that abandonment for ten years may be treated as definitive. The Delagoa Bay dispute between this country and Portugal in 1875 established the principle that, when the power to control is never lost, occasional acts of sovereignty are sufficient to keep alive a title by occupation. The question of African colonisation was considered at the Berlin Conference in 1885, and an agreement arrived at by all the great powers, including tlie United States, which is likely to avert mis- understandings in the fiiture. The signatory powers bound themselves to acquire no land and assume no protectorates on the coast of Africa without notifying one another of their intentions. It is posohle that the convenience of the practice may procure its reccptioD in regions other than the Africa coasts. 4. Vreaoiii«to». — ^The acwiisitioB of territory by cession and conquest oeedt no ietMM notioe, but the place of pre- scriptioo in intemstMoal lw» may be shortly considered. The aid Roman pie* for pr»»criptioo ne dominia verum tSutiut in iitetrm etitnt a^piiet in B&e abstract with equal force to intefnaaoDal law, and the majority of writers are agreed tha iMetwieaaJ rights may be acquired and lost by lapse of tiiae. The doubts, however, suggested by De Martens ' aad Kluber " cannot be dismissed as entirely fanciful. In municipal systems the prescriptive acquisition of rights is >rdinarily regulated by the maxim, Fraut omnia vitiat, and so guartied, the limitation which ownership undergoes for its own protection does not come into conflict with the general conscience. In international law ench a reservation has no place, and a fraudulent root of title is as good as .mother where time has consecrated the original oifence. It ' PrMt, 8 70-1. • Lt Jnit dn gtns m dirnt dt I'Ea oft, % 6, m PROPRIETARY RIGHTS AND DUTIES 63 may be graTely doubted, however, whether in practice nation* will aubmit to rules which bear hardly on their material inter- MU and which are easily evaded by reason of their vagueness. The difficulty is increased by the failure of international law to supply positively a generally applicable period of prescrip- tion. The provision that rights may be acquired by enjoy- ment for a period 'whereof the memory of man runneth not to the contrary,' implicitly requires that it shall be de- termined how deep are the roots that bind human memory to the past. To say ' rights may be prescriptively acquired, the precise period of prescription is uncertain,' is merely to recommend academically acquiescence in the ttatut quo. Here as elsewhere the test is practical, and it would be in- teresting to learn what period of limitation the more precise of the text writers would assign to the French aspirations towards Alsace-Lorraine. It is surmised that considerations of time would weigh lightly with French politicians if German embarrassments afforded an opportunity, nor is it beUeved that contemporary opinion would judge such an attitude harshly. It is, however, useful to observe that m some degree every civilised nation must ultimately &li back upon a prescriptive root of title. The recognition of the debt is often obscurely made, yet to its influence may be traced that instinctive reverence for 'accomplished facts,' which, as a force making for tranquillity, is of incalculable international importance. S' The nature of the rights involved in international ownership, or the dominium emineiu of the state, is of course of a bomewhat peculiar character, but as between two distinct communities, ownership may be described well enough in Austin's well-known words: 'The right over :i determinate thing, indefinite in point of user, unrestricted m point of disposition, and unlimited in point of duration.' Such a right, though difficult to define positively, is familiar and intelligible enough in its general features. Greater difficulties beset the attempt to determine exactly the legal position where the claims are less exclusive : it is at this 64 INTERNATIONAL LAW point that seriona problems, already noticed from a slightly different point of view, are raised by the extensions of territory variously described as protectorates, spheres of influence, chartered company territory, aad leasehold territory. It has been suggested already that a protected state controlled internally and externally by the protecting power has in fact become a part of its dominions, differing from the rest merely in the possession of a more hkely prospect of future emancipation. A sphere of influence is the phrase vaguely used to describe an area which the power enjoying it wishes to possess but is not prepared immediately to occupy. To proclaim a sphere of influence is in fact to say 'hands off' to possible competitors. No powerful state would allow foreign interference within the area of a sphere of influence, and the attempt to mterfere would probably be treated as a casvt belli: under these circumstances it is both convenient and accL'rate to include such spheres among the territorial belongings of a state. The latest concession to international sensitiveness is to be found in the ' leasehold interests ' which the delicacy of continental diplomacy has introduced in the far East. The political advantage of such « leases ' is to be found in the easy gradua- tion of the asiiimilative process, but their legal importance is not considerable. At a given moment authority and jurisdiction are resident either with the power which grants, or with that which receives, the lease. In the first case concessions of unusual scope and vagueness, but fiilly con- sistent with a continuance of the prior ownership, have been conventionally made ; in the second there has been an actual transfer of territory from one power to the other. A rough but usually suflicient test is the incidence of responsibility to foreign powers. If a European country obtains a 'lease' from China, fortifies its acquisition, and undertakes responsi- bility within its limits, no devices of nomenclature can disguise the charge which has been covertly effected. I MU \ — PROPRIETARY RIGHTS AND DUTIES 65 ». Rights oti» Wati» 6. The Ocean. — For many centuries the ocean was gener- ally admitted to be a possible subject of national appropria- tion. The character of the pretensions put forward was well suted by Cockburn, C. J., in The Queen v. Keyn : > «. . From an ewly period the kings of England, possessing more ships than their opposite neighbours, and &ing thence able to sweep the channel, asserted the right of sovereignty over the narrow seas as appears from the commissions issued in the fourteenth century, of which examples are given in the Fourth Institute, in the chapter in the Court of Admiralty, and others are to be found in Seldcn's Mart Clausum, Book 1. At a later period sti)! more extravagant pretensions were advanced. Selden does not scruple to assert the sovereignty of the King of England over the sea as &r as the shores of Norway, in which he is upheld by Lord Hale in his treatise, 'De jure maris,' Hargrave's Lanxi tracU, p. 10. 'In the reign of Charles u. Sir Leoline Jenkins, then the Judge of the Court of Admiralty, in a charge to the grand jury at an Admiralty Sessions at the Old Bailey, not only asserted the King's sovereignty within the four seas, and that it was his right and province " to keep the public peace on these seas "—that is, as Sir LeoliiiC expounds it, " to preserve his subjects and allies in their possessioDc and properties upon these seas, and in all free- dom and security to pass to and fro on them, upon their lawful occasions," but extended this autliority and jurisdiction of the king:— '"To preserve the pubhc peace and to miinuin the freedom and security of navigation all the world over, so that not the utmost bound of the Atlantic Ocean, nor any comer of the Mediterranean, nor any part of the South or other seas, but that if the peace of God and the king be violated upon any of his subjects, or upon liis allies or their subjects, and the offender be afterwards brought up or laid hold of in any of His Majesty's ports, such breach of the peace is to be inquired of and tried in virtue <rf a commission of oyer and terminer as this is, in such country, liberty, or place as His Majesty shall please to direct- so long an arm hath God by the Laws given to his vice-regent die King." ' 1 Exchequer Oivition, pp. i7*-5. I 6« INTERNATIONAL LAW To be ture, thit leanied civilian, as regards these distant teas k^k'i. " °*J' "overeigns have a concurrent jurisdiction which, however, he by no means concedes to them in these so- .?it:»?"fl ""f; '" *."• **>' ,'■'*"»' ^y » *°"isn ship to strike the flag and lower the topsail to a Icing's ship he treats ai amounting to piracy. o j- <; "<=«. h 'Venice, in like manner, laid claim to the Adriatic, Genoa to the Ligurian Sea, Denmark to a portion of the North Sea. The l-ortuguese claimed to bar the ocean route to India and the Indian seas to the rest of the world, while Spain made the like assertion with reference to the West.' 7. The claim was sometimes pushed to practical con- sequences. Thus, in 1636, England compelled the Dutch 5? pay A JO.000 for the privilege of fishing in the German Ocean, and more than one war between England and Holland sprang from the Dutch refusal to lower their flag m recognition of the maritime sovereignty of the former country. Until 1805 British naval officers were instructed by the Admiralty regulation to compel foreign ships to •strike their topsail and take in their flag' within the king's reas, which were declared to extend to Cape Finisterre But, as Cockburn, C. J., expressed it, 'these vain and extravagant pretensions have long since given way to the influence of reason and common sense,' 1 and the American attempt to revive them at one stage of the Alaska Territory dispute was not seriously pressed. The American claims to an extent of water 1500 miles by 7C30 were, ironicaUy enough, denved from a Russian ukase, the revocation <rf D M^'*' tJ^f;- ■*• ^"^ •«»*""■' •• '837 Captain FurnMux, R.N, in hit H,s,cjy of Truth,, obiervet (Preface, xiii) , .The limit, of the Britiah juriidiction on the seal extend generaUy from Cape Stadelard in Norway to Cape Finiiterre. ... In having per- mitted a iilence m mo.t of her treatiei at the termination of the Ute war . . . on the question of nationi navigating unconditionaUy in the ftitiah sea., England ha. evinced a .pirit of moderation, and pr.)ved ttat she doe. not contend for a vexation, exerciw of power The writer judicioualy add. : ' It i. to be hoped the bleuing. of peace may long permit u. to regard these queition. as of no vital importtoce to the mtercau of Great Britain.' ' i IP PROPRIETARY RIGHTS AND DUTIES 67 which t^ United States had been inrtrumenttl in procuring. The arbitration tribunal, which gave ita decision in 1893, made «hort work of the attempt to extend the territorial ranidiction of Alaska. Nemo dat quod mn habtt, and the Emperor Alexander 1. could not paw on to the United State* jurisdiction which he himself had illegally assumed. It may now be stated quite generally that the sea lie* open to the unimpeded navigation of all, but that an exclusive junsdicuon may be asserted by each country over that i)or- - tion of It which is closely adjacent to its own territory, Ihe precise extent of the area covered by this qualification was not unnaturally a source of contention among the eariier junsu.J Albencus Gentilis allowed one hundred miles from Jore, Valin as far as the lead line could find bottom, while Baldus and Bodin were content with sixty miles. The true principle already indicated by Grotius was deariy stated by Bynkershoek, 'Potesutem terras finiri ubi finitur armorum VIS. Control over the sea, he elsewhere says, extends •quousque tormenta exploduntur.' » The same writer pro- posed the three-mile limit which has since been generally adopted. It is, however, material to notice that the limit was appointed ra reliance upon dato which are no longer apphcabie; cestante legU ratione cetsat tl ijua lex, and It seems reasosable to extend the area of control coinci- dendy with the increasing range of artillery. Thus the Traite det Priiet Maritimej, published in 1855, lays it down that the portee du canon is the proper limit of territorial waters. 8. The Bang's Chambers.— A somewhat more extensive f claim IS doubtfully allowed «in respect to those portions of the sea which form the ports, harbours, bays and mouths of nvers of any state where the tide ebbs and flows ' j* thus J. i!^A^A ""'' I"'"'.''' "'"""• ' ' C""* ■'» «•'=. on point fort diffi- tJ r.1. ,*°. "™ «■""' ^"« '=«*''' •''' "™'' V^^ "t raendue de i I-H ir.rr uttoralc. I » Und cootrol ends with the range of wesponi. As fsr M ths r52ge of ofiiniive weapon.. * Wheston, % lit, i. 68 INTBRNATIONAL LAW «mder the name of the King'i Chamben it u believed that All country claimi juriidiction OTer the water encloMd between itraight line* drawn from headland to headland. A umilar claim, but one proportionately more impotinK, II put forward by CbanceUor Kent> on behalf of the Umted Sutet: — 'Coniidering the great extent of the line of the American coatts we have a nght to claim, for fiical and defenuve immla- tioni, a Iibetal extenuon of maritime juriidiction : and it would not be unreasonable, ai I apprehend, to assume for domestic puipotes connected with our safety and welfarj, the control of the waters on our coasts, though included within lines stretchinir from quite distant headlands, as for instance from Cape Ann to Cape Cod and from Nantucket to Moiitauk Point, and from that point to the capes of the Delaware, and from the south cape ot Florida to the Mississippi. It is certain that our government would be disposed to view with some uneasiness ancT sensibility, in the OK of war between other maritime powers, the use of the waters of our coast, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes." With thii view, howerer, may be compared the opinion expreased by an American Secreury of Stete in 1875, in a deipatch to this country : — •We have always undentood and asserted that pursuant to public law no nation can rightfully claim jurisdiction beyond a marine league from its coast' ,. 9* Wt«B. — In considering ownership over rivera, a difficulty has been sometimes felt, or affected, in dealing with those whose waters flow over the territory of more than one country. The riparian inhabitants of a stream which disembogue* itself into the sea in foreign territory are deeply concerned to maintain an open passage; and this interest combining with a general perception that wantonly to deny such passage was an unfriendly act, has introduced some confusion into the law, Grotius himself and many of hi* most eminent successors failed to distinguish between the obUgations of comity and of law. Vattel recognise* a right, * S<i. 1844, CnmMUariti, voL I p. 29, m f 1 ;rjf% PROPRIBTARY RIGHTS AND DUTIES 69 bat calls it ' imperfect ' ; a not very happy way of laying that in hit opinion, free river traniit thould be enforceable from all nationi, but in fact it not. Thejiu innoxii traiuihu^ hai been aereral timet alleged by American diplomatiiti. In 1783, in a ditpte with Spain orer the doting of the Miuitiippi, the freedom of riTeri to 'riparian inhabitant! wat declared to be a lentiment written in deep character in the heart of man,' a reference to authority which recallt the older appeals to the law of nature. In the St. Lawrence dispute between the United States and thit country in 18*4, the same claims were supported by similar arguments. 'The right of the upper inhabitanu to the full use of a stream rests upon the same imperious want as that of the lower, upon the same inherent necessity of participating in the benefit of the flowing element.'* These somewhat rhetorical statements are hardly supported by either theory or practice ; on the face of it the claim is exceptional, and an undischarged onus rests upon those who affirm it ; in practice it has not been admitted, and the right of transit hat been ordinarily tecured by conrention. An Act of the Congreti of Vienna m 1815, framed purtuantly to the Treaty of Parit in 1814, declared that the use of rivers flowing through the territories of different powers should be free to the navigation of all. In 1831 the freedom of the Scheldt, which had thus been opened, was reaflirmed by the treaty of separation between Belgium and Holland, and by the Treaty of^ Paris in 1856 the Danube was declared to be open to commerce. The treaty of San Lorenzo el Real in 1795 opened the Mississippi to American navigation, and the St. Lawrence controversy, already referred to, wat settled in the same manner by a treaty between this country and the United Sutes. Under this agreement the American Govern- ment purchased the freedom of the St. Lawrence by throw- ing open Lake Michigan to English commerce. > Ri^t of iurmlcH trtntit. • BHiiii nd Fmip Stsu Psfri, 1830.31, pp. 1065-1075, ut Hall, •d. 2, p. 139. K_l r ?7 % '•<*>corr ntouinoN tbt chait (ANSI ond ISO TEST CHART Na. 2) la 12.8 1^ itt |2£ ■ 22 S US ■ 2.0 ^^114 ^ ■^IPPLIED IN/HGE Inc t6S3 East Main StrMt RochMtw. New York 14609 USA (■^16) 482 - OJOO - Phoo. (716) 280 - 5969 - FOK 70 INTERNATIONAL LAW Rights ovbr MisatLAuiovs Objecti 10. Under thi> head mutt be .hortly considered the rights which states possess over property which is not situate within the territory, whether or not such property IS within the jurisdiction of another state. In this daw tall all vessels, public and private, which are outside the terntonal waters of the country whose flag they fly. Juris- dictional nghts over ships will require treatment elsewhere, but It IS convenient to notice in this place the general character of such vessels. ^ Public vessels are all vessels in the exclusive employment of the state whether such employment be permanent or Tir^'u ^\V^^^^ character of the yc^\ must be established by such a commission to the commander as will be recognised in his own country. The production of his commission by the commanding oflicer is sufficient evidence of the character of his vessel, and in practice his word is usually accepted. When the United State. Govermnent protested against the reception of the Sumter in Curacao Harbour, the Dutch Government attempted to evade respon- sibility by the contention that «le gouvemeur neerlandais devait se contenter de la parole du commandant coachee par §cnt. An affirmation by a government that a par- ticular vessel IS a public ship of the state is of course conclusive. Thus in the Parlm.nl Belge^ Brett, L. J., dehvering the judgment of the court, observed :— 'The ship has been declared by the sovereign of Belgium, by the usual means, to be in hi, possession as «,^reign, Id to S a |«^.c vessel of the state. Tt seems ve^ difficurto say th« any court can mquire, by contentious testimony, whether that declaration is or is not correct To submit to such an inquirv h^w^k » /"H" I'- *° ""^"'i' to it« jurisdiction. It has teeh held that if the ship be declared by the sovereign authority by the usual means to 1« a shi p of war, that declaration cannoi Z • °2'^**^'«^.i. i«3 I H.U,ed. t,M6«. j r. D. at p. S19. PROPRIETARY RIGHTS AND DUTIES 71 inquired into. That was expressly decided under very trying circumstances in the case of the Exchange.' Whether the ship IS a public ship used for national purposes seems to come within the same rule. A private ship, to make good its claim to nationality, must have conformed to the rules imposed by the state to which it claims to belong. Such rules will ordinarily deal with the flag under which it sails, or the nationality and domicile of its owners. ' 7 Cruch. 116. CHAPTER III Rlghu and Outlet lacUeat to JurlMtlicttoa Ths nibjectB which require treatment onder the head of jurisdiction are arranged in the following order :— 1. Jurisdiction within the Territory, 2. Exemptions from the above Jurisdiction. 3. Jurisdiction without the Territory. 1. Jurisdiction within ths Territory ' 1. A state enjoys rights of jurisdiction in varying degrees over (i) its natural-born subjects, until such persons have changed their nationality in a manner recognised by its laws ; (u) naturalised subjects; (iii) aliens resident in, or passing through, iu territory. 2. Natnral-Born SubJectB.— Normally, of course, « child is bom in the country to which his parents belong, and no question can arise as to its nationality. Where, however, it is bom in a country in which its parents are aliens, two different views are possible. According to the first, which was at one time almost universally held, territorial considerations were paramount, and the child's nationality was determined by the place of its birth ; according to the second the decisive criterion was the nationality of the father, and the place of birth was treated as accidental. A rigid adherence to the earlier view would have involved the con- elusion that a child bom in France of an English mother on her way to Switzerland was a French subject, whUe the later would have made it possible to impress as British RIGHTS INCIDENT TO JURISDICTION 73 ■objects naturalised American citizens of English extraction to the third or fourth generation. Both the territorial principle, and that which depended upon parentage, were, in &ct, incapable of extreme logical application. It is not (orprising to 6nd that under these circumstances national practice varied. By the English common law all persons bo.-n on English soil were British subjects, and statutory additions thereto declared the children and paternal grand- children of natural-born subjects' to be themselves British subjects wherever born. And such nationality could not be affected by naturalisation elsewhere. In the language of Blackstone : — 'It is a principle of universal law that the naturaUbom subject of one prince cannot by any act of his own — no not by swearing allegiance to another — put off or discharge his natural allegiance to the former; for this natural allegiance was intrinsic and primitive, and antecedent to the other j and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed the natural-bom subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolute!/ to another, but it is his own act that brings him into these straits and difficulties of owing service to two masters: and it is unreasonable that by such voluntary act of his own he should be able at pleasure to unloose those bands by which he is connected to his natural prince.' * Statute law has made great inroads upon this doctrine, but it still represents the general rule in England. The American view was similar, though an Act of Congress passed in 1855 declared that the children of American fathers born abroad should themselves be American subjects. Austria, Germany, Denmark, Greece, Norway, Sweden, and Switzerland determine national character by reference to the father's nationality. Russian practice appears to be similar, with the addition that ail persons bom and bred 00 ' Cf. 7 Anne, c. 5, 4 George II, e. 21, 13 George ni, c. 11. * Cmmaatria, vol. i. p. 369, tf. alao the judgment deliTcred bjr Coleridge, C. J., in Itucton «. Dnnnt, L. R, 17, Q. B. D, 58. 74 INTERNATIONAL LAW fi,n„ • ?' a . declaration of alienage in tlie vear follow.ng the attainment of hi, majority^ The children uL?;";;L^e7:iiren^^^^^^^^ rtVlh ^'''""^■' ?-^ »'^- '--^"^nrterrrier: : onor,fi "".T^lity by making a declaration Tal en^ge practice ,, becoming general for each Lte to pi^scrite the condiuon, under which it, own citizens are a? i^rt^ W change the.r nationality, circumstances are still W Ane war between this country and the United StatM •n 1 8 12 sprang from the English attempt oimn^l! Englishmen naturalised in the United State, cC .milar ,n character, though not in exten, w„e put forward between S.