， ， ）
º _. _ • • • • • • • • • • • •• • • • •••••••••••••••••••••••••••==<！-sæsº:-）：=≡:-） :-$ ***** ?，...;$（№ſſae
• • • • • • ••••••• • •***********... -. - zraes. « … •æss， ww. • •••••• • •••• • • • • • • • •-
• • • • • • • • • • • •i re • • • • • ~~~g • • • • • • • • •*
ºr..…. …º.v.e. … … --. .-.-.-.-.-.-.-.-- - -, . . . .
ſaeſi; &º%%**
AL
|
W. E. HALL
ºss
| () N
Nº ºr
H
* ~ ..º º º-
i
A
L. A. W.
EDHT
TH
r
sº
f
FI F
NTERN
º
* * ºvºvº º
º
º,
* , as .… --rºº
Fºss. ... --...--------, - . . . assº
reiºs....…. . . . . . .

Sº-> SS-S-S-S-S-S-S-S-S->~~~~~~~~~~~~~~~~~~
Library of
WALTER SCOTT PENFIELD
WASHINGTON, D. C.
º
:
Tº gº gº dº ºvºgº.º.º.º.SNSºº wººs ºs ex-ºsº,






A TREATISE ON
INTERNATIONAL LAW
W. E. HALL
HENRY FROWDE, M.A.
PUBLISHER TO THE UNIVERSITY OF OXFORD
LONDON, EDINBURGH
NEW YORK
A TREATISE
IN TE R N ATION AL LAW
BY
WILLIAM EDWARD HALL, M.A.
FIFTH EDITION
EDITED BY J. B. ATLAY, M.A.
of LINCOLN's INN, BARRISTER-AT-LAW
O XITO RID
AT THE CLARIEND ON PRESS
IONDON : HENRY FROWDE
ox Ford UNIVERSITY PREss wa REHous E, AMEN Co RNER
AND
STEVENS & SONS, LIMITED
119 & 120 CHANCERY LANE
1904
OXFORD
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, M.A.
PRINTER TO THE UNIVERSITY
PREFACE TO THE FIFTH EDITION
THE late Mr. Hall at the time of his lamented death in
November 1894 had completed for the press the fourth edition
of this book, and the first nine sheets had received his final
revision". The task of correcting the remaining proofs and
otherwise preparing the book for publication was entrusted
to me by the Delegates of the Clarendon Press, at whose
request also I have undertaken the present edition.
With regard to the introduction of new matter I have
confined myself to what seemed absolutely necessary in
order to bring the book up to date, and, in so doing, I have
followed, as far as possible, the lines laid down by the author
in previous editions. Wherever either in the text or notes I
have gone beyond mere verbal alteration the additions are
placed within square brackets [ ]. Events in Japan and
China, the Venezuela boundary dispute, the Hague Conference
with its various Conventions, together with incidents in the
Spanish-American War and our own war in South Africa,
are among the topics which have demanded notice. The
controversy between Great Britain and Germany over the
seizure of the Bwndesrath having given a new prominence
to the doctrine of ‘continuous voyages' it seemed desirable
that the paragraphs on that subject which Mr. Hall had
consigned to a footnote should be brought up into the text,
while I have taken upon myself to indicate in the note the
position, opposed to the views of Mr. Hall, which was assumed
by Lord Salisbury's Government.
* For a Memoir of Mr. Hall by Professor Holland, and some account of his
writings, the reader is referred to the Law Quarterly Review for 1895, Vol. xi,
p. II.3.
vi PR.EFACE
Several lists of treaties relating to consular jurisdiction, to
the exemption of foreigners from military service, and to kindred
subjects have been deleted. The rapidity with which such
treaties have multiplied since the early editions of this book
had swollen the notes containing them to dimensions which
seemed out of all proportion to the value of the references
themselves. For the convenience of those who make their
first acquaintance with the elements of International Law
through these pages, I have given, wherever the name of
a jurist prior in date to the nineteenth century or of one
of his works is first mentioned, the year of his birth and
death, or of the work in question. Acting on the advice of
Professor Holland, I have discarded the sectional numbering
adopted in the previous editions. The fact that the bulk of
the book has been reduced by some thirty pages is due
solely to typographical changes. With the exception of
the treaty lists above mentioned, and of a sentence here.
and there which has become inconsistent with the amended
context, nothing has been omitted which appeared in the
fourth edition. The preface to the third edition is retained
as containing Mr. Hall's latest view of the future of Inter-
national Law.
I have to record my gratitude to Professor Holland, K.C.,
for valuable suggestions, which I hope may have saved me
from more than one pitfall, and to the Delegates of the Press
for allowing me to associate my name, however humbly, with
one whose friendship is among the most cherished memories
of my life.
J. B. ATLAY.
LINCOLN's INN,
February I, I904.
PREFACE TO THE THIRD EDITION
IN issuing the third edition of the following work, it has
been found necessary to add still further to its bulk. Several
topics have assumed a greater importance than they before
possessed ; in others, recent occurrences have brought to light
insufficiency of treatment ; in others, new circumstances are
tending to establish new rules. I have endeavoured to take
notice of such of these topics as seem to me to be ripe for
discussion. There are also a certain number of additions in
matters of detail.
Perhaps it may not be inopportune to seize the present
occasion to say a word or two as to the degree in which it is
reasonable to expect that International Law shall be a re-
straining force on public conduct. Men who have the good
fortune to deal actively with affairs are somewhat apt to think
and speak lightly of its strength. . It would be very unwise
of an international lawyer to indulge in the delusion, with
which he is often credited, that formulas are stronger than
passions. I doubt much if he ever does so. But in order to
get clean legal results, he must eliminate the varying elements
of tendency to crime, or, to put it more mildly, of infringement
of law. He only says what ought to be done, given the
acquired moral habits of the past, and the rules of conduct
which have been founded upon them. On the other hand, it
would also be unwise, on the part of men whose minds are
fixed wholly on the present, to underrate the abiding influence
of international law. Since it has come into existence, it has
often been quietly ignored or brutally disregarded. Never-
theless it so far has force that no state could venture to declare
itself independent of it.
So things stand at present; but looking to the future it
viii PREFACE
must be granted that some doubt as to the strength of inter-
national law is not wholly unreasonable. Two different sets
of indications point in opposite directions. In no previous
period have endeavours been made, such as those which have
been made during the present generation by the greater
European States, to conclude agreements which should not
merely express the momentary convenience, or the selfish aims,
of the contracting powers, but should embody principles
capable of wider and of impartial application, or to lay down
rules of conduct which, it might fairly be hoped, would be
adopted by the body of civilised nations. Great pacificatory
settlements, such as those of the Congresses of Utrecht and
Vienna, used occasionally to be made ; but agreements
suggesting rules of action, such as that with respect to
occupation on the African coast, and agreements prescribing
general rules of conduct, such as the Convention of Geneva,
are almost wholly new. Again, within the last few years,
professors of international law, and writers upon it, have used
their best efforts to arrive, upon a vast range of disputed
topics, at common conclusions, which might be offered for
general acceptance with such authority as may be possessed
by professors and writers as a body; and they have done
a good deal towards rendering doctrine harmonious and con-
sistent. If such indications as these stood alone, it might be
taken not only that the definite rules of international law are
extending in range, and gaining in precision, but that their
hold is also becoming stronger day by day. On the other
hand, it is not to be denied that there is a wide-spread dis-
trust of the reality of this progress. Many soldiers and sailors,
many men concerned with affairs, have little belief that much
of what has been added of late years to international law will
bear any serious strain. And, however convenient a standard
of reference that law may be for the settlement of minor
disputes; however willing statesmen may be to defer to it
when they are anxious not to quarrel, grave doubt is felt
PREFACE ix
whether even old and established dictates will be obeyed
when the highest interests of nations are in play. This
feeling, for reasons which cannot be dismissed as unfounded,
is probably stronger in England than elsewhere; but it is not
confined to England. -
Both sets of indications seem to me to point truly. Looking
back over the last couple of centuries we see international law
at the close of each fifty years in a more solid position than
that which it occupied at the beginning of the period. Pro-
gressively it has taken firmer hold, it has extended its sphere
of operation, it has ceased to trouble itself about trivial
formalities, it has more and more dared to grapple in detail
with the fundamental facts in the relations of states. The
area within which it reigns beyond dispute has in that time
been infinitely enlarged, and it has been greatly enlarged
within the memory of living men. But it would be idle to
pretend that this progress has gone on without check. In
times when wars have been both long and bitter, in moments
of revolutionary passion, on occasions when temptation and
opportunity of selfishness on the part of neutrals have been
great, men have fallen back into disregard of law and even
into true lawlessness. And it would be idle also to pretend
that Europe is not now in great likelihood moving towards
a time at which the strength of international law will be too
hardly tried. Probably in the next great war the questions
which have accumulated during the last half century and
more, will all be given their answers at once. Some hates
moreover will crave for satisfaction ; much envy and greed
will be at work; but above all, and at the bottom of all, there
will be the hard sense of necessity. Whole nations will be in
the field; the commerce of the world may be on the sea to
win or lose ; national existences will be at stake ; men will be
tempted to do anything which will shorten hostilities and
tend to a decisive issue. Conduct in the next great war will
certainly be hard; it is very doubtful if it will be scrupulous,
X PREFACE
whether on the part of belligerents or neutrals; and most
likely the next war will be great. But there can be very
little doubt that if the next war is unscrupulously waged, it
also will be followed by a reaction towards increased stringency
of law. In a community, as in an individual, passionate
excess is followed by a reaction of lassitude and to some
extent of conscience. On the whole the collective seems to
exert itself in this way more surely than the individual con-
science; and in things within the scope of international law,
conscience, if it works less impulsively, can at least work
more freely than in home affairs. Continuing temptation
ceases with the war. At any rate it is a matter of experience
that times, in which international law has been seriously dis-
regarded, have been followed by periods in which the European
conscience has done penance by putting itself under straiter
obligations than those which it before acknowledged. There
is no reason to suppose that things will be otherwise in the
future. I therefore look forward with much misgiving to the
manner in which the next great war will be waged, but with
no misgiving at all as to the character of the rules which will
be acknowledged ten years after its termination, by comparison
with the rules now considered to exist.
I owe a debt of gratitude, which I must not leave unpaid, to
the kindness of my friend Mr. Beresford Atlay, who has taken
a very irksome labour off my hands by reading the proofs of
this edition, inserting references to recent treaties, and revising
and adding to the index.
Awg. I, I889.
C O N T ENTS
INTRODUCTION
P A R T I
GENERAL PRINCIPLES.
CHAPTER, I
PAGE
PERSONS IN INTERNATIONAL LAW, AND COMMUNITIES POSSESSING
AN ANALOGOUS CEIARACTER,
The marks characterising persons in International Law and
postulates concerning those persons o tº g
Acquisition, preservation, and loss of personal identity as a
state ſº º g g & e tº gº
Communities imperfectly possessing the marks of a person in
International Law te e &
Imperfectly independent states
Belligerent communities º
What states are subject to International Law
CHAPTER II
I 7
2 O
23
23
29
4O
GENERAL PRINCIPLES OF THE LAW GOVERNING STATES IN THEIR
NORMAL RELATIONS
The fundamental rights and duties of states .
Right of continuing and developing existence
Rights of property . * {º
Rights arising out of independence
Responsibility of a state . tº & e e
- Right of states to repress or punish violations of law
Moral duties of states
The sea *
43
43
44
47
53
55
55
59
xii CONTENTS
CEIAPTER III
GENERAL PRINCIPLES OF THE LAW GOVERNING STATES IN THE
IRIELATION OF WAR.
* PAGE
In what the relation of war consists . . . ſº . 6o
The place of war in International Law . tº e ſe . 6o
In what International Law as applied to war consists . . 63
Doctrine that war does not affect individuals except in so far
as they contribute to the prosecution of hostilities . . 63
CHAPTER IV
GENERAL PRINCIPLES OF THE LAW GOVERNING BIBLIIGERIENTS AND
NEUTRALS IN THEIR RELATIONS WITH EACEI OTHER
How the special law of neutrality has been formed . . . 7 I
The duty incumbent upon neutrals of conducting themselves
with impartiality . e e º e e © . 72
Territorial sovereignty as a source of neutral responsibility .. 73
Territorial sovereignty as the measure of neutral responsibility 74
Rights of belligerents in restraint of commercial acts of indi-
viduals & ge * tº ( ; & © tº • 74
Division of the law of neutrality into two branches tº . 77
Occasional confusion of the two branches with each other . 77
© PART II
THE T.A.W GOVERNING STATES IIN THEIR, INORIMIAI,
IRIETIATIONS
CHAPTER, I
COMMENCEMENT OF THE EXISTENCE OF A STATE, CHANGES IN THE
STATE PERSON, AND ExTINCTION OF A STATE
Recognition of a state . i. & se © º sº . 82
Forms of recognition . tº e * & e . 87
Formation of the Congo State . tº tº ſº . 88
Relation of a new state to the contract rights and obligations,
and to the property &c. of the parent state . º • 9 I
CONTENTS
xiii
ty
Effects of cession upon the contract rights and obligations, and
upon the property &c. of the state ceding, and the state
acquiring, territory tº o º e º º
Effects of the absorption of a state in another state
CHAPTER II
TERRITORIAL PROPERTY OF A STATE
In what the territorial property of a state consists.
Modes of acquiring it .
Occupation e e & e º º
Cases illustrative of the law of occupation .
Recent tendency to change in the law of occupation
Abandonment of territory acquired by occupation
Cession
Prescription . º e e
Accretion by the operation of nature .
Boundaries of state territory. o o º º
Protectorates over uncivilised and semi-civilised peoples
Spheres of Influence . •º
Whether rights of navigation are possessed by states over rivers
not within their territory, or by co-riparian states over the
portions of rivers not within their territory
To what extent the sea can be appropriated .
History of usage and opinion
Present state of the question . º º tº º
Right of foreign states to the innocent use of the territorial seas
of a state . º &
CHAPTER III
NON-TERRITORIAL PROPERTY OF A STATE
In what non-territorial property of the state consists
Public vessels of the state . º c e - • º
Private vessels covered by the national flag . © gº &
Goods owned by subjects of the state, but embarked in foreign
ships . º º º º º º e & -->
PAGE
98
99
IOO
IOO
IOO
Ioé
II3
II6
II.8
II.8
I 2 I
I 2.2
I 25
I 29
I3 I
I4O
I4 I
I52
I 58
I6 I
I6I
I64
I65
xiv. CONTENTS
CHAPTER IV
SOWEREIGNTY IN RELATION TO THE TERRITORY OF THE STATE
PAGE
Enumeration of the points requiring notice . we tº . I 66
Doctrine of exterritoriality . º e e & tº . I 67
Immunities of a foreign sovereign e gº e g . I 69
Immunities of a diplomatic agent’:—
Personal immunities . © * tº e tº . I 72
Immunities of his family and suite . * gº . 178
Immunities of his house . © g º tº . 18o
Miscellaneous privileges . tº e tº e . I 84
Immunities of armed forces of a foreign state :-
History of usage and opinion . * g º . I 86
Immunities of public vessels wº e tº & • IQ4
Immunities of military forces . © g º 198
Reasons for discarding the fiction of exterritoriality iº . 2 OO
Immunities of foreign public property other than public
vessels of the state tº * e e ge & • 2 OO
Doctrine that foreign merchant vessels possess partial immunity
from the territorial jurisdiction . sº tº * • 2 O I
The limits within which the territorial jurisdiction ought to be
exercised over passing vessels tº * e ſº • 2 O4
Freedom of a vessel entering a state from jurisdiction in respect
of acts done outside the state by or upon the subjects of
the latter . tº & wº & e e * . 2 o'7
Pxtent of the right of a state to require aid from foreigners
within its territory in maintaining the public safety . 2 o'7
Whether the tribunals of a state can take cognizance of crimes
committed by foreigners in foreign territory . º • 2 IO
Rights of giving and refusing hospitality * o tº . 2 I 3
Right of admitting foreigners to the status of subjects . . • 2 I 5
Responsibility of a state & {º & * º º . 2 I 7
CHAPTER v
|
\
SOWEREIGNTY IN RELATION TO THE SUBJECTS OF THE STATE
Nationality . • * tº e ſº * g e • 2 24
Persons as to whose nationality no difference of opinion can
exist . & tº e - * º g º & • 224
CONTENTS
XV
Those as to whom such difference can exist
Children born of the subjects of one power within the
territory of another
Illegitimate children .
Married women
Naturalised persons . º & e e iº
Effects of the naturalisation of parents on children who
are minors at the date of naturalisation e
Claims of states to treat unnaturalised foreigners as
subjects * ſº º g tº ſº
The questions arising out of sovereignty in relation to subjects
with which International Law deals tº º e
Persons destitute of nationality, or of uncertain nationality
CHAPTER WI
PAGE
225
225
228
229
23O
24 I
242
2.45
246
JURISDICTION IN PLACES NOT WITHIN THE TERRITORY OF
ANY STATE
General view of the jurisdiction exercised by states in places
not within the territory of any power
Theory of the territoriality of vessels . & o te &
Limits of the jurisdiction of a state over its merchant vessels
in non-territorial waters e g e gº
Jurisdiction over public vessels in non-territorial waters
Jurisdiction of a state over foreigners in its ships. tº
Pursuit of a vessel into non-territorial waters for infractions
of law committed in territorial waters
Piracy . &
Illustrative cases g & & e e e
CHAPTER VII
SELE-IPRESERVATION
Right of self-preservation in general & º tº
Permissible action within foreign territory against individuals
making it a starting-point for attack . . º &
Permissible action within the territory of states which are not
free agents & * ſº *
Permissible action in non-territorial waters .
Protection of subjects abroad gº e
2.47
248
253
255
255.
256
257
265
269
269
272
27.4
278
xvi CONTENTS
CHAPTER VIII
INTERVIENTION
IPAGE
The equivocal character of intervention c ſe * . 284
General conditions of the legality of intervention . * . 285
Classification of the grounds upon which intervention has
taken place, or which are alleged to be sufficient . . 285
Self-preservation † º © e {e * º . 285
Restraint of wrong-doing . wº & e © . 288
Treaty of guarantee . tº tº sº tº & . 292
Invitation by a party to a civil war . * tº . 293
Intervention under the authority of the body of States . . 294
CHAPTER IX
TIETE AGENTS OF A. STATE IN ITS INTERNATIONAL RELATIONS
Enumeration of the various kinds of agents of a state . . 297
IPersons to whom the management of foreign affairs is
committed by the constitution of the state . * . 297
Diplomatic agents § ge * § tº ſº sº . 299
Refusal to receive them . © e tº * . 299
Commencement of their mission ę ſº {º} . 3O2
Rights of diplomatic agents g © ę g . 3O3
Termination of a mission . {e º † e . 3O4
Diplomatic agents in friendly states to which they are
not accredited e tº tº tº . 308
Diplomatic agents found within enemy jurisdiction . 3 Io
Diplomatic agents found by the enemy of the state
to which they are accredited in the territory of the
latter . e º º gº e ge ſº - 3II
Officers in command of armed forces of the state . gº • 3 I3
Diplomatic agents not of publicly acknowledged character . 31.5
Commissioners . te & tº tº tºl g e . 316
Bearers of despatches . * º * g tº e . 316
Consuls © * © gº tº e tº tº sº . 316
Responsibility of a state for acts done by its agents & • 323
CONTENTS xvii
CHAPTER X.
TRIEATIES PAGE
Division of the subject. © e o e © e 3.25
Antecedent conditions of the validity of a treaty . & . 326
Forms of contract e o e e & . 329
Ratification by the supreme power of treaties made by its
agents . * > º 33O
Interpretation of treaties . & º º e e . 335
Interpretation of conflicting agreements . º - 34 I
Treaties of guarantee * º & º •. • 343
Effects of treaties ſº º * º º g . . 347
Modes of assuring the execution of treaties . º º . 348
Extinction of treaties . e s -> e º º . 348
Renewal of treaties . º g & º º º • 359
CHAPTER XI
AMICABLE SETTLEMENT OF DISPUTES ; AND MEASURES OF
CONSTRAINT FAILLING SEIORT OF WAR
Modes of settling disputes amicably . º º e . 362
Arbitration º -> e & e & e . 362
Retorsion and Reprisal e e 6. º º & . 367
Pacific blockade . • . º & -> & g o . 37 I
Embargo in contemplation of war - tº º © . 376
PART III
TEIF. T.A.W. GOVERIN.ING STATES IIN THE REI, ATION
OF WAIR.
CHAPTER I
COMMENCEMENT OF WAR
Whether the issue of a declaration or manifesto before the
commencement of hostilities is necessary g q, . 377
Negative effects of the commencement of war e & . 385
Abrogation and suspension of treaties Q © . 385
Termination of non-hostile relations between subjects
of the enemy states, and between the government of
the one and the subjects of the other e º . 39 o
HALL - b
xviii CONTENTS
CHAPTER II
RIGHTS WITH RESPECT TO THE PERSON OF ENEMIES
Limits to the rights of violence against the person of enemies
Non-combatants .
Combatants tº tº
Treatment of sick and wounded *
What persons may be made prisoners of war
Treatment of prisoners of war
Dismissal of prisoners on parole
Ransom and exchange. tº
Rights of punishment and security
CEIAPTER III
RIGHTS WITH RESPECT TO THE PROPERTY OF THE ENEMY
T)ivision of the subject sº g 9. e tº
Rough division of property susceptible of appropriation from
property insusceptible of appropriation .
State property . tº * ſº ğ & º *
Private property within the territory of its owner’s state
Contributions and requisitions . e * e
Under what conditions contributions and requisitions may be
levied by a naval force.
Foraging . tº
Booty © * º º & & ſº
Property in territorial waters of its own state
Private property within the jurisdiction of an enemy
Property entering his territorial waters after the com-
- mencement of war e ſº & & tº
Private property in places not within the jurisdiction of any
state ſº º & gº & º {...} tº
Theory of the immunity of private property at sea
from capture tº * ſº ſe g { }
Exceptions to the rule that private property at sea may
be captured © e tº º & te
What constitutes a valid capture, and its effect .
Disposal of captured property
Ransom & {º te * *
Loss of property acquired by capture .
PAGE
396
397
398
4OI
4O6
4O9
4 II
4 I 2
416
4 I 9
4 IQ
42O
4.25
427
433
437
437
437
437
4.42
4.43
443
449
453
456
460
46I
CONTENTS xix.
CHAPTER IV
MILITARY OCCUPATION PAGE
| Nature of military occupation in its primá facie aspect . • 463
The theories which have been held as to its character . . 463
*Extent of the rights of a military occupant . & ſº . 469
Practice in matters bearing on the security of an occupant . 471
* Practice in administrative matters, &c. ſº o g . 476
$Use of the resources of the country . wº * tº . 477
Legal relation of an enemy to the government and people of
f an occupied country . º ſº tº © º - 479
"Duties of an occupant . º ſe e º g & . 48o
When occupation begins and ceases © § g g . 48 I
CHAPTER V
POSTILIMINIUM
In what postliminium consists . g * * tº . 486
Limitations on its operation . * tº tº te * . 488
The effect of acts done by an invader in excess of his rights . 489
The effect of the expulsion of an invader by a power not in
alliance with the occupied State . g * º . 489
Special usages with regard to property recaptured at Sea - 493
CHAPTER WI
FNE MY CHARACTER,
Persons and property affected with an enemy character: other
than subjects and property of an enemy state e . 496
| How persons become affected with an enemy character:
I. Through domicil . tº e “e & tº . 497
2. Through civil or military employment . sº . 5OI
). How property becomes affected with an enemy character . 504
a Questions with regard to—
“...? Things sold by an enemy during war, or before its
commencement in anticipation of war . © . 505
Goods consigned by neutrals from neutral ports to an
enemy consignee, or vice versá . o & . 507
Places belonging to a belligerent, which are in the ;
military occupation of his enemy e & . 508 y
Places under double or ambiguous sovereignty . 51o
The effects of a personal union between states te e . 5I 2
XX CONTENTS
*~~~...
CEIAPTER VII
MEANS OF EXERCISING THE RIGIFITS OF ORFENCE AND IDEFENCE
BAGE
Division of the subject º tº º © º º . 5 I 5
Hostilities on land :—
bº Question as to who are legitimate combatants . . 5 I 5
*Whether an authorisation from the sovereign is
necessary . . tº o • © * . 5I 7
... How far possession of the external characteristics of
soldiers is required . º G º se . 52 I
'i. Maritime hostilities —
Regular forces of the state and privateers . º . 526
; : Volunteer navy º º º e º wº . 527
Right of non-commissioned vessels to resist capture . 530
"Attack by non-commissioned vessels illegitimate . 53O
... General limitations upon the rights of violence . g . 53 I
Specific usages with respect to—
The means of destruction which may be employed . 531
T)evastation º & 4- º º g ſº • 533
Deceit © º e te º tº © sº • 537
Spies . º e º tº e - º sº e - 539
CHAPTER VIII
NON-HOSTILE REIATIONS OF BRLLIGERENTS
General character of non-hostile relations . e * • 542
Flags of truce . e * © º º ſº º • 542
Passports . e tº º gº º º g º - 543
Suspensions of arms and armistices . e * º - 544
Cartels © © iº º tº e g e .' 55o
Capitulations • • Q e e g º -> . 55 I
Safeguards . º e © º º e & - • 554
Licences to trade tº º e. © e tº & • 554
CHAPTER IX
TERMINATION OF WAR,
Modes in which war may be terminated ſº e * . 558
Effects of a treaty of peace in setting up rights and obligations 558
Dates from which hostilities cease on conclusion of a treaty . 560
CONTENTS xxi
Effects of a treaty of peace with reference to — DAGE
Acts done before the commencement of the war . . 562
Acts done during the war º º e º . 562
Acts of war done subsequently to the conclusion of
peace tº tº tº tº & tº o 564
Termination of war by simple cessation of hostilities . . 564
Conquest . o • • e tº e e e . 566
Effects of conquest º - e e o e o . 57 O
Difference between the effect of cession and conquest . . 57 I
PART IV
THE LAW GOVERNING STATES IN THE RET, ATION
OF INETUTE.A.T,ITY
CHAPTER I
TEIE COMMENCEMENT OF WAR IN ITS RELATION TO NEUTRAILITY
Notification • º - º e º gº º . 574
CHAPTER II
s
GBOWTH OF THE LAW AFFECTING BIELLIGERENT AND NEUTRAI,
STATES TO THE END OF TEIE EIGHTEENTEI CENTURY
Duties of neutral states to the end of the seventeenth century 576
Their rights {- º º º & • g e . 581
Growth of opinion in the eighteenth century. e ſº . 583
Practice during the eighteenth century. º is e . 586
Neutral duty in the latter part of the century, according to
De Martens . e º º º tº e ſº . 590
Neutrality policy of the United States . & e * . 59 I
CHAPTER III
THE EXISTING IAW AFFECTING BIFLILIGIERIENT AND NEUTRAL STATES
General principles of law as ascertained at the end of the
eighteenth century in their relation to modern doctrine . 594
Whether troops can be furnished to a belligerent under a
treaty made before the outbreak of war. e º . 595
Whether loans by neutral individuals are permissible . . 596
xxii CONTENTS
PAGE
Whether the sale of articles of warlike use by a neutral state
is permissible e © e º º . 597
Ilimits of the duty to prohibit the levy of men w º . 598
Whether a neutral state may permit a belligerent force to pass
through its territory . G & º º o . 6oo
Hostilities committed within neutral territory º e ... 602
Use of neutral territory by a belligerent as the base of opera-
tions . º e º is º º º * . 603
What constitutes an expedition . e e º Q . 6oé
Expeditions combined outside neutral territory from elements
issuing separately from it . e e • - . 6oS
Equipment of vessels of war in neutral territory . . . . 6 Io
Usage and existing law e º e º e º . 6Io
Effect of neutral sovereignty upon captured persons and
property o e c • , , e o & . 617
Duty of a neutral state to procure redress for injuries done to
a belligerent within its territory . º º º . 619
Effect of resistance by a belligerent attacked within neutral
territory e e tº º e º e e . 624
Reparation by a neutral state for permitted violation of its
neutrality . • º g © º © º . 625
Hospitality and asylum to land forces of a belligerent . . 625
To his naval forces º e - e. te e ſº º . 626
CHAPTER IV
GENERAL VIEW OF THE RELATIONS OE BELLIGERENT STATES AND
NEUTRAL INDIVIIDUALS
General principles of the law e e º º & . 630
Exceptional practices :
I. Commercial blockade . . . º º . 63 I
2. The rule of the war of 1756 . e e & . 634
Heads of law . tº is te e tº º - . 638
CHAPTER W
contRABAND
Uncertainty of usage as to what objects are included in
contraband . & tº tº © º g º . 640
Practice in the seventeenth century e e e e . 64 I
CONTENTS
xxiii
Practice in the eighteenth century
Practice in the nineteenth century
Opinions of modern publicists e
Contraband not restricted to munitions of war
Whether contraband includes
Horses, saltpetre, sulphur, and the raw materials of
modern explosives * -
Materials of naval construction .
Coal.
Provisions * e
Clothing, money, metals, &c.
Penalties affecting contraband
T]octrine of continuous voyage
CELAPTER WI
ANALOGUES OF CONTRAIBAND
Wherein their carriage differs from that of contraband .
Carriage of despatches. º e e º º
of persons in the service of the belligerent
Penalty incurred by the transport of analogues of contraband
Carriage of despatches in the ordinary way of trade
of persons in the ordinary way of trade .
CEIAPTER VII
CARRIAGE OF BIELLIGERENT GOODS IN NEUTRAL VESSELS
Conflicting theories on the subject
History of usage . e & ©
Effect of the Declaration of Paris.
CHAPTER VIII
BLOCKAIDE
In what blockade consists * e © º e
Institution of a blockade, and how a neutral becomes affected
with a knowledge of its institution º &
Authority under which a blockade may be established
Conditions of the due maintenance of a blockade
PAGE
643
649
65I
655
657
658
66o
66 I
664
665
668
673
675
676
678
678
68o
684
685
69 I
xxiv. CONTENTS
PAGE
Effect of the cessation of a blockade 705
Conditions under which vessels lying in a port when it is
placed under blockade can come out ū g © . 706
What acts constitute a breach of blockade . gº * . . 708
Penalty of breach * º • • e ©. 7 Io
Cases of innocent entrance of blockaded ports t; . 7 II
Blockade of a river partly in neutral territory º º . 7 I 2
CHAPTER IX
NEUTRAL GOODS IN ENEMY'S SHIPS
Conflicting theories on the subject g te º • , . 7 I3
Course of usage, and present state of the question . gº . 7 I 3
Liability of neutral to incidental loss from capture & . 717
CHAPTER X.
WISIT AND CAPTURE
Object of visit and capture . * > te gº & & . 7 IQ
Who may visit and who is liable to be visited g º . 7 IQ
Whether convoyed ships can be visited. dº * * * . 7 I 9
Mode of conducting visit . gº g ge & & . 726
When capture takes place . ſº * o * > e . 728
Capture on ground of resistance to visit gº • • . 729
on ground of fraudulent acts . © tº tº . 732
Duties of a captor e © º * e * e . 733
CHAPTER XI
NEUTRAL PERSONS AND PROPERTY witHIN BELLIGERENT
JURISDICTION
General position of neutral persons and property within belli-
gerent jurisdiction, and right of angary . © * . 736
TABLE OF CASES. e e tº o tº g e e 741
GENERAL INDEX . & & * e g * e . 744
INTERNATIONAL LAW
INTRODUCTORY CHAPTER
INTERNATIONAL law consists in certain rules of conduct which In what
modern civilised states regard as being binding on them in their †ix
relations with one another with a force comparable in nature and consists.
degree to that binding the conscientious person to obey the laws
of his country, and which they also regard as being enforceable
by appropriate means in case of infringement. -
Two principal views may be held as to the nature and origin viewsheld
e e to its
of these rules. They may be considered to be an imperfect mºna
attempt to give effect to an absolute right which is assumed to *-
exist and to be capable of being discovered ; or they may be
looked upon simply as a reflection of the moral development and
the external life of the particular nations which are governed by
them. According to the former view, a distinction is to be
drawn between international right and international positive
law ; the one being the logical application of the principles of
right to international relations, and furnishing the rule by
which states ought to be guided; the other consisting in the
concrete rules actually in use, and possessing authority so far
only as they are not in disagreement with international right.
According to the latter view, the existing rules are the sole
standard of conduct or law of present authority; and changes
and improvements in those rules can only be effected through
the same means by which they were originally formed, namely,
by growth in harmony with changes in the sentiments and
external conditions of the body of states. As between these
two views in their crude form the majority of writers appear to
hold to the former, but a considerable number, while thinking
that positive international law derives its force from absolute
HALL. B
2 INTRODUCTORY CHAPTER
right, practically refer to positive law as the only evidence
of what is right; so that international usage and the facts of
modern state life return by a by-road to the position which
they occupy in the second view, and from which they appear at
first sight to have been expelled.
In the following work the second view is assumed to be
correct. The reasons for this assumption are as follows:—
Putting aside all question as to whether an absolute right,
applicable to human relations, exists, or whether if its existence
be granted its dictates can be sufficiently ascertained, two
objections, both of which seem to be fatal, may be urged against
taking it as the basis of international law.
The first of these is that it is not agreed in what the absolute
standard consists. With some it is the law of God, with others
it is a law of nature inductively reached, by others it is erected
metaphysically. Standards so different in origin necessarily.
differ in themselves; and it is scarcely too much to say that if
the fundamental ideas of the more prominent systematic writers
on international law were worked out without reference to that
body of international usage which always insensibly exerts its
wholesome influence whenever particular rules are under con-
sideration, there would be almost as many distinct codes as there
are writers of authority". The difference of opinion thus shown
Reasons
for adopt-
ing the
second
of these
views.
* The fundamental ideas of the writers who have exercised most influence
upon other writers or upon general opinion may be shortly stated as follows.
Grotius (1583–1645) based international law in the main upon a natural law
imposed upon man by the requirements of his own nature, of which the
cardinal quality, so far as the relation of one man to another is concerned,
he supposed to be the social instinct. This natural law he regarded as
existing independently of divine command (De Jure Belli et Pacis, written
in I624, Prolegomena and lib. i. cap. i.). Pufendorf (1632–1694), by looking
upon the natural law as being imposed by a divine injunction, analogous
apparently to the injunctions of religion, and as not being binding apart
from such injunction, loosened the intimacy of its connexion with human
nature ; and though he agreed with his predecessor in thinking that the
social instinct at least is inherent in the human mind, he appears, in suppos-
ing it to have been given as a means of self-preservation, to elevate utility to
the individual rather than right between man and man into its primary
object (Law of Nature and Nations, written in 1672, bk, i. c. 2; bk. ii. cc. 2, 3).
INTRODUCTORY CHAPTER 3
is no doubt not greater than that which exists as to the
principles by which the internal life of a state. ought to be
regulated, and as to the origin and sanction of those principles.
In one important respect Grotius and Pufendorf were at one. Both con-
sidered that natural law not only forbids acts detrimental to the social state,
but enjoins acts tending to its conservation, so that neglect to contribute to
the maintenance of that state amounts to an infraction of law. Thomasius
(1655–1728), on the other hand, narrows the sphere of law by reducing its
injunctions to the negative maxim, “Do not do to others what you do not
Wish them to do to you,” and relegates everything beyond this to the domain
of morals, with respect to which no external obligation exists. It is un-
necessary to point out what different international laws would be obtained
by the logical application of the former and the latter of these theories
respectively. According to Wolff (1679–1764), man is bound by the law of
his nature to attain the highest perfection of which he is capable, and the
obligation to perform an act being regarded as giving rise to the rights
necessary for its performance, he is endowed with innate rights of liberty,
equality, and security, which are necessary to his development. These innate
rights others are bound in their turn to respect; their acknowledgment
may therefore be compelled, and their infringement punished. Subjectively
also a man in the natural state is bound to assist his neighbour in arriving
at the perfection which is the end of his being; but the obligation implies
no correlative right to demand its fulfilment, and compliance with it cannot
therefore be enforced (Jus naturae methodo scientifica pertractatum, written
in 1741, esp. §§ 28, 78, 197, 208, 640, 645, 659, 669, 676). Thus the natural
law of Wolff distinguishes, like that of Thomasius, between law and morals,
but it again enlarges the compass of the former by expressly importing into
it the principle of right to liberty of action. In their results, the one seems
to lead to such laws as those which exist in actual human societies, and the
other provides free scope for a vague ideal. The principle of liberty was
converted by Kant (I724–1804) into the key of his system. Liberty is a
conception of the pure reason, which presents itself to the will as the neces-
sary condition of its action, and the practical principles founded upon it
are the determining causes of particular actions, under a law of free
obedience on the part of the will to the dictates of reason, and of corre-
ponding external liberty, the presence of which is as necessary to the action
of the will as is internal freedom. The dictates of reason indicate rights
and obligations, and law consists in the conditions under which the choice
of the individual with regard to their subject-matter can be reconciled with
that of other men on the assumption of the independence of all upon any
constraining will on the part of another; its object is to prevent such
aberrant manifestations of will as are inconsistent with the rational liberty
of all. Law, however, so defined, cannot exist between states, because they
have no machinery for effecting this reconciliation by the use of a ‘collective,
constraining will’ through the means of legislation, which can only be
employed in an organised social community. They are therefore in a relation
of non-law, in which force is the only arbiter of disputes; but this relation
being in itself contrary to the dictates of reason, nations ought to issue
B 2.
4. INTRODUCTORY CHAPTER
But the external conditions under which individuals and states
live with reference to law, or with reference to law in the one
case, and to rules equivalent to law in the other, are wholly dis-
similar. Law in modern civilised states presents itself as being
imposed and enforced by a superior, invested with authority
for that purpose; to individuals, therefore, it is immaterial
whether they agree with their neighbours as to the speculative
basis of law; they have not to reason out for themselves the
rules by which they intend to be governed; the law is declared
to them by a competent authority, and conscientious persons are
moved to obedience so soon as the order in which law is conveyed
is communicated to them. States, on the other hand, are
independent beings, subject to no control, and owning no
superior; no person or body of persons exists to whom authority
has been delegated to declare law for the common good; a state
is only bound by rules to which it feels itself obliged in con-
science after reasonable examination to submit ; if therefore
states are to be subject to anything which can either strictly or
analogically be called law, they must accept a body of rules by
general consent as an arbitrary code irrespectively of its origin,
or else they must be agreed as to the general principles by which
they are to be governed.
The second objection is, that even if a theory of absolute right
were universally accepted, the measure of the obligations of
a state would not be found in its dictates, but in the rules which
are received as positive law by the body of states. Just as the
legal obligations of an individual are defined, not by the moral
ideal recognised in the society to which he belongs, but by the
laws in force within it, so no state can have the right to demand
that another state shall act in conformity with a rule in advance
of the practical morality which nations in general have embodied
from it by agreeing with each other to live in a state of peace. Thus
Kant's doctrine on its international side, while it offers an ideal standard of
conduct, dispenses with the necessity of obeying it, except on the condition.
of express compact (Metaphysische Anfangsgründe der Rechtslehre, written
in I796). ... "
INTRODUCTORY CHAPTER 5
in the law recognised by them; and a state cannot itself fall
under a legal obligation to act in a different way from that
in which it can demand that another state shall act in like
circumstances. However useful therefore an absolute standard
of right might be as presenting an ideal towards which law
might be made to approach continuously nearer, either by the
gradual modification of usage or by express agreement, it can
only be a source of confusion and mischief when it is regarded
as a test of the legal value of existing practices.
If international law consists simply in those principles and By what
tº * - te evidence
definite rules which states agree to regard as obligatory, the jºs
question at once arises how such principles and rules as may F.
& ing to con-
purport to constitute international law can be shown to be . IIl-
- & tº g e €I’Ila,t}] O]]-
Sanctioned by the needful international agreement. No formal ai law are
shown to
code has been adopted by the body of civilised states, and scarcely be accept-
any principles have even separately been laid down by commoned as law.
consent. The rules by which nations are governed are unex-
~s
****—- _-- ****
pressed. The evidence of their existence and of their contents
must therefore be sought in national acts—in other words, in
such international usage as can be looked upon as authoritative.
What then constitutes an authoritative international usage?
Up to a certain point there is no difficulty in answering this Usage, of
e - g ſº o which the
question. A large part of international usage gives effect to authºri.
is unques-
principles which represent facts of state existence, essential.
under the conditions of modern civilised state life. Whether
these are essential facts in the existence of all states is im-
material; several of them indeed are not so. The assumption
that they are essential, so far as that group of states which is
subject to international law is concerned, lies at the root of the
whole of civilised international conduct; and that they have
come to be regarded in this light, and unquestionably continue
to be so regarded, is sufficient reason for taking as authoritative
the principles and rules which result from them. Another portion
of international usage gives effect to certain moral obligations,
which are recognised as being the source of legal rules with
6 INTRODUCTORY CHAPTER
the same unanimity as marks opinion with respect to the facts
of state existence. -
No third basis of legislation can be found of such solid value
as are the essential facts of existence of a society and the moral
principles to which that society feels itself obliged to give legal
effect. Of both the foregoing kinds of usage, therefore, it can
be affirmed unhesitatingly that they possess a much higher
authority than any other part of international law. It can
also be affirmed as unhesitatingly that the principles which
underlie them have been accepted not merely as forms of classi-
fication of usage, but as distinct sources of law. States are
consequently bound, not only to respect those principles in the
shape of existing usage, but in dealing with fresh circumstances
to apply them whenever their application is possible. The in-
ternational lawyer, in like manner, when testing the validity
of practices claiming to be legal, or indicating appropriate modes
of regulating new facts or relations, is justified, within the scope
of the principles in question, in going beyond the rules which
can be drawn from the bare facts of past practice. He is able,
and ought, to hold that the principle governs until an exceptional
usage is shown to have been established, or at least until it
can be shown that the authority of the principle has been
broken by practice at variance with it, but not treated as an .
infringement of the law. . In other words, all practices or
-- particular acts, claiming to be legal, which militate against
the principles in question, must be looked upon with disfavour,
and the onus of proving that they have a right to exist is
thrown upon themselves.
It is to be observed that the accepted principles of inter-
national law sometimes lead logically to incompatible results.
In such cases it is evident that as neither of two ultimate
principles can control the other, and reconciling legislation at
the hands of a superior is from the nature of the case impossible,
there is nothing but bare practice which can fix at what point
the inevitable compromise is to be made.
INTRODUCTORY CHAPTER, 7
It is more difficult to determine the value of arbitrary usages tſsage, of
unconnected with principle, or of usages professing either to wº
be the groundwork of rules derogating from accepted principles, *...
or to form exceptions from admitted rules. In some cases their
universality may establish their authority; but in others there
may be a question whether the practice which upholds them,
though unanimous so far as it goes, is of value enough to be
conclusive; and in others again it has to be decided which, or
whether either, of two competing practices, or whether a practice
claiming to support an exception, is strong enough to set up
a new, or destroy an old, authority. To solve such questions
it is necessary to settle the relative value of national acts.
These split themselves into two great divisions, namely, uni-
lateral acts and treaties and other compacts.
It appears to be usually thought that treaties are more Treaties.
important indications than unilateral acts of the opinion of the
contracting parties as to what is, or ought to be, the law; and
it is even frequently considered that they are in some sense
a fountain of law to others than the signatory states. The
reasoning upon which the latter notion rests ‘is not very intelli-
gible. It is conceded that ‘in the full rigour of the law,
treaties are only obligatory on the contracting parties; ” but
it is nevertheless held that “when a certain number, freely
entered into by divers nations, have embodied the same prin-
ciples of natural law, imparting to it the same interpretation,
and adopting the same methods for giving effect to it, although
no one of them need be compulsorily applicable to states which
have not been parties to it, a sort of jurisprudence—a species of
law—is formed, which the majority of nations recognise as
being obligatory, even upon those who have not signed any
of its constituent parts".” The doctrine is seldom stated with
* Hautefeuille, Des Droits et des Devoirs des Nations Neutres : Discours
Préliminaire. Calvo, Le Droit International, 3° ed. § 24, puts forward the
same view more indefinitely, but with sufficient distinctness; and Bluntschli,
Le Droit International Codifié, 2° ed. § 794, adopts it by implication in looking
8 INTRODUCTORY CHAPTER
* this openness and breadth, but it is more or less consciously
implied in the use which is generally made of what is called
the conventional law of nations. In spite of the largeness of
the support which it thus receives, there can be no hesitation
in dismissing it at once as essentially unsound. As a pact
between two parties is confessedly incapable of affecting a third
who has in no way assented to its terms, the only ground on
which it is possible that treaties can be invested with more
authority than other national acts is that, when they enshrine
a principle, they are supposed to express national opinion, in
a peculiarly deliberate and solemn manner, and therefore to be
of more value than other precedents. Even if this were the
case, treaties would be a long way from establishing ‘a sort
of jurisprudence’ separable from that produced by the aggregate
of deliberate national acts; but it cannot be admitted that the
greater number of treaties do in fact express in a peculiarly
solemn manner, or indeed at all, the views of the contracting
parties as to what is or ought to be international law.
Treaties included amongst those which have been supposed to
express principles of law appear to be susceptible of division
into three classes: -
upon the declaration of the Treaty of Paris with respect to the effect of the
flag on enemy’s goods as universally binding, notwithstanding that the
United States have not yet adhered to it. Ortolan (Diplomatie de la Mer,
Notice Additionnelle) states the reasons for the supposed authority of treaties
as follows. The authors, he says, who have asserted it “ont envisagé
successivement et séparément les conventions conclues a diverses époques
par chacune des puissances civilisées avec les autres ; ils ont reconnu que,
dans ces instruments publics ayant pour but non seulement de régler des
interéts de détail et particuliers, mais encore de fixer les grands principes
d’intérêt général, quelques-uns de ces principes étaient toujours ou le plus
souvent reconnus d’un commun accord; que si, dans des temps de guerre ou
de mésintelligence, l'abandon de ces principes avait eu lieu quelquefois, les.
peuples, instruits par expérience des consequences funestes de Get abandon,
avaient proclamé de nouveau ces mémes principes dans leurs traités de paix,
et en avaient stipulé l'observation constante pour l’avenir. Des lors on
a 6té fondé à déduire de cette conformité presque générale de décisions une
théorie de ce qui se pratique ou de ce qui doit se pratiquer entre les nations
civilisées en vertu des stipulations écrites; et c’est là ce que l’on a nommé
droit des gens conventionnel ou des traités.”
INTRODUCTORY CHAPTER 9
I. Those which are declaratory of law as understood by the
contracting parties.
2. Those which stipulate for practices which the contracting
parties wish to incorporate into the usages of the law; but which
they know to be outside the actual law.
3. Those which are in fact mere bargains, in which, without
any reference to legal considerations, something is bought by
one party at the price of an equivalent given to the other.
The first of these kinds is for any purpose of international
precedent extremely rare. A few instances there no doubt are
of international instruments declaratory of true law; such, for
example, as the Protocol signed at the Conference of London in
1871, by which the representatives of Russia, Austria, France,
Germany, Great Britain, Italy, and Turkey, stated that they
recognised it to be an essential principle of the law of nations
that no power can be released from the engagements of treaties,
or modify their stipulations, except with the consent of the
contracting parties amicably obtained. But the greater number
of the few treaties which profess to be declaratory are of the
type of the Acts and Conventions of the two Armed Neutralities,
and the Convention for the common defence of the liberty of
trade between Denmark and Sweden in 1794, which may be
taken by implication to assert the principles of the first Armed
Neutrality, and to be declaratory of them as general law. In
these cases it is certain that the weight of authority was not in
accordance with the provisions of the treaties, and that their
object was simply to enforce new rules upon a third state in the
common interest of the contracting parties".
Certain introductory clauses are usually found in treaties of
commerce, which do in fact involve principles of existing in-
ternational usage, as in the case of stipulations that there shall
be friendship between the contracting nations. This and like
* Treaties are often referred to as declaratory of a principle which are not
so in fact. Thus the Treaty of Vienna is sometimes said to be declaratory of
the principles of freedom of navigation. For its true effect see postea, p. 137.
10 INTRODUCTORY CHAPTER
covenants, however, are now mere words of surplusage; they
add nothing to the authority of the principle which they em-
body. Once no doubt they were necessary; but long after they
ceased to be so they remained as common forms of opening, and
it can only be supposed that they owe to their use as such the
position which they occupy as the sole exceptions to the general
truth that express stipulations are not made to ensure obedience
to a law by which both contracting parties would in any case
feel themselves to be bound.
Of the second class of treaties there are not many which
enunciate principles' ; but there are a very large number which
have for their aim to define the objects which an undisputed
principle is to be permitted to affect, or the manner in which it
is to be applied. Such are those which enumerate articles con-
traband of war, those which prescribe the formalities of maritime
capture, those directed to the repression of the slave trade, and
many of those regulating the functions and defining the
privileges of Consuls. The value both of the more general and
the more specific kinds is great to the international lawyer; not
because the conventions which belong to them can be a source of
law, but because they show the flow and ebb of opinion, and its
strength at a given time with reference to particular doctrines
or practices. -
Treaties of the third class are not only useless but misleading.
* Treaties are sometimes referred to this class also which do not belong to
it in fact. Thus the Treaty of Utrecht, which purported to have for one of
its practical objects the establishment of a justum potentiae equilibrium, has
been spoken of as being designed to affirm the doctrine of the balance of
power. As examples of treaties which were really intended to enunciate
principles may be instanced the Treaty of 1850 between Great Britain and
the United States for the construction and regulation of a Ship Canal across
Central America, and the Declaration of Paris in 1856. It was recited in
the former that the contracting parties desired ‘not only to accomplish a
particular object, but also to establish a general principle,” in the latter that
the signatory states proposed “introduire dans les rapports internationaux
des principes fixes’ with reference to certain points of maritime interna-
tional law. Apart from such express recitals, or from distinct external
evidence, it would be rash to assume that a treaty is intended to enunciate
a principle.
INTRODUCTORY CHAPTER 11
Unfortunately, they are also the most numerous. Sometimes
they mingle with conventions intended to affirm or extend
a principle in such manner as to blur their effect, or even to
throw an air of uncertainty on the wishes of the contracting
parties; sometimes they contradict in a long succession of
separate agreements what from other evidence would appear to
be the settled policy of a nation; sometimes they form a mere
jumble in which no clue to intention can be traced. Thus in
18OI, Great Britain and Russia and Great Britain and Sweden
signed treaties by which enemy’s goods in neutral vessels were
rendered liable to confiscation, while in the same year Russia
and Sweden reiterated as between themselves the principle of the
armed neutrality under which hostile property was protected by
a friendly ship. During the last century the United States con-
cluded no less than ten treaties under which neutral goods were
confiscated in enemy’s vessels; but their courts regard such goods
as free in all cases not specially provided for by international
agreement. Again, in 1785 the United States agreed with
Prussia that contraband of war should not be confiscable; by
their treaty of 1794 with England not only were munitions of
war subjected to confiscation, but the list was extended to include
materials of naval construction; and in the only treaty since
concluded by Prussia, in which the subject is referred to, except
two in 1799 and 1828 reviving that of 1785 with the United
States, articles contraband of war are dealt with in the usual
manner. Instances of like kind might be endlessly multiplied,
and it may be safely said that it is rarely that the treaty policy
of any country is consistent with itself over a long period of time.
On thus exposing the nature of treaties to analysis, no ground
appears for their claim to exceptional reverence. They differ
only from other evidences of national opinion in that their
true character can generally be better appreciated ; they are
strong, concrete facts, easily seized and easily understood.
They are, therefore, of the greatest use as marking points in the
movement of thought. ‘If treaties modifying an existing
12 INTRODUCTORY CHAPTER
Conclu-
sions as to
the legal
value of
different
kinds of
national
acts.
practice, or creating a new one, are found to grow in number,
and to be made between states placed in circumstances of
sufficient diversity; if they are found to become nearly universal
for a while, and then to dwindle away, leaving a practice more
or less confirmed, then it is known that a battle has taken place
between new and old ideas, that the former called in the aid of
special contracts till their victory was established, and that when
they no longer needed external assistance, they no longer cared
to express themselves in the form of so-called conventional law.
While, therefore, treaties are usually allied with a change of law,
they have no power to turn controverted into authoritative
doctrines, and they have but little independent effect in hastening
the moment at which the alteration is accomplished. Treaties
are only permanently obeyed when they represent the continued
wishes of the contracting parties.
If the legal value of national acts is not to be estimated with .
reference to a divine or natural law, and if treaties are mere
evidences of national will, not necessarily more important, and
occasionally, from being the result of a temporary exigency, less
important than some unilateral acts, it remains to be asked
whether all indications of national opinion with reference to
international law are to be considered of an equal weight, except
in so far as their significance is determined by attendant
circumstances, and whether, therefore, authority will attach to
them in proportion to their number and to the length of time
during which they have been repeated. Subject to two impor-
tant qualifications this may probably be said to be the case.
The first qualification is that unanimous opinion of recent
growth is a better foundation of law than long practice on the
part of some only of the body of civilised states. But it must
be remembered that as no nation is bound by the acts of other
countries in matters which have not become expressly or tacitly
a part of received international usage, the refusal of a single
state to accept a change in the law prevents a modification
agreed upon by all other states from being immediately com-
INTRODUCTORY CHAPTER 13.
pulsory, except as between themselves. The rule, as altered for
their purpose, merely becomes an unusually solid foundation of
usage, capable of upholding law in less time than if the number
of dissentients had been greater. Thus the provisions of the
Declaration of Paris cannot in strictness be said to be at present
part of international law, because they have not received the
adherence of the United States; but if the signatories to it
continue to act upon those provisions, the United States will
come under an obligation to conform its practice to them in
a time which will depend on the number and importance of the
opportunities which other states may possess of manifesting their
persistent opinions. - ------- - -
The second qualification is that there are some states, the
usages of which in certain matters must be taken to have
preponderant weight. It is impossible to overlook the fact that
the practice, first of Holland and England, and afterwards of
England and France, exercised more influence on the develop-
ment of maritime law than that of states weaker on the sea ;
and it would at the present day be absurd to declare a maritime
usage to be legally fixed in a sense opposed to the continued
assertion of both Great Britain and the United States. The
acts of minor powers may often indicate the direction which it
would be well that progress should take, but they can never
declare actual law with so much authority as those done by the
states to whom the moulding of law has been committed by
the force of irresistible circumstance.
In what has been said up to this point the rules governing Whether
the conduct of states have been spoken of as legal rules; it has †iw
therefore been implied either that they constitute a body of true ſº
- tutes a
law, identical in its essential characteristics with law regulating branch of
an organised political community, or at least that, if not true law.
identical with such law, they are so closely analogous to it as to
be more properly described as law than by any other name. It
is however not uncommonly thought—in England at any rate—
that neither of these views is correct. The only fundamental
14. INTRODUCTORY CHAPTER
distinction, it is said, which separates legal from moral rules, is
that the former are, and the latter are not, commands given and
enforced by a determinate authority; both are general precepts
relating to overt acts, but in the one case a machinery exists for
securing obedience, in the other no more definite sanction can be
appealed to than disapprobation on the part of the community
or of a section of it. Judged by this test, it is urged, the rules
of International Law are nothing more than counsels of morality,
sanctioned by the public opinion of states.
That there is an element of truth in this criticism must be
frankly admitted. International law does not conform to the
most perfect type of law. It is not wholly identical in character
with the greater part of the laws of fully developed societies,
and it is even destitute of the marks which strike the eye most
readily in them. But it is now fully recognised that the proper
scope of the term law transcends the limits of the more perfect
examples of law. To what extent it transcends them is not
equally certain. The various ideas of law formed in different
societies and times, and the various groups of customs which
have been obeyed as law, have probably not yet been sufficiently
compared and analysed, and until an adequate comparison and
analysis have been made, no definition or description of law can
be regarded as final. Turing the continuance of this state of
uncertainty as to the proper limits of law, it is impossible, in
dealing with international law, to ignore the two broad facts,
that it is habitually treated as law, and that a certain part of
what is at present acknowledged to be law is indistinguishable
in character from it.
Even supposing the view to be erroneous that the body of
international usages constituted a branch of law from the time
at which it first acquired authority, the fact that states and
writers have acted and argued as if it were law cannot but affect
the nature of the rules which now exist. The doctrines of
international law have been elaborated by a course of legal
reasoning ; in international controversies precedents are used in
INTRODUCTORY CHAPTER 15
a strictly legal manner; the opinions of writers are quoted and
relied upon for the same purposes as those for which the opinions
of writers are invoked under a system of municipal law ; the
conduct of states is attacked, defended, and judged within the
range of international law by reference to legal considerations
alone ; and finally, it is recognised that there is an international
morality distinct from law, violation of which gives no formal
ground of complaint, however odious the action of the ill-doer
may be". It may fairly be doubted whether a description of
law is adequate which fails to admit a body of rules as being
substantially legal, when they have received legal shape, and are
regarded as having the force of law by the persons whose conduct
they are intended to guide.
