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 ICiyAH 
 
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 Canadian InatHuta for HIaterieal MIeraraprodiictlana / InatHut Canadian da mleroraproductiona Materiquaa 
 
 ©1995 
 
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 1 2 3 
 
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 (Ar4SI ond ISO TEST CHART No. 2) 
 
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 /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. 
 
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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''"