^ t^^^" °^ '^^o. The conflict Ls thor wh? 1,1^?^'^™ * 178''* of expatriation.' and Solubl! ""T"^"^ *"-^ Blackstone the doctrine of indiMoJuble aUegiance: nmo potest exuere palriam.* ' Ed. », p. »36. \ J*" J""* of JV' »6. 1889. "d July 2,, ,go,. » No min «n div«t hinuelf 'of hi. n.tionUity?^ RIGHTS INCIDENT TO JURISDICTION 75 American statesmen have at different times taken different Tjewi. On at least one occasion the doctrine of inalienable •llegiance has been affirmed by the Supreme Court, Lut in 1868 an Act of Congress declared that «the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.' This resolution is hardly consistent with the most authoritative practice. Many states recognise the claims of the patria origims by the refusal to naturalise except where the consent of that country has been given : it is moreover the general practice among European nations to impose conditions on the act of expatriation, a practice not to be reconciled with the existence of the absolute light alleged.i Finally a study of recent controversies suggests that expatriation made without permission would not be held in any country to protect a person naturalised elsewhere from the consequence of obligations incurred previously to naturalisation. If these considerations are well founded, each state has the right of determining the conditions under which its citizens shall be at liberty to leave it. Occasions of controversy are not likely to occur in future, unless the person naturalised has failed to comply with these conditions, and in such a case the country of adoption is not entitled to intervene between its new subject and his country of origin. 3- Natnrallsed Subjects.— The naturalisation laws of each state naturally vary in details, and particularly in the length of previous residence required. In a work of this scope it is not possible to give an account of the rules which obtain in foreign systems, but a short statement of the effect of the English Naturalisation Act 1870 ' may usefully be added. Sections 2, 3 deal with the status of aliens. Section 4 is as follows : — 'Any pers on who by reason of his having been bom within » 33 Vict. c. 14. ' Hall, ed. x,p. 145. 7« INTERNATIONAL LAW 111 «^L ?"■ A" ^'W " " "a'"ra'-l»ni lubject, but who also, at the time of hii birth, became under the law of any foreiim itate a subject of such state, and is still such subject may. if of full age and not under any disability, make a declaration of alienage . . and such person shall cease to be a British subject. Any pereon bom out of her Majesty's dominion, of a fiither being a British subject may . . . make a declaration of alienage and . . . shall cease to be a British subject.' Section 6 provides that any British subject who hai become, or shall become, naturalised in a foreign state while resident there, shall cease to be a British citizen and become an alien. Section 7 provides that an alien who hat resided in the United Kingdom for a term of five years, or ha« been in the service of the crown for a like period, and purposes to continue such rrsidence or service, may apply to a Secretary of btate for a certificate of naturalisation. Section 8 contains proyieion. for the readmission to citizenship of 'statutory aliens,' or persons who have abandoned their nationality pursuantly to the Act, and for the purpose, of this section, residence in any British possession will be equivalent to residence in the United Kingdom. Section 10 deal, with the national status of married women and children. A married woman is deemed to be a .ubject of the .ute of which her husband is, for the time being, a subject. A widow, being a natural-bom British subject wi.o has become an alien through marriage, is treated as a 'statutory alien,' and mav be readmitted to citizenship accordingly. The effect of .action ic i, that the loss of British nationality does not discharge from liability for previous act. or defaults hectipn 16 enables the legislation of any British possesrion to pass laws 'for imparting to any person the privileges, or any of the privileges, of naturalisation to be enjoyed by such person within the limits of such possession.' 4- -^ens domiciled In or passing through the Terri- ^^7-—The legal effect, of domicU a«.ume importance in connection with the rule, of war. It i. .ufficient here to nottce that the nature of the juriediction which may be RIGHTS INCIDENT TO JURISDICTION 77 uaertcd over per>ons domiciled in a foreign country by the gOTeroment of that country difPert only in degree, and not in character, from that which i> exerciteable over alit-nt passing through the territory. Both alike are iMltl Umporarii, and are amenable to the criminal jurisdiction for act* committed within its area. They are not liable to military service, and on principle this immunity ought not to be affected, in the case of domiciled persons, by an expression of intention to become citizens of the state in which they reside. It seems, however, to have been admitted in the negotiations between this country and the United States in 1863 that resident foreigners who had made known such an intention might be subjected to the obligation of military service as an alternative to leaving the country within a reasonable period. No right to protection, as against the country of allegiance, or indeed as against third powers, can be based upon a residence which falls short of naturalisation ; and the American claim in the case of Martin Koszta, that a domiciled foreigner, who bad made a statutory declaration of intention to become a citizen of the United States, was entitled to the same protection as a fully naturalised person, was consistent neither with principle nor with authority. 2. Exemptions from the above Jurisdiction 4. International comity and convenience have given rise to several exemptions from the jurisdictional rights above described. Thus a foreign sovereign and his suite are not amenable to the jurisdiction of a state in the territory of which they may happen to be. As Lord Langdale expressed it in Duke of Brunswick v. King of Hanover * : 'There are reasons for the immunities of sovereign princes at least as strong if not much stronger than any which have been ad- vanced for the immunities of ambassadors.' So Vaitei ^ : • S'il est venu en voyageur, sa dignite seule, et ce qui est dfl a la nation qu'il r^presente et qu'3 gouverne, le met a couvert * 6 Be»v. at p. 50. » tO). iv. c 7, 8, lot. 78 INTERNATIONAL LAW de loute intulte, lui asiure dea reipecu et toute lorte d'€e,udt, et exempte de toute iuridietion.' » The immunities of diplomatic agents have been already considered, and by way of final exception may be mentioned the privileges conceded by the practice of nations to armed forces and public vessels of foreign powers while within the state territory. Occasions for the earlier concssion are naturally rare, but the freedom from jurisdicuon has been repeatedly affirmed ; in the case of pubhc vessels, practice has varied greatly though the law it now well settled in favour of the immunity. The luminous mdgment of Marshall, C. J., in the American case, The Exchange y. M'Fadden,' had much to do with the con- sohdation of the doctrine : — •[A public armed ship] constitutes a part of the military force of her nation : acts under the immediate and direct command of the sovereign i 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 affecting his power and dignity. The implied licence therefore under which iuch vessel enters a friendly port may reasonably be construed, and it seems to the court ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territor? she claims the rights of hospitality. . . . Certainly in practice nations ha.ve not yet asserted their jurisdiction over th? public armed liHSL- „ 's ^"'^" »°^"'='e» «"f"'ng a pot open for their rcccpt 1 on > Jurisdiction without the Territory S; This jurisdiction may be conveniently considered under the following heads : — I. Jurisdiction over subjects in foreign countries. II. Jurisdiction over public ships wherever situate. III. Jurisdiction over private ships on the high aeas. IV. Jurisdiction over pirates. ! C'Jf' •' P- »o6 of the judgment in the Parlement Belm. c P D ' 7 CrancK. 478. * ' ' ' • U., >t p. 487. RIGHTS INCIDENT TO JURISDICTION 79 I. Juritdiclion avtr Sutjectt in Foreign C-' ntriet 6. The jurisdiction over eubjects i liden^ in Eastern countries has been already describtd, and depends entirely upon convention. Jurisdiction is alw claimed by most states over offences against their municipal laws committed by their subjects in foreign countries. By the English common law and by American law crime was, as it is technically expressed, 'local,' i.?. Justiciable only when committed, but a long succtssion of English and American statutes has added to the list of offences committed abr-ad for which criminals of these countries may be called to account by the courts of their own countries. Treason,! murder,' homicide, and bigamy » are the principal offences which have been so dealt with in England. It need hardly be said that the jurisdiction can only be made effective if the offender re-enters the country of his allegiance. Connected with the subject now under discussion is that of extradition, or the recovery for justice of criminals who have fled to a foreign country to escape from the consequences of their crimes. It is impossible to allege, as so many jurists have done, that there exists, apart from treaty, a common law right to demand the extradition of criminals. Had such a right existed, there would have been no occasion for the great number of treaties by which it has been expressly secured.^ As Lord Brougham said in the House of Lords in 1842 when the Creole case was under discussion : « What right existed, under the municipal law of this country, to seize and deliver up criminals uking refuge there? What right had the government to detain, still less to deliver them up ? Whatever right one nation had against another nation — even by treaty which would give the strongest right— there was by the municipal law ' »5 Edw. 3. St. 5, c. I. • 14 and 25 Vict. c. 100, § 57. * HeffUr, Eurcfahcit yoOttrruJu, g 63, • 14 snd 25 Vict c. loo, g 9. to INTERNATIONAL LAW of the nation no power to execute the obligation of the treaty. » A fiill account of extradition practice would &r exceed the icope of thii work, but the Engliih nilei may be briefly •tated, to illuttrate the principlet invoWed. The right to deliwr up criminali, or recoTer them, at the case may be, dependt municipally upon three tutute*.* Internationally It II Kcured by about forty treatlei with different foreign power), comprehending almort all the graver offence». The first condition precedent to extradition i« a requisition from thf diplomatic representatire of the state seeking it. This It addressed to the Secretary of Sute, whose duty it it to determine whether the crime in question is of a political nature. § 3 (1) of the Act of 1870 provides that 'a fiigiuve criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character.' The meaning of this qualification was much dibcussed in re Castioni.' Denman, J.,* observed : • The question it whether, upon the facts, it it clear that the man was acting as one ot a number of persons engaged in acts of violence of a political character, with a political object, and at part of the political movement and nsing in which he was taking part.' Hawkins, J.,» cited with approval the observations contained in Stephen's ffutory of the Crimnal Law : « « I think therefore that the expression in the Extradition Act ought to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes, if those crimes were incidental to and formed a part of political disturbances.' If the character of the crime is not political, the Secretary of Sute addresses an order to a magistrate for the issue of a warrant to apprehend the person » Fonjrth Catci and Opinioiu in ConMitutional Law, cf. Kenfa C«WM<«ar»i, |§ 39-41. Edit. 8. , J. r^m.% » 33 »ad 34 Virt. c. 51, 36 and 37 Vict, c 60, 5* tad 59 Vict. CJJ. • ['89O ' Q-B. 149- » /rf., p. 165. \ ^'•''* P- '59. • Vol. II. pp. ;o^ ;,, RIGHTS INCIDENT TO JURISDICTION Si accuied. Notice mutt be wot to the Secretary of Sute of iuch iiiue. After issue the alleged criminal cannot be surrendered for a period of fifteen days at least, during which time the Secretary of State may uischarge the person apprehended after cancelling the warrant. u. Juriidulian aver Public Shift 8. The so-called theory of territoriality holds that ships are, *o to speak, detached fragments of the country to which they belong, carrying with them its privileges, and therefore immune from alien jurisdiction. This view, so &r as it is applied to public ships, gives a fair idea of the immunities which they enjoy. Any interference with them is an act of war, and satisfaction for wrongdoing must be obtained from the government by which they are com- missioned. ■It. JurittBction over Merchant Shift 9. Every state possesses jurisdiction over its merchant vessels and their crews while upon the high seas. Here the facts fall far short of the fiction of territoriality, for the juris- diction of origin gives way in case of conflict as soon as the vessel arrives within the territorial waters of another state. If, however, the local jurisdiction is not asserted, the state to which the vessel belongs may properly exercise its concurrent jurisdiction. The earliest statutes in this country on the subject of Admiralty jurisdiction are 3 Rich. 11. c. 3, and 15 Hen. viii. c. 15, and the English view was well expressed by Bovill, C. J., in the Queen v. Anderson : ' — ' When our vessels go into foreign countries, we have the right, even if we are not bound, to make such laws as to prevent disturbances in foreign ports, and it is the right of every nation which sends ships to foreign countries to make such laws and > I..R. I C.C.R. 166. 8a INTERNATIONAL LAW regulations. . . . The place where the vewel was lying wai in a navigable river, in a broad part of it below all bridges, and at a point where the tide ebbs and flows, and where great ships lie and hover. What diiFerence is there between such a place and the high seas I The cases clearly show that the Admiralty has jurisdiction in such a place ; if so, the case stands precisely the same as if the offence had been committed upon the high seas.' IT. Jurudiclion over Piratei I a Sir Charles Hedges, Judge of the High Court of Admiralty, in his char^ to the grand jury m Nix V. Dawson^ gave the following definition of piracy. 'Piracy is only a sea term for robbery, piracy being a robbery within the jurisdiction of the Admiralty. If the mariners of any ship shall violently dispossess the master, and afterwards carry away the ship itself or any of the goods with a felonious intention in any place where the Lord Admiral hath jurisdiction, this it robbery and piracy.' This definition, which has been cited with approval in the Privy Council, was made with particular reference to the law of England, and it must be carefully noticed that the municipal policy of a particular state may treat as piratical acts which do not bear that complexion by the law of nations. Piracy in international law is defined as the offence of depredating on the seas* without being authorised by any responsible state, or with commissions from different sovereigns at war with each other.» Pirates are iottet bumani generit, and "are justiciable, as Sir L. Jenkins puts it, « being reputed out of the protection of all laws, and privileges ... in what ports soever they may be taken.' * It is of the essence of piracy that the acts com- plained of are done without the authority of a sovereign ' 13 St. Tr. 654. * Bjrnkerthoek addi • or Itnd ' (Siiuiu. Jir. Pui. lib. i. c. xvil.). The exteniinn a restonsbk when the arts are pefformesi by petsoo* -ictcend- ing on the Und from the mi, * Boydi Wheaton, third Engliah edition, p. 193, * ffirh, vol. ii p. 714, cited Wheaton, u RIGHTS INCIDENT TO JURISDICTION 83 (tate. Ai the same authority hai it*: <The law dit- tioguishet between a pirate who ii a highwayman and aeta up for robbing, either having no commission at all or else hath two or three, and a lawfiil man of war that exceeds his commission.' The definition given above makes it im- possible to treat as pirates the bearers of marque. A tendency has been shown from time to time to extend the definition so as to comprehend such persons, but however objectionable the practice of issuing privateer commissions to foreigners may be, the bearers are clearly not pirates, in- somuch as they have behind them a politically organised and responsible society. The doctrine above set forth was much discussed in the case of the Huatcar. In 1877, in the course of a revolution at Peru, the crew of the Huatcar seized the vessel and com- mitted acts of violence on some British steamers. The Peruvian Government by decree repudiated all responsibility for the acts of the ship. Under these circumstances the English commander in the Pacific, regarding the acts of the Htuucar as piratical, engaged her in an indecisive encounter. The Peruvian Government then made a demand for satisfaction on the untenable ground that the acts of the Huatcar did not amount to piracy. Piratical in the vulgar sense they certainly were not, but they were most clearly so within the meaning of international law. So far from there being a responsible, there was not even a belligerent society behind the vessel. She stood completely alone.' > ff^orh, vol. ii. p. 714, cited WhettoB. * iV/. Paferi, Peru, No. i, 1S77. CHAPTER IV Tbe Treaty taw ot Natlona I. TwATiss form the contract law of states, and it is in dealing w.th the.r enforcement and duration tha intemat^Snl" iran^Tnh^re^f'T"''^^"'-' •^"'^ "«''' '° make^S « an inherent element m national independence, and is. perhaps, the most decisive test of the existence of sovereiLy It ,. .mmatenal to the legal view where the treat^Se power resides, and other nations are only entitled to d3 from those w.th whom they contract a de facto ^hVA^To vahable clas.,^cat.on of treaties can, from\he nature of th^ case, be given, for such instruments range over the whole vanety of international relauons. A brLl distnctiont drawn, however and will be discussed later, between such » produce their effect once for all. and are then, Tt^Z^ exhausted ,.^ a treaty of cession, and such as purZ^fo repdate the relations of the contracting parties LTnin" defimte period. The former are usually dLcriLl^ "rans" tory conventions. The so-called treatis of guaramee are rail S"i'nfl!l';^°f'''1 ("'• ?' »• '7°). ^^ ceruinly d«, not under- rate the influence of mternational law observf. . « / ™_i." \" commit injustice. . . .for example, to 'con^^'a^d 1 Z " ri„^ dependent country, a. Poland, i. a crime which no formX. of frea^ Z^thT* ^" ""' "•'• *"'• " "■" <"" of much p" cSl^Uel! o7nait\r"a™iror\^rrs-"^^^ "^^ ^t^ ^ibunalinthe ca. i, ... m„„^^r^.r ' f-^L^'^dTw.^^ ^^ THE TREATY LAW OF NATIONS «S •ometimes difficult to construe, especially when the guarantee is jointly made by several powers. Under this head acts in themselves illegal have sometimes been defended by a supposed treaty right ; in judging the legal quality of such acts it must never be forgotten that a treaty between A and B can under no circumstances entitle either as against C to do acts which are not otherwise permissible. So far as G is concerned the treaty is ret inter altos acta. The treaty by which the great powers asserted the perpetual neutrality of Belgium in 183 1 is a well-known instance of a collective guarantee. It has been much disputed whether, if the other parties to such a guarantee decline to intervene on occasion, a single signatory is released from his obliga- tions. Lord Derby answered this question affirmatively in a controversy which arose as to the English obligations under the Treaty of Luxemburg in 1867: 'In the event of a violation of neutrality all the powers who have signed the treaty may be called upon for collective action. No one of these powers is liable to be called upon to act singly or separately. It is a case, so to speak, of limited liability.'' Mr. Hall ' criticises this view on the ground that ' a guarantee is meaningless if it does no more than provide for common action under circumstances in which the guaranteeing powers woidd act together apart from treaty, or for a right of single action as a matter of policy.' It seems a sufficient answer to the objection that states may normally be expected to abide by their undertakings, and therefore a joint guarantee will ord'uarily secure concerted action pursuantly to its terms, though the circumstances are no longer such that 'the guaranteeing powers would act together apart from treaty.' On principle Lord Derby's contention is unanswerable. If a state undertakes a duty in concert with others, on what principle is it committed •- an isolated performance? It was never pledged to such action, and its unassisted resources may &11 far short of the occasion. * Hantard, third Scr. cUxxvii. 1912, cited by Hall. » Ed. 2, p. 3«i. 86 INTERNATIONAL LAW 2. Porms and Katiflcatlon.— No form ha. h<*n «,^ was «.ttled in thi, form « Lrly as BynkeXic >lhh?h! all to the rule It f^"""" "cognise no exception at .tance.';:tifittion t' X^^^" r':^^^!" "'"■"- represented. WU^J^LTo^Ii^. Z^'lSoltc.^Z' .;• "Jorhls USnf ^' ''' ""^^^ »' «'»-«» u. Where events occurring between signature and at,ficat.on have made it impossible i folfi] the treaty stipulations. '"■ Zt^V^" P*"'?. '"'"'^ •**" '"'^"ring under a Sti^r '""=" '""^ " '^---'l before' -"•:t^tJtr:^';ristSe?S/^- H^^iig^^rdnrH^ Srircotr^^-^deS;^^^^^^^ in municipal law. It follow.Tn™ ►k^ * ^ "^ *«*°=y interests in^lolved: anj t£f rniSy^otplTSal^JS the parties, tnat the negotiations Uee^ pleS^.^£ J ' Sti^if «... D.I It "... * • jrd Bii(lia]i edit, p. j<^. THE TREATY LAW OF NATIONS 87 are more nearly akin to the pourparleri of a contract than to its formation. 3. Interpretation of Treaties.— The text-books contain minute rules of construction for the interpretation of am- biguous passages. The ralue and authority of such state- ments is mconsiderable. Treaties are to be interpreted like other documents upon broad principles of common sense, and refined rules of construction are of little importance when no authoritative tribunal can enforce them. The common-sense view was well stated by Erie, C. J., in an English case : * ' We are to construe this treaty as we would construe any other instrument public or private. We are to collect from the nature of the subject, from the words, and from the context, the true intent and meaning of the contracting parties whether they are A and B, or happen to be two independent states.' 4. Ckmunencement and Termination of Treaty Obli- gations. — ^As soon as ratification of a treaty has taken place, its obligatory effect is carried retrospectively to the time of signature. As Mr. Justice Davis in an American decision ' expressed it : 'It is undoubtedly true, as a principle of inter- national law, that as respects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect confirming the treaty from its date.' Greater difficulties present themselves in determining the period when treaty obligations cease to bind, and it is some- what unfortunate that the most authoritative statement on this point cannot be confidently accepted. The following proposition was affirmed at the Declaration of London in 1870: — 'The plenipotentiaries of North Germany, of Austria-Hungary, of Great Britain, of Russia, and of Turkey, assembled to-day ' in conference, recognise that it 1 M«rryat v. Wilson, i Bos. and Pull. »t p. 439. • Haver v. Yikcr, 9 Wallace, at p. J4. * November X2, 1870. n INTERNATIONAL LAW modify the ^ipit^torX"'^,''^'' ''^""y^ the contracting power, bl °ln r *'"' *' ™°'«'« of inekMic doe. not ^X aJ ilSfw*'''^'' « «andard I, conceded to international aiTN^r"!!;" M-''?