It is moreover not true to say that municipal law is invariably
enforced by a determinate authority. There are stages of social
organisation in which public opinion, which is the ultimate
sanction of all law, whether municipal or international, is often
able only to say to the individual that, when the law is broken
to his hurt, he may himself exact redress if he can. When the
early Teutonic societies allowed a person, upon whom a certain
kind of legal injury had been inflicted, to seize the cattle of the
wrongdoer and keep them till he obtained satisfaction, or when
they told him to refer a quarrel involving legal questions to
the issue of trial by combat, they showed much the same power-
lessness to enforce law directly that is usually shown by the
community of states. Even at a far more advanced point of
development there is probably always some law which can only
be supposed by a violent fiction to be enforced by a determinate
authority. A custom which, on being infringed, is brought
before the courts for enforcement, and is enforced by them, must
have been law for some indefinite time before judicial cognizance
can be taken of it. If not, the courts have legislated, and the
person against whom the custom has been enforced is subjected
* The above points are well put by Sir Frederick Pollock in a paper on the
methods of Jurisprudence. Law Magazine, November 1882.
16 INTRODUCTORY CHAPTER
to an ex post facto law. The supposition of such legislation is
inadmissible; and the fiction that the courts, without legislating,
have by their decision transformed the custom retrospectively
into law, is as unsatisfactory as fictions always must be.
Evidently the courts give effect to a custom because it is already
regarded in the community as having the force of law ; and
during the time that it has existed, before appeal has been made
to the courts, it must have been imposed upon unwilling persons
by the strength of public opinion alone.
To regard the foregoing facts as unessential is impossible. If
the rules known under the name of international law are linked
to the higher examples of typical positive law by specimens of
the laws of organised communities, imperfectly developed as
regards their sanction, the weakness and indeterminateness of
the sanction of international law cannot be an absolute bar to
its admission as law ; and if there is no such bar, the facts that
international rules are cast in a legal mould, and are invariably
treated in practice as being legal in character, necessarily become
the considerations of most importance in determining their true
place. That they lie on the extreme frontier of law is not to be
denied; but on the whole it would seem to be more correct, as it
certainly is more convenient, to treat them as being a branch of
law, than to include them within the sphere of morals.
PART I
CHAPTER I
PERSONS IN INTERNATIONAL LAW, AND COMMUNITIES
E’OSSESSING AN ANALOGOUS CHARACTER,
PRIMARILY international law governs the relations of such of PARTI
the communities called independent states as voluntarily subject “*”
themselves to it. To a limited extent, as will be seen presently, ...
it may also govern the relations of certain communities of º
analogous character. The marks of an independent state are, national
that the community constituting it is permanently established law.
for a political end, that it possesses a defined territory, and that
it is independent of external control. It is postulated of those
independent states which are dealt with by international law
that they have a moral nature identical with that of individuals,
and that with respect to one another they are in the same
relation as that in which individuals stand to each other who are
subject to law. They are collective persons, and as such they
have rights and are under obligations.
These postulates assume the conformity of the nature of such
states as are governed by law to the conditions necessarily
precedent to the existence of law ; because the capacity in a
corporate person to be subject to law evidently depends upon
the existence of a sense of right, and of a sense of obligation
to act in obedience to it, either on the part of the community at
large, or at least of the man or body of men in whom the will
governing the acts of the community resides. In so far more-
over as states are permanently established societies their marks .
represent a necessary condition of subjection to law. A society,
HALL C
18 PERSONS IN INTERNATIONAL LAW
PART I
£HAP. I
Their
marks.
for example, of which the duration is wholly uncertain cannot
offer solid guarantees for the fulfilment of obligations, and
cannot therefore acquire the rights which are correlative to them.
It cannot ask other communities to enter into executory con-
tracts with it, and at any moment it may cease to be a body
capable of being held responsible for the effects of its present acts.
On the other hand, the marks constituted by independence
and association with specific territory represent facts which,
though they determine the form of the particular law, are not in
themselves necessary to law.
The absolute independence of states, though inseparable from
international law in the shape which it has received, is not only
unnecessary to the conception of a legal relation between
communities independent with respect to each other, but, at the
very least, fits in less readily with that conception than does
dependence on a common superior. If indeed a law had been
formed upon the basis of the ideas prevalent during the Middle
Ages, the notion of the absolute independence of states would
have been excluded from it. The minds of men were at that
time occupied with hierarchical ideas, and if a law had come into
existence, it must have involved either a solidification of the
superiority of the Empire, or legislation at the hands of the
Pope. Law imposed by a superior was the natural ideal of
a religious epoch; and in spite of the fierce personal inde-
pendence of the men of the Middle Ages, the ideal might have
been realized if it had not been for the mutual jealousy of the
secular and religious powers. As it was, neither the Church nor
the Empire became strong enough to impose law. With their
definitive failure to establish a regulatory authority international
relations tended to drift into chaos; and in the fifteenth century
international life was fast resolving itself into a struggle for
existence in its barest form. In such a condition of things no
law could be established which was unable to recognise absolute
independence as a fact prior to itself; and rules of conduct
which should command obedience apart from an external sanc-
DERSONS IN INTERNATIONAL LAW 19
tion were the necessary alternative to a state of complete
anarchy. -
That the possession of a fixed territory is a distinct require-
ment must be looked upon as the result of more general, but not
strictly necessary, circumstances. Abstractedly there is no reason
why even a wandering tribe or society should not feel itself
bound as stringently as a settled community by definite rules of
conduct towards other communities, and though there might be
difficulty in subjecting such societies to restraint, or in some
cases in being sure of their identity, there would be nothing in
such difficulties to exclude the possibility of regarding them as
subjects of law, and there would be nothing therefore to render
the possession of a fixed seat an absolute condition of admission
to its benefits. The explanation of the requirement must be
sought in the circumstances of the special civilisation which
has given rise to international law. Partly, no doubt, it is to be
found in the fact that all communities civilised enough to
understand elaborated legal rules have, as a matter of experience,
been settled, but the degree to which the doctrines of inter-
national law are based upon the possession of land must in the
main be attributed to the association of the rights of sovereignty
or supreme control over human beings with that of territorial
property in the minds of jurists at the period when the founda-
tions of international law were being laid. The notion of tribal
or national sovereignty, universal after the fall of the Roman
empire, disappeared during the Middle Ages before the feudal
idea which united the right of control with the possession of
determinate portions of land; and the substitution of the
conceptions of Roman law for those of feudalism tended to
strengthen the bond of connexion. As the result of this sub-
stitution, land actually under the administration of a particular
person became freed from the paramount title or authority of
others; the notion of dominium ” was introduced; and by the
sixteenth century the person or persons possessing sovereignty
within a specific territory were deemed its absolute owners,
PART I
CHAP. I
C 2.
20 PERSONS IN INTERNATIONAL LAW
PART I
CHAP. I
When a
COIOlſºn Ul-
nity be-
(2OIO eS 8,
person in
law.
In what
circum-
stances
personal
From the invariable association of land with sovereignty, or in
other words with exclusive control, over the members of a
specific society, to the necessary association of such control with
the possession of land, is a step which could readily be made,
and which became inevitable when no instances were present of
civilised communities without fixed seats.
States being the persons governed by international law, com-
munities are subjected to law, with a certain exception which
will be dealt with presently, from the moment, and from the
moment only, at which they acquire the marks of a state. So
Soon, therefore, as a society can point to the necessary marks,
and indicates its intention of conforming to law, it enters of
right into the family of states, and must be treated in conformity
with law. The simple facts that a community in its collective
capacity exercises undisputed and exclusive control over all
persons and things within the territory occupied by it, that it
regulates its external conduct independently of the will of any
other community, and in conformity with the dictates of
international law, and finally that it gives reason to expect that
its existence will be permanent, are sufficient to render it a person
in law. On the other hand, since, with the exception above
mentioned, communities become subject to law from the moment
only at which they acquire the marks of a state, international
law takes no cognizance of matters anterior to the acquisition of
those marks, and is, consequently, indifferent to the means which
a community may use to form itself into a state. The legal
status of a duly organised community is affected neither by
moral faults of origin, nor by violations of right by which its
establishment may have been accompanied, unless the violations
have been such as to make it doubtful whether the community
claiming to be a state will be able or willing to fulfil its legal
obligations. *
The personal identity which is thus established exists in the
eye of the law solely for international purposes. It is therefore
retained so long as the corporate person undergoes no change
PERSONS IN INTERNATIONAL LAW 21
which essentially modifies it from the point of view of its inter- PART I
national relations, and with reference to them it is evident that no “* *
change is essential which leaves untouched the capacity of the º
state to give effect to its general legal obligations or to carry
out its special contracts.
It flows necessarily from this principle that internal changes
have no influence upon the identity of a state. A community is
able to assert its rights and to fulfil its duties equally well,
whether it is presided over by one dynasty or another, and
whether it is clothed with the form of a monarchy or a republic.
It is unnecessary that governments, as such, shall have a place
in international law, and they are consequently regarded merely
as agents through whom the community expresses its will, and
who, though duly authorised at a given moment, may be super-
seded at pleasure. This dissociation of the identity of a state
from the continued existence of the particular kind of govern-
ment which it may happen to possess is not only a necessary
consequence of the nature of the state person; it is also essential
both to its independence and to the stability of all international
relations. If in altering its constitution a state were to abrogate
its treaties with other countries, those countries in self-defence
would place a veto upon change, and would meddle habitually in
its internal polities. Conversely, a state would hesitate to bind
itself by contracts intended to operate over periods of some length,
which might at any moment be rescinded by the accidental
results of an act done without reference to them. Even when
internal change takes the form of temporary dissolution, so that
the state, either from social anarchy or local disruption, is
momentarily unable to fulfil its international duties, personal
identity remains unaffected; it is only lost when the permanent
dissolution of the state is proved by the erection of fresh states,
or by the continuance of anarchy so prolonged as to render
reconstitution impossible or in a very high degree improbable.
The identity of a state is also unaffected by external modi-
fication through accession or through loss of part of its territory.
22 PERSONS IN INTERNATIONAL LAW
PART I
CHAP. I
When
personal
identity
is lost.
It is seldom, if ever, that enlargement so interferes with the
continuity of its life as to make it difficult to carry out inter-
national obligations". Annexation implies that the identity of
the annexed territory is merged in that of the state to which it
is added. The former, therefore, by becoming part of the latter,
becomes subject to its obligations; while the annexing state, for
the same reason, is not bound by personal contracts affecting its
new acquisition, except when, having absorbed a state in its
entirety, it becomes “heir to the whole of the property of the
latter, and consequently is morally obliged to accept responsibility
for the debts with which it may have been burdened. The case
of loss of territory is so far different that it may become
impossible for a state to perform duties of guarantee or alliance
under which it may lie by special agreement, but inability to
perform contracts of this kind obviously leaves untouched both
the capacity to give effect to general legal obligations, and to
carry out special agreements based merely upon the possession of
independence. The identity of a state therefore is considered to
subsist so long as a part of the territory which can be recognised
as the essential portion through the preservation of the capital or
of the original territorial nucleus, or which represents the state
by continuity of government, remains either as an independent
residuum or as the core of an enlarged organisation.
States cease to exist by being absorbed into other states as the
result of conquest or of peaceful agreement, by being split into
two or more new states in such manner that no part can be
* Even Sardinia, while enlarging its area to nearly four times its original
size by the absorption of the rest of the Italian States, and after changing
its name to that of the kingdom of Italy, did not consider its identity to be
destroyed, and held its existing treaties to be applicable as of course to the
new provinces. This was no doubt an extreme case, and Holtzendorff
(Handbuch des Völkerrechts, i. 37) seems justified in thinking that it would
have been more reasonable to regard a new state as having been brought into
existence by so great an expansion, coupled with a change of name and
capital. Still, it must be admitted that the essential fact of ability to carry
out international obligations affecting the old territory remained untouched,
and that the government of the enlarged state was fully able to apply them
to its fresh acquisitions.
PERSONS IN INTERNATIONAL LAW 23
looked upon as perpetuating the national being', and by being PART I
united upon equal terms with others into a new state. CHAP. I
Communities possessing the marks of a state imperfectly are Commu-
in some cases admitted to the privilege of being subject to inter- º
national law, in so far as they are capable of being brought .º.º.
* M - e. º e 8.5 85 *** a state im-
within the scope of its operation. perfectly.
A state in its perfect form has, in virtue of its independence, states in
complete liberty of action, subject to law, in its relations with : º
other states; and its liberty, for the purposes of international tºº.
pendence.
law, is not considered to be destroyed by the fact that it has
concluded agreements fettering its action, provided that such
agreements are terminable at any moment or upon stipulated
notice, or provided that they are not of such nature in themselves
as to necessarily subordinate the national will for an indefinite
time to that of another power. But so soon as compacts are
entered into, which are not intended to be revocable, or are not
likely by the nature of their provisions to be susceptible of
unilateral revocation, and which, at the same time, subject the
external action of a state to direction by a will other than its
own, it ceases within the sphere of these compacts to be inde-
pendent, and consequently to be a person in international law.
Its personality is not however wholly merged, and in matters
not covered by the compacts it retains its normal legal position.
States commonly understood to be subject to law in a partial The usual
tº º classifica-
manner are classed under the several heads of states joined to ion of
such
others by a personal, real, federal, or confederate union, and of .s.
states placed under the protection or suzerainty of others”. For
* This, for instance, would occur if Austria were to separate into German,
Hungarian, Czech, Polish, and South Slavonic states.
* Some confusion is apt to creep into the arrangement of existing states
under the proper heads, because of the inappropriate names by which some
of them are designated,—as in the case of the new German Empire, which,
to save the amour propre of the component parts, is called a confederated
Empire, and because, in some instances, of deficient attention on the part
of writers to the essential facts. The characteristics properly distinguishing
the different classes are, however, sufficiently well defined; see Ortolan, Dip.
de la Mer (4° ed.), liv. i. ch. 2.; Heffter, Le Droit International de l’Europe
(3° ed.), §§ 20–1 ; Bluntschli, §§ 70, 75, 76, 78; Calvo, §§ 44-67.
24 PERSONS IN INTERNATIONAL LAW
PART I international purposes, however, this classification is in great part
* immaterial. When it is proposed to place a community under
the head of those which are capable of entering into some only
of the relations with other states which are contemplated by
international law, the only questions which require to be settled
are whether its independence is in fact impaired, and if so, in
what respects and to what degree. The nature of the bond
derogating from independence which unites the community to
another society is a matter, not of international, but of public
law; because in so far as the former is identified with that
society in its relations with other states, it is either a part of
it, or in common with it is part of a composite state.
Whether Looking at the subject from this point of view, states linked
states tº º ſº
inited by by a personal union may at once be excluded from consideration.
a personal A personal union exists, as in the instance of Great Britain and
union, and *
. Hanover from 1714 to 1837, when two states, distinct in every
Of TeClella, * -
states, are respect, are ruled by the same prince; and they are properly
ºnly regarded as wholly independent persons who merely happen to
partially e
subject to employ the same agent for a particular class of purposes, and
#. who are in no way bound by or responsible for each other’s
ional law acts1. Fºr the opposite reason the members of a federal state
are equally excluded from the category of states possessed of
* M. Heffter says (§ 20) that states joined by a personal union cannot make
war upon one another. I fail to see what legal justification can be given for
this assertion so long as the prince is looked upon as the organ or agent and
not as the sovereign-owner of the state. Of course it is not as a matter of
fact likely that war will be made without previous expulsion of the sovereign
from one or the other, but this has obviously nothing to do with the matter
in its legal aspect. -
The term ‘personal union’ is sometimes applied when ‘the individuality
of the state is merged by such personal union, and with respect to its
external relations, remains for the time in abeyance, but emerges again on
the dissolution of the union, and resumes its rank and position as an
independent sovereign state ; ” Halleck, International Law (ed. London 1878),
i. 62 ; see also Phillimore, Commentaries upon International Law, § lxxvi.
The relation thus described is wholly different from that of personal union
in the ordinary sense ; so long as it lasts, it is practically identical with that
of real union. It only differs from the latter in that it purports to be
terminable on the death of an individual or the cessation of a dynasty,
while a real union, though not always in fact independent of a change in
PERSONS IN INTERNATIONAL LAW 25
imperfect independence. The distinguishing marks of a federal
state upon its international side consist in the existence of a
central government to which the conduct of all external relations
is confided, and in the absence of any right on the part of the
states forming the corporate whole to separate themselves from
it. Under the Constitution of the United States, for example,
the central authority regulates commerce, accredits diplomatic
representatives, makes treaties, provides for the national defence,
declares war and concludes peace; the individual states, on the
other hand, are expressly forbidden to enter into any agreement
with foreign powers without the assent of Congress, to maintain
military or naval forces, or to engage in war. The citizens of
the United States have a common nationality". Again, in the
two kingdoms of Sweden and Norway an hereditary king is
invested with like power to that which belongs to the federal
government of the United States, and provision is made, in case
of extinction of the dynasty, for the election of a new common
head, so that the permanence of the union is secured ". Under
the Constitution of 1871, the German empire forms another
state of the same character, notwithstanding that some of the
component parts possess the complimentary privilege of receiving
foreign ministers at their courts, and of accrediting ministers
empowered to deal with matters not reserved to the Imperial
Government. All Germans have a common nationality. The
joint will of the several states regulates by means of the Imperial
Government all matters connected with the diplomatic repre-
sentation of the corporate state, and the latter has sole power
of concluding treaties of peace and alliance, or treaties of any
other kind for political objects, commercial treaties, conventions
regulating questions of domicil and emigration, postal matters,
the personal sovereign, is contemplated as permanent. It is difficult to
understand the advantage of classing together cases which are broadly
distinct from each other, and of separating cases which for the purposes of
international law are indistinguishable.
* Constitution of the United States, in Story, Commentaries on the
Constitution of the United States, i. xvii.
* De Martens, Nouveau Recueil des Traités de Paix, ii. 608.
PART I
CHAP. I
26 PERSONS IN INTERNATIONAL LAW
protection of copyright and consular matters, extradition treaties
and other conventions connected with the administration of civil
or criminal law. Whenever members of the Confederation do
not fulfil their constitutional duties, which, include obedience
to the central authority in the above matters, they may be .
constrained to do so by way of execution ".
A real union is indistinguishable for international purposes
from a federal union. It occurs when states are indissolubly
combined under the same monarch, their identity being merged
in that of a common state for external purposes, though each
may retain distinct internal laws and institutions. Such differ-
ences as exist between a state so composed and a federal state
are merely matters of public law. •
Of states in possession of imperfect independence, confederated
states are those which have the highest individuality. The
union which is established between them is strictly one of in-
dependent states which consent to forego permanently a part
of their liberty of action for certain specific objects, and they
are not so combined under a common government that the
latter appears to their exclusion as the international entity.
The best example of a union of this kind is supplied by the
German confederation as it existed from 1820 to 1866*. By
the Act under which it was constituted, its objects were defined
to be the maintenance of the external and internal security of
Germany, and the independence and inviolability of the con-
federated states, who mutually guaranteed each other's possessions,
and who could not make war on one another. A Diet was
instituted, composed of plenipotentiaries of the states, which
PART I
CHAP, I
Real
union.
States in
possession
of imper-
fect inde-
pendence.
Confed-
erated
states.
1 Hertslet, Map of Europe by Treaty, iii. 1931. The other instances of
IFederal union at present existing are Mexico, Colombia, Venezuela, the
Swiss and Argentine Confederations. For the constitution of Switzerland,
see De Martens, Nouv. Rec. Général, xi. 129. That of the Argentine
confederation is nearly identical with that of the United States. Calvo,
i. § 60 ; Twiss, The Law of Nations, i. § 48–9.
* The Confederation was formed in 1815, but it was not finally organized
until the signature of the Schluss Act in 1820. See the Federal Act in
De Martens, Nouv. Rec. ii. 353, and the Schluss Act, id. v. 466.
TERSONS IN INTERNATIONAL LAW 27
formed the organ of the Confederation for common external
matters, and which, consequently, could receive and accredit
envoys and conclude treaties on behalf of the Confederation,
and could declare war against foreign states on the territory
of the Confederation being threatened. These powers were not
however exclusive. The individual states retained the right
of receiving and accrediting ministers, of making treaties, and
of forming any alliance of which the terms should not be
prejudicial to the Confederation; and if the majority of the
Diet decided in a case alleged to be one of common danger,
that no such risk of hostile attack existed as would call the
united forces of the Confederation into the field, the minority
was authorised to concert measures of self-defence. The several
states had no right of withdrawal from the Confederation, and
when war had been declared by the Diet they could not make
a separate peace; but the Diet had no means of constraining
a recalcitrant state, except by using the military forces of other
states, which could only be employed with their consent, and
there was no trace of over-sovereignty affecting individual sub-
jects of the respective states, who remained subjects of those
states only, and had no common nationality. Thus the liberty
of action of the various members of the Confederation was
restrained so far only as was necessary for the common peace
and the integrity of the different territories.
For the purposes of international law a protected state' is
* Protected states such as those included in the fndian Empire of Great
Britain are not subjects of international law. Indian native states are
theoretically in possession of internal sovereignty, and their relations to
the British Empire are in all cases more or less defined by treaty ; but in
matters not provided for by treaty a “residuary jurisdiction' on the part of the
Imperial Government is considered to exist, and the treaties themselves are
Subject to the reservation that they may be disregarded when the supreme
interests of the Empire are involved, or even when the interests of the
subjects of the native princes are gravely affected. The treaties really
amount to little more than statements of limitations which the Imperial
Government, except in very exceptional circumstances, places on its own
action. No doubt this was not the original intention of many of the treaties,
but the conditions of English sovereignty in India have greatly changed
since these were concluded, and the modifications of their effect which the
FART I
CHAP. I
Protected
states.
28 PERSONS IN INTERNATIONAL LAW
one which, in consequence of its weakness, has placed itself
under the protection of another power on defined conditions,
or has been so placed under an arrangement between powers the
interests of which are involved in the disposition of its territory.
The incidents of a protectorate may vary greatly; but in order
that a community may fall within the category of the protected
states, which are persons in international law, it is necessary
that its subjects shall retain a distinct nationality, and that its
relations to the protecting state shall be consistent with its
neutrality during a war undertaken by the latter; in other
words, its members must owe no allegiance except to the com-
munity itself, and its international liberty must be restrained
in those matters only in which the control of the protecting
power tends to prevent hostile contact with other states, or to
secure safety if hostilities arise. So long as these conditions
are observed the external relations of the state may be entirely
managed by the protecting power. The most important modern
instance of a protected state is afforded by the United Republic
of the Ionian Islands, established in 1815 under the protectorate
of Great Britain. In this case the head of the government was
appointed by England, the whole of the executive authority
was practically in the hands of the protecting power, and the
state was represented by it in its external relations. In making
treaties, however, Great Britain did not affect the Ionian Islands
unless it expressly stipulated in its capacity of protecting power;
the vessels of the républic carried a separate trading flag; the
state received consuls, though it could not accredit them ; and
during the Crimean War it maintained a neutrality the validity of
which was acknowledged in the English Courts". The only pro-
changed conditions have rendered necessary are thoroughly well understood
and acknowledged. [By notification in its official Gazette, August 21, 1891, the
Indian Government declared that ‘the principles of international law have
no bearing upon the relations’ between itself and the Native States under the
Suzerainty ofthe Queen-Empress.] For theinternationalaspects of protectorates
over Eastern and African states and communities, not themselves subjects of
PART I
CHAP. I
international law, and not included in the Indian Empire, see postea p. 125.
De Martens (Nouv. Rec. ii. 663) and Hertslet (338) give the Austro-
PERSONS IN INTERNATIONAL LAW 29
tected states now existing in Europe are the republics of Andorra PART I
CHAP. I
and San Marino, and possibly the principality of Monaco".
States under the suzerainty of others are portions of the latter states
which during a process of gradual disruption or by the grace of *
the sovereign have acquired certain of the powers of an inde- of **
pendent community such as that of making commercial con-
ventions, or of conferring their exeguatur upon foreign consuls.
Their position differs from that of the foregoing varieties of
states in that a presumption exists against the possession by them
of any given international capacity. A member of a confederation
or a protected state is primá facie independent, and consequently
possesses all rights which it has not expressly resigned ; a state
under the suzerainty of another, being confessedly part of
another state, has those rights only which have been expressly
granted to it, and the assumption of larger powers of external
action than those which have been distinctly conceded to it is an
act of rebellion against the sovereign.
When a community in attempting to separate itself from the º:
tº © º Tent, COIO-
state to which it belongs, sets up a government and carries on munities.
British Convention declaring the Ionian Islands to be an independent state
under the protection of Great Britain ; identical conventions were concluded
With Russia and Prussia ; and see the Leucade, Spinks, Adm. Prize Cases,
I854–6, 237. For the case of Cracow, see Twiss, i. § 27. The Danubian
Principalities and Servia have also usually been mentioned among protected
states. As, however, both Roumania and Servia, until their acquisition of
independence by the Treaty of Berlin, legally formed part of the Turkish
dominions, their case is the abnormal one of a protectorate exercised rather
as against than in support of the sovereign of the country.
* The legal position of Monaco is far from clear. By the treaty of Peronne
in 1641 the principality placed itself under the protection of France. In
1815 it was provided as part of the settlement of Europe that the protectorate
should be transferred to Sardinia, and by the treaty of Turin in 1817 the
necessary arrangements were made. Monaco unquestionably continued to
be a protected state until after the cession of Nice to France by Italy; but
in I861 it took upon itself, without the concurrence of Italy, to cede a portion
of its territory to France, which thus became interposed between it and the
Italian frontier. In the particular circumstances of the case the act was
tantamount to a repudiation of the Italian protectorate. Italy neither
protested at the time nor has she subsequently asserted her rights, she there-
fore most likely has acquiesced. France has not assumed a protectorate. It
consequently would seem most probable that Monaco is legally independent.
30 PERSONS IN INTERNATIONAL LAW
PART I
CHAP. I
Their re-
cognition
as being
possessed
of belli-
gerent
rights.
hostilities in a regular manner, it shows in the course of perform-
ing these acts a more complete momentary independence than
those communities, just mentioned, of which the independence
is qualified. But full independence at a given moment is
consistent with entire uncertainty as to whether it can be
permanently maintained, and without a high probability of
permanence a community fails to satisfy one of the conditions
involved in its conception as a legal person. Frequently however
it is admitted, through what is called recognition as a belligerent,
to the privileges of law for the purposes of the hostilities in which
it has engaged in order to establish its legal independence. Such
recognition may be accorded either by a foreign state, or by that
from which the community has revolted. In the former case
the effect is to give the belligerent community rights and duties,
identical with those attaching to a state, for the purposes of its
warlike operations, as between it and the country recognising its
belligerent character, and also to compel the state at war with it
to treat the recognising country as a neutral between two
legitimate combatants, unless the good faith of the recognition
can be impugned, when, as a wrong has been committed, the
right accrues to obtain satisfaction by war. In the second case
the state puts itself under an obligation to treat its revolted
subjects as enemies and not rebels until hostilities are ended, and
asserts its intention on the ground of the existence of war to
throw upon other countries the duties, and to confer upon them
the rights, of neutrality. So soon as recognition takes place, the
parent state ceases to be responsible to such states as have
accorded recognition, and when it has itself granted recognition
to all states, for the acts of the insurgents, and for losses or in-
conveniences suffered by a foreign power or its subjects in con-
sequence of the inability of the state to perform its international
obligations in such parts of its dominions as are not under its
actual control.
The effect of recognition being so important, not merely to the
society recognised, but to foreign countries and to the parent
BERSONS IN INTERNATIONAL LAW 31
state, it becomes necessary to fix as accurately as possible the PART I
conditions under which it may be granted. Putting aside the * *
case of recognition by the parent state, which it may be assumed
would not be given with undue haste, and by which therefore, if
given before foreign recognition, it is not likely that the interests
of foreign states would be prejudiced, the questions remain,
whether a community claiming to be belligerent has a right in
any circumstances to demand its recognition as such, and in what
circumstances a foreign state may voluntarily accord recognition.
The first of these questions may be readily answered. It whether
g & e . . they have
only requires to be put at all because of a certain confusion which , º: to
demand
te e tº © such re-
belligerent character by mixing up its moral with its legal cognition.
is sometimes introduced into the subject of the recognition of
aspects. As soon, it is said, as a considerable population is
arrayed in arms with the professed object of attaining political
ends, it resembles a state too nearly for it to be possible to treat
individuals belonging to such population as criminals"; it would
* It is implied by Wattel (Le Droit des Gens, written in 1758, liv. iii.
ch. xviii. § 293–4), and stated by Bluntschli (§ 512), that insurgents possessing
these characteristics have a legal right to recognition. See also President
Monroe's Message on the recognition of the South American Republics in
1822; De Martens, Nouv. Rec. vi. i. 149. Somewhat loose language has also
been used by English statesmen. In 1861 Lord John Russell, in answering a
question in the House of Commons, said that “with respect to belligerent
rights in the case of certain portions of a state being in insurrection, there
was a precedent which seems applicable to this purpose in the year 1825.
The British government at that time allowed the belligerent rights of the
provisional government of Greece, and in consequence of that allowance the
Turkish government made a remonstrance. The Turkish government com-
plained that the British government allowed to the Greeks a belligerent
character, and observed that it appeared to forget that to subjects in
rebellion no national character could properly belong. But the British
government informed Mr. Stratford Canning that “the character of
belligerency was not so much a principle as a fact, that a certain degree
of force and consistency acquired by any mass of population engaged in war
entitled that population to be treated as a belligerent, and even if this title
were questionable, rendered it the interest well understood of all civilized
nations so to treat them.”’ (Hansard, 3rd Series, clxii. 1566.) It is
impossible to be certain on the terms of the despatch to Mr. Stratford Canning
whether the British government intended to convey an impression that the
Greek insurgents merely deserved, or that they had a legal right to,
belligerent recognition. There is no room for a like doubt as to the effect
32 PERSONS IN INTERNATIONAL LAW
PART I
CHAP. I
be inhuman for the enemy to execute his prisoners; it would be
still more inhuman for foreign states to capture and hang the
crews of war-ships as pirates; humanity requires that the
members of such a community shall be treated as belligerents,
and if so there must be a point at which they have a right to
demand what confessedly must be granted. So far, the correct-
ness of this view may at once be admitted. It is no doubt
incumbent upon a state to treat subjects who may have succeeded
in establishing a temporary independence as belligerents and
not as criminals, and if it is incumbent upon the state itself, it
is still more so upon foreign governments, who deal only with
external facts, and who have no right to pass judgment upon
the value, from a moral or municipally legal point of view, of
political occurrences taking place within other countries. But
the obligation to act in this manner flows directly from the
moral duty of human conduct, and in the case of foreign states
from that also of not inflicting a penalty where there is no right
to judge; it has nothing to do with international law. As
a belligerent community is not itself a legal person, a society
claiming only to be belligerent, and not to have permanently
established its independence, can have no rights under that law.
It cannot therefore demand to be recognised upon legal grounds,
and recognition, when it takes place, either on the part of
a foreign government, or of that against which the revolt is
of a claim made by the United States on its own behalf against Denmark.
In 1779 the latter power delivered up to England some rherchant vessels of
which Paul Jones had made prize, and which had been sent into Norwegian
ports. Compensation was demanded, and in the course of the negotiation
it was argued that ‘in the case of a revolution in a sovereign empire, by
a province or colony shaking off the dominion of the mother country, and
whilst the civil war continues, if a foreign power does not acknowledge the
independence of the new state, and form treaties of commerce and amity
with it, though still remaining neutral, as it may do, or join in an alliance
with one party against the other, thus rendering that other its enemy, it
must, while continuing passive, allow to both the contending parties all
the rights, which public war gives to independent sovereigns.’ (Lawrence's
Wheaton's Elem., Introd. cxxxiv.) The claim against Denmark was kept
alive by intermittent action until 1844, and does not appear to have been
ever formally dropped.
TERSONS IN INTERNATIONAL LAW 33
directed, is from the legal point of view a concession of pure PART I
grace. CHAP. I
The right of a state to recognise the belligerent character of True
insurgent subjects of another state must then, for the purposes #.
of international law, be based solely upon a possibility that its *
interests may be so affected by the existence of hostilities in
which one party is not in the enjoyment of belligerent privileges
as to make recognition a reasonable measure of self-protection.
As a matter of fact this condition of things may arise so soon as
hostilities approach the borders of the state which is their scene,
and is inseparable from their extension to the ocean. In a time
of maritime war between two states neutral powers concede to
the belligerents certain rights which abridge the freedom of action
of their subjects, and they allow the property of the latter to be
seized and confiscated for acts which in time of peace would fall
within the range of legitimate commerce. The possession of
these belligerent privileges is necessary to the effective prose-
cution of hostilities; when therefore a government is engaged in
a struggle with insurgents in command of a sea-coast, it in-
variably uses, and consequently all states at the outbreak of
civil war may be expected to use, the same means of putting
a stress upon an antagonist as would be employed against an
enemy state. But these means, so far as they affect other
powers, are only acquiesced in because of the existence of war,
and under limitations and safeguards which, being prescribed by
international law with reference only to war, could not be insisted
upon during the continuance of nominal peace. The assailed
community also cannot be expected to refrain from using like
weapons to those with which it is attacked, and refusal on the
part of foreign powers to acknowledge its right to act in the
manner which is permitted to a state, would be met by force at
the moment if it were strong enough, and would at any rate
cause a resentment to which effect might be given at a future time
if the insurgent community ultimately conquered independence.
Testing the right of a state to recognise insurgent com-
HALL. D
84 PERSONS IN INTERNATIONAL LAW
munities as belligerent by the relation of the war to its own
interest, three classes of cases may be distinguished with
reference to which its conduct will naturally differ. So long as
a government is struggling with insurgents isolated in the midst
of loyal provinces, and consequently removed from contact with
foreign states, the interests of the latter are rarely touched, and
probably are never touched in such a way that they can be
served by recognition. It is not therefore necessary, and it is
not the practice, to recognise communities so placed, however
considerable they may be, and however great may be the force
at their disposal. When a state is contiguous with a revolted
province it may be different. The incidents of continental war
are such as to render the probability of embarrassment small, .
and it is therefore usual to leave cases involving questions of
belligerent character to be dealt with as they arise, but it must
be for the foreign state to decide whether its immediate or
permanent interests will be better secured by conceding or
withholding recognition; and though recognition, except in
peculiar circumstances, may expose the conduct of a government
to suspicion, the grant of recognition cannot be said to exceed
the legal powers of the state. In the case of maritime war the
presumption of propriety lies in the opposite direction. No
circumstances can be assumed as probable under which the
interests of a foreign state possessed of a mercantile marine will
not be affected, and it may recognise the insurgent community,
without giving just cause for a suspicion of bad faith, so soon as
a reasonable expectation of maritime hostilities exists, or so soon
as acts are done at sea by one party or the other which would be
acts of war if done between states, unless it is evidently probable
that the independent life of the insurgent government will be so
short that the existence of war may be expected to interfere with
the interests of the foreign state in a merely transient and
unimportant manner".
IPART I
CHAP. I
Circum-
stances in
which re-
cognition
is per-
missible.
* On the general question of recognition of belligerency, see Wheaton,
Elements of International Law (ed. Lawrence, 1855), pt. i. ch. ii. § 7, and
DERSONS IN INTERNATIONAL LAW 35
Recognition of belligerency, when once it has been accorded, PART I
is irrevocable, except by agreement, so long as the circumstances wº I
exist under which it was granted ; for although as between the drawal
tº 3 e of recog-
grantor and the grantee it is a concession of pure grace, and ition.”
therefore revocable, as between the grantor and third parties
new legal relations have been set up by it, which being de-
pendent on the existence of a state of war, cannot be determined
at will so long as the state of war continues in fact. In other
words, a state, whether it be belligerent or neutral, cannot play
fast and loose with the consequences of a certain state of things;
Dana’s note (No. 15) upon the passage; Bluntschli, § 512, and in the
Revue de Droit International, ii. 452 ; Calvo, $ 82–4; Bernard, Historical
Account of the Neutrality of Great Britain during the American Civil
War, ch. 5 and 7.
As the existence of belligerency imposes burdens and liabilities upon
neutral subjects, a state engaged in civil war has not the right of endeavour-
ing to effect its warlike objects by measures unfavourably affecting foreigners,
which, though permissible in peace, are not allowed in time of war; it
cannot enjoy at one and the same moment the special advantages afforded
by opposite states of things. Thus in 1861, New Granada being in a state of
civil war, its government announced that certain ports would be closed, not
by blockade, but by order. The methodſ was one which could not be adopted
against a foreign enemy holding the ports in question; it could not
consequently be adopted against a domestic enemy. Lord John Russell,
speaking upon the subject, said, ‘that it was perfectly competent to the
government of a country in a state of tranquillity to say which ports should
be open to trade, and which should be closed. But in the event of insurrec-
tion or civil war in that country, it was not competent for its government to
close ports which were de facto in the hands of the insurgents, and that such a
proceeding would be an invasion of the international law relating to blockade.”
(Hansard, clxiii. 1646.) Subsequently, the government of the United States
proposed to adopt the same measure against the ports of the Southern States,
upon which Lord John Russell wrote to Lord Lyons that ‘Her Majesty's
government entirely concur with the French government in the opinion
that a decree closing the southern ports would be entirely illegal, and would
be an evasion of that recognised maxim of the law of nations that the ports
of a belligerent can only be closed by an effective blockade.” (State Papers,
North America, No. i. 1862.) In neither case was the order carried out.
In 1885 the President of Colombia, during the existence of civil war,
declared the ports of Sabanilla, Sº Marta, and Baranquilla, to be closed,
without instituting a blockade. Mr. Bayard, Secretary of State of the
United States, in a despatch of April 24th of that year, fully adopted the
principle of the illegitimateness of such closure, and refused to acknowledge
that which had been declared by Colombia.
I) 2.
36 PERSONS IN INTERNATIONAL LAW
PART I
CIHAP. I
Forms of
recog-
nition.
it cannot regulate its conduct simply by its own convenience.
In refusing or granting recognition it casts special responsi-
bilities upon other states; it is to be supposed that whatever
course it adopts is for its advantage at the time of choice; it
must therefore accept the responsibility which is correlative to
the advantage, even though it should subsequently turn out that
a disproportionate burden is imposed in the end.
Since recognition of belligerency is not imposed upon a foreign
state as a duty, but is caused by circumstances the force of
which may not be fully present to the other parties interested, it
is evidently necessary that a state recognising an insurgent
community as belligerent shall render its intention perfectly
clear, and shall indicate the date from which it will take up the
attitude of neutral in a war. It must therefore issue a formal
notification of some kind, the most appropriate probably being a
declaration of neutrality. A parent state stands in a different
position. It cannot be expected to volunteer direct recognition.
The relation in which it conceives itself to stand to the in-
surgents must be inferred from its acts. Hence, the question
arises, what acts are sufficient to constitute indirect recognition.
There can be no doubt as to the effect of acts, such as capture of
vessels for breach of blockade or carriage of articles contraband
of war, which affect the neutral directly, and in a manner
permissible only in time of war. But what is the effect of acts
of the nature of commercia bel/i:—such, for example, as the
conclusion of cartels for the exchange of prisoners? The pre-
tension has been put forward by the United States that such
acts, being acts consistent only with a state of war, constitute
sufficient evidence of its existence to throw the duties of
neutrality upon foreign states". Evidence of the existence of
hostilities conducted according to the analogy of war they
1 The above view was urged by the United States during the controversy
with Denmark mentioned in a previous note. It was claimed that the
conclusion of cartels, &c., between England and the American insurgents
constituted a recognition of the latter as belligerents, and consequently
affected Denmark with the duties of neutrality.
PERSONS IN INTERNATIONAL LAW 37
certainly are; but it may be safely affirmed that states would PART I
not usually wish, in doing them, to be understood to recognise “”
the belligerent character of insurgents, and as they in no way
touch the interests of foreign powers, the latter would not
themselves take them as a ground of recognition. It would
seem to be better, from every point of view, that the performance
of acts of such kind as those the expectation of which justifies
recognition by a foreign state, should alone be held to imply
recognition by the parent state.
The recognition by England of the Confederate States as Recogni-
belligerents in 1861 affords an example of the recognition of ºa
belligerent character, interesting both because the case presents :*
a strongly marked instance of the circumstances which compel º
recognition on the part of a foreign power, and because of the rent.
controversy which arose between the governments of the United
States and of Great Britain with reference to the propriety and
opportuneness of recognition on the occasion in question.
During the first three months of 1861 seven of the states
composing the United States formed themselves into a separate
Union, with a constitution intended to be permanent, under a
fully constituted executive government, and with an elected
legislative body. The insurgent community therefore possessed
a government established as formally as is possible in a society
the separate political existence of which is not acknowledged.
Immediately on being constituted the executive took active
measures to organise a military force; and hostilities, broke out
on the 11th of April with the bombardment of Fort Sumter by
the Southern troops. Within a few days afterwards 75,000
men were called out in the Northern States, and before the end
of the month IOO,Ooo men were under arms in the revolted
portion of the country. Actual war existed on a large scale,
and there was every reason to believe that it would be conducted
by the Confederate States in accordance with the rules of
international law. Up to this point however, though the in-
surgent community satisfied the conditions necessarily precedent
38 TERSONS IN INTERNATIONAL LAW
PART I
CHAP, I
to recognition, there was no imperative reason for notice to be
taken of it by foreign powers. The scene of war was remote,
and the ocean as yet remained unaffected. But on the 17th
April the President of the Southern States issued a Proclamation
inviting applications for letters of marque and reprisal, and as at
this period a large extent of coast was in the hands of the
insurgents, such an expectation of maritime hostilities might
have been reasonably entertained as to have justified immediate
recognition. The likelihood of maritime war was converted into
a certainty by a Proclamation issued by President Lincoln on
the 19th April, which declared the coasts of the seceded states
to be under blockade. Thus, when on the 14th May a Procla-
mation of neutrality was issued by the British Government,
twelve days after it received intelligence that the two American
Proclamations had been put forth, the condition of affairs was as
follows:—the government of the United States had recognised
the belligerent character of the Southern confederacy by pro-
claiming a blockade, that being a measure the adoption of which
admitted the existence of war, in rendering foreign ships liable
to penalties illegal except in time of war"; apart from the effect
of the blockade as a recognition of belligerency, every element
of a state of war between a legitimate government and a
community in possession of de facto sovereignty was fully in
existence, in circumstances making it probable that British
interests would be gravely affected; finally, as the intercourse
* “Now therefore, I, Abraham Lincoln, President of the United States . . .
have deemed it advisable to set on foot a blockade of the ports within the
states aforesaid in pursuance of the Laws of the United States and of the Law
of Nations in such case provided. For this purpose a competent force will
be posted so as to prevent entrance and exit of vessels from the ports
aforesaid. If therefore, with a view to violate such blockade, a vessel shall
approach, or shall attempt to leave, any of the said ports, she will be duly
warned by the commander of one of the blockading vessels, who will
endorse on her register the fact and the date of such warning ; and if the
same vessel shall again attempt to enter or leave the blockaded port, she will
be captured and sent to the nearest convenient port, for such proceedings
against her and her cargo as prize as may be deemed advisable.” Proclamation
of the 19th April, 1861.
PERSONS IN INTERNATIONAL LAW 39
J
between England and North America was both large and
incessant, and the cargoes belonging to English owners lying at
the time in the Mississippi alone were worth a million sterling,
it was obviously of immediate importance that the British
Government should warn traders of the existence of a state of
things which affected them with duties, and by which their
freedom of commerce was restrained. The action of Great
Britain was therefore not only justified but necessary. By the
Government of the United States however it was made the
subject of reiterated complaint. It was at first alleged that no
war existed, that no war could exist so long as the United
States retained the legal sovereignty of their dominions, and
that therefore it was not in the power of a foreign state to
recognise any society within their boundaries as having rights of
war; it was necessary, in short, that recognition of independence
should precede recognition of belligerency. This contention
being not only untenable in itself, but being opposed to decisions
given in the courts of the United States, it was succeeded by an
assertion that although ‘a nation is its own judge when to
accord the rights of belligerency,” recognition which ‘has not
been justified on any ground of either necessity or moral
rights” is “an act of wrongful intervention, and it was urged
that no necessity had arisen at the time of the issue of the
Queen’s Proclamation. No definition of necessary emergency
was offered; but the refusal to admit an imminent certainty
that the interests of a foreign state will be seriously touched by
the operations of war as a dué ground for recognition of
belligerent character, implies that it is the duty of a state before
according recognition to allow some illegal acts, at least, to be
* It is not altogether clear what is intended by the phrase ‘moral rights.”
Probably, however, it means moral right on the part of an oppressed
community to be recognised. If so, it is an instance of an intrusion of
sentimental, moral, or political, considerations into the sphere of pure law,
which was frequent in American argument during the British-American
controversies which took place from 1861 to 1872.
PART I
CHAP. I
40 PERSONS IN INTERNATIONAL LAW
done at the expense of its subjects. To state such a contention
is to demonstrate its inadmissibility".
It is scarcely necessary to point out that as international law
is a product of the special civilisation of modern Europe, and
forms a highly artificial system of which the principles cannot
be supposed to be understood or recognised by countries
differently civilised, such states only can be presumed to be
subject to it as are inheritors of that civilisation. They have
lived, and are living, under law, and a positive act of withdrawal
would be required to free them from its restraints. But states
outside European civilisation must formally enter into the circle
of law-governed countries. They must do something with the
acquiescence of the latter, or of some of them, which amounts to
an acceptance of the law in its entirety beyond all possibility of
misconstruction. It is not enough consequently that they shall
enter into arrangements by treaty identical with arrangements
made by law-governed powers, nor that they shall do acts, like
sending and receiving permanent embassies, which are com-
patible with ignorance or rejection of law. On the other hand,
an express act of accession can hardly be looked upon as
requisite. By the Treaty of Paris in 1856 Turkey was declared
to be admitted ‘to a participation in the advantages of the
public law of Europe and the system of concert attached to it’;
but if she had been permitted, without such express admission,
PART I
CHAP. I
What,
States are
subject to
interna-
tional law.
* Bernard, British Neutrality, chaps. iv-vii.; Mr. Seward to Mr. Adams,
Jan. Ig, 1861, State Papers, North "America, No. ii. 1862; Mr. Seward to
Mr. Adams, Jan. 12, 1867, State Papers, North America, No. i. 1867; Case of
the United States laid before the Tribunal of Arbitration at Geneva, p. IT ;
The brig Amy Warwick and others, ii. Black, 635; Woolsey's International
Law (5th ed.), § 18O. M. Bluntschli sums up an examination of the
controversy by saying, ‘Tout le monde était d'accord qu'il y avait guerre, et
que dans cette guerre il y avait deux parties belligerantes. Mais voilà, et
voilà Seulement ce que les Cabinets de France et de l’Angleterre Ont
présumé, en reconnaissant la Confédération comme étant de fait une
puissance belligerante. Je ne puis donc en aucune façon y voir une
injustice, une violation de droit pratiquée au détriment de l’Union. Que la
déclaration ait été faite un peu plus tot ou un peu plus tard, c’était là une
question qui regardait la politique, non le droit.” (Rev. de Droit Int. ii. 462.)
IPERSONS IN INTERNATIONAL LAW 41
to sign the Declaration accompanying the Treaty, which was in
fact signed on her behalf, and of which the object was to lay
down principles intended to be reformatory of law, it could
Scarcely have been contended that the legal responsibilities and
privileges of Turkey were to be limited to matters covered by
those principles.
When a new state comes into existence its position is regulated
by like considerations. If by its origin it inherits European
civilisation, the presumption is so high that it intends to
conform to law that the first act purporting to be a state act
which is done by it, unaccompanied by warning of intention not
to conform, must be taken as indicating an intention to conform,
and brings it consequently within the sphere of law. If on the
other hand it falls by its origin into the class of states outside
European civilisation, it can of course only leave them by a
formal act of the kind already mentioned.
A tendency has shown itself of late to conduct relations with
states, which are outside the sphere of international law, to
a certain extent in accordance with its rules; and a tendency
has also shown itself on the part of such states to expect that
European countries shall behave in conformity with the standard
which they have themselves set up. Thus China, after France
had blockaded Formosa in 1884, communicated her expectation
that England would prevent French ships from coaling in
British ports. Tacitly, and by inference from a series of acts,
states in the position of China may in the long run be brought
within the realm of law; but it would be unfair and impossible
to assume, inferentially, acceptance of law as a whole from
isolated acts or even from frequently repeated acts of a certain
kind. European states will be obliged, partly by their sense of
honour, partly by their interests, to be guided by their own
artificial rules in dealing with semi-civilised states, when the
latter have learned enough to make the demand, long before
a reciprocal obedience to those rules can be reasonably expected.
For example, it cannot be hoped that China, for a considerable
PART I
CHAP. I
42 DERSONS IN INTERNATIONAL LAW
time to come, would be able, if she tried, to secure obedience by
her officers and soldiers even to the elementary European rules of
war; [and her representatives at the Hague Peace Conference
of 1899 refrained from signing the Convention relative to the
laws and customs of land warfare. On the other hand, the
adhesion of China was given to the Convention for the pacific
regulation of international disputes and to several other sub-
sidiary instruments executed on the same occasion. The mere
fact that the Chinese Government was invited to send represen-
tatives to such an assemblage may be taken as an acknowledge-
ment of its international status, and the same argument applies
to the Shah of Persia, on whose behalf all the Conventions of
July 29, 1899 were signed and ratified. How far China has
forfeited her position by the gross breach of comity involved
in the assault on the Pekin Legations in the summer of 1900
remains to be seen.
The right of Japan to rank with the civilised communities
for purposes of international law is now clearly established.
Previously to the war of 1894 she had acceded (in 1886) to the
Geneva Convention, and to various “universal conventions’ as
to weights and measures, posts, telegraphs, and the like. During
the course of hostilities against China, in that year and again in
1900, she adhered scrupulously, with one terrible exception, to
the recognised laws of war, and attained a high standard in the
care of her own troops, the treatment of the wounded enemies,
and of the civil population generally". The European nations
have now abandoned their extra-territorial privileges in Japan,
and the Anglo-Japanese Treaty of 1902 may be said to have set
the final seal on the recognition of the latter Power.]
PART I
CHAP. I
* [See an interesting article in the Law Quarterly Review for 1898, vol. xiv.
p. 405, by Sakue Takahashi, Professor of Taw in the Royal University in
Tokio.]
CHAPTER II
GENERAL PRINCIPLES OF THE TAW GOVERNING STATES
IN THEIR NORMAL RELATIONS
The ultimate foundation of international law is an assumption PART I
that states possess rights and are subject to duties corresponding nº."
to the facts of their postulated nature. In virtue of this damental
assumption it is held that since states exist, and are independent . º
beings, possessing property, they have the right to do whatever *
is necessary for the purpose of continuing and developing their
existence, of giving effect to and preserving their independence,
and of holding and acquiring property, subject to the qualifi-
cation that they are bound correlatively to respect these rights in
others. It is also considered that their moral nature imposes
upon them the duties of good faith, of concession of redress for
wrongs, of regard for the personal dignity of their fellows, and
to a certain extent of sociability.
Under the conditions of state life, the right to continue and Right of
º * g continºu-
develop existence gives to a state the rights— ing and
I. To organise itself in such manner as it may choose. *.
2. To do within its dominions whatever acts it may think tence.
calculated to render it prosperous and strong.
3. To occupy unappropriated territory, and to incorporate
new provinces with the free consent of the inhabitants, provided
that the rights of another state over any such province are not
violated by its incorporation. -
Thus a state may place itself under any form of government
that it wishes, and may frame its social institutions upon any
model. To foreign states the political or social doctrines which
may be exemplified in it, or may spread from it, are legally
immaterial. A state has a right to live its life in its own way,
44 PRINCIPLES OF THE LAW GOVERNING
PART I
CHAP. II
Rights of
property.
so long as it keeps itself rigidly to itself, and refrains from
interfering with the equal right of other states to live their life
in the manner which commends itself to them, either by its own
action, or by lending the shelter of its independence to persons
organising armed attack upon the political or social order else-
where established.
Again, a state is free to adopt any commercial policy which it
thinks most to its advantage; it may erect fortifications any-
where within its dominions; and it may maintain military or
naval forces upon any scale, and organised in any way, that it
likes. That the latter measures may invest it with a strategical
position or a material strength which under certain contingencies
may be a danger to other powers gives them in general no right
to take umbrage or to endeavour to restrain its growth. In the
absence of distinct menace the only precaution which can be
taken is to arm with equal care. It is not an exception to this
rule that it is legitimate to anticipate an attack which measures
adopted by a state under colour, or in the exercise, of its right of
self-development afford reasonable ground to expect. The same
right to continued existence which confers the right of self-
development confers also the right of self-preservation, and
a point exists at which the latter of the two derivative rights
takes precedence of the duty to respect the exercise of the former
by another state. If a country offers an indirect menace through
a threatening disposition of its military force, and still more
through clear indications of dangerous ambition or of aggressive
intentions, and if at the same time its armaments are brought up
to a pitch evidently in excess of the requirements of self-defence,
so that it would be in a position to give effect to its intentions, if
it were allowed to choose its opportunity, the state or states
which find themselves threatened may demand securities, or the
abandonment of the measures which excite their fear, and if
reasonable satisfaction be not given they may protect themselves
* by force of arms.
The rights of a state with respect to property consist in
STATES IN THEIR NORMAT, RELATIONS 45
the power to acquire territory, and certain other kinds of PART I
e CHAP. II
property susceptible of being held by it, in absolute ownership
by any means not inconsistent with the rights of other states,
in being entitled to peaceable possession and enjoyment of that
which it has duly obtained, and in the faculty of using its
property as it chooses and alienating it at will.
According to a theory which is commonly held, either the Theory
term ‘propertv,” wh loved t the rights d that the
erm ' property, when employed to express the rights possessed rights of
a state
* tº tº tº tº g tº tº Over its
in a different sense from that which is attached to it in speaking territory,
* * is e e º &c., are not
of the property of individuals, or else its use is altogether strictly
... proprie-
* 5 tary
a state as such is incapable of owning it; and though by rights.
by a state over the territory occupied by it, must be understood
improper. Property, it is said, belongs only to individuals
putting itself in the position of an individual it may hold
property subject to the conditions of municipal law, it has
merely in its proper state capacity either what is called an
‘ eminent domain over the property of the members of the
community forming it, in virtue of which it has the power of
disposing of everything contained within its territory for the
general good, or certain supreme rights, covering the same
ground, but derived from sovereignty". It cannot be denied
that the immediate property which is possessed by individuals
is to be distinguished for certain purposes from the ultimate
property in the territory of the state, and the objects of property
accessory to it, which is vested in the state itself. But these
purposes are foreign to international relations. The distinction
therefore, though it may be conveniently kept in mind for
purposes of classification in dealing with the rules of war, has
no further place in international law. Its proper field is public
law. As between nations, the proprietary character of the pos-
* Wattel, liv. i. ch. xx. §§ 235, 244, but see also liv. ii. ch. vii. § 81 ; Heffter,
§ 64; Bluntschli, $ 277. Calvo (§§ 208–9) distinguishes between the public
and international aspects of the right of the state with reference to property,
and recognises, as do also De Martens (Précis du Droit des Gens Moderne
de l’Europe, § 72) and Riquelme (Elementos de Derecho Público Internacional,
i. 23), the absolute character of the latter relatively to other states. a #
46 PRINCIPLES OF THE LAW GOVERNING
PART I
CHAP. II
session enjoyed by a state is logically a necessary consequence
of the undisputed facts that a state community has a right to
the exclusive use and disposal of its territory as against other
states, and that in international law the state is the only recog-
nised legal person. When a person in law holds an object
with an unlimited right of use and alienation as against all
other persons, it is idle to say that he does not legally possess
Alleged
limitation
upon the
right to
alienate.
complete property in it. Internationally, moreover, a full pro-
prietary right on the part of the state is not only a reasonable
deduction of law, but a necessary protection for the proprietary
rights of the members of a state society. The community and
its members, except in their state form, being internationally
unrecognised, any rights which belong to them must be clothed
in the garb of state rights before they can be put forward
internationally. A right of property consequently, in order to
possess international value, must be asserted by the state as
a right belonging to itself.