* "»»*« k'ld are assigned by the deVlo^." '*'"P°™""n't8 of any t«aty obligation,, and th^ S? If" '° "" ''"""'■°" "^ another ™ay in theory tn^^re ° „«• P?"^ '° '»'«»« •^ ongin in wholly differW^^Hiri '?xr.°" *'"''='' ^ad the declaration as eleSirv " f T* ^'''«°°' '««. choly to think that thTmo« cSisS"""" = 'Itisn.elan- "hould have considered it nL P*"'*" "'^"'e world declaration in the year/s,^ t7- '"• P"' ^°"^"'* '"<='' « « confusion between th- i . ■" "^* »«cni» to rest on Careftlly oK» t1^f»";?'f ""•'' ^'^'^ ""P^cts of th^^a^ following prSnst:: '''"'"""'" "^ '"''y '"7 do4 thj the comn,™nity o shackirrM''' T'^' ^- completely independent ll T m 1? 'o"?" be fore that everyS ,^.„ ''^""'l, ^""""^ ""ere- repudiateaSof in^^r" 'l??"^ ^'^'^^ to -the condi^:-^ whS";^:ed°S'£- '^ '?"" • TH.a H r;?"^°-"= -b^antialSi-;:/--'- wokneu pf international Uw Z A m L"*""/ " " « "«picuo». 'f .given community i, forcibly a„ne«i 1 " 7 '" '*''• *''»■ ™f n^ «nt. led to attempt to reconquer i?. ^"n/' ? "'"'y- '"^ « «ny timt ■n«» equally entitled to mal" ^ood t. .Tnexir* K^J' ^^" «^^ ine rule m the terf m,,. i„ .1. "nnexation by fore <»Ht« believed rct^pL"?';!;^^^^ «Mt It avoid, the rcjuah J i j' " "^ ""'onal practice >U THE TREATY LAW OF NATIONS 89 a. If the obligation is temporary and definite, or if the circunistances under which it was made are "ot materially changed, the breach of it is legally wron; /ul. 5. Effects of War upon Treaty Obligations.— It is here that the distinction already adverted to between •transitory conventions ' or treaties which produce their con- sequences once for all, and treaties which leave outstanding obligations, assumes importance. It is frequently laid down that 'transitory conventions are perpetual,' i.e. are com- pletely unaffected by supervening incidents, including the outbreak of war.' In considering more equivocal cases the circumstances and scope of the particular treaty will become the determining considerations. This was the view expressed by Leach, M. R., in Sutton v. Sutton : 2 ' The relations which had subsisted between Great Britain and America, when they formed one empire, led to the intro- duction of the ninth section of the treaty of 1794 . . and, the privileges of natives being reciprocally given not only to the actual possessors of lands but to their heirs and assigns, it is a reasonable constiuction that it was the inten- tion of the treaty that the operation of the treaty should . . . ot depend upon the continuance of a state of peace.' Recent practice has distinguished between treaties in this respect, but on no very intelligible principle, providing on the conclusion of peace that certain treaties shall revive, and apparently assuming the survival of others." ' Whuton, £/, part iii. c. ii. §§ 9, 10. • I Rum and Mylne, 675. » The Treaty of Frankfort in 1871 between Germany and France expraaly revived treatiea dealing with copyright, extradition, commerce, navigation, and cuatoms. PART III BELLlOBRBNCy, OR THE RIGHTS AND DUTIES OF STATES IN TIME OF WAR •' CHAPTER I Pnbelltgenat Acta. Commeacemeat ot War and ItB Bf/eett I. Betoniou aad Repriaals—The arbitrament of war "final in the dispute, of nations, and the points pre- viously in isme trameunt in rm judicatam> There are. .onaUy held to fal short of war, to which a nation may resort when provoked under circumstances of too little moment to call for a declaration of war. It is always open to the power affected b^ «ich acts to treat their commission as an act of war. The most familiar among them are retorsions, reprisals, and pacific blockades. Retorsion is the marked by unfnendliness. Thus differentiation of tariff may be met by acts of retorsion on the part of the state mjunously affected. Reprisals form the ^propriate ^. to particular acta of wrong, which the injurid party is letermined to resist unless satisfaction is riven. In a passage' which has been often quoted, Vattel says- 'Re- pnsals are resorted to between two states to procure justice Are merged in the decuion. SO ' Dnit dit gnu, liv ■ * 34*. PRBBBLLIGBRENT ACTS 91 for themielTn where it ia not otherwise obtainable, it a nation hat leized what belongs to another, if it refuses to pay a debt, to repair injury, or" make proper satisfaction theretor, the sute injured may seize something belonging to the other and use it for its own advantage till it has obtained the amount of its damage with interest, or it may retain it as a pledge until the wrongdoer has rendered full satisfaction. The property so seized is kept as long as the hope of obtaimng satisfaction remains : when it disappears confisca- tion ensues and reprisals have accomplished their object.' Embargo or sequestration is a femiliar application of the above principle. A well-known instance was supplied by the Don Pacifico incident in 1849, still remembered as the occasion of Lord Palmerston's famous Civu Romanui turn speech. Don Pacifico, by birth in Gibralur, had acquired IJnnsh nationality: during his residence in Athens, his house was plundered by a mob with the countenance, it aj)peared, of some Greek soldiers. He claimed over /;» 1,000, and the British Government, declining the juris- diction of the native tribunals, demanded compensation. Meeting with a refusal, they instructed the British fleet to sequestrate all Greek ships in Greek ports. The commissioners to whom the claim was finally referred reduced the claim to ^150.1 Reprisals may be defended on the ground that they form a convenient mode of pro- curing redress without necessarily involving war. The real character of such acts depends upon the conduct of the state at which they are directed. If it is induced to give the required satisfaction the reprisal ceases; if it refuses, •the retroactive effect . . . impresses the direct hostile character upon the original seizure; ... it is no loneer an equivocal act.' * *; f Ml*c Blockades. — The character of pacific blockades has often been confiisediy stated, and practice has not always been consistent. The name itself is some- ' Pari. Pi^t, 1851, Wheaton, third Englinh ei. p. ioj » Per Lord StoweU in the Boedet Lust, 4 C. Rob. p. 146. « INTERNATIONAL LAW what miileading. At between the powen at inue mch . 8 blockade inTolTe*, ai iome formi of repriaal do, acta of conitraint eisentially non-pacific ; but the view i> now generally accepted that third powen may enter and leave the blockaded ports at plea.ure. A ttate of war would be inconsistent with such a liberty, and from this point of view the blockade may be called pacific. The legality of this form of blockade has been repeatedly questioned, but is now well settled by the general practice o| Europe. Recent instances may be found in the French oo^' °/ ^.°,!;!"°'" '° '^*4' ">« blockade of Greece in 1886 by the Allied Fleets, and the still later blockade of Jjiam by France. In 1884 France attempted to exclude the ships of third powers without admitting the existence of a sute of war. The reply was decisive that a state cannot at one and the same time enjoy the advantages of belliger- ency and retain the right of coaling at neutral porta. It i« difficult to deny that pacific blockades are anomalous, but they are now well established, and have often been ettective m securing their objects without bloodshed. 3. Oommancement of War.— It has long ceased to be necessary that war should be preceded by a formal declaration, and the majority of recent wars have been com- menced without one. It must, however, be remembered that the occurrence of a state of war imposes serious duties upon neutral states ; belligerents are vitally concerned in the discharge of these duties, and responsibility for their exercise can only arise after due notification to neutral powers that a state of war exists. In order to give such notice, states declaring war usually publish a manifesto within their own territory gmng notice of the outbreak of hostilities. 4- PerBona affected by War.— The commencement of war produces immediate results of &r-reaching consequence to the citizens of the slates involved. The right to recover lebts trom enemy subjecu is suspended during the war, and partnerships with them are immediately dissolved. Speakinjt generally, intercourse between the bdividuals of belligerent PRBBELLIGERBNT ACTS 93 «atei M only permitted under exceptional circumiuncefc Thi. practice flowi logically from the view that the lubjecu of an enemy aute are them»elTe» enemies. Ceruin theoriiti have committed themielvei to the doctrine that the non- combatant individual* of belligerent communitiej are not affected by enemy character. Thm Rou»»eau, in a well- known paiaage, said :» 'La guerre n'eit point une relation d homme a homme, mais une relation d eut a etat . . chaque et." ne peut avoir pour ennemij que d'autres itut, et non pas des hommet, attendu qu'entre cho«e« de diveriei nature* on ne peut fixer aucun vrai rapport.' It is sufficient to say of this view that it has little conespondence with the actual practice of nati If it were well founded, acts done without question in almost every war, against both the persons and properties of civilians, would be illegal. The English view hereon was stated clearly enough by Willes, J., in Esposito v. Bowden : * — 'It is now fully established that the presumed object of war bemg as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of com- mercial intercourse and correspondence with the inhabitants of the enemy's country, and that such intercourse, except with the licence of the Crown, is illegal.' The practice of 'crippling the enemy's commerce' by capturing private property on the sea is universally admitted to be permitted by the existing law of nations, and is incon- sistent with the doctrine which so many publicists have borrowed from Rousseau. The commencement of war then, puts an end to non-hostile intercourse between subjects of the belligerent parties. It is, however, from the nature of the case impossible to carry this doctiine to an extreme conclusion, and the convenience of belligerents has provided conditions under which such intercourse becomes permissible. * Cntrtt sxial, Uv. i, «b. iv. * 7 5. ind B. at p. 779, «♦ INTBRNATIONAL LAW Bjr ghin> t puipoR. a belligerent goTenunent authoritot »a enemy .ubject to travel generally in hi. territories A iafe- conduct u a licence, dmilariy gi'ven, to travel to a particular plfce for a particukr purpo.e. A licence to trade U a per- miMion by a belligerent lUte to iu own lubject.. or to enemjr lubjecta, or both, to carry on a mutual ttidt notwith- .Unding the war in which they are engaged. Such Ucencet are of course only effecuve in the couru of the iuuine power, and cannot m any way affect the other belligerent! It It itnctly necewary that they .hould emanate from the •overeign power, and, if they are iuued by .ubordinates the pre.umed.1 The general principle involved in the conce.- non of hcence. to trade were well laid down by Lord Ellenborough m Usparicha v. Noble : «— / «« •The legal reyult of the licence granted in thii caie ii. that not only the pl«ntiff. the person liccn«d, may .„e !nn.5«^rf .uch hcenjed commerce in our court, of law.'but tl u^hTa,^ merceit«lf..toberegarfed.,legali«d for all pur«,se. oTS due and effectual pro^cution. tS hold otherwiieTuld be to Tr^ ""f\r'~"*'°'' ^"P"nt "> """ion"! good fiuth and the inv h^nl r'""™- A' ^^ "-"y «en,pt any persona and 3 M "'^ ~."1"'"''' '° i" discretion, from tte'^ disabilities and forfeitures ansmg out of a state of war ; and its licence f« For the purpose of th.s licensed act of ti.iding (but to that extent ^^jTr" ''""''r''A' '° be «g"d'J a, Vrtually^l^pM subject of the crown of Great Britain; his trading/as far a.'^the Sg!'" "'""'^ *"" "^^ ""' "'" "" "' ^°"«™'='l, is British Any misdescription or misrepresentation in procurini the hcence will invalidate it,» and there must be no unnecwsary deviation from the course permitted.* $. Domicil — Persons other than the subjects combatant « The Heft, t Dods. Ad. m6. » Klingender v. Bond, 14 East, 484. • 13 East, at ,•>. 340. * Tfae£inM,':idwards 366. PRBBBLLIOBRBNT ACTS 91 i«d Mn^omUunt of the Wligerenu, wd property other than belligerent property, nuv. under ipecul eircuin,t«Bte^ become affected by enemjr character upon the outbreak of war. The euence of thit character lia in the capacity to •ubierre, directly or indirectly, belligerent purpoiei. A foreigner re.ident in a belligerent countiV Vontributet n»tenally to the* purport by the payment o/uxation, and of -uch lubtidiei at may be particularly leried for warlike purpoiei. Under thete circum.uncet rach a person i^ or ?1»5;. ';*.•'='«''«? wi"* hostile character. The criterion of hu lability I. the nature of hit reddence. If it i. lufficient to amount in law to what it known at domicil, hit propertv It treated at enemy. A man it laid to have hit domicil in a country whe he retidet there, • not for a mere tpecial and temporary pnrpote, but with a pretent intention of makina it nit permanent home.' > * The deciiive quettion it therefore in all caiet : Did tliere exitt at the critical time the intention of indefinite retidence > In antwenag thit question the length of the previous retidence and itt object will no doubt be the determin- loLa""'-""'"'"" ^"'' " ^""^ ^*°**" •"** •" ""> •Mere recency of esUblishment would not avail to prevent the acquismon of domicil f the intention of making .^"™" l„t reiidence there was ft.Uv fixed upon by the partyf Tfc-^ of Mr Wh,.ehll e.tabli.Ud thi.*>int' Hc^S a,iiv;d^ S° Eustatm. only a day or two bet^rt Admiral Rodney and the Bntish forces made the.r appearance; but it was proved that he ^JT '""'»''''*'' l>in'»«lf there, and hi. p^erty w„ ^„! demned. Mere recency, therefore, would not te sufficient.' Inasmuch as domicil depends upon the fact of habitation, a change of residence made in good faith after the outbreak or war will — •* — — -■ • •' same way a put an end to the enemy character.* In the iomi-fde sale of a vessel by a person domiciled Per Kindenlejr V.C. Lord v. Colvin, ig L.T. Ch. 166 5 C. Rob. .t p. 60. s The /to««,, U.*R,b. ,aa. 9« INTERNATIONAL LAW in enemy country may be good, but will be jealously examined.i As Dr. Lushington expressed it : * 'This being a tale by a merchant now become an enemy, very shortly before the war, is a transaction requiring to be very narrowly mvestigated, and respecting which the court must exercise great vigilance Jcjt the property of the enemy should be sheltered under a fictitious sale.' Consistently with this principle, in the Baltica* a ship sold in contemplation of war by a domiciled enemy to his neutral son, and paid for only in part, was condemned as enemy 8 property. . S. Enemy Fenons in a State at the Commencemsnlr of Hostilities. — Mediaeval statesmen showed no indulgence to resident enemies, and Grotius * fully admitted that such persons might be treated as prisoners while the war lasted. He adds, however, that they ought to be released as soon as hostilities came to an end.* For many centuries a common stipulation in commercial treaties provided that the subjects of the cc trading powers should have liberty to withdraw from each other's territories on the outbreak of war. Modern usage entitles us to lay down a positive rule, that such persons, independently of treaty, must be allowed a reasonable penod within which to withdraw. The correct principle was long ago stated by Vattel:« The sovereign who declares war cannot detain those subjects of the enemy who are within his dominions ; he must allow a reasonable period for withdrawal, on the ground that his permission to enter the territory tacitly involved a promise to afford protection and liberty to return. In this country Magna Carta, with admirable prudence, provided that enemy merchants found m England on the outbreak of war should be arrested ' Emu Mtrci, z Spink 86. • U. p. 89. ' I Spink*. Priie CasM, 264. * De Jar, BtUi et Pad,, in. ix. 4. In hit day, ordinary priioners were not released as a matter of course. • Prdl Jctgentf Uv. ni. ch. iv. } 63. PREBELLIGERENT ACTS 97 without injury to person or property, until it was ascertained how English merchants were treated by the enemy. The conduct of France in arresting all English subjects in that country, on the outbreak of war in 1 803, has been universally cOi'.demned, and it is significant that even Napoleon attempted to justify the step as a retaliation, thus tacitly admitting its illegality under ordinary conditions. His action appears the more outrageous when it is remembered that in 1756 England had given the singular permission to French subjects to continue their residence in this country, on the condition of good behaviour during the war between the two countries. ^, siijjily ^tolerance has been so often stipi^ated, for . in treaties, that expulsion is now considered a vexatious exercise of strict belligerent rights, unless the circumstances are in some way exceptional. On the outbreak of the Crimean War, Russian merchants were not required to withdraw from England nor English from Russia. In 1870 Prussian: resident in France were allowed to stay during r;~od be- haviour and vict-versa. The permission to Prussians was afterwards cancelled under circumstances of exceptional difficulty, so far as the department of the Seine was con- cerned. At the outbreak of the present Transvaal War almost all British subjects were expelled by the authorities of the South African Republic. It is probable that numerical considerations of an exceptional character justified the expulsion in this case. 6. Revolutionary .Hostilities. — Os the outbreak of rebellion or of revolutionary disturbance in a foreign country, a difficult question often confronts \ eutral govern- ments. It becomes necessary to decide whether the hostilities are of such a character as to justify them in conceding to the revolting faction the status of belligerents. Recognition of belligerency will naturally long precede recognition of independence, and its justification must depend upon quite different grounds. The right to treat insurgents as belligerent persons is based on the material interests of the neutral, which may be gravely compromised by equivocal 98 INTERNATIONAL LAW dirturbMce.. Following this principle a. a guide, it become, necewary to distinguish betwe^ caies when Ae dwSS the sea. In the first case the neutral has little to oain an early recognition oF belligerency; in the «Jcond Ct recogniuon need not be delayli a morlient afierT hasCom^ itrwtinrcr'"" '^'^'t •'•'° p™«""- ^^^^^^i H a war in such a case or there is not ; if there is. it mav properly be recognised, if there is not, bi;cka^crcont«S restnctions, and the right of search ;re alik'tap^Sfc Sutes Government. It i, not easy to understand ^ a^lXdeTth?" " ™" "^ ""^ ^"^^ that onXril t Pre Went L?nnM^ ^''"J •'"°'"'"' '"^ '«° '^''^•"ed by ^resident Lincoln, involving an essentially warlike inter ference with the rights of neutral commerce. Ta ^r^^s^f S^Se-Ced^errL-^' '^''' '^ ^' «"P-« 'T^y. '4«i *1t' may t'LTH"''\!^"'«'""' P"^" '" hostile neutnUityca„„ot'„i.t.™,„,^,^^-^J'^,^T^^^^^ A. soon a. the new, o f the attack on Fort^Srand' 'the' ' PriM cauKt, 2 Black 635. PRBBELLIGBRENT ACTS 99 orginintion of a government by the seceding states, asnuning to act as belligerents, could become known in Europe, to wit. on the 13th of May 1861, the Queen of England issued her proclama- tjon ot neutrality « recognising hostilities as existing between the Government of the United States of America and certain states styling themselves the Confederate States of America." This was immediately followed by similar declarations or silent acquiescence by other nations.' CHAPTER II Combatant Penoas and the Modes of Violence permissible towards them 1. Combatants and Non-Combatants.— The unratified yonference in 1899, lay it down that Mes forces ariSe. des parties belligerante. peuyent se compo^r decern battants et de non combattants.' Both wi?hin and wX out tl^e regular armed forces of the belligerents it T of IZ ""K°h:: '? determine the limits of foX^ "jf acter. Combatants are entitled to some privileee- non combatants to others, and a belligerent is enSlnTe" ordmary run of cases, to demand securities tlS enemy dis'tol'eth ""V'lf t^' ""T' *' P'-ure from one Class to the other. The Hague Peace Conference reneated Amcle 9 of the Declaration of Brussels on thrr^ln??!! Ihe laws, rights, and duties of war are appHcable not merely to armies, but also to miiitia and voCr com satisfymg the following conditions :— ™'"°teer corps '• "^for'tSL'rdi'i;';^ '^ • l-- responsive 2. That of wearing an irremovable and characteristic , T^.^c "■ ^'°'* '° ^ recognised at a distance. 3- i^na' or openly carrying arms. 4. That of conforming in their operations to the laws and customs of war.i >Pm« Conference Blue Book. Mi.cell.neou,, No i f-g.oU .e*c;;tT VSr "• '""• " *=»"'-"" " '• °«- - ^"-.' 100 COMBATANT PERSONS xot The more exacting claim has been sometimes made that combatants shall wear a uniform distinguishable at rifle range. The question arose in the Franco-Prussian War, in connection with the franc tlreurs, who took up arms on behalf of France. Germany refiised to recognise them as combatants on the ground that they wore no badge irremov- able and distinguishable at rifle range. The claim is reasonable that the badge shall be of such a kind that a man may not suddenly convert himself by its removal from a combat: ..* to a pearefol farmer, but to demand a badge distmguishtlHc at rifi range is, as Mr. Hall expresses if, to require aot merely ^ uivfojfn Ijul; a compcuous ones 1 he tolerance at present conceded to guerilla troops is a bare one, and is less likely to be extended than curtailed. Ihus a Prussian notice published at Vendresse in the Franco-Prussian War, declared that any person wearing plain clothes and fighting without government authority would be liable to ten years' imprisonment, or, in an aggravated case, to execution. Section 4I of the American instruc- tions contains the following provision upon this point:— Men, or squads of men, who commit hostilities . . without commission, without being part and portion of the organised hostile army, and without sharing continuonsW in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption ot the semblance of peaceful pursuits, divesting themselves ot the character or appearance of soldiers— such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. 2. Levies en masse — A somewhat similar class of queshon arises in the so-called levies en masse of an invaded populace. Both at the Brussels and Hague Conference, a coflflict of opinion disclosed itself on this point between the larger and smaUer continental powers. T t former showed a disposition to exact a more stringent degree of conformity ' RukSi. 10* INTBRNATIONAL I^W wwer. S rL°*^ combatant character than the .mailer power, held to be (»n...tent with the desperate nature of the ens... Article lo of the Declaration of Bm»2^Z finally adopted at the Hague :— the ^nr„i!?r'f"°° "^ "" unoccupied territory, which, on e.i,^^T • .■" T'"^'*"''" "P*"»» •Pontaneou.lyto rewrt the mvadmg force, without having had time to The teh^n 1 '"J*"' ''■'.'**' "«* cu«om.ofwar.' to d?S '° *'" "'•''P'l' '•"'" ** ~°»'1"«» " '"ding nln^^' r" '"PP"'f ** "g''* ''"<=•' »«long» to thi tbftr '':-'°™'^"='' '^"""'^ '° patriotically oppo.! uL "wgetic resistance to their invader, by ei^ry legitimate mean..'* But M. de Marten, .ubrtimt^d ^ somewhat yague pronouncement which wa. received with *b^ leftTti" "'^^<f-^'';^' •"°f°-»een case. ^eifnoTIo b^t lir^n L"'J"'!7J"^8™'=°' °f military commander., Ltion. !hi I ^l"T^ "°.''" "" '^'f'^B^^d of the law of TuSonsdlr ' '"™'""'^' ^""^ '^' «^'^-™««' "f "'^ It is clear that in the case of Itvus «, majte it is not reasonable to require either a uniform or anTxpl cit .^te authorisation A. to the uniform, Wellington wote to Mas^na in ,8,o. in reference , he Portugu^e Orl^aL: 11 parait que you. exigez que ceux qui jouiront de. droits de la guerre soient revltus d'un unifo?me: mais vou, devez vou, souvenir que vous mSme avez augmenti la gloire de LsTu„te"%™ commandant des soldat. que n'avaient pas d uniforme. » On the question of authorisation, the provisions of Article 9 must be considered as a disallo^anc^ ot the Crerman requisition made in 1871, that «everv pnsoner. m order to be treated a. a prisoner of war.ThSl ' Already quoted. I ^°* ^""^ P"« Conference, Mi.c. No i (,8„), p. ,61. frtllrngtm Detfcuiti, vi. 464. "" ^ COMBATANT PERSONS 163 pro»e that he ii a French soldier, by ahowing that he has been called out and borne in the lists of a military organised corps, by an order emanating from the legal authority, and addressed to him personally.' 3:,.?'*^**®"- — Turning for a moment to maritime hostilities, all authorised vessels belonging to the state are legitimate combatants. Privateers are vessels belonging to private individuals, but given a combatant licence by the sovereign. The nature of the rights enjoyed by privateers over captured property was well stated by Marshall, C. J., in the Dot Hermanot > : « It is the settled « 'j'* 'jy^he United States that all captures made by non- commissioned captors are made for the government; and since the provisions in the Prize Acts as to the distribution of prize proceeds, are confined to public and private armed vessels cruising under a regular commission, the only claim which can be sustained by the captors in cases like the present must be in the nature of salvage for brirging in and preserving the property.' The law of privateering has become of secondary importance since the Declaration of Paris in 1856. Under the terms of that declaration, priva- teering may no longer be practised by the signatory powers when at war with another. The United Sutes, Spain, and Mexico did not assent to the prohibition, the power first named basing its refusal on the convenience of privateers to a state without a powerful navy, as long as the right of capturing private property on the seas survives. It is noticeable, however, that in the Spanish American War both belligerents abstained from issuing letters of marque to privateers. Germany in 1870, and Russia in 1878, proposed to encourage • volunteer navies,' which would have reintroduced, under a less offensive name, the characteristic evils of privateering. It is to be regretted that Great Britain, when appealed to by France on the earlier occasion, upheld a distinction subtle enough to annihilate, if generally adopted, the beneficial results of the Declaration of Paris. ' 10 Wheston at p. 310. 104 IHTERNATIONAL LAW 4. F«niiiuiU« Limlta of Violanm m«. Ihe following act8 are parricularly forbidden :_ f]i tS r °i^ '^'°°",°' P°'»°°«' ^'"P*""- («) 1 he tteacherous slaughter of individuals belonrina ^ at dSir °h "• "?5^ ^''° ''^» ""^^d^ed at discretion, hanng thrown down his arms or pc««.„ng no longer the means of drjin"; or of mihtary badges and uniforms belongina to [g) -Any destruction or seizure of enemy property not imperatively called for by militarj n^eceSs ° folloi: .!!""'' °^ "■'«" '""^ bombardments Is regulated a. nefetSlSaS':^-^^--^, f COMBATANT PERSONS ,05 The ofBcer in command of attackino »»/««. i„r .Kl'Ln'-e^t'' r'''i" ^^ '^^^^^^^ an tnat he can to warn the authorities.! to tTl!*L^"'^*^ '''°"''* '"'*''"*» »"<='' building, beforehand A tS^T't''^ conspicuou, and distinctive Lrk. pil4e«r '"''" ''y «-■" -"^y »«« •- handed orer to pfMJ^tdlnfTwJ^H^o-tiiiTS oecame sufficiently notorious to attract the WJnI««..^- argument had the merit%r.implicity. W* „^y be^I R°^ht" > '/r"" ".^ ^'«''' '•g^"»t Violence d»Lg that" iniS the ,'•""" "" P*"™"™' »''" of ^1. to wiHre weaJtr//" '""^ r""" ^^^ ^he nerye. of war are wealth ; consequently eyerything which strikes at the enemy's wealth, and still more at the sourcef^fth^ wealth, becomes not merely legitimate, but obHgatoV So howl '^T"". ''"™ "»*"• '''«™y them, or at lew! hold them mercilessly to ransom. Mr. Halls adds the significant facts that Admiral Aube was appomted Mm.ster of Marine soon after the publi«tion ' Art. ixvi. « Art ..»': • . io6 INTERNATIONAL LAW of thia Mtlcle, that he gate orderi for ■ claw of vetielt •peciilly iuited to carry out the dcsigni recommended in it, and that in 1878 the Ruiiian fleet at Vladivottock vai about to aail for Aujtralia, with the intention of holding the undefended coatt towns to raniom. The Hague Con- ference contributed nothing in ternii to a lettlement of what it probably the gravest occasion of divergence still existing in the whole subject of belligerent rights, and we are thrown back upon practice and general principles for guidance. It H contended on the one hand ' that the bombardment of places occupied by non-combatants is on the same level of illegality as devastation, that it is proposed to 'introduce for the first time into moJfcrR maTitlnV hostilities a pract'ce* which has been abandoned as brutal in hostilities on land,' and that the analogy of contributions on land affords no sort of justification for the enforcement of ransom by a hostile squadron. Such contributions ' are a totally different matter from demanding a sum of money or negotiable promises to pay, under penalty of destruction, from a place in which [the belligerent] is not, which he probably dare not enter, which he cannot hold even temporarily, and where consequently he is unable to seize and carry away.' It m«r at once be admitted that the practice of bombard- ing undefended towns would be the occasion of much suffering to persons upon whom the incidence of belligerent pressure has been generally deemed illegitimate ; nor can It be denied that a very grave accession to the in- humanities of war would be involved in its recognition. It may also be properly pointed out that before acts of this kind are done, states are likely to reliect that re- prisals may be made, and that reprisals need not be confined to acts identical with those which have called them forth. Such arguments are indeed likely to be more effec- tive than others based upon the attribution to non-combatant property of an absolute right to immunity from capture or destruction. The contention that such property is im- » H.11, pp. 431-434. COMBATANT PBRSONS ,0; Z7„v'« ^'""'' ''•«"'"!»• of the cl«im to capture or the S; oV To"""''''/" """?'"-• "">' •''"a-tation and ine .laugher of non-combatanfa ' y,e:e not waniin» #„ reinforce the wrauaaivenH. of .1, wanting to Illii«r..;^ P«"ua»"veneu of the lummonii to ie-to -rocme mode in «-hich to meet Admiral Aube'a iubbc. X.tJS'"^'' '° '"^ "i"P'y """ ">« ">«»« of belligerency there ^.Tn-ah, . "P«™""'ble, « i. permissible becau«r equal force that a contribution i, s ran-nm fp £ 7 . «on :• Certainly destruction would follow sharnlv t^K., oimilarly it might be argued ' Mijr 1864. ' HaU, p- 434. ' liU. io8 INTERNATIONAL LAW that if contribution! are pfrmiuible, they are pcrmiuible becauie there ii a right to destioy. The answer ia that there may abstractedly exist the right to destroy upon refusal to pay the contribution, without there existing an absolute right to destroy, of which contribution or ransom IS a mitigation. 6. Dnm-Dnm Bnllete.— The permissibility of using Dum-Dum bullets was much discussed at the Conference. Explosive bulleM in the strict sense have been discontinued since the Declaration of St. Petersburg 1868, but the repre- senutires of Great Britain at the Hague refused to concur in an agreement which would hare required all bullets to be caserf in hard mrelofej. Lord Lansdowne instrucfed* hir J, Pauncefote to inform the Conference that the Chitral campaign of 1895 had demonstrated the insufficiency of a hard envelope for stopping a savage rush. Her Majesty's Government were therefore unprepared to give up the mark iv. pattern, which has a small cylindrical cavity in the head, over which the hard metal envelope is turned down. The Boer War has made it clear that soft-nosed bulleU are no longer held to be permissible by this country in cmlised warfare. The principle underlying all the pro- hibitions set forth above is clear enough. No suffering must be caused which is disproportionate to the military advantage gained thereby. 7- Prisoners of War.— A prisoner of war is defined by the American regulations as 'a public enemy armed or attached to the hostile army for active aid who has fallen into the hands of the captor ... by individual surrender or capitulation. Quarter may not be refused to such jjcrsons. They may be detained till the conclusion of war, or they may be exchanged, or released on parole. They are of course subject to no punishment, and roust, so far 8! possible, be supplied with reasonable nourishment.' The Hague Conference reasserted most of the articles of the Brussels Declaration on the bnbject of prisoners of war. ^^ COMBATANT PERSONS ,09 liUh!^ '^""".IV **^y ""•" •* '"""•"•'y ''"t««. •»<• that ^IthcrperwnaJ be ongmg., except «m., hor.e^ and miliurv ^^VT"" '^'" P'°P*"y-' '^^'y ^y be interned ," a town, fortre«^ carap. or «,y other locality, and bound not IZJ^^"'"^ '•^i- ''««l,«'»i"' but they can ol^ confined at an indispensable measure of ifetv.' The .Ute may utihse the labour of prisoner, of war^acco«ling to the r rank and aptitude, ^heir usic. shall not h^ MU^' ^Z^""^'"' '"?' *•""* ^""^^ P"""""' of w«r have fallen w bound to maintain them. Failing a special acrw «« H^^*"" '^^ belligerents they shall be'^t^eat^^ ^e troops of the government which has captured them * PHsoner. of war shall be subject to the law^s. ^Jations and order, m force m the army of the state Xwho^ hand, they have fellen Any act of insubordination waTr anU the adoption, a. regards them, of such measure, of severity a. may be neceswry Escaped prisoners, recaptured before they have succeeded in rejoining their army, or before quitring ?abuV"'7°"rP"^ ^^'^' """y that captured th2m arf able to disaphnary punishment. Pri«,ner. who, ^f^r Sr.o"'^ "■ ''-T^' r "S"" '*'"=■> P"»o«". are no liable to any punishment for the previous flight." bvery pnsoner of war, if questioned, is bound to declare his true name and rank, and, if he dis/egard, th^ ™le, he ! Xne«:fhrir?' °^ ^^ =''*--«- --'•«* -h: Prisoner, may be set at liberty on parole if the law. of their country authorise it. and in .uch a ca^ th^y 1 .nl .... ' ' Ch. ii. Art. iv. iSog. » Art. vi. "" » Art. viii. • Art. V. • Art. vii. • Art. ix. !I0 INTERNATIONAL LAW are bound, on their personal honour, scrupulously to fulfil ... the engagements they have contracted.* ... A prisoner of war cannot be forced to accept his liberty on parole : similarly the hostile government is not obliged to assent to the prisoner's request to be set at liberty on parole.^ Individuals who follow an army without directly belong- ing to it, such as newspaper correspondents and reporters, sutlers . . . have a right to be treated as prisoners of war, pro- vided they can produce a certificate from the military authorities of the army they were accompanying.* 8. Spies. — These rules have no application to captured spies. Of spies, Vattel* says: «They are generally con- demned to capital punishment, and not unjustly. . . . For this reason a man of honour, who would not expose himself to die by the hands of the common executioner, ever declines serving as a spy. He considers it beneath him, as it seldom can be done without some kind of treachery.' This view has received the sanction of both writers and soldiers, but it is difficult to defend upon satisfactory grounds. Stratagems and ruses are universally practised in war, and it is not easy to see that spying, unless aggravated by dishonouring circum- ^nces in no way essential to it, is morally more culpable. The distastefulness of the employment, and its lack of dis- tinction, together with the distressing nature of the penalty risked, call for remarkable valour and constancy in the spy. Lord Wolseley has recognised the reasonableness ot the view in the following observations: «As a nation we arc brought up to feel it a disgrace even to succeed by falsehood. The word " spy" conveys something as repulsive as " slave." We keep hammering along with the conviction that " honesty is the best policy," and that truth always wins in the long- run. These sentiments do well for a copybook, but a man ' Art. I. ' Alt, x\. The punishment for breach of parole U death, • Art. ziii. * Drcit du pn; liv. iii. c, x. % 179, i8», quoted HaUeck. COMBATANT PERSONS who act* upon them had better »heat ever.'" Ill his sv'ord for I8O4, 1868, did much to amehorate the condition of the 8ick and wounded. Ambulances, military hospital., and Uie persons employed m such places, are neutralised. In- hab^nts of the country bringing help to the wounded are to be respected Wounded and sick soldiers shall be en- tertamed and taken care of to whatever nation they belong. A disunctive and uniform flag is to be adopted for hospitals, ambulances, and evacuations. Neutralised individuals are t^ be distinguished by arm badges. A majority of the powers represented at the Hague Conference /Creat BritaiV^X Snl^v 2^ "k ■1^''''^' '"'^ ^"'""=' ^°™'°8 '^ dissentient minonty!) subscribed to a convention adapting these prin- ciples to maritime warfare Hospital ship,, whether equiLd by the state or by individuals, are exempted from capture on producing a certificate to verify their neutral character, ijuch ships are bound to succour the wounded and shin- wrecked mdependently of their nationality, and are to be distinguished by being pai^nted white outside, with a horizontal band of green if equipped by the state, of red if equipped bv private chanty. The medical and hospital staff'canWt ^ made prisoners of war. On leaving the ship they take with them the objects and surgical instruments which are their own pnvate property. The shipwrecked, wounded, or sick of one of the belligerents who fall into the hands of the other, are prisoners of war. The captor must decide, accord- ing to circumstances, whether it is best to keep them, to send them to a port of his own country, to a neutral port, or even to a hostile port. In the last case, prisoners thuVrepatri^^ rannot serve as long as the war lasts. The shipwrecked, ' V the objcrtion to spying i. . moral one, the p»rt plaved bv tho., who .mployhm. would appear to be le.. re.^ectable tCWof 2^ .py h,m«>lf. The latter at lea.t poU hi. own neck into d"„gS. lit INTERNATIONAL LAW wounded, or sick who are landed at a neutral port with the consent of the local authorities, must, failing a contrary arrangement between the neutral state and the belligerem^ be guarded by the neutral state, so that they cannot again take part in the military operations. The expenses of entertamment and internment shall be borne by the state to which the shipwrecked, wounded, or sick belong. Although, for various reasons, the formal adoption of the above rules was not universally-made, it can hardly be doubted that they will form the standard of conduct in future maritime be igerency. In the stress of actual warfare suspicions will almost inevitably arise, and it is likely enough that, m isolated cases, actual abuse may be brought home to irresponsible persons. It is much to be hoped that patience, experience, and, above all, the sense of proportion, may induce commanding officers closelv to scrutinise, and not to generalise from, each allegation of abuse. CHAPTER HI Btttmy Property I. Enemy Property om Land, and Occupation of Enbmy Territory I. Appropriable Property.— Many exceptions to the old rule, that every species of enemy property may be appropri- ated at all times and in all places, have been admitted in the more tolerant practice of modern warfare. The principle underlying such exemptions is not always logically applied but It has produced practical results of great importonce! It IS well stated by Mr. Hall in the following passage : »— '^"oy"^ <^ be appropriated, of which immediate use can be made fcr vvarhke purposes by the belligerent seizing it, or which. It It reached hi> enemy, would strengthen the latter eithe^ direct y or md.rectly j but, on the other hand, property not so capable of immediate or direct use, or so capable of strenirthen. ing the enemy, is insusceptible of appropriation." All public movable property belonging to the enemy state IS subject to capture. In this class fell stores military and naval, state treasure, warlike materials generally, rolling stock, and many other articles too numerous to mention! Although state treasure may undoubtedly be confiscated, it IS held according to the better view that documents con- stituting the evidence of debt can only be realised by an enemv, into whose hands they have fellen, when his possess- ory claim has been converted by conquest into a definitively ' bttrtational Lmi), «l. a, p. 43J. "4 INTERNATIONAL LAW n/'' v^.."^*"-' f "^"'* "''• °f "«= P~<=« Conference dealt with the general question as tollows :— 'An army of occupation can only take possession of the cash fimds, and property liable to requisftion begging strU:ty to th^^ state, depots of arms, means of transport, store! and suppl e ' othe^'i^"^ ^^Ti '""'' '«>=g'»Pl>s, telephones, steamers, and ^. r '.''/P%^P^'* fr°T -^^ ^'"'""ed by maritime law, 7s weS ^™,1 tf "^'' ''"'^' ^"'="'"5'' =*" ^'""^^ of''" mater aJ,e"In though belongmg to companies or to private persons, are like- wise material which may serve for military operations, Ct they A very humane modification, and one universaUy re- cogmsed in modern warfare, is stated in Article Ivi. :— ..T^^" P^P^"^ °^}^^ communes, that of religious, charitable and educational institutions, and those of arts Ind siienS^ even when state property shall be treated as private p^e^ ' All seizure and destruction of, or intentional damage done to rfp'red'Tngs"'' '^ P"""'"^''' ''' ^''°""' ^ --iTTe thj^c"; There can be little doubt that the public feeling of to-day would view with strong resentment any attempt to injure or remove valuable *orks of art, genius, or taste belonging to th. aT^- /T' I" ''^ revolutionary wars enriched r? f'"^\°^ l^'^^y 'he Corinthian Horses, the Dying ?.itT' T ' ^^\ ^'^'"^"'' '•«= Venu;, and ^thf art wTh ., H°Kl!'^r ^'f'''^" ^""^ °'^" monuments of art which had been forcibly seized by Napoleon, or acquired by treaty,- were returned to the places from which they had been respectively uken. It was contended that this act of expiatory justice was indefensible in view of Article ii. of toe military convention under which the allies had entered i-ans. That article wa. as follows : ■ Les proprietes pub- H.'ll,"'.'^36.*'"- "'"«'^«"-"-P-6z. Phimmore,pt.xii.ch.iv. ENEMY PROPERTY "5 hques, a exception de celles qui ont rapport a la guerre, wit qu eUes appartiennent au GouvememeM, wit qu'elles dependant del autorite raunicipale, seront respectees et les l-uissances alhees n'interviendront en aucune mani^re dans lew adnHDistration et gestion.'J The surrounding circum- stances bear out Wellington's reply : ' I positively deny that this article referred at all to the museums or galleries of pictures. The conduct of the allies was, howevtr, strongly criticised by Sir Samuel Romilly in the House of Commons on February 20, 1816. He relied particularly upon the contention that many of the acts of restitution were wholly irrational in ^eir effects. Thus Venice when plundered was Itahan; m 1816, pursuantly to the Treaty of Campo tormio, she had become Austrian. The answer to this objection is that the restitution was made not to the political authority, but to the locality. Whatever changes mVy take place in the political circumstances of the kingdom of Greece, every one wiU desire the preservation in their present position of the remains of the Acropolis. The immunities stated above have been hardly and gradually won, and it is still held that they must give way to real belligerent necessity. Thus in 1870, in the hope of bringing civilian pressure to bear upon the military authorities, the German forces bombarded Strasburg and destroyed the Library, Picture Gallery, and part of the Cathedral. The step perhaps was an extreme one, but behind the velvet scabbard of regulatory convention the presence of the sword 18 always discernible, and Lord Pauncefote, at the Peace Conference, was content to qualify the articles dealing with the conduct of war by the reservation, « Saving the necessities of war. 2 J Quoted Halleck, vol. ii. p. 6j. .-Ji-X^" "f. "/'■'"'■ ^"- J- Pauncefote deiired to point out, muit be mpliotly .pphed to any „d to every code or -mpact by whicru m.v be attempted to regulate the infinite variety o. circumrtance. and „7 ti6 INTERNATIONAL LAW ». Oscnpatdon of Enemy Territory.— The rights of an army m occuption of enemy territo^were conffi.?!" fintlf^ ^7 Conference m ,899, and although the conclMk,„ finally adopted have not yet been formally mified, theyTa^ be reasonably treated a. authoriutive. Territory i, consfdered o" t° hoS :':: '^ ^^r^'^y p'-*^ -«'-">« authJri^J o. tne Jiostile army. The occupation app ies only to the n^H]"- ?'^,''"'7 °/ "V* J'^gitimate power having actually aT^nli^h- •"""''' °^*' occupanCthe latter .hall S all steps m his power to re-establish and ensure, so for as poss.be p.,„c order and safety, while respecting. ul5e« absolutely prevented, the laws in force in the counJ* Any compulsion of the population of occupied territo^toS hibltJ^. a'^ "P"'""""' "8'*''"'' •'■ °*° count^is^c! hibited.' Any pressure on the population of Occupied territory to take the oath to the hostiVpower is prowffl Fannly honours and rights, individual live, and prKa^ property, as well as religious convictions and liberty! mm be respected. Private property cannot be cSat^l Mage IS formally prohibited.. If i„ the territory S. p.ed. the occupant collects the taxes, dues, and tolls im posed for the benefit of the state, he'shall do it as farl possible m accordance with the rules in existence and the assessment m force, and will in consequence be bowd to defray the expenses of the administration of the occ3 territory on the same scale as that by which the leSw govemment was bound.' If besides L taxes men St he preceding Article, the occupant levies other money taxes in the occupied terntory. this can only be for miS^ necessities or the administration of such territory!" ^ No general penalty, pecuniary or otherv^se, can be ' Art. zlii, 1899. • Art. MlvL • Art. xUii. • Art. xlvii. ' Art. xliv. ' Art. zlviii. * Art. ^T. • Art. ilix. BNEBIT PROPERTY „y inflicted on the population on account of the acta of indi- ,nH „ 'tK '"'"" ^.?^!>}}^<=^<i «cept under a written order ron. r ">» "'Pon^bihty of a Commander-in-chief. Thi. .nll^'?K !k'" T'y'»ke place, a. far a. po8,ibIe, in accord- fn fir p' "^^ •" '*"'^°'='' ^-xl ">« »»»^''">,;nt of uxe. ttx^yw.* ' ""'' ^^""^ " ''"'P' ''"'" '^ P™" '° the frnm'i"'" "l"^"'!?