A misapprehension of like kind is sometimes met with in
regard to the right of alienation, the exercise of which is said
to be subject to the tacit or express consent of the population
inhabiting the territory intended to be alienated. The doctrine
appears in two forms, a moderate and an extreme one. In its
more moderate shape it appears to come to little more than a
denial that title by cession is complete when the ceded territory
has been handed over by the original owner to the new pro-
prietor, peaceable submission by the inhabitants being necessary
to perfect the right of the latter; but it is occasionally declared
that the cession of land cannot be dissociated from that of the
people who live and enjoy their political rights upon it, that
‘ a people is no longer a thing without rights and without will,’
that its consent, if not otherwise proclaimed, must be testified
by a vote of the population or its representatives, and that
international law has adopted this principle by its practical
recognition in the treaty of Turin, which regulated the cession
of Savoy to France, in the treaty of London, by which the
STATES IN THEIR NORMAL RELATIONS 47
Ionian Islands were ceded to Greece, in the treaty of Vienna, PART I
which stipulated for the eventual cession of Venetia to Italy, “’ “
and in that portion of the treaty of Prague which referred to
Northern Slesvig 1. For an answer to this doetrine in its
extreme form it is only necessary to traverse the allegation of
fact. The principle that the wishes of a population are to be
consulted when the territory which they inhabit is ceded has
not been adopted into international law, and cannot be adopted
into it until title by conquest has disappeared. The pretension
that it was sanctioned by the treaties cited has an air rather
of mockery than of serious statement, when the circumstances
accompanying the cession of Savoy and Nice are remembered,
and when the only treaty of the number, the breach of which
opportunity and desire combined to render possible, remained
unobserved, and has finally been cancelled. As to the milder
form of the doctrine, it is only to be said that states being the
sole international units, the inhabitants of a ceded territory,
whether acting as an organised body or as an unorganised mass
of individuals, have no more power to confirm or reject the action
of their state than is possessed by a single individual. An act,
on the other hand, done by the state as a whole is, by the very
conception of a state, binding upon all the members of it.
Independence is the power of giving effect to the decisions Rights of
of a will which is free, in so far as absence of restraint by other *
persons is concerned. The right of independence therefore, in
its largest extent, is a right possessed by a state to exercise its
will without interference on the part of foreign states in all
matters and upon all occasions with reference to which it acts
as an independent community”, and so taken it would embrace
the rights of preserving and developing existence which have
been already spoken of. But it is more convenient to include
* Bluntschli, § 286; Calvo, § 220.
* A state is capable of occupying the position of a private individual
within foreign jurisdiction, as, for example, in the case of England, which
holds shares in the Suez Canal Company.
48 PRINCIPLES OF THE LAW GOVERNING
PART I
CHAP. II
Rights
of inde-
pendence
directly
affecting
other
states.
Rights
of sove-
reignty.
those rights only which a state possesses, not in respect of its
existence as a living and growing being, but in a more limited
aspect as a being exercising its will with direct reference either
to other states or to persons and things within the sphere of
its legitimate control.
The former of these branches of the rights of independence
gives rise to no special usages. It merely secures to a state
with respect to other states a general liberty of action within
the law as defined by the other rights and by the duties of a
state. A state is enabled to determine what kind and amount
of intercourse it will maintain with other countries, so long as
it respects its social duties, and by what conditions such inter-
course shall be governed; it is permitted to form relations of
alliance or of special friendship; it may make contracts con-
taining any provisions not repugnant to the law; and it may
demand and exact reparation for acts done by other states which
it may consider to be wrongs.
The second branch comprehends a group of rights which go
by the name of rights of sovereignty. The state community,
in virtue of the supremacy of its common will over that of its
individual members for the ends contemplated by it as a
political society, puts them under obligations by its political,
civil, and criminal legislation, which are not only exclusive of
all other like obligations within the national territory, but
are not necessarily extinguished as between them and their
own state when they enter a foreign country or some place
not under the jurisdiction of any power. And it being a
necessary result of independence that the will of the state shall
be exclusive over its territory, it also asserts authority as a
general rule over all persons and things, and decides what acts
shall or shall not be done, within its dominion. It consequently
exercises jurisdiction there, not only with respect to the members
of its own community and their property, but with respect
to foreign persons and property. But as jurisdiction over the
latter is set up as a consequence of their presence upon the
STATES IN THEIR NORMAL RELATIONS 49
territory, it begins with their entrance and ceases with their PART1
exit, so that it cannot, except in a particular case to be mentioned “”
later", be enforced when they have left the country; and with
respect to acts done by foreign persons, it can only be exercised
with reference to such as have been accomplished, or at least
begun, during the presence within the territory of the persons
doing them *. In principle, then, the rights of sovereignty give
jurisdiction in respect of all acts done by subjects or foreigners
within the limits of the state, of all property situated there,
to whomsoever it may belong, and of those acts done by members
of the community outside the state territory of which the state
may choose to take cognizance.
In practice, however, jurisdiction is not exercised in all these
directions to an equal extent. t
The authority possessed by a state community over its Sove-
- º ... e i & reignty in
members being the result of the personal relation existing ...'.
between it and the individuals of which it is formed, its laws . *
travel with them wherever they go, both in places within and the state.
without the jurisdiction of other powers. A state cannot enforce
its laws within the territory of another state, but its subjects
remain under an obligation not to disregard them, their social
relations for all purposes as within its territory are determined
by them, and it preserves the power of compelling observance by
punishment if a person who has broken them returns within its
jurisdiction. Thus the subjects of a state are not freed by
absence from their allegiance; the fact of their legitimacy or
illegitimacy if they are born abroad, the date at which they
attain majority, the conditions of marriage and divorce, are
determined by the state so far as their effects within its own
dominions are concerned; if they commit crimes they can be
arraigned before the tribunals of their country notwithstanding
that they may have been already punished elsewhere.
Logically, the principle of the exclusive force of the corporate
* See postea, p. 256. * - --
* For an exception made by the practice of some states, see postea, pp. 218
et Seq.
HALL E
50 PRINCIPLES OF THE LAW GOVERNING:
PART I
CHAP. II
Sove-
reignty in
relation to
subjects
of foreign
powers.
will within state territory would lead to the possession of an
identical authority over foreigners and members of the state
community during such time as the former remain in the
country, in respect of all acts done by them there, of relations
set up between them and other persons, and of duties owed to
the state; while correlatively to such duties they would tempo-
rarily have the same rights as natural born subjects. But inter-
national usage does not allow the effects of the principle to be
pushed so far. Its application receives limitations which are
partly necessitated by that respect for the rights of other states
over their members which is legally compulsory under the prin-
ciple that a state must respect in others the rights with which it
is itself invested, and which have partly grown out of unwilling-
ness to extend to foreigners the full benefits enjoyed by subjects.
Existing law stops short of the point of temporarily converting
the subject of another state into a member of the community.
Until a foreigner has made himself by his own act a subject of
the state into which he has come, he has politically neither the
privileges nor the responsibilities of a subject. His allegiance
to his own state is recognised as being intact, and he cannot be
obliged either to do anything inconsistent with it, or to render
active service to the state under the control of which he
momentarily is. On the other hand, he has no claim upon it
for protection or good treatment except as a member of his own
state, and to the extent that it has a right to demand. He is
merely a person who is required to conform himself to the social
order of the community in which he finds himself, but who is
politically a stranger to it, obliged only to the negative duty of
abstaining from acts injurious to its political interests or contrary
to its laws. By accepted international law, therefore, a state has
only the right of subjecting foreigners to such general or special
political and police regulations as it may think fit to establish;
of making them share in those public burdens which are not
attached to the status of subject or citizen; of rendering them
amenable to its ordinary criminal jurisdiction; of placing all
STATES IN THEIR NORMAL RELATIONS 51
contentious matters in which they may be engaged under the PART I
cognizance of its own courts; and, subject to the qualification to *** *
be made immediately, of declaring that in contracts which are
made, or to which it is asked that effect shall be given, within
the state, and in matters connected with property existing within
it, their competence, as well as the formalities requisite to give
legal effect to their acts, shall be determined by the laws of the
country".
The rights over foreigners and their property which are thus Private
left to a state in strict law are further limited in practice by †w.
derogations which states are in the habit of voluntarily making
from them. Modern legislation, in dealing with purely private
relations between individuals, is more anxious to give effect to
those relations as they really are, or as it is conceived that they
ought to be, than to affirm the exclusiveness of the rights of
sovereignty; and there are many cases in which this object is
best attained by allowing the law of the country to which
a foreigner belongs to operate in lieu of the territorial law, or by
allowing a subject to be affected by a foreign instead of his
national law, when the two are in conflict. The concessions or
* Grotius, de Jure Belli et Pacis, lib. ii. c. xi. § 5 ; Wolff, Jus Gentium,
§ 3or ; Vattel, liv. ii. ch. viii. §§ Ior, IoT-8; De Martens, Précis, $ 83;
Twiss, i. §§ 150–2 ; Bluntschli, §§ 388, 391; Calvo, § 1046. Portalis (1746–
1807), quoted by Phillimore, puts the general principle of the submission
of strangers to the authority of a foreign state as follows:– Chaque état a le
droit de veiller a sa conservation, et c’est dans ce droit que réside la
souveraineté. Or comment un état pourrait-il se conserver et maintenir s'il
existait dans son sein des hommes qui pussent impunément enfreindre sa
police et troubler sa tranquillité? Le pouvoir souverain ne pourrait remplir
la fin pour laquelle il est établi, si des hommes étrangers ou nationaux
étaient indépendants de ce pouvoir. II ne peut €tre limité, ni quant aux
choses, ni quant aux personnes. Il n'est rien s'il n'est tout. La qualité
d'étranger ne saurait étre une exception légitime pour celui, qui s'en prévaut
contre la puissance publique qui régit le pays dans leguel il réside. Habiter
le territoire, c'est se soumettre à la souveraineté.” It is evident from what
is said above that this language requires some qualification. Some writers
make the unnecessary supposition that “an individual in entering a foreign
territory binds himself by a tacit contract to obey the laws enacted by it,
for the maintenance of the good order and tranquillity of the realm.”
Phillimore, i. § cccxxxii.
F 2.
52 PRINCIPLES OF THE LAW GOVERNING
PART I
CHAP. II
relaxations of sovereign rights which it has become customary
for civilised nations to make for these reasons have given rise to
a body of usage of considerable bulk, called private international
law. Private international law is not however a part of inter-
national law proper. The latter, as has been seen, is concerned
with the relations of states; in so far as individuals are affected,
they are affected only as members of their state. Private inter-
national law, on the other hand, is merely a subdivision of national
law. It derives its force from the sovereignty of the states ad-
ministering it; it affects only the relations of individuals as such ;
and it consists in the rules by which courts determine within
what national jurisdiction a case equitably falls, or by what
national law it is just that it shall be decided. In the following
work, therefore, private international law will not be touched upon.
One further limitation of the rights of sovereignty there is,
which, unlike the customary derogation last mentioned, is
obligatory in strict law. As has been already mentioned, inter-
national law is a product of the special civilisation of modern
Europe, and is intended to reflect the essential facts of that
civilisation so far as they are fit subjects for international rules.
Among these facts is the existence in almost all states of
a municipal law, consonant with modern European ideas, and so
administered that foreigners are able to obtain criminal and civil
justice with a tolerable approach to equality as between them-
selves and the subjects of the state. International law therefore
contemplates the existence of such law and such administration;
and a state, professing to be subject to international law, is
bound to furnish itself with them. If it fails to do so, either
through the imperfection of its civilisation, or because the ideas,
upon which its law is founded, are alien to those of the European
peoples, other states are at liberty to render its admission to the
benefits of international law dependent on special provision being
made to safeguard the person and property of their subjects".
Duty of
adminis-
tering
reasonable
civil and
criminal
justice to
foreigners.
* Since the year 1856 Turkey has been in the position of a state, obliged to
submit to derogations from her full rights of sovereignty, in consequence of
STATES IN THEIR, NORMAL RELATIONS 53
The exclusive force possessed by the will of an independent "PART I
community within the territory occupied by it is necessarily ...” “
attended with corresponding responsibility. A state must not jº of
only itself obey the law, but it must take reasonable care that “”
illegal acts are not done within its dominions. Foreign nations
have a right to take acts done upon the territory of a state as .
her institutions not being in reasonable harmony with those of European §:
countries. At various times from I535 to the present century, arrangements
called Capitulations, and treaties confirmatory of them, were made between
the Porte and European States, the effect of which was to withdraw
foreigners from Turkish jurisdiction for most civil and criminal purposes.
Turkey was then outside the pale of international law ; but by the treaty of
Paris she was brought within it. On general principles the Capitulations
should have been abrogated ; and in Protocol xiv, of March 25, 1856, it
appears that ‘M. le Baron de Bourqueney et les autres plenipotentiaires
admettent que les capitulations répondent a une situation a laquelle le traité
de paix tend nécessairement a mettre fin.” They have nevertheless been
maintained. It is evident that a law inextricably mixed up with a religion
which rejects equality between believers and unbelievers, and an adminis-
tration so corrupt as is that of Turkey, offer no guarantee that foreigners will
be treated with a sufficient modicum of justice.
Roumania and Servia are in a like legal situation. As provinces at first,
and then as states dependent on Turkey, they were subject to the Capitu-
lations; and when their independence was acknowledged by the treaty of
Herlin it was provided that foreign immunities should be continued. Their
case is a more remarkable one than bhat of Turkey. Their religion is no
source of difficulty, and their laws are modelled upon the Code Napoléon.
They are merely excluded from the full enjoyment of the rights of sovereignty
because, through ignorance and evil traditions, the administrators of justice
are not worthy of trust. Probably in these cases the limitations imposed
by the capitulations will insensibly cease to exist. Already in Roumania
foreigners frequently appeal to the local courts, and contracts are made (e. g.
with importers of goods or contractors), subject to a condition that in case of
dispute their rights under the capitulations shall be waived. As between
Great Britain and Servia the immunities possessed under the Capitulations
were abolished in 1880 by the treaty of Nisch (De Martens, Nouv. Rec. Gén.
2° Série, vi. 459), except so far as they concern the mutual relations between
Britishe subjects and the subjects of other powers which shall not have
surrendered them. [The extra-territorial privileges enjoyed by foreigners
in Japan ever since that country was first thrown open to Europeans were
abandoned by Great Britain in 1899 under the terms of a treaty concluded
July 16, 1894. The example has been followed by the United States, Russia,
Germany, Sweden, France, and Austria.]
It is obvious that there would be considerable difficulty in imposing
limitations of the above kind on a state which had already been admitted
to the full privileges of international law; but practical difficulties of
application do not affect the question of principle.
54 PRINCIPLES OF THE LAW GOVERNING:
PART I being primd facie in consonance with its will; since, where un-
“” “ controlled power of effective willing exists, it must be assumed
in the absence of proof to the contrary that all acts accomplished
within the range of the operation of the will are either done or
permitted by it. Hence it becomes necessary to provide by
municipal law, to a reasonable extent, against the commission by
private persons of acts which are injurious to the rights of other
states, and to use reasonable vigour in the administration of the
law so provided.
Duty of A second duty arising out of the right of independence is that
jºins of respecting the independence of others. As has already been
º said, a state has entire freedom of external and internal action
states, within the law. To interfere with it therefore is a wrong, unless
it can be shown that there are rights or duties which have
priority, either invariably or in certain circumstances, over the
duty of respecting independence.
Priority of That there is one such right is incontestable. Even with
ºght individuals living in well-ordered communities the right of self-
F.” preservation is absolute in the last resort. A fortiori it is so
over the with states, which have in all cases to protect themselves. If
foregoing e ** . tº &
duty. the safety of a state is gravely and immediately threatened
either by occurrences in another state, or aggression prepared
there, which the government of the latter is unable, or professes
itself to be unable, to prevent, or when there is an imminent
certainty that such occurrences or aggression will take place if
measures are not taken to forestall them, the circumstances may
fairly be considered to be such as to place the right of self-
preservation above the duty of respecting a freedom of action
which must have become nominal, on the supposition that the
state from which the danger comes is willing, if it can, to
perform its international duties.
Whether Whether there is any other right or duty which has priority
any other
right or
. º professes that it endeavours, to carry out its strictly international
ority. duties is, to say the least of it, eminently doubtful, especially
of the right of independence so long as a state endeavours, or
STATES IN THEIR, NORMAL RELATIONS 55
considering that no guarantees exist tending to limit the occur- PART I
rence of such interference to due occasions, or to secure that it ****
shall be used only for its ostensible objects. The subject will be
touched upon elsewhere. -
When a state grossly and patently violates international law Right of
in a matter of serious importance, it is competent to any state, º,
or to the body of states, to hinder the wrong-doing from being ºn.
accomplished, or to punish the wrong-doer. Liberty of action of law.
exists only within the law. The right to it cannot protect states
committing infractions of law, except to the extent of providing
that they shall not be subjected to interference in excess of the
measure of the offence; infractions may be such as to justify
remonstrance only, and in such cases to do more than remonstrate
is to violate the right of independence. Whatever may be the
action appropriate to the case, it is open to every state to take it.
International law being unprovided with the support of an
organised authority, the work of police must be done by such
members of the community of nations as are able to perform it.
It is however for them to choose whether they will perform it or
not. The risks and the sacrifices of war with an offending state,
the chances of giving umbrage to other states in the course of
doing what is necessary to vindicate the law, and the remoter
dangers that may spring from the ill-will produced even by
remonstrance, exonerate countries in all cases from the pressure
of a duty. .
Of the duties which flow directly from the possession by states Moral
of a moral nature, one only, viz. that of good faith, can probably º: Of
be said to have acquired a legal value. In recognising the Duty of
binding force of contracts, law takes it up and includes it in good faith.
itself. But there can be little question that all other duties,
which are independent of the legal principles already stated,
remain in the stage of purely moral obligations. There are but
two, both arising out of the duty of sociability, which can at all
be said to put in a serious claim to fall within the boundaries
of law.
56 PRINCIPLES OF THE LAW GOVERNING
It is not uncommonly said that nations have a right to
maintain intercourse, if it so pleases them, with other nations;
that an entire refusal on the part of a state to allow of inter-
course, by being a denial of a fundamental legal obligation, is
a renunciation of the advantages of international law, so that
a nation becomes an outlaw by isolating itself; and that in
particular the innocent use of the land and water communications
within the territory of a state cannot be withheld from other
states, and the privilege of trade in articles of necessity cannot
be refused". The doctrine is no doubt limited by the qualifi-
cation that a state may take what measures of precaution it
considers needful to prevent the right of access and intercourse
from being used to its injury”, and may subject foreigners and
foreign trade to regulation in the interest either of its own
members or of states which it wishes to favour. In the last
resort however there would still remain a right taking priority of
the rights of independence and property, and capable of being
enforced, if broken, by war. Of the working of such a right, if
it existed, there would be deep traces in both law and history.
In law however it cannot be pretended that any definite usages
are to be referred to it, except those of the freedom of territorial
seas to navigation and of the opening of rivers to co-riparian
PART I
CHAP. II
Alleged
legal duty
of a state
to permit
COIOIſler-
cial and
other in-
terCOurSe
to be
main-
tained
with it by
foreign
countries.
* Heffter, §§ 26 and 83; Grotius, De Jure Belli et Pacis, lib. ii. e. ii. § 13;
Bluntschli, p. 26.
The doctrine is at least an old one. Franciscus à Victoria (1480–1546)
argued (Relectiones Theologicae, Relect. v. sect. iii. 2) that the Spaniards had
a right to go to the Indies and live there because it has been the custom from
the beginning of the world for any one to go into whatever country he chooses,
and prohibition of entrance is a violent measure not far removed from war.
* In many states laws of more or less stringency are in force, preventing
the access, or providing for the expulsion, of alien vagabonds, destitute
persons, criminals, and others whose presence in the country would be
undesirable. For an abstract of the laws of different states on the subject,
see Parl. Papers, Miscell. No. 1, 1887. [And see Musgrove v. Chun Teeong
Toy, L. R., App. Ca. 1891, p. 272, where the Judicial Committee of the Privy
Council decided that an alien has no legal right enforceable by action to
enter British territory..] The recent legislation of the United States is a
somewhat excessive instance of the use of a right, which in the most limited
view of the scope of sovereignty must be admitted to exist. Comp. postea,
pp. 213 et seq.
STATES IN THEIR NORMAL RELATIONS 57
states. The former can be accounted for as readily by the PART I
absence of any wish to interfere with harmless navigation as by “*”
the recognition of a right; and the latter will be seen later to be
destitute of an authoritative character. The evidence of history
is still less favourable. States formerly claimed a right of
innocent passage for military purposes. But this, so far from
governing the rights of independence, has long been recognised
to be subordinate both to them and to the duties of neutrality
which are founded on them. In other directions there is no
trace of the operation of the supposed right. It is true that the
interest which every country has in trade prevents the questions
from arising which might be produced by total or by almost
complete seclusion; but if so wide-reaching a right had been
admitted at all as an operative rule of law, the occasions for its
employment adversely to foreign states would neither have been
few nor insignificant.
It is also alleged that states have a right to require that Alleged
persons accused of crime, who have escaped into a foreign º
country, shall be delivered up for trial and punishment on . als.
conviction. Authority is much divided on the matter; but
there appears on the whole to be a distinct preponderance of
opinion against the existence of the right, and the weight of
argument unquestionably leans in the same direction. Some-
times it is said that crimes, or at least the more serious crimes,
are not merely an infraction of a command which a particular
society chooses to give; they sap the foundations of social life,
they are an outrage upon humanity at large, and all human
beings therefore ought to contribute to repress them. More
often it is said that all nations have a common interest in the
repression of crime, that its commission is encouraged when a
criminal enjoys immunity so soon as he leaves the territory of
his country, and that in order to secure reciprocity states must
give up criminals at the demand of their neighbours. The
latter views are just, but it is difficult to connect them with a
duty of extradition. An obligation to do an act for the benefit
58 PRINCIPLES OF THE LAW GOVERNING:
PART I
CHAP. II
of another person cannot be founded on a demonstration that to
perform it will be advantageous to the doer. The former
argument, on the other hand, goes too far. It implies that
international law commands human beings to combine for the
repression of everything which is gravely injurious to the bases
of social life. This evidently it does not do ; and as a matter of
fact, even in the particular question of extradition, states have
been far from acknowledging a duty of giving up criminals.
Surrender, apart from convention, has been unusual, and when
effected, it has been treated as an act of comity. In recent
times, since facility of travel has given criminals more
opportunities of escaping from the scene of their crime, and it
has consequently become important to be able to obtain their
extradition, delivery for specified crimes, and under specified
conditions, has been provided for internationally by express
agreements. Positive international law therefore does not
recognise the duty of extradition; in other words, assuming
international law to be what it was stated to be in the Intro-
duction, the duty of extradition cannot at present exist". That
it is not only wise to give up fugitive criminals, but that they
ought to be surrendered, may readily be granted. But the
obligation is that only which is stated by M. Bluntschli”; the
individual, he says, does not completely satisfy the call of moral
duty if he merely does what is right within his own sphere of
activity, without offering a hand to others who need it to do
right in their sphere : and just as little does a state entirely
fulfil its task if it acts justly in its own dominions, but declines
to give to other states the help of which they are in want.
By many writers the ceremonial rules which regulate the
Duties of
courtesy.
* The chief authorities on either side are enumerated by Foelix, Droit
International Privé, liv. ii. tit. ix. ch. vii, and Von Bar, Das Internationale
Privat- und Strafrecht, § 148. Among recent authors, Sir R. Phillimore
(i. § ccclxiv), Woolsey (§ 77), Bluntschli (§ 395), and Fiore (Trattato di
Diritto Internazionale Pubblico, $ 611), deny that extradition is legally
obligatory. Calvo (Liv. xv. Sect. ii) gives a very full account of the treaties
on the subject, and of practice independently of treaties.
* Staatswórterbuch, i. 501.
STATES IN THEIR NORMAL RELATIONS 59
forms of state relations are included in international law. They PART I
conceive that the feelings of honour and personal dignity “"
possessed by states not only prompt a wish that the existence of
those feelings shall be recognised by other states, but confer a
legal right to demand external manifestations of recognition.
To the English mind the elevation of courtesy, and of observance
of the etiquette which is its formal expression, into a legal duty
is not easily comprehensible. The most that can be said of
them is that an intentional breach of ceremonial rules is an
offensive act, and that an offensive act is inconsistent with the
comity which exists between friendly nations; but their dis-
regard gives no right to exact reparation by force, or to take
any further measures, if reparation be denied, than to return
discourtesy with discourtesy, or to withdraw from actively
friendly intercourse *.
It being recognised that states are unable to maintain Insuscep-
effective control over large spaces of sea, so as to be able to #.f
reserve their use to themselves, it is a principle of international sº *.
law that the sea is in general insusceptible of appropriation as ated as
property. The qualifications by which the application of this property.
principle is limited will be examined later.
* International ceremonial rules have reference to—
I. The direct relations of sovereigns with each other.
2. Diplomatic correspondence.
3. The intercourse of official persons with each other.
4. Maritime ceremonial.
Ample information with respect to them will be found in Heffter (§§ 194–7),
Calvo (§§ 296–345), or Klüber (Droit des Gens Moderne de l’Europe, §§ 89–122).
CHAPTER III
GENERAL PRINCIPLES OF THE LAW GOVERNING
STATES IN THE RELATION OF WAR
PART I WHEN differences between states reach a point at which both
iº * parties resort to force, or one of them does acts of violence
à,
the rela- which the other chooses to look upon as a breach of the peace,
ti f e * º © g
"...m. the relation of war is set up, in which the combatants may use
sists. regulated violence against each other until one of the two has
been brought to accept such terms as his enemy is willing to
grant.
The place As international law is destitute of any judicial or adminis-
:" trative machinery, it leaves states, which think themselves
iºn aggrieved, and which have exhausted all peaceable methods of
obtaining satisfaction, to exact redress for themselves by force.
It thus recognises war as a permitted mode of giving effect
to its decisions. Theoretically therefore, as it professes to cover
the whole field of the relations of states which can be brought
within the scope of law, it ought to determine the causes for
which war can be justly undertaken ; in other words, it ought
to mark out as plainly as municipal law what constitutes a
wrong for which a remedy may be sought at law. It might
also not unreasonably go on to discourage the commission of
wrongs by investing a state seeking redress with special rights
and by subjecting a wrong-doer to special disabilities.
How far The first of these ends it attains to a certain degree, though
†ºw very imperfectly. It is able to declare that under certain
* circumstances a clear and sufficiently serious breach of the law,
of war. or of obligations contracted under it, takes place. But in most
of the disputes which arise between states the grounds of
quarrel, though they might probably be always brought into
connexion with the wide fundamental principles of law, are
GENERAL PRINCIPLES OF THE LAW OF WAR 61
too complex to be judged with any certainty by reference to PART I
them; sometimes again they have their origin in divergent CHAP. III
notions, honestly entertained, as to what those principles consist
in, and consequently as to the injunctions of secondary principles
by which action is immediately governed; and sometimes they
are caused by collisions of naked interest or sentiment, in which
there is no question of right, but which are so violent as to
render settlement impossible until a struggle has taken place.
It is not therefore possible to frame general rules which shall
be of any practical value, and the attempts in this direction,
which jurists are in the habit of making, result in mere abstract
statements of principles, or perhaps of truisms, which it is
unnecessary to reproduce ".
The second end international law does not even endeavour The legal
to attain. However able law might be to declare one of two ;". f
combatants to have committed a wrong, it would be idle for ...”.
latively to
it to affect to impart the character of a penalty to war, when º
Ot, IléI’.
it is powerless to enforce its decisions. The obedience which
is paid to law must be a willing obedience, and when a state
has taken up arms unjustly it is useless to expect it to acquiesce
in the imposition of penalties for its act. International law
has consequently no alternative but to accept war, independently
of the justice of its origin, as a relation which the parties to
it may set up if they choose, and to busy itself only in regulating
the effects of the relation. Hence both parties to every war
are regarded as being in an identical legal position, and con-
sequently as being possessed of equal rights *.
* Ayala, De Jure et Officiis Bellicis (published in 1582), lib. i. e. ii. § 34 :
Grotius, De Jure Belli et Pacis, lib. i. e. iii. § 4, and lib. iii. e. iii. § 1,
and c. iv.; Wattel, liv. iii. ch. xii. §§ 190–2 ; De Martens, Précis, $ 265;
Halleck, i. 472.
* The conditions under which war is just are largely explained by Grotius
(lib. ii. e. i. and xxii-vi), Pufendorf (bk. viii. e. vi. § 3), Wolff (Jus Gent.
§§ 617–46), Vattel (liv. iii. ch. iii), Halleck (ch. xv), and Fiore (ii. 238, ed.
1869); and are more shortly noticed by Franciscus a Victoria (Relect.
Theol. vi.), Ayala (lib. i. e. ii. § 12), Albericus Gentilis (De Jure Belli, written
in 1588, lib. i. e. iii), De Martens (Précis, $265), and Klüber (§ 237). Heffter
(§ II.3) properly characterises discussions upon the subject as ‘oiseuses.”
62 GENERAL PRINCIPLES OF
The use of violence by a country towards its enemy necessarily
suspends the full observance of the right to the enjoyment
of independence and of the continuance and development of
existence, which a state possesses when in its normal relation
to others. Except in so far also as the right to use violence
may be limited by something external both to itself and to any
of the rights over which it thus has a necessary precedence,
it is incompatible with a secure enjoyment of the rights of
property. The more important therefore of the definite rights
belonging to states in their normal relation to each other are
governed by the right to use violence for a specific end. The
temporary and exceptional right supplants for the moment the
permanent rights. But just as violence in war has at no time
of modern European history been in fact exercised without
the encumbrance of moral restraint, so theoretically it must
always be exercised with due regard to the character of the
state as an aggregate composed of moral beings. It is agreed
that the use of wanton and gratuitous violence is not consistent
with the character of a moral being. When violence is per-
mitted at all, the amount which is permissible is that which
is necessary to attain the object proposed. The measure of the
violence which is permitted in war is therefore that which is
required to reduce the enemy to terms". It is of course evident
that this amount is conceivably variable, that greater or less
violence might be regarded as necessary according to the degree
of obstinacy shown by the enemy, and that in the absence of
specific rules, applying the general principle, a latitude might
be given to belligerent action which would reduce the principle
to impotence. At this point usage steps in, and provides from
time to time standards of permissible violence for universal
PART I
(CHAP. III
Limits of
the right
to use
violence
in war.
The doctrine of M. Bluntschli (§§ 515–8) must be exempted from the charge
of being truistic, whatever may be the criticism to which it is exposed on
other grounds.
* Grotius, lib. iii. c. i. § 2; Wattel, liv. iii. c. viii. §§ 136–8; Lampredi, Juris
Publici Universalis Theoremata (written in 1776), pars iii. c. xiii. §§ 1–5;
Heffter, § II9.
THE LAW OF WAR 63
application. The differences in the kind and degree of resistance PART I
which can be offered by civilised nations to an enemy are not “”
considered to be such as to justify differences in the kind of
violence employed to subdue it. In all wars consequently the
same means of putting stress upon an adversary must be em-
ployed, save in rare cases when, by himself overstepping the
prescribed bounds, the latter makes it necessary or allowable to
adopt exceptional measures with respect to him.
International law as applied to war thus consists in customary In what
e o © ſº interna-
rules by which the maximum of violence which can be regarded jaw
h as applied
e e © to War
sufficiently ascertained at any particular moment to afford a test consists.
of the conduct of a state, have been, and still are, changing
gradually under the double influence of the growth of humane
feeling and of the self-interest of belligerents. Springing
as necessary at a given time is determined. These rules, thoug
originally from limitations upon a right, which in its extreme
form constitutes a denial of all other rights, and developed
through the action of practical and sentimental considerations,
the law of war cannot be expected to show a substructure of
large principles, like those which underlie the law governing the
relation of peace, upon which special rules can be built with
fair consistency. It is, as a matter of fact, made up of a
number of usages which in the main are somewhat arbitrary,
which are not always very consistent with one another, and
which do not therefore very readily lend themselves to general
statements. So far as any connexion between them exists, it
can be indicated sufficiently, and more conveniently than here,
when the various usages are separately discussed.
In what has just been said it has been taken for granted that The doc-
º tº tº e tº * * * trine that
a certain doctrine is not part of international law, which is declared in re.
lation of
war does
really accepted, constitutes a fundamental principle of the laws fººt
I ſº
of war, and which, if carried out to its natural results, would ...'
deeply modify the rules by which belligerents are actually guided. ..."
So far as
A doctrine of such pretension must be examined, and if it is they "on-
by many writers to be of incontestable authority, which, if it is
...sº
64 GENERAL PRINCIPLES OF
PART I
CHAP. III
tribute to
the pro-
secution
of hos-
tilities.
groundless, must be shown to be so, before the special rules
affecting war can be satisfactorily treated.
The doctrine in question starts with the admitted fact that
international law is concerned only with the relations of states,
and that war is consequently ‘a relation of a state to a state,
and not of an individual to an individual.” The individual, so
far as he is affected at all, is affected only through his state.
But individuals, it is said, occupy a double position. In one
respect they are private persons, with rights of property and
person which have no relation to state life; and in another they
are members of the state, from whom it derives its means of
carrying on war, and whom it employs as its agents. These
two aspects correspond, according to the theory, to a substantial
distinction; to which some writers give effect by supposing an
individual to be an enemy only while actually fighting for his
country, and others by regarding him as such to the extent
only that he is in the service of his state, or that he contributes
to enable it to sustain hostilities. Both consider that in all
matters outside one or other of these lines he is a stranger to the
war in person and property.
In opposition to this doctrine is another, which also takes as
its basis that international law is concerned only with the
relations of states. War is a relation between states alone. But
states being the only subjects of international law, that law
takes cognizance of the individual solely through his state, and
as belonging to it, so that except as a member of it he has
neither personal nor proprietary rights. Thus for good and for
evil he is wholly identified with it, and when war is declared he
becomes the enemy of the enemy state and of every person
belonging to it.
It is claimed on behalf of the former theory, not only that it
furnishes an admitted principle to-modern international law, but
that it is in fact applied in many of the actual rules of war, and
that many of the improvements by which modern law is dis-
tinguished from the older customs are due to it.
· THE LAW OF WAR 65
In the first hundred and seventy years of the existence of in- PART U
fº $ e * | é CEIA P. III
ternational law as a system, the notion of the separability of the Whether
individual from his state for the purposes of war was unknown the doc-
$ $ º $ $ trine is
to international jurists. To all it was a matter of course that §ed
4 e * | e e by the au-
the subjects of an enemy state were themselves individually thority-
enemies *. It was not till 18oI that the theory of the exclusion #
$ g «$ wr1ters ;
of private persons as such from the hostile relations of the states
to which they belong began to find its way into international
law. In that year Portalis, in a speech delivered on opening the
French Prize Court, said that * war is a relation of state to state,
and not of individual to individual. Between two or more
belligerent nations the private persons of whom those nations are
composed are only enemies by accident ; they are not so as men,
they are not even so as citizens, they are so only as soldiers*.'
* Grotius, lib. iii. c. iii. $ 9, and c. iv. $ 8 ; Pufendorf, bk. viii. ch. vi ;
Molloy, De Jure Maritimo (written in I676), bk. i. ch. i. $ 22 ; Bynkershoek,
Quaest. Jur. Pub. (written in I737), lib. i. c. i ; Burlamaqui, The Principles
of Natural and Politic Law, trans. by Nugent (written in I763), vol. ii. pt. iv.
ch. iv. $ 2o ; Wolff, Jus Gent. $ $ 72I and 723 ; Vattel, liv. iii. ch. v. S$ 7o-2 ;
Lampredi, Jur. Pub. Theorem. pars iii. c. xii. $ Io. See also the judgment of
Mr. Justice Johnson in the case of the Rapid, viii Cranch, I6o-2.
* Portalis borrowed his doctrine almost textually from Rousseau. * La
guerre, says the latter, * n'est point une relation d'homme à homme, mais
une relation d'état à état, dans laquelle les particuliers ne sont ennemis
qu'accidentellement, non point comme hommes, ni même comme citoyens,
mais comme soldats ; non point comme membres de la patrie, mais comme ses
défenseurs. Enfin chaque état ne peut avoir pour ennemis que d'autres états,
et non pas des hommes, attendu qu'entre choses de diverses natures on ne
peut fixer aucun vrai rapport.' He goes on to make the startling assertion
that * ce principe est même conforme aux maximes établies de tous les
temps et à la pratique constante de tous les peuples policés.' Contrat Social,
liv. i. ch. iv.
With an admirable irony, of which it is hard to suppose him unconscious,
TaIIeyrand wrote to Napoleon in 18o6 :-* Trois siècles de civilisation ont
donné à l'Europe un droit des gens que, selon l'expression d'un écrivain
illustre, la nature humaine ne saurait assez reconnaître. Ce droit est fondé
sur le principe que les nations doivent se faire dans la paix le plus de bien,
et dans la guerre le moins de mal qu'il est possible. -
* D'après la maxime que la guerre n'est point une relation d'homme à
homme, mais une relation d'état à état, dans laquelle les particuliers ne sont
ennemis qu'accidentellement, non point comme hommes, non pas même
comme membres ou sujets de l'état, mais uniquement comme ses défenseurs,
le droit des gens ne permet pas que le droit de guerre, et le droit de conquête
HALL E
66 GENERAL PRINCIPLES OF
PART I
CHAP. III
The doctrine did not immediately spread. De Martens, Klüber,
Kent, Wheaton, and Manning expressly or implicitly manifested
their adherence to the traditional view; and an opinion which is
supported by their authority may be regarded as the established
law of the earlier part of the present century". Their example
has more recently been followed by Riquelme, Twiss, Phillimore,
Halleck, and Negrin 4. On the other hand, the ideas of
Rousseau have undoubtedly become a commonplace of most of
the recent continental writers”; but however valuable the opinion
Quien dérive, s'étendent aux citoyens paisibles et sans armes, aux habitations
et aux propriétés privées, aux marchandises de commerce, aux magasins qui
les renferment, aux chariots qui les transportent, aux bâtiments non armés
qui les voiturent sur les rivières ou sur les mers, en un mot à la personne et
aux biens particuliers.
‘Ce droit, né de la civilisation, en a favorisé les progrès. C'est à lui que
l'Europe a €té redevable du maintien et de l'accroissement de prospérité, au
milieu méme des guerres fréquentes qui l’ont divisée,’ &c. Quoted by Heffter
note to § 119) from the Moniteur of Dec. 5, 1806.
The wars of Napoleon were hardly conducted in the spirit of this passage,
which indeed may be suspected to have been only written for the purpose of
casting odium upon the power which captured French ships, and upon which
France was unable to retaliate.
* De Martens, Précis, $ 263; Klüber, § 232; Kent, Comm. i. 55; Wheaton,
Elem. pt. iv. ch. i. § 6; Manning, Commentaries on the Law of Nations (ed.
I875), p. I66.
* Riquelme, lib. i. e. To ; Twiss, ii. § 42 ; Phillimore, iii. § lxix.; Halleck,
i. 48o ; Negrin, Tratado Elemental de Derecho Internacional Maritimo, 141.
The deliberate view of the government of the United States is shown by
the 20th and 21st articles of the “Instructions for the Government of Armies
in the Field,” in which it is laid down that ‘Public war is a state of armed
hostility between sovereign nations or governments. It is a law and
requisite of civilised existence that men live in political, continuous societies,
forming organised units, called states or nations, whose constituents bear,
enjoy, suffer, advance and retrograde together, in peace and in war. The
citizen or native of a hostile country is thus an enemy, as one of the con-
stituents of the hostile state or nation, and as such is subjected to the hard-
ships of the war.’ See also, for the doctrine of the American Courts, White
v. Burnley, xx Howard, 249.
* For example, Bluntschli, Introd. p. 32 and §§ 53O-I ; Fiore, II* p”,
ch. iii. ed. I869 ; De Laveleye, Du Respect de la Propriété Privée, p. 26.
It is to be wished that the advocates of the new doctrine were more
sensible than they are of the necessity of offering some proof in support
of their assertion that it has replaced the previously existing law. They
simply take for granted that the latter is exploded. M. Pradier Fodéré, in
his notes to Wattel (iii. I22, ed. I863), uses typical language in speaking of it
THE LAW OF WAR. 67
of some of these may be, it would be idle to put them in com- PART I
petition with the mass and continuity of authorities which are CHAP. III
arrayed against them, unless it could be shown that practice has
clearly anticipated their decision, or that it has recently changed
to accommodate itself to their views.
Is, then, existing usage reasonably consistent with the theory * *.
in question, or has any improvement in practice taken place
which can fairly be attributed to its influence 2 If individuals
are not enemies as men, if they are not so even as subjects of the
state, if they are enemies as soldiers only, or at most as officials
or tax-payers, an enemy can have no right to interfere with the
civil organisation of the hostile country, he can have no right of
doing violence directly or indirectly to civilians, he can have no
right to touch a shilling of their property or to derange their
daily life by using for military purposes anything which belongs
to them, he can have no right to treat them in his own country
in any respect less favourably than in time of peace". Yet not
a single modern war has been made, except upon territory of
which the population has been actively friendly to the invader,
without every one of these things being done; and the pages of
the writers who repeat the empty declamation of "Portalis may be
turned over in vain for a word which denies the right to do
them. On entering his enemy’s territory an invader replaces
as the ‘erreur si étrangement adoptée par Wattel, et dont le droit des gems
du xixe siècle a fait justice.”
* What is said above need not be pressed so far as to exclude from the list
of enemies any one in the employment of the state or actually aiding it in
any way, and it is of course to be understood that the property of the state
itself, including the money payable in respect of ordinary taxes as it becomes
due, may be seized by the enemy ; but, on the most liberal construction,
the language of M. Portalis can lead to nothing less than what is said in the
text, thus guarded ; and as the extract which has been given from his speech
is repeated ad nauseam by the writers who follow him, it must be assumed
to embody their views. M. Fiore indeed (ii. 270, ed. 1869) says, “Tant que
les Sujets des divers 6tats ne prennent pas personnellement part au combat,
leurs droits et leurs biens personnels ne peuvent pas souffrir a cause des
Opérations de la guerre, dont les effets sont limités aux droits et aux pro-
priétés publiques, des nations belligerantes.” M. Bluntschli (p. 33) may not
seem to go so far; but if he does not intend to do so, he is inconsistent with
his own opinion as expressed in §§ 53o–I.
F 2.
68 GENERAL PRINCIPLES OF
PART I
CHAIP. III
Whether
practice
has been
modified
by the in-
fluence of
the doc-
trine.
Reasons
for regard-
the civil government by military control, and makes any changes
which are necessary for his safety and success; when he arrives
before a fortress he not only bombards it without thought for
the peaceable inhabitants, but he often directs his fire upon them
and their houses instead of upon the fortifications, in order that
the commander may be induced by their sufferings to surrender;
the property of his enemy's subjects he seizes by way of con-
tribution and requisition ; he forces them to render him personal
service in furtherance of his war; he destroys their buildings
and cuts up their fields for military purposes; he stops farming
work and the daily intercourse of the country by requisitioning
carts and horses and monopolising the use of railways and canals;
and during the continuance of the war he denies them the civil
justice of his courts. Most of these and of similar acts, which
are habitually done, are necessary to war, some of them are un-
necessary ; but all alike are incompatible with any reasonable
application of the principle that individuals are not enemies.
If, again, it is urged that practice, to whatever extent it may
fall below a theoretical standard, has at least been improved
since the introduction of the doctrine, the answer is simple.
From the middle of the seventeenth century the laws of war
have been continuously softened with the growth of humanity.
It would be hard, and probably impossible, to show that a more
marked or rapid change has occurred during the present century
than during a former period of equal length; and even if such
a change could be established, it would be more rational to
attribute it to a reaction from the excesses of the Napoleonic
wars, to the influence of a long peace, and above all to the
general softening of modern manners, than to a principle, which
has been seen to be at variance with practice, which perhaps is
not seriously adopted even in theory in any country, except by
writers, and which is certainly repudiated in England and the
United States, the inhabitants of which may justly claim not to
have less than the average amount of humane feeling.
There are two reasons for which it is satisfactory to be able to
THE LAW OF WAR. 69
reject the doctrine of the separability of the individual from the PART I
state CHAP. III
e e tº ſº. ge . . . ing the
- The first is that the doctrine is a fiction. International law doctrine
tº & * bi **
rests no doubt in great part upon fictions. But they are fictions ...
which have become in a sense realities by the degree to which
they have seized upon the imaginations of peoples, and to which
they have been acted upon for generations; in the main also
they are antecedent to international law ; they may have been
strengthened by it; but to begin with they imposed themselves
upon it. New fictions are in a different position. As obvious
unrealities they are destitute of inherent force, and they con-
sequently ought never to be lightly introduced. In the present
case it is impossible to draw a real distinction between the public
and private aspects of the individual. The state is made up of
the sum of the individuals belonging to it, and its will is the
sum of their wills. It is by pressure of different kinds which is
brought to bear upon them individually that the state is com-
pelled to submit to a victor. To separate individuals theoretically
from the state in respect of a number of interests, which are
nevertheless recognised in universal practice as giving a fair hold
for putting stress upon it, is simply to ignore facts. To separate
the state from the individuals which compose it is to reduce it to
an intangible abstraction. -
The second reason is that the doctrine is mischievous. It is
the argumentative starting-point of attack upon the right of
capture of private property at sea. Whatever from certain
points of view may be the merits of this question, it is inconve-
nient, to say the least of it, that the discussion as to the propriety
of retaining the right should be placed upon a false basis, and
that by the quiet assumption of an inadmissible principle the
semblance of a justification should be obtained for branding
a practice as an iniquitous contravention of rule, which in reality
is in harmony with the ground principles of the laws of war.
Still more objectionable is its effect upon the legal position of
the inhabitants of a militarily occupied country. If they are
70 GENERATI PRINCIPLES OF THE LAW OF WAR
PART I
CHAP. III
not enemies they have no right of resistance to an invader; the
spontaneous rising of a population becomes a crime; and the
individual is a criminal who takes up arms without being form-
ally enrolled in the regular armed forces of his state. The
customs of war no doubt permit that such persons shall under
certain circumstances be shot, and there are reasons for per-
mitting the practice; but to allow that persons shall be in-
timidated for reasons of convenience from doing certain acts, and
to mark them as criminals if they do them, are wholly distinct
things. A doctrine is intolerable which would inflict a stain of
criminality on the defenders of Saragossa'.
* In speaking upon this point in 1874, Baron Lambermont, one of the
Belgian delegates at the Conference of Brussels, said, “Il y a des choses qui
se font à la guerre, qui se feront toujours, et que l’on doit bien accepter.
Mais il s'agit ici de les convertir en lois, en prescriptions positives et interna-
tionales. Sides citoyens doivent étre conduits au supplice pour avoir tenté
de défendre leur pays au péril de leur vie, il ne faut pas qu’ils trouvent
inscrits sur le poteau au pied duquel ils seront fusillés l'article d’un traité
signé par leur propre gouvernement qui d’avance les condamnait a mort.’
Parl. Papers, Miscell. No. 1, 1875, p. 92. The efforts of some of the great
military powers at the Conference to suppress the right of a population to
defend itself were so sturdily resisted by several of the minor states that the
draft rules originally proposed were modified, as a result of the discussion
which took place, in a sense favourable to the right.
CHAPTER IV
GENERAL PRINCIPLES OF THE LAW GOVERNING:
BELLIGERENTS AND NEUTRALS IN THEIR
RELATIONS WITH EACH OTHER
THE rudimentary propositions of international law contemplate PART I.
no other relations than those of war and peace. At a time when iºn.
the relations of countries in amity with one another were the special
subject of elaborate rule, and when the violence of war was ºil,
already limited by definite customs, neutrality had no existence. ..."
If hostilities broke out between two states, every other was an
ally or an enemy. Little by little a third attitude became
recognised as possible and legitimate; and its maintenance has
gradually been transformed into a duty by the jealousy of
belligerents, whose anxiety to deprive their enemy of advantages
which the preference of the neutrals might give to him has been
helped by the equal anxiety of neutrals to continue their habits
of trade and intercourse. A code of rules has grown up affect-
ing states in their new relations, which in part is the accidental
result of the immediate collision of interests of various strength,
in part is a fair deduction from the principles of the law
governing states in their normal relations, and in part represents
a compromise between conflicting deductions from those prin-
ciples and from the rights which belligerents are conceived to
possess as against their enemies. As these last-mentioned
principles and rights are equally starting-points in law, and as
they contemplate the contradictory states of war and peace, and
have no inherent reference to any third relation in which
countries can stand to one another, any compromise arrived at
between them may be expected to be rough. As a matter of
fact, not only is the usage which governs the conduct of neutrals
and belligerents often inconsistent with itself, but there are even
72 GENERAL PRINCIPLES OF
PART I
CHAP. IV
The rudi-
mentary
principle
of the law
of neu-
trality.
Duty of
impartial
conduct.
two broadly divided tendencies of opinion as to its right basis, of
which one prefers the interests of the neutral and the other those
of belligerents.
However unfortunate the existence of these divergent ten-
dencies may be, they are equally defensible theoretically on the
fundamental principles with which the law of neutrality is .
bound to conform; and as it is beyond the province of the
international lawyer to settle precedence between the interests of
neutrals and belligerents, he must leave to moralists and to
statesmen the task of deciding which of the two are the more
worthy of encouragement, and therefore which theoretic tendency
is to be preferred. -
It is a reasonable, and indeed a necessary, deduction from the
principle that a state is bound to respect the right of free action
possessed by other states, that it must not allow feelings of
friendship for a country to betray it into embarrassing an enemy
of the latter in the exercise of his legitimate rights of war. It
has been mentioned as an incident of sovereignty that every
people possessing sovereignty has the right of determining what
kind and amount of intercourse it will maintain with foreign
mations, and that it may choose to mark out one as an object for
greater friendship than another. In time of peace it is easy to
accord such preference, and to remain, nevertheless, on terms of
perfect amity with less favoured countries. But during war,
privileges tending to strengthen the hands of one of two
belligerents help him towards the destruction of his enemy. To
grant them is not merely to show less friendship to one than the
other; it is to embarrass one by reserving to the other a field
of action in which his enemy cannot attack him ; it is to assume
an attitude with respect to him of at least passive hostility,
If therefore a people desires not to be the enemy of either
belligerent, its amity must be colourless in the eyes of both ; in
its corporate capacity as a state it must abstain altogether from
mixing itself up in their quarrel.
In the oldest and most rudimentary form of the theory of
THE LAW OF NEUTRALITY 73
neutrality this principle was fully recognised. But when once
its dictates had been satisfied, the duties of a state were, for all
practical purposes, supposed to end.
PART I
CHAP. IV
Gradually, as the theory of neutrality was worked out, it Territo-
rial sove-
came to be thought that a neutral state is not merely itself reigniyas
bound to refrain from helping either of two belligerents, but tha
t 3, SOU!I’Cé
of neutral
it is also bound to take care to a reasonable extent that neither responsi-
one nor the other shall be prejudiced by acts over which it is
supposed to have control. States become affected by the duty
of responsibility which is correlative to the fact of sovereignty.
Sovereign states being in possession of the sole right to decide
what acts shall or shall not be openly done within their territory,
all countries are supposed to be jealous of any infringement of
that right ; and no stranger being able to look behind the fact
of sovereignty, they are supposed to be capable of securing that
it shall be respected. It would neither be likely, nor is it found
to be the fact, that nations, in matters connected principally
with their own interests, regard with patience any exercise of
authority or of force within their territories independently of
their own sanction. If therefore a people is found to acquiesce
in conduct injurious to its friends; if it permits a belligerent to
use its lands or its harbours as the scene of hostile action, or the
basis of hostile preparation, a violent presumption is raised that
its neutrality is unreal, and that it deliberately intends under the
mask of equal friendship to help the belligerent who has com-
mitted an unpunished offence.
The reasoning which applies to strangers applies also to
subjects. As the presumption that a sovereign has control over
avowed acts done within his dominions is still stronger in the
case of subjects than of foreigners, if any acts are done by them
which are in opposition to his declared policy, it is easier to
believe the declaration to be false than the power to be in-
adequate. Primd facie everything which they do is permitted
by him.
On the other hand, it is admitted that no government can
bility.
74 GENERAL PRINCIPLES OF
PART I
CHAP. IV
Territo-
rial sove-
reignty as
the mea-
sure of
neutral
responsi-
bility.
Rights of
bellige-
rents in
restraint
of com-
exercise an inquisitorial surveillance over all the doings of
persons living within its jurisdiction. There is a point at which
the responsibility of a state ceases in respect of concealed acts.
What this point is will be a subject for consideration later.
In all this it is evident that the duties of a neutral state are
identical with those of a state in a time of universal peace. It
is at peace with both the parties to a war; it must therefore
fulfil its pacific duties with respect to them. The only difference
in the position of a state in the two cases of peace and neutrality
is that the range and frequency of the occurrences which call for
the fulfilment of duty in time of war is greater than in time of
peace. In peace, attempts to use the territory of a state to the
injury of another state are only made by private persons and
are rare, in war they may be made by a belligerent state itself
as well as by its subjects, and they may occur at any moment.
A state may therefore be reasonably expected to show somewhat
more watchfulness as a neutral than can be demanded from it in
a season of apparent tranquillity.
As territorial sovereignty brings with it duties, so it supplies
the measure of neutral responsibility. A state cannot be asked
to take cognizance of what occurs outside its own borders. In
another country it obviously cannot act. On the sea it is not
required to act, both because its jurisdiction, being confined to
its own ships, is inadequate, and because it would be beyond the
power of any state to supervise the actions of its subjects, or of
persons who may have made improper use of its territory, on all
the oceans of the world. A state therefore washes its hands of
responsibility at the edge of its territorial waters. Of whatever
hostile conduct its subjects, or other persons issuing from its
shores, may be guilty, the remedy of a belligerent is upon them
personally, and not upon the nation to which they belong or the
territory of which they may have used.
Connected with the cessation of state control at the frontier
of state territory, though not springing from it, is a privilege
of interference with neutral commerce which belligerents have
THE LAW OF NEUTRALITY 75
been allowed to establish. Much of the trade which is ordinarily PART I
CHAP, IW
mercial
on with whom they choose in virtue of their general right of : i. .
IVIC Ulfl. 1S,
carried on between states, and which they have a right to carry
self-development, is incompatible with the successful conduct
of warlike operations. An army cannot permit free ingress into
a besieged town, or egress from it. The stress put upon a
country by blockade would be nullified if neutral merchants were
allowed to bring in everything that the blockaded state might
want. And there are kinds of merchandise, the supply of which
to a belligerent, owing to their direct usefulness in war, is
peculiarly injurious to his adversary. It is considered that the
harm done to a belligerent by noxious trade is so great as to
outweigh the loss inflicted upon a neutral by interruption or
restriction of his commerce. A belligerent consequently is held
to have a right to exact that trade which is injurious to his
operations shall be restrained. There are only two ways in
which this can be effected. Either the neutral sovereign may
be responsible for the conduct of his subjects, or the belligerent
may himself be entrusted with the necessary power. The grave
and obvious inconveniences inseparable from the former method 4
would have secured its rejection if the impatience of belligerents
had not denied it the opportunity of trial; but the actual practice
in fact arose because it was easy for the belligerent to protect
himself by summary action, while it was not easy for the neutral
sovereign to give him an equal security.
* “No power can exercise such an effective control over the actions of
each of its subjects as to prevent them from yielding to the temptations of
gain at a distance from its territory. No power can therefore be effectually
responsible for the conduct of all its subjects on the high seas; and it has
been found more convenient to entrust the party injured by such aggressions
with the power of checking them. This arrangement seems beneficial to all
parties; for it answers the chief end of the law of nations,—checking
injustice without the necessity of war. Endless hostilities would result
from any other arrangement. If a government were to be made responsible
for each act of its subjects, and a negotiation were to ensue each time that a
Suspected neutral merchantman entered the enemy’s port, either there must
be a speedy end put to neutrality, or the affairs of the belligerent and
neutral must both stand still.” Lord Brougham’s Works, ed. 1857, viii. 386.
76 GENERAL PRINCIPLES OF
PART I
CHAP IV
Distinc-
tion be-
tween
state acts
and com-
mercial
acts of
the in-
dividual.
The belli-
gerent is
allowed to
Control
the latter
directly.