-'' '» Wnd nor service can be demanded from communes or inhabiunts, except for the necessities of thl f^^ occupation. They must be in proportion to mvolve the population m the obligation of taking part in military operauon, against their country. These reqJsitions and services shall only be demanded on the authorit> of the ki^Tn " ' r '°'* -^T """P''^^- The contributions in kmd shall, as far as possible, be paid for in ready-money, if not, their receipt shall be acknowledged.' trZ^lT^'^r^ state shall only be regarded as adminis- ttator and usufructuary of the public buildings, real property fore«,. and agricultural work, belonging to the hostUeS «iTf !^ '" '^' ""'^^"^ '"'"'""y- I' ■»»« protect th; These provisions contain a few refinements hardly robust enough to stand the test of practice, but it is not likely tha tl,oI''!n'^'''5 conceded to occupation naturally fall short of Aose allowed to definitive conquest, but, such as they are uZka^ T7 '°'° ''"is?"" "^^"^ ""* occupation d//ac,o IS va^id and effective. This requirement does not mean that every square mile must be secured by vedettes, but that from . mJitary point of new, taking into consideration the * Art.L • Artii, • Art. lu. * Art Iv. iiS INTERNATIONAL LAW CLl^o/r'^y* "'*• '^'/'P^ of -"oWlity attainable, ri.,?;.^^*"*/^""''-^'^'"' *''«'« •" ^''i^h the strict rights conferred by m.htory occupation are enforced is determined in practice by political considerations. When fh!»T """f/f conquest, it is important to the belligerent that he should not exasperate to desperation a people over whom he aspires to rule peacefully: if, on the whir hand, l„°^iL"'""'°° " 7"^'° '° ^ temporary, greater indifference may be expected to the resentment of the inhabitants. 1 he German occupation of France in 1871 was attended dLbTl'leSr °' '"' """'" "' ""^ "' '"'' °' MU. ^«y'^*a«<>n--It has been much discussed how far a SleKrHV",!l'''^;V''V''^''^ *•"= '""'°7 °f his enemy. It need hardly be said that devastation was a /amiliar incident of medieval warfare. It was felt, however, at a relatively ^^l ^"°i'^''' "«= P"<=tice could only be justified by the strictest military necessity. Thus Evelyn in his MjoirTi saysm 1694: .Lord Berkely burnt Dieppe and iCe b revenge for the defeat at Brest. This mVnner of le^ng war was begun by the French, and is exceedingly ruiZs! especially faHing on the poorer people, and does no^t seem to tend to make a more speedy end of the war, but rather to v3 I '-f ' '° '"""8^-' Nearly a century later Vattel speaks with much greater certainty: .Such act. are awful extremities when a nation is driven to them, barbarous and unspeakable excesses when done withou necessity.' It must ^ observed that even now occasions might easily arise sufficient to excuse devastation. The T. Z . y'"^°^l '■> ="«ing the dykes and flooding the country from Ghent to Ostend in order to cut Marl- borough s communications was clearly within his belligerent nghts. The permissibility of a particular act may be determined by rc^-rence to two admitted principle. * iii. 335i eited by Hall. ENEMY PROPBRTV ti9 Has well itated for a more which Profeaior Westlakei general purpose : — 1. Everything i. prohibited which is not of a nature concerned ' '° '""*" '"" '''' '^'^'^^'^ operation 2. Even when a thing does not fall under any absolute prohibition, ,t may only be done in the circum- stances, and in the measure, in which it may reasonably be expected to contribute to the success ot the (military operation) concerned. J. Contributions and Bequisitlons.— The practice of general p,llage has finally given way to the^eguTat2 ZfZlAlj°T^!Tu '">'». ^q-^'i'-o"'- Contribution, are forced loans levied by an invader from the inhabitant, of an occupied country to take the place of requisitions or as a substuute for taxation. Requisitions are" fhllh Iv'f °7l. °f."'^' °^ ""= •°^='ding army to n^^v!H h^ " "^ """ '^'""" ■"^'«'«''' '^n them to provide labourers, stores, or other articles, of which the LvtJr.ln"''"" '"''^- P^P^'y-ent -sichsumstmet art,VU H^'^erent, upon whom repayment is imposed by the artijs of peace, feelligerent necessity, as it presents itself to the mind of the invader, is the only limit upon the RuZn °^^^'5T'"°-°l^"''/°'""'""'°'"'- 1° the Franco! Russian War the rights of the army of occupation were pushed ,n this respect to extremity, and, when we spealof notL f^T"^ u" u"'* '' '"""""^ f™-" capture, kmus not be forgotten that the practice of requisitioning involves a senous qualification of this doctrine. ^ 2. Enemy Property ov the Sea r^rL^^^^l °' Merchant Vessels.-The private property of the enemy taken at sea is generally liable to ' IiHinutimal Law, p. i j6. tao INTERNATIONAL LAW c«pture and confi«cation. Continental and American wnteri have long lought to extend the comparatiTe im- munitiei of enemy property on land to this caie alio. • II e»t a d^iirer,' said Napoleon, «qu'un tempi vienne, oft let memet ideea liberalet s'etendent «ur la guerre de mer et que Ie» arm^s navalei de deux puissances puissent se battre sans donner lieu a la confiscation des navires marchands, et sans faire constituer prisonniers de guern de simples matelots de commerce.'! Similarly the United States in 1 856 offered to pve up nrivateering if the following provision were added to the Declaration of Paris : ' And the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband.' It is not seriously pretended that the existing law o' nations forbids such capture: but it is claimed that MUi immunity would be universally recognised as another restraining and humanising influence imposed by modem civilisation upon the art of war. » This proposition may be fiilly admitted without in any way exhausting the controversy. The real question at issue IS whether the effect of maritime capture upon the event of hostilities is sufliciently direct and decisive to bring It within the protection of recognised principles. The argument from land analogy is somewhat misleading. Mari- time capture is marked by Uttle of the bloodshed and violence which are inseparable from such seizure on land : the objects of capture are almost always directly con- tributory to the enemy's strength, and by means of insur- ance the loss is distributed among the whole community. Mr. Wheaton » adds the further distinction :— 'An invader on land can levy contributions or a war in- demnity trom a vanquished country, he can occupy part of its ' Mimtirn, iii. e. vi. cited Halledc b *HM *'""'"° S""*^ of State to Butm Oerolt in 1870, eiM ' Third English edition, p. 4(4. m 1/ ENEMY PROPERTY », tmitory uid appropriate itt ratci and taxei, and by these and other method, he can enfeeble the enemy and terminite the war. But in a maritime war, a belligerent ha> none of theie rerouicei. and hii main mttrument of coercion ii crippling the enemr-i commerce. If war at Ka were to be restncteJ to the na^ lorces, a country possessing a powerful fleet would have very little advanuge over a country with a .mall or with no fleet. It the enemy kept his ships of war in port, apowerful fleet, beine unable to operate agamst commerce, would have little or nB occupation. ' Private property belonging to the enemy and carried in neutral ships i« now immune from capture. The condition, of the immunity will be dealt with under the head of neutrality. 7- Changes of NationaUty.— It ia often important to determine the ownership of property captured at rea, for its nationality, and therefore its liability to capture, may be in- vo ved therein. If the good, are shipped at the consignor', risk, the owner.hip is in him. Lord Stowell, in the Paeht de Bilioa," made the following observation, upon thi. point :— ' In time, of profound peace, when there ia no prospect of approaching war, there would unquestionably be nothing illegal > It isof courie . difl^erent question, and one properly lying ontiide Ae scope of this book, whether the interest of . particili country i. best Mcured by the retention or .bolition of the practice. But as the opposition of Great Britain is undoubtedly the great obstacle to a change, it is well worth considering how far this country gaini by the existing practice. It can hardly be suppoied that our enormous carry, ing trade would remain with us to abide the inconvenience to which carnage m enemy's ship still subjects neutral goods. A stiU more imporUnt argument may be drawn from die absolute dependence of thi. country upon imported supplies. To « continental power the complete destruction of its commerce, though a weakening, could Hardly ever be a decisive blow i to Great Briuin it would of course be the end of all things. It ia no doubt true that the one ii incalcnUHy more likely to happen than the other, but with ill allowance madt the judiciousness of EnglUh policy is ■ quesUon requiring the gravestlon- sideration. Even the eerUmty of enormoni maritime captures may be too dearly bought, ' ■ a C.Rob. 134. IM INTBRNATIONAI. LAW '1 1 8. DecirioM.— The commencement of the Tovaee i» th.. •ignor. In the Jos,/,im.^ it wa. feeld that silver coniimLl bl n.weS d'Xof" "' '«^" '". """"'"'«' forthTpu?;t S let ^r If^^ • • ™""P«'>'lent in Americ, without anr letter of advice puttmg it out of his control, mist be tr«t^ a. the property of the shipper. The court so^theVap^rdl ha eT'n"'effe?'"" "«""" "'^'"''^ ^"-'''' ^WchCol leeal nh™5.J ' "l'^""" "" ""S'"^' °*°e"- In our rt ?r£,«r/it''rhSit'r 1'^°™ '^'''^"• yre^t-o^h'^^r^^"'^'^"--^^^^^^^^^^^ ra;:ii?:,aThar£ttivr'an eb:!^- r^'haTf^Sia;."^^" » cU"i-:-rco^^ eJ^7f^ '"'•' °^«. »'''?• absolutely and ioM:/:d,, by an enemy, to a neutral mmlnenu bello or ^^,n flagrant b7lo h ' 4 C. Rob. 2J. ENEMY PROPERTY «»3 thi. conntry hai been content to apply it that property «, tran.fcrred (that i., bv purcha^ from an enemy) mu.t be t<ma-/de and abrolutefy transferred; that there must be a •ale divesting the enemy of all fiirther interest in it; and that anythmg tending to continue his interest vitiates a contract of this description altogether.* > CiUd by Sir John Patteion io the ^iV/, U. tt p. jjj. CHAPTER IV PoatUmlnlum and Conclualoa ot War I. Postliminium I. (Wgin of Term.— In Roman law the right of pott- linunium was the right which could be alleged by escaped pnsoners MtitBng them to resume their legal status, as if they had never been away from home. « Postliminium fingit eum qui captus est in civitate semper fiiisse.' » The imposing title, and indeed the fiction itself, are hardly required in international law to express the fact that the rights of an owner are sns- pended, not destroyed, by occupation or capture, and reyive when the suspending circumstance ceases to be operatife. It a ship has been captured and is recaptured, postKminiura, subject to the obligation to pay salvage, comes to the aid ot the onginaJ owner. The Roman doctrine has bequeathed to the law of nations little beyond the damnosa heredita, of a pretentious title; the re-entry into rights of ownership does not depend upon the fiction that they have never been interrupted, for it is conditioned upon a recognition of liabilities legally contracted by the other belligerent durine the period of interruption. The modem doctrine has no apphcaoon except during hostilities, for every treaty of peace, unless the contrary is explicitly suted, is tacitly based on the principle of uti petiiJcth* Private property upon land, not being a proper subject for capture, postli- a priioner hu never Pottlimiamm depend* opon the ficiion that left hii own itate, * Keeping what one hu. U4 POSTLIMINIUM MS mimum u generally liniited in iu effect to the national temtory and to captured vessels. A controversy which arose >n 1871 illustrates the meaning of the doctrine. IJunng the Prussian occupation of France, the Prussian (government entered into contracts with certain persons for the sale of some public French forests. The price was paid by the purchasers in advance. When the Prussian occupauon ceased, they claimed to be entitled to finish cutting down the trees for which they had already paid. This view was not accepted by the French authorities,^ was negatived by an additional article in the Treaty of Peace in December 1871. The French rights revived by posUimimum the moment the Prussian occupation came to an end. France was bound by all executed contracts, and generally by the status in quo, but in view of the revival of her sovereignty, was not bound to acquiesce in acta which amounted to an executory derogation therefrom. a. Salvage.— When captured ships are recaptured by the owner's fellow-countrymen or allies, they are not held by the recaptor as original prize, but revert to the prior owner, sub- ject to his obligation to pay salvage. This subject is strictly mimicipd m its character, except in so far as the rights of allies and neutrals may be concerned, but a brief explanation oi «ie principles and rules of salvage may be usefiilly added to this chapter. Bynkershoek quotes the old Conso/ato del Mare, the earliest of mediaeval maritime codes, to the effect that restitution was only due, if the ship was recaptured before removal to a safe place ; if, on the other hand, it had been so removed since the plenary ownership had passed to the enemy, recapture absolutely transferred both ship and cargo to the recaptor According to the ancient laws of both tngland,! Scotland,' and France," the same practice ob- tained, and the title of the original owner was obliterated. An tnglish Ordinance of 1649, issuing from the Long ' See Crompton, Court J'Mmrabit d'Bnrlttirri, p. oi. ' Lord Suir't Dtcmm, vol. iL p. 507. » Vilin, lib. iii. tit. 9, irt. 8. fk .^ 136 INTERNATIONAL LAW Farliatnent, directed restitution of recaptured ressels to British subjects upon payment of salvage, without regard to intervening dealings other than adoption into the public tTalX r ""! "V"-!. ?^ ^'""''^'"'' '^' ^"^ Quired that the recapture should toke place before the vessel had been removed to « a safe place,' a requisition sometimes known as ih^tnfraprtu<Ea rule ; other authorities adopted a time limit of twenty.four hours in order to extinguish the owner's title, a test spoken of by Vahn« as the common law of Europe ^«-y ">ter«tmg judgment of Lord Mansfield's in Goss V. Withers," suggests that neither of these tests was ever accepted in the English prize courts :— th^'Jifr *f ? '.'"=,'"."'''5 to !nfo™ mysdf of the practice of the court of admiralty m England before any Act of f arliamen commanded rest.tut.on, or fixed the rate of wlvage : and iTave aUced w.th Sir George Lee, who has examine! theXok. rf the court of adm.raJty, and informs me that they held the property not changed, so as to bar the owner, in 4our of a vendee or recaptor, t."!! there had been a sentence of 3cmna! F^ii'^J'""' '? *' ^T "^ *^'"8 Charles „., S^R.^ Floyd gave a solemn judgment upon the point, and decreed rest.tut.onof a sh.p retaken by a pnvateer, Lfter she h=S^ b^ trZl^J^^ ""' "''"'^'' --»-• *--- »-' ^-' - The judgment of Sir W. Scott in the Flad Oy«,* was to the same effect, and, so far as English prize courts are con- cerned, the ruk may be clearly stated that no neutral may safely buy an English vessel in the enemy's hands mitil it has been formally condemned in a competent court. As between British subjects not even condemnation can ex- tingmsh the title of the original owner in the event of recapture; his ownership revives by virtue of postliminium m every case except when his ship has been converted into a public vessel of the capturing power. The amount of Valin sw fcrdmnana, lib. iii. tit. 9. irt. 8. »» Burr at p. 694. « C Rob. ,55. CONCLUSION OF WAR „; ^e ordinary rule .. one-eighth of the ship', value ; " n the Un ted State, one-eighth, if the recapture wa, die to a public .h>p, one-.ixth if to a privateer. French law direct^ re.t.tut.on on payment of one-thirteenth of the valulin case of recapture by a public ve.sel. if .uch recapture take p ace withm twenty-four hour, of the original J^zure. after ^at period the proportion payable ri,e. to one-tenth. I^ Cnitk he amount claimable from the original owner i, one-X/d in Sweden one-half, in Spain and Portugal one^iighth 2. Conclusion op War 3- Treaties of Peace.— In theory there is no reawn whv a war .hould not be brought to an end by the merrceT.a'^ tion of hostditie, without any formal agreement. Such wa the end in 17,6 of the war between Sweden and Poland and the Spanidi colonial campaign in iSi+Tri.hed in nvariable practice to restore a state of peace and detemin" the .abject of dispute between the contracting parties. In practice a specific renunciation of the object in^n^roversy « frequently required from the defeated party , but whether the particularly inserted or not. the teL-b^ks lay dow„ the academic proposition that recourse to arm. i. not aeZ permissible for the same object. A treaty J JIT. ^ -n naturally provide for the settlUt oloSdbgCori disputes between the signatory parties, but on all S play. Consistently with that principle, except in so far as the treaty itself contain, other provisions, both parties keen what they hold when the instrlent i, drawn up ^ .4- Their Effects.— The restoration of peace revives all pnvate nghts between the .ubjecu of the biligeremrwhidl taS INTERKATIONAL LAW haye been loipended by the war: further, it makes raasom bills and the contract* of prisoners of war immediatelv actionable. '' The OMration of a treaty of peace commences at the moment of signature, and nice questions have arisen as to the responsibility of subjects for belligerent acta done after the treaty has been signed, but before they are affected with notice of Its conclusion. For such intermediate acts it is now agreed that there is no criminal liability. On the question of civil liability Lord Stowell expressed the reason- able view in the Mentor : ^ •I incline to assent to Dr. Lawrence's position, that if an act of mischief was done by the king's officers, through ignorance, in a place where no act of hostility ought to have been exerciwd. It does not necMsanly follow that mere ignorance of that fact would protect the officers from civil responsibility. ... If the officer acted through ignorance, his own government must protect him, for it is the duty of governments, if they put a certain district within the king's peace, to take care that due notice shall be given to those persons by whose conduct that peace is to be maintained j and if no such notice has been given, nor due diligence used to give it, and a breach of the peace 18 committed through those persons, they are to be borne harmless at the expense of the government whose duty it was to have given that notice.' In every treaty of peace is implied, or expressly set forth, an indemnity clause extinguishing all claims for damage done in war, or springing from warlike operations. « I will not Uke upon myself to say,' said Lord Stowell,!" "that a treaty of peace puts an end to all questions of property between the subjects of the states entering into the treaty ; perhaps it may be more strictly correct to say that it quiets all titles of possession arising out of the war only. At tlie same time, when a treaty of peace has been concluded, the revival of any grievances arising before the war comes with a very ill grace, and is by no means to he encouraged.' • I Ch. R. It p. i8i. * In the Md/y, i Dodion 395, 'M^' Z^W^. : CONCLUSION OF WAR „, .,*• °*^'»*"*:— Co?que« is the oermanent absorption of ail or part of the territory of a defeated enemy.i A titJe samfied two requirements. In the first place, he must posses, the material strength to make hi, conquest good, and inle second, he must have and exhibit, the intentL of approprTa! ,1.^ T^'" "ghts of an occupier naturally faU far short of those conceded to conquest, and it is sometimes difficult to drtermme when the one ha. definitively passed into the ^,JT^ ^^K- ^V^°^ ■'"' E'*«°' «f Hesse Cassel 7^c}t^Tr °\^" '^'"'^T ^y Napoleon, and remained excluded for eight years. For a year after his expulsion Napoleon governed Hesse Cassel 'under military law. and tT"^'^"'"^ " i" **' '''"edom of Westphalia. Jerome ?nT TkP'"'"* ° ■ ^' '^'■°°' "f '•'" «*ly seated T«?;t .nH 5 k-"k "'"'" n **" '■*=°8»»«1 by the treaties of Tdsit aad Schonbrunn. Prior to his expuluon the Elector fh.li» Ta^ °° mortgage to one Count Hahn Hahn : the latter had received a disr \arge in full from Napoleon on mmentofpartofthemo: ^vanced. On his rttuTn the S!^T TTy^- P"^"^' 'g^'"" ""= "'«« °f hi. debtor! who had died m the meantime, thus raising the whole 2TXfj^' ff'^ °^ *^''P°''=°°''' »«'• If Napoleon had effected a defimtive conquest of Hewe Cassel the HltT'rW^ -t aside lere welfrhin ht legj I"onS „'f i° "™' against the lawfiJly constilu.ed c2.«ri„„ A" '°^"y- ^''"' "^"^M^ance justified while?h, " F'vate property within the dominion, while the conqueror succeeded to all public property bv a speaes of umversal succession. The question was therefore one of fact, and was carried from the kcklenburg co^t^ rfai^rr''«°^u^'^'r"°'* BreBlau,and thence by way of appeal to a further University. This ultimate tribunal • Succewion by conquMt i. . .ptciei of univtrial lucwMion Th. eoa,u.ror succeed, to both the ««u «.d li.bUiti» of tl^ con,««I I 130 INTERNATIONAL LAW declined to recogniae the Elector'i claim on the groimdi that Napoleon'* conquest had been definitive, that the Elector had been treated by the treaties of Tilsit and Schonbrunn u 'jwlitically extinct,' and that his restoration was not a continuation of his former rule, but a government beginning de novo, and inheriting only what was left by its legal predecessor. 6. Othef Effects of Conqtiert.— The complete conquest of a country has the effect legally of converting the in- habitants of the conquered country into citizens of the conqueror's state. Where, however, a country cedes a por- tion of its territory to a conqueror, it is usual to stipdate that the inhabitants of the portion ceded shall be at liberty to retain their nationality of origin on condition that they leave the territbnr ceded. The rights of such persons were much considered in the American case of United States V. Repentigny,! when it was laid down by Mr. Justice Nelson on behalf of the Court : — ( 1 ) That on a conquest by one nation of another, and the subsequent surrender of the soil and change of sovereignty, those of the former inhabitants who do not remain and become citizens of the victorious sovereign, deprive them- selves of protection and security to their property, except so far as it may be secured by treaty. (2) When on such a conquest it was provided by treaty that the former inhabitants, who wished to adhere in allegiance to their vanquished sovereign, might sell their property, provided they sold it to a certain class of persons and within a time named, the property, if not so sold, became abandoned to the conqueror. ' ' » T. WalUce an. PART IV THE RIGHTS AND DUTIES OF NEUTRAL POWERS CHAPTER I aeaeni Principles of Neutrality between State and State I. The law of neutrality differs from other branches of international law in the comparative certainty with which its rules may be stated. The outbreak of ereiy war affords occasion for the exercise of neutral duties and the concession of neutral rights; belligerents are, as a rule, unwilling to add to their comphcations by the commission of acts which as between themselves and neutrals are of doubtfij legality and the decision of their prize courts have, on the whole, been successful m evolving a body of harmonious and intelligible doctrine. Supply of Troops.— The development of opinion has tended to impose stricter obligations upon neutral powers than were at one time required. It has long been verbally admitted that a neutral is obliged to exhibit impartiality between belligerents, and that the latter are correlatively bound to abstain, m deference to the sovereignty of the neutral, from making any military use of his territory or his temtorial waters. Earlier usage, however, was content with • standard of impartiality which fell for short of later re- quirements. It was common for acutials to supply troops to one of two belligerents, under a previous treaty, nor was the practice held to involve any deviation from neutrality. A treaty of 178 1 bound Denmark to supply certain troops in '3* INTERNATIOHAL LAW to Rtt..ia in the event of war. In 1788 war broke out 0^2.™%""* ^^'t'': J""-"'/ to 'he provision =„H hIJ^TJ ?"'°"'i ^''^^ *' contingent promi^d. to aweden. It ran as follows ; ,h«"ju^^*"if'l "^"J"'?^ •■" °'^"'^ the undersigned to declare P«c«h ,°"^^ he compfie. with the treaty betweefthe court "t riw J.r'' C'-P^hagen in fumis' ing the former with the number of rh.ps and troops stipulated by several treaties, and l^^"^^ '*"' °^;^*''^ y" ~""<'^" himself fnpVTct am ty and peace with his Swedish Majesty; which friend.hiD tt^r""' ^T'^P'"^' r'.'hough the SwediTh'arm, should pro^ n^ r^""'" '"."P"l»i"& drf"ting, or taking prisonSe Dan sh troops now m the Swedish territories, acting as Ru s 1 lwedUh'Sr""t'l,^"*l"°,''*S'- ^°' ''°'» he confeive fhat h^ Swedish Majesty Has the least ground to complain, so feng « exce?d" he nlw'' Tf, TZ ""'"^ '^ains? SwedenTn" de"™ that a^r^^H ''!'"* by treaty; and it is hi. earnest fZ^ .• 5"'u'"5' ""f* '^"""""cial intercourse between the s7.^k^o^„„°^.n'H"r"" f~* ""derstanding between the courts of Stockholm and Copenhagen, remain inviolably as heretofore.'" The Swedish representative agreed to the proposal on ^Ti:; J^'u*" TV""^'y »""«» '° he mereIySx)litic, and added that the Danish contention 'is a doctrine which his bwedjsh Majesty cannot altogether reconcile with the hir M.^Ti !?^'l!! °f J°''"«g>"'. '^nd against which his Majesty has ordered (Baron de Sprengtporten) to protest.'" This incident is believed to supply Te last occasion on which such assistance has been given by a neutral with impunity, and the practice may now be con- fidently pronounced extinct. The rendering of military assistance- by A to B, while the latter is at war with c!h essentially an unneutral act, and it is no answer to C's complaint that A was under contract to commit the act of illegality. Such an injury to C constitutes a casu MS, and • Cited ty Phillimore. • ^/./hW RegUur (1788), vol. «,. pp. jj^, ,,j. CHMERAL PRINCIPLES OP NEUTRALITY 133 the &ct that it may be impolitic k> to treat it ii without beanng upon the legal quertion. a. Hentral Money LoauB.-It would be clearly a tiola- tion of neutrality for a neutral «ate to make a monej 'oTn to a belhgerent, but the aue«ion h more open to do„b7in^S«° where the loan ,.,ues ?rom neutral indivWual.. Money i. an ordmanr commodity of trade, and. as will be seenlater the r^i"«*'! '° '™1« ™-»i-. 0° principle, unaff^trft 'w^ According to the better view, if the transaction i. mereTv a commercial one, providingfor the fo„^^^, payment oSn able mterest, u mvolves no derogation from neutrali°y cal 2 for government interference. To thi, effect wereTh Vi S«? .# '"'' "'"?" «'"''" *" ^«^P'y »° Mr. Cannini "n 1823 ••• With respect to loans, if entered into merely with com mercal v,ew. we think, according to the opinion! o "write" on the law of nations and the practice that has pre3 ^at they would „ot he an infringement of neutrafi?/ It' has been decked in America 1 and in England » tha it s Illegal for individuals to raise money by ily of l<Ln to prosecute a war against their own government, while the trw?;"" ""l"^ "^'^ '^'' °f '^' '^"^«'- In ca^. where the belligerent persons are independent powers thr^X r Ge^n^aTwar ^^ Sfk^r^J^lJtn' :tJZ- German Confederation loan were issued in England 3; ?^?"?«?» Enlistment-Volunteering on the part of Clwddf k' '" '^- r^'' °f bellfgerent? ha^ long been forhdden by mumcpal systems. In this country it was provided as long ago aV the' reign of George n^t f any subject of Great Britain shall enlist himself^. .' tVy foreign service . . . without licence under the kind's »! J manual, he shall be guilty of felony without blnefi^Xw^." • J^"™* *• Chamber!, 14 Howard ,g. • De Wut. v. Hendrick., 9 Moore 586. ■ 9 Gw, It c. 30, 29 Geo. u. c 17. >3<» INTBRNATIONAL LAW Such acta are, moreover, generally forbidden in termi by proclamation! of neutrality iuued on the outbreak of war. At i*e tame time, it ii held that isolated caae* of dis- obedience are not imputtble to a government which ha« obMned proper precaution*. There ia reason to believe that the number of foreigners serving with the Boer forces in the recent war was considerable, but there was no disposition to see in that circumstance a derogation from the neutrality of the States to which they respectively belonged. 4. Under the sanio head as the last falls the prohibition imposed upon neutrals from allowing tiieir territory to be used by a belligerent in a mode derogatory to the neutral sovereignty. Canning, in a speech delivered in 1823, referred to a memorable American precedent ; • If I wished,* said he, ' for a guide in ■ system of neutrality, I should take that laid down by America in the days of the pre- sidency of Washington and the secreuryship of Jefferson. In 1793 complaints were made to the American Government that *rench ships were allowed to fit out and arm in American ports tor the purpose of attacking British vessels, in direct opposition to the laws of neutrality. Immediately upon this representation the Amencan Government held that such a fitting out was con- trary to the laws of neutrality, and orders were issued prohibiting the arming of any French vessels in American ports. At New York a French vessel fitting out was seized, delivered over to the tribunals, and condemned. Upon that occasion tiie American Government held that such fitting out of French ships in American ports for the puipose of cruising against English vessels was incompatible with the sovereignty of the United States, and tended to interrupt the peace and good understanding which subsisted between that country and Great Britain.' » Mr. Jefferson's opinion was elicited by the extraordinary views of belligerent right held by Mr. Gen^t, then French Mmister m the United States. Besides the acts referred to in the above passage, complaint was made that he issued commissions to American citizens to fit out privateers and prey upon British commerce. Mr. Jefferson, in • note to ' Cinnmg'i Sfuda, voL v. pp. 50, 51. CBNBRAL PRINCIPLES OF NEUTRALITY 135 the American ambutador in Parii, indicated tlie element of illegality with great propriety : — •The right o» railing troops being one of the right! of loverti^ty, and coniequently appertaining exclusively to the nation itself, no foreign power or person can levy men within its temtory without its consent. ... If the United Sutes have a "?■?.'. •". '5™'* "* pennission to arm vessels and raise men withm their ports and territories, they are bound by the htws of neutrality to exercise that right, and to prohibit such arma- ments and enlistments.' > S. Alabama Case.— The wundness of Mr. Jefferwn'a ConcluMon has never been seriously questioned, and the pro- poMtion II now elementary that a neutral may not permit a belligerent either to arm vessels or issue commissions within the neutral jurisdiction. It has not, however, always appeared equally clear whether the neutral may himself supply arms and miliury equipment to belligerents. The better opinion is that mich sales are inconsistent with neutral duty in cases where the neutral state is itself the vendor. The Swedish Govern- ment acted on thii principle in 1825, and cancelled, in drference to a Spanish remonstrance, the sale of six frigates which had been purchased mediately on behalf of the Mexican insurgent*. The case of neutral individuals who, unlike their government, are traders in arms, is judged by a correspondingly different standard. Traffic in arms is permitted to such persons, and is powerless to compromise the neutrality of their government, but, as the supply of arms to one belligerent is clearly injurious to the other, the latter is permitted to repress the traffic on his own behalf. This Question belongs therefore to the subject of contraband. The dividing line between acts which the neutral govern- ment 18 bound to restrain, and those in which its subjects are permitted to engage at their peril, is not always easy to determine. If such a government is not bound to prevent its subjects from supplying guns to a belligerent, may and Vittel, Drut da gtn, m. c u. { 15. •»/■!*« «3« INTBRNATIONAL LAW it «,«!««:. i„ the preparation .nd .ale of «, ,rmed TeMei under the tame c rcumitancet ? 0» »,;_^-i;^^ ^' are hardly diMinguiihable^Th-,.- P"""!^' "« ««« njercal adventure which no najTon i.tnSlo prU W. '""" •'"'^'^'"w] waa tent to Buenos Avr« „T. ^ . ^ adventure, contraband ind«^ K.?, .^"°" " commercial law. or oir nat ond n'eiraS' ' Vhe diffi T •'°'"'"« »" ca« i. to determine wSer'^the Tetuntfe '''"''="'" ::t^;iJt^S'SirB^--=^ on m5 ,c, ,"S" '^TrVT':.r'T'=''«l « Liverpool the.tt«tionof iheBritSr "• ^'•'" "'"'t*^ ^^w ve..el wa. intend^ fo^rCoSaTs^^^^^^ !?!.' ""' ""' it« arrew. A week Uftr .k i ^'"'*'' ■"** '*«"««'ed proceeding, ufder the "0^"=^^^^ "^'^^ '" J»"'^y ceeding, Ihould be uLn « ^°,''"™'='" Act. «,ch prj! difficulty wag that the „r^ • ' '"'? V ?""*'''«•' The vujLjr wdB mat tne proviaions of the »v;m.'.» c Enlmment Act (to 6eo 1.1 r 'j'^ """"« P^/'gn miafactory. Thei? inadw^mrv ^ ^^- T*" '^ '^°"' wa. expressed VL7nLL,"te t^ M "P^"'"" prohibited -that 'equipment ZuofatjT^ "**'";' «e«.. of .ttac.^rl;:ntrSX;^S.%h": J 7 Wheiton, 346. OEHIRAI. nuNaPLM OF HEOTBAUTV ,„ increased rates of insurance in the U^hed S^-. ^ nece.«ry by their depredation.. (,) The t-n fer o^^^' American carrying trade to England A fT^I'T ^^ of the war Afttr 1™- ^°8'»'^1- .(3) The prolongation Tr*«l^ W^ long negotiauon it was agreed by the rre«y of Washington m ,87, th« the question. .H,l„e ' US. ,t p, 54,. 138 INTERNATIONAL LAW between the two countries should be submitted to arbitra- tion. The arbitrators met at Geneva in the same year. In estimating the legal value of their findings, it must not be forgotten that their authority depended merely on the man- date of two individual nations, and that the terms of the reference imposed upon them standards of conduct into the legality of which they were not concerned to inquire. The rules by which their decision was to be guided were con- tained in Article vi. of the Treaty, and ran as follows : ' A neutral government is bound — • First, To use due diligence to prevent the fitting out, arming, or equipping ♦vithin its jurisdiction of any vesselwhich it has reasonable ground to believe is intended to cruise or cany on war against a power vpith which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against a power with which it is at peace, such vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike use. 'Secondly, Not to permit or suffer either belligerent to make use of its ports or waters, as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. ' Thirdly, To exercise due diligence in its waten, and as to all persons within the jurisdiction, to prevent any violation of the foregoing obligations and duties.' 6. The Award.— The Arbitration Tribunal, on this reference, condemned Great Britain to pay to the United States in respect of the damage done by the Alabama, the Flori4a, and their tenders, the sum of $15,500,000. The American claims in respect of indirect damage were rejected at an early stage. The three rules on which the award depended had merely a conventional authority ; they are very vague and general in their language,' and they appear to throw upon neutrals duties of intolerable irksomeness and • For inttmce, the whole qnntion turns on the comideration what is 'due Jiligence.' The phrase is naed in the roles u if there was an accepted standard. 'W *^ M GENERAL PRINCIPLES OF NEUTRALITY 139 re«pon»ibaity. The diyiding line between legitimate and Illegitimate commerce it very difficult to draw in particular case*, but the distinction of principle ia leas obacure. The export of weapona by neutral subjecta is a legitimate branch of commerce aubjecting the gooda to aeizure as contraband, but in no case involving their government: on the other hand, a neutral government ia bound to prevent its subjects from handing over a commissioned armed vessel to a belligerent within neutral territory, for to do ao ia to countenance an expedition. A veaael may without illegality be bniltj armed, and tranaterred to a belligerent wi'Jiin the territory if it ia neither commi' 'oned nor ready for immediate hostilities. A tendency haa been ahown to extend on -hia point bel igerent requirements, and it ia likely enough that a violation of the above rule will be held to have taken place where it la verbally observed, but broken in its spirit. An effect of this tendency may be found in the increasing stringency of municipal requirements,! and a resolution of the Institute of International Law in 187c supplies a fiirther illustration.' 7- Terceira Incident— The well-known Terceira inci- °"' e'tabliahea the principle that a neutral must use reason- able diligence to prevent colourable violations of ita neutrality when the aeveral parts of a hostile expedition, each being in Itself innocent, leave the jurisdiction separately and combine outside it. In 1827 during the civil war in Portugal between Donna Maria and Don Miguel, Count Saldanha left Eng- land with four ships intended for the service of Donna Maria at Terceira, but bound ostensibly for Brazil. The expedition was unarmed, but military stores also clearing from ' lUljr, Auitria, Spain, and Denmark forbid the equipment of arme<l vesaela for a belligerent. * L'fitat neutre cat tenu de veiUer i cc que d'autret perionnei ne mettent dei raiaieanx de guerre a U diapoiition d'aucun del ttit* belUgiranU dana aea porta on dana lea partiea de mer qui dependent de aajoiidictisn. «40 INTERNATIONAL LAW ^.8 country had preceded it. It wa. intercepted I«r H.M S Wr off Port Praya in Terceira and escoTted Sck. Tte S Port "" ""'«'y J'-^ifiol'Ie in e.«„ce, b« it^ eler! treat" Jr*^."^,^*'—^''' P"'"" ^^ich still require ^U under'°M^^"' '^T- ""f^ ^ "«"' convenientlyle^t with under the correlaUve head of neutral rieht. thouah ^e observation of Mr. Jefferson already quotfd must not rtaSoSftf' ^?.^ " ' ""'"' go/ernVnTe";;, a fh ^'""■"["""-"'hen both entitled and bound to demand hat the belhgerent, shall abstain from hostilities in Thrir terruory or their territorial water,. In ,863 an Amertan cl^JIrS'^fr'^ "r^^'' the Confederate ve.«l ttyft u ^'""'''°' " •'"'"'" °f Nova Scotia. The aS2,°' "'', '" *r r '"'°"''y """•ntained.^nd the Amencan reply to the English complaint could find no tt Inflt "' r"* ""'." ."'=" '^^ "P'-i" had acted 'under the mfluence of a patriotic and commendable zeal to brine to numshment oudaws who had offended against the See Stfwete f.^""- ''?"■"""•' 1° "'' ^"""^ Lord wSthJrn,^! 7"'""°° "I." '""'^hantman captured ^thl M- ."".'"."f '°™* """d "land* situate in the mouth prilaSr h« 1,^ . T"""' '"' observed.' 'that the privateer has laid herself open to great reprehension Captain, must understand that they fre not'^o .^"o,; them«;lve, in the mouth of a neutral river, for the p^^ i^trer;rr it^if.^ °^ -- '-- ^"^ -'» --r Bynkershoek" maintained a qualification to the above h«^- . , '"^^ed that a belligerent might legally pu.h home to neutral water, a cha« commenced in the opJn'^ ^5 C.Rob. ,73. "P. 385. t-y-'^) Wf. GENERAL PRINCIPLES OF NEUTRALITY ,4, He might finish hie capture Jumfirvet otu,.^ The aIle.r«J exception 18 unaupported by authority ^"e alleged 9. A belligerent attaclced in neutral territory forfeit, his redre.. against the neutral, if he attempt, to defend h,m elf thi. doctrine *a. laid down by the Pre.ident of the FTnch Republic acting a. arbitrator in the .General Armstron? d. pute between thi. country and the United StateT The ruling 1. at first ,ight harsh, but it is strictly loS The a^rieved belligerent has -made his election' G^en Two remedies, and hi. resistance, though defensive, walTtLlf ^ territory. A belligerent who ha. sufi^ered from a violation the neutral shall take such .teps'to procure an indmnitra he might reasonably be expected to adopt, having r3 to LvolTe^'!'""''""' '" ' "" '" "''"='• ''^ »*- -tererwel: 10. Eight of Aayltiin.— A neutral is allowed, consistentlv with his continuing friendship towards both w£«ntT o curjn?'" ?T' °' '"*'" ^''^'^ hi, territory^ 'cir cumstance. which ensure that the um of his hospitklitv wUl be unaggressive m its direct and indirect results. Undl theS^ S:randr,8^rlT^ '°"?'" ^"-^ obtained ".tVerl: inThecatofln/f ®"'='' ''='='^P"™ " P'o^rly conditioned, ^ «L }■ ^ ^°''"'' "P°° *° agreement by the fugitives wittnTneSr>'""°T«'''=''°°''"'-<^»^^^^^^^^^^ wrof mJr '"T'^'u"' ^°"S as hostilities last. In the case of maritime warfare the requirements of neutral hosni tahty are less exacting. Thus a neutral may frw y supX repair,,pacific stores, and sufficient coal to carry^KlieeS vessel to the nea.est port in her own countr^ It wafsrn coT'l'* f th« practical assertion of nTitnd precZ veil ^^ ^^"^^ ''y 'h' "''* °f 'P*'^"' "strictionsrwhere ves^Is belonging to two belligerent, both happens! o m^ m the ^me neutral harbour. Early in Uie eiEht«^n^ century the practice sprang up of detaining a priva^r v^l ' While tbc ch«ie it hot. '4a INTERNATIONAL LAW elusion that ! condemS oFa "^p £ K' '" ,">^ *=?°- court. sitting i„ the country of thTwiit^LS" P"^' yng at the time of the s-ntwce in » n . ' . * J'"^.'' irregular but clearly valid ' V^Zl 1 "■"' P""- •» mou, in denying IZtiu. f Sh'rC itn-"""- GENERAL PRINCIPLES OF NEUTRALITY ,43 11. ^sage throturh Neutral Territory—Opinion b.var.ed on the question whether a neutral may proS pmnit a belhgere- army to pa., through hi.^erriK Such a permi..,on wa. formerly held To be consisten be ligeren .. The qualification i. not perhaps very reason able for it may very easily happen thaVa pas Je\Z-h neural terntory which is of importance to one^Llterent ^ru"!„'^T'''8*= *•""<='" '° the other. A bel ferent will hardly demand leave to pa.s through such tSorv from" Itf r \'^'"l' """' -i'itary'advantage therZ &'. . """ ">e pen„i..ion to do so i, i^neutrL. Vattel. general .tatement> of the duties of a neutral is accurate with a single exception, and it i. decisive upon the point : A neutral is bound not to give any assistance excem where there i, a previous stipulation, nor of t own will To fiimish troop,, arm., ammunition, or anything of dL«u^ m war. He adds that to give assistance equally isXurd a state cannot equally assist two enemies, ^re same tWnl' the same number of troop,, the like quantity of armband of mumtion, furnished under different cLumstnceH^ no onger equivalent succour,. This view has prevailed ^n later tjmes. and Phillimore* alone of modem S, su^ noticed that Vattel make, a reservation in favour If t£ neutral when assistance is given pursuantly to an exL^! reaty. and Mr. Hall notes 5>at th^ questioJ i^ght st iT rfsf leads from the interior of Germany to the RMnl through the Canton Schafn,ausen.T^ Getn^^a 'aS ^R^ • .' n *'""'' """ ^--t-y was recently engag J Sir Frederick Carnngton was permitted to land at Bd« H Portugue* territonr with an English force on k. way to ' Dnit Jtigm, lib. iii. c. 7, g 104. • "^ i 'Si- * '44 INTERNATIONAL LAW .^^ • i uPJ*"' *" "^ Transvaal GoTemment pro- V^J^ '^^ concewo,.. which wa. defended by the that England had rtipulated for the right of paMaeein I'^^l'T'- ■ P° ^"^'^t ">'' '^« of defencVZ n" ^nH ^'T,?"?^'="?7- "^' '*'^'*» »■« belligerent A oemgerent, a right of passage, or it is not. If it i, not, £ nirt; If •* "' •'fr "^ C defend himself to A X fte^plea that he was under contract to perform an illegil ) C/. p. 132. CHAPTER II Mllgenat aoyemmenta and NeutrmI tadMdualM h;.Sn"^„J^'*?^~l-^"" ^"^^ °f international law Has been produced by the compromise between two irr«-„n cdable pn.aples.whicl, may be generally sta.^ a. followt^^' (0 Neutral, are entitled to prosecute their trade during the continuance of war. * (2) Belligerents are entitled, for military purpose, to exercise a quasi-penal surveillanc? o'veTc^^n forms of such trade. ««-*l^"i*'!"P*"^' '° "°"« carefiJIy the Wal charaeti-r of act. which are prohibited under this head. The rimpU fe r-" ^""''Y ^ "^* "^^ '" contraband gcS /"nma facu a neutra power has an arwl , A^\., . S"™"- i^ uade with each ofao^'li^^^durinl':^^?!^^ ^ before its outbreak, its friendship^ towards £^^ parties continues, and it has, in a general wa?. full"b^rtv to It tK?rT f"^^ °f '"'"'''' '^"^ unre«.icV?^„ewaI •tthehands of neutral traders. At this ncin. the il' 'r ^ais nave definitely given way before iose "of "belli- ^■.'rJ " ""i" ^°^'^"' ''"•^*«' to ««te that co«i band trading, or the running of blockades, a« illegauS. OiC^ '4« INTERNATIONAL LAW arrest and capture, when found on the lelthe hLr^A '°. nations, any munitions of war which a« V,L ^^^^- °^ temsported in a neutral ship to t. eTem^ " Th^ n-fh,"*^ '^•"? the laws of war eive to a beni<r»r,n» f„.T-^' ""• "Si", which involve a, a conSjuence tha Et of the ^""rT'J'^. "°* transporting miTriont rf war ,o^ Jn.l ?^ '"""J!^" '" " 3. In the case of contraband carriaup th» .,„.;„ yrings from the nature of thrSand?:. "XelH declaration of blockade entirely withdraws from tride a 4r ttcdar area, and applies indifferently to all kindsTgoS" In both cases, however, the controlling principle is idelSl » 34 L.J. (Bkcy.) at p. i«. BBLLIOBHBNT GOVBRNMBHTS ,47 belonging to the HatSrf n^utS'^'Tt cot« —'"^ itsejT The D«cti.!rin '•'' 'PP*'" '° ''»^« e.tebli,hed ae„t«. trade in/oltS'inlVfc^S S^'r^^fiS uJ^^InX Itf'.J ■''*'"''*"'y°'^'' commercial bloclcade v^Uiout tSe „L f ' *"•""" '^ '*"'°«t« neutral trade hdtl"iP'"4 rWv'""'«""i "'T"^' -^ =KJ:^- -irs-£H: a^ ■qnadron to make it effective If thi. J, 7- • T^ treated as estabMed Jt ^ n^ Jon 'T. ^ ""If " '° ^ the proposition that the n^u lal rXt^H; ' '"• '"^^ affected by war excpw ;„!„<• ^1 ^°' remams un- to belligereToieS " Mr^H^ir ^E^ad' °'?"™«''^ forcible one 1 :-L ' "Justrauon is a very JJ^^^^gtot^^ usage, it would be legitimate in a war * Mmmimt/ Law, p. 657. IMTBRNATIONAL LAW I4« •Jong the frontier. oTc^^ °" "" ^*^^ «a6o«d «3 "entative, in Europe !_ '° "" American repre- if '^''^^r^tntiJf}^^„^'f '^ '«<?. 'rith a view to matenaJ. nece,»ary for ft. def7nTeT7*- '^PP"" "^ ">« «>" fccuting hostilities which c^^o?' hi K-^'T" '""'• "^ P«t^ . ■• recog.ii,ed a. an arbiter of T^nn "f .?''J«««' »<> k> long a. w« of a coa,t, or of 'com™ °cii"'°°? .'''»?«"• Butthegl<S «ny.ne on a war ^7stT^^'2d1^^'l^ "" "''^ ''"'W the trade of peacrful and frien^v ^ ""^"y """« "K^inM •gainst armed men, i. a proceedrn/ f^u'"'. •"»**«<' "f • war c3e with jeason or' the oS, rf^ " " •'"«^"" *» «»» eveor creek and river an/hXur ,m "* """•• To watch order to Kize and confiscate e"er^v«"P,°"».°«'an frontier in •ng to enter or go out w fh„?»^ ^ """^ '" «»^ attemot- ob^ct. of war, i.^ Se'^f'^^idSTosrt^^" '^'^« «nd few advocate, if now fir.t ptaf^r'^^J.^Sr"" on .11 legitimately acVuirLt;IT/l! "«''•' °^,°"«'^» ^ car^r what i. known „Te^™f''"r'y'^^«'«°«' by righteenth centnnr Earope^n coL^?' t^ l'^-^.' ^» '^^ the line, of thelngKviS T ''^ '"S"^*^"" "PO" of restricting the commerw Trrir .' *"' '" '^' ^^ their own countiy. El .hf » *'°'°''"^» 'o vessel, of '7S6 the French beSe^tu!