The origin of the privilege was lawless, but existing custom
fortunately gives effect to a real distinction which separates
non-neutral acts, with which the state is identified, from com-
mercial acts done by individuals from which a belligerent suffers.
An act of the state which is prejudicial to the belligerent is
necessarily done with the intent to injure; but the commercial
act of the individual only affects the belligerent accidentally.
It is not directed against him ; it is done in the way of business,
with the object of getting a business profit, and however in-
jurious in its consequences, it is not instigated by that wish to do
harm to a particular person which is the essence of hostility. It
is prevented because it is inconvenient, not because it is a wrong;
and to allow the performance by a subject of an act not in itself
improper cannot constitute a crime on the part of the state to
which he belongs. Trade between a neutral individual and a
belligerent, which is prejudicial to the operations of a country
at war, not being in itself wrong, even in the qualified sense in
which non-neutral national acts can be said to be wrong, the
belligerent right to interfere with it is theoretically a derogation
from the strict rights of the neutral state, which refrains in so
far as its subjects are affected by the belligerent from protecting
them in the performance of innocent acts. The justification
of this usage lies in its convenience.
By existing custom the belligerent has the right of hindering
neutral commerce when it is noxious to him, either because it
supplies his enemy with articles of direct use in war, or because
it diminishes the stress which he puts upon his enemy; or even
because it is tainted by association with hostile property. In
all these cases the neutral trader is left face to face with the
belligerent nation. It alone determines whether he has infringed
its privileges, and in its courts alone can he in the first instance
find a remedy for wrongs done to him by its agents. The
neutral state cannot interfere until the belligerent has over-
stepped the boundary of his rights. When he has done this
by rendering unjust decisions, the question transfers itself to
THE LAW OF NEUTRALITY 77
another head of international law. The belligerent has practically PART I
committed an act of war, and the neutral state can demand and CHAP. IV
exact such reparation as may be needful.
It appears, then, that international usage as between belli- Division
gerents and neutrals consists of two branches, distinct in respect º: ºw
of the parties affected, of the moral relation of these parties to #!".
each other, and of the means by which a breach of the accepted branches.
rules can be punished.
In one the parties are sovereign states. Both of these are 1. That
tº e ffecti
affected by the same duties as in peace time. The belligerent º:
therefore remains under an obligation to respect the sovereignty i.º
of the neutral; the neutral is under an equal obligation not to º
aid directly or indirectly, and within certain limits to prevent
a state or private persons from aiding in places under his control,
the enemy of the belligerent in matters immediately bearing on
the war. If a wrong is done, the remedy is of course inter-
national.
In the other the parties are the belligerent state and the iº.
neutral individual. They are, and can be, bound by no obliga-states".
tions to each other. The only duty of the individual is to his º in -
own sovereign; and so distinctly is this the case, that acts done 5. *...
even with intent to injure a foreign state are only wrong in so another.
far as they compromise the nation of which the individual is
a member. At the same time the only duty of the belligerent
state is to beings of like kind with itself; and it is merely bound
to behave in a particular manner to the neutral individual
because of the international agreement which sets limits to the
severity which may be used in repressing his noxious acts. But
within these limits the belligerent is irresponsible. He exacts
in his own prize-courts the penalty for infraction of the rules
which he is allowed to enforce; and if he inflicts a wrong, it
is for him to repair it.
This distinction between the usages affecting national and The two
private acts is deeply rooted in the habits of nations. At no ºn.
time since the rules which make up international law assumed * *
78 GENERAL PRINCIPLES OF
PART I definite shape has there been any room for question as to the
CHAP. IV
fused with & tº *
each other. But the usage was shaped in the first instance by the blind
working of natural forces, and its permanence is more due to
existence or nature of an authoritative practice in the matter.
their continued operation than to the clearness with which its
principle has been defined by legal writers. It has been, and
still is, usual for them to confuse neutral states and individuals
in a common relation towards belligerent states; and in losing
sight of the sound basis of the established practice they have
necessarily failed to indicate any clear boundary of state responsi-
bility. This want of precision is both theoretically unfortunate,
and not altogether without practical importance. For it has
enabled governments from time to time to put forward, preten-
sions, which though they have never been admitted by neutral
states, and have never been carried into effect, cannot be often
made without endangering the stability of the principles they
attack. But the common sense of statesmen has generally met
such pretensions with a decided assertion of the authoritative
doctrine, and state papers are not wanting in that clearness
which is deficient in the writings of jurists.
1777, In 1777 M. de Vergennes, in his observations on the cele-
†ºn brated English ‘Mémoire Justificatif’ of that year, said that
*** *it will be found, whether by consulting usage or treaties, not
that trade in articles contraband of war is a breach of neutrality,
but that the persons engaged in it are exposed to the confiscation
I 793, of their goods’.” When England suggested to the United States
A. wº & e e
º in 1793 that the government of that country will deem it
of the law. more expedient to prevent the execution of the President’s
Proclamation than to expose vessels belonging to its citizens
* De Martens, Causes Célèbres du Droit des Gens, iii. 247. The correctness
of M. de Vergennes’ law is not affected by the circumstance that the facts in
the particular case do not seem to have been altogether covered by the
principle which he stated. The exportations of articles contraband of war
of which the English government complained, were chiefly made by a body
of persons who owned privateers, sailing under the American flag, but fitted
out in French ports, and manned by Frenchmen. In such a case exportations
of arms might fairly be taken as part of a series of hostile operations.
THE LAW OF NEUTRALITY 79
to those damages which may arise from their carrying articles PART I
of the description above-mentioned,” Mr. Jefferson answered, CHAP. IV
‘Our citizens have always been free to make, vend, and export
arms. It is the constant occupation and livelihood of some
of them. To suppress their callings, the only means perhaps
of their subsistence, because a war exists in foreign and distant
countries, in which we have no concern, would scarcely be
expected. It would be hard in principle and impossible in
practice. The law of nations, therefore, respecting the rights
of those at peace does not require from them such an internal
derangement of their occupation *. Again, in 1855, President 1855, .
• e º e American
Pierce, speaking of articles contraband of war, laid down statement
more plainly ‘that the laws of the United States do not forbid “"“”
their citizens to sell to either of the belligerent powers articles
contraband of war, or take munitions of war or soldiers on
board their private ships for transportation; and although in
so doing the individual citizen exposes his property or person
to some of the hazards of war, his acts do not involve any
breach of national neutrality, nor of themselves implicate the
government”.”
In unfortunate contrast with these frank expressions of the º
clear rule of law was the doctrine maintained by the United of law
States during the civil war, and afterwards before the tribunal confused ;
recently
of arbitration at Geneva. It was then urged that though º
United
belligerents may not “infringe upon the rights which neutrals States and
e • *- :- © . e. - Germany.
have to manufacture and deal in military supplies in the ordinary
course of commerce, yet that ‘ a neutral ought not to permit
a belligerent to use the neutral soil as the main if not the only
base of its military supplies *; in other words, it was argued
* Mr. Jefferson to Mr. Hammond, May 15, 1793.
* President Pierce’s Message, 1st Session 34th Congress.—Among jurists
Rent (Comm. lect. vii) and Ortolan (Dip. de la Mer, ii. 177) are distinguished
by their clear recognition of the principle involved in the established
practice. See also the judgment of Story in the case of the Santissima
Trinidad, vii Wheaton (American Reports), 34o. -
* Case of the United States, part v.
80 GENERAL PRINCIPLES OF
that the character of contraband trade alters with the scale upon
which it is carried on. In like manner, during the Franco-
German war of 1870, Count Bismarck accused the British
Government of not acting “in conformity with the position of
strict neutrality taken by it,” in permitting contracts to be entered
into by the French Government with English houses for the
supply of arms and ammunition". These claims are reflected
in the language of M. Bluntschli, who declares that while ‘ the
neutral state cannot be asked to prevent the issue in small
quantities of arms and munitions of war, it is altogether different
with wholesale export. The latter gives a sensible advantage
to one of the two parties, and in the larger number of cases
is in fact a subsidy *.”
Sometimes an inverse confusion occurs to that which is made
in the above instance. In 1801 an English frigate seized some
Swedish vessels at Oster Risſher, within Norwegian waters.
Lord Hawkesbury expressed the regret of the English Govern-
ment that the Danish sovereignty had been violated, but failed
to see that the international illegality of the capture required
the application of an international remedy; and professing that
the government had no power to restore the ships, referred the
aggrieved parties to the courts *.
Again, in 1793, on the outbreak of war between Great Britain
and France, the latter power endeavoured to use the territory of
the United States as a base of operations against English com-
merce, and fitted out privateers in American ports. While measures
were being taken to put a stop to these proceedings, the American
Ministry had before it the question in what manner prizes
JPART I
CHAP. IV
In 18or, by
England.
In I793, by
France.
* Lord Augustus Loftus to Earl Granville, July 30, 1870; State Papers,
lxx. 73. See also Lord Granville’s despatch of August 3, id. 76.
* Droit International, § 766.
* Count Wedel-Jarlsberg, the Danish Minister of Foreign Affairs, declared
that his sovereign “would never consent that the open violation of his
territory should be submitted under any pretext whatever to the decision of
the courts.” In the end Lord Hawkesbury receded from his pretension, and
the ships were given up. Ortolan, Dip. de la Mer, Annexe F. ii. 427–33,
where the text of the correspondence is to be found.
THE LAW OF NEUTRALITY 81
should be dealt with which had been taken before the issue of
commissions by the French Minister had been expressly prohibited.
Mr. Hamilton thought that the prizes, having been taken in
derogation of the sovereignty of the United States, the question
of the restoration was a national one; but Mr. Jefferson con-
tended that if the commissions issued by the French Minister
were invalid, and the captures were therefore void, the courts
would adjudge the property to remain in the former owners;
and there being an appropriate remedy at law, it would be
irregular for the Government to interfere”. It was finally
decided to leave the British owner to such remedy as the courts
might give him, and the United States only acknowledged an
international liability in respect of vessels captured after formal
notice to the French Minister that the equipment of cruisers
would be looked upon as an infraction of neutrality.
* Marshall's Life of Washington, ii. 26.3—5.
HALI. G.
PART I
CHAP. IV
PART II
CHAP. T.
Recogni-
tion of
a state.
Whether
the effects
of recog-
nition by
a parent
state and
by third
powers
are dif-
ferent.
PART II
CHAPTER I
COMMENCEMENT OF THE EXISTENCE OF A STATE,
CHANGES IN THE STATE PERSON, AND
ExTINCTION OF A STATE
THEORETICALLY a politically organised community enters of
right, as was before remarked, into the family of states and
must be treated in accordance with law, so soon as it is able to
show that it possesses the marks of a state. The commence-
ment of a state dates nevertheless from its recognition by other
powers; that is to say, from the time at which they accredit
ministers to it, or conclude treaties with it, or in some other way
enter into such relations with it as exist between states alone.
For though no state has a right to withhold recognition when it
has been earned, states must be allowed to judge for themselves
whether a community claiming to be recognised does really
possess all the necessary marks, and especially whether it is
likely to live. Thus although the right to be treated as a state
is independent of recognition, recognition is the necessary evidence
that the right has been acquired.
Apart from the rare instances in which a state is artificially
formed, as was Liberia, upon territory not previously belonging
to a civilised power, or in which a state is brought by increasing
civilisation within the realm of law, new states generally come
into existence by breaking off from an actually existing state.
In the latter case recognition may be accorded either by the
parent country or by a third power, and it is sometimes thought
that there is a difference of kind between the recognition which
is given by the one and that which proceeds from the other.
Sir James Mackintosh, in his speech on the recognition of the
Spanish American States, regarded the word ‘recognition,’ when
COMMENCEMENT OF A STATE, ETC. 83
applied to the acts of the parent state and of other states re-
spectively, as being ‘used in two senses so different from each
other as to have nothing very important in common,’ and
Canning held a similar view'. With all deference for such high
authority, it is not easy to see in what the difference for legal
purposes consists. Of course recognition by a parent state, by
implying an abandonment of all pretensions over the insurgent
community, is more conclusive evidence of independence than
recognition by a third power, and it removes all doubt from the
minds of other governments as to the propriety of recognition by
themselves; but it is not a gift of independence; it is only an
acknowledgment that the claim made by the community to have
definitively established its independence, and consequently to be
in possession of certain rights, is well founded. But recognition
by a third power amounts also to this. Practically, no doubt,
the difference in the value of the evidence furnished by recognition
in the two cases is not unimportant. When a state has itself
recognised the independence of a revolted province it cannot
pretend that recognition by other states is premature. When it
has not done so, it may often be possible for it to bring the con-
duct of other states into question, and to argue that recognition
has not been justified by the facts; and where any colour exists
for such an assertion, the state which has recognised an insurgent
community is placed in a false position. Until independence is
so consummated that it may reasonably be expected to be per-
manent, insurgents remain legally subject to the state from.
which they are trying to separate. Premature recognition there-
fore is a wrong done to the parent state; in effect indeed it.
amounts to an act of intervention. Hence great caution ought
to be exercised by third powers in granting recognition; and,
except where reasons of policy interfere to prevent strict attention.
to law, it is seldom given unless in circumstances which set its
propriety beyond the reach of cavil.
* Mackintosh, Miscellaneous Works, 749 (ed. 1851); Hansard, New Series,
xi. 1397.
PART II
(CHAP. I
G 2
84 COMMENCEMENT OF THE
PART II Most text writers are somewhat loose in their treatment of the
CHAP. I i
circumstances in which recognition may be accorded by third
powers. They either, like Klüber, bring in the question of the
legitimacy of the origin of the new state, which must always be
open to differences of opinion, or, like Wheaton, speak with
a vagueness which renders it impossible to be sure of their
meaning". The true principles of action are best illustrated by
the conduct of England and the United States with respect to
the South American Republics, and in the debates which took
place in Parliament when the question of their recognition was
considered. In 1810 insurrections broke out over the whole of
Spanish America. That which took place in Buenos Ayres was
immediately successful, the efforts made by Spain to recover
a footing in the country did not even lead to its invasion, and it
formally declared its independence in 1816. Elsewhere a struggle
was maintained for several years with various fortune, but
already in 1815 onlookers could forecast its issue”, and from
I 818 Chile, which declared its independence in that year, re-
mained unmolested. Things being in this state, Mr. Clay in
the latter year laid before Congress a motion in favour of
recognition. Notwithstanding that several provinces were com-
pletely freed from the Spaniards, and that they had enjoyed
undisturbed independence during a considerable time, the per-
manence of the existing order was not thought to be sufficiently
assured in any part of the continent, so long as the mother
country had a reasonable chance of success in places which, if
subdued, would serve as bases of operations against the remain-
der, or the recovery of which would liberate her forces for use
else where. The motion was consequently rejected by a large
majority. It was not till 1822, when Colombia had expelled
the Spaniards, with the exception of the small garrisons of two
blockaded forts, while the position of Chile and Buenos Ayres
remained unchanged, that President Monroe felt that he could
Circum-
stances
under
which re-
cognition:
may be
accorded
by third
powers.
Case of
the South
American
Republics.
* Klüber, § 23; Wheaton, Elem. pt. i. ch. ii. §§ 7, Io.
* Annual Register for that year, p. I28.
ExISTENCE OF A STATE, ETC. 85
disregard the continuance of the struggle in Peru, and declared
in his message to Congress that the ‘contest had reached such
a stage, and been attended with such decisive success on the part
of the provinces, that it merits the most profound consideration
whether their right to the rank of independent states is not
complete.” On the matter being referred to the Committee of
the Senate on Foreign Affairs, a report in favour of recognition
was drawn up, in which, it may be noticed, the principle was
affirmed that ‘the political right of the United States to acknow-
ledge the independence of the Spanish American Republics,
without offending others, does not depend upon the justice but
on the actual establishment’ of that independence. Recognition
followed shortly afterwards". By England still greater de-
liberation was displayed. It was only in 1824, when it could be
asked, ‘What is Spanish strength 2'-and the answer was, “A
single castle in Mexico, an island on the coast of Chile, and
a small army in Upper Peru, that the question of recognition
was considered ripe to be seriously taken in hand. Even then
* Mr. Adams, Secretary of State, writing to President Monroe in 1816,
pointed out admirably the considerations of law, of morals, and of expediency
which are involved in recognition. ‘There is a stage,’ he said, ‘in
revolutionary contests when the party struggling for independence has,
I conceive, a right to demand its acknowledgment by neutral parties, and
when the acknowledgment may be granted without departure from the
obligations of neutrality. It is the stage when the independence is
established as a matter of fact, so as to leave the chance of the opposite
party to recover their dominion utterly desperate. The neutral nation must
of course judge for itself when this period has arrived ; and as the
belligerent nation has the same right to judge for itself, it is very likely to
judge differently from the neutral, and to make it a cause or pretext for war,
as Great Britain did expressly against France in our revolution, and
substantially against Holland. If war results in point of fact from the
measure of recognising a contested independence, the moral right or wrong
of the war depends on the justice and sincerity and prudence with which
the recognising nation took the step. I am satisfied that the cause of the
South Americans, so far as it consists in the assertion of independence
against Spain, is just. But the justice of a cause, however it may enlist
individual feelings in its favour, is not sufficient to justify third parties in
siding with it. The fact and the right combined can alone authorise a
neutral to acknowledge a new and disputed sovereignty.” MS. quoted by
Wharton, Digest of the International Law of the United States, § 7o.
PART II
CHAP, I
86 COMMENCEMENT OF THE
PART II Lord Liverpool and Mr. Canning were hardly prepared to
*** entertain it; and the debates of the spring of that year were not
followed by the recognition of Buenos Ayres, Colombia, and Mexico
till the beginning of 1825. The recognition of Chile was post-
poned because of the instability of its internal condition. The
British Government may perhaps have been unduly slow to be
convinced that the South American Republics had in fact
definitely achieved their independence; but whether they were
right or wrong upon the question of fact, and whatever differ-
ences of opinion upon this point may have shown themselves
during the debate, the government and the opposition were
thoroughly at one upon the question of principle. The language
of Dord Liverpool, as being more concise than that used by
other speakers, may be quoted to show the views of Mr. Canning,
of Lord Lansdowne, and of Sir J. Mackintosh, as well as of
himself. “He had no difficulty,’ he said, ‘in declaring what had
been his conviction during the years that the struggle had been
going on between Spain and the South American provinces—
that there was no right while the contest was actually going
on . . . The question ought to be—was the contest going on ? He,
for one, could not reconcile it to his mind to take any such step
so long as the struggle in arms continued undecided. And
while he made that declaration he meant that it should be
a bona fide contest *.’
* De Martens, Nouv. Rec. vi. I48, 154; Hansard, New Series, x. 974 and
999, xi. 1344; Annual Register. The principle upon which the British and
American governments acted in the case of the South American Republics
was reaffirmed by Lord Russell in refusing an application for recognition
made by the Confederate States in 1862. Lord Russell to Mr. Mason, Aug. 2,
1862. State Papers, North America, No. 2, 1863. -
Sir W. Harcourt (Letters of Historicus, Nos. i., ii and iii) examines the
doctrine of recognition, and analyses the precedents in detail, with reference
to the question whether it would have been proper to recognise the
Confederate States during their struggle for independence. He shows that
several cases, such as those of Belgium and Greece, which are often spoken
of as instances of mere recognition, are in fact instances of intervention.
The recent recognition of the independence of Servia and Roumania by the
Great Powers may be placed in the same category. Recognition in the case
of these states was only a part of arrangements made and imposed by the
EXISTENCE OF A STATE, ETC. 87
Assuming that the recognition of the Spanish American PART II
Republics by the United States and England may be taken as “**
a typical example of recognition given upon unimpeachable º
grounds, and bearing in mind the principle that recognition ºwºn
cannot be withheld when it has been earned, it may be said .
generally that— ***
I. Definitive independence cannot be held to be established, and sº
recognition is consequently mot legitimate, so long as a sub-
stantial struggle is being maintained by the formerly sovereign
state for the recovery of its authority; and that
2. A mere pretension on the part of the formerly sovereign
state, or a struggle so inadequate as to offer no reasonable ground
for supposing that success may ultimately be obtained, is not
enough to keep alive the rights of the state, and so to prevent
foreign countries from falling under an obligation to recognise
as a state the community claiming to have become one.
Recognition may be effected in very various ways. The most Modes in
formal mode is by express declaration, issued separately, and .
addressed to the new state, or by a like declaration included in a **
convention made with it. The former was the method adopted.
by the British government in recognising the Congo state; the
latter was that preferred for the same purpose by the German
government. But any act is sufficient which clearly indicates
intention. The independence of Greece was recognised by Great
Britain, France, and Russia in a protocol, dealing besides with
other matters; and the empire of Germany was also recognised
by a protocol of the 24th January, 1871, signed by the plenipo-
tentiaries of Great Britain, Austria, France, Italy, North Ger-
many (Germany), Russia and Turkey, accredited to the Confer-
ence of London. Belgium received recognition by being admitted
as a party to a treaty of which the Great Powers were the other
Great Powers for the general settlement of the South-East of Europe. It
was this fact which justified those powers in making the recognition of
Roumania dependent on changes being made in its municipal laws, and in
postponing it until those changes had been effected. For the circumstances
in which intervention is permissible, see pt. ii. ch. viii.
88 COMMENCEMENT OF THE
PART II
CHAP. I
The for-
mation of
the Congo
... State.
signatories. Again the official reception of diplomatic agents
accredited by the new state, the dispatch of a minister to it, or
even the grant of an exeguatur to its consul, affords recognition
by necessary implication".
The formation of the Congo state deserves separate notice as
a curious case of abnormal birth. In 1879 a body was formed
calling itself the International Association of the Congo, which
was presided over by the King of the Belgians acting as a
private individual, and of which the members and officials were
subjects of civilised states. It founded establishments; it occu-
pied territory; it obtained cessions of sovereignty and suzerainty
from native chiefs. Yet it was neither legally dependent upon
any state, nor did its members reject the authority of their
respective governments, and establish themselves permanently
on the soil as a de facto independent community. At first the
Association held itself out as a sort of agency for erecting,
fostering, and apparently superintending, free states in the
Congo basin; and while claiming only to exercise these transitory
functions its flag was recognised in April 1884 by the United
* Hertslet’s Map of Europe by Treaty, Nos. I49, 152 and 441 ; Wharton's
Digest, iii. § 115; Parl. Papers, Africa, No. 4, 1885. The treaty to which
Belgium was a party was that through which its boundaries were defined
and its position as a neutral state established by the Great Powers, but its
admission as an independent party must be regarded as an act prior, from
the legal point of view, to the adoption of agreements which would other-
wise have conferred recognition. Holtzendorff (Handbuch, i. § 8) gives the
surrender of criminals to a new state as an act sufficient to effect recognition;
it does not however seem quite clear why the surrender of an ordinary
criminal to a de facto government, in the possession of regular courts, need
more necessarily constitute recognition, than does recognition of belligerency.
Both acts imply recognition that jurisdiction is being in fact exercised, and
acknowledge it as a matter of political or social convenience. Neither act
need mean more. &
The appointment of consuls to a community claiming to be independent
does not constitute recognition. In 1823 consuls were appointed by Great
Britain to the South American Republics, and the various governments were
informed that the appointments had been made for the protection of British
subjects, and for the acquisition of information which might lead to the
establishment of friendly relations. The various consuls took up their
appointments and acted, but were not gazetted. The earliest recognition
took place in 1825.
EXISTENCE OF A STATE, ETC. 89
States as that of a ‘friendly government.’ Germany concluded
a convention with it in November, 1884, in which the Association
appears as itself definitively exercising sovereignty, and is recog-
nised as a ‘friendly state.” In December of the same year, in
an exchange of Declarations with Great Britain, it asserted that
by virtue of treaties with native “ sovereigns,” the administra-
tion of the interests of free states established or being established
in the basin of the Congo and in adjacent territories was vested
in the Association,” and Great Britain recognised its flag as that
of a friendly government. Within the next two months Italy,
the Netherlands, Spain, France, Russia, and Portugal had
recognised the Association as a government; Austria, Sweden
and Norway, and Denmark had acknowledged it to be a state;
and Belgium placed ‘its flag on an equality with that of a
friendly state.’ Finally, on the 26th February, 1885, Col.
Strauch, acting under full powers conferred upon him by the
King of the Belgians, was permitted by the states represented
at the Conference of Berlin to signify the adhesion of the
Association, as an independent state, to the general act of the
Conference.
Subsequent occurrences have invested the state, thus strangely
brought into the world, with a more regular form. In April
1885, the King of the Belgians, who by the constitution of his
country is incapable of being the chief of another state without
PART II
CHAP. I
the consent of the Belgian Chambers, was duly authorised to
assume the sovereignty of the Congo state, on condition that its
union with Belgium should be merely personal ; and shortly
afterwards he proclaimed by royal decree the existence of an
independent Congo state, and his own accession to the throne".
* Parl. Papers, Africa, No. 4, 1885; Moynier, La Fondation de I'État
Indépendant du Congo au point de vue juridique.
It may be worth while to notice here a somewhat curious incident, which
offers points of interest, but which does not conveniently fall under any of
the heads which will present themselves for discussion in the text. In 1894
an Agreement was entered into between Great Britain and the Congo state
by which a strip of territory twenty-five kilometres in breadth, extending
from Lake Tanganika to Lake Albert Edward, and running close to the
90 COMMENCEMENT OF THE
PART II [Of late years the King has shown every disposition to facilitate
CHAP. I
the union of the two countries. In 1889 he executed a will by
German frontier for the greater part of its length, was granted by the Congo
state to Great Britain upon lease and to be subject to British administration,
so long as the Congo territory remained under the sovereignty of the King
of the Belgians either as an independent state or as a colony; it was
declared that Great Britain neither had nor sought to acquire any further
political rights in the leased territory than those which were in conformity
with the Agreement. To this arrangement the German Government objected
on the ground that an indefinite lease is equivalent to a cession, and that
therefore “her political position would be deteriorated and her direct trade
communication with the Congo state would be interrupted.’ It was more
important to Great Britain to avoid disagreement with Germany than to
maintain a right to the leased territory; the agreement with the Congo
state was consequently rescinded ; but the abstract question of the validity
of the objection taken by the German Government remains open.
That the direct trade communication between the German protectorate
and the Congo state would in a geographical sense be interrupted is
undermiable ; but the fact was immaterial. Great Britain could only receive
a lease of the territory subject to the provisions of antecedent treaties made
between the Congo state and Germany, and notwithstanding a slight
ambiguity in the language of the treaty made in 1884 between the two
states, there can be no doubt that she would have been precluded from
levying duties upon goods imported from German sources. As regards the
general ‘political position,” the Congo state is neutral, and the treaty
provides that in the event of cession of any part of its territory ‘the
obligations contracted by the Association' (i. e. the Congo state) * towards
the German Empire shall be transferred to the occupier.’ Assuming then
for a moment that a lease of indefinite duration is equivalent to a cession,
the territory leased to Great Britain would have remained affected by the
duties of neutrality, and could not have been used to prejudice the position
of Germany. The treaty, it should be added, contains no stipulation,
express or implied, that transfer of territory in any form should be
dependent on German consent. It is difficult therefore to understand the
conventional basis of the objection taken, and of legal basis in a wider sense
it is evidently destitute. The Congo state has all rights of a neutral state,
of which it has not been deprived by express compact. Those rights beyond
Question include the right to do all state acts which neither compromise,
nor tend to compromise, neutrality. In the particular case the Congo state
was clearly competent to grant a lease, because the lease carried with it of
necessity the obligations of neutrality. Although a lease for an indefinite
time may in certain aspects be the equivalent of a cession, in law it is not
so ; a state may be able to make a cession of territory freed from its own
obligations, but in granting a lease it cannot give wider powers than it
possesses itself, and consequently, altogether apart from the treaty with
Germany, the Congo state could not disengage territory from neutral
obligations by letting it out upon a subordinate title.
It may be remarked that the Congo state is equally competent to acquire
EXISTENCE OF A STATE, ETC. 91
which he bequeathed the Congo state to Belgium and let it PART II
become known, that if it suited the latter power to enter, during “”
his lifetime, into closer relations with his Congo possessions, he.
should offer no opposition. In 1895 a Treaty of Cession was
drawn up between Representatives of Belgium and the Congo
state, but the Bill seeking the sanction of the Legislature for
this arrangement was abruptly withdrawn and the question of
annexation remains indefinitely postponed.]
When a new state splits off from one already existing, it Relation
necessarily steps into the enjoyment of all rights which are sº
conferred upon it by international law in virtue of its existence ºne.”
ract
as an international person, and it becomes subject to all rights
obligations which are imposed upon it in the same way. No sº
question therefore presents itself with respect to the general :*
rights and duties of a new state. What however is its relation state.
to the contract obligations of the state from which it has been
separated, to property belonging to and privileges enjoyed by
the latter, and to property belonging in common, before the
occurrence of the separation, to subjects of the original state in
virtue of their status as such, when some of them after the
separation become subjects of the new state P
The fact of the personality of a state is the key to the answer. Personal
With rights which have been acquired, and obligations which º
have been contracted, by the old state as personal rights and º.º.
o te ſº . adhere to
obligations the new state has nothing to do. The old state is the parent
not extinct ; it is still there to fulfil its contract duties, and to state.
enjoy its contract rights. The new state, on the other hand, is
an entirely fresh being. It neither is, nor does it represent, the
person with whom other states have contracted; they may have
no reason for giving it the advantages which have been accorded
to the person with whom the contract was made, and it would
be unjust to saddle it with liabilities which it would not have
by way of lease, because the territory so acquired can at least be invested
with a neutral character at the will of the Congo state, and probably must
of necessity be considered, for such time as the connexion lasts, to be a
temporary extension of the neutral territory.
92 COMMENCEMENT OF THE
JPART II
CHAP. I
Local
rights and
obliga-
tions, &c.
are trans-
ferred to
the new
state.
accepted on its own account. What is true as between the new
state and foreign powers, is true also as between it and the old
state. From the moment of independence all trace of the joint
life is gone. Apart from special agreement no survival of it is
possible, and the two states are merely two beings possessing no
other claims on one another than those which are conferred by
the bare provisions of international law. And as the old state
continues its life uninterruptedly, it possesses everything be-
longing to it as a person, which it has not expressly lost; so
that property, and advantages secured to it by treaty, which are
enjoyed by it as a personal whole, or by its subjects in virtue of
their being members of that whole, continue to belong to it.
On the other hand, rights possessed in respect of the lost
territory, including rights under treaties relating to cessions of
territory and demarcations of boundary, obligations contracted
with reference to it alone, and property which is within it, and
has therefore a local character, or which, though not within it,
belongs to state institutions localised there, transfer themselves
to the new state person. Conversely, of course, the old state
person remains in sole enjoyment of its separate territory,
and of all local rights connected with it.
Thus treaties of alliance, of guarantee, or of commerce are not
binding upon a new state formed by separation, and it is not
liable for the general debt of the parent state; but it has the
advantages of privileges secured by treaty to its people as
inhabitants of its territory or part of it, such as the right of
navigating a river running through other countries upwards or
downwards from its own frontier; it is saddled with local
obligations, such as that to regulate the channel of a river, or to
levy no more than certain dues along its course ; and local debts,
whether they be debts contracted for local objects, or debts
secured upon local revenues, are binding upon it. If debts are
secured upon special revenues derived from both sections of the
old state—if, for example, they are secured upon the customs or
excise, they are evidently local to the extent that the hypothecated
EXISTENCE OF A STATE, ETC. 93
revenues are supplied by the two sections respectively; they
must therefore be proportionately divided. Property which
becomes transferred by the fact of separation consists in domains,
public buildings, museums and art collections, communal lands,
charitable and other endowments connected with the state, and
the like. When a portion of the lands belonging to a commune
or to an endowment lies without the boundary of the new state
it is only considered that a right to the value of the property is
transferred. Convenience may dictate expropriation from the
property itself, and it is only then necessary to pay its full value
by way of compensation".
* Bluntschli, $$47, 55–60; Fiore, Trattato di Diritto Internazionale Pub-
blico, $$ 346–56.
The subject is one upon which writers on international law are generally
unsatisfactory. They are incomplete, and they tend to copy one another.
Grotius, for example, says that if a state is split up “anything which may
have been held in common by the parts separating from each other must
either be administered in comimon or be rateably divided ; ' De Jure Bełłi
et Pacis, lib. ii. c. ix. § Io. Kent (Comm. i. 25) does little more than para-
phrase this in laying down that “if a state should be divided in respect to
territory, its rights and obligations are not impaired; and if they have not
been apportioned by special agreement, those rights are to be enjoyed, and
those obligations fulfilled, by all the parts in common.’ Phillimore quotes
Grotius and Kent, and adds, “if a nation be divided into various distinct
Societies, the obligations which had accrued to the whole, before the division,
are, unless they have been the subject of a special agreement, rateably
binding upon the different parts.’ i. § cxxxvii. It is difficult to be sure
Whether these writers only contemplate the rare case of a state so splitting
up that the original state person is represented by no one of the fractions
into which it is divided, or whether they refer also to the more common case
of the loss of such portion of the state territory and population by secession
that the continuity of the life of the state is not broken. If the former
is their meaning, their doctrine is correct so far as property and monetary
obligations are concerned ; if not, it would be hard to justify their language
even to this extent. No doubt the debt of a state from which another
separates itself ought generally to be divided between the two proportionately
to their respective resources as a matter of justice to the creditors, because
it is seldom that the value of their security is not affected by a diminution
of the state indebted to them; but the obligation is a moral, not a legal one.
The fact remains that the general debt of a state is a personal obligation.
The case also of the creation of a new state out of part of an old one is not
distinguishable, so far as the obligation to apportion debts is concerned, from
that of the cession of a province by one state to another. When the latter
occurs, at least as the result of conquest, it is not usual to take over any part
PART II
CHAP. I
94. COMMENCEMENT OF THE
PART II
CHAP. I
Case of
British
American
fisheries.
Some controversies have occurred which illustrate the forms in
which questions arising out of the application of the above
principles may present themselves. Of these the following may
be instanced. Upon the separation of the United States from
Bngland the treaty of 1783 secured to the subjects of the former
certain fishery privileges upon the coasts of Newfoundland, Nova
Scotia, and Labrador. After the war of 1812 it was a matter
of dispute whether the article dealing with these privileges was
merely regulatory, or whether it operated by way of grant, its
effect being in the one case merely suspended by war, while in
the other the article was altogether abrogated. On the part of
the United States it was argued that the treaty of I783
recognised the right of fishery, of which it is the subject, as a
right which, having before the independence of the United States
been enjoyed in common by all the inhabitants of the British
possessions in North America as attendant on the territory,
remained attendant after the acquisition of independence upon
the portion of that territory which became the United States, in
common with that which still lay under the dominion of England.
In other words, it was denied that the separation of a new state
from an old one involves the loss, on the part of the inhabitants
of the territory of the new state, of local rights of property
within the territory remaining to the old state. On the contrary,
the right to a common enjoyment by the two states, after
of the general debt of the state ceding territory. The case of Belgium, which
took over a portion of the Netherlands debt, is scarcely in point. The treaty
of 1839 (De Martens, Nouv. Rec. xvi. 782), by which the division of the debt
was effected, was part of a general settlement of the countries in question,
made at the dictation of Europe with the view of dealing with all the interests
concerned in the most equitable and advantageous manner, and not with the
bare object of enforcing law. The true rule is recognised by Halleck (i. 76),
who distinguishes the case of a state which is so split up as to lose its
identity from that of a state which suffers dismemberment without losing
its identity. “Such a change,” he says, “no more affects its rights and duties,
than a change in its internal organisation, or in the person of its rulers.
This doctrine applies to debts due to, as well as from, the state, and to its
rights of property and treaty obligations, except so far as such obligations
may have particular reference to the revolted or dismembered territory or
province.”
ExISTENCE OF A STATE, ETC. 95
separation, of property, irrespectively of its local position, which
had previously been enjoyed in common by the subjects of the
original state, was expressly asserted. By England, on the
other hand, it was as distinctly maintained ‘ that the claim of
an independent state to occupy and use at its discretion any part
of the territory of another without compensation or corre-
sponding indulgence, cannot rest on any other foundation than
conventional stipulation *. The controversy was put an end to
by a treaty in 1818, in which the indefensible American preten-
sion was abandoned, and fishery rights were accepted by the
United States as having been acquired by contract”.
PART II
CHAP. I
A like collision of opinion incidentally occurred in 1854 during Of the
the disputes between England and the United States with
reference to the protectorate exercised by the former power over
the Mosquito shore. It was at issue whether a protectorate
exercised during part of the eighteenth century could be re-
established after the separation of Nicaragua from Spain, or
whether Nicaragua inherited certain rights stipulated for in
treaties with Spain. In illustration of the arguments of the
United States reference was made to a treaty between Great
Britain and Mexico, and it was urged generally that ‘it would
be a work of supererogation to attempt to prove, at this period of
the world’s history, that these provinces having, by a successful
revolution, become independent states, succeeded within their
respective limits to all the territorial rights of Spain.” Lord
Clarendon on his part replied that the clause in the treaty with
Mexico stipulating that British subjects shall not be disturbed
in the ‘ enjoyment and exercise of the rights, privileges, and
immunities’ previously enjoyed within certain limits laid down
in a convention with Spain of the year 1786, which had been
* British and Foreign State Papers, vii. 79-97.
* This was frankly admitted by Mr. Dana, as agent for the United States,
before the Halifax Fishery Commission in 1878. “The meaning of the treaty,”
he said, is ‘that having claimed “the right of fishing” as a right inherent
in us, we no longer claimed it as a right which cannot be taken away from
us but at the point of the bayonet.” Parl. Papers, North America, No. 1,
I878, p. 183.
Mosquito
protecto-
rate.
96 COMMENCEMENT OF THE .
PART II referred to by Mr. Buchanan as proving the adhesion of Great
** Britain to the above principle, proves on the contrary that
* Mexico was not considered as inheriting the obligations or
rights of Spain, as otherwise a special stipulation would not be
necessary". The contention of Lord Clarendon was evidently
well founded. Mr. Buchanan’s general statement was accurate;
but the very fact that Mexico succeeded to all the territorial
rights of Spain, and consequently to full sovereignty within the
territory of the Republic, shows that it could not be burdened by
limitations on sovereignty to which Spain had chosen to consent.
It possessed all the rights appertaining to an independent state,
disencumbered from personal contracts entered into by the state
from which it had severed itself.
A war which results in the formation of a new state may be
terminated either with or without a treaty of partition and
boundary. In the latter case the territory of the newly erected
state community is defined by the space which it actually
possesses and administers. In the former case the limits indi-
cated by the treaty, if distinctly laid down, become of course the
Rights of indisputable frontiers. Sometimes however the treaty is in-
. ºnt determinate, either from faults of expression or from imperfect
º knowledge, on the part of the negotiators, of the country
º through which the line of demarcation is run; disputes thus
disputed arise as to the ownership of portions of territory; and it becomes
** a question which, or whether either, of the two shall occupy and
administer the disputed lands until their respective rights shall
have been ascertained or some arrangement shall have been come
to. When in such cases one of the parties is in actual possession
at the date of the conclusion of the treaty it must be allowed so
far to exercise sovereignty within the territory as is requisite for
the due government of the latter, the two states being in the
same position relatively to one another, to the extent that the
meaning of the treaty is doubtful, as if no treaty existed.
When, on the other hand, neither party is in actual possession at
* De Martens, Nouv. Rec. Gén. ii. 21.0–6.
ExISTENCE OF A STATE, ETC. 97.
the date of the conclusion of the treaty, no rights of sovereignty PART II
can be exercised by one of the two except with the consent of the * *
other. A treaty of partition and boundary made between a
mother country and a seceding part operates, not as a treaty of
cession, but as an acknowledgment that certain territory is in
fact in the possession of the state which has succeeded in
establishing itself. Were it otherwise, the absurdity would
present itself that a new state community would have no title to
its territory until a treaty of partition and boundary was made,
notwithstanding that the conclusion of a treaty with it involves
a previous acknowledgment that it is a state, and consequently
that it is already in legal possession of its territory. Hence
disputed territory is not attributed to the mother country up to
the moment at which it is shown to have been conveyed to the
seceded state ; the two states have equal rights as thoroughly as
if they were of independent origin. -
Much of the above doctrine came under discussion during The Maine
the Maine boundary dispute between England and the United boundary.
States. At the peace of 1783 the limits of Maine were in-
adequately fixed, and a considerable tract of country was claimed
under the terms of the treaty by both the signatory powers.
Part of this may have been settled before 1783, part remained
unoccupied in 1827 when the discussion in question arose, and
part was settled at different times from 1790 onwards. It was
admitted by the American government that Great Britain had
a right to a ‘de facto jurisdiction * over territory, if any such
existed, which was inhabited before 1783; and the English
government refrained, though evidently as a matter of concession
and not of duty, from exercising proprietary or sovereign rights
within the unoccupied territory; the discussion consequently
turned only on the proper mode of dealing with the portion
settled later than 1790. It was argued by Lord Aberdeen that
before the independence of the United States the country in
dispute was under British sovereignty as well as the adjoining
province, to which by the contention of England it was attached;
HALL H
98 COMMENCEMENT OF THE
PART II
CHAP. I
Effects of
cession
upon the
rights, &c.
of the
state
ceding,
and that as the claim of the United States rested on a cession
followed by no actual delivery, the national character of the
territory could not have undergone any change since a period
antecedent to the treaty of 1783. ‘It is consistent,” he added,
‘with an acknowledged rule of law that when a doubt” as to
the right of sovereignty ‘exists, the party who has once clearly
had a right and who has retained actual possession shall continue
to hold it until the question at issue may be decided.” On behalf
of the United States it was denied that the title to such territory
as might be found to have been indicated by the treaty of 1783
was given by that treaty; the treaty confirmed but did not
create ; the title of the United States was pre-existent and,
it was alleged, was based upon anterior rights possessed ‘ by that
portion of His Majesty's subjects which had established itself”
in the country comprised within the territory of the United
States". The latter part of the American position was untenable;
but it was unnecessary; and the United States were certainly
justified in their general contention that territory which was
only constructively in possession of England before the treaty
of 1783 could not be brought under its actual sovereignty so
long as the validity of its title was in litigation.
When part of a state is separated from it by way of cession,
the state itself is in the same position with respect to rights,
obligations, and property as in the case of acquisition of inde-
pendence by the separated portion”.
* British and Foreign State Papers, 1827–8, 490–585.
* There are one or two instances in which a conquering state has taken over
a part of the general debt of the state from which it has seized territory.
Thus in 1866 the debt of Denmark was divided between that country and
Slesvig-Holstein (De Martens, Nouv. Rec. Gén. xvii. ii. 477); and in the
same year Italy, by convention with France, took upon itself so much of the
Papal debt as was proportionate to the revenues of the Papal provinces which
it had appropriated. Lawrence, Commentaires sur les Eléments, &c. de
Wheaton, i. 214. It may be doubted whether any other like cases have
occurred. [After the war of 1898 the United States refused to assume any
part of the Cuban debt or give up the Government Funds in the Cuban State
Banks.] -
Fiore (§ 351 and note) and other writers confuse local with general debt,
EXISTENCE OF A STATE, ETC. 99
To a certain extent also the situation of the separated part PART II
is identical with that which it would possess in the case of º
independence. It carries over to the state which it enters the state ac-
g º g • * * e quiring
local obligations by which it would under such circumstances territory.
have been bound, and the local rights and property which it
would have enjoyed. In other respects it is differently placed.
In becoming incorporated with the state to which it is ceded
it acquires a share in all the rights which the former has as
a state person, and it is bound by the parallel obligations. Thus,
for instance, the provisions of treaties between a state and foreign
powers, including among the latter the state which has ceded
territory acquired by the former, are extended to provinces
obtained by cession. t
When a state ceases to exist by absorption in another state, Effects of
the latter in the same way is the inheritor of all local rights, *:::,
obligations, and property; and in the same way also the pro- “.
visions of treaties which it has concluded are extended to affect
the annexed territory. Thus after the incorporation of Naples
in the kingdom of Italy it was decided by the Courts both of
Italy and France that a treaty of 1760 between France and
Sardinia relative to the execution of judgments of the tribunals
of the one power within the territory of the other was applicable
to the whole Italian state. There is this difference however
between the effect of acquisition by cession and by absorption
of an entire state, that in the latter case, the annexing power
being heir to the whole property of the incorporated state, it is
liable for the whole debts of the latter, and not merely for those
contracted for local objects or secured upon special revenues;
unless indeed it is considered that local debt and general debt
are only different words for the same thing when a state loses
its separate existence and is taken bodily in to form a member
of another state.
and elevate into a legal rule the admitted moral propriety of taking over,
under treaty, the general debt in the proportion of the value of the territory
acquired. -
* ... e º "
H 2.
PART II
CHAP. II
In what
the terri-
torial pro-
perty of
a state
consists.
Modes of
acquiring
it.
CHAPTER II
TERRITORIAL PROPERTY OF A STATE
THE territorial property of a state consists in the territory
occupied by the state community and subjected to its sovereignty,
and it comprises the whole area, whether of land or water,
included within definite boundaries ascertained by occupation,
prescription, or treaty, together with such inhabited or unin-
habited lands as are considered to have become attendant on the
ascertained territory through occupation or accretion, and, when
such area abuts upon the sea, together with a certain margin
of water.
A state may acquire territory through a unilateral act of its
own by occupation, by cession consequent upon contract with
another state or with a community or single owner, by gift,
by prescription through the operation of time, or by accretion
through the operation of nature.
When a state does some act with reference to territory un-
appropriated by a civilised or semi-civilised state, which amounts
to an actual taking of possession, and at the same time indicates
an intention to keep the territory seized, it is held that a right
is gained as against other states, which are bound to recognise
the intention to acquire property, accompanied by the fact of
possession, as a sufficient ground of proprietary right. The title
which is thus obtained, and which is called title by occupation,
being based solely upon the fact of appropriation, would in
strictness come into existence with the commencement of effective
control, and would last only while it continued, unless the terri-
tory occupied had been so long held that title by occupation had
become merged in title by prescription. Hence occupation in
its perfect form would suppose an act equivalent to a declaration
that a particular territory had been seized as property, and a
Occupa-
tion.
* * * ~ *
TERRITORIAL PROPERTY OF A STATE TOI
subsequent continuous use of it either by residence or by taking PART II
from it its natural products. CHAP. II
States have not however been content to assert a right of
property over territory actually occupied at a given moment,
and consequently to extend their dominion pari passu with the
settlement of unappropriated lands. The earth-hunger of colo-
mising nations has not been so readily satisfied; and it would
besides be often inconvenient and sometimes fatal to the growth
or perilous to the safety of a colony to confine the property of
an occupying state within these narrow limits. Hence it has
been common, with a view to future effective appropriation,
to endeavour to obtain an exclusive right to territory by acts
which indicate intention and show momentary possession, but
which do not amount to continued enjoyment or control; and
it has become the practice in making settlements upon con-
tinents or large islands to regard vast tracts of country in which
no act of ownership has been done as attendant upon the appro-
priated land".
In the early days of European exploration it was held, or at Effect of
least every state maintained with respect to territories discovered tº.
by itself, that the discovery of previously unknown land conferred !.
an absolute title to it upon the state by whose agents the dis-settle-
covery was made. But it has now been long settled that the ment.
bare fact of discovery is an insufficient ground of proprietary
right. It is only so far useful that it gives additional value
to acts in themselves doubtful or inadequate. Thus when an
unoccupied country is formally annexed an inchoate title is
acquired, whether it has or has not been discovered by the state
annexing it ; but when the formal act of taking possession is
not shortly succeeded by further acts of ownership, the claim of
a discoverer to exclude other states is looked upon with more
respect than that of a mere appropriator, and when discovery
* Some writers (e.g. Klüber, § 126; Ortolan, Domaine International, 45–7 ;
Bluntschli, §§ 278, 281) refuse to acknowledge that title can be acquired
without continuous occupation, but their doctrine is independent of the facts
of universal practice.
102 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
How an
inchoate
title so
acquired
may be
kept alive.
has been made by persons competént to act as agents of a state
for the purpose of annexation, it will be presumed that they
have used their powers, so that in an indirect manner discovery
may be alone enough to set up an inchoate title.
An inchoate title acts as a temporary bar to occupation by
another state, but it must either be converted into a definitive
title within reasonable time by planting settlements or military
posts, or it must at least be kept alive by repeated local acts
showing an intention of continual claim. What acts are
sufficient for the latter purpose, and what constitutes a reason-
Occupa-
tion must
be a state
act.
able time, it would be idle to attempt to determine. The effect
of acts and of the lapse of time must be judged by the light
of the circumstances of each case as a whole. 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 settle-
ments within such time as, allowing for accidental circumstances
or moderate negligence, might elapse before a force or a colony
were sent out to some part of the land intended to be occupied;
but that in the course of a few years the presumption of per-
manent intention afforded by such acts has died away, if they
stood alone, and that more continuous acts or actual settlement
by another power became a stronger root of title. On the other
hand, when discovery, coupled with the public assertion of
ownership, has been followed up from time to time by further
exploration or by temporary lodgments in the country, the exist-
ence of a continued interest in it is evident, and the extinction
of a proprietary claim may be prevented over a long space of
time, unless more definite acts of appropriation by another state
are effected without protest or opposition.
In order that occupation shall be legally effected it is neces-
sary, either that the person or persons appropriating territory
shall be furnished with a general or specific authority to take
possession of unappropriated lands on behalf of the state, or
TERRITORIAL PROPERTY OF A STATE 103
else that the occupation shall subsequently be ratified by the
state. In the latter case it would seem that something more
than the mere act of taking possession must be done in the first
instance by the unauthorised occupants. If, for example, colo-
mists establishing themselves in an unappropriated country declare
it to belong to the state of which they are members, a simple
adoption of their act by the state is enough to complete its title,
because by such adoption the fact of possession and the assertion
of intention to possess, upon which the right of property by
occupation is grounded, are brought fully together. But if an
uncommissioned navigator takes possession of lands in the name
of his sovereign, and then sails away without forming a settle-
ment, the fact of possession has ceased, and a confirmation of his
act only amounts to a bare assertion of intention to possess,
which, being neither declared upon the spot nor supported by
local acts, is of no legal value. A declaration by a commissioned
officer that he takes possession of territory for his state is a state
act which shows at least a momentary conjunction of fact and
intention; where land is occupied by unauthorised colonists,
ratification, as has been seen, is able permanently to unite the
two ; but the act of the uncommissioned navigator is not a state
act at the moment of performance, and not being permanent in
its local effects it cannot be made one afterwards, so that the
two conditions of the existence of property by occupation,
the presence of both of which is necessary in some degree, can
never co-exist ".
* On the conditions of effective occupation, see Wattel, liv. i. ch. xviii. §§ 207,
208; De Martens, Précis, $ 37; Phillimore, i. §§ ccxxvi-viii; Twiss, i. §§ III,
II4, I2O ; Twiss, The Oregon Question, 165 and 334 ; Bluntschli, §§ 278–9 ;
and especially the documents containing the arguments used internationally
in the controversies mentioned below.
Obviously the acts of a mercantile company, such, e.g. as the East African
Company, acting under a charter enabling it to form establishments and
exercise jurisdiction in an uncivilised country are to be classed in point of
competence with those of commissioned agents of the state.
It must depend upon circumstances whether the effect of such acts is to set
up full rights of property and sovereignty, or only those which are involved
in a protectorate. -
PART II
CHAP. II
104 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Area af-
fected by
an act of
Occupa-
tion.
There is no difference of opinion as to the general rule under
which the area affected by an act of occupation should be deter-
mined. A settlement is entitled, not only to the lands actually
inhabited or brought under its immediate control, but to all
those which may be needed for its security, and to the territory
which may fairly be considered to be attendant upon them.
When an island of moderate size is in question it is not difficult
to see that this rule involves the attribution of property over
the whole to a state taking possession of any one part. But its
application to continents or large islands is less readily made.
Settlements are usually first established upon the coast, and
behind them stretch long spaces of unoccupied country, from
access to which other nations may be cut off by the appropriation
of the shore lands, and which, with reference to a population
creeping inwards from the sea must be looked upon as more
or less attendant upon the coast. What then in this case is
involved in the occupation of a given portion of shore? It may
be regarded as a settled usage that the interior limit shall not
extend further than the crest of the watershed"; but the lateral
frontiers are less certain. It has been generally admitted that
occupation of the coast carries with it a right to the whole
territory drained by the rivers which empty their waters within
* A right of indefinite interior extension is sometimes said to have been
asserted by the different nations who colonised North America. According
to Mr. Calhoun they ‘claimed for their settlements usually specific limits
along the coast, and generally a region of corresponding width extending
across the entire continent to the Pacific Ocean,’ and England is alleged to
have maintained the pretension against France before the Peace of 1763.
Mr. Calhoun's allegation was however made, as was a like statement by
Mr. Gallatin, in order to fortify the claim of the United States to the country
west of the Rocky Mountains ; the original papers connected with the
negotiations of I761–2, in so far as they are printed in Jenkinson’s Treaties
(vol. iii), give no indication that any such claim as that mentioned was made
by England; and Sir Travers Twiss (The Oregon Question, 249) says that ‘it
does not appear that any conflicting principles of international law were
advanced by the two parties.’ I am not aware that any other dispute had
occurred in the course of which the principle could have been affirmed.
Probably therefore the statement has no better ground than the fact that
English colonial grants were made without interior limits—a fact which by
itself is of no international value. +
TERRITORIAL PROPERTY OF A STATE 105
its line; but the admission of this right is perhaps accompanied PART II
by the tacit reservation that the extent of coast must bear some “”
reasonable proportion to the territory which is claimed in virtue
of its possession. It has been maintained, but it can hardly be
conceded, that the whole of a large river basin is so attendant
upon the land in the immediate neighbourhood of its outlet that
property in it is acquired by merely holding a fort or settlement
at the mouth of the river without also holding lands to any
distance on either side. Again, it is not considered that occu-
pation of one bank of a river necessarily confers a right to the
opposite bank, still less to extensive territory beyond it, so that
if a state appropriates up to a river and stops there, its presence
will not debar other states from occupying that portion of the
basin which lies on the further side; nor even, though there
is a presumption against them, will they be debarred as of course
from occupying the opposite shore. When two states have
settlements on the same coast, and the extent along it of their
respective territories is uncertain, it seems to be agreed that the
proper line of demarcation is midway between the last posts on
either side, irrespectively of the natural features of the country'.
Restrictive custom goes no further than this; but in the Necessary
circumstances of the present day, it is plain that custom is not ºn.
needed to uphold a further limitation in the right of appropriating ...".
tº to modern
territory as attendant upon a settlement. During the older days :
S
of colonial occupation, in countries where questions of boundary an CeS.
arose, waterways were not merely the most convenient, they
were the necessary, means of penetrating into the interior. It
was reasonable therefore that the power which could deny access
to them should, as a general rule, have preferential rights over
the lands which they traversed. But in Africa, which is the
only portion of the earth’s surface where this part of the law
of occupation still finds room to assert itself, large tracts of
country can be more easily reached over land, especially by
* Phillimore, i. §§ ccxxxii-viii; Twiss, i. §§ 115-9, 124; and The Oregon
Question, 249.
i
º:
106 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Illustra-
tions of
the fore-
going doc-
trines.
Texas.
ge:
means of railways, than along the river courses, and the great
river basins are so arranged that a final division of the continent
could hardly be made in accordance with their boundaries.
When the third edition of this work was passing through the
press in the end of 1889, it already seemed safe to point out
as a certainty ‘ that the tide of commerce, carrying with it
trading posts, belonging here to one nation and there to another,
and probably even a tide of European settlement, will have
swept over vast spaces of the interior by roads independent of
states holding the nearest coasts, or mouths of river basins, long
before these states have been able to extend their jurisdiction over
the territory thus brought under European influence or control.
There is no probability that the interests of trade and colonisation
will be subordinated to a pedantic adherence to the letter of
the ancient rule.’ The forecast of 1889 was not long in be-
coming an accomplished fact. Many of the recent appropriations
have been carried out in the anticipated manner; and if the
little which remains to be seized is divided in conformity with
the outlines of river basins, it will rather be because those basins
happen to lend themselves to effective occupation by a given
power, than from respect to a principle of law.
The manner in which the foregoing doctrines have been used
in international controversies may be illustrated by the following
examples.
After the cession of Louisiana to the United States by France
in 1803 a dispute arose between the former power and Spain as
to the boundaries of the ceded territory, which according to the
United States extended in a westerly direction to the Rio
Grande, and in the opinion of Spain reached only to a line
drawn between the Red River and the Sabine. The facts of the
case were as follows. Between the years 1518 and 1561 the
northern shores of the Gulf of Mexico were gradually explored
by Spanish officers, but no settlements were made upon them,
and they were very imperfectly known, when in 1681–2 a.