^ T^V^t =°"°"y « weakneM upon the s^Ln^^ ■ ''""'«'' '^"^ "-elative colonies. -They therhi ^'^'°? °° "^e with thri^ mother-conntry^and her Sir" "^^ '^'^' •«*«» ^' -Un^^Sludeotherta^ir ^het'f'l"' "« couru thereupon condemned all S vSf ^^^^"^ ^HiirJiSt BELUCERHMT GOVERNMENTS ,49 Fmnce. The rule wiT^^^^i • "'•"=''■« «<rvice of ««ny which h\d not t^°'°o"'l' »"^ ^'«'' t°wn.'of the principle upon which hrPn Tu }^^°'' ">* ^'•- The " «n indubitable riRht of thlh^uZ "^aniing [colonies] ? It •Vch place,, a, of any other ^^,'^fc' |,° P°«'" himlelf of h.. common right, but he has ?he?rn=," •"' "Z'"''- Thi" i. . riglit into efllct if he h« a 5S ™!!"' "f ~"y'"F '"-h A the belfentTcots:-td1frhe ^f """'' ^^^S direct his means to such an obierr»h.! • t"!S*rent chooKs to perfectly neutral, to .tep^'in td' prev n't^^?" " ''"•'"' P""?' «iMmg interest of his is affected bv^h '''•"•"on t ^fo "PPly to his own use the beneficial V„ni "" ^"^ "° "^ht to of t{,e belligerent, and to av «Tn?, •f^"""l°'^""= ">"« "« •m,., force/ such' places o^r'ofTh^ex'l' ^°" '""^'' "^ '"'"« "^ Meniy, but I will .hare the benefi/of 1'"" P<«»"»'on of the •h-ringit.benefiup,e^„tit's™„^^,'h' ~"<l""t. «,d by letter ?oV':?fMdgte'i"lf T ^^^ ^°''-' ^ ' that neutrals were entitled tnP!'"'*' '3. '805, insi«ed blockade. andTontrrnif to and^*'" "',^ "'='P''<'° "^ enemy, and in all aS Itn ^^u**" '*" P""" "^ '^e We Len opened toThet'in'^^S 'at '^1^\ '"'"''' T npon the whole prevailed amon^ A^^ • " ""=" •"" juriBU, though Chancellor K^n? /^'"?"5»» "tatesmen and opinion.' ^ '-nancel'or Kent has intimated a different • » Ch. R, It p. ,„. Kent, Cw., yoL i. pp. ,0^,, 150 INTBRNATIONAL LAW belligerent rightt. following caiet : — PhiIliniore> uwfully diidnguUhet the (i) The carrying on by the neutral of the trade between the belligerent mother-countiy and the colonies. (i) The carrying on the coasting trade of the belli- gerent— luch trade being confined in tine of peace to the belligerent wbjects, (3) The carrying on the trade by a neutral from a port in his own country to a port of the colony of t|>e belligerent. (4) The carrying on by a neutral of a trade between the ports of the belligerent, but with a cargo from the neutral's own country. In the first two cases the view seems reasonable that a neutral accepting a licence to trade in effect incorporates himself m the enemy fleet, and may fairly be treated as belligerent. As Mr, Justice Story expressed it : « The pro- perty IS considered pro hoc vice as enemy's property, as so completely identified with his interests as to acquire a hostile character.' English lawyers will find little to criticise in the conclusion of the same high American authority on the generalSjuestion. «The British,' he continues, 'have ex- tended the doctrine to all intercourse with the colony, even from or to a neutral country, and herein it seems to me they have abused the rule. This, at present, appears to me to be the proper limits of the rule, as to the colonial trade [with the mother-country] and the coasting trade; and the rule of 175° (»« « was at that time applied) seems to me well founded ; but its late extension is reprehensible.' In fact the extension with which Mr. Justice Story quarrels can only be defended on the assumption that the rights of neutrals are confined to trade which they posgewed before the outbreak of war— an assumption quite impossible to teccmcile with many fects which are not in qnestion. ' ItUrMttKKa/ Ltf, ToL lU, f, aj^ BBLLIGBRBNT GOVBRNMBNTS 151 7. Oontlanom yonf--Tht Bngli.h application of the rule in 1793 was rendered tttll more acrere by what waa known u the doctrine of continuoua voyage. Croera in cwoncil had to far relaxed aa to allow the importation of the produce of the enemy's colonies into a neutral country, and Its exportation thence in a neutral bottom. This led . . colourable evasions by neutral shippers, and the question w.r! much discussed by what evidence the ionaf^/e of a trans i.p- ment was to be established. Lord Stowell held that ,nf hndmg of the goods and the payment of duties in a neuti il harbour was evidence enough of a bona-Jidt importation : • II" these criteria are not to be resorted to, I should be at a loss to know what should be the test ; and I am strongly disposed to hold that it would be sufficient that the goods should be landed and the duties paid.' » The real issue in such cases was well shown in a short conversation between the Court and counsel in the Polly*-.— Court — 'Is it contended that an American might not purchase articles of this nature [in Spain] and import them, bonafde, to America on his own account, and afterwards export them ? ' It was answered. No ; that was not contended ; but that the tnith and reality of the importation for his own account was the point in question ; that all the circumstances in the case pointed to a near connection with Spanish interests ; and that no proof was brought of the payment of the duties in Amenca, nor that the transaction was in any way conducted ■ like a bona-Jide importation for the American market. In the later case of the Wiirtam* the test was stated by the Court of Appeal to be more general. 'Let it be supposed,' the judgment ran,< 'that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading, and that he therefore lands the cargo purely \nd solely for the purpose of enabling himself to affirm that it waa at such \ The FMf, 2.C. Rob. at p. 369. •At^,f5. isCRob-j^s- «At^J9S. «s« IKTBRNATIONAL LAW i other place that the good« were taken on bowd, would thii contrivance at all alter the truth of the feet ? ... If the voyage from the pUce of lading be not really ended, it matters not by what acu the party may have evinced hii desire of makmg it appear to have been ended. That these acts have been attended with trouble and expense cannot alter their quality or effect. The trouble and expense may weigh as circumstances of evidence, to show the purpose for which the acts were done; but if the evasive purpose be admitted or proved, we can never be bound to accept, as a substitute for the observance of the law, the means, however operose, which Have been employed to cover a breach of it.' The rule of war of 1756, and the doctrine of continuous voyage, will anse less frequently now that the colonial system of Europe has chosen the better part of unrestricted intercourse, but it would be very premature to suppose that either has disappeared from the existing rules of international law. CHAPTER III Tbe Law of Contraband 1. Il est considere, de I'aveu de toutes les nations «Je I'Europe,' says de Martens,* 'comme contraire a la neutralite de permettre a nos sujets de transporter vers les ports de Tune ou des deux puissances belligerantes de certaines marchandises qu'on designe sous le nom de contra- bande de guerre.' The observation, for reasons which have been stated, requires qualification.* It is not a breach of neutrality for a neutral state to permit such traffic, but the belligerent government is left to confront, and exact repara- tion from, the offending neutral individual. 2. ClMsiflcation of Contraband. — It is, unfortunately, not possible to put forward any hard and fast classification of contraband articles. An article may be contraband at one time and innocent at another. Orotius » divided all articles which may be the subject of neutral trade into three classes: il ) Articles, such as arms, which are useful only for war. 2) Things which merely serve for pleasure, and have no warlike use. (3) Things ancipitis tuus. I.e. which may be used equally for peace and war, e.g. provisions, ships, tackle, horses. It is clear, he observes, that articles falling under class (1) ' Pricii Ju D.-dt Ja rev, lib. viii. c. vii. § 318. • Cf. OroUo, Dif. il la Mir, ii. 199.—* II ne I'agit pii d'sctet d'un gouveraement qui rompriit U neutralitiL maii d'«<to de putieaii-n qoi uercent kur traffic' * Lib. ui. c. L I 5, IM :#Ji# ^ '54 INTERNATIONAL LAW are contraband, and equallv clear th,* .i, , . »n»e. In such caiiM »,- „k "*%*"»' difficulties mainly contraband, Heinecdw "fo'f^ * ""y^"""' writer on di«re««l fSrThe ,,J^t oTthi^J^^f""^ 5 ^^e enemy ii «"Pply from any oTher L^'' '^4^"^^? '^ f^^ • Court in the kJof^^X^J^^'' •'"*'«'"'« °f 'he Grotian arrangemeni- A stri^" "'"• "*'«'«1 ">« classification if Irh ' tnr^'^ uf '"T "»'' "^'factory best supported bfATrican'^and'R 'V- .''".' ^''" ^"<=h I Mid to divide alf meTchr^- " Z^^"^ ''«'""°"» ""ay be classes the fi 7ont^Tf 'ZT'' '^'^J' ^^ '^ese Primarilyandordinarrusedfor,!!;:; -"""factur^d. .nd of war/ the second'of aSefwhT^h "^ ^:T^ '" '^'"^ for purposes of war or ^rl , .^^ ""^ ^ """* «« "'"l andthe^hird ofTrticTes «cLn"''!:!, '? "'«^"™»tances ; POK». MerchandfsL of £ fi "f ^' P*""^ P"' belligerent countrv nV „? "? *''^»»' <le»tined to a ^-econd class is contSd ^if k ' '""chandise of thi •«j— aj'ir.ft.Vc.O.™!,^"* '^'» »t«»m .liunt. j^ * VoL ii p. ijo. ' • m ^jrmii^r^rr- THE LAW OP CONTRABAND 155 •j'** ?^^ Stores.— In the Maria^ Lord Stowell con- •idered the case of naval stores : « That tar, pitch, and hemp gomg to the enemy's use are liable to be seized as contraband m their own nature cannot, I conceive, be doubted under the modem law of nations ; though formerly, when the hostilities ot burope were less naval than they have since become, thev were of a disputable nature.' Nor is it material, according to the bnghsh view, whether such articles are destined for fK"'^»L';t'" P°" "' '° " P°" °^ """^ '"''''»7 equipment in the belligerent country. Thus in the Ciar/ott,} a number of masts on a voyage from Riga to Nantes were captured by an English vessel. The Russian owner appeared to resist the validity of the capture, but Lord Stowell directed condemnation. It appears therefore that in English courts naval stores, like arms, are treated as being absolutely contraband, and a statement to that effect is contained in the Untish Admiralty Manual of Prixe Law. S- ProvisioM. -Among the articles which are described as bemg occasionally contraband the case of provisions has excited the most frequent controversy. In the Jongc Martaretha^ cheeses sent by a Papenberg merchant from Amsterdam to Urest, where a considerable French fleet was stationed, were condemned by Lord Stowell, and his judgment contains a valuable analysis of contraband character. He observes ■ « 1 take the modem established rule to be this, that generally provisions are not contraband, but may become fo under arcumstances arising out of the particular situation of the war, or the condition of the parties engaged in it.' He goes on to enumerate three causes of exception tending to protect provisions from condemnation as contraband. First, that they are of the growth of the country which exports them ; secondly that they are in their native and unmanufactured sutej thirdly, and chiefly, that they are intended for com- mercial and not for military consumption. The American doctrine does not differ from the English on this point. In • I C. Rob. It p. yixa. » iCRob. i«9. • 5 C. Rob. J05. * At p. 193. »s« IKTERMATIONAL LAW had iLn put on bLrl an a" ""^° u^ H''"^' =""1 fl""^ ostensibly documented for vl^le R«1 iJ P^"^"? "V^^'' Stowell condemned the vease and mI '"/"""g" • Lord aWe as sufi2«tine that 11' • / f'^g'^^" " notice- condemn afPolil^'^h^t i^Seil^mrta'"^^ " sumption or not :— "Jtenoed tor military con- ment might have availed itself ^thHtlr- j- " g""'"" enemy's country as an f^r^'^o^ ^^'dT^l*^ would hLe^Lt^'J^'-^de with «, «.ch libenJi^ good faith both by^airl'tr'^^'^'TJ^' "^ -w of her rights: En'gland hadLi^^-in .^3*^2: beanng provisions which mere de»ri™^ »;, c »"'««* and in her Chinese War in ,88 c Fr^^ ^' '^^ P°^ • « Wheaton at p. CJ7. » 6 c n^t. ... ' " '. ' "~ "*** P S»7. 6 C. Rob, laj. • At p ,jj THE LAW OP CONTRABAND ,5, been conddered in connection with the rule of war of i7c6 /■^^"l"*" J"^«" ''*'<' "" '•« Bermuda^— ^^ ' (i; That voyage, from neutral port, intended for belligerent ports are not profited in respect to TZ'^'t''^'^^ »' ^^g". ''y «- intent K 1^^ TK . pretended to touch at intermediate neutral w^u (a) That contraband is alr.ay. .ublect to .eLu e when {,\ r> ,.. 'H'^ ^yS' l* "Jirect or indirect. (3; Des, nation alone justifies seizure of contraband. two of the voyage to an enemy's nort. t,"™.P™^<="- »«•. which was also acted upon^i^ thTcase^f th T'.'? Cwirt at the time, has admitted: 'The truth is thit Vh! 4fV^r^:Sn^S:^-?st^- ca^ let^'S '° '?/'^^^'=''°° - ultimate desLation'n pon is in fact establi:d.^T ifartted'°:£^/revrdrc^ It^ =J™^'^V"T""y «™°g' •'« assuming ftoliTo , \„ „ ' " ' ' '-"'■-' "'""C" 5 aittum in the • \ CRlh'A'* ' '^- "■' *™;*«^ 5 Wallace ,. 3'-'^''''•'«^ '3 Wallace 55^ »S8 INTERNATIONAL LAW 1^ .ahsfactory argumenu. Yet by no other means 3 the legmmate rights of . belligerent be e.^orred Tn ^ where the only approach to hi,%nemy', count^fromT «a... through neutral ports. The right for wUch Lo^d Sahrt,u,y contended ought, no doute. to be appui n practice with extreme considerateness and care U. it s cnannels. It may be remembered that Italy, in her Abv«. "man campaign, held and acted on the EngUsh vieS^ ^ trah^nJ-"'^*^-~T'>'= '>J<^^ Penalty for%arri^grof con- meSto ,l°'^'«''«>Vf 'he cargo, bui if the article. Long T^^. r ! *"'*" °' occasional contraband, or if thev are tion takes the place of confiscation. The modern rule is that K;ider tr' '° •^-'J--'-" f°^ trying contt Loti V/„ il T " "5"''" ?"'='''='= *"» otherwise! and as Lord Stowell observed in the A^«</r^r/.2 it was wrfectW enemy with such articles is a noxious act with res«ct to eenerJ IT, I ^ •P"P°"' "''"°' "^ '""o^^"'- The general rule, however, is that the vessel does not become fh. .k- * P- °"S8 to the owner of the car^o, or where or raise papers; these circumstances of aggravation have b«n held to constitute excepted cases out of the modern rule, and to continue them under the ancient one.' a ' Blue-book. Africa, ioqq w- •3C.Rob.p.t96, ' '■"■ * J C. iioo, Z9J, CHAPTER IV Tbe Law ot Blockade I. Different Views — In the rules which reoulat- fi,- :- adcnt. of blockade, considerable diveTgence ex£ betw^^ hand and that of the chief continental powers on the other comtfcera^I '"k""^ '^""'^ ^'"^^ obstruction of hons It would be clearly unfair to neutrals that thev should a^e?r^ 'I '^' r"^'^' °f blockade-runningS thtv J *^?"*"*f °' "le necessary notification. In EnnlanH and the United States it i. the practice to notify neuS ^oyernments bv a declaration of blockade, and such a noS » constructivefy held to affect their sub ects. The la er are therefore not entitled to sail for the blockaded mnT In the chance that the blockade may have S: ' us^S Z ^e interval between their departure and thei^ aSval SdeT'tf trl?r tT^Z '^"" ''""«'' » -fficientt te iultifi^ hM, ? 'f "c'^ '\'*^'y condemnation may be justified by the simple fact of notoriety.i The Enalish Tiew was stated by Lord Stowell in the Jo/umiiaT^- 'But it has been said that by the American treaty there must be a p«v.ou. wammg; certainly where vessel. Jl Sout a Spinki 13;. ""'• ■'''=»"^' "'" "'■ i-uMington in the Frmia^, ' I C. Rob. .t p. 156. ijp^., l6o INTERNATIONAL LAW knowledge of the blockade, a notice i> neceisan, but if nm »„^^ t'i, """"""y- °f •"> "«. ">«" therefore not to be wSr^; J """""• '^ /^"""P^f". «nd all nen»n. intrusted with the management of the vewel, appear to ^ave been suffi- ciently mformeJ of the blockade, and therefore they are not in the situation which the treaty supposes. It is said ilso that the r«if K ,"°'.r"^' "'*? *' °ff">ce wa, not act^allylm mitted, but rested in intention only. On this point I am clearly of opinion that the sailing with an intention of evading the Diockade . . . was a beginning to execute that intention! and IS to be taken as an overt act constituting the offence From that moment the blockade is fraudulently evaded.' In the Columbia,^ Lord Stowell laid it down that, under no circumstances could a neutral individual be heard to plead Ignorance of a blockade previously notified to his government. He pointed out that «it would be the most nugatoiy thing in the world, if individuals were allowed to plead their ignorance of it ; it is the duty of foreign govem- menta to communicate the information to their subiecta. whose mteresta they are bound to protect.' « I shall hold therefore, he continued,* 'that a neutral master can never be heard to aver against a notification of blockade that he IB Ignorant of it. If he is really ignorant of it. it may be a subject of representation to his own government, and it may raise a claim of compensation from them, but it can be no plea m the court of a belligerent.' The American view was stated in the judgment which Chase, C. J„ de- hvered on behalf of the court in the Circastian : »_ bjr the «,urts both of the UmteJ States and Great Britain, that sailing from a neutral port with intent to enter a blockaded port, and with knowleage of the existence of th blockade subjects the vessel, and, in most cases, its cargo, to capture and condemnation We are entirely satisfied with this rule. It was established, with some hesitation, when sailing vessels were the on ly vehicles of ocea n commerce j but now, when steam 'aCRob. iia. "Atp. iij. 'a Wallace at pp. ,5,, ,5,. THE LAW OF BLOCKADE i6i ind electoicity hare made ill nationi neighboun, and blockade- ~nnmgfrom neut™i port. «m. to iJtht^orgt^^^ be mdispen«ble to the efficient exercise of belligerent righti.' The practice of France, Italy,» and Spain i. more m- dulgent. The neutral trader is not affected with liability to •eizure until he has been oflicyiy notified of the blockade on the spot by a vessel of the blockading squadron. a. Two mitigations of the English and American practice may be mentioned. In the first place, vessels enterinB • place under blockade Je facto only, or clearing from a home port before the public notification, are entitled to a particular warnrng;* in the second, 'where the port of clearance is very remote, lying at such a distance, where they cannot have constant information of the state of the blockade whether it continues or is relaxed, it is not unnatural that they should send their ship conjecturally, upon the expectarion of finding the blockade broken.' » But as Lord Stowell added, and for obvious reasons, this inquiry should be made not m the very mouth of the river or estuary from the blockading vessels, but in the ports that lie in the way, and Tf f d*° "forraation without fiimishing opportunities • ^" VS^ Blockades — It was laid down by the Declara- tion of Pans that blockades to be valid must be effective, i-aper blockades, or such as are not supported by the material strength to make them effective, on the spot, are no longer permisBble. The Napoleonic wars pushed this form of blockade to Its illogical conclusion. The French Decree ot Berlin m 1806 is well known: Art. .. 'Leslies Britannique. sent de'claree. en ftat de blocus.' est dffendu ■ <:'""">erce et route correspondence avec elles \ r'T ?'"'''''• ' ^- ^"^^ '5°. P» Lord Stowell it p, » Per Lord StoweU in lie Bny, i C. Rob. at p. 314. 240. 5*. i6a INTBRNATIONAL LAW not, and would not, have S^n drfJSJ^^ I i^*?^," '^T """^ communication. „n„deSeKte?L:t'alJyS'°°'' ^«i^: mT:'-^.%^16 '^* ' '^ ^^-^' « '^^ Rob. M6 , .h. • The Frmciska, Spinlu 115. • See the FntUrici MeBu \ C D^ .<- »f»"f,«C. Rob. ,.6 ' *^* ***• P- "? "'' «"np«« th. ^ 6 C. Rob. It p. 117, ,:* 'Ij-lEV THE LAW OF BLOCKADE ,63 -k'vl^*" • •quKlron ii driven off by accidentf of weather Iw """i '"Sr ?'""^ '°'° '>'« contemplation of the be»S S>TxS"trr^rKf ." '.""«• ?f 'y'-. -ce itciuU not oe expected that any blockade wou d continue manr month. a" 'Luadrof ^ '^•^'' '" S'l'' '""P""^ interruptior^But ^hen S3 Y^ f *"'''' * '"• '•'* "«""»> merchant >• not tound^ to fore^e or to conjecture that the blockade will ^ 5. Continental Practice.-The continental «andard of eifectiTene.8 1, much more exacting tlian that which i. de«:nbed above. It i. fairly expressed by Ortolln.who refu«;8 to recognise any blockade unle.. .tome, les passeHu avenuea qui condmsent sont tellement gardees par de force, S"'*""*"*"'"',''"? '""" '^'™"« I" chercherait a ,'y hf^^- ■ ^"f^"^*"^ "> *W« ^ew the disposition of the ah^rSt n^ "quadron ought to be .uch a. 'commander lea it^l^' " artdlerie,'* U must continually expose blockade-runner. to a cross fire. Consistently with ^is Sr^ «°t«r"Pt«on, however accidental and occasional, justifies neutraU in attempting to enter, and the blockade muM be formally recommenced e/e novo. ^rnuJ^'^^^'"'- ^T"" ' blockaded place is ordinarily ground for condemnation.s unless the vessel leaving contains entered before the blockade, and is merely leaving in ballast. confiscation of the ship and cargo. The ship ia liable until the return voyage is concluded, a rule only applicable to contraband trade when false paper, are employed. The cargo owner of the ship, unless the owners of it can be affected Uock^r °' '=°'>»'™«"'' notice of the existence of the _'he- ♦The Haute/eniic, tit. ix. c. IL lect. i. i i. rrtJvKi MtUe, I C. Rob. p. 58. "^ ^ i '•1 Uiitt^tatt '^M^.^f^. •"CtOCOW RBOUniON TBT CHART (ANSI ond ISO TEST CHART No. 2) /APPLIED IN/MGE 16S3 Eost Main Street Rochwter, New York 14609 USA (716) 482 - 0300 - Phone (716) 288- 5989 -FoK X- CHAPTER V Otter Acts ot Carriage lavoMng N.^trul tu^Ma„sla In Peaaltiea IM •'irror;4';:"^"'-e-»-°-"p-35«. ACTS OP CARRIAGE i«S Tht learned judge intimated his view of the gravity of the onence in the following paasage : ' 'How is the intercourse between the mother-country and the colonies kept up in time of peace? Bv ships of war or by packete on the service of the state. If a war intervenes, and the other belligerent prevails to interrupt that communication, any penon steppmg in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in tact place himself in the service of the enemy state. ... Nor let It be considered that it is an act of light and casual import- ance. ... In the transmission of despatches may be conveyed the entire plan of campaign, that may defeat all the projects of the other belligerent in that quarter of the world. ... It is im- possible to limit a letter to so small a size as not to be capable ot producing thtcmost important consequences in the operations of the enemy.' "^ 3. In the Caro/iae* the despatches were being carried from the ambassador of the enemy's state resident in the neutral state to his own country. Lord Stowell directed restitution, basing a distinction upon the character of the person who is employed in the correspondence. « He is not an executive officer of the government, acting simply in the conduct of its own affairs within its own territories, but an ambassador resident in a neutral state, for the purpose of supporting an amicable relation with it.' ' 4. Enemy Passengers. — The leading case on the carnage of enemy passengers is the Orozembo* In that case an American vessel had been ostensibly chartered by a merchant at Lisbon to proceed in ballast to Macao, and there to take a cargo to America. He pro- ceeded, however, to prepare it for the reception of three military officers, and two persons engaged in civil occupations in the government of Batavia. These five persons came on board, together with a lady and some servants, in all seventeen passengers. Lord Stowell con- demned the vessel.* He observed : « In this instance the * At p. 45 (. « 6 C. Rob. p. 461. » At p. 467 * 6 C. Rob. 430. •S«p.4j4.'^ ' ' i66 INTERNATIONAL LAW mihtary persons are three, and there are. beside,, other two perwns, who were going to be employ^ in civa caJciS 1 1 .^T"""?' "^ x^""*^- Whtther the principKdd apply to them alone, I do not feel it necessar? to determtae IZX rt"-f "^ ^ " -''^' that7eln "rtTn reasonable that, whenever it is of sufficient importance to the enemy, that such persons should be sent ^ron the «oundn7rf'-r' ""' P""".^ ^"P^"^^'-' should afford eqS ground of forfeiture agamst the vessel.' The same judgmenTi may be cited as an authority for the proposition ^that a Fot« hSf'C :i;^ -"^^^^^ of miJry ^ersrs «n'not protect himselt^y alleging or proving ignorance. « If the ^vice ,s injurious, that will be sufficient to give the ^tr- .U "^V" P/"^°' '^' "'"8 fr"-" bei"gdone by enforcing the penalty of confiscation. . . . If redress in the way ofindemnification is to be sought against a^^ronf^^ must be against those who have, by means either of com pul ion or deceit, exposed the property to danger. " fA^" 'Trent' Incident.-The excifement which followed upon the Tre«, incidents i„ ,862 i, wel Sn ^e memoty of many persons now alive. D^nrthe Amencan Cml War an English vessel, the r«„rcfeared from Havana for England via St. Thomas, having on S3 Messrs. Mason and Slidell. who had been appol«ed envoys from the Confederate State, to France and En^gTand Se St^MZVy' f '"" -"""''"'' - American tngate. boarded the Trent and removed the two envoys to his own vessel, whence they were transferred tHris^n? On these fact, the English Government demanded thereZratfon of Messrs. Mason and Slidell. The United States SeS tLl- Tu ."P°°u"'* """'"^^^^'y unimportant ground 7h« ^e ship should have been brought in for adjudicition. M? ITk ' ."T'^' '° ' '°"« ''^»P^"=h ihich ilLtmi; v«y happdy the mconvenience, to wWch a politician ^^^ J PP- 434, ♦as. 'P.43S, ACTS OF CARRIAGE 167 himself who get« up his international law for the occasion, maintained that the seizure was in other respects good, and that Messrs. Mason and Slidell were a species of contraband. Without inquiring into the assumption that persons can under any drcurastances be treated as contraband, the reply was decisive that the Trent had a neutral destination : ' It is of tha very essence of the definition of contraband,' said Lord Russell in his answer to Mr. Seward, • that the articles shall have a hostile and not a neutral destination,' The American argument was reduced to absurdity with equal success by Historicus : * — ' The great and practical danger of the fallacious reason- ings of Mr. Seward consists iu this, that they wodd serve to justify, and may be taken to encourage, the captain of the Tiucarora to seize the Dover packet-boat and carnr her into New York for adjudication, in case Messrs. Mason and Slidell should take a through ticket for Paris.' 6. Penalty. — The penalty for carriage both of despatches and of enemy persons is confiscation of the vessel. Neither the forfeiture of the despatches, nor the removal of the enemy passenger, could be relied on as a very sensible de- terrent to neutral traders. ' LttUrt n bttrmttuiul IjOw, p. 19X. CHAPTER VI free goods.' merelv evn™ 1^ u • '^^^S' '^""^ 'Wps, while by the phrase 'Fn.r^u '"""""efrom capture j were so tainted bv thdrlfi- '^^^ °" '°«™y '«'''«=''' condemnat^or Intach Z" •^' "■ '"^^^-n^ '^ble to years, and in each ca?e L " "f""'" J^"' '"''"^«' '""^ '"^"y has finally preSrf t^'h 7 '^"■'"'''''" '° ''^■""' P W stands: fre^sht make free ''"'^'^i ^^^^^fo^. 'he maxim vessel redeemfle "nt^^^rt^' LL^^' ? '"="^''' protect it from capture ; in X ..^L^ ^t.' ^ ^" *» '° yielded to considerations ZZ^ \ ""'' '^'^ "^^i™ !»» of the carSo Sf L^-f1."P°r '^'= '"f™'"''^ ''"'°«°« carriage on a t'Lren r^"" "° '""g" '™« ""^t goods'witfi a ho«i^^rLr Enirt ''^" """-' enemy goods A «hn^ "^""y '^'P' ^^^ "»' make the stepfby which the^ cnnT"- "'{ ""'^"y ^ '^'^'^ "^ reached. ^ "^ conclusions have been respectively I. Free Ships, Free Goods ^'/# PRBB SHIPS, PRB£ GOODS 169 and ai wch, liable to capture, wheresoever found. From 1650 onwards a large number of treaties are found stipulating for the immunity of such goods, where found on neutral vessels. This concession was especially valuable to countries engaged in a large carrying trade, and the Dutch were particularly active in procuring its conventional adoption. It was not, however, contended that apart from treaty, neutral ships were able to protect their cargoes, and in many cases, so far from the ship protecting the cargo, it was held that the cargo tainted the ship, and made it subject to capture. Actmg upon this view several French Ordonnancet declared that neutral ships carrying enemy cargoes were themselves confiscable. In the eighteenth century, France attempted to establish the prmciple of protection, but her own maritime superiority led Great Britain to maintain the liability of the goods to seizure, though she did not attempt to involve the vessel in the fete of the cargo. The first armed neutrality in 1780 collectively issued an affirmation of the immunity of enemy goods, but the indi/idual subscribers, in the course of mutual hostilities, soon abandoned their own principles. The reassertion of them hj the second armed neutrality was equally transient. In the earlier part of the nineteenth century practice was still fluctuating. The number of states which desired amendment was considerable, but the existing law was accurately stated by Mr. Dana : 1 'The United States and Great Britain have long stocd com niitted to the following points as in their opinion established in the law of nations; — I. That a belligerent may take enemy's goods from neutral custody on the high seas. a. That the carrying of enemy's goods by a neutral is no offence, and consequently not only does not involve the neutral vessel in penalty, but entitles it to its freight from the captors as a condition to a right to interfere » Note to Wheaton, { 475, cited by Hall. «70 INTERNATIONAL LAW Jhf Unit"A'i'*\""- .^'■"' •'•' Government of the United Stae. has endeavoured to introduce the rule of free .hips, free goods, by conventions, her courts have always decided that if is not the^e of War, in ?he G-L«"'^^ association of Great Britain and France change Toi " v""- ""^ '^^ °'=<^''"°" f°^ "-e desired aUnXed h.r"",-'"'^"?"y °'^'"^''°° ^■'e''"''* temporarily See i? .t ^n ."' ^""^ "^g^iesced, on the conclurion of EdIp nf f Declarauon of' Paris, which affirmed the fwT TT • '?cf'"P'' ^""^ 800ds. It will be remember^ n„f K -^^ ^'"'"' ^P^»' Mexico, and VenezuelT W recoanS'S ''° f '? ?^'='""'°-' »"" ^''^ United sfate and X "*'"' *='"'" '° P™'«« 'n 'he Civil War. 11. Enemy Ships, Enemy Goods c.rtn^T''*' ""^""J "'". ?°°^' °^ "<» *"''ke use to the belli- Sir ""^^"^ ''7 '=='^"«ge « his vessels a, to become to ^utr.l« T I ^^' ^^'l S'"^' *"» " reasonable concession to neutrals which afforded no sort of justification for the inflic- goods. The practice expressed in the latter maxim like commercial blockade, and the rule of war of T7C6 h, it! extended forms, proceeded on a view of neutralhts for too narraw to square with adrnitted principles of interna' ond cant'ure „f ^''"f"'"/''. ^are^ denied the liability to capture of neutral goods in enemy bottoms, and the Lme ^ew was expressed by Albericu, Gemilis:^ .^ro^^ 6(tlr:v" ' ■"'\°° "^^ """^ ^^^' whereas the weight of French policy was thrown into the opposite scale. L^rd > S« Heflter, g ,6j. . d, j„, bm, lib. ii. c. 2,. ENEMY SHIPS, ENEMY GOODS 171 Stowell in the Fannj • drew a distinction between the cases where the carrying vessel was a public or a merchant vessel of the belligerent. « A neutral subject,' he said,» « is at liberty to put his goods on board a merchant vessel, though belong- ing to a belligerent, subject nevertheless to the rights of the enemy who may capture the vessel, but who has no right, according to the modern practice of civilised states, to condemn the neutral property. Neither will the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that is an event which the merchant could not have foreseen. But if he puts his goods on board a ship of force, which he has every reason to presume will be defended against the enemy by that force, the case then becomes very different. He betrays an intention to resist visitation and search, which he could not do by putting them on board a mere merchant vessel, and, in so far as he does this, he adheres to the belligerent; he withdraws himself from his protection of neutrality, and resorts to another mode of defence ; and I take it to be quite clear, that if a party acts in association with a hostile force, and relies upon that force for protection, he is, pro hoc vice, to be considered as an enemy.'' 5. American View. — On the general question the American view coincided with the English, but in the yillanta* Johnson, J., refused to follow the distinction insisted upon by Lord Stowell. The learned judge observed : * « The principle of the law of nations, that the goods of a friend are safe in the bottom of an enemy, may be and probably will be changed ... but so long as the principle shall be acknowledged this court must reject constructions which render it totally inoperative.' Nor did it make any difference that the belligerent vessel was an armed cruiser ; « it was alleged, argued the learned judge, that the use of such a vessel by a neutral deprived the ' I Dods 44}. •Pp. 448, 449- • At p. 415. • At p. 448. • 3 Wheaton 409. • Pp- 4Mi 4»S- tta INTBRNATIOKAL LAW of other belligerent of hi. right of March, on lx»rd a neutrfr^ • ^ ' °^ •*"'='' 'o ""ny good* impd^^ Thin T'?'^ "" "^^ "" "8'" "'■■"Jjudilation impaired. The neutral does not deny the ripht of ,h. befi-gerent to decide the question of pro/rietory Xert If •» ,"'"''. ^="'"f He had no right to capture it and if belligerent necessity impel, the otL wCnt ?« T» the carrying vessel; the'ieutral ha, L r^^^'T nlSof be^conceived. the neutral governrriigt :fcti::iy CHAPTER VII Visit ana Searcb I. Belliokrint public vessels are entitled to .top neutral merchantmen upon the high seas in order to determine their chara -ter and the nature of the occupation in which they are engaged. The existence of this ri-ht is peremptorily required to enforce the control over neutral trade which belligerent, are permitted to exercise. In the English leading case tlv,^""' ""^ ^'°*'" '^*'" "^^ "•" P"'"""^ hiJh'?,!."^'!! "f ^"''''"K and searching merchant ship, upon the high seas, whatever be the ships, whatever be the caioes what ever be the destination, is an fncontestable right o?Selav^lv ODmrnissioned cruiser, of a belJigerent natiol I say, bTthc .hip. the cargoes and the destination what they mayf bemuse till they are visited and searched, it does not appei^\ha? "he rfiip. or the cargoes or the destination are , an\f Tis for the SZTf °.^f"«»'"''lg "«« Poin*^ that the necessity of thi! right of visitation and search exists. This right is so^clear in principle that no man can deny it who admUs the TeeaH^ of maritime capture, bec^ui^. ifvo'u are not at liberty to ascert^arn by sufficient inquLty whether there is property that Ln leeatlv be captured, it is impossible to capture The ir,^ F ^ t«aties which reff to this righf, rel^'to "it i^'pTe'ex'isS''^^ merely regulate the exercise of it. All writers "^pon the L of nauons unanimously acknowledge it, without the exception Ln of Hubner himself, the great champion of neutr,. pri^SV 2. CoDTOyed Vessels—The question ha. been much di.cu.Md whether neutral tcsmIs are liable to warch « ' I Ch. Rpb. J59. X7S 'W INTbRNATIONAL LAW practice! «.d r^riS: ^''Tth Jh t r^S""^"'"" least open to Question Vk. i • . Pfoceeds i« at centum, and the Dutch IrtjISterwardtpUcTr' convoy «,me merchant veswl.^ S fe.m &H- ," forward a .tailar claim a?aS cLt' Brif*"**", ?"' appeal to Ru„ia. received from that ^ "e fo" wL^t °° neutrality A?MH5i^int/"""PK' °^ '^' '"^'^ ing -uc^ -sel.'L"l':rerr'i''"tr^/?- claim to exemption had only «acau^ «^!.h ^ ■' ^ ""' Sllnel^tlt'erir'^TrLEmfd"'^'^^^^ """^ P*'" the principle of immunit^ but r^K-T"'''^ '''''' *'°*° soon'fcU .h'ort of theToTn'sttd^d. ''"' ''^•""°"^' "^ '' 3- English and American View _Th». Pn„i- 1, • was well stated by Lord Stowell iLle ^W.f ^f"'' '"'^ intlJL'^tt? °Ltr of mT f^L^' "'»'"/ «"-"7 being right, of a folly LmmSdXnig°^^'=:;:.tV'f '^ "^ -^ b^aus^what .ay be given . . . uf conSSis fef^'^J » P. 747. I C. Rob, 3jg, im VISIT AND SEARCH 175 of Mtioul policT are riewt of the matter which I hare no power to entertain. All that I can auert a that lezallr it cannot be mainumed that if a Swediih commiMioned cruiier, durin t the wan of hi. c«rn country has a right, by the law of nations to viut and examine neutral shipi, the King of England, beine neutral to Sweden, i> authoriied by that law to obstruct the exerciie of that ngbt with respect to the merchant ships of his country. ... Two sovereigns may unquestionably agree, if they think fit, hj sDccial covenant . . . that the presence of one of their armed ships, along with their merchant ships, shall be mutually understood to imply that nothing is to be fiund in that convoy ot merchant ships inconsistent with neutrality But •urely no soverei™ can legally compel the acceptance of such a security by mere force." On this point, as on otheri, American judges are fully in agreement with our own, and Story, J., in the Nireide,^ very forcibly observed : • The law deems the sailing under convoy a. an act /fr « inconsisteLi with neutrality, a« a premeditated attempt to oppone, if practicable, the right of search, and, therefore, attribute* to such preliminary act the full effect of actual resistance.' In practice, therefore, England and America are ranged on one aide, France, Russ: . Germany, Austria, Spain, and Italy on the other. The . ' weakness of the continental claim is that it presupposes iu the com- manding officer of a convoy an intimacy of information as to the cargo of the vessels convoyed which has no correspond- jnce with facts. However complete his good faith, how can such an officer affirm of his personal knowledge that none of the vessels convoyed has contraband goods or enemv despatches on board ? ■' 4. Formalities of Search — When a commissioned vessel wishes to exercise the right of search, it is usual to fly the colours and fire off a gun, called the affirming gun. as a signal to the merchant vessel. The requirement that the affirming gun or Bcmonce shall be fired is common in continental practice, but is not peremptory accordmg to the Enghsh and American view. In the JUarianna F/ora' » 9 Cnnch 440. « „ WheatoB. •76 Stoiy, J. following INTERNATIONAL LAW ' deliTering the judgment objerrations on this point :_ the Court, made the ~«e.t«l at the b^^t "arte Ae^Tf ?h^" ^. ''" ^'^ ofthe European contineM aL=S^ ii 7/ *^l maritime states o«;n urges'" or Ptl^Lgu "If "''b A^X^^' ""k'"''' follow that it is bWine uDon all oX, „ ►■ ^°" °°' ''«"« where resistance is offered to vWt or search "h '"'"'^"'^f • APPENDIX A The Hague Peace Conference •As regards mpelf,' said M. de Staal, in his closing speech as Pres,dent 'I who have reached the term of my career, and the downward slope of l.fe, consider it as a supreme consolation to have seen the openmg of new perspectives for the good of humanity and to have been able to cast my eyes into the brieht- ness of the future.' » M. de Staal spoke with a generous enthusiasm natural m one who had presided vrith dimitv and success over a congress in which many nations and many con- flicting interests were represented. Perhaps the most clear-sighted estimate which has appeared of the work of the ConferencI was that which was made l>y Mr. Holls, the American representative in an interview with the able rimes correspondent.!" Mr Holls pointed out that any one who was naive enough to expect dis- armament or the establishment of an international supreme court. With an international police force to enforce its decrees, would undoubtedly be disappointed. He added that the pro- posed treaty of arbitration was the best attainable result in the present state of public opinion all over the world. ' The formu- lating of the ideas of mediation and good offices, of arbitration of intemational commissions of inquiry, and of procedure before courts of arbitration, is in itself a work of no small importance ... It will not prevent war where the question at issue is of such grave importance that the Government can, with the full approval of public opinion, disregard all the machinery which we have provided for its peaceful adjustment.' It may be conjectured with some confidence that whatever positive influence for good the Conference may gain will be exercised m the manner indicated by Mr. Holls. Its highest utility will be found in the work of familiarising men's minds ' See the Timet report, Angjst i, 1899. » AuguH I, p. g. 178 INTERNATIONAL LAW with the arbited idea in international matters, and w!»h fl,. .mperative quality of the law, of war. As to tlSi Utter «Wi,^ r:njXTor:^^T" 'Y '"'" '"fl-c'e'CinSly cSg t ^°d",eltrc;rtr srVh^- '"^"""^z- 'The Parliament of Man, the Federation of the World • commissions of arbitration Zt^u ■ ! ,'^'"*' ^''^ ">« vention betweenr^^^^^: 'K:^^^^ APPENDIX A 179 ctHtraJktarimittt, >.«. by argument of the different point! of view. An international Bureau, with its seat at the Hague, is called into existence by Article 22. To this permanent Bureau the signatory Powers consent to communicate all agreements to resort to arbitration, and all arbitral sentences made by special arrangement apart from the special tribunal. If the disput- ants cannot agree upon the choice of an umpire, they are bound by Article 24 to place the appointment in the hai.ds of a third Power nominated by them both. The proceedings fall into two stages, called respectively ' Instructions ' and ' Pleadings ' ; ' the 'Pleadings' shall only be public if both parties to the reference desire publicity.' The 'Final Act' itself of the Conference was signed by all the twenty-six States repre- sented. The Convention on Arbitration was signed by six- teen of the Powers represented, Great Britain, Austria, China,' Italy, and Japan being among the abstainers.* The second Convention, due to the second committee, revised the draft resolutions of the Brussels Conference of 1874. This convention received fifteen signatures, Portugal becoming a non-signatory in addition to the States mentioned above. The third Con- vention, also proceeding- from the second committee, provided for the extension to maritime warfare of the principles of the Geneva Convention of 1864. The draftsman of this Conven- tion was M. Louis Renault, and the signatures and abstentions were identical with those of Convention II. To the first committee had been intrusted all that was most pretentious in the Czar's scheme. Unequal to the burden, its members relegated the limitation of armaments to the decent seclusion of the •voeux, and contented themselves 'ith formu- lating three Declarations. These were to the following effect 1 — DeolaiatioaL The undersigned, as plenipotentiary delegates at the Inter- national Peace Conference, duly authorised by their Governments to this effect, inspired by the sentiments > Art. J9. > Art. 41. ' The Chineae representative waa instructed to follow the German \--i in everything — a tragic and ironical aaaociation in the light of recent events. * It should be remembered that these signatures were provisional only, and that 1 considerable acceation to the number in the future may be ezpceted. iSo mTERNATIONAL LAW explosives fram ttnf"" '^7'"S projectile, or means. """' °' ''3' "'h" new analogous I>«oIar»tlon 11. The undersigned, etc., hereby declare fh,f ►k parties prohibit them^lLrfr^ I"" '""tracting jectiles, Iwhose sole obS" to diff^:^'"^'"'- °f P~ deleterious gases. ^"** asphyxiating or Declaration lit The undersigned, etc., hereby declare fh,f »k parties prohibit themseire, f^™ \- ^' contracting Voeu. ^'^ ""-^^itaTcCL^aJte" "'"* "•? «■"'*»»'«'" of the the wo%, irf4,^ t^ We's^d" for 7h "'^'''"^ "P"" the ™«erial afd J^ w'^ifatrhutnty.'"''""' "^ ■■» the^progTalme of a conff ' ''""''^ ''^ '""bribed early date. * conference to be held at an artillery such as hTve h-1 ""■' °^ "^" ""d "aval thesu^ectys4''^'';h?Src''^ ''' '•'°"''' ''^ a view to arrivine evenh?,li„ f Governments with means of. C;"«ronfS". «""'''"' ''X or ■ APPENDIX A „, the puT,o« o^f „vi.Sr.To„':e;;Jro^ ~"''"*"' ^^ '■ "^ pS™*^'° ''*'='"' "■' '"nviolability of private property m war at sea. *■ ^ }^'T^^ regulating the question of the frol„"?a;Ii;.^Vt-rtd""'^^^^^^ » thl. Appendl, i. derived .ndAugun.g,,). Seeftthe"hXeB„T'°D '">' r«« (July »nd iu continuaion. «Mi.«llJ„,„' „ Books • Ruwia, No. , (.g„/ dalle, i. Cc„//re,„'j/7aX^%°^, ^l"' ' <"'9?''' ""' G- -I' 4r.- ing, however, at Ume. a cha'',;: VS^?. » "Wful little book, betray. of M. Laprad'alle-.To^k bv T 7h T^V"'- « ''"^ "•" '^ '"'- July 1 900. ""y 1 • iS. H. m the X«, ^*,r/«^^ JJ„/^ fo, APPENDIX B aucrlllM Warfare and Combatant Character tion. published in .8Kif„T^V/i?;, ^TJKr""^- '^'bv'fi.^t-'"'' "*'• ""'"j ".'"' '°"""" hostilities, whether by fightmg, or inroads for destruction or plunder or by raid, of any Ic.nd. without commission, withouXinJ wlS,o^t r^^"" °^^' "P"'^'' hostile army, ;^'^ without sharing continuous^' in the war. but ^hTl aTt:.Z.Tn. ''"!^""'!>^ msumpthn of the sembUtnc, ^«- «r appearance of soUiers-su.h men, or smu^Tof men, are not public enemies, and therefor^, if S^ed rs7 ^^-vic;-^ ?i££ F^ APPENDIX B i»3 Jiwn!'-'^'''' ^^ "^'"^ *•" '■"""'''nK '«"»« may be 'L'Emptreur Napoleon ayant attaque par terre « par mer la nation airemande, qui de'sirait et desire encore vivre en paix avec le peuple franjais, j'ai pris le commande- ment rte. armees alfemandes pour repousser Tagression, et J ai Hi amene par les ftrenements militaires a passed les frontiere, de France. Je fai, la guerre aux sSldats et non aux citoyens fran^ais. Ceux-ci continueront, par con^uent, a jouir d'une complete Kcurite pou^ leurs personnes et leurs biens, aus«l longtemps qu'ils ne me priveront eux-mJmes, par del entreprises hostiles contre les troupes allemandes, du droit de leur accorder ma protection.' » It will be observed that < securite' pour leurs personnes et Uurs *.«/ .s conditioned upon abstinence from hostile enterpri^? If, however, there was any ambiguity in this language, there wa; ZiuJ:"' ""' '^ °" ^""'' "''^ Bismarck-f apUval inX 'The King said at the beginning of the war in his pro- clamation that he was going to wage it only against the armed power of France, not against its petceful citizens From these words it has been attempted to infer that we ought only to have fought against the Empire and not against the Republic, in presence of which It IS supposed to have been our duty to lav down our arms. As for the peacefiil citizens, the Francfreun and those who support them, are certainly not peaceable citizens. All the authorities on the law of nations, from Vattel to Bluntschli and Haller agree 'L. /i- '^' considerate treatment of the te'aceabU poptflot'on reus on the assumption that an absolutely and that the civilian abstains from those hostile acts which are the duty of soldiers. What the soldier must do the civilian must not do, and if he takes host, e action against the foreign troops invading his country, he loses the rights of a ci-vilian -without afquir- ^•"^'^^ lit rrana-Gtrman War, by Dr. Buich, vol. ' Un p. xo6, ".p. 139. '■» tNTBRNATIONAL LAW treated mercifully, but tl^eTiviiL -K I",?"'' .'" ** being bound toJo w and Zt^i 1^ *" '' "'*»"♦ will readily conceive Uat svs^m ^o^^^^'P*'?'""*'' °b«>ver, commended itself to Prussian com,„°Hp"'''?" """W have had violated a .pontaneo'utiruC oTtK^^f^nSf;" ^°" '"■° 3021 W«««l by T. „d A. COK.T«t^ Pri„„ .„ „„ « the Wiabm,!, O^,^^ p^ longer to be ithout 1/ the Uath. exist S far rvers have who : ir^t''"