French officer named La Salle succeeded in descending the Ohio
TERRITORIAL PROPERTY OF A STATE 107
and the Mississippi to the ocean, and took formal possession of PART II
the country at the mouth of the latter river in the name of his “ ”
sovereign. On his return it was determined to make a per-
manent settlement, and in I685 he was sent out in command of
an expedition for the purpose. Being unable to find the entrance
to the Mississippi he coasted along to the Bay of Espiritu Santo",
about four hundred miles further to the west, where a fort was
erected, and held until the garrison was massacred by the
Indians in 1689. In the course of the next year the Spaniards
appeared in the Bay and founded a settlement, which remained
from that time in continuous existence. Gradually, scattered
posts were pushed eastwards and northwards into Texas. The
French on their part did nothing further until 1712, when Louis
XIV, relying on the acts of discovery and appropriation which
had been done by La Salle, granted to Anthony Crozat, by
letters patent, the exclusive commerce of the territory which was
claimed by the French Crown in virtue of those acts, declaring
it to comprehend ‘all the lands, coasts, and islands which are
situated in the Gulf of Mexico, between Carolina on the east
and Old and New Mexico on the west, with all the streams
which empty into the ocean within those limits, and the interior
country dependent on the same.’ A settlement was then made
near the site of New Orleans, and outlying posts were established,
none of which however seem to have been placed in a westerly
direction at a more advanced point than Natchitoches on the
Red River. To watch the post which existed there a Spanish
fort was established in 1714 at a distance of only seven leagues,
and it was kept garrisoned until Touisiana came into the hands
of Spain *, when, being no longer required, it was abandoned.
No colonisation appears to have taken place to the east of the
Rio Colorado, but a line of settlements, of which some were of
considerable size, was formed between the Bay of Espiritu Santo
and the Province of Sonora. The United States, as assignees of
* Called the Bay of St. Bernard by La Salle.
* Louisiana was ceded to Spain in I762, and re-ceded to France in 1800.
&§
*
;
o
&
i
;
108 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Oregon
Territory.
º
Ǻ
:
:
:
the French title, claimed to possess the basin of the Mississippi
by right of discovery and of settlement at its mouth, and the
province of Texas in virtue of occupation of the coast, which, it
was asserted, had been definitively appropriated, by the acts of
La Salle at the mouth of the Mississippi and at the Bay of
Espiritu Santo, and to which a title had been kept alive by the
subsequent establishment of the French posts upon the river.
It was further argued that as the French title became definitive
in 1685 the boundary should run along the Rio Grande, that
river being half-way between Espiritu Santo and the then
nearest Spanish settlement, which, it was argued, lay in the
Province of Panuco. All acts, it was alleged, which had been
done by the Spaniards east of the Rio Grande were acts of
usurpation, and consequently incapable of giving title. The
claim of the United States to the basin of the Mississippi was
not seriously contested, but with respect to Texas it was urged
that the discoveries of Spanish navigators had put Spain in
possession of its coasts before the French landed in the Bay of
Espiritu Santo, that the lodgment effected there by the latter
was merely temporary, and that the long-continued and un-
interrupted subsequent possession of the whole country by Spain
was a better root of title than a prior unsuccessful attempt to
establish herself on the part of France. It was therefore
demanded that the frontier between the two states should be
fixed half-way between the posts which had been permanently
occupied by the French and the Spaniards respectively. Ulti-
mately the boundary was settled very nearly along the line
suggested by Spain, as part of a general scheme of boundary
settlement, under which that country made sacrifices else-
where *.
Another controversy of considerable interest is that which
arose between England and the United States with reference to
the Oregon Territory. In this case the negotiations passed
through two distinct phases, during the earlier of which the
* British and Foreign State Papers, 1817–18.
*
;
TERRITORIAL PROPERTY OF A STATE 109
United States claimed the river basin of the Columbia, while
during the latter they claimed in addition the whole country
northwards to the parallel of 50° 40'. The original claim rested
upon discovery and settlement. In 1792 an American trader
named Gray discovered the mouth of the river Columbia, and
sailed up twelve or fifteen miles, until the channel by which he
entered ceased to be navigable. Some years before, Hegeta, a
Spanish navigator, in passing across the entrance had observed
a strong outflow, and had come to the conclusion that a river
debouched at the spot. A few weeks before Gray entered it,
Captain Vancouver, who was engaged in surveying the coast for
the English government, had noticed the existence of a river,
but thought it too small for his vessels to go into. On hearing
of Gray’s success in entering he returned, and an officer under
his command, after finding the true channel, explored the river
for a hundred miles, and formally took possession of the country
in the King’s name. Gray was uncommissioned; he made no
attempt to take possession of the country on behalf of the
United States, and his discovery, which was only known to his
government through Captain Vancouver’s account, was not
followed up by any act which could give it a national value. In
1811 a trading company of New York established near the mouth
of the river a commercial post, which in 1813 was sold to the
English North-West Company". Upon these facts it was
argued by the American negotiators that Gray effected a dis-
covery, the completeness of which was not diminished by any-
thing which occurred before or after ; that his predecessors had
failed to ascertain the existence of a great river, and that the
subsequent English exploration was simply a mechanical exten-
sion of what had been essentially done by him; that his
discovery vested the basin of the Columbia in the United States;
and that, the land having thus become national property, the
- * Some explorations made by both English and Americans of the various
head waters of the Columbia may be allowed to balance one another. They
were of little importance from a legal point of view.
PART II
CHAP. II
110 TERRITORIAL PROPERTY OF A STATE
establishment of a trading post formed a substantive act of
possession on their part. The English negotiators on the other
hand, besides putting forward a claim by discovery to the whole
coast as against the United States, maintained that the discovery
of the river was a progressive one, and objected that, even were
it not so, the acts of an uncommissioned discoverer, if taken
alone, are incapable of giving title, and that the discovery was
not supported by national acts. In such circumstances the
establishment of a trading post ceased to be of importance.
The negotiations entered upon their second phase after the
conclusion of a boundary treaty between the United States and
Spain in 1819, by which the former power acquired by cession
whatever rights were possessed by the latter to country north of
the forty-second parallel. From the point of view of the law of
occupation this is of minor interest, because the force of the
respective claims depended upon the relative value of two sets of
acts of discovery purporting to be of identical character. The
question at issue was rather one of fact than of law. It was
alleged by the United States that Spain, until it ceded its
rights, had possessed a title to the whole coast through dis-
coveries gradually perfected during two centuries', and by
occupation at various points: while on the part of England it
was contended that the real discovery of the coast had been
effected by Sir Francis Drake in 1579, by Captain Cook in
1778, and during the systematic survey of Vancouver in 1792–4,
and that the two latter officers had taken actual possession. It
need only be remarked that the later contention of the United
States was inconsistent with its original claim. To affirm the
Spanish title was to proclaim the nullity of the title said to have
been conferred by the discoveries of Gray. If the title through
Gray was good, the coast up to the fifty-fourth parallel did not
PART II
CHAP. II
* There is great reason to doubt whether some of the Spanish navigators
who are alleged to have made discoveries along the north-west coast of
America ever existed, and it is certain that the accounts supplied by others
are untruthful. See Twiss's Oregon Question, chap. iv. &
TERRITORIAL PROPERTY OF A STATE 111
belong to Spain; if it did belong to Spain, Gray’s discovery PART II
ſº I CHAP. II
was evidently worthless".
[Since the last edition of this book an important case involving The Vene-
e e * º zuela Hin-
the question of discovery and effective occupation has been sub- i.i.
mitted to a Court of International Arbitration. Territory
comprising 60,000 square miles to the south of the Orinoco and
west of the Essequibo rivers had for upwards of fifty years been
a bone of contention between Great Britain and the Republic of
Venezuela. The latter power claimed as the inheritor of the
Spanish monarchy, from which it had revolted in 1810; while
Great Britain, to whom British Guiana was transferred by
Holland in 1814, had succeeded to all the rights of the Dutch.
The boundaries of the territory thus acquired had never been
delimited until 1841, when the British Government employed
a Prussian engineer, Sir Robert Schomburgk, for that purpose.
The ‘Schomburgk line' was the consequence, extending west-
ward and southward from the entry of the Barima river into the
Orinoco, along the banks of the Amocura, Cuyuni, Cotinga, and
Takutu rivers, and following their course down to the basin of
the Essequibo and the northern frontier of Brazil. It was based
on an examination of the historical evidence as to occupation, and
of the extent to which the Indian population had been effected
by Dutch influence, together with a consideration of the natural
features existing on the edge of the disputed territory. Vene-
Zuela, alarmed at the prospect of losing control over the mouth
of the Orinoco, revived the Spanish claim to the whole territory
* Parl. Papers, lii. 1846, Oregon Correspondence. In the latter part of the
discussion the English government relied also upon the Convention of the
Escorial, usually called the Nootka Sound Convention, by which it maintained
that Spain had made an acknowledgment of the existence of a joint right of
occupancy on the part of England in those portions of North-West America
which were not already occupied. The United States contested the accuracy
of the construction placed upon the Convention by England. As the dispute
so far as it turned upon this point has no bearing upon the law of occupation,
it is unnecessary to go into it. For the facts of the case in its later aspects
and for the English and American views, see De Garden, Histoire des Traités
de Paix, v. 95; Parl. Papers, lii. 1846, Oregon Corresp. 34 and 39 ; Twiss,
Oregon Question, 379. For the Convention, see De Martens, Rec. iv. 493.
112 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
of Guiana so far as it had not been directly ceded to Holland by
treaty.
The controversy was allowed to drag on till the sudden inter-
vention of the United States in December 1895, on the plea that
the Monroe doctrine was involved, brought matters to a crisis.
In 1897 a treaty of arbitration was concluded between Great
Britain and Venezuela, but the United States assumed the con-
duct of the case on behalf of the latter, choosing her counsel and
arbitrators from their own Bar and Bench exclusively.
It was urged before the Arbitration Court, on behalf of the
prior claim of Spain, that Columbus was alleged to have sighted
the mainland off the mouths of the Orinoco in 1498, and that
in 1591 Antonio de Berrio, in his quest for the fabled El Dorado,
had certainly sailed down that river from west to east, founding
Santo Thomé on his way: from this date it was contended that
the whole of Guiana—which, owing to the intercommunication of
tributaries of the Amazon and Orinoco, was treated by the early
explorer as an island—had been incorporated in the Spanish
Empire. It could not be shown that during the 17th century any
Spaniard had set foot within the territory claimed for Venezuela,
but between 1724 and 1750 a certain number of Capuchin Mission
stations had been founded to the north-west of the Cuyuni river,
from which occasional raiding expeditions were made against the
Tutch and the Indians, while it was admitted that Spanish
traders had journeyed down the Cuyuni and along the waterways
within the coast line. The Spanish title thus rested on the original
discovery of Guiana, perfected by the intention to occupy the
whole, and actual occupation of a part of the country discovered.
Of effective or permanent occupation to the east of Schomburgk's
line no instance could be made out.
On the other hand it was alleged that the Dutch since the end
of the 16th century had maintained their right to trade to the coast
of Guiana between the Orinoco and the Amazon, occupying the
coast from the Corentin to the Orinoco, and exercising control on
all the rivers flowing into the Atlantic from the Corentin to the
TERRITORIAL PROPERTY OF A STATE 113
Amakuru. As early as I623 they began to establish settlements PART II
between the Corentin and the Orinoco, which were formally CHAP. II
confirmed to them by the Treaty of Munster. From that time
down to the cession of British Guiana to Great Britain the Dutch
had continually extended their settlements into the interior. They
exercised a protectorate over the Caribs and other warlike Indian
tribes, while their trade, under the direction of the West India
Company, was pushed to the banks of the Cuyuni and to the
Orinoco east of Santo Thomé. On these facts Great Britain
claimed that the whole of the disputed territory had been in law
and in fact for more than 200 years in the occupation and under
the control of the Dutch and the British. -
The decision of the Court, published on the 3rd of October
I899, was favourable to Great Britain, and the bulk of the dis-
puted territory was declared to belong to British Guiana. At
two points, however, ‘Schomburgk's line’ was varied : Barima
Point and the actual mouth of the Barima River were given to
Venezuela, and a deviation was made in favour of the same
country by which the boundary line, after reaching the Cuyuni,
was made to stop short before running to the head of that river
and turned down the Wenamu.
The Court, which was unanimous, did not assign the grounds
of its award, and it is unknown what were the exact conclusions
of fact on which it was based. Speaking generally, Great Britain
secured the territory over which Dutch influence and commerce
had extended, though a line was drawn across the Barima in
order to ensure to Venezuela, the south shore of the Orinoco to
its mouth.] -
It will have been observed in these cases, and it will be found tºº,
in most of the older cases in which title rests upon occupation, to change
that the acts relied upon as giving title, previously to the actual; º
plantation of a colony, have been scattered at somewhat wide ""
intervals over a long space of time. Until recently this has been
natural, and indeed inevitable. When voyages of discovery
extended over years, when the coasts and archipelagos lying open
HALL I
II4 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II,
Declara-
tion ad-
opted at
the Berlin
Confer-
€Il C62.
to occupation seemed inexhaustible in their vastness, when states
knew little of what their own agents or the agents of other
countries might be doing, and when communication with
established posts was rare and slow, isolated and imperfect acts
were properly held to have meaning and value. When therefore
it first became worth while to question rights to a given area, or
to dispute over its boundaries, the tests of effective occupation
were necessarily lax. But of late years a marked change has
occurred. Except in some parts of the interior of Africa, there
are few patches of the earth’s surface the ownership of which
can be placed in doubt. With the restriction of the area of
possible occupation the desire to secure what remains has become
keener. At the same time the difficulties which often stood in
the way of continuity of occupation have vanished before im-
proved means of communication. A tendency has consequently
declared itself to exact that more solid grounds of title shall be
shown than used to be accepted as sufficient.
The most notable evidence of this tendency is afforded by the
declaration adopted at the Berlin Conference of 1885. By that
declaration Austria, Belgium, Denmark, France, Germany, Great
Britain, Italy, the Netherlands, Portugal, Russia, Spain, Sweden
and Norway, Turkey, and the United States agreed that ‘any
power which henceforth takes possession of a tract of land on
the coasts of the African Continent outside of its present posses-
sions, or which being hitherto without such possessions shall
acquire them, as well as the Power which assumes a Protectorate
there, shall accompany the respective act with a notification 1
thereof, addressed to the other Signatory Powers of the present
Act, in order to enable them, if need be, to make good any claims
of their own,' and that ‘the Signatory Powers of the present Act
recognise the obligation to insure the establishment of authority
in the regions occupied by them on the coasts of the African Con-
* At least eleven notifications, dealing in eight cases with new acquisitions,
and in the remaining three cases with delimitations of territory or of spheres
of influence, have been made in accordance with this provision.
TERRITORIAL PROPERTY OF A STATE 115
tinent sufficient to protect existing rights, and as the case may
be, freedom of trade and transit under the conditions agreed
upon ".” In other words, while ancient grounds of title are left
to be dealt with under the old customary law, old claims of title
if not fully established under that law, and new titles, whether
acquired by occupation of unclaimed territory, or through the
inability of another state to justify a competing claim, must for
the future be supported by substantial and continuous acts of
jurisdiction. The declaration, it is true, affects only the coasts
of the Continent of Africa; and the representatives of France
and Russia were careful to make formal reservations directing
attention to this fact; the former, especially, placing it on
record that the island of Madagascar was excluded. Neverthe-
less an agreement, made between all the states which are likely
to endeavour to occupy territory, and covering much the largest
spaces of coast which, at the date of the declaration, remained
unoccupied in the world, cannot but have great influence upon
the development of a generally binding rule”.
It is to be noted that as the declaration applies only to the
coasts of Africa, all questions arising out of interior extensions
have to be decided, even as regards that continent, by the help
of the customary law. Elsewhere that law naturally remains
for the present in full force 8.
* General Act of the Berlin Conference, Arts. 34, 35. Parl. Papers, Africa,
No. 4, 1885. -
* France on taking possession of the Comino Islands, and England with
regard to Bechuana Land, have already made notifications which were not
obligatory under the Berlin Declaration. These notifications were however
evidently made from motives of convenience and not with a view of estab-
lishing a principle ; France having placed upon record the reservations
mentioned above, and England not having notified, at a later date, her
assumption of a protectorate over the Island of Socotra.
* Holtzendorff (1887, Handbuch, ii. § 55) is at least premature in saying
that “Der grundsätzlich entscheidende Gesichtspunkt ist dieser: kein Staat
kann durch einen Occupationsact mehr Gebiet ergreifen, als ermit seinen
effectiven Herrschaftsmitteln an Ort und Stelle standig in Friedenszeiten Zu
regieren vermag.” The strict application of this principle would deprive
Germany of the larger part of the territory which she claims in South-
Western Africa and New Guinea. Prince Bismarck's conception of the
customary law is shown by an expression of wish uttered by him at the
PART II
CHAP. II
I 2.
116 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Abandon-
ment of
territory
acquired
by occupa-
tion.
When an occupied territory is definitively abandoned, either
voluntarily or in consequence of expulsion by savages or by a
power which does not attempt to set up a title for itself by
conquest, the right to its possession is lost, and it remains open
to occupation by other states than that which originally occupied
it. But when occupation has not only been duly effected,
but has been maintained for some time, abandonment is not
immediately supposed to be definitive. If it has been voluntary,
the title of the occupant may be kept alive by acts, such as the
assertion of claim by inscriptions, which would be insufficient to
confirm the mere act of taking possession; and even where the
abandonment is complete, an intention to return must be
presumed during a reasonable time. If it has been involuntary,
the question whether the absence of the possessors shall or shall
not extinguish their title depends upon whether the circumstances
attendant upon and following the withdrawal suggest the
intention, or give grounds for reasonable hope, of return.
Where intention in this case is relied upon, it is evident that, as
abandonment was caused by the superior strength of others who
might interfere with return, a stronger proof of effective intention
must be afforded than on an occasion of voluntary abandonment,
and that the effect of a mere claim, based upon the former
possession, if valid at all, will soon cease.
In 1639 Santa Lucia was occupied by an English colony,
which was massacred by the Caribs in the course of 1640. No
attempt was made to recolonise the island during the following
ten years. In 1650 consequently the French took possession of
Case of
Santa,
Lucia ;
opening of the Berlin Conference. “Pour qu'une occupation soit considérée
comme effective, il est à désirer que l'acquéreur manifeste, dans un délai
raisonnable, par des institutions positives, la volonté et le pouvoir d'y exercer
ses droits et de remplir les devoirs qui en résultent” (Parl. Papers, Africa,
No. 4, 1885, p. 3). What M. Holtzendorff lays down as the existing law is to
him an object of aspiration.
Since the signature of the Berlin Declaration the governments of Great
Britain and Germany by a Convention of the 5th March, 1885 (Parl. Papers,
Spain, No. 1, 1885), have expressly recognised the sovereignty of Spain “over
the places effectively occupied, as well as over those places not yet occupied,
of the Archipelago of Sulu.”
TERRITORIAL PROPERTY OF A STATE 117
it as unappropriated territory. In 1664 they were attacked by PART II
Lord Willoughby and driven into the mountains, where they “*”
remained until he retired three years later, when they came
down and reoccupied their lands. Whether they died out does
not appear, though probably this was the case, for at the Treaty
of Utrecht Santa Lucia was viewed as a “neutral island’ in the
possession of the Caribs. The French however seem to have
considered their honour as being involved in the ultimate
establishment of their claim. During the negotiations which led
to the peace of 1763 they attached importance to the acquisition
of the island, and by the terms of that peace it was ultimately
assigned to them. There can be little doubt, considering the
shortness of the time during which the English colony had
existed, and the length of the period during which no attempt
was made to re-establish it, that the French were justified in sup-
posing England to have acquiesced in the results of the massacre,
and that their occupation consequently was good in law .
A somewhat recent controversy to which title by occupation of Delagoa
has given rise turned mainly upon the effect of a temporary Bay.
cessation of the authority of the occupying state. From 1823
to 1875, when the matter was settled by arbitration, a dispute
existed between England and Portugal as to some territory at
Delagoa Bay, which was claimed by the former under a cession
by native chiefs in the first-mentioned year, and by the latter on
the grounds, amongst others, of continuous occupation. It was
admitted that Portuguese territory reached to the northern bank
of the Rio de Espiritu Santo or English River, which flows into
the bay, and that a port and village had long been established
there. The question was whether the sovereignty of Portugal
extended south of the river, or whether the lands on that side
had remained in the possession of their original owners. England
relied upon the facts that the natives professed to be independent
in 1823, that they acted as such, and that the commandant of
the fort repudiated the possession of authority over them. In
* Jenkinson’s Treaties, iii. II8, 157, I70.
118 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Cession.
the memorials which were submitted on behalf of Portugal,
amidst much which had no special reference to the territory in
dispute, there was enough to show that posts had been maintained
within it from time to time, and that authority had probably
been exercised intermittently over the natives. The area of the
territory being small, and all of it being within easy reach of a
force in possession of the Portuguese settlement, there could be
little difficulty in keeping up sufficient control to prevent a title
by occupation from dying out. There was therefore a presumption
in favour of the Portuguese claim. The French government,
which acted as arbitrator, took the view that the interruption of
occupation, which undoubtedly took place in 1823, was not
sufficient to oust a title supported by occasional acts of sovereignty
done through nearly three centuries, and adjudged the territory
in question to Portugal'.
Cessions of territory, whether by way of sale or exchange, and
gifts, whether made by testament or during the lifetime of the
donor, call for no special remark, the alienation effected by their
means being within the general scope of the powers of alienation
Prescrip-
tion.
which have been already mentioned as belonging to a state”, and
the questions of competence on the part of the individuals
contracting or giving which may arise being matters which, in
so far as they belong to international law and not to the public
law of the particular state, will find their proper place in a later
chapter *.
Title by prescription arises out of a long-continued possession,
where no original source of proprietary right can be shown to
exist, or where possession in the first instance being wrongful,
the legitimate proprietor has neglected to assert his right, or has
been unable to do so. The principle upon which it rests is
essentially the same as that of the doctrine of prescription which
finds a place in every municipal law, although in its application
Parl. Papers, xlii. 1875. ; : * Antea, p. 45.
* Instances of alienation by sale, exchange, gift, and will, may be found
in Phillimore, i. §§ cclxviii-lxx, and celkxv ; and in Calvo, $$ 225–8.
TERRITORIAL PROPERTY OF A STATE 119
to beings for whose disputes no tribunals are open, some modifi- PART II
cations are necessarily introduced. Instead of being directed to “”
guard the interests of persons believing themselves to be lawful
owners, though unable to prove their title, or of persons
purchasing in good faith from others not in fact in legal
possession, the object of prescription as between states is mainly
to assist in creating a stability of international order which is of
more practical advantage than the bare possibility of an ultimate
victory of right. In both cases the admission of a proprietary
right grounded upon the mere efflux of time is intended to give
security to property and to diminish litigation, but while under
the conditions of civil life it is possible so to regulate its
operation as to render it the handmaid of justice, it must be
frankly recognised that internationally it is allowed, for the
sake of interests which have hitherto been looked upon as
supreme, to lend itself as a sanction for wrong, when wrong has
shown itself strong enough not only to triumph for a moment,
but to establish itself permanently and solidly. Internationally
therefore prescription must be understood not only to confer
rights when, as is the case with several European countries, the
original title of the community to the lands which form the
territory of the state or its nucleus is too mixed or doubtful to
be appealed to with certainty; or, as has sometimes occurred,
when settlements have been made and enjoyed without inter-
ference within lands claimed, and perhaps originally claimed
with right, by states other than that forming the settlement;
but also to give title where an immoral act of appropriation,
such as that of the partition of Poland, has been effected, so soon
as it has become evident by lapse of time that the appropriation
promises to be permanent, in the qualified sense which the word
permanent can bear in international matters, and that other
states acquiesce in the prospect of such permanence. It is not
of course meant that a title so acquired is good as against any
rights which the inhabitants of the appropriated country may
have to free themselves from a foreign yoke, but merely that it
120 TERRITORIAL PROPERTY OF A STATE
is good internationally, and that neither the state originally
wronged nor other states deriving title from it have a right to
attack the intruding state on the ground of deficient title, when
once possession has been consolidated by time, whether the title
was bad in its inception, or whether, having been founded on an
obsolete or extinguished treaty, it has become open, in the
absence of prescription, to question on the ground of the rights
of nationality or of former possession". *
PART II
CHAP. II
* A denial of title by prescription has as yet been rarely formulated in
international law, but there can be little doubt that the sense of its value
has diminished of late years, mainly under the influence of the sentiment
of nationality. In the acquiescence with which the annexation of Alsace
and Lorraine to Germany in 1871 was in some cases received, and the mild-
ness of the disapproval with which it was elsewhere met, it is impossible
not to recognise the want of a due appreciation of the importance of pre-
scription as a check upon unnecessary territorial disturbance. . If the
severance from France of Alsace and Lorraine had been looked upon as an
instance of naked conquest, it is probable that European public opinion
would have been gravely shocked by the measure, It is eminently doubtful
whether respect for title by prescription, altogether apart from its tran-
quillising tendency, does not lead to better results than are likely to be
offered by the views which are dominant at present in the popular mind
throughout Europe. The principle of nationality is at any rate associated
with a good deal of crude thought ; it includes more than one distinctly
retrogressive idea ; it could not be logically applied without an amount of
disturbance for which the mere enforcement of a principle would afford
but poor compensation ; and finally it is impossible to imagine that arrange-
ments, so divorced from the practical needs of communities as those to
which the doctrine of nationality would give rise, could contain any element
of permanence. That there have been certain cases in which it was just
and for the common good to give free scope to the principle is not even
a sufficient justification for the prominence which it has been allowed to
assume in politics ; and it is nothing short of extraordinary that a doctrine
which can so little bear strict examination should be permitted to intrude
into the domain of legal ideas so often as is the case.
The tendency to import the political notion of nationality into law has
been especially marked in Italy ; and if the brilliant essay of Marmiani
(D'un nuovo diritto Europeo) may be accounted for and excused by the
epoch of its publication (1860), it was unfortunate that the work of Fiore
(Nouveau Droit International) should continue after the unification of the
country to perpetuate a doctrine as law, which ought to have been seen,
when the eager feelings of the period of liberation had subsided, to have
nothing to do with it. In his rewritten Trattato di Diritto Internazionale
Pubblico (vol. i. 1879, §§ 267–97) M. Fiore has greatly modified his doctrine.
He acknowledges that “gli stăti Sono le persone giuridiche del diritto
*
TERRITORIAL PROPERTY OF A STATE 121
By the action of water new formations of land may come into PART II
existence in the neighbourhood of the territory occupied by a "..."
Accretion
state, either in the open sea, or in waters lying between the by the
territory of the state and that of a neighbour, or in actual º
contact with land already appropriated, or changes may take
place in the course of rivers, by which channels are dried up,
and appropriated land is covered with water. Out of such cases
questions of proprietorship spring, to deal with which the
provisions of Roman law, in this matter the simple embodiment
of common sense, have been adopted into international law.
When the frontier of a state is formed by a natural water
boundary, and not by a line indicated by fixed marks which
happen to coincide with the waters’ edge, accretions received by
the land from gradual fluvial deposit become the property of the
state to the territory of which they attach themselves, even
though when the deposits take place in the bed of a river, its
course may in the lapse of time be so diverted that the land
receiving accretion occupies part of the original emplacement of
the neighbouring territory. If however the boundary is a fixed
line, the results of accretion naturally fall to the owner of
whatever lies on the further side of the line. When the bed of
the river belongs equally to two states, islands formed wholly on
one side of the centre of the deepest channel belong to the state
owning the nearer shore; while those that form in mid-stream
internazionale, tuttochè ad essi non possa sempre essere attribuita la
personalitā legittima.”
Lampredi (Jur. Pub, Univ. Theorem. p. iii. cap. viii), De Martens (Précis,
§§ 70–1), and Klüber (§ 6), deny the existence of prescription as between
states, on the ground that prescription is not a principle of natural law,
and that there being no fixed term for the creation of international title by
it, it cannot be said to have been adopted into international positive law.
Mamiani (p. 24) denies the existence of international prescription, because
it cannot exist ‘in faccia ai diritti essenziali ed irremovibili della persona
umana,' but, as the words quoted may suggest, he is thinking only of the
relations of a dominant state to a subject population.
For the views ordinarily held upon the subject, see e.g. Grotius (De Jure
Belli et Pacis, lib. ii. c. iv.); Wolff (Jus Gent. §§ 358–9); Wattel (liv. ii. ch. xi.
§§ 147, 50); Wheaton (Elem. pt. ii. ch. iv. § 4); Riquelme (i. 28); Heffter
(§ 12); Phillimore (i. §§ cclv-viii); Bluntschli (§ 290); Calvo (§ 212).
122 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Bounda-
ries of
state ter-
ritory.
are divided by a line following the original centre of the
channel. Analogously, islands formed in the sea out of the
alluvium brought down by a river become, as they grow into
existence, appendages of the state to which the coast belongs, so
that though they may be beyond the distance from shore within
which the sea is territorial, they cannot be occupied by foreign
states, and even while still composed of mud and of insufficient
consistency for any useful purpose, they are so fully part of the
state territory that the waters around them become territorial to
the same radius as if they were solid ground. On occasions of
sudden change, as when a river breaks into a new course entirely
within the territory of one of the riparian states, or when a lake,
of which the bed belongs wholly to one state, overflows into low-
lying lands belonging to another state and transforms them into
a lagoon, no alteration of property takes place; and the boundary
between the states is considered to lie in the one case along the
old bed of the river, and in the other along the former edge of
the lake *.
The boundaries of state territory may consist either in arbitrary
lines drawn from one definite natural or artificial point to another,
or they may be defined by such natural features of a country as
rivers or ranges of hills. In the latter case more than one
principle of demarcation is possible; certain general rules there-
fore have been accepted which provide for instances in which
from the absence of express agreement or for other reasons there
is doubt or ignorance as to the frontier which may justly be
claimed. Where a boundary follows mountains or hills, the
water-divide constitutes the frontier. Where it follows a river,
and it is not proved that either of the riparian states possesses
a good title to the whole bed, their territories are separated by
* Grotius, De Jure Belli et Pacis, lib. ii. c. iii. §§ 16, 17; Wattel, liv. i.
ch. xxii. §§ 267-77; Phillimore, i. §§ ccxxxviii-ix; Halleck, i. 146; Calvo,
§ 294 ; Bluntschli, $$ 295–99. Mud islands at the mouth of the Mississippi,
some of which seem to have been outside the three-mile limit, were held by
Lord Stowell to be in the territory of the United States in the case of the
Anna, v. Rob. 373.
TERRITORIAL PROPERTY OF A STATE 123
a line running down the middle, except where the stream is
navigable, in which case the centre of the deepest channel, or, as
it is usually called, the Thalweg, is taken as the boundary. In
lakes, there being no necessary track of navigation, the line of
demarcation is drawn in the middle. When a state occupies the
lands upon one side of a river or lake before those on the
opposite bank have been appropriated by another power, it can
establish property by occupation in the whole of the bordering
waters, as its right to occupy is not limited by the rights of any
other state; and as it must be supposed to wish to have all the
advantages to be derived from sole possession, it is a presumption
of law that occupation has taken place. If, on the other hand,
opposite shores have been occupied at the same time, or if
priority of occupation can be proved by neither of the riparian
states, there is a presumption in favour of equal rights, and a
state claiming to hold the entirety of a stream or lake must give
evidence of its title, either by producing treaties, or by showing
that it has exercised continuous ownership over the waters
claimed. Upon whatever grounds property in the entirety of a
stream or lake is established, it would seem in all cases to carry
with it a right to the opposite bank as accessory to the use of
the stream, and perhaps it even gives a right to a sufficient
margin for defensive or revenue purposes, when the title is
derived from occupation, or from a treaty of which the object is
to mark out a political frontier. In 1648 Sweden, by receiving
a cession of the river Oder from the Empire under the Treaty of
Osnabrück, was held to have acquired territory to the exag-
gerated extent of two German miles from its bank as an
inseparable accessory to the stream; and in the more recent case
of the Netze in 1773 Prussia claimed with success that the
cession of the stream should be interpreted to mean a cession of
its shore. Where however the property in a river is vested by
agreement in one of two riparian states for the purpose of
bringing to an end disputes arising out of the use of its waters
for mills and factories, as in the case of a treaty concluded in
PART II
CHAP. II
tf
124 TERRITORIAL PROPERTY OF A STATE
1816 between Sardinia and the Republic of Geneva by which
the Foron was handed over to the latter, it would be unreasonable
to interpret a convention as granting more than what is barely
necessary for its object".
Apart from questions connected with the extent of territorial
waters, which will be dealt with later, certain physical pecu-
liarities of coasts in various parts of the world, where land
impinges on the sea in an unusual manner, require to be noticed
as affecting the territorial boundary. Off the coast of Florida,
among the Bahamas, along the shores of Cuba, and in the
Pacific, are to be found groups of numerous islands and islets
rising out of vast banks, which are covered with very shoal water,
and either form a line more or less parallel with land or compose
systems of their own, in both cases enclosing considerable sheets
of water, which are sometimes also shoal and sometimes relatively
deep. The entrance to these interior bays or lagoons may be
wide in breadth of surface water, but it is narrow in navigable
water. To take a specific case, on the south coast of Cuba the
Archipiélago de los Canarios stretches from sixty to eighty miles
from the mainland to La Isla de Piños, its length from the
Jardines Bank to Cape Frances is over a hundred miles. It is
enclosed partly by some islands, mainly by banks, which are
always awash, but upon which as the tides are very slight, the
depth of water is at no time sufficient to permit of navigation.
Spaces along these banks, many miles in length, are unbroken
by a single inlet; the water is uninterrupted, but access to the
interior gulf or sea is impossible. At the western end there is
a strait, twenty miles or so in width, but not more than six miles
of channel intervene between two banks, which rise to within
* Grotius, lib. ii. c. iii. § 18; Wolff, Jus Gentium, §§ 106–7; Wattel, liv. i.
ch. xxii. § 266; De Martens, Précis, $ 39 ; The Twee Gebroeders, iii. Rob.
339–40 ; Bluntschli, §§ 297–8, 301 ; Twiss, i. §§ 143–4. An instance of property
by occupation is afforded by the appropriation of the river Paraguay, between
the territory of the Republic of Paraguay and the Gran Chaco, which was
effected by the Republic, and maintained until after its war with Brazil and
PART II
CHAP. II
the Argentine Confederation.
Sir Travers Twiss points out with justice that the doctrine which regards
TERRITORIAL PROPERTY OF A STATE 125
seven or eight feet from the surface, and which do not conse- PART II
quently admit of the passage of sea-going vessels. In cases of CHAP. II
this sort the question whether the interior waters are, or are not,
lakes enclosed within the territory, must always depend upon the
depth upon the banks, and the width of the entrances. Each
must be judged upon its own merits. But in the instance cited,
there can be little doubt that the whole Archipiélago de los
Canarios is a mere salt-water lake, and that the boundary
of the land of Cuba runs along the exterior edge of the
banks. -
States may acquire rights by way of protectorate over bar- Protector-
g e e “g tº º e tes Over
barous or imperfectly civilised countries, which do not amount jº I.
º - º e e lised and
to full rights of property or sovereignty, but which are good ...
as against other civilised states, so as to prevent occupation or .
peoples.
conquest by them, and so as to debar them from maintaining
relations with the protected states or peoples. Protectorates of
this kind differ from colonies in that the protected territory is
not an integral portion of the territory of the protecting state,
and differ both from colonies and protectorates of the type
existing within the Indian Empire" in that the protected com-
munity retains, as of right, all powers of internal sovereignty
which have not been expressly surrendered by treaty, or which
the shore as attendant upon the river, when the latter is owned wholly by
one power, might lead, if generally applied, to great complications; and
indicates that when it is wished to keep the control of a river in the hands
of one only of the riparian powers, it is better to make stipulations such as
those contained with respect to the southern channel of the Danube in the
Treaty of Adrianople, than to allow the common law of the matter to
Operate. By that treaty it was agreed that the right bank of the Danube
from the confluence of the Pruth to the St. George's mouth should continue
to belong to Turkey, but that it should remain uninhabited for a distance
inland of about six miles, and that no establishments of any kind should be
formed within the belt of land thus marked out. Stipulations of such
Severity could rarely be needed, and in most cases could not be carried out ;
but the end aimed at, viz. the prevention of any use of the borders of the
river for offensive or defensive purposes, and of any interference with
navigation, could be obtained by prohibiting the erection of forts within
a certain distance of the banks, and if necessary by specifying the places to
which highroads or railways might be brought down.
* Cf. antea, p. 27, note.
126 TERRITORIAL PROPERTY OF A STATE
JPART II
CHAP. II
are not needed for the due fulfilment of the external obligations
which the protecting state has directly or implicitly undertaken
by the act of assuming the protectorate. -
International law touches protectorates of this kind by one
side only. The protected states or communities are not subject
to a law of which they never heard; their relations to the pro-
tecting state are not therefore determined by international law.
It steps in so far only as the assumption of the protectorate
affects the protecting country with responsibilities towards the
rest of the civilised states of the world. They are barred by the
presence of the protecting state from exacting redress by force
for any wrongs which their subjects may suffer at the hands of
the native rulers or people; that state must consequently be
bound to see that a reasonable measure of security is afforded
to foreign subjects and property within the protected territory,
and to prevent acts of depredation or hostility being done by its
inhabitants. Correlatively to this responsibility the protecting
state must have rights over foreign subjects enabling it to guard
other foreigners, its own subjects, and the protected natives from
harm and wrong doing *.
* It is believed that all the states represented at the Berlin Conference of
1884–5, with the exception of Great Britain, maintained that the normal
jurisdiction of a protectorate includes the right of administering justice over
the subjects of other civilised states; and the General Act of the Brussels
Conference of July, 1890, to which Great Britain assented, contemplates the
adoption of measures in protectorates which could hardly, if at all, be
carried out compatibly with the exemption of European traders and
adventurers from the local civilised jurisdiction. The law regulating
jurisdiction in the German protectorates, as modified by imperial decree of
March 15, 1888, in fact declares that it is competent to the imperial authority
to extend jurisdiction over all persons irrespectively of their nationality
(Reichs-Gesetzblatt of March 15, 1888), and it may be inferred from a recent
decision of the Cour de Cassation (Affaire Magny et autres; Cour de Cassation,
Oct. 27, 1893) that jurisdiction will be exercised as a matter of course in all
French protectorates. Great Britain, which until lately supposed that
a protecting state only possesses delegated powers, and that an eastern state
or community cannot grant jurisdiction over persons who are neither its
own subjects nor subjects of the country to which powers are delegated, has
now altered her views, and by the Pacific Order in Council of 1893, and the
South Africa Orders in , Council of 1891 and 1894, has asserted jurisdiction
Over both natives and the subjects of foreign states irrespectively of consent.
TERRITORIAL PROPERTY OF A STATE 127
It may be taken that, with the exception perhaps of some
Small territories occupied for strategic reasons, the countries
which states are tempted to bring under their protection are
generally inhabited by a population of some magnitude, more
or less barbarous, but governed by petty sovereigns according
to a distinct polity. Whether a protectorate is imposed upon
them, or whether chiefs and people alike welcome protection as
a safeguard against exterminating feuds among themselves and
against the danger of being overrun by European adventurers,
they are in neither case ready to go so far as to abandon their
polity; they are not ripe for the administration of European law
as between themselves; and full sovereignty on the part of the
protecting power, and such obedience to law as is rendered in
India, could only be enforced at the point of the sword with an
amount of difficulty and violence disproportionate to the result
which could be obtained. In such circumstances it is evident
that practice must be extremely elastic; different peoples and the
same people at different times are susceptible of very various
degrees of control; the social order which can be maintained
among the tribes on the Niger cannot well be compared with
that which exists in the Malay Peninsula; and the authority
exercised, and the safety which can be secured to foreigners,
both in that Peninsula [and in Nigeria] at the present moment
is vastly greater than would have been possible in the early years
of the protectorates exercised there. A foreign government then
can have no right to ask that any definite amount of control
shall be exercised in its interest, or that any definite organisation
In the Niger territories [until they were transferred to the Imperial
Government in August, 1899] like jurisdiction was exercised by the Royal
Niger Company in virtue of its charter; and in all protectorates which are
covered by the Africa Order in Council of 1889 jurisdiction can be taken over
subjects of the powers which adhered to the General Acts of the Conferences
of Berlin and Brussels. t
On the head of the powers which have been assumed by European States,
and especially of Great Britain, in protectorates I may be permitted to refer
to my “Treatise on the Foreign Powers and Jurisdiction of the British Crown’
(Part iii. chap. iii), where the subject is treated at large. §
PART II
CHAP. II
128 TERRITORIAL PROPERTY OF A STATE
shall be established. Objection may be taken to an illusory
protectorate, in which the mere shadow of a state name is thrown
over the protected territory; but so long as a protecting state
honestly endeavours to use its authority and influence through
resident agents, it must be left to judge how far it can go at
a given time, and through what form of organisation it is best
to work. It may set up a complete hierarchy of officials and
judges; or, if it prefers, it may spare the susceptibilities of the
natives and exercise its authority informally by means of residents
or consuls. Two requirements only need be satisfied; an amount
of security must be offered, which in the circumstances shall be
reasonable, and the administration of justice must in some way
be provided for as between Europeans, and as between Europeans
and natives".
PART II
CHAPs II
* Protectorates are of course by no means new facts, but they may be said
to be new international facts. Until lately they have been exercised in
places practically beyond the sphere of contact with civilised powers. In
this respect things are now totally changed, and very many questions
arising out of such contact will undoubtedly, before long, press for settle-
ment. To take but one example: are the native inhabitants of a protectorate
to be regarded as subjects of the protecting state when temporarily within
the territory or the protectorate of another civilised state 2 There can be no
doubt that Germany will take the view that they are so : German law goes
even so far as to allow them to be put by Imperial Ordinance on the same
footing as German subjects with regard to the right of flying the Imperial.
flag. That other states will take a like view is practically certain. From
the solution of such questions as this must come a tendency to fuller control.
Indeed protection must be looked upon merely as a transitional form of
relation between civilised and uncivilised states, destined, in course of time,
to develop and harden into effective sovereignty. In the meantime practice
is chaotic, and not always well considered. For instance, Great Britain has
assumed a protectorate in North Borneo over the State of Sarawak, the
Sultanate of Brunei, and the territories of the North Borneo Company, and
in doing so has gratuitously embarrassed herself by expressly recognising
their independence, and by specific limitations upon her own freedom of
action, which, especially in the case of Brunei, are exceedingly likely to lead
to difficulties with foreign powers. Germany has provided by law for her
protectorates an elaborate organisation, which is practically identical in those
directly administered by the crown, and in those managed through Colonial
Companies, and which is based on the unrestricted sovereignty of the
Emperor. It is, however, to be noted that German protectorates are
probably only intended to be protectorates in name. The territories of the
German Empire are enumerated by the second article of the Imperial
TERRITORIAL PROPERTY OF A STATE 129
It may be worth while to notice, though the fact is an obvious PART II
result of the position occupied by a protecting state, that the CHAP. II
territorial waters of the protected territory are, as between the
protecting state and foreign countries, under the control of the
former in the same manner as are its own waters, to the extent
and within the scope that are consequent upon the powers
assumed by it within the protected territory.
The term “Sphere of Influence’ is one to which no very Spheres of
definite meaning is as yet attached. Perhaps in its indefiniteness”
consists its international value. It indicates the regions which
geographically are adjacent to or politically group themselves
naturally with, possessions or protectorates, but which have not
actually been so reduced into control that the minimum of the
powers which are implied in a protectorate can be exercised with
tolerable regularity. It represents an understanding which
enables a state to reserve to itself a right of excluding other
European powers from territories that are of importance to it
politically as affording means of future expansion to its existing
dominions or protectorates, or strategically as preventing civilised
neighbours from occupying a dominant military position.
The business of a European power within its sphere of influence
is to act as a restraining and directing force. It endeavours to
foster commerce, to secure the safety of traders and travellers,
and without interfering with the native government, or with
native habits or customs, to prepare the way for acceptance of
more organised guidance. No jurisdiction is assumed, no internal
or external sovereign power is taken out of the hands of the
tribal chief ; no definite responsibility consequently is incurred.
Foreigners enter the country with knowledge of these circum-
stances, and therefore to a great extent at their peril. While
then the European state is morally bound to exercise in their
favour such influence as it has, there is no specific amount of good
Constitution, and the article can only be varied with the consent of the
Imperial Legislature. There would be obvious inconveniences in meddling
with the terms of the Constitution on the formation of each successive Colony.
HALL. K
130 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
order, however small, which it can be expected to secure. The
position of a European power within its sphere of influence being
so vague, the questions suggest themselves, whether any exclusive
rights can be acquired as against other civilised countries through
the establishment of a sphere, and in what way its geographical
extent is to be ascertained. -
The answer to both these questions lies in the fact that the
phrase “Sphere of Influence,’ taken by itself, rather implies a
moral claim than a true right. If international agreements are
made with other European powers, such as those between Great
Britain and Germany and Italy, the states entering into them
are of course bound to common respect of the limits to which
they have consented; and if treaties are entered into with native
chiefs which without conveying any of the rights of sovereignty
involved in a protectorate confer exclusive privileges or give
advantages of a commercial nature, evidence is at least afforded
that influence is existent, and it would be an obviously unfriendly
act within a region where any influence is exercised to try to
supplant the country which had succeeded in establishing its
influence. But agreements only bind the parties to them; and
no such legal results are produced by the unilateral assertion of
a sphere of influence as those which flow from conquest or cession,
or even from the erection of a protectorate. The understanding
that a territory is within a sphere of influence warns off friendly
powers; it constitutes no barrier to covert hostility. The limit
of effective political influence is practically the limit of the
sphere, if another European state is in waiting to seize what
is not firmly held; and an aggressive state is not likely to
consider itself excluded, until the state exercising influence is
ready, if her legal situation be challenged, to take upon herself
the responsibility of a protectorate. Even as between an influ-
encing state and powers which are friendly in the full sense of
the words, it has to be remembered that the exercise of influence
is not in its nature a permanent relation between the European
country and the native tribes; it is assented to as a temporary
TERRITORIAL PROPERTY OF A STATE 131
phase in the belief, and on the understanding, that within a PART II
reasonable time a more solid form will be imparted to the civilised “*”
authority. It is not likely therefore that an influencing govern-
ment will find itself able for any length of time to avoid the
adoption of means for securing the safety of foreigners, and
consequently of subjecting the native chiefs to steady interfer-
ence and pressure, Duty towards friendly countries, and self-
protection against rival powers, will alike compel a rapid harden-
ing of control; and probably before long spheres of influence
are destined to be merged into some unorganised form of
protectorate analogous to that which exists in the Malay
Peninsula.
The general principle that a state possesses absolute proprietary Whether
rights over the whole area included within its frontier might º
be supposed to lead inevitably to the admission of a right on the * d
part of every country to deal as it chooses with its navigable by states
fº e tº OVer
rivers, and consequently to prevent other states from navigating rivers, or
portions
of rivers,
or imagined interests, whether the navigable portion of a par- º
e - © * * e e © º €II* € **
ticular river is wholly included within its own boundaries, or ritory.
them, or to subject navigation to conditions dictated by its real
whether the river begins to be navigable before they are reached.
Conversely it might be supposed that neither foreign states in
general nor co-riparian states could have any rights over waters
contained within a specific territory, except through prescription
or express agreement in the case of a particular river, or through
an express agreement between the whole body of states with
reference to all rivers.
It is generally asserted however that co-riparian states, and
it is frequently said that states entirely unconnected with a river,
have a right of navigation for commercial purposes, which some-
times is represented as imperfect, but sometimes also is declared
to be dominant. Grotius alleged that on the establishment of
separate property, which he imagined to have supervened upon
an original community of goods as the result of convention,
certain of the pre-existing natural rights were reserved for the
K 2.
132 TERRITORIAL PROPERTY OF A STATE
general advantage, of which one was a right to use things which
had become the subject of separate property in any manner not
injurious to their owners. Passage over territory, whether by
land or water, whether in the form of navigation of rivers for
commercial purposes or of the march of an army over neutral
ground to attack an enemy, was regarded by him as an innoxious
use, and consequently as a privilege the concession of which it
is not competent to a nation to refuse". Whatever may be the
value of this doctrine, it is the root of such legal authority as
is now possessed by the principle of the freedom of river
navigation. It was echoed with slight variations by most of
the writers of the seventeenth and eighteenth centuries”, and
when states have been engaged in the endeavour to open a closed
section of river to the trade of their subjects, the weapons of
international controversy have been drawn in the main from
the arsenal provided by the assumptions of Grotius and his
Successors. - -
After the Treaty of Paris in 1783, for example, both banks
of the lower portion of the Mississippi having fallen under the
dominion of Spain, and that power having closed the navigation
of the part belonging to it to the inhabitants of the upper shores,
a dispute took place on the subject between it and the United
States. On behalf of the latter it was pointed out with truth
that the passage of merchandise to and from the higher waters
of the river would be not only innocent, but of positive advantage
to the subjects of Spain; and it was argued with more question-
able force that the freedom of ‘the ocean to all men and of its
rivers to all the riparian inhabitants’ is a ‘sentiment written in
deep characters on the heart of man, and that though the right
PART II
CHAP. II
Contro-
versy
with re-
spect to
the Mis-
sissippi,
* Lib. ii. ch. ii. §§ 2, Io, and 13.
* e. g. Loccenius, De Jure Maritimo, lib. i. c. 6 (written in 1653); Ruther-
forth, Institutes of Natural Law, blº. ii. ch. ix (written in 1754); Wolff, Jus
Gent. § 343; Wattel, liv. ii. ch. ix. §§ II7, 128–9, and ch. x. § 134.
Gronovius (1613–1671) and Barbeyrac (1674–1729) on the other hand, in
their notes to Grotius, imply the right to prohibit navigation by conceding
that of levying dues for the simple permission to navigate.
TERRITORIAL PROPERTY OF A STATE 133
of passage thus evidenced may be so far imperfect as to be PART II
‘dependent to a considerable degree on the conveniency of the “”
nation through which’ persons using it were to pass, it was yet
a right so real that an injury would be inflicted, for which it
would be proper to exact redress, if passage were ‘refused, or
So shackled by regulations not necessary for the peace or safety
of the inhabitants as to render its use impracticable". Again, the St.
in 1824, a series of negotiations were commenced between the Lawrence.
United States and Great Britain with reference to the St. Law–
rence, a right of navigating which was asserted by the former
country as a riparian state of the upper waters of the river, and
of the lakes which feed it. The arguments employed in support
of the American contention were essentially the same as those
which had been put forward in the case of the Mississippi.
‘The right of the upper inhabitants,’ it was said, ‘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; it is therefore ‘a right of
nature, its existence is testified by the ‘most revered authorities
of ancient and modern times,’ and when it has been disregarded,
the interdiction of a stream to the upper inhabitants ‘has been
an act of force by a stronger against a weaker party.’ Pro-
prietary rights, on the other hand, ‘ could at best be supposed to
spring from the social compact”.”
Putting aside the assumption that an original convention as Examina-
to several property was made between mankind, under which º
a right to use navigable waters was expressly reserved, as a lºº
85 5 of naviga-
* Wheaton's History of the Law of Nations, 508-9 ; see also Jefferson's "***
Instructions to the Commissioners appointed to negotiate with the Court of
Spain, Am. State Papers, x. I55. -
The dispute was ended in 1795 by the Treaty of San Lorenzo el Real,
which opened the portion of the Mississippi belonging to Spain to the
navigation of the United States.
* British and Foreign State Papers. 1830–1, pp. Io97–75. The proprietary
rights exercised until after the Congress of Vienna by some of the petty
German States, as for instance by Anhalt-Coethen and Anhalt-Bernburg, to
the prejudice of Austria and Saxony, offer singular examples of ‘acts of force
done by a stronger against a weaker party.”
134 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
theory which can no longer be taken by any one as an argu-
mentative starting-point; part of the foregoing reasoning, and
the doctrine of writers who maintain the right of access and
passage on the part of all states, depend upon the principle that
the proprietary rights of individual states ought to be subor-
dinated to the general interests of mankind, as the proprietary
rights of individuals in organised societies are governed by the
requirements of the general good; and the reasoning and doctrine
in question involve the broad assertion that the opening of all
water-ways to the general commerce of nations is an end which
the human race has declared to be as important to it as those
ends, to which the rights of the individual are sacrificed by civil
communities, are to the latter. Put in this form the doctrine
has a rational basis, whether the assumption of fact by which
it is accompanied is correct or not. But part of the foregoing
reasoning on the other hand, and the opinion of writers who
accord the right of navigation to co-riparian states, seem to
imply the supposition that the fact of the use of a section of
river belonging to a particular community being highly ad-
vantageous to the inhabitants of lands traversed by another
portion of the stream in some way confers upon them a special
right of use. The erroneousness of this view, when once it is
plainly stated, can hardly require to be proved. The mere wants,
or even the necessities, of an individual can give rise to no legal
right as against the already existing rights of others. ' To
infringe these rights remains legally a wrong, however slight
in some cases may be the moral impropriety of the action. If
a state forces the opening of a water-way between itself and the
sea, on the ground that it has a right to its use as a riparian
state, it simply commits a trespass upon its neighbour’s property,
which may or may not be morally justified, but by which it
violates the law as distinctly, though not so noxiously, as an
individual would violate it by making a track through a neigh-
bour's field to obtain access to a high road. Some writers, who
appear to be embarrassed with the difficulties with which the
TERRITORIAL PROPERTY OF A STATE 135
}
claim of a right to navigate private waters is beset, envelop
their assertion of it with an indistinctness of language through
which it is hard to penetrate to the real meaning. A right, it
is alleged, exists; but it is an imperfect one, and therefore its
enjoyment may always be subjected to such conditions as are
required in the judgment of the state whose property is affected,
and for sufficient cause it may be denied altogether. Whatever
may be thought of the consistency of one part of this doctrine
with another, there is in effect little to choose between it and the
opinion of those who consider that the rights of property in
navigable rivers have not as a matter of fact been modified with
a view to the general good, and that they are independent of the
wants of individuals other than the owners, but who recognise
that it has become usual as a matter of comity to permit navi-
gation by co-riparian states, and that it would be a vexatious
act to refuse the privilege without serious cause".
* The opinions of writers belonging to the present century are singularly
varied, and are not always internally consistent. Bluntschli (§ 314) roundly
alleges that “les fleuves et rivières navigables qui sont en communication
avec une mer libre ‘Sont ouverts en temps de paix aux navires de toutes les
nations.” Calvo (§§ 259, 290–I) says that where a river traverses more than
one territory ‘le droit de naviguer et de commercer est commun a tous les
riverains; ” when it is wholly within the territory of a single state, “il est
considéré comme se trouvant sous la souveraineté exclusive de ce même état;’
it is however to be understood that “les réglements particuliers ne doivent
pas assumer un caractère de fiscalité, et que l'autorité ne saurait intervenir
que pour faciliter la navigation et faire respecter les droits de tous,” so that
the right of property seems in the end to be subordinated to the right of
navigation. Fiore (§§ 758, 768) in the main follows M. Calvo. He declares
that “il carattere nazionale della navigazione fluviale,” in the case of a river
flowing through more than one state, ‘deriva necessariamentee giuridicamente
dalla natura delle cose, cioë dall’ indivisibilità del fiume, dal diritto naturale
di libertà, e dal carattere internazionale del commercio ;' but he holds that
in the case of a river flowing through one state only," questo colla più completa
libertà e indipendenza puo communicare e non communicare cogli altri
stati;’—in other words, it may close the river if it chooses. Heffter (§ 77)
declares on the one hand that each of the proprietors of a river flowing
through several states, ‘de même que le propriétaire unique d'un fleuve,
pourrait, stricto jure, affecter les eaux à ses propres usages et a ceux de Ses
régnicoles, et en exclure les autres,’ and on the other hand that “on reconnait
avec Grotius, Pufendorf, et Wattel, au moins en principe, un droit beaucoup
plus étendu, celui d'usage et de passage innocent, lequel ne peut €tre refusé
PART II
CHAP. II
136 TERRITORIAL PROPERTY OF A STATE
The question remains with what views the practice of states
is most in accordance. Down to the commencement of the
present century there can be no doubt that the paramount
character of the rights of property was both recognised and
acted upon. Although none of the European rivers running
through more than one state seem at any part of their course to
have been entirely closed to the riparian states, except the Scheldt
which was closed by treaty, their navigation by foreign vessels
was burdened with passage tolls and dues levied in commutation
PART II
CHAP. II
absolument a aucune nation amie et à ses sujets dans l’intérêt du commerce
universel.” Wheaton (Elem. pt. ii. ch. iv. § II) considers that ‘ the right of
navigating for commercial purposes a river which flows through the territories
of different states is common to all the nations inhabiting the different parts
of its banks; but this right of innocent passage being what the text writers
call an imperfect right, its exercise is necessarily modified by the safety and
convenience of the state affected by it, and can only be effectually secured
by mutual convention regulating the mode of its exercise.’ Halleck (i. I.47-8)
says that “the right of navigation for commercial purposes is common to all
the nations inhabiting the banks’ of a navigable river, subject to such pro-
visions as are necessary to secure ‘the safety and convenience' of the several
states affected. De Martens (Précis, $84) thinks that as a general rule the
exclusive right of each nation to its territory authorises a country to close its
entry to strangers, and though it is wrong to refuse them innocent passage,
it is for the state itself to judge what passage is innocent, but at the same .
time the geographical position of another state may give it a right to demand
and in case of need to force a passage for the sake of its commerce. Woolsey
(§ 62) says, “When a river rises within the bounds of one state and empties
into the sea in another, international law allows to the inhabitants of the
upper waters only a moral claim or imperfect right to its navigation. We
see in this a decision based on strict views of territorial right, which does
not take into account the necessities of mankind and their destination to
hold intercourse with one another.' Phillimore (i. § clxx), in speaking of
the refusal of England to open the St. Lawrence unconditionally to the
TJnited States, says that “it seems difficult to deny that Great Britain may
ground her refusal upon strict law, but it is equally difficult to deny that in
doing so she exercises harshly an extreme and hard law.” Klüber (§ 76)
considers that ‘l’indépendance des états se fait particulièrement remarquer
dans l'usage libre et exclusif du droit des eaux, tant dans le territoire maritime
de l'état, que dans ses rivières, fleuves, canaux, lacs et étangs. . . . On ne
pourrait l’accuser d’injustice s'il défendait tout passage de bateaux étrangers
sur les fleuves, rivières, canaux ou lacs de son territoire.’ Finally, Twiss (i.
§ 141) lays down that ‘a nation having physical possession of both banks of
a river is held to be in juridical possession of the stream of water contained
within its banks, and may rightfully exclude at its pleasure every other
nation from the use of the stream while it is passing through its territory.’


Page Missing
in Original


Volume


Page Missing
in Original


Volume
TERRITORIAL PROPERTY OF A STATE 139
partially opened by Brazil in 1851 to the co-riparian state of
Peru, remained closed, not only to non-riparian states, but to
Ecuador, until 1867, when an imperial decree admitted all
foreign vessels to the navigation of the Amazon, the Tocantins,
and the San Francisco 1. -
[The equivocal position occupied by China with regard to
International Law renders her example of comparatively little
moment or value as a precedent. Her notorious policy has been
to exclude the foreigner from her inland waters, but in 1862
modified access to the Yangtse-Kiang was conferred upon British
shipping, a privilege which was gradually extended to other
Powers under most favoured nation' clauses. In August
1898 revised regulations of trade came into operation by which
the merchant vessels of the Treaty Powers were authorised to
trade on the Yangtse-Kiang at eight Treaty Ports, and to land
and ship goods in accordance with special conditions at five Non-
treaty Ports”.]
From the foregoing facts it appears that there are few cases
in which rivers wholly within one state have been opened; that
where rivers flowing through more than one state are now open,
they have usually at some time either been closed, or their navi-
gation has been subjected to restrictions or tolls of a kind
implying that navigation by foreigners was not a right but
a privilege ; that there are still cases in which local traffic is
forbidden to non-riparians; and that the opening of a river,
when it has taken place, having been effected either by con-
vention or decree has always been consistent with, and has some-
* Calvo, $$ 280–9. In opening the West African Conference of Berlin, Prince
Bismarck committed himself to the statement that “ le Congrès de Vienne,
en proclamant la liberté de la navigation sur les fleuves qui parcourent
les territoires de plusieurs états, a voulu empêcher la séquestration des
avantages inhérents à un cours d'eau. Ce principe a passé dans le droit
public, en Europe et en Amérique.” Protocol of the Meeting of Nov. 15,
1884; Parl. Papers, Africa, No. 4, 1885, p. 9. Prince Bismarck’s views did
not commend themselves to the other members of the Conference : see ib,
pp. 84–6.
* Hertslet, Commercial Treaties, xxi. p. 296.
PART II
CHAP. II
Conclu-
sions.
140 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
times itself formed, an assertion of the paramount right of
property, or in other words of the right of the owner of navigable
waters to open or close them at will. It is clear therefore that
the principle of the freedom of territorial waters, communicating
with the sea, to the navigation of foreign powers has not been
To what
extent the
established either by usage or by agreements binding all or most
nations to its recognition as a right. It is not less clear from
the analysis of the views of its advocates that, if not so established,
it has not been established at all ; because the only reasonable basis
on which it can be founded requires mankind to have declared that
in the case of navigable rivers the ordinary rules of accepted law
must be overridden for the sake of the general good. A marked
tendency has no doubt shown itself during the present century
to do away with prohibition, or to lessen restrictions, of river
navigation by foreigners as a needless embarrassment to trade,
but this has been the result, not of obedience to law, but of
enlightened policy; and it may be said without hesitation that
so far as international law is concerned a state may close or open
its rivers at will, that it may tax or regulate transit over them as
it chooses, and that though it would be as wrong in a moral
sense as it would generally be foolish to use these powers need-
lessly or in an arbitrary manner, it is morally as well as legally
permissible to retain them, so as to be able when necessary to
exercise pressure by their means, or so as to have something to
exchange against concessions by another power.
It has become an uncontested principle of modern inter-
... national law that the sea as a general rule cannot be subjected
appro-
priated.
to appropriation. It is at the same time almost universally
considered that portions of it are affected by proprietary
rights on the part of the states of which the territory is
washed by it; but no distinct understanding has yet been come
to as to the extent which may be appropriated, or which may
be considered to be attendant on the bordering land. In order
to comprehend the uncertain application which the rights of
appropriation and of retention as property thus receive in re-


Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume
TERRITORIAL PROPERTY OF A STATE 149
States, since acquiring possession of the Russian territories in
America, has endeavoured to separate the Behring Sea in its
legal aspect from the Pacific Ocean, and has claimed as attendant
upon Alaska, by virtue of cession from Russia, about two-thirds
of its waters, -a space I,500 miles long and 6oo miles wide.
The disputes with Great Britain which ensued, and the fact that
they were submitted to the decision of a Court of Arbitration, are
too well known to call for more than the barest reference. It is
sufficient to note that the proprietary or territorial claim was
tacitly dropped at an early stage of the proceedings, and that
a pretension to jurisdictional rights of control for certain purposes,
resting on a totally different basis, was substituted for it, or was
at least insisted upon in its place'.
If we turn from history to the treatises of the eighteenth
century the tendency to narrow the range of maritime occupation
is perhaps still more strongly pronounced, though from the prin-
ciples laid down being much too large to allow of admitted
positive rules being brought into harmony with them, there is
often some difficulty in knowing how far the writers who profess
them would go. It is commonly stated that the sea cannot be
occupied; it is indivisible, inexhaustible, and productive, in so
far as it is productive at all, irrespectively of the labour of man;
it is neither physically susceptible of allotment and appropriation;
nor is there the reason for its appropriation which induced
men to abandon the original community of goods”. If these
Seas and bays usually of large extent near their coast as closed to any foreign
commerce or fishery not specially licensed by them, was, without exception,
a pretension of the past, and that no nation would claim exemption from the
general rule of public law which limits maritime jurisdiction to a marine
league from its coasts. We should particularly regret if Russia should insist
on any such pretension.’ Wharton’s Digest, i. Ioč.
* [The award was published on the 15th of August, 1893. The full text is
printed in the Times of the following day, and is also contained in De Martens,
Nouveau Recueil Général, 2* ser. xxi.,439.]
* Wolff, Jus Gentium, § 127, &c.; Wattel, liv. i. ch. xxiii. § 281 ; De
Martens, Précis, $ 43. Bynkershoek (1673–1743), De Dominio Maris, c. ii,
Lampredi (Jur. Pub. Univ. Theorem. p. ii. cap. ii. §§ 8, 9), Azumi (1766–1827),
Droit Maritime de l’Europe, pt. i. ch. ii. art. I, all affirm the principle that
the sea can be occupied in so far as it is used and guarded.
PART II
CHAP. II
2. Opinion
of writers.
150 TERRITORIAL PROPERTY OF A STATE
objections to proprietary rights over the sea are sound they apply
as much to one portion of it as to another. It might be expected
therefore that the right of maritime occupation would be wholly
denied. But it is not so. Enclosed seas, straits, and littoral
seas were regarded as susceptible of occupation. The right of
Sweden to the Gulf of Bothnia, of the Turks to the Archipelago,
of England to St. George's Channel, of Holland to the Zuyder
Zee, and of Denmark to both the Belts and to the Sound, was, it
seems, “uncontested'; ' and a margin varying in width from
gunshot or a marine league from the shore to a space bounded
by the horizon, or even according to one authority by a line
a hundred miles from the coast, was universally conceded". The
parts of the sea which are thus excepted are large, so large indeed
that they bring down the doctrines of jurists to very nearly the
same results as are given by usage. It is evident that the minds
of writers were still influenced by the traditional view that
occupation is permitted in principle. Their word-play about the
fluidity of water was really only intended to limit appropriation
of the sea to those parts of it which could in fact be kept under
the control of a state. It was admitted, even by those who
most uncompromisingly assert the sea to be insusceptible of
appropriation, that such parts of it as may be necessary to the
safety of a state may be controlled. No one in truth was
prepared unqualifiedly to abandon the view that the sea may be
subjected to proprietary rights; still less was any one prepared
PART II
CHAP. II
* De Martens, Précis, $ 42.
* Bynkershoek (De Dominio Maris, c. ii), Valin (Commentaire sur l'Or-
donnance de la Marine, ii. 688), Vattel (liv. i. ch. xxii. § 289), Moser (Versuch
des neuesten Europäischen Völker-Rechts, v. 486), Lampredi (Jur. Pub. Univ.
Theorem. p. iii. cap. ii. § 8), De Martens (Précis, $ 153), and Lord Stowell in
the Twee Gebroeders, iii Rob. 339, considered that the range of a cannon-shot,
which was supposed to be a marine league, measured the breadth of territorial
waters along the open coast. Rayneval thought the horizon was the boundary.
Casaregis (De Commercio Disc. 136, i) pronounced for a hundred miles.
Galiani, according to Azuni, and Azumi himself regarded the extent of
permissible marginal appropriation to be an open question, which should be
settled by treaties in each particular case. Azuni, Droit Maritime de l’Europe,
pt. i. ch. ii. art. ii. § 14.
TERRITORIAL PROPERTY OF A STATE 151
definitely to accept the opposite doctrine with all its consequences. PART II
It was universally felt that states cannot maintain effective “”
occupation at a distance from their shores, and that free com-
mercial navigation had become necessary to the modern world.
There was therefore a general willingness to declare the ocean
to be free, and to consider states as holding waters, which might
fairly be looked upon as territorial, subject to a right of navi-
gation on the part of other states. But acceptance of the freedom
of the open seas merely marked a stage in a gradual settlement
of the conditions under which occupation, when applied to the
sea, may be held to be valid; and recognition of the right of
passage only saddled private property with a kind of servitude
for the general good. -
Down to the beginning of the present century then, the course Summary
of opinion and practice with respect to the sea had been as : of
follows. Originally it was taken for granted that the sea º
. and prac-
could be appropriated. It was effectively appropriated in some tºº
{º e º O € Oe-
instances; and in others extravagant pretensions were put for- ginning of
ward, supported by wholly insufficient acts. Gradually, as ..."
appropriation of the larger areas was found to be generally century.
unreal, to be burdensome to strangers, and to be unattended by
compensating advantages, a disinclination to submit to it arose,
and partly through insensible abandonment, partly through
opposition to the exercise of inadequate or intermittent control,
the larger claims disappeared, and those only continued at last to
be recognised which affected waters the possession of which was
supposed to be necessary to the safety of a state, or which were
thought to be within its power to command. Upon this modi-
fication of practice it may be doubted whether theories affirming
that the sea is insusceptible of occupation had any serious in-
fluence. They no doubt accelerated the restrictive movement
which took place, but outside the realm of books they never
succeeded in establishing predominant authority. The true key
to the development of the law is to be sought in the principle
that maritime occupation must be effective in order to be valid.
152 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Present
state of
the ques-
tion as to
I. Mar-
ginal seas;
This principle may be taken as the formal expression of the
results of the experience of the last two hundred and fifty years,
and when coupled with the rule that the proprietor of territorial
waters may not deny their navigation to foreigners, it reconciles
the interests of a particular state with those of the body of states.
As a matter of history, in proportion as the due limits of these
conflicting interests were ascertained, the practical rule which
represented the principle became insensibly consolidated, until at
the beginning of the present century it may fairly be said that
though its application was still rough it was definitively settled
as law.
It remains to see whether the rule is now applied more pre-
cisely, or, in the absence of sufficient precision, what would be
a reasonable application of it.
Of the marginal seas, straits, and enclosed waters which were
regarded at the beginning of the present century as being
susceptible of appropriation, the case of the first is the simplest.
In claiming its marginal seas as property a state is able to satisfy
the condition of valid appropriation, because a narrow belt of
water along a coast can be effectively commanded from the coast
itself either by guns or by means of a coast-guard. In fact also
such a belt is always appropriated, because states reserve to their
own subjects the enjoyment of its fisheries, or, in other words,
take from it the natural products which it is capable of yielding.
It may be added that, unless the right to exercise control were
admitted, no sufficient security would exist for the lives and
property of the subjects of the state upon land; they would be
exposed without recognised means of redress to the intended or
accidental effects of acts of violence directed against themselves
or others by persons of whose nationality, in the absence of
a right to pursue and capture, it would often be impossible to
get proof, and whose state consequently could not be made
responsible for their deeds. Accordingly, on the assumption that
any part of the sea is susceptible of appropriation, no serious
question can arise as to the existence of property in marginal
TERRITORIAL PROPERTY OF A STATE 153
waters *. Their precise extent however is not so certain.
Generally their limit is fixed at a marine league from the shore;
but this distance was defined by the supposed range of a gun of
position, and the effect of the recent increase in the power of
artillery has not yet been taken into consideration, either as
* In addition to the earlier writers previously quoted with reference to
marginal waters, see Klüber, §§ 128–30 ; Wheaton, Elem. pt. ii. ch. iv.
§§ 6 and Io, Halleck, i. 134; Phillimore, i. §§ cxcvi-vii; Bluntschli, § 302;
Fiore, § 787. -
Some modern writers deny that states can have property in any part of
the sea, but admit the existence either of sovereignty and jurisdiction, or of
Some measure of the latter only. Heffter (§ 74) supposes that “la police et
la surveillance de certains districts maritimes, dans un intérêt de commerce
et de navigation, ont été confiées à l'état le plus voisin,” and that ‘l’intérêt
de la sûreté peut en outre conférer a un état certains droits sur un district
maritime.” Ortolan (Dip. de la Mer, liv. ii. ch. 7 and 8), repeating the old
arguments in favour of the view that the sea is insusceptible of appropria-
tion, says, “ainsi, le droit qui existe sur la mer territoriale n'est pas un droit
de propriété; on ne peut pas dire que l'état propriétaire des cotes soit proprié-
taire de cette mer. . . . En un mot, l'état a sur cet espace non la propriété, mais
un droit d'empire; un pouvoir de legislation, de surveillance et de juridiction.”
Calvo (§ 244) alleges that ‘pourrésoudre la question (of the extent of territorial
waters) d’une manière à la fois rationnelle et pratique, il faut d'abord, cenous
semble, ne pas perdre de vue que les états n'ont pas sur la mer territoriale
un droit de propriété, mais seulement un droit de surveillance et de
juridiction dans l’intérêt de leur défense propre ou de la protection de leurs
intérêts fiscaux.’ Twiss (i. § 173) seems implicitly to adopt the same doctrine
by saying that as ‘the term territory in its proper sense is used to denote
a district within which a nation has an absolute and exclusive right to set
law, some risk of confusion may ensue if we speak of any part of the open
sea over which a nation has only a concurrent right to set law, as its
maritime territory.’
f a correct impression is given by the historical sketch in the text, it is
obvious that the doctrine of these writers is erroneous. It is besides open
to the objections that—
I. It does not account for the fact that a state has admittedly an exclusive
right to the enjoyment of the fisheries in its marginal waters.
2. As the rights of sovereignty or jurisdiction belonging to a state are in
all other cases except that of piracy, which in every way stands wholly
apart, indissolubly connected with the possession of international property,
a solitary instance of their existence independently of such property requires
to be proved, like all other exceptions to a general rule, by reference to
a distinct usage, which in this case cannot be shown.
Sir Travers Twiss appears to be unduly affected by the existence of certain
immunities from local jurisdiction which there is no difficulty in regarding
as exceptional.
Grotius (De Jure Belli et Pacis, lib. ii. c. iii. § 13) is the source of the doctrine.
PART II
CHAP. II
154, TERRITORIAL PROPERTY OF A STATE
supplying a new measure of the space over which control may be
efficiently exercised, or as enlarging that within which acts of
violence may be dangerous to persons and property on shore.
It may be doubted, in view of the very diverse opinions, which
have been held until lately as to the extent to which marginal
seas may be appropriated, of the lateness of the time at which
much more extensive claims have been fully abandoned, and of
the absence of cases in which the breadth of territorial water has
come into international question, whether the three-mile limit
has ever been unequivocally settled; but in any case, as it has
been determined, if determined at all, upon an assumption which
has ceased to hold good, it would be pedantry to adhere to the
rule in its present form; and perhaps it may be said without
impropriety that a state has theoretically the right to extend its
territorial waters from time to time at its will with the increased
range of guns. Whether it would in practice be judicious to do
so; whether it would be politic for a country, which wished to
avoid dangerous friction between itself and other nations, to act
in this direction without having secured the concurrence of the
more important maritime states, either by the negotiation of
separate treaties, or through the acceptance of the principle in
a conference of the powers, is a widely different matter, and one
which is outside the purview of law. In any case the custom of
regarding a line three miles from land as defining the boundary
of marginal territorial waters is so far fixed that a state must
be supposed to accept it in the absence of express notice that
a larger extent is claimed”.
PART II
CHAP. II
* The question of the principle upon which the extent of marginal waters
should be founded, and of the breadth of water that should be included, has
of late attracted a considerable amount of attention. It is felt, and
growingly felt, not only that the width of three miles is insufficient for the
safety of the territory, but that it is desirable for a state to have control over
a larger space of water for the purpose of regulating and preserving the
fisheries in it, the productiveness of sea fisheries being seriously threatened
by the destructive methods of fishing which are commonly employed, and
in many places by the greatly increased number of fishing-vessels frequenting
the grounds.
: After being carefully studied and reported upon by a Committee of the
TERRITORIAL PROPERTY OF A STATE 155
It seems to be generally thought that straits are subject to the PART II
CHAP. II
tº g º Q} e e e ge 2. Straits,
miles wide the space in the centre which lies outside the limit of gulfs, and
bays.
same rule as the open sea; so that when they are more than six
a marine league is free, and that when they are less than six
miles wide they are wholly within the territory of the state or
states to which their shores belong. This doctrine however is
scarcely consistent with the view, which is also generally taken,
that gulfs, of a greater or less size in the opinion of different
writers, when running into the territory of a single state, can be
included within its territorial waters; perhaps also it is not in
harmony with the actual practice with respect to waters of the
latter kind. France perhaps claims “baies fermées’ and other
inlets or recesses the entrance of which is not more than ten
miles wide". Germany regards as territorial the waters within.
Institut de Droit International, the subject was exhaustively discussed by
the Institut at its meeting in Paris, in 1894, the exceptionally large number
of thirty-nine members being present. With regard to the necessity of
ascribing a greater breadth than three miles of territorial water to the littoral
state there was no difference of opinion. As to the extent to which the
marginal belt should be enlarged, and the principle upon which enlargement
should be based, the same unanimity was not manifested ; but ultimately
it was resolved by a large majority that a zone of six marine miles from
low water mark ought to be considered territorial for all purposes, and
that in time of war a neutral state should have the right to extend this
zone, by declaration of neutrality or by notification, for all purposes of
neutrality, to a distance from the shore corresponding to the extreme range
of cannon.
The decision of the Behring Sea Arbitral Tribunal does not constitute an
addition to authority upon the question of the due extent of territorial
waters. The award recognised the “ordinary three-mile limit ’ as that
Outside of which the United States had no right of protection or property
in the fur seals frequenting the Behring Sea. But M. de Courcel has since
explained that the tribunal ‘s’est borné à constater que les parties étaient
d’accord pour admettre que I’étendue de trois milles à partir de la côte
comme formant dans l'espèce qui lui était soumise la limite ordinaire des
eaux territoriales’ (M. de Courcel to M. Aubert, ap. Ann. de l’Inst. de Droit
Int., for 1894, p. 282). The tribunal therefore not only refused to legislate,
to do which would of course have been beyond its province ; it also refused
to affirm that it found the three-mile limit to be, as a matter of fact,
universally accepted. So far as it is concerned, the question of authoritative
custom remains open.
* The latter at least was the general reservation made by the Fishery
Treaty of 1839 with England (De Martens, Nouv. Rec. xvi. 954), but the
156 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
bays or incurvations of the coast, which are less than ten sea
miles in breadth reckoned from the extremest points of the land,
and doubtless includes all the water within three miles outwards
from the line joining such headlands. England would, no doubt,
not attempt any longer to assert a right of property over the
Queen's Chambers, which include the waters within lines drawn
from headland to headland, as from Orfordness to the Foreland
and from Beachy Head to Dunnose Point; but some writers
seem to admit that they belong to her, and a recent decision of
the Privy Council has affirmed her jurisdiction over the Bay of
Conception in Newfoundland, which penetrates forty miles into
the land and is fifteen miles in mean breadth. Authors also so
little favourable to maritime property as Ortolan and De Cussy
class the Zuyder Zee amongst appropriated waters. The United
States probably regard as territorial the Chesapeake and Dela-
ware Bays and other inlets of the same kind". Many claims
to gulfs and bays still find their place in the books, but there
is nothing to show what proportion of these are more than
nominally alive. In principle it is difficult to separate gulfs
and straits from one another; the reason which is given for
conceding a larger right of appropriation in the case of the
convention did not profess to be an expression of the law on the subject. The
whole of the oyster-beds in the Bay of Cancale, the entrance of which is
seventeen miles wide, were regarded as French, and the enjoyment of them
is reserved to the local fishermen, but, again, the cultivation of the beds by
the local French fishermen renders the case exceptional.
* Klüber, § 130 ; De Martens, Précis, $ 42 ; Wheaton, Elem. pt. ii. ch. iv.
§§ 7, 9; Heffter, § 76; Ortolan, Dip. de la Mer, liv. ii. ch. viii.; Phillimore, i.
§§ clxxxviii, czcix ; Halleck, i. 14o; Bluntschli, $ 309; Direct United States
Cable Company Limited v. Anglo-American Telegraph Company Limited,
I877, L. R. ii. App. Cases, 394. It was apparently decided by the Queen's
Bench in Reg. v. Cunningham (Bell's Crown Cases, 86) that the whole of the
Bristol Channel between Somerset and Glamorgan is British territory ;
possibly, however, the Court intended to refer only to that portion of the
channel which lies within Steepholm and Flatholm.
Whether the government of the United States would or would not now
claim Delaware Bay, it at least did so in 1793, when the English ship
Grange, captured in it by a French vessel, was restored on the ground of the
territoriality of its waters. Am. State Papers, i. 73.
TERRITORIAL PROPERTY OF A STATE 157
former than of the latter, viz. that all nations are interested in
the freedom of straits, being meaningless unless it be granted
that a state can prohibit the innocent navigation of such of its
territorial waters as vessels may pass over in going from one
foreign place to another. If that could be done, it might be
necessary to impose a special restriction upon the appropriation
of waters which by their position are likely to be used. Such
however not being the case in fact, it is the power of control
and the safety of the state which have alone to be looked to.
The power of exercising control is not less when water of a
given breadth is terminated at both ends by water than when
it merely runs into the land, and the safety of the state may be
more deeply involved in the maintenance of property and of
consequent jurisdiction in the case of straits than in that of
gulfs. Of practice there is a curious deficiency; but there is
one recent case from which it would appear that both Great
Britain and the United States continue to claim as territorial
the waters of a strait, which is much more than six miles in
width. By the treaty of Washington of 1846 it was stipulated
that the boundary between the United States and British North
America should follow the forty-ninth parallel of latitude to the
middle of the strait separating Vancouver's Island from the
continent, and from there should run down the middle of the
Strait of Fuca to the Pacific. Disputes involving the title to
various islands having arisen, the boundary question at issue
between the two nations was submitted to the arbitration of the
Bmperor of Germany, and in 1873 a protocol was signed at
Washington for the purpose of marking out the frontier in
accordance with his arbitral decision. Under this protocol, the
boundary, after passing the islands which had given rise to
dispute, is carried across a space of water thirty-five miles long
by twenty miles broad, and is then continued for fifty miles
down the middle of a strait fifteen miles broad, until it
touches the Pacific Ocean midway between Bonilla Point on
Vancouver’s Island and Tatooch Island lighthouse on the
PART II
CHAP. II
158 TERRITORIAL PROPERTY OF A STATE
PART II American shore, the waterway being there ten and a half miles
**** in width 1. -
On the whole question it is scarcely possible to say anything
more definite than that, while on the one hand it may be doubted
whether any state would now seriously assert a right of property
over broad straits or gulfs of considerable size and wide entrance,
there is on the other hand nothing in the conditions of valid
maritime occupation to prevent the establishment of a claim
either to basins of considerable area, if approached by narrow
entrances such as those of the Zuyder Zee, or to large gulfs
which, in proportion to the width of their mouth, run deeply
into the land, even when so large as Delaware Bay, or still more
to small bays, such as that of Cancale. If the width of
marginal seas were extended to six miles, to the extreme range
of cannon, or to any other specific limit, there could of course be
no question as to the territorial character of straits or gulfs not
more than double the breadth of the marginal limit”.
Right of In all cases in which territorial waters are so placed that
foreign º e - º
..., passage over them is either necessary or convenient for the
the inno-
cent use of º e ſº ->
!. 5. appropriated strait connecting unappropriated waters, they are
OFI al Sea,S © e e g
of a state, subject to a right of innocent use by all mankind for the pur-
navigation of open seas, as in that of marginal waters, or of an
poses of commercial navigation”. The general consent of nations,
which was seen to be wanting to the alleged right of navigation
of rivers, may fairly be said to have been given to that of the
sea. Even the earlier and more uncompromising advocates of
the right of appropriation reserved a general right of innocent
navigation; for more than two hundred and fifty years no
European territorial marine waters which could be used as a
, * Parl. Papers, North Am., No. Io, 1873.
* An interesting discussion bearing upon the subject of the above section
took place in the course of the arguments before the Behring Sea Tribunal of
Arbitration. Report of the Proceedings, pp. 1284–91.
* The case of gulfs or other inlets would seem to be upon a different
footing, except in so far as they are used for purposes of refuge. Any right
to their navigation must be founded on a right of access to the state itself.
TERRITORIAL PROPERTY OF A STATE 159
thoroughfare, or into which vessels could accidentally stray or
be driven, have been closed to commercial navigation; and since the
beginning of the nineteenth century no such waters have been closed
in any part of the civilised world. The right therefore must be
considered to be established in the most complete manner".
This right of innocent passage does not extend to vessels of
war. Its possession by them could not be explained upon the
grounds by which commercial passage is justified. The interests
of the whole world are concerned in the possession of the utmost
liberty of navigation for the purposes of trade by the vessels of
all states. But no general interests are necessarily or commonly
involved in the possession by a state of a right to navigate the
waters of other states with its ships of war. Such a privilege is
to the advantage only of the individual state; it may often be
injurious to third states; and it may sometimes be dangerous to
the proprietor of the waters used. A state has therefore always
the right to refuse access to its territorial waters to the armed
vessels of other states, if it wishes to do so.
PART II
CHAP. II
It is usual in works on International Law to enumerate a list Servi-
of servitudes to which the territory of a state may be subjected.
Amongst them are the reception of foreign garrisons in fortresses,
fishery rights in territorial waters, telegraphic and railway
privileges, the use of a port by a foreign power as a coaling
station, an obligation not to maintain fortifications in particular
places, and other derogations of like kind from the full en-
forcement of sovereignty over parts of the national territory.
These and such like privileges or disabilities must however be
set up by treaty or equivalent agreement; they are the creatures
not of law but of compact. The only servitudes which have a
general or particular customary basis are, the above-mentioned
right of innocent use of territorial seas, customary rights over
forests, pastures, and waters for the benefit of persons living
* Klüber ($ 76) is probably the only writer who denies the existence of
the right. He says, “on ne pourrait accuser un état d'injustice s'il défendait
. . . le passage des vaisseaux surmer sous le canon de Ses cötes.’
{}
tudes.
160 TERRITORIAL PROPERTY OF A STATE
YPART II
CHAP. II
near a frontier, which seem to exist in some places, and possibly
a right to military passage through a foreign state to outlying
territory". In their legal aspects there is only one point upon
which international servitudes call for notice. They conform to
the universal rule applicable to ‘jura in re aliena.” Whether
they be customary or contractual in their origin, they must be
construed strictly. If therefore a dispute occurs between a
territorial sovereign and a foreign power as to the extent or
nature of rights enjoyed by the latter within the territory of the
former, the presumption is against the foreign state, and upon it
the burden lies of proving its claim beyond doubt or question.
It is somewhat more than doubtful whether any instances of a right to
military passage have survived the simplification of the map of Central
Europe.
CHAPTER III
NON-TERRITORIAL PROPERTY OF A STATE
A STATE may own property as a private individual within the PART II
jurisdiction of another state; it may possess the immediate as ſº
well as the ultimate property in moveables, land, and buildings non-terri-
within its own territory; and it may hold property in its state ; *
capacity in places not belonging to its own territory, whether : it."
within or outside the jurisdiction of other states. With property
held in the first of these ways international law has evidently
nothing to do; that, on the other hand, which is held in the two
latter ways falls within its scope; but the usages affecting
property of which the immediate as well as the ultimate owner-
ship is in the state, and which is within its own territory, are
entirely included in the laws of war"; it is therefore only the
last-mentioned kind of property which requires to be mentioned
here, and this consists in—
I. Public vessels of the state.
2. Private vessels covered by the national flag.
3. Goods owned by subjects of the state, but embarked in
foreign ships.
Public vessels of the state consist in ships of war, in govern- Public
ment ships not armed as vessels of war, such as royal or *:::
admiralty yachts, transports, or store ships, and in vessels
temporarily employed, whether as transports or otherwise,
provided that they are used for public purposes only, that they
are commanded by an officer holding such a commission as will
suffice to render the ship a public vessel by the law of his state,
and that they satisfy other conditions which may be required by
that law 4. The character of a vessel professing to be public is
See Pt. iii, ch. iii. -
* Ortolan, Dip. de la Mer, i. 181—6; Calvo, §§ 876–84.
HALL M
162 NON-TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. III
usually evidenced by the flag and pendant which she carries,
and if necessary by firing a gun. When in the absence of, or
notwithstanding, these proofs any doubt is entertained as to the
legitimateness of her claim, the statement of the commander on
his word of honour that the vessel is public is often accepted,
but the admission of such statement as proof is a matter of
courtesy. On the other hand, subject to an exception which
will be indicated directly, the commission under which the
commander acts must necessarily be received as conclusive, it
being a direct attestation of the character of the vessel made by
the competent authority within the state itself". A fortiori
attestation made by the government itself is a bar to all further
enquiry”.
The above rules are those which apply to the ordinary
circumstance that a vessel, professing to be a public vessel of
the state, enters a foreign country from the outside, or is met
with on the high seas. But there are occasions when a vessel
changes, or affects to change, her character while within foreign
territory. Upon these other considerations must be brought to
bear than those upon which the rules are founded. The vessel
* The Santissima Trinidad, vii Wheaton, 335–7; Ortolan, Dip. de la Mer,
i. 181 ; Phillimore, i. § ce.cxlviii. -
The admission of the word of the commander is sometimes regarded as
obligatory. When the Sumter was allowed to enter the port of Curaçao, the
Dutch government answered the complaints of the United States by pointing
out that the commander had declared the vessel to be commissioned, adding
that ‘le gouverneur néerlandais devait se contenter de la parole du com-
mandant, couchée par écrit.” Ortolan, loc. cit. i. 183. g
* This is the case even where on the acknowledged facts there may be
reasonable doubt as to whether the vessel is so employed as to be in the
public Service of the state in a proper sense of the term. • ,
As recently as 1879 the English Court of Appeal decided in the above
sense, reversing a judgment of Sir R. Phillimore. A Belgian mail packet,
commanded by officers of the royal Belgian navy, but carrying merchandise
and passengers, was sued in a claim for damage. On behalf of the King of
the Belgians the facts were not contested, but it was declared that the vessel
was in his possession as sovereign, and was a public vessel of the state.
Behind this declaration the Court considered itself to be unable to go : it
refused consequently to enquire into the effect which the fact that the
vessel was partly employed in carrying merchandise and passengers might
have upon her character. The Parlement Belge, L. R. 5 P. D. I97.
NON-TERRITORIAL PROPERTY OF A STATE 163
is bought, or she is built and fitted out to order, as a piece of
mere merchandise; she is only private property owned by the
state which has acquired her. Subsequently a commissioned
officer arrives and takes command; but the act of commissioning
a vessel is an act of sovereignty, and no act of sovereignty can
be done within the dominions of another sovereign without his
express or tacit permission. Without such leave a commission
can only acquire value as against the state in which a vessel has
been bought, or has been built and fitted out, at the moment
when she issues from the territorial waters. Up to that time,
though invested with minor privileges", she is far, if she be a
ship of war, from enjoying the full advantages of a public
character. It is needless to say that on the other hand if the
vessel re-enters the territorial waters five minutes after she has
left them she does so with all the privileges of a public vessel of
her state. It is to be noted that tacit leave to commission a ship
cannot be lightly supposed. A state must always be presumed
to be jealous of its rights of sovereignty, and either strong
circumstances implying recognition in the particular case, or the
'general practice of the state itself, must be adduced before the
presumption can be displaced.
Instances also may, and occasionally do, occur in which the
usual tests are not available, and in which it might be a question
whether a vessel had not become a public vessel of a state,
notwithstanding that the state in question refused to regard it
as such. Though attestation by a government that a ship
belongs to it is final, it does not follow that denial of public
character is equally final; assumption and repudiation of re-
sponsibility stand upon a different footing. A foreign vessel of
commerce, for example, flying the mercantile flag of its country,
in entering a British port comes into collision with another
vessel, and inflicts damage. It is found that the ship is engaged
in the transport of soldiers, and that a naval officer is in com-
mand, but is not commissioned to the ship. Is this vessel to be
* Cf. postea, p. 198.
PART II
CHAP. III
M 2.
l64 NON-TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. III
Private
vessels
covered
by the
national
flag.
considered to have been so taken up into the service of its state
as to have become a public vessel, and is her government there-
fore liable for the damage done; or are the soldiers passengers,
and has the naval officer become the agent of the owners? The
question is a somewhat delicate one. Probably the answer
to it would depend upon whether the crew had, or had not, been
placed under military law. Again, a British vessel is hired to
act as tender to a foreign squadron engaged in naval operations;
she leaves England with an English crew, in charge of her own
master; on arrival she is put under the command of a naval
officer, and flies the naval flag of his state with the distinctive
mark of a chartered vessel; but the admiral in command of the
squadron engages not to enforce military law on the crew. In
this case the conclusion would seem to be more easy to arrive at.
The flag is in itself sufficient to afford evidence of public
character; its use is a public profession; it is unnecessary to go
further and draw inferences from the whole circumstances of the
case; the exemption from military law sinks into a disciplinary
arrangement without international consequences. For deter-
mining cases of this kind it is evident that no general rules can
be laid down ; in each one the circumstances will more or less
differ. All that can be said is, that the public character of a
vessel may be inferentially shown from facts proving continued
control by the state for state purposes, and that if the inference
of public character is fairly drawn, a state is affected by
responsibility for the acts of the vessel which is attributed to it.
Private vessels belonging to a state are those which, belonging
to private owners, satisfy such conditions of nationality as may
be imposed by the state laws with reference to ownership, to
place of construction, the nationality of the captain, or the
composition of the crew 1. In common with vessels of war the
flag is the apparent sign of the nationality of the ship, but as a
merchant vessel is not in the same close relation to the state as
a public vessel, and its commander, unlike the commander of the
* See Ortolan, Dip. de la Mer, pp. 746–52 (ed. 1864).
NON-TERRITORIAL PROPERTY OF A STATE 165
latter, is not an agent of the state, recourse is not had to his PART II
CHAP. III
affirmation in proof of its character, which must be shown by
papers giving full information as to its identity and as to its
right to carry the flag displayed by it, or, in other words, as to
whether it has conformed to the laws of its state".
The conditions under which goods owned by subjects of a Goods
owned by
subjects of
the state are merely, that the owners must not have acquired a i. state,
state, but embarked in foreign ships, are part of the property of
tº dº tem-
foreign character by domicil or service in another country. It barked in
º & 1 & g tº tº foreign
will be seen later that it is possible for a person, without ceasing j
to be a subject of his state of origin, to be so intimately
associated with a foreign state that the national character of
property belonging to him may be affected by such association.
It is for the competent courts to determine by what evidence the
necessary facts must be proved, if disputed.
* See postea, pt. iv. ch. x.
CHAPTER IV
SOWEREIGNTY IN RELATION TO THE TERRITORY
OF THE STATE
It has been seen that a state possesses jurisdiction within
certain limits, in virtue of its territorial sovereignty, over the
tion of the person and property of foreigners found upon its land and
waters, and that it is responsible, also within certain limits, for
acts done within its boundaries by which foreign states or their
subjects are affected". The broad statement of the rights which
a state possesses, and of the duties by which it is affected, in
these respects in a time of general peace, which has already been
made, sufficiently indicates the law upon most points connected
with them; but there are some special rules, and practices
claiming to be legal, which have not been touched upon, and
there are others of which the applications require to be examined
in detail. These may be referred to the following heads:—
1. Exceptions, real or alleged, to the general right of exercising
jurisdiction over foreign persons and property.
2. Extent of the right of a state to require aid from foreigners
within its territory in maintaining the public safety or social
order. - - -
3. An alleged right to take cognizance of acts done by
foreigners beyond the limits of a state if the persons who have
done them subsequently enter its territorial jurisdiction.
4. The right of asylum and of adopting a foreigner into the
state community.
5. Responsibility of a state.
It is universally agreed that sovereigns and the armies of a
* See antea, pp. 47 et seq. For a particular limitation upon the free action
of a state within its territory in time of civil war, see p. 35 m.
TERRITORIAL SOWEREIGNTY 167
, when in foreign territory, and that diplomatic agents,
within the country to which they are accredited, possess
unities from local jurisdiction in respect of their persons,
in the case of sovereigns and diplomatic agents with respect
their retinue, that these immunities generally carry with
hem local effects within the dwelling or place occupied by the
hdividuals enjoying them, and that public ships of the state
confer some measure of immunity upon persons on board of them.
The relation created by these immunities is usually indicated by
the metaphorical term exterritoriality, the persons and things in
enjoyment of them being regarded as detached portions of the
state to which they belong, moving about on the surface of
foreign territory and remaining separate from it. The term is
picturesque; it brings vividly before the mind one aspect at
least of the relation in which an exempted person or thing
stands to a foreign state ; but it may be doubted whether its
picturesqueness has not enabled it to seize too strongly upon
the imagination. Exterritoriality has been transformed from a
metaphor into a legal fact. Persons and things which are more
or less exempted from local jurisdiction are said to be in law
outside the state in which they are. In this form there is
evidently a danger lest the significance of the conception should
be exaggerated. If exterritoriality is taken, not merely as a
rough way of describing the effect of certain immunities, but as
a principle of law, it becomes, or at any rate it is ready to become,
an independent source of legal rule, displacing the principle of
the exclusiveness of territorial sovereignty within the range of
its possible operation in all cases in which practice is unsettled
or contested. This of course is conceivably its actual position.
But the exclusiveness of territorial sovereignty is so important
to international law and lies so near its root, that no doctrine
which rests upon a mere fiction can be lightly assumed to have
been accepted as controlling it. In examining the immunities
in question, therefore, it will be best to put aside for the present
the idea of exterritoriality, and to view them solely by the light
PART II
CHAP. IV
Doctrine
of exterri-
toriality.





168 SOWEREIGNTY IN RELATION
PART II
CHAP. IV
Origin of
the immu-
nities
usually
classed
under the
head of
exterrito-
riality.
of the reasons for which they have been conceded, and of
usage which has prevailed with respect to them.
The immunities which have been conceded to the persons
things above mentioned are prompted by considerations par
of courtesy and partly of convenience so great as to be almö
equivalent to necessity. The head of the state, its armed force!
and its diplomatic agents are regarded as embodying or repre-
senting its sovereignty, or in other words, its character of an
equal and independent being. They symbolise something to
which deference and respect are due, and they are consequently
treated with deference and respect themselves. Supposing
reasons of courtesy to be disregarded, immunities would still be
required upon the ground of practical necessity. If a sovereign,
while in a foreign state, were subjected to its jurisdiction, the
interests of his own state might readily be jeopardised by the
consequences of his position. In like manner the armed forces
of a country must be at the disposal of that country alone.
They must not be liable either to be so locked up as to be
incapable of being used at will, or to be so affected by foreign
interference as to lose their efficiency; and submission to local
jurisdiction would open the door sometimes to loss of freedom,
and sometimes to a supersession of the authority of the officer in
command. Finally, it is for the interest of the state accrediting
a diplomatic agent, and in the long run in the interest also of
the state to which he is accredited, that he shall have such
liberty as will enable him, at all times and in all circumstances,
to conduct the business with which he is charged; and liberty
to this extent is incompatible with full subjection to the
jurisdiction of the country with the government of which he
negotiates. The first of these sets of considerations was perhaps
that which formerly had the greater influence. When states
were identified with their sovereigns, and the relations of states
were in great measure personal relations of individuals, considera-
tions of courtesy were naturally prominent; and to them must
still be referred such established immunities as are not necessary









Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume


Page Missing
in Original


Volume
TO THE TERRITORY OF THE STATE 173
minister in Sweden, but of which part must have elapsed before PART II
the action of the Swedish government was known. In 1718 the “”
Prince of Cellamare, the Spanish ambassador in Paris, having
organised a conspiracy against the government of the Duke of
Orleans, was arrested and retained in custody until news came
of the safe arrival in France of the French ambassador at
Madrid. No protest was made by the resident ambassadors
from other courts in the latter case, and though dissatisfaction
at the arrest of Count Gyllenborg was at first felt by some of
the ministers accredited to England, the expression which had
been given to it was withdrawn when the facts justifying the
arrest were made known '. Arrests of this kind may be regarded,
either, upon the analogy already applied in the case of sovereigns,
as acts of violence done in self-defence against the state the
representative of which is subjected to them, or as acts done in
pursuance of a right of exercising jurisdiction upon sufficient
emergency, which has not been abandoned in conceding im-
munities to diplomatic agents. The former mode of accounting
for them seems forced because, though a diplomatic agent is
representative of his state, he is not so identified with it that his
acts are necessarily its acts; because in such cases as those cited
the ambassador of a friendly power must primáfacie be supposed
to be exceeding his instructions in doing acts inimical to the
government to which he is accredited; and finally because such
acts as those done in the instances mentioned, in going beyond
the point of an arrest followed by immediate expulsion from the
country, exceed what in strict necessity is required for self-
protection. It appears to be the more reasonable course therefore
to adopt the latter of the two modes of explaining them. .
The immunities from civil jurisdiction possessed by a diplomatic 2.from the
o * e civil juris-
agent, though up to a certain point they are open to no question, dictiºn of
are not altogether ascertained with thorough clearness. The * state.
* De Martens, Causes Célèbres, i. IoI and I49. He omits to notice that
the complaints made with respect to the case of Count Gyllenborg by the
ministers accredited to England were afterwards withdrawn.
174 sovKREIGNTY IN RELATION
PART II
CHAP. IV
Difference
of opinion
as to its
extent.
local jurisdiction cannot be exercised in such manner as to in-
terfere however remotely with the freedom of diplomatic action,
or with the property belonging to a diplomatic agent as repre-
sentative of his sovereign; a diplomatic agent cannot therefore
be arrested, and the contents of his house, his carriages, and like
property necessary to his official position, cannot be seized. For
some purposes also he is distinctly conceived of as being not so
much privileged as outside the jurisdiction. Thus children born
to him within the state to which he is accredited are not its
subjects, notwithstanding that all persons born of foreigners
within its territories may be declared by its laws to be so. On
the other hand, the jurisdiction of the state extends over real
property held by him as a private individual, and he is subject
to such administrative and police regulations as are necessary for
the health or the safety of the community.
Beyond these limits there is considerable difference of opinion.
Some writers consider that, except for the purposes of the regu-
lations mentioned and in respect of his real property, his consent
is required for the exercise of all local jurisdiction, and that
consequently it can only assert itself in so far as he is willing to
conform to its rules in non-contentious matters, or when he has
chosen to plead to an action, or to bring one himself. In cases
of the latter kind he consents to the effects of an action in so
far as they do not interfere with his personal liberty or with the
property exempted in virtue of his office; he makes his property
liable, for example, to payment of costs and damages, and when
he himself takes proceedings he obliges himself to plead to
a cross action. In other matters, according to this view, he is.
subject to the laws of his own state, and satisfaction of claims
upon him, of whatever kind they may be, can only be obtained,
either by application to his sovereign through the government
to which he is accredited, or by having recourse to the courts of
his country'. Other authorities hold that in matters unconnected
* Wattel, liv. iv. ch. viii. §§ 110–6; Foelix, liv. ii. tit. ii. ch. ii. sect. iv.;
Twiss, i. 305; Riquelme, i. 482; Halleck, i. 28o, 284–6. Wattel, with whom
TO THE TERRITORY OF THE STATE 175
with his official position he is liable to suits of every kind brought
in the courts of the country where he is resident, that the effects
of such suits are only limited by the undisputed immunities
above mentioned, and that consequently all property within the
jurisdiction, other than that necessary to his official position, is
subjected to the operation of the local laws. Thus he is exposed,
for example, to actions for damages or breach of contract; if he
engages in mercantile ventures, whether as a partner in a firm
or as a shareholder in a company, his property is liable to seizure
and condemnation at the suit of his creditors; if he acts as
executor he must plead to suits brought against him in that
capacity'. e
Wheaton (pt. iii. ch. i. § 17) seems to agree, admits that if a diplomatic agent
engages in commerce, his property so employed is subject to the local juris-
diction, but to the extent only, it would appear, of the merchandise, cash,
debts due to him, and other assets, if any, representing the capital actually
used by him in the business. Heffter (§ 42) considers that exemption from
jurisdiction, except by consent, though usual, is not obligatory.
It has been questioned whether the local courts become authorised to
exercise jurisdiction by the mere renunciation of privilege by a diplomatic
agent, or whether his renunciation is invalid unless it has been made with
the consent of his government. In the United States it appears to have been
decided that the permission of his government is necessary. It is, however,
difficult to see why the courts should go out of their way to require that
a condition shall be satisfied which is of importance only as between the
diplomatic agent and his own state, and the fulfilment of which they have
no means of ascertaining except through the agent himself. Nor is it easy to
See what ‘right they have to ask for any assurance beyond the profession
of sufficient authority which is implied by the minister when he submits or
appeals to them. -
* De Martens, Précis, $$ 216–7; Klüber, § 2 Io; Woolsey, § 92 ; Calvo, $ 592.
See also Bynkershoek, De Foro Legatorum, c. xvi. -
Bluntschli (§§ 139–40 and 218) admits the competence of the civil tribunals
in all cases in which an action could have been brought, supposing the
diplomatic agent to be in fact in his own country, and in so far as he occupies
in the foreign state “une position spéciale, en qualité de simple particulier
(négociant par exemple).’ This view, which accommodates the competence
of the tribunals to the fiction of exterritoriality, excludes the local jurisdiction
in several directions with respect to which it is recognised under the above
doctrine ; but it may be assumed that the whole of the private property of
the diplomatic agent is contemplated as being subject to the jurisdiction for
the purpose of those cases of which cognizance can be taken.
The precise effect of the language of the authors cited in this and the
foregoing note is in some cases very difficult to seize. The extremes of opinion
PART II
CHAP. IV
176 SOWEREIGNTY IN RELATION
Of these two opinions the former is that which is the more in
agreement with practice. In England it is declared by statute
that “all writs and processes whereby the goods or chattels’ of a
diplomatic agent ‘may be distrained, seized or attached shall be
deemed and adjudged to be utterly null and void to all intents,
constructions and purposes whatsoever *.” The law of the United
States is similar. In France, during the last century, it was held
that the only object of the immunity of an ambassador was to
prevent him from being embarrassed in the exercise of his
functions, and that, as his property can be seized or otherwise
dealt with without preventing him from fulfilling his public
duties, whatever he possesses in the country to which he is
accredited is subjected to the local jurisdiction. From a wish,
however, to avoid as much as possible any act derogating from
the courtesy due to the ambassador as representative of his state,
it was considered best to exert the territorial jurisdiction by
means less openly offensive than that of allowing suits against
him to be thrown into the courts. Accordingly when Baron Von
Wrech, minister of Hesse-Cassel, endeavoured to leave France
without paying his debts, his passport was refused until his
creditors were satisfied. In the present century a change of
view appears to have taken place, and the exemption of a
diplomatic agent from the control of the ordinary tribunals is
treated rather as a matter of right than of courtesy. An article
are easily distinguished ; but many writers are either doubtful, or fail t
express themselves clearly. -
PART II
CHAP. IV
Practice.
* 7 Anne, c. 12. The decisions upon this statute have been carried to the
point of determining that the public minister of a foreign state accredited
to England may not be sued against his will in the courts of that country,
neither his person nor his goods being touched by the suit, while he remains
such public minister. The decision was given with express reference to the
contention of counsel that “the action could be prosecuted to the stage of
judgment, with a view to ascertain the amount of the debt, and to enable
the plaintiffs to have execution on the judgment when the defendant may
cease to be a public minister.” Magdalena Steam Navigation Company v.
Martin, ii Ellis and Ellis, III. [And in Musurus Bey v. Gadban, L. R. 1894,
i Q. B. 535, following that case it was decided that so long as the am-
bassador of a foreign state is in this country and accredited to the sovereign
the Statute of Limitations does not begin to run against his creditors.]
TO THE TERRITORY OF THE STATE 177
expressly conceding immunity was inserted in the original
project of the civil code, and though it was expunged on the
ground that it had no place in a code of municipal law, the
courts have always treated it as giving expression to international
law, and have acted in conformity with it. In Austria the civil
code merely declares that diplomatic agents enjoy the immunities
established by international law. In Germany the code in like
manner provides that an ambassador or resident of a foreign
power shall retain his immunities in conformity with inter-
national law; and the space which they are understood to cover
may perhaps be inferred from the language used in 1844 by
Baron von Bülow, who in writing to Mr. Wheaton with
reference to a question then at issue between the governments of
Prussia and the United States, said that ‘the state cannot
exercise against a diplomatic agent any act of jurisdiction
whatever, and as a natural consequence of this principle, the
tribunals of the country have, in general, no right to take
cognizance of controversies in which foreign ministers are
concerned.” But for the use of the words ‘in general’ this
statement of the views then entertained by the Prussian govern-
ment would be perfectly clear, and considering the breadth with
which the incapacity of a state to exercise jurisdiction is laid
down, it seems reasonable to look upon them only as intended to
except cases in which a diplomatic agent voluntarily appeals to
the courts. In Spain the curious regulation exists that an
ambassador is exempt from being sued in respect of debts
contracted before the commencement of his mission, but that he
is liable in respect of those incurred during its continuance. In
Portugal the same distinction is made, but in a converse sense,
an ambassador being exposed to proceedings in the courts in
respect of such debts only as he has incurred antecedently to his
mission. In Russia the ministry of foreign affairs is the sole
medium for reclamations against a diplomatic agent".
* Foelix, liv. ii. tit. ii. ch. ii. sect. iv.; Phillimore, ii. §§ exciv-ix; De Martens,
Causes Cél. ii. 282 ; Wheaton, Elem. pt. iii. ch. i. § 17 ; Riquelme, i. 491.
HALL. N
PART II
CHAP. IV
178 SOWEREIGNTY IN RELATION
|PART II
CHAP. IV
Custom is thus apparently nearly all one way; but the
accepted practice is an arbitrary one, conceding immunities
which are not necessary to the due fulfilment of the duties of a
diplomatic agent; and in a few countries it is either not fully
complied with or there may at least be some little doubt whether
it would certainly be followed in all cases or not. The views
expressed by so competent an authority as M. Bluntschli suggest
that courts, at least in Germany, might take cognizance of a
considerable number of cases affecting a diplomatic agent by
looking upon his private personality as separable from his
diplomatic character'. .
The immunities of a diplomatic agent are extended to his
family living with him, because of their relationship to him, to
secretaries and attachés, whether civil or military, forming part
of the mission but not personally accredited, because of their
necessity to him in his official relations, and perhaps also to
domestics and other persons in his service not possessing a
diplomatic character, because of their necessity to his dignity or
comfort. These classes of persons have thus no independent
immunity. That which they have, they claim, not as sharing in
the representation of their state, nor as being necessary for its
service, but solely through, and because of, the diplomatic agent
himself. Hence in practice the immunity of servants and of
other persons whose connexion with the minister is comparatively
remote, is very incomplete; and it may even be questioned if
they possess it at all in strict right, except with regard to
matters occurring between them and other members or servants
of the mission. It is no doubt generally held that they cannot
be arrested on a criminal charge and that a civil suit cannot be
brought against them, without the leave of their master, and
that it rests in his discretion whether he will allow them to be
Immu-
nities of
the family
and suite
of a diplo-
matic
agent.
* The employment as diplomatic agent of a subject of the state to which
he is accredited, is extremely rare; but it is scarcely necessary to say that,
when Once such a person is accepted by a state as the representative of
a foreign country, his character as a subject is effaced in that of the diplomat.
[See MacCartney v. Garbutt, L. R. xxiv. Q. B. D. 363, cited postea, p. 30on.]
TO THE TERRITORY OF THE STATE 179
dealt with by the local authorities, or whether he will reserve the
case or action for trial in his own country. But in England, at
any rate, this extent of immunity is not recognised. Under the
statute of Anne, the privilege of exemption from being sued,
possessed by the servant of an ambassador, is lost by “the
circumstance of trading;' and when the coachman of Mr. Gallatin,
the United States minister in London, committed an assault
outside the house occupied by the mission the local authorities
claimed to exercise jurisdiction in the case". The English prac-
tice is exceptional; but it is not unreasonable. The inconvenience
would be great of withdrawing cases or causes from the tribunals
of the country in which the facts giving rise to them have
occurred; and at the same time it cannot be seriously contended
that either the convenience or the dignity of a minister is so
affected by the exercise of jurisdiction over non-diplomatic
members of the suite, and it might perhaps even be said, over
non-accredited members of the mission, as to render exemption
from it, except when such exemption is permitted by the
diplomatic agent, an imperative necessity. Happily there is
little difference in effect between the received and the exceptional
doctrine. No minister wishes to shield a criminal, and there is
no reason to believe that permission to exercise jurisdiction is
refused upon sufficient cause being shown.
In order that a person in non-diplomatic employment shall be
exempt from the direct action of the territorial jurisdiction it is
* In 1790 it was attempted at Munich to make a distinction between the
members of a mission and the persons in attendance on them, and to assert
local jurisdiction over the latter as of right. De Martens (Précis, 219 n., and
Causes Cél. iv. 20) thought the distinction inadmissible, and it seems not to
have been consistent with usage.
Vattel, liv. iv. ch. ix. §§ 121-4; De Martens, Précis, $ 219; Klüber, $$ 212–3;
Wheaton, Elem. pt. iii. ch. i. § 16, and Dana's note, No. 129; Halleck, i. 291;
Bluntschli, §§ 2 II–I5 ; Calvo, $ 611.
It was formerly customary for ambassadors to exercise criminal jurisdiction
over their suite, and there have been cases, as for example that of a servant
of the Duc de Sully, French ambassador in England in 1603, in which capital
punishment has been inflicted. But it has long been universally recognised
that a diplomatic agent, of whatever rank, has no such power.
PART II
CHAP. IV
N 2
180 SOWEREIGNTY IN RELATION
always necessary that he shall be engaged permanently and as
his regular business in the service of the minister. Residence in
the house of the latter, on the other hand, is not required.
Questions consequently may arise as to whether a particular
person is or is not in his service in the sense intended; they have
even sometimes arisen as to whether a person has been colourably
admitted into it for the sake of giving him protection. With
the view of obviating such disputes it is the usage to furnish the
local authorities with a list of the persons for whom immunity
is claimed, and to acquaint them with the changes which may
be made in it as they occur.
It is agreed that the house of a diplomatic agent is so far
exempted from the operation of the territorial jurisdiction as is
necessary to secure the free exercise of his functions. It is
equally agreed that this immunity ceases to hold in those cases
in which a government is justified in arresting an ambassador
and in searching his papers;–an immunity which exists for the
purpose of securing the enjoyment of a privilege comes naturally
to an end when a right of disregarding the privilege has arisen.
Whether, except in this extreme case, the possibility of embar-
rassment to the minister is so jealously guarded against as to
deprive the local authorities of all right of entry irrespectively
of his leave, or whether a right of entry exists whenever the
occasion of it is so remote from diplomatic interests as to render
it unlikely that they will be endangered, can hardly be looked
upon as settled. Most writers regard the permission of the
minister as being always required; and Vattel refers to a case
which occurred in Russia where two servants of the Swedish
ambassador having been arrested in his house for contravening
a local law, the Empress felt obliged to atone for the affront
by punishing the person who had ordered the arrest, and by
addressing an apologetic circular to the members of the diplomatic
body". In England however, in the case of Mr. Gallatin’s
coachman, the government claimed the right of arresting him.
PART II
CHAP. IV
Immu-
nities of
the house
of a diplo-
matic
agent.
* Wattel, liv. iv. ch. ix. § II 7 ; Klüber, § 207; Phillimore, ii. § cc.iv.
TO THE TERRITORY OF THE STATE 181
within the house of the minister, admitting only that as a
matter of courtesy notice should be given of the intention to
arrest, so that either the culprit might be handed over or that
arrangements might be made for his seizure at a time convenient
to the minister. In France it has been held by the courts that
the privileges of an ambassador's house do not cover acts
affecting the inhabitants of the country to which he is accredited;
and when in 1867 a Russian subject, not in the employment of
the ambassador, attacked and wounded an attaché within the
walls of the embassy, the French government refused to surrender
the criminal, as much upon the general ground that the fiction
of exterritoriality could not be stretched to embrace his case, as
upon the more special one, which was also taken up, that by
calling in the assistance of the police the immunities of the
house had been waived, if any in fact existed in the particular
instance". It does not appear whether the French government,
in denying that the fiction of exterritoriality applied to the case
in question, intended to imply the assertion of a right to do all
acts necessary to give effect to its jurisdiction, and whether
consequently it claimed that it would have had a right to enter
the ambassador’s house to arrest the criminal, or whether, it
merely meant that, if the criminal had been kept within the
embassy and the ambassador had refused to give him up, a
violation of the local jurisdiction would have taken place for
which the appropriate remedy would have been a demand
addressed to the Russian government to recall their ambassador
and to surrender the accused person. Whether or not, however,
the immunities of the house of a diplomatic agent protect it in
all cases from entry by the local authorities, and if so whatever
may be the most appropriate means for enforcing jurisdiction, it
is difficult to resist the belief that there are cases in which the
* Dana, note to Wheaton, No. 129; Calvo, $$ 569-71. The latter writer is
opposed to so large an assertion of the privileges of an ambassador’s house as
is found in most books. His opinion, as he was himself for some time
minister at Paris, is peculiarly valuable on the point.
PART II
CHAP. IV
182 SOVEREIGNTY IN RELATION
PART II territorial jurisdiction cannot be excluded by the immunities of
*" the house. If an assault is committed within an embassy by
- one of two workmen upon the other, both being in casual
employment, and both being subjects of the state to which the
mission is accredited, it would be little less than absurd to allow
the consequences of a fiction to be pushed so far as to render it
even theoretically possible that the culprit, with the witnesses
for and against him, should be sent before the courts in another
country for a trivial matter in which the interests of that
country are not even distantly touched.
In one class of cases the territorial jurisdiction has asserted itself
clearly by a special usage. If the house of a diplomatic agent
were really in a legal sense outside the territory of the state in
which it is placed, a subject of that state committing a crime
within the state territory and taking refuge in the minister’s
residence could only be claimed as of right by the authorities of
his country if the surrender of persons accused of the crime laid
to his charge were stipulated for in an extradition treaty. In
Europe, however, it has been completely established that the
house of a diplomatic agent gives no protection either to ordinary
criminals, or to persons accused of crimes against the state'.
A minister must refuse to harbour applicants for refuge, or if he
allows them to enter he must give them up on demand. In
* Wattel, liv. iv. ch. ix. § 118; De Martens, Précis, S 220 ; Klüber, § 208;
Phillimore, ii. §§ cciv-v ; Bluntschli, $ 200. Calvo (§ 585) still thinks that
“au milieu des troubles civils qui surviennent dans un pays, I'hôtel d’une
légation puisse et doive même offrir un abri assurá aux hommes politiques
Qu’un danger de vie force a s'y réfugier momentanément.”
The European usage practically became fixed in the course of last century.
The question was still open in I726 when the Duke of Ripperda was taken
by force from the house of the English ambassador at Madrid, with whom he
had sought refuge ; but by the time of Wattel it seems to have been settled
that political offenders must be given up, though ordinary criminals might be
sheltered ; the right to receive the latter died gradually away with the growth
of respect for public order, but De Martens, even in the later editions of his
Précis, mentions it as being still recognised at some courts. For the details
of the leading cases of the Duke of Ripperda and of Springer, a merchant
accused of high treason, who took refuge in the English embassy at Stockholm
in 1747, see De Martens, Causes Cél. i. IT8, and ii. 52.
TO THE TERRITORY OF THE STATE 183
*
Central and Southern America matters are different. It is an PART II
instance of how large a margin of indefiniteness runs along the “”
border of diplomatic privilege that the custom of granting asylum
to political refugees in the houses of diplomatic and even of
consular agents still exists in the Spanish-American Republics".
In 1870 the government of the United States suggested, without
success, that the chief powers should combine in instructing their
agents to refuse asylum for the future; but during the Chilean
civil war of 1891 no less than eighty refugees were received into
the American legation. A large number were given asylum by
the ministers of several other states”.
* Like reasons with those, which accounted for the maintenance of the
custom of asylum in the South American Republics, revived it in Spain for
a considerable time. During the Christino-Carlist war and the various
Subsequent troubles, to grant asylum was rather thought obligatory than
permissible. Every politician and soldier had an interest in the continuance
of a practice to the existence of which he might before long owe his life. The
most notable example occurred in 1841, when the Danish Minister in Madrid,
in sheltering a large number of conspirators against the government, and
probably the person, of Espartero, rendered so essential a service to the party
to which they belonged, that when it afterwards succeeded in grasping power,
it expressed its gratitude by conferring on him the title of ‘Baron del Asilo.’
Asylum was granted at Madrid in 1848, in the houses of several of the
ministers of Foreign Powers; and the practice was resumed during the
revolutionary period between 1865 and 1875. In 1873 Marshal Serrano was
sheltered by the British minister, and the minister of the United States
promised asylum to another person, who however was not driven to claim
fulfilment of the promise. An isolated instance occurred in Greece in 1862,
when during the revolution of that date refuge was granted to persons in
danger of their lives.
* Mr. Moore, in a series of exhaustive papers in the New York Political Science
Quarterly (vol. vii, Nos. I, 2, and 3), has accumulated a very large number
of instances in which asylum has been granted in the various Central and
South American States. The exercise of the custom seems generally to have
been accompanied with more or less of friction between the foreign diplomatic
agent and the local government.
Mr. Moore, while holding that the practice of giving asylum is not
sanctioned by international law, thinks that I have asserted ‘in terms
too sweeping and absolute that the right to grant such asylum has long
ceased to be recognised in European countries.” I do not however feel, after
careful reconsideration of the matter by the light of Mr. Moore's able papers,
that any modification of the opinion that I have expressed is called for. The
exceptional survival or recrudescence of the practice in Spain, and the isolated
case of Greece in 1862, do not seem to me to be sufficient to impart vitality
to the custom elsewhere.
184 SOWEREIGNTY IN RELATION
PART II
CHAP. IV
Mode in
which the
evidence
of a diplo-
matic
agent is
obtained
for the
courts.
When a crime has been committed in the house of a diplomatic
agent, or by a person in his employment, it may occur that his
evidence or that of one of his family or suite is necessary for the
purposes of justice. In such cases the state has no power to
compel the person invested with immunity to give evidence, and
still less to make him appear before the courts for the purpose of
doing so. It is customary therefore for the minister of foreign
affairs to apply to the diplomatic agent for the required deposi-
tions, and though the latter may in strictness refuse to make
them himself, or to allow persons under his control to make them,
it is the usage not to take advantage of the right. Generally
the evidence wanted is taken before the secretary of legation or
some official whom the minister consents to receive for the
purpose. When so taken it is of course communicated to the
court in writing. But where by the laws of the country evidence
must be given orally before the court, and in the presence of the
accused, it is proper for the minister or the member of the
mission whose testimony is needed to submit himself for ex-
amination in the usual manner. In 1856, a homicide having
been committed at Washington in presence of the Dutch minister,
he was requested to appear and to give evidence in the matter.
He refused; offering however to make a deposition in writing
upon oath, if his government should consent to his doing so.
As the Dutch government supported him in the course which he
took, his evidence was not given, and the affair ended by his
recall being demanded by the government of the United States".
The person of a diplomatic agent, his personal effects, and the
property belonging to him as representative of his sovereign, are
not subject to taxation. Otherwise he enjoys no exemption from
taxes or duties as of right. By courtesy however, most, if not
all, nations permit the entry free of duty of goods intended for
his private use *.
Immuni-
ties from
taxation.
* Calvo, $$ 583–4 and n. ; Halleck, i. 294.
* Calvo, $ 594 ; Bluntschli, $ 222 ; Halleck, i. 298. But for the intolerance
of religious feeling, which has always been ready to repress freedom at any
cost of inconsistency, it would never have been necessary whether with or
TO THE TERRITORY OF THE STATE 185
Two particulars only remain to be noted with respect to the PART II
CHAP. IV
legal position of a diplomatic agent. Of these the first is that
Domicil
he preserves his domicil in his own country, as a natural con- of t diplo-
º e & Iſlat, IC
sequence of the fact that his functions are determinable at the .
will of his sovereign, and that he has therefore no intention of
residence. The second is that notwithstanding the general rule º .
e * to legalise
that acts intended to have legal effect, in order to have such acts done
effect in the country where they are done, must conform to the tºing
territorial law, a diplomatic agent may legalise wills and other ...P.
unilateral acts, and contracts, including perhaps contracts of his own
marriage, made by or between members of his suite. It is said country.
by some writers that a diplomatic agent may also legalise
marriages between subjects of his state, other than members of
his suite, if specially authorised to do so by his sovereign; but
this view is unquestionably erroneous. There is no general
custom which places a state under an obligation to recognise
such marriages, and in some states they certainly will not be
recognised".
without the assumption of exterritoriality to lay down expressly that a diplo-
matic agent has a right to the exercise of his religion in a chapel within his
own house, provided that he does not provoke attention by the use of bells.
As the local authorities have no right of entry, except for the reasons
mentioned above, they ought to be officially ignorant of everything occurring
in the house, so long as it is not accompanied by external manifestations.
Most writers are, however, careful to state that the privilege exists. Its
possession is now happily too much a matter of course to make it worth
while to notice it in the text.
* The French courts would probably recognise the marriage of any two
foreigners performed in the Embassy of their country; but Germany, for
example, refuses to admit the validity of a marriage between two foreigners
who are not members of the ambassadorial suite.
Even in countries where the marriage of two foreigners may be permitted,
it is to be remembered that the marriage of a subject of the state with
a foreigner in the house of the ambassador of the state to which the
foreigner belongs, and according to the laws of the state, would not
generally be held to be good, and in some cases decisions to this effect have
been given. See for example Morgan v. French, in which the Tribunal
Civil de la Seine pronounced null a marriage between an Englishman and
a French subject, performed at the English Embassy (Journal de Droit Int.
Privé, 1874, p. 72), and the case of a marriage between an Austrian and an
Englishwoman, celebrated in English form at the English Embassy in
Vienna, which was held null by the Supreme Court of Austria, 17th Aug. 188o
186 SOWEREIGNTY IN RELATION
PART II The law with respect to the immunities of armed forces of the
CHAP. IV © e *
r.’’ state in foreign territory has undergone so much change, or at
nities of least has become so much hardened in a particular direction, with
jof the progress of time, and so much confusion might be imported
** into it, at any rate in England, by insufficient attention to the
date of precedents and authorities, that the safest way of ap-
proaching the subject will be by sketching its history.
History of Either from oversight or, as perhaps is more probable, because
*ge. the exercise of exclusive control by military and naval officers
not only over the internal economy of the forces under their
command, but over them as against external jurisdiction, was
formerly too much taken for granted to be worth mentioning,
the older writers on international law rarely give any attention
to the matter. Zouche is the only jurist of the seventeenth
century who notices it, and the paragraph which he devotes to
the immunities of armies and fleets is scarcely sufficient to give
a clear idea of his views as to their extent *. Casaregis, in the
(note to Gillespie's translation of Von Bar, p. 493). Belgium allows the
marriage of a Belgian man with a foreign woman in a foreign country
on express permission being obtained from the Minister of Foreign Affairs,
but it does not recognise a like marriage in Belgium ; Germany, while
rigidly maintaining her own territorial jurisdiction, permits marriage by
her diplomatic agent between foreigners and German subjects of either sex.
[It should be noted that under the Civil Code of the German Empire (Jan. I,
I900) domicil is no longer the ruling principle, as regards status and capacity, its
place having been taken by nationality or allegiance.] Practice in the matter
is in a state of discreditable confusion and uncertainty, the effects of which
have been painfully felt by not a few women. On the whole subject cf.
Lawrence, Commentaire, iii. 357–78 and Stocquardt in the Rev. de Dr. Int.
1888, pp. 260-3oo. [See also the same author's most recent summary of the
Continental Laws of Marriage in his studies on Private International Law
(1900), and Rev. de Dr. Int. 1899, pp. 357–8, for a suggested international
codification of the conditions necessary to give validity to marriages
contracted abroad.]
* Dissertation concerning the punishment of Ambassadors, Trans. by D. J.
p. 26 (1717). [The original was published in 1657.] It is curious and
interesting to find, as appears from a quotation in Zouche (1590–1661), that
the fiction of the exterritoriality of an army had come into existence, and
seems to have been recognised, in the time of Baldus (circa 14oo). Bartolus
(1313–1356) also said, according to Casaregis (circa 1670), ‘quod licet quis non
habet territorium si tamen habeat potestatem in certas personas, propter
illas personas dicitur habere territorium.’
TO THE TERRITORY OF THE STATE 187
eighteenth century, concedes exclusive jurisdiction to a sovereign
over the persons composing his naval and military forces and
over his ships, wherever they may be, on the ground that the
exercise of such jurisdiction is necessary to the existence of a
fleet or army". Lampredi, on the other hand, asserts it to be
the admitted doctrine that an army in foreign territory is subject
to the local jurisdiction in all matters unconnected with military
command; he maintains that the crew of a vessel of war in a
foreign harbour is subjected to the same extent as land forces to
the jurisdiction of the sovereign of the port, and that the vessel
itself is part of his territory; he expressly adds that a criminal
who has found refuge on board can be taken out of the ship by
force. Such jurisdiction as he permits to be exercised on behalf
of the sovereign of the military or naval force he rests, like
Casaregis, upon the necessities of military command *. In 1794
* Discursus de Commercio, 136, 9: ‘Quum vero de exercitu, vel bellica
classe, Seu militaribus navibus, agitur, tune tota jurisdictio super exercitum
vel classem residet penes principem, aut ejus ducem, quamvis exercitus vel
bellica classis existat super alieno territorio vel mari, quia ex belli consuetu-
dine illa jurisdictio quam habet rex, seu princeps, aut illorum duces super
exercitum prorogatur de suo ad aliorum territorium ; tum quia absolue tali
jurisdictione, exercitus vel classis conservari et consistere non posset tum
etiam ex aliis rationibus de quibus apud infra scriptos doctores; ” of whom
he gives a long list. ‘Quamobrem omnes et quoscunque, militiae suae, vel
terrestris, vel maritimae, milites et homines, etiam in alieno territorio
delinquentes, princeps, vel illius dux, qualibet poena, etiam capitali plectere
valet, vel quoscunque alios jurisdictionis actus erga eos exercere, ac si in
proprio territorio maneret.”
Upon the above passages Sir A. Cockburn, in his Memorandum appended
to the Report of the Fugitive Slave Commission, 1876 (p. xxxiii), argues that
there is in it “no express assertion as to exterritoriality in the sense in which
that term is now used, namely, as excluding the local jurisdiction.” There
is no doubt no such express assertion, but exclusive jurisdiction is necessarily
implied in the language which gives a sovereign the same jurisdiction over
his troops and naval forces in foreign countries as he has over them at home.
In his own dominions he does not admit concurrent jurisdiction.
* The illusion of exterritoriality, he says, “sparisce subito chè si rifletta
che questo esercizio di giurisdizione non è fondato sul gius del territorio, ma
Sulla natura del comando militare, il quale s'intende restare intatto e nel
suo pieno vigore ogni volta che il sovrano del luogo si contenta di ricevere
una nave di guerra come tale. . . . Escluso questo comando militare, che per
la qualità e natura della nave da guerra resta intatto, per ogni altro riguardo
e la nave s'intende territorio del sovrano del porto, e gli uomini di essa
|PART II
CHAP. IV
188 SOVEREIGNTY IN RELATION
PART II
ÇHAEP., IV
a similar view was taken by the Attorney-General of the United
States. An English sloop of war had entered the harbour of
Newport in Rhode Island. While she was there it was reported
that several American citizens were detained on board against
their will. The General Assembly of the State having taken
the matter into consideration resolved that five persons should go
on board to ascertain whether the alleged facts were true, and
the captain, who was on shore, acting apparently under some
personal constraint, furnished the deputation with a letter
requiring the officer in temporary command to afford them
every assistance. On an investigation being made on board it
was found that six men were Americans. These were discharged
by order of the captain, and the vessel was then allowed to take
in provisions, of which she was in want, and which she had until
then been prevented from obtaining. The British Minister at
Washington complained that ‘ the insult was “unparalleled,
since the measures pursued were directly contrary to the
principles which in all civilised states regulate cases of this
nature; for if on the arrival of a ship of war in a European
port, information be given that the ship of war has on board
subjects of the sovereign of that port, application is made to
the officer commanding her, who himself conducts the investiga-
tion, and if he discovers that any subjects be on board of his
vessel, he immediately releases them ; but if he be not satisfied
that there be any such, his declaration to that effect, on his
word of honour, is universally credited.” The question being
referred to the Attorney-General by his government, he says
Sottoposti alla sua giurisdizione. Loche é tanto vero che é dottrina comune
che anche un esercito straniero, che passa e dimora sopra l'altrui territorio,
ë sottoposto alla giurisdizione del luogo, escluso l’esercizio del comando
militare, che resta intatto appresso il suo comandante per il consenso tacito
del sovrano medesirmo, il quale avendo concesso il passo o la dimora all’
esercito forestiero s'intende aver concesso anche il comando militare, Senza
di cui esercito esser non pub per la nota ºregola di ragione che concesso un
diritto, s'intende concesso tutto cio senza cui quel diritto esercitare non si
potrebbe.’ Del Commercio dei Popoli Neutrali in Tempo di Guerra, p” I*,
§ x. Azumi (pt. i. ch. iii. art. vii) appropriates the language of Lampredi
without alteration.
TO THE TERRITORY OF THE STATE 189
that ‘the laws of nations invest the commander of a foreign
ship of war with no exemption from the jurisdiction of the
country into which he comes,’ and ‘conceives that a writ of
habeas corpus might be legally awarded in such a case, although
the respect due to the foreign sovereign may require that a clear
case be made out before the writ may be directed to issue".” A few
years later an opinion to the same effect was given by a subsequent
Attorney-General. In a case which arose in connexion with the
English packet Chesterfield he advised that ‘it is lawful to serve
civil or criminal process upon a person on board a British ship of
war lying in the harbour of New York; ” in coming to this con-
clusion he relied partly upon general considerations and partly
upon an Act of Congress, of June 5, 1794, which enacted ‘ that in
every case in which any process issuing out of any court of the
United States shall be disobeyed or resisted by any person or
persons having the custody of any vessel of war, cruiser, or other
armed vessel of any foreign prince or state, or of the subjects
or citizens of such prince or state, it shall be lawful for the
President of the United States to employ such part of the land
and naval force of the United States or of the militia thereof
as shall be judged necessary”.’ It is said that the same doctrine
* Report of the Commission on Fugitive Slaves, p. lxxiii. Mr. Rothery
argues with reference to this case that the British minister ‘nowhere
complains of the illegal character of these proceedings, or that the local
authorities had no right to demand the delivery up of American subjects
held on board against their will ; there is here no claim of exterritoriality ;
no pretence that a ship of war is exempt from interference by the local
authorities.’ The word “illegal’ is no doubt not used ; but it is not commonly
used in diplomatic notes. In stating a custom as universal, and stigmatising
action at variance with it as being contrary to the ‘principles’ guiding
nations in such matters, the minister clearly indicates that the measures
complained of were in his view illegal. In his opinion the law probably was
this :—The captain of a ship of war has no right to keep subjects of a foreign
state on board against their will within the territorial waters of their own
country; the authorities of the state have no right to enter the ship or to
employ measures of constraint ; if they have reason to believe that subjects
of the state are improperly kept on board, and they are unable to procure
their release from the commander, their remedy is by complaint to his
sovereign. *
* Report of Commission on Fugitive Slaves, p. lxxv. The act must of
PART II
PHA-P. IV"
190 SOWEREIGNTY IN RELATION
PART II
CHAP. IV
as that laid down by the Attorney-General of the United States
in 1794 would probably be held by the courts of Great Britain";
it is certain that the pretension to search vessels of war, so long
made by England, was incompatible with an acknowledgment
that they possess a territorial character; and Lord Stowell, on
being consulted by his government in 1820, with reference to
the case of an Englishman who took refuge on board a man
of war at Callao after escaping from prison, into which he had
been thrown for political reasons, answers the question, “whether
any British subject coming on board one of his Majesty’s ships
of war in a foreign port escaping from civil or criminal process
in such port, and from the jurisdiction of the state within whose
territory such port may be situated, is entitled to the protection
of the British flag, and to be deemed as within the kingdom
of Great Britain and Ireland,” by saying that he had ‘no
hesitation in declaring that he knew of no such right of
protection belonging to the British flag, and that he thought
such a pretension unfounded in point of principle, injurious to
the rights of other countries, and inconsistent with those of our
own; * and added that ‘ the Spaniards would not have been
chargeable with illegal violence if they had thought proper to
employ force in taking' the person whose case was under dis-
cussion ‘out of the British vessel”.”
So far the opinion of Casaregis and the statement made by the
British minister at Washington in 1794 with respect to the then
custom of nations has to be weighed against the opinion of
Lampredi and the views which, there is strong reason to believe,
were predominant in the United States and England. But the
doctrines held in the United States have changed, and the
practice of England has not been uniform. In 1810 Chief
Justice Marshall took occasion, in delivering judgment in a case
turning upon the competence of the judicial tribunals of a state
course be read subject to whatever may be the ascertained rules of inter-
national law from time to time.
* Phillimore, i. § cccxlvi.
* Report of Commission on Fugitive Slaves, p. lxxvi.
TO THE TERRITORY OF THE STATE 191
to entertain a question as to the title to or ownership of a public
armed ship in the service of a foreign country, to lay down the
principles of law which in the opinion of the Supreme Court were
applicable to a vessel of war in the territorial waters of another
state. According to him the ‘purposes for which a passage is
granted ' to the troops or ships of a foreign power would be
defeated, and a portion of the military force of a foreign, inde-
pendent nation would be diverted from those national objects
and duties to which it was applicable, and would be withdrawn
from the control of the sovereign whose power and whose safety
might greatly depend on retaining the exclusive command and
disposition of this force’ unless the exercise of jurisdiction were
abandoned by the territorial sovereign; ‘the grant of a free
passage' or the permission to enter ports “therefore implies a
waiver of all jurisdiction.” The immunity thus conceded rested
no doubt upon a consent to the usage, which might be withdrawn
by any particular state, but it could only be withdrawn by notice
given before the entry of the force over which it might be
attempted to exercise jurisdiction, and ‘ certainly in practice
nations have not yet asserted their jurisdiction over the public
armed ships of a foreign sovereign entering a port open for their
reception.” The doctrine is afterwards qualified by the proviso
that a ship entering the ports of a foreign power shall demean
herself in a friendly manner".” The expression is somewhat
vague, and may possibly leave a vessel subject to the ordinary
&
* The Schooner Exchange v. M'Faddon, vii Cranch, 141–6. The view taken
by Justice Story (La Santissima Trinidad, vii. Wheaton, 353) of the intention
of Chief Justice Marshall seems to be different from that which is taken
above. It is to be noticed, however, that in paraphrasing the language of
the Chief Justice he uses the expression “according to law and in a friendly
manner’ instead of the words ‘in a friendly manner” alone, thus wholly
changing the effect of the clause. As also he puts sovereigns and public
vessels of war on the same footing, he either gives larger immunities to ships
than he would appear at first sight to be willing to concede, or he rejects the
universally received doctrine as to the immunities of sovereigns. Wheaton
(pt. ii. ch. ii. § 9) evidently regards the language of the Chief Justice as
referring only to ‘acts of hostility,’ and as merely sanctioning the use by
“the local tribunals and authorities’ of such ‘measures of self-defence as the
security of the state may require.”
PART II
CHAP. IV
192 SOWEREIGNTY IN RELATION
jurisdiction of the courts in so far as a state act of which it is
the vehicle renders it obnoxious to the territorial law. Such
a construction would however be forced, and in any case the
vessel is evidently regarded as covering the persons on board her
from both civil and criminal jurisdiction in respect of all matters
affecting them only as individuals. The opinion of Wheaton
and Halleck concurs with that of Chief Justice Marshall, upon
whose judgment indeed it may be regarded as founded.
Dr. Woolsey goes further, and adopts the doctrine of exterri-
toriality, which was also asserted by Mr. Cushing, when
Attorney-General of the United States. In 1856 a vessel called
the Sitka, captured by the English from the Russians, entered
the harbour of San Francisco with a prize crew and some Russian
prisoners on board. Application being made to the Californian
courts on behalf of the latter a writ of habeas corpus was issued,
upon service of which the Sitka set sail without obeying its
order. The government of the United States being doubtful
whether a cause of complaint had arisen against England, re-
ferred the question to their Attorney-General, who advised that
the courts of the United States, have “adopted unequivocally
the doctrine that a public ship of war of a foreign sovereign,
at peace with the United States, coming into our ports and
demeaning herself in a friendly manner, is exempt from the
jurisdiction of the country. She remains a part of the territory
of her sovereign. . . . The ship ’ which the captain of the
Sitka ‘commanded was a part of the territory of his country; it
was threatened with invasion from the local courts; and perhaps
it was not only lawful, but highly discreet, in him to depart and
avoid unprofitable controversy". Turning to England, it is no
doubt true that under the Customs Acts foreign ships of war
are liable to be searched, and that it has been the practice to
surrender slaves who have taken refuge on board English war-
vessels lying in the waters of the states where slavery exists
PART II
CHAP. IV
* Wheaton, Elem. pt. ii. ch. ii. § 9 ; Halleck, i. 176; Woolsey, § 58
and 68; Report of Commission on Fugitive Slaves, p. xl.
TO THE TERRITORY OF THE STATE 193
under sanction of the territorial law ; but, on the other hand,
political refugees have often been received on board British men
of war, the Admiralty Instructions inform officers in command
PART II
CHAP. IV
that ‘ during political disturbances or popular tumults refuge
may be afforded to persons flying from immediate personal
danger,’ and in a letter, written by order of Lord Palmerston
in 1849 with reference to the occurrences then taking place in
Naples and Sicily, it is stated that ‘it would not be right to
receive and harbour on board a British ship of war any person
flying from justice on a criminal charge, or who was escaping
from the sentence of a court of law ; but a British ship of war
has always and everywhere been considered as a safe place of
refuge for persons of whatever country or party who have sought
shelter under the British flag from persecution on account of
their political conduct or opinions.” As persons who are in
danger of their life because of their political acts are usually
looked upon as criminals by the successful party in the state,
the distinction here drawn is clearly one of mere propriety. In
law, the right of asylum is upheld. Again, the most recent
instructions with regard to slaves assert theoretically the right
of granting asylum, and leave a very wide discretion to com-
manding officers as to its exercise. Finally, so far as England
is concerned, Sir R. Phillimore, Sir Travers Twiss, Sir W.
Harcourt, and Mr. Bernard are agreed in holding that the laws
of a state cannot be forcibly executed on board a foreign vessel
of war lying in its waters unless by the order or permission of
the commanding officer".
There not being indications that opinion has varied in other
countries to the same extent as in England and the United
* I6 and 17 Vict. c. To", sect. 52; Mundy's H.M.S. Hannibal at Palermo,
p. 76; Opinion of Sir R. Phillimore and Mr. Bernard, Rep. of Fugitive
Slave Commission, p. xxvi; Letter of Historicus to the Times of Nov. 4, 1875,
quoted ib. p. lxii; Law Magazine and Review, No. ccxix. The majority of
the Fugitive Slave Commission appear to have adopted views which would
reduce the immunities of vessels of war to a shadow ; but in the special
matter of International Law their authority cannot be regarded as equal to
that of the four jurists above mentioned.
HALL O
194 SOWEREIGNTY IN RELATION
PART II
CHAP. IV
Immu-
inities of
public
vessels.
States, the views at present entertained on the continent of
Europe may be dismissed more quickly. In France the terri-
toriality of a vessel of war is distinctly asserted by most writers,
and the practice of the courts with regard to mercantile ships
raises a strong presumption that public vessels would be
considered by them to possess immunity in the highest degree".
In Germany and Italy it appears, from information given by
the governments of those countries to the English Commission
on Fugitive Slaves, that a ship of war is regarded as part of
the national territory, and by the latter state it is expressly
declared that “a slave who might take refuge on an Italian
ship, considered by the government as a continuance of the
national territory, whether on the high seas or in territorial
waters, must be considered as perfectly free.” The works of
MM. Heffter and Bluntschli show that the jurists of Germany
are in agreement with their government. That the doctrine
accepted in Spain is similar may be inferred from its occurrence
in the text-book which is used by royal order in the naval
academies”.
From what has been said it is clear that there is now a great
preponderance of authority in favour of the view that a vessel
of war in foreign waters is to be regarded as not subject to the
* Ortolan, who was himself a naval officer, says “la coutume internationale
est constante ; ces navires restent régis uniquement par la Souveraineté de
leur pays; les lois, les autorités et les jurisdictions de l’état dans les eaux
duquel ils sont mouillés leur restent étrangères; ils n'ont avec cet état que
des relations internationales, par la voie des fonctionnaires de la localité
compétents pour de pareilles relations’ (Dip. de la Mer, liv. ii. ch. x). Foelix,
liv. ii. tit. ix. ch. i. § 544, in effect says that a vessel of war remains “a con-
tinuation of the territory’ when in foreign waters. See also Hautefeuille,
tit. vi. ch. i. sect. I.
* Report of the Fugitive Slave Commission, p. viii. Heffter, § 79, dismisses
the subject in a few words, but the scope of his views may be judged from
his references; Bluntschli, $ 321—this section must be read by the light of
the previous sections on exterritoriality; Negrin, Tratado de Derecho
Internacional Maritimo, tit. i. cap. iv. See also Riquelme, i. 228. Fiore
(§§ 532–9) in some respects reduces the privileges of a man of war below the
point at which they are supposed to stand by the majority of the Fugitive
Slave Commission. He would give a right, in certain circumstances, of
arresting the officer commanding on his own quarterdeck.
TO THE TERRITORY OF THE STATE 195
territorial jurisdiction. This being the case the law may
probably be stated as follows:— .
A vessel of war, or other public vessel of the state, when in
foreign waters is exempt from the territorial jurisdiction; but
her crew and other persons on board of her cannot ignore the
laws of the country in which she is lying, as if she constituted
a territorial enclave. On the contrary, those laws must as a
general rule be respected. Exceptions to this obligation exist,
in the case of acts beginning and ending on board the ship
and taking no effect externally to her, firstly in all matters
in which the economy of the ship or the relations of persons
on board to each other are exclusively touched", and secondly
to the extent that any special custom derogating from the
territorial law may have been established, perhaps also in so
far as the territorial law is contrary to what may be called the
public policy of the civilised world. In the case of acts done
on board the vessel, which take effect externally to her, the
range of exception is narrower. The territorial law, including
administrative rules, such as quarantine regulations and rules
of the port, must be respected, to the exception, it is probable,
of instances only in which there is a special custom to the
contrary. When persons on board a vessel protected by the
immunity under consideration fail to respect the territorial law
within proper limits the aggrieved state must as a rule apply
for redress to the government of the country to which the vessel
belongs, all ordinary remedies for, or restraints upon, the
commission by persons so protected of wrongful acts affecting
the territory of a state being forbidden. In extreme cases,
PART II
CHAP. IV
however, as where the peace of a country is seriously threatened
or its sovereignty is infringed, measures may be taken against
the ship itself, analogous to those which in like circumstances
may be taken against a sovereign; it may be summarily
* The case, which however would be extremely rare on board a ship of war,
of a crime committed by a subject of the state within which the vessel is
lying against a fellow-subject, would no doubt be an exception to this. It
would be the duty of the captain to surrender the criminal.
O 2.
196 SOWEREIGNTY IN RELATION
ordered out of the territory, and it may if necessary be forcibly
expelled.
Thus—to illustrate some of the foregoing doctrines—under
the general rule of respect for the laws of a state it is wrong
for a ship to harbour a criminal or a person charged with non-
political crimes. If, however, such a person succeeds in getting
on board, and is afforded refuge, he cannot be taken out of the
vessel. No entry can be made upon her for any purpose
whatever. His surrender, which is required by due respect
for the territorial law, must be obtained diplomatically. In
like manner, if an offence is committed on board which takes
effect externally, and the captain refuses to make reparation—if,
for example, he were to refuse to give up or to punish a person
who while within the vessel had shot another person outside,-
application for redress must be made to the government to
which the ship belongs. If, on the other hand, the captain
of a vessel were to allow political refugees to maintain com-
munication with the shore and to make the ship a focus of
intrigue, or if he were to send a party of marines to arrest a
deserter, an extreme case would arise, in which the imminence
of danger in the one instance, and in the other the disregard
of the sovereign rights of the state, would justify the exceptional
measure of expulsion. The case is again different if a political
refugee is granted simple hospitality. The right to protect him
has been acquired by custom. He ought not to be sought out
or invited, but if he appears at the side of the ship and asks
admittance he need not be turned away, and so long as he is
innoxious the territorial government has no right either to
demand his surrender or to expel the ship on account of his
reception *. It is a more delicate matter to indicate cases in
|PART II
CHAP. Iv
* Something more may be permitted, or may even be due, in the case of
the chiefs, or of prominent members, of a government overturned by revolu-
tion. They retain a certain odour of legitimacy. In 1848 the admiral
commanding the British Mediterranean squadron detached a vessel to take
the Pope on board in case the refuge were needed ; and in 1862, on the
outbreak of revolution in Greece, a British frigate escorted a Greek man of
TO THE TERRITORY OF THE STATE 197
which the local law may be disregarded on the ground of its
repugnance to the public policy of the civilised world. It may
indeed be doubtful whether any municipal law now existing
in civilised or semi-civilised states has been so settled to be
repugnant to public policy that a fair right to disregard it has
arisen. It can only be said that it may be open to argument
whether the reception of slaves might not be so justified. -
When acts are done on board a ship which take effect outside
it, and which if done on board an unprivileged vessel would give
a right of action in the civil tribunals, proceedings in the form
of a suit may perhaps be taken, provided that the court is able
and willing to sit as a mere court of enquiry, and provided
consequently that no attempt is made to enforce the judgment.
In at least one case the British Admiralty has paid damages
awarded by a foreign court against the captain of a ship of war
in respect of a collision between his vessel and a merchant vessel
in the port. It must, however, be clearly understood that the
judgment of the court can have no operative force; the pro-
ceedings taken can only be a means of establishing the facts
which have occurred; and the judgment given can only be used
in support of a claim diplomatically urged when its justice is
not voluntarily recognised by the foreign government".
war, with the King and Queen on board, out of Greek waters and received
them so soon as some slight danger of mutiny appeared. [In September,
1898, Kang-yu-Wei the Chinese Reformer, who had escaped from Tien-tsin
in a steamer belonging to Messrs. Jardine Mathieson, was placed on board
a P. and O. at Wu-Sung and thence escorted to Hong-Kong by H. M. S.
Bonaventure.]
* As the language of Lord Stowell in the case of the Prinz Frederik
(ii Dodson, 484) suggests that under his guidance the English Courts might
have asserted jurisdiction over a ship of war, to which Salvage services have
been rendered, for remuneration in respect of such services, and as, in
1873, Sir R. Phillimore, in the case of the Charkieh (L. R. iv. Admiralty
and Ecclesiastical cases, pp. 93, 96, expressed a strong doubt upon the
point, and at any rate was ‘disposed’ to hold that “within the ebb and flow
of the sea the obligatio ex quasi contractu attaches jure gentium upon the ship
to which the service has been rendered,’ it may be worth while to notice
that in a more recent case the latter judge decided that proceedings for
salvage could not be taken against a foreign public vessel. In January, 1879,
the United States frigate Constitution, laden with machinery which was
PART II
CHAP. IV
198 SOWEREIGNTY IN RELATION
PART II. The immunities of a vessel of war belong to her as a complete
"*" instrument, made up of vessel and crew, and intended to be
used by the state for specific purposes; the elements of which
she is composed are not capable of separate use for those
purposes; they consequently are not exempted from the local
jurisdiction. If a ship of war is abandoned by her crew she is
merely property; if members of her crew go outside the ship or
her tenders or boats they are liable in every respect to the
territorial jurisdiction. Even the captain is not considered to be
individually exempt in respect of acts not done in his capacity
of agent of his state. Possessing his ship, in which he is not
only protected, but in which he has entire freedom of movement,
he lies under no necessity of exposing himself to the exercise of
the jurisdiction of the country, and if he does so voluntarily
he may fairly be expected to take the consequences of his act.
Immuni- Military forces enter the territory of a state in amity with
º, that to which they belong, either when crossing to and fro
forces between the main part of their country and an isolated piece
of it, or as allies passing through for the purposes of a campaign,
or furnishing garrisons for protection. In cases of the former
kind, the passage of soldiers being frequent, it is usual to
conclude conventions, specifying the line of road to be followed
by them, and regulating their transit so as to make it as little
being taken back to New York from the Paris Exhibition at the expense of
the American government, went aground upon the English coast near
Swanage. Assistance was rendered by a tug ; and a disagreement having
taken place between its owner and the agents of the American government
as to the amount of the remuneration to which the former was fairly entitled,
application was made for a warrant to issue for the arrest of the Constitution
and her cargo. The American government objected to the exercise of
jurisdiction by the court ; the objection was supported by counsel on behalf
of the crown ; and the application was refused on the ground that the vessel
* being a war frigate of the United States navy, and having on board a cargo
for national purposes, was not amenable to the civil jurisdiction of this
country.” The Constitution, L. R. iv. P. D. I56. The principle upon which
this case was decided does not conflict with that of the judgment in the case
of the Newbattle (L. R. x. P. D. 33), where a foreign government was itself
the plaintiff. In this the principle of the King of Spain v. Hallet and
Widder was simply reaffirmed. Cf. antea, p. 17o n.
TO THE TERRITORY OF THE STATE 199
onerous as possible to the population among whom they are. PART II
Under such conventions offences committed by soldiers against “ ”
the inhabitants are dealt with by the military authorities of
the state to which the former belong; and as their general
object in other respects is simply regulatory of details, it is not
necessary to look upon them as intended in any respect to modify
the rights of jurisdiction possessed by the parties to them
respectively". There can be no question that the concession
of jurisdiction over passing troops to the local authorities would
be extremely inconvenient; and it is believed that the com-
manders, not only of forces in transit through a friendly
country with which no convention exists, but also of forces
stationed there, assert exclusive jurisdiction in principle in
respect of offences committed by persons under their command,
though they may be willing as a matter of concession to hand
over culprits to the civil power when they have confidence in
the courts, and when their stay is likely to be long enough to
allow of the case being watched. The existence of a double
jurisdiction in a foreign country being scarcely compatible with
the discipline of an army, it is evident that there would be some
difficulty in carrying out any other arrangement”.
* See for example the Etappen Convention between Prussia and Hanover
in 1816, or that between Prussia and Brunswick in 1835 (De Martens, Nouv.
Rec. iv. 321, and Nouv. Rec. Gén. vii. i. 60).
* Won Bar (Das Internationale Privat- und Strafrecht, § 145) thinks that
“Verbrechen und Vergehen welche von den fremden Soldaten gegen Camera-
den und Vorgesetzte Oder gegen die Heeresordnung oder gegen den eigenen
Staat begangen werden, fallen vorzugsweise der inneren Disciplin anheim
und sind, da die Disciplinargewalt einem fremden Heere, welchem man
den Eintritt in das Staatsgebiet erlaubt, nothwendig zugestanden werden
muss, lediglich den Strafgesetzen und Gerichten des Staats unterworfen,
dem die Truppen angehören. Bei Verbrechen dagegen, welche entweder
andere nicht zur fremden Armee gehörige Personen oder die Öffentliche
Ruhe gefährden, kann die Strafgewalt des Staats, in dessen Gebiete die
Truppen sich befinden, als ipso jure ausgeschlossen wohl nicht angesehen
werden : es wird daher in Ermangelung eines besondern Vertrags die
Prävention entscheiden.’ Fiore (§§ 513–14) considers that within the lines
of the army the jurisdiction of the country reigns to which the army belongs;
but that any member of the force found outside its lines may be subjected to
the local jurisdiction.
200 SOWEREIGNTY IN RELATION
PART II’
CHAP. IV.
Reasons :
for dis-
carding
the fiction
of exterri-
toriality.
Immu-
nities of
foreign
public
property
other than
public
vessels of
the state.
If the view that has been presented of the extent and nature
of the immunities which have been hitherto discussed be correct,
it is clear that the fiction of exterritoriality is not needed to
explain them, and even that its use is inconvenient. It is not
needed, because the immunities possessed by different persons
and things can be accounted for by referring their origin to
motives of simple convenience or necessity, and because there
is a reasonable correspondence between their present extent and
that which would be expected on the supposition of such an
origin. The only immunities, in fact, upon the scope of which
the fiction of exterritoriality has probably had much effect, are
those of a vessel of war, which seem undoubtedly to owe some
of the consolidation which they have received during the present
century to its influence. The fiction is moreover inconvenient,
because it gives a false notion of identity between immunities
which are really distinct both in object and extent, and because
no set of immunities fully corresponds with what is implied in
the doctrine. Nothing in any case is gained by introducing the
complexity of fiction when a practice can be sufficiently explained
by simple reference to requirements of national life which have
given rise to it; where the fiction fails even to correspond with
usage, its adoption is indefensible.
Besides public vessels of the state properly so called, other
vessels employed in the public service, and property possessed by
the state within foreign jurisdiction, are exempted from the
operation of the local sovereignty to the extent, but to the
extent only, that is required for the service of the state owning
such vessels or property. Thus to take an illustration from a
case which, though municipal, was decided on the analogy of
international law; a lien cannot be enforced upon a light ship,
built for a state in a foreign country. It must be allowed to
issue from the territory without impediment. But there its
privileges end. Unlike a ship of war its efficiency is not
interfered with by the exercise of local jurisdiction over the
crew. The mercantile crew which navigates it can be replaced,
TO THE TERRITORY OF THE STATE 201
if necessary; and there is no reason why, if a crime is committed PART II
on board which interests the local authority, entry should not be “”
made and the criminal apprehended, as in the case of an ordinary
merchant ship. Practically immunity to this extent amounts to
a complete immunity of property, whenever no question of
jurisdiction over persons arises. If in a question with respect
to property coming before the courts a foreign state shows the
property to be its own, and claims delivery, jurisdiction at once
fails, except in so far as it may be needed for the protection of
the foreign state 1.
Merchant vessels lying in the ports of a foreign state enjoy a Merchant
varying amount of immunity from the local jurisdiction by the ...'
practice of most, and perhaps of all, states, and there are some ºreign
writers who pretend that the practice has been incorporated into
international law. The notion that merchant vessels have a
right to immunity is closely connected with the doctrine, which
with reference to them will be discussed in a later chapter, that
ships are floating portions of the country upon which they
depend; and perhaps apart from this doctrine it would not have
acquired the influence which it possesses; but the two are not
inseparable, and so far as appears from a judgment of the Court
of Cassation, which settled the French law upon the subject, the
practice in France, where attention was probably first drawn to
the matter, did not originally found itself on the doctrine. It
may therefore be considered independently, and it will not lose
by dissociation from an inadmissible fiction.
* Briggs v. Light Boats, xi Allen, 157. In England, the Courts have
refused to allow the seizure by state creditors of bonds and moneys in
London belonging to the Queen of Portugal as sovereign (De Haber v. the
Queen of Portugal, xx Law Journal, Q. B. 488), and to order shells bought by
the Mikado of Japan in Germany to be destroyed, because of an infringement
of an English patent, on coming within English jurisdiction (Vavasseur v.
Krupp, L. R. ix. Ch. D. 351).
A claim of immunity for goods sent to an industrial exhibition has recently
been made on two occasions in the French Courts, and has been refused by
them. It is scarcely necessary to say that the claim is wholly destitute of
foundation. It is not worth while to state the arguments in support of it :
they can be found reported in Calvo, $ 628.
202 SOVEREIGNTY IN RELATION
According to the view held by the writers in question, the
crew of a merchant ship lying in a foreign port is unlike a
collection of isolated strangers travelling in the country; it is
an organised body of men, governed internally in conformity
with the laws of their state, enrolled under its control, and
subordinated to an officer who is recognised by the public
authority; although therefore the vessel which they occupy
is not altogether a public vessel, yet it carries about a sort of
atmosphere of the national government which still surrounds
it when in the waters of another state'. Taking this view,
PART II
CHAP. IV
* Like views were urged by Mr. Webster in the correspondence on the
Creole case. ‘The rule of law,’ he says, “and the comity and practice of
nations allow a merchant vessel coming into any open port of another
country voluntarily, for the purpose of lawful trade, to bring with her and
keep over her to a very considerable extent the jurisdiction and authority
of the laws of her own country. A ship, say the publicists, though at
anchor in a foreign llarbour, possesses its jurisdiction and its laws. . . . It is
true that the jurisdiction of a nation over a vessel belonging to it, while
lying in the port of another, is not necessarily wholly exclusive. We do not
so consider, or so assert it. For any unlawful acts done by her while thus
lying in port, and for all contracts entered into while there, by her master or
owners, she and they must doubtless be answerable to the laws of the place.
Nor if the master and crew while on board in such port break the peace of
the community by the commission of crimes can exemption be claimed for
them. But nevertheless the law of nations as I have stated it, and the
statutes of governments founded on that law, as I have referred to them,
show that enlightened nations in modern times do clearly hold that the
jurisdiction and laws of a nation accompany her ships, not only over the
high seas, but into ports and harbours, or wheresoever else they may be
water borne, for the general purpose of governing and regulating the rights,
duties and obligations of those on board thereof; and that to the extent of
the exercise of this jurisdiction they are considered as parts of the territory
of the nation itself.’ He went on to argue that slaves, so long as they
remained on board an American vessel in English waters, did not fall under
the operation of English law. Mr. Webster to Lord Ashburton, Aug. 1, 1842,
State Papers, 1843, lxi. 35. Mr. Webster would have been embarrassed if he
had been compelled to prove the legal value of all that he above states to be
law by reference to sufficient authority. The amount of authority which
could be adduced in favour of his doctrine at that time was distinctly less
than that by which it is now supported. -
Wheaton, though not originally in favour of these views, is said to have
subsequently adopted them [Elements, 3rd English edition, p. 15I]; they are
apparently thought by Halleck (i. I91) to be authoritative, and are broadly
laid down as being so by Negrin (Ioa). Massé (Droit Commercial, § 527)
and Calvo (§§ II IO-II and II2I) approve of the practice without seeming to
TO THE TERRITORY OF THE STATE 208
the French government and courts have concluded that “there
is a distinction between acts relating solely to the internal
discipline of the vessel, or even crimes and lesser offences
committed by one of the crew against another, when the peace
of the port is not affected, on the one hand; and on the other,
crimes or lesser offences committed upon or by persons not
belonging to the crew, or even by members of it upon each
other, provided in the latter case that the peace of the port
is compromised.” In two instances it has been held by the
superior courts that in cases of the former kind the local
authorities have not jurisdiction, and in another, the court of
Rennes having some doubt as to the applicability of the principle
upon which the earlier cases were decided, the government, on
being consulted, directed that the offender should be given into
the custody of the authorities on board his own ship".
Many states profess to follow the example of France in their
own ports; and in a considerable number of recent consular
conventions it is stipulated that consuls shall have exclusive
charge of the purely internal order of the merchant vessels of
their nation, and that the local authorities shall only have a
right of interference when either the peace or public order of
the port or its neighbourhood is disturbed, or when persons
other than the officers and crew of a ship are mixed up in the
breach of order which is committed”. Practice however, even in
France, is by no means consistent, and consular conventions
seem occasionally to be subjected to very elastic interpretation.
When the second mate of an American vessel lying in the port
regard it as strictly authoritative. It is difficult to combine Bluntschli’s
320th with his 319th section. Heffter (§ 79), Twiss (i. § 159), and Phillimore
(i. § cccxlviii) simply state the existing law.
* Ortolan, Dip. de la Mer, liv. ii. ch. x. and xiii, and Append., Annexe J.
* In the treaties of commerce between the United States and the Two
Sicilies in 1855 (Nouv. Rec. Gén. xvi. i. 521) and between the Zollverein and
Mexico in the same year (ib. xvi. ii. 265), and in some consular conventions,
e.g. between Bolivia and Venezuela in 1883 (Nouv. Rec. Gén. 2° sér. xv. 762),
consuls are given power to judge differences arising between masters and
Crews of vessels of their state “as arbitrators.”
PART II
CHAP. IV
204 SOWEREIGNTY IN RELATION
PART II of Havre killed one sailor and wounded another, the Cour de
(JFHAP, IV
Cassation delivered a judgment which in effect asserted that
merchant vessels were fully under the local jurisdiction whenever
the state saw fit to exercise it; and in the United States the
Supreme Court has held that a local court rightly took cognizance
of a case, in which one man was stabbed by another during an
affray that occurred between decks on a Belgian vessel and was
unknown outside, notwithstanding that a consular convention
existed between Belgium and the United States under which
the local authorities were forbidden to interfere except where
disorder arose of such nature as to disturb tranquillity or public
order on shore or in the port ".
To whatever extent the view that merchant ships possess an
immunity from the local jurisdiction is in course of imposing
itself upon the conduct of states, it cannot as yet claim to be
of compulsory international authority. It is far from being
supported by the long continuance and generality of usage
which, in the absence of consent, are needed to give legal value
to a doctrine derogating from so fundamental a principle as is
that of sovereignty. At the same time the numerous con-
ventions, and the voluntary abstention from the exercise of
jurisdiction which everywhere more or less prevails, point
towards the proximate formation of a uniform custom which
would be reasonable in the abstract, and singularly little open
to practical objections.
There is the more reason for acceding to what may be called
the French opinion as to the limits within which local jurisdiction
over vessels lying in the ports of a country ought to be put in
force, that its adoption would render the measure of jurisdiction
in their case identical with that which must ultimately be agreed
Passing
vessels.
* Case of the Tempest, Dalloz, Jurisprudence Générale, Année 1859, p. 92;
Wildenhus' Case, U. S. Reps. cxx, p. 1. &
The practice of the Courts of the United States, apart from consular
conventions, seems to be to take cognizance of all cases except those
involving acts of mere interior discipline of the vessel. Wharton, Digest,
$ 35 a.
TO THE TERRITORY OF THE STATE 205
upon as applicable to merchant vessels passing through territorial PART II
waters in the course of a voyage. CHAP. IV"
The position in which the latter ought to be placed has
hitherto been little attended to, and few cases have arisen
tending to define it; but with the constantly increasing traffic
of ships questions are more and more likely to present themselves,
and it would be convenient that the broad and obvious line of
conduct which is marked out by the circumstances of the case
should be followed by all nations in common. It would also be
convenient that the amount of jurisdiction to be exercised by
a state in its ports and in its territorial waters in general should
be made the same under a practice or understanding sufficiently
wide to become authoritative. There is no reason for any
distinction between the immunities of a ship in the act of using
its right of innocent passage, and of a ship at rest in the
harbours of the state; and if there were any reason, it would
still be difficult to settle the point at which a distinction should
be made. Suppose, for example, a difference to be established
between the extent of the jurisdiction to which a passing vessel
and a vessel remaining within the territory, or entering a port,
is subjected; is a vessel which from stress of weather casts
anchor for a few hours in a bay within the legal limits of a
port, though perhaps twenty miles from the actual harbour, to
be brought within the fuller jurisdiction; and if not, in what is
entering a port to consist P
Looking at the case of passing vessels by itself, there being Limits
at present no clear usage in the matter, a state must be held *m.
to preserve territorial jurisdiction, in so far as it may choose to º
exercise it, over the ships and the persons on board, as fully as tion ought
- © tº g sº tº g $ to be ex-
over ships and persons within other parts of its territory". At excised
Over them.
* Casaregis, De Commercio, disc. 136. I ; Wolff, Jus Gent. cap. i. § 131 ;
Lampredi, Pub. Jur. Theorem. pt. iii. cap. ii. § ix. 8 ; Wheaton, Elem. pt. ii.
ch. iv. § 6; Heffter, § 75. Much learning on the subject of the sovereignty
of a state over non-territorial waters, in its bearing on passing vessels,
is to be found in the judgment in Reg. v. Keyn—Franconia Case–(L. R.
206 - SOWEREIGNTY IN RELATION
the same time it is evident that the interests of the state are
confined to acts taking effect outside the ship. The state is
interested in preventing its shore fisheries from being poached,
in repressing smuggling, and in being able to punish reckless
conduct endangering the lives of persons on shore, negligent
navigation by which the death of persons in other ships or boats
may have been caused, and crimes of violence committed by
persons on board upon others outside; and not only is it
interested in such cases, not only may it reasonably be unwilling
to trust to justice being done with respect to them by another
state, it is also more favourably placed for arriving at the truth
when they occur, and consequently for administering justice,
than the country to which the vessel belongs can be. On the
other hand, the state is both indifferent to, and unfavourably
placed for learning, what happens among a knot of foreigners
so passing through her territory as not to come in contact with
the population. To attempt to exercise jurisdiction in respect
of acts producing no effect beyond the vessel, and not tending
to do so", is of advantage to no one. -
It seems then reasonable to conclude that states, besides
exercising such jurisdiction as is necessary for their safety and
for the fulfilment of their international duties, ought to reserve
to themselves such ordinary jurisdiction as is necessary to maintain
customs and other public regulations within their territorial
waters, and to provide, both administratively and by way of
PART II
CHAP. IV
ii Exchequer Div. 63); but the case was decided adversely to the jurisdiction
of the state upon grounds of municipal and not of international law. The
statute 41 and 42 Vict. c. 73 (the Territorial Waters Jurisdiction Act, 1878),
has since been enacted, which asserts sovereignty over British territorial
waters, by conferring upon the Court of Queen’s Bench, &c., jurisdiction
in respect of acts done within a marine league of the shore, subject to the
proviso that such jurisdiction shall only be exercised in England with
the consent of a secretary of state, and in a Colony with the consent of
the governor.
* Of course in the case of infectious disease the mere anchorage of a
vessel in places where there is a risk of the disease spreading may be pre-
vented, although nothing has been done, and nothing has occurred, actual]
producing effect beyond the vessel. -
TO THE TERRITORY OF THE STATE 207
civil and criminal justice, for the safety of persons and property PART II
upon them and the adjacent coasts". CHAP. IV
A merchant vessel while on non-territorial waters being sub- Freedom
gº e - tº of a vessel
ject, as will be seen later”, to the sovereignty of that country ºn, &l
only to which she belongs, all acts done on board her while on ſº
such waters are cognizable primarily by the courts of her own diction in
state, unless they be acts of piracy *. The effects of this rule .
extend, as indeed is reasonable, to cases in which, after a crime tºº,
has been committed by or upon a native of a country other than its sub-
that to which the ship belongs, she enters a port of that state.”
with the criminal on board. The territorial authorities will not
interfere with his being kept in custody on board, nor with his
being transferred to another vessel for conveyance to a place
within the local jurisdiction of the sovereign to which the ship
belongs 4.
The broad rule has already been mentioned that as an alien º:
has not the privileges, so on the other hand he has not the *
responsibilities, attached to membership of the foreign political tº:
society in the territory of which he may happen to be. In jºin.
- IIl €
return however for the protection which he receives, and the jº.
opportunities of profit or pleasure which he enjoys, he is liable safety.
* The Institut de Droit International in 1894 expressed the view that “Les
crimes et délits commis a bord de navires étrangers de passage dans la mer
territoriale par des personnes qui se trouvent à bord de ces navires, sur des
personnes ou des choses à bord de ces mêmes navires, sont, comme tels, en
dehors de la juridiction de l’état riverain, a moins qu'ils n'impliquent une
violation des droits ou des intérêts de l'état riverain, ou de ses ressortissants
ne faisant partie ni de l'équipage ni des passagers.’ *
* See postea, p. 253.
* See postea, p. 257.
* Ortolan, Dip. de la Mer, liv. ii. ch. viii.; Twiss, i. 230. Some countries,
e.g. the United States, maintain that the competent tribunals of the nation
to which a vessel belongs have exclusive jurisdiction in respect of crimes
committed on board her upon the high seas. Theoretically, however, a
state has the right to attach whatever consequences it chooses, within its
own territory, to acts of its subjects, wherever those acts may be done ; and
practically the maintenance of a right to more or less of concurrent juris-
diction offers in some cases the means of dealing with crime which might
otherwise remain unpunished. Cf. postea, p. 255 n. ; also Hall’s Foreign Juris-
diction of the British Crown, p. 81 n., and p. 241, n. 2.
208 SOWEREIGNTY IN RELATION
to a certain extent, at any rate in moments of emergency, to
contribute by his personal service to the maintenance of order in
the state from which he is deriving advantage, and in some
circumstances it may even be permissible to require him to help
in protecting it against external dangers.
During the civil war in the United States the British govern-
ment showed itself willing that foreign countries should assume
to themselves a very liberal measure of rights in this direction
over its subjects. Lord Lyons was instructed ‘ that there is no
rule or principle of international law which prohibits the govern-
ment of any country from requiring aliens, resident within its
territories, to serve in the Militia or Police of the country or to
contribute to the support of such establishments; * and though
objection was afterwards taken to English subjects being com-
pelled ‘ to serve in the armies in a civil war, where besides the
ordinary incidents of battle they might be exposed to be treated
as rebels and traitors in a quarrel in which, as aliens, they would
have no concern,’ it was at the same time said that the govern-
ment might well be content to leave British subjects voluntarily
domiciled in a foreign country, liable to all the obligations
ordinarily incident to such foreign domicil, including, when
imposed by the municipal law of such country, service in the
Militia or National Guard, or Local Police, for the maintenance
of internal peace and order, or even, to a limited extent, for the
defence of the territory from foreign invasion".” The case of
persons domiciled or at least temporarily settled in the country
seems to have been the only one contemplated in these instruc-
tions, and it is not probable that the English government would
have regarded persons, who could not be called residents in any
sense of the word, as being affected by such extended liabilities.
But whether the latter was the case or not, and whether if it
were so, there is any sufficient reason for making a distinction
between residents and sojourners, the concession made to local
authority seems unnecessarily large. If it be once admitted
PART II
CHAP. IV
* Naturalisation Commission, Append. to the Report, 42.
TO THE TERRITORY OF THE STATE 209
that aliens may be enrolled in a militia independently of their
own consent, or that they may be used for the defence of the
territory from invasion by a civilised power, it becomes impossible
to have any security that their lives will not be sacrificed in
internal disturbances producing the effects pointed out by Lord
Russell as objectionable, or in quarrels with other states for the
sake of interests which may even be at variance with those
of their own country. It is more reasonable, and more in ac-
cordance with general principle, to say, as is in effect said by
M. Bluntschli", that— -
I. It is not permissible to enrol aliens, except with their own
consent, in a force intended to be used for ordinary national or
political objects. -
2. Aliens may be compelled to help to maintain social order,
provided that the action required of them does not overstep the
limits of police, as distinguished from political action.
3. They may be compelled to defend the country against an
external enemy when the existence of social order or of the
population itself is threatened, when, in other words, a state or
part of it is threatened by an invasion of savages or uncivilised
nations”.
* Le Droit International codifié, $ 391.
* In some treaties the compulsory enrolment of foreign subjects in state
forces liable to be used for other than police purposes is expressly guarded
against. In the majority of recent commercial treaties the subjects of each
of the contracting states are exempted from service in the army, militia,
or national guard of the other party to the treaty. In the treaty of 1855
between the Zollverein and Mexico (Nouv. Rec. Gén. xvi. ii. 257) exemption
of their respective subjects from forced military service is stipulated, “mas
no del de policia en los casos, en que para Seguridad de las propriedades
y personas fuere necesario su auxilio, y por solo el tiempo di esa urgente
necesidad.” In some cases exemption from military Service only is stipulated,
perhaps leaving open the question of the extent to which foreigners may be
used in case of internal disturbance.
[In May, 1894, the now defunct South African Republic made war against
Malaboch, the paramount chief in Zoutspanberg. By no stretch of the
imagination could it be contended that a savage invasion was threatened,
but the Transvaal government forcibly ‘commandeered’ some twenty British
subjects to join the local forces, and placed five others under arrest for
refusing to serve, eventually sending them compulsorily to the front. This
HALL. P
|PART II
CHAP. IV"
210 sovKREIGNTY IN RELATION
The municipal law of the larger number of European countries
enables the tribunals of the state to take cognizance of crimes
committed by foreigners in foreign jurisdiction. Sometimes
their competence is limited to cases in which the crime has been
directed against the safety or high prerogatives of the state
inflicting punishment, but it is sometimes extended over a
greater or less number of crimes directed against individuals.
In France foreigners are punished who, when in another country,
have rendered themselves guilty of offences against the safety
of the French state, of counterfeiting the state seal or coin
having actual currency, and of forgery of paper money; they
cannot however be proceeded against par conſumace. In Belgium
the law is identical; in Spain and Switzerland it is the same in
principle, but differs somewhat in the list of punishable offences".
Greece includes offences committed abroad against Greek subjects.
In Germany the tribunals take cognizance of all acts committed
abroad by foreigners which would constitute high treason if done
by subjects of the German state, as well as of coining, of forging
bank notes and other state obligations, and of uttering false coin
and notes or other instruments the forging of which brings the
foreigner under the jurisdiction of the German courts. In
Austria the tribunals can take cognizance of all crimes committed
by foreigners in another state, provided that, except in the case
of like crimes to those punishable by French law, an offer has
PART II
CHAP. IV
Crimes
commit-
ted by for-
eigners in
territory
foreign to
the state
exercising
jurisdic-
tion.
conduct was defended on the ground that British subjects were not exempt
by treaty from military service—an exemption possessed by Germany,
France, and other nations. Sir Henry Loch, the High Commissioner,
does not seem to have been instructed to demand the release of the pressed
men as of right ; and though his negotiations with President Kruger
resulted in an agreement not to ‘commandeer’ any more British subjects,
the latter refused to ratify a draft convention by which Great Britain
should be placed on an equality with other nations as regards exemption
from military service. The abnormal relations then subsisting between
the Transvaal Republic and this country are sufficient to deprive this
incident of any value as a precedent.] - -
* [For the provisions of the draft Swiss penal code in this respect, see Rev.
de Droit Int. I&Q7, vol. xxix. p. 33. The code still remains in suspended
animation as an ‘avant-projet.’] *
To THE TERRITORY OF THE STATE 211
been first made to surrender the accused person to the state in PART II
which the crime has been committed, and has been refused by it. “”
As the refusal of an offer to surrender is the equivalent of
consent to the trial of a prisoner by the state making the offer,
when a municipal law providing for his punishment exists there,
the jurisdiction afterwards exercised does not take the form of
a jurisdiction exercised as of right; the claim therefore to punish
as of right is only made in the case of crimes against the safety
or high prerogatives of the state. Under the new Italian penal
code, foreigners are subjected to punishment for acts done outside
Italy of the same nature as those punishable under the French
code, provided that the penalty which can be inflicted amounts
to imprisonment for more than five years; and it is also possible
to proceed against a foreigner for such offences committed out-
side Italian jurisdiction to the prejudice of Italians as can be
punished with imprisonment of not less than three years, as well
as for certain offences directed against foreigners, provided that
extradition shall have been offered to, and refused by, the
government of the state within which the act has been done.
In the Netherlands the list of punishable crimes, besides those
contemplated by French law, includes murder, arson, burglary,
and forgery of bills of exchange. In Sweden and Norway
proceedings may be taken against any person accused of a crime
against the state, or Norwegian subjects, or foreigners on board
Norwegian vessels, if the king orders the prosecution. Finally,
in Russia foreigners can be punished for taking part in plots
against the existing government, the emperor, or the imperial
family, and for acts directed against ‘the rights of person or
property of Russian subjects".”
1 Foelix, liv. ii. tit. ix. ch. iii.; Strafgesetzbuch für das Deutsche Reich,
einleitende Bestimmungen ; Progetto del Codice Penale del Regno d'Italia,
p. 263; Fiore, Délits commis à l'étranger, Rev. de Droit Int. xi. 302; Won
Bar, § 138. Foelix gives the older authorities for and against the validity
of the laws in question, but without stating his own opinion. Dr. Woolsey
(§ 76) says “that states are far from universally admitting the territoriality
of crime;’ he adds that ‘the principle’ of its territoriality “is not founded
on reason, and that, as intercourse grows closer in the world, nations will
P 2.
212 SovKREIGNTY IN RELATION
PART II
CHAP. IV
Whether laws of this nature are good internationally;
whether, in other words, they can be enforced adversely to a
state which may choose to object to their exercise, appears, to
say the least, to be eminently doubtful. It is indeed difficult to
see upon what they can be supported. Putting aside the theory
of the non-territoriality of crime as one which unquestionably is
not at present accepted either universally or so generally as to be
in a sense authoritative, it would seem that their theoretical
justification, as against an objecting country, if any is alleged
at all, must be that the exclusive territorial jurisdiction of a
state gives complete control over all foreigners, not protected by
special immunities, while they remain on its soil. But to assert
that this right of jurisdiction covers acts done before the arrival
of the foreign subjects in the country is in reality to set up
a claim to concurrent jurisdiction with other states as to acts
done within them, and so to destroy the very principle of ex-
clusive territorial jurisdiction to which the alleged rights must
appeal for support. It is at least as doubtful whether the volun-
tary concession of such a right would be expedient except under
more readily aid general justice.’ The latter remark seems to connect him
with De Martens (Précis, $ Ioo), who, in conceding the power of criminal
jurisdiction over foreigners in respect of acts done outside the state, contem-
plates its exercise rather by way of neighbourly duty, and in the interests
of the foreign state, than as a privilege. Wheaton (Elem. pt. ii. § 19), with
a truer appreciation of the nature of the practice, says that ‘it cannot be
reconciled with the principles of international justice.’ See also Phillimore,
i. § cccxxxiii. Massé (§ 524) defends the practice by urging that ‘s’il est
vrai que les lois répressives reçues dans un état ne peuvent avoir d'autorité
hors de cet état, cependant, lorsqu'un étranger s'est rendu coupable en pays
étranger d’un crime qui viole les principes mêmes sur lesquels est fondée
la Société, qui porte atteinte aux personnes et aux propriétés, ne semble-t-il .
pas qu’en réprimant cet attentat et en punissant le coupable trouvé en France,
les tribunaux ne feraient que remplir un devoir social qui rentre dans les
limites de leur compétence naturelle 2 °
An exhaustive collection and an able examination of the facts and opinions
connected with the subject will be found in Mr. Moore's Report on Extra-
territorial Crime and the Cutting case, issued by the Department of State of
the United States in 1887. The Report is made the basis of an article by
M. Albéric Rolin in the Rev. de Droit Int. 1888, p. 559.
On the various theories held as to the ground of criminal jurisdiction, see
also Wharton, On the Conflict of Laws, 2* ed. §§ 809–13.
TO THE TERRITORY OF THE STATE 218
the safeguard of a treaty. In cases of ordinary crimes it would PART II
be useless, because the act would be punishable under the laws “”
of the country where it was done, and it would only be necessary
to surrender the criminal to the latter. It might, on the other
hand, be dangerous where offences against the national safety
are concerned. The category of such acts is a variable one;
and many acts are ranked in it by some states, to the punish-
ment of which other countries might with propriety refuse to
lend their indirect aid, by allowing a state to assume to itself
jurisdiction in excess of that possessed by it in strict law 1.
A state being at liberty to do whatever it chooses within its Rights of
own territory, without reference to the wishes of other states, so º
long as its acts are not directly injurious to them, it has the *.
right of receiving and giving hospitality or asylum to emigrants
or refugees, whether or not the former have violated the laws of
their country in leaving it, and whether the latter are accused
of political or of ordinary crimes. So soon as an individual, not
being at the moment in custody, asks to be permitted to enter
* In 1879 the Institut de Droit International resolved, by nineteen votes
to seven, that “tout €tat a le droit de punir les faits commis même hors de
son territoire et par des étrangers en violation de ses lois pénales, alors que
ces faits constituent une atteinte à l’existence sociale de l'état en cause et
compromettent sa Sécurité, et qu'ils ne sont point prévus par la loi penale du
pays sur le territoire duquel ils ont eu lieu.” As thus restricted, the scope of
the assumed right of punishing foreigners for acts done out of the jurisdiction
of the state inflicting punishment, falls far below that of many of the muni-
cipal laws above mentioned. The assumption of the right might even be
accounted for with considerable plausibility by the existonce of the right of
Self-preservation. But precisely the class of acts remains subject to ex-
ceptional jurisdiction which there is most danger in abandoning to it.
Probably as between civilised states political acts are the only acts, satisfying
the above description, which would not be punishable by the law of the state
where they are committed. The question presents itself therefore whether
self-preservation is really involved to so serious an extent as to override the
rights of sovereignty. It would be rash to say that it never is so deeply
involved ; but it is not rash to say that the occasions are rare, and that
it is doubtful whether it would be possible to allow such exceptional crimes
to be dealt with without in practice permitting ordinary political acts to be
also struck at. Of course nothing that is here said militates against the
propriety or advisability of concluding treaties directed to repress particular
CIII)00S. &
214 SOWEREIGNTY IN RELATION
PART II
CHAP. IV
the territory of a state, the state alone decides whether per-
mission shall be given ; and when he has been received the
state is only ‘bound, under its general responsibility for acts
done within its jurisdiction, to take such precautions as may be
necessary to prevent him from doing harm, by placing him for
instance under surveillance or by interning him at a distance
from the frontier, if there is reason to believe that his presence
is causing serious danger to the country from which he has fled.
On the failure of measures of this kind a right arises on the
part of the threatened state to require his expulsion, so that it
may be freed from danger; but in no circumstances can it exact
his surrender.
How far a state ought to allow its right of granting asylum
to be subordinated to the common interest which all societies
have in the punishment of criminals, and with or without special
agreement should yield them up to be dealt with by the laws
of their country, has been already considered". w
For the reason also that a state may do what it chooses within
its own territory so long as its conduct is not actively injurious
to other states, it must be granted that in strict law a country
can refuse the hospitality of its soil to any, or to all, foreigners;
but the exercise of the right is necessarily tempered by the facts
of modern civilisation. For a state to exclude all foreigners
would be to withdraw from the brotherhood of civilised peoples;
to exclude any without reasonable or at least plausible cause is
regarded as so vexatious and oppressive, that a government is
thought to have the right of interfering in favour of its subjects
in cases where sufficient cause does not in its judgment exist.
The limits of the power of a state to exclude foreigners are thus
plain enough theoretically, and up to a certain point they can be
laid down fairly well for practical purposes. If a country decides
that certain classes of foreigners are dangerous to its tranquillity,
or are inconvenient to it socially or economically or morally, and
if it passes general laws forbidding the access of such persons,
* See antea, p. 56.
TO THE TERRITORY OF THE STATE 215
its conduct affords no ground for complaint. Its fears may be PART II
idle; its legislation may be harsh; but its action is equal. The “”
matter is different where for identical reasons individual foreigners,
or whole classes of foreigners, who have already been admitted
into the country, or who are resident there, are subjected to
expulsion. In such cases the propriety of the conduct of the
expelling government must be judged with reference to the
circumstances of the moment".
A state has necessarily the right in virtue of its territorial Right of
sº e º e g e tº gº º te admitting
jurisdiction of conferring such privileges as it may choose to foreigne;
grant upon föreigners residing within it. It may therefore * Of
admit them to the status of subjects or citizens. But it is subjects.
evident that the effects of such admission, in so far as they flow
from the territorial rights of a state, make themselves felt only
within the state territory. Outside places under the territorial
jurisdiction of the state, they can only hold as long as they do
not conflict with prior rights on the part of another state to the
allegiance of the adopted subject or citizen. A state which has
granted privileges to a stranger cannot insist upon his enjoyment
of them, and cannot claim the obedience which is correlative
to that enjoyment, outside its own jurisdiction as against another
state, after the latter has shown that it had exclusive rights to
the obedience of the person in question at the moment when he
professed to contract to yield obedience to another government.
If therefore the adoption of a foreigner into a state community
* M. Rolin Jaequenyns (Rev. de Droit Int. xx. 498) endeavours to formulate
a scheme of restrictions upon the right of expulsion which might be con-
ventionally accepted. It is to be feared that any scheme of the kind must,
as a whole, be too general in its terms. One clause of his proposal however
states with precision what ought to be the law : “En l'absence d’un état de
guerre,” he says ‘l’expulsion en masse de tous les étrangers appartenant
à une ou plusieurs nationalités déterminees ne se justifierait qu'à titre de
représailles.” In 1888 the Institut de Droit International adopted a project
of International Declaration of which the object was, while recognising the
right of expulsion to the full, to temper its practical application (Annuaire
de l’Institut, 1888–9, p. 245). It is to be feared that no government
wishing to do a harsh act would find its hands much fettered by the
Declaration.
216 SOWEREIGNTY IN RELATION
frees him from allegiance to his former state, he must owe his
emancipation either to an agreement between nations that
freedom from antecedent ties shall be the effect of naturalisa-
tion, or to the existence of a right on his part to cast off his
allegiance at will. Whether, or to what extent, such an agree-
ment or right exists will be discussed elsewhere. For the moment
it is only necessary to point out that such power as a state may
possess, of asserting rights with reference to an adopted subject
in derogation of rights claimed by his original sovereign, is
not consequent upon the right to adopt him into the state
community".
Whatever be the effect of giving to a foreigner the status of
a subject or citizen with his own consent, a country has no right
to impose the obligations of nationality, still less to insist that
this foreign subject shall abandon in its favour his nationality
of origin. Consent no doubt may be a matter of inference: and
if the individual does acts of a political, or even, possibly, of
a municipal nature, without inquiry whether the law regards
the performance of such acts as an expression of desire on his
part to identify himself with the state, he has no ground for
complaint if his consent is inferred, and if he finds himself
burdened upon the state territory with obligations correlative
to the privileges which he has assumed. But apart from acts
which can reasonably be supposed to indicate intention, his
national character may with propriety be considered to remain
unaltered. It is unquestionably not within the competence of a
state to impose its nationality in virtue of mere residence, of
marriage with a native, of the acquisition of landed property,
and other such acts, which lie wholly within the range of the
personal life, or which may be necessities of commercial or
industrial business. The line of cleavage is distinct between
the personal and the public life. Several South American states
have unfortunately conceived themselves to be at liberty to
PART II
CHAP. IV
Naturali-
sation by
operation
of law.
* See postea, p. 230.
TO THE TERRITORY OF THE STATE 217
force strangers within their embrace by laws giving operative PART II
effects to acts of a purely personal nature". CHAP. IV
Primá facie a state is of course responsible for all acts or Responsi- X.
omissions taking place within its territory by which another lº of a
state or the subjects of the latter are injuriously affected. To
escape responsibility it must be able to show that its failure to
prevent the commission of the acts in question, if not intended
to be injurious, or its omission to do acts incumbent upon it,
have been within the reasonable limits of error in practical
matters, or if the acts or omissions have been intended to be
injurious, that they could not have been prevented by the use
of a watchfulness proportioned to the apparent nature of the
circumstances, or by means at the disposal of a community well
ordered to an average extent; or else it must be able to show
that the injury resulting from the acts or omissions has been
either accidental or independent of any act done within the
territory which could have been prevented as being injurious.
The foregoing general principle requires to be applied with
the help of certain considerations suggested by the facts of
state existence.
Although theoretically a state is responsible indifferently for in respect
all acts or omissions taking place within its territory, it is tºº,
evident that its real responsibility varies much with the persons I. admin-
concerned. Its administrative officials and its naval and military lº
commanders are engaged in carrying out the policy and the ºmit
particular orders of the government, and they are under the agents,
immediate and disciplinary control of the executive. Presumably
therefore acts done by them are acts sanctioned by the state, -
and until such acts are disavowed, and until, if they are of
sufficient importance, their authors are punished, the state may
fairly be supposed to have identified itself with them. Where
consequently acts or omissions, which are productive of injury SS
* Nationality and Naturalisation, Parl. Papers, Miscell. No. 3 (1893) [No. 1
(1894), No. 1 (1895)]; Cogordan, La Nationalité, Annexes, 2° partie, O and
H-H ; Calvo, liv. viii, sect. I.
218 SOWEREIGNTY IN RELATION
PART II
s&HAP. IV
2. judicial
function-
aries, .
in reasonable measure to a foreign state or its subjects, are
committed by persons of the classes mentioned, their government
is bound to disavow them, and to inflict punishment and give
reparation when necessary.
Judicial functionaries are less closely connected with the state.
There are no well-regulated states in which the judiciary is not
so independent of the executive that the latter has no immediate
means of checking the acts of the former; judicial acts may be
municipally right, as being according to law, although they
may effect an international wrong; and even where they are
flagrantly improper no power of punishment may exist. All
therefore that can be expected of a government in the case of
wrongs inflicted by the courts is that compensation shall be
made, and if the wrong has been caused by an imperfection
in the law of such kind as to prevent a foreigner from getting
3. private
persons.
equal justice with a native of the country, that a recurrence of
the wrong shall be prevented by legislation. -
With private persons the connexion of the state is still less
close. It only concerns itself with their acts to the extent of
the general control exercised over everything within its terri-
tories for the purpose of carrying out the common objects of
government; and it can only therefore be held responsible for
such of them as it may reasonably be expected to have know-
ledge of and to prevent. If the acts done are undisguisedly
open or of common notoriety, the state, when they are of suffi-
cient importance, is obviously responsible for not using proper
means to repress them; if they are effectually concealed or if
for sufficient reason the state has failed to repress them, it as
obviously becomes responsible, by way of complicity after the
act, if its government does not inflict punishment to the extent
of its legal powers”. If however attempts are made to disguise
* In 1838 a body of men invaded Canada from the United States, after
supplying themselves with artillery and other arms from a United States
arsenal. Their proceedings were not of the nature of a surprise, and some
of their preparations and acts of open hostility were carried on in the
TO THE TERRITORY OF THE STATE 219
the true character of noxious acts, what amount of care to obtain
knowledge of them beforehand, and to prevent their occurrence,
may reasonably be expected 2 And is the legal power actually
presence of a regiment of militia, which made no attempt to interfere (cf. postea,
p. 270). In 1866, the Fenians in the United States held public meetings at
which an intention of invading Canada was avowed, and made preparations
which lasted for several months, uniformed bodies of men being even drilled
openly in many of the large cities. For so long was an attack imminent
that the Canadian government found itself compelled to call out Io, ooo
volunteers three months before the invasion was actually made. In the end
of May the Fenians made an irruption into Canada without opposition from
the authorities of the United States. On being driven back their arms were
taken from them ; and some of the leaders were arrested, a prosecution
being commenced against them in the district court of Buffalo. Six weeks
afterwards it was resolved by the House of Representatives that “this House
respectfully request the President to cause the prosecutions instituted in the
United States Courts against the Fenians to be discontinued if compatible
with the public interests,’ and the prosecutions were accordingly abandoned.
In October the arms taken from the Fenians were restored.
It would be difficult to find more typical instances of responsibility assumed
by a state through the permission of open acts and of notorious acts, and by
Way of complicity after the acts. Of course in gross cases like these a right
of immediate war accrues to the injured nation.
However little the United States are alive to their duties in respect of such
acts as those described, they showed a disposition in 1879 to press state
responsibility to the utmost possible extreme as against Great Britain.
A body of Indians under Sitting Bull took refuge from United States troops
in the then very remote and inaccessible British territory lying north of
Montana. There was apparently reason to expect that they might make
incursions into American territory. Mr. Grant in a despatch to Sir E.
Thornton called ‘the attention of Her Majesty's government to the gravity
of the situation which may thus be produced,’ and expressed ‘a confident
hope ’ that Great Britain would be “prepared on the frontier with a sufficient
force either to compel the surrender of the Indians to our forces as prisoners
of war, or to disarm and disable them from further hostilities, and subject
them to such constraint of surveillance and subjection as will preclude any
further disturbance of peace on the frontier.” (Wharton, Digest, § 18.) In
other words the country which had been guilty of direct complicity with
raids on a friendly state from settled country close to the seat of government,
did not hesitate when its own interests were involved to ask that state
to undertake a distant and difficult expedition into wild and almost un-
inhabited regions.
The attitude assumed by the American government in 1891 with reference
to the lynching of the Italians at New Orleans does not suggest that it is even
yet willing to recognise as applying to itself, in the most rudimentary form,
those duties the performance of which by others it expects in an exaggerated
degree.
PART II
CHAP. IV
220 SOWEREIGNTY IN RELATION
PART II
CHAP. IV
possessed by the government of a state the measure of the legal
power which it can be expected to possess whether for purposes
of prevention or of punishment 2
Both these questions assumed considerable prominence during
the proceedings of the tribunal of Arbitration at Geneva. With
respect to the first it was urged by the United States that the
‘diligence’ which is due from one state to another is a diligence
‘commensurate with the emergency or with the magnitude of
the results of negligence.” Whether this doctrine represents
the deliberate views of its authors, or whether it was merely put
forward for the immediate purposes of argument, it is impossible
to reprobate it too strongly. The true nature of an emergency is
often only discovered when it has passed, and no one can say
what results may not follow from the most trivial acts of
negligence. To fail in preventing the escape of an interned
subaltern might involve the loss of an empire. To make
responsibility at a given moment depend upon an indeterminate
something in the future is simply preposterous. The only
measure of the responsibility arising out of a particular
occurrence, which can be obtained from the occurrence
itself, is supplied by its apparent nature and importance at
the moment. If a government honestly gives so much care as
may seem to an average intelligence to be proportioned to
the state of things existing at the time, it does all it can be
asked to do, and it cannot be saddled with responsibility for
consequences of unexpected gravity. In no case moreover can
it be reasonably asked in the first instance to use a care or to
take means which it does not habitually employ in its own
interests. In a great many cases of the prevention of injury
to foreign states care signifies the putting in operation of means
of inquiry, and subsequently of administrative and judicial
powers, with which a government is invested primarily for
internal purposes. If these agencies have been found strong
enough for their primary objects a state cannot be held
responsible because they have failed when applied to analogous
TO THE TERRITORY OF THE STATE 221
international uses, provided that the application is honestly PART II
e e CHAP. IV
made. Whether on the occurrence of such failure a case arises
for an alteration of the law or for an improvement in administra-
tive organisation is a matter which falls under the second
question.
That a state must in a general sense provide itself with the How far
e e º º © e - © tat
means of fulfilling its international obligations is indisputable. * pro.
If its laws are such that it is incapable of preventing armed vide itself
with the
bodies of men from collecting within it, and issuing from it means º
tº e º e ... prevent-
to invade a neighbouring state, it must alter them. If its ing acts
e “º e e º e - e. e iniurious
judiciary is so corrupt or prejudiced that serious and patent .
injustice is done frequently to foreigners, it ought to reform *
the courts, and in isolated cases it is responsible for the injustice
done and must compensate the sufferers. On the other hand,
it is impossible to maintain that a government must be provided
with the most efficient means that can be devised for performing
its international duties. A completely despotic government
can make its will felt immediately for any purpose. It is
better able than a less despotic government, and every govern-
ment in so far as it is able to exercise arbitrary power is better
able than one which must use every power in strict subordination
to the law, to give prompt and full effect to its international
obligations. It has never been pretended however that a state
is bound to alter the form of polity under which it chooses
to live in order to give the highest possible protection to the
interests of foreign states. To do so would be to call upon
it to sacrifice the greater to the less, and to disregard one of
the primary rights of independence—the right, that is to say,
of a community to regulate its life in its own way. All that
can be asked is that the best provision for the fulfilment of
international duties shall be made which is consistent with the
character of the national institutions, it being of course under-
stood that those institutions are such that the state can be
described as well ordered to an average extent. A community
has a right to choose between all forms of polity through which
222 SOWEREIGNTY IN RELATION
the ends of state existence can be attained, but it cannot avoid
international responsibility on the plea of a deliberate preference
for anarchy".
Although in a considerable number of cases questions have
arisen out of conduct which has been, or which has been alleged
to be, improper or inadequate as a fulfilment of the duties of
a state in respect of its responsibility, it is not worth while
to give examples here. It will be necessary in discussing the
duties of neutrality to indicate for what acts, affecting the
safety of a foreign country, a state may be held responsible,
and what is there said may be taken as applicable to states in
times of peace, subject only to the qualification that somewhat
more forethought in the prevention of noxious acts should be
shown during war, when their commission is not improbable,
than during peace, when their commission may come by surprise
upon the state within the territory of which they are done”.
To give cases illustrating the circumstances under which a state
is responsible for injuries or injustice suffered by foreign in-
dividuals would involve the statement of a mass of details
disproportioned to the amount of information that could be
afforded. -
When a government is temporarily unable to control the acts
of private persons within its dominions owing to insurrection
or civil commotion it is not responsible for injury which may
be received by foreign subjects in their person or property in
the course of the struggle, either through the measures which
it may be obliged to take for the recovery of its authority, or
PART II
CHAP. IV
*. Effect of
civil com-
motion
upon
responsi-
bility.
* The subject of the responsibility of a state is not usually discussed
adequately in works upon international law. It is treated more or less
completely, or portions of it are commented on, in Bluntschli, §§ 466–9 bis;
Halleck, i. 397 ; Phillimore, i. § ccxviii, and Preface to 2nd ed. pp. xxi-ii ;
Reasons of Sir A. Cockburn for dissenting from the Award of the Tribunal
of Arb. at Geneva, Parl. Papers, North Am. No. 2, 1873, pp. 31–8.; Hansard,
cci. II23. M. Calvo in his third edition (§§ 357–8) and M. Fiore in his
second edition (§§ 390–4 and §§ 646–64) go into the question much more
fully than in the earlier editions of their respective works.
* See pt. iv. ch. iii.
TO THE TERRITORY OF THE STATE 223
through acts done by the part of the population which has
broken loose from control. When strangers enter a state they
must be prepared for the risks of intestine war, because the
occurrence is one over which from the nature of the case the
government can have no control; and they cannot demand
compensation for losses or injuries received, both because, unless
it can be shown that a state is not reasonably well ordered, it is
not bound to do more for foreigners than for its own subjects,
and no government compensates its subjects for losses or injuries
suffered in the course of civil commotions, and because the
highest interests of the state itself are too deeply involved in
the avoidance of such commotions to allow the supposition to be
entertained that they have been caused by carelessness on its
part which would affect it with responsibility towards a foreign
state ". *
Foreigners must in the same way be prepared to take the
consequences of international war.
* Bluntschli, Š 38o bis. In the work of M. Calvo (§§ 292-5) the subject is
dwelt upon with great detail. *
During the American Civil War the British Government refused to procure
compensation for injuries inflicted by the forces of the United States on the
property of British subjects. The claimants were informed that they must
have recourse to such remedies as were open to citizens of the United States.
PART II
CHAP. IV
, PART II
CHAP. V.
Nation-
ality.
Persons as
to whose
nation-
ality
CHAPTER V
SOWEREIGNTY IN RELATION TO THE SUBJECTS
OF THE STATE
IT follows from the independence of a state that it may grant
or refuse the privileges of political membership, in so far as such
privileges have reference to the status of the person invested
with them within the country itself, and it may accept re-
sponsibility or facts done by any person elsewhere which affect
other states or their subjects. Primarily therefore it is a question
for municipal law to decide whether a given individual is to be
considered a subject or citizen of a particular state. But the
right to give protection to subjects abroad, and the continuance
of obligation on the part of subjects towards their state notwith-
standing absence from its jurisdiction, brings the question,
under what circumstances a person shall or shall not be held
to possess a given nationality, within the scope of international
law. Hitherto nevertheless it has refrained, except upon
one point, from laying down any principles, and still more from
sanctioning specific usages in the matter. It declares that the
quality of a subject must not be imposed upon certain persons
with regard to whose position as members of another sovereign
community it is considered that there is no room for the existence
of doubt, the imposition of that quality upon an acknowledged
foreigner being evidently inconsistent with a due recognition
of the independence of the state to which he belongs; but
where a difference of legal theory can exist international law
has made no choice, and it is left open to states to act as they
like.
The persons as to whose nationality no room for difference
of opinion exists are in the main those who have been born
SOWEREIGNTY AND SUBJECTS 225
within a state territory of parents belonging to the community, PART II
CHAP. V.
I. no dif-
through any act done by it or by themselves. To these may ference
be added foundlings because, their father and mother being º
unknown, there is no state to which they can be attributed
except that upon the territory of which they have been
discovered.
The persons as to whose nationality a difference of legal theory 2. differ-
is possible are children born of the subjects of one power within :
the territory of another, illegitimate children born of a foreign “*”
mother, foreign women who have married a subject of the state,
and persons adopted into the state community by naturalisation,
or losing their nationality by emigration, and the children of
such persons born before naturalisation or loss of nationality,
and whose connexion with their state has not been severed
Under a custom, which was formerly so general as to be $ºn
called by an eminent French authority ‘the rule of Europe',” ºù.
and of which traces still exist in the legislation of many tºwer
countries, the nationality of children born of the subjects of within the
one power within the territory of another was dictated by the §ºr
place of their birth, in the eye at least of the state of which
they were natives. The rule was the natural outcome of the
intimate connexion in feudalism between the individual and
the soil upon which he lived, but it survived the ideas with
which it was originally connected, and probably until the
establishment of the Code Napoléon by France no nation
regarded the children of foreigners born upon its territory as
aliens. In that Code however a principle was applied in favour
of strangers, by which states had long been induced to guide
themselves in dealing with their own subjects, owing to the
inconvenience of looking upon the children of natives born
abroad as foreigners. It was provided that a child should
follow the nationality of his parents”, and most civilised states,
* Demolombe, Cours de Code Napoléon, liv. i. tit. i. chap. i. No. 146.
* The adoption of this principle was almost accidental. By the draft code
it was proposed to be enacted, and the proposal was temporarily adopted,
HALL Q
226 SOVEREIGNTY IN RELATION
either in remodelling their system of law upon the lines of the
Code Napoléon, or by special laws, have since adopted the
principle simply, or with modifications giving a power of choice
to the child, or else, while keeping to the ancient rule in principle,
have offered the means of avoiding its effects. In Germany,
Austria, Hungary, Belgium, Denmark, Greece, Roumania,
Servia, Sweden', Norway, Switzerland, Salvador, and Costa
Rica national character follows parentage alone, and all these
states claim the children of their subjects as being themselves
subjects, wherever they may be born. The laws of Spain and
Delgium, while regarding the child of an alien as an alien, give
him the right, on attaining his majority, of electing to be a
citizen of the country in which he resides. Russia makes
nationality depend in principle on descent, but reserves a right
of claiming Russian nationality to every one who has been born
and educated on Russian territory. In all these cases the state
regards as its subjects the children of subjects born abroad.
PART II
CHAP. v.
that “tout individu né en France est Français.’ It was urged against the
article that a child might e. g. be born during the passage of its parents
through France, and would follow them out of it. What would attach him
to France? Not feudality, for it did not exist, on the territory of the
Republic ; nor intention, because the child could have none; nor the fact of
residence, because he would not remain. (Conférence du Code Civil, i. 36–52.)
These reasonings seem to have prevailed. In any case the article was
changed. But M. Demolombe points out that after all “une sorte de
transaction entre le système romain de la nationalité jure sanguinis et le
système français de la nationalité jure soli’ was effected by the provision
which makes the naturalisation of the child of a foreigner born in France,
who, during the year following the attainment of his majority, elects to be
French, date back to the time of his birth. (Cours de Code Nap. liv. i. tit. i.
chap. i. Nos. I46, I63.) º
For the old law of France, see Pothier, Des Personnes et des Choses,
partie i. tit. ii. sect. i ; for that of England, Naturalisation Commission
Report, Appendix. All ‘children inheritors’ born abroad were given the
same benefits as like persons born in England by an Act of 25 Ed. III; but
the children born abroad of all natural-born subjects were not reckoned as
English subjects until after the statute of 7 Anne c. 5.
* [But under the Swedish law of Oct. 1894 the children of aliens who are
born in Sweden become Swedish citizens on attaining the age of twenty-two
if they have been domiciled in that country from birth without interruption.
They can, however, avoid such naturalisation by proving that they possess
civil rights in another country. Martens, N. R. G. 2” Sér. xx. 823.]
TO THE SUBJECTS OF THE STATE 227
In Italy the law is so far tinged with the ancient principle,
that while all children of aliens may elect to be Italian citizens,
they are such as of course if the father has been domiciled in
the kingdom for ten years, unless they declare their wish to be
considered as strangers. In Europe, England and Portugal
adhere in principle to the old rule; the child of an alien is
English or Portuguese, but he may elect to recur to his
nationality of parentage. In the Netherlands children of
foreigners not domiciled in the kingdom are themselves
foreigners; those that are born of domiciled parents are primó
facie Netherland subjects, but all claim to them is relinquished
so soon as it is shown that, by the law of their country of
origin, they remain foreign subjects. In France the law has
been so modified by recent enactments that its only apparent
principle seems to be supplied by a desire to ascribe French
national character to as large a number of persons as possible".
In the United States it would seem that the children of
foreigners in transient residence are not citizens, but that the
* The laws of June 26, 1889, and July 23, 1893, determine to be French :—
(1) Persons who, not having reached their majority before the former date,
are children born in France to a foreign father not himself born in France,
and who are domiciled there (the word ‘domicile ’ being used ‘dans le sens
le plus largé de résidence’) at the time of attaining their majority according
to French law. These persons may elect for their foreign nationality in the
year following the attainment of their majority, but are regarded as French
until the required formalities have been carried out, and may consequently
be obliged to go through the usual service in the army. *
(2) Persons who have been born in France at a later date than June 26,
1867, of a foreign parent not himself or herself born there, and who not
being domiciled at the date of their majority, shall have applied before the
age of twenty-two years to fix their domicile in France, and having fixed it
accordingly, have claimed French nationality within a year of the date of
application.
(3) Persons who have been born in France later than the above date of
a foreign parent, whether father or mother, who has been born in France,
except that if it be the mother who has been born in France, they shall be
permitted, in the year following their majority, to declare for retention of
their foreign nationality in the same manner as is prescribed for the first
class of persons above mentioned. Parl. Papers, Miseell. Nos. 3 and 4, 1893;
Rev. de Droit Int. Privé, xvii. 563; Trib. Civil de Bordeaux, 11 juillet 1892,
ap. id. xix. 997.
PART II
CHAP. V.
Q 2.
228 SOVEREIGNTY IN RELATION
children of foreigners, who are in more prolonged residence, fall
provisionally within the category of American citizens, though
they lose their. American character if they leave the United
States during their minority 1. The larger number of South
American States regard as citizens all children of foreigners
born within their territory. From the foregoing sketch of the
various laws of nationality it may be concluded that the more
important states recognise, with a very near approach to
unanimity, that the child of a foreigner ought to be allowed
to be himself a foreigner, unless he manifests a wish to assume
or retain the nationality of the state in which he has been born.
There can be no question that this principle corresponds better
than any other with the needs of a time when a large floating
population of aliens exists in most places, and when in every
country many are to be found the permanence of whose estab-
lishment there depends upon the course taken by their private
affairs from time to time. It is only to be wished that the rule
in its simplest form were everywhere adopted *.
If children are illegitimate, their father being necessarily
uncertain in law, the nationality of the mother is their only .
possible root of nationality where national character is derived
from personal and not from local origin. Accordingly, it is
almost everywhere the rule that they belong to the state of
PART II
CHAP. V.
Illegiti-
mate chil-
dren.
* By the fourteenth amendment to the Constitution ‘all persons born in
the United States, and subject to the jurisdiction thereof, are citizens of the
United States’; and by section 1992 of the Revised Statutes “all persons
born in the United States and not subject to any foreign power are declared
to be citizens of the United States.” It might be somewhat difficult to seize
the intended effect of these provisions if it were necessary to interpret them
without external assistance. Happily an administrative gloss has been pro-
vided which seems—if I rightly understand it—to afford a very reasonable
and convenient sense. Starting from the judicially ascertained circumstance
that Indians are not citizens of the United States because they are not, in a
full sense, “subject to the jurisdiction’ of the United States, it is considered
that a fortiori the children of foreigners in transient residence are not citizens,
their fathers being subject to the jurisdiction less completely than Indians.
Wharton’s Digest, § 183.
* Naturalisation Com. Rep., Append. ; Calvo, §§ 742-50 ; Bluntschli in Rev.
de Droit International, ii. IoT-9; 33 Vict. ch. I4.
TO THE SUBJECTS OF THE STATE 229
which the mother is a subject". English law forms an exception. PART II
By it illegitimate issue of Englishwomen abroad are considered CHAP. V.
to have the nationality of their place of birth, because it is
by statute only that children born beyond the kingdom are
admitted to the privilege of being English subjects, and no
statute exists which applies to children produced out of wedlock.
At the same time, as the old law of England imposing allegiance
upon the issue of strangers in virtue of the soil has not been
abrogated with respect to illegitimate children, the illegitimate
children of foreign mothers, who have given birth to them in
England, are considered to be English *.
Pxcept in some American countries the nationality of a wife Married
is merged in that of her husband, so that when a woman marries WO]] ler).
a foreigner she loses her own nationality and acquires his, and
a subsequent change of nationality on his part carries with it
as of course a like change on her side 8. By the law of the
United States a native woman marrying a foreigner perhaps
remains a subject of her state, though an alien woman marrying
an American citizen becomes herself naturalised “; by that of
* In Brazil, Ecuador, Guatemala, Paraguay, and Uruguay they acquire the
nationality of the mother conditionally upon taking up residence or being
domiciled in the territory. In Portugal they obtain nationality in this way
or by declaration of choice.
* Bluntschli, § 366. It is sometimes provided, e. g. in France and Italy,
that when a natural child is recognised by his father or mother in the former
case, or by his father in the latter case, he follows the nationality of the
parent recognising him. Art. 8 of the Law of 1889; Mazzoni, Ist. di diritto
italiano, Ś Io4. [In Sweden, under the law of 1894, illegitimate children whose
parents marry while the former are still minors acquire the nationality of
the father.] s *
* The wife of a French citizen, upon the acquisition of a new nationality
by her husband, may however, if she chooses, retain the nationality possessed
by him at the date of the marriage.
* American law on the subject is not quite clear; cf. Hall, Foreign Jurisd.
of the British Crown, p. 4I. Until 1870 the same rule held in England. It
was altered by the Naturalisation Act of that year. The application of the
principle of the merger of the nationality of the wife in that of the husband
is sometimes carried to excess. By the French law, for example, if a
Frenchman makes a bigamous marriage with a foreigner in a foreign
country, the woman with whom he goes through the ceremony of marriage
acquires a French nationality, it being held that “elle est devenue Française
280 sovKREIGNTY IN RELATION
PART II
{}}{AP. W.
Naturali-
sation.
Ecuador a native woman retains her nationality so long as she
stays in the country; and in Venezuela and Haiti she keeps it in
all circumstances.
It was observed in the last chapter that a state can only
confer the quality of a citizen or subject in virtue of its
sovereignty as within its own jurisdiction, and that the assertion
of control, or the exercise of protection, over naturalised persons
when outside its jurisdiction must be accounted for either by
a general consent on the part of states that the acquisition
of a new nationality shall extinguish a previously existing one,
or by the recognition of a right in every individual to assume
the nationality of any state which may choose to receive him.
It will be seen by analysing practice, which so far from being
uniform is greatly confused, that no general understanding
on the matter has as yet been arrived at. With regard to the
question whether a right of changing their nationality is
possessed by individuals; as individuals have no place in
international law, any such right as that indicated, if binding
upon states, must be so through the possession of a right by the
individual as against his state which is prior to and above those
possessed by the state as against its members. Whether or not
such a right exists international law is obviously not competent .
to decide. It could only have adopted the right from without
as being one of which the public law of all states had admitted
the existence; and the absence of uniform custom shows that
public law has not so pronounced as to enable international law
to act upon its dictates. International law must either maintain
the principle of the permanence of original ties until they are
broken with the consent of the state to which a person belongs
who desires to be naturalised elsewhere, or it must recognise
that the force of this principle has been destroyed by diversity
of opinions and practice, and that each state is free to act as
may seem best to it. There can be no doubt that the latter view
par le mariage, même frappé de nullité.” Sirey, Les Codes Annotés, ed.
I855, iii. I8.
TO THE SUBJECTS OF THE STATE 231
is more in harmony with the facts of practice than the former. PART II
For the purposes of international law therefore the due relation “”
of a naturalised person to the state which he has abandoned
is outside the scope of accepted principle; it is a question of
convenience only; and it is either to be settled by an individual
state in accordance with its own interests, or by treaty between
states for the common interests of the contracting parties.
The practice of the more important states may be summarised Practice
of states
as follows”:— with re-
That of England was based until 1870 upon the principles of #.
the indelibility of natural allegiance and of liberty of emigration. natural-
Every one was free to leave his country; but whatever form ºd.
he went through elsewhere, and whatever his intention to change England.
his nationality, he still remained an Englishman in the eye of
the law; wherever therefore English laws could run he had
the privileges and was liable to the obligations imposed by
them ; if he returned to British territory he was not under the
disabilities of an alien, and he was not entitled to the protection
of his adopted country; if he was met with on the high seas
in a foreign merchantman he could be taken out of it, the
territoriality of such ships not being recognised by English law.
On the other hand, so long as he stayed within foreign juris-
diction he was bound by his own professions; he had chosen to
renounce his English character, and he could not demand the
protection of the state towards which he acknowledged no duties.
In the beginning of the present century this doctrine was rigidly
enforced. Englishmen naturalised in the United States were
impressed from on board American vessels for service in the
English navy; and the government of the day entered upon the
war of 1812 rather than mitigate the severity of its usages. In
the peace which followed the treaties of Ghent and Vienna no
occasion presented itself for giving effect upon the high seas
* The facts bearing on this subject are collected in the Appendix to the
Report of the Royal Commission on the Laws of Naturalisation and Alle-
giance, I869.
232 SOWEREIGNTY IN RELATION
TART II
CHAP. Y
to the doctrine maintained by Great Britain, and with the
abandonment of impressment as a means of manning the navy
the chief source of possible collision with other nations was
removed; but successive English governments rejected the .
advances made by the United States for coming to a definite
understanding on the question, and so late as 1842 Lord
Ashburton, during his negotiations with Mr. Webster, put it
aside as touching a principle which could not be subjected to
discussion. In other applications the doctrine came more im-
mediately within the scope of practice. In 1848, during the
Irish disturbances of that year, an Irishman, naturalised in
America, was arrested on suspicion of treason. Mr. Bancroft,
the minister accredited by the United States to the Court of
St. James, having remonstrated against the treatment of the
arrested person as a subject of Great Britain, Lord Palmerston
in his answer upheld the traditional view in precise and decided
language. On a like occasion in 1866 Lord Clarendon declared
that ‘ of course the point of allegiance could not be conceded.”
But at both times proceedings were pushed as little as possible
to extremes; the earliest opportunity was taken of setting
arrested persons free on condition of their leaving the country;
and the question was only twice fairly raised on applications by
two naturalised persons for a mixed jury at their trial in 1867.
Thus for more than half a century the assertion of the indelibility
of allegiance was little else than nominal. It had become an
anachronism, and its consistent practical assertion was impossible.
In 1868 consequently a commission was appointed to report
upon what alterations of the laws of naturalisation it might be
expedient to make; and in 1870 an Act was passed providing
that a British subject on becoming naturalised in a foreign state
shall lose his British national character. Persons naturalised in
a foreign state before the passing of the Act were permitted to
make a declaration within two years stating their wish to remain
subjects, in which case they were deemed to be such except
within the state in which they were naturalised. The latter
TO THE SUBJECTS OF THE STATE 233
qualification was little more than a formal sanction given to the
practice which had already been followed. In 1858 it was stated
by Lord Malmesbury, with reference to the children of British
subjects born in the Argentine Confederation, who by the law of
the Confederation were regarded as its subjects, that their quality
of British subjects in England did not prevent them from being
treated as subjects in the Confederation; and during the Civil
War in the United States the English government refused to
protect naturalised persons, their minor children although born
in England, and persons who though not formally naturalised had
exercised privileges reserved to citizens of the United States'.
PART II
CHAP. V.
In the United States a certain confusion exists, the policy of United
the country having varied at different times, and the opinions
entertained in the courts not being perfectly identical with those
which have inspired political action. In the controversies which
took place between the United States and England in the
opening years of the century the government of the former
country contended that it had a right to protect persons who had
been received as citizens by naturalisation, notwithstanding that
domestic regulations of their state might forbid renunciation of
allegiance or might subject it to restrictions, and broadly
declared ‘expatriation’ to be ‘a natural right.” Mr. Justice Story,
on the other hand, laid down ‘the general doctrine’ to be ‘that
no persons can, by any act of their own, without the consent of
the government, put off their allegiance and become aliens;
Rent adhered to the same opinion; and in an exhaustive review
States.
* Naturalisation Commission Report, Appendix, pp. 31–48; Naturalisation
Act, 1870, 33 Vict, ch. I4. In consequence of claims for protection having
been made by persons naturalised in England, it has been the practice since
1854 to insert a clause in naturalisation certificates excepting from the rights
granted any ‘rights and capacities of a natural-born British subject out of
and beyond the dominions of the British crown, other than such as may be
conferred on him by the grant of a passport from the Secretary of State to
enable him to travel in foreign parts.' [The case of R. v. Lynch, L. R. (1903)
i K. B. 444, decided the point which scarcely seemed to require judicial
sanction that the Naturalisation Act does not empower a British subject to .
become naturalised in an enemy state during time of war.]
234 SOVEREIGNTY IN RELATION
PART II
C HIAP. V.
of the practice of the courts of the United States made by
Mr. Cushing in 1856 it is remarked that on the ‘many occasions
when the question presented itself, not one of the judges of the
Supreme Court has affirmed, while others have emphatically
denied, the unlimited right of expatriation from the United
States.” Of these inconsistent views the influence of the latter
seems to have predominated during the greater part of the time
which has elapsed since the war of 1812. In 1840 a Prussian
naturalised in the United States, who had been required on
returning to his country to undergo military service, and who
had applied for protection to Mr. Wheaton, then American
minister at Berlin, was informed by the latter that ‘had you
remained in the United States or visited any other foreign
country except Prussia on your lawful business, you would have
been protected by the American authorities at home and abroad
in the enjoyment of all your rights and privileges as a naturalised
citizen of the United States. But having returned to the
country of your birth, your native domicil and natural character
revert, so long as you remain in the Prussian dominions, and
you are bound in all respects to obey the laws exactly as if you
had never emigrated.” In several subsequent cases of the like
kind the same line of conduct was pursued, and in 1853 the then
minister at Berlin was instructed that ‘the doctrine of inalienable
allegiance is no doubt attended with great practical difficulties.
It has been affirmed by the Supreme Court of the United States,
and by more than one of the State Courts; but the naturalisation
laws of the United States certainly assume that a person can by
his own acts divest himself of the allegiance under which he was
born and contract a new allegiance to a foreign power. But
until this new allegiance is contracted he must be considered as
bound by his allegiance to the government under which he was
born and subject to its laws; and this undoubted principle seems
to have its direct application in the present cases. . . . If then
a Prussian subject, born and living under this state of law of
military service, chooses to emigrate to a foreign country without
TO THE SUBJECTS OF THE STATE 235
obtaining the “certificate” which alone can discharge him from
the obligation of military service, he does so at his own risk; ”
and if such a person after being naturalised in the United States
‘goes back to Prussia for any purposes whatever, it is not
competent for the United States to protect him from the
operation of the Prussian law.” Virtually, these instructions
surrendered the right of expatriation. Verbally, no doubt, it is
asserted; but a right of expatriation at the will of the individual
ceases to exist when it is so subordinated to the duty of fulfilling
conditions, to be dictated by the state from which the individual
desires to separate, that non-fulfilment of them nullifies the effect
of naturalisation as between him and it. A few years later
American policy underwent another change. In 1859, questions
having arisen between the United States and Prussia with
reference to the conscription laws, Mr. Cass wrote that ‘the
moment a foreigner becomes naturalised his allegiance to his
native country is severed for ever. He experiences a new
political birth. A broad and impassable line separates him from
his native country. . . . Should he return to his native country
he returns as an American citizen, and in no other character.”
From that time onwards the successive governments of the
United States have shown a disposition to carry the right of
expatriation to the furthest practicable point. Its acceptance
was continually urged upon Prussia in the further negotiations
which took place with that power; it was asserted in the
correspondence between the United States and England; and in
I868 an Act passed both houses of Congress affirming 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,’ and enacting that “all naturalised
citizens of the United States while in foreign states shall be
entitled to and shall receive from their government the same
protection of persons and property that is accorded to native-born
citizens in like situation and circumstances'.”
* Naturalisation Commission Report, 52–4 and 82. Story's and Kent's
PART IH
CHAP. Y
236 sovKREIGNTY IN RELATION
The laws of Prussia [extended first to the North German
Confederation, and since 1871 to the whole German Empire]
regard the state as possessing the right of imposing conditions
upon expatriation, and consequently of refusing it unless these
conditions are satisfied. By the regulations in force no person
lying under any liability to military service can leave the
kingdom without permission, and any one doing so is punished
on his return with fine or imprisonment. Persons naturalised in
the United States are excepted from the operation of these
regulations by the treaty of 1868 between that country and the
North German Confederation, which provides that a naturalised
person can only be tried on returning to his country of origin
for acts done before emigration, and thus excludes punishment
for the act of emigration without consent of the state or in
avoidance of its regulations 1. - -
In France the quality of a Frenchman is lost by naturalisation
abroad, provided that he has attained the age of thirty or
thirty-one years, and has consequently fulfilled his obligation to
service in the active army.
In Italy naturalisation in a foreign country carries with it
loss of citizenship, but does not exonerate from the obligations
of military service, nor from the penalty inflicted on any one
who bears arms against his native country.
Spain takes up the position that loss of nationality by
naturalisation abroad is not accompanied with freedom from
obligations to the state, unless it shall have been obtained with
the knowledge and authorisation of the Spanish government”.
[Swedish citizenship is forfeited by any one who becomes
a citizen of another country. But the consent of the king is
PART II
CHAP. V.
Germany.
France.
Italy.
Spain.
Sweden.
expressions of opinion may also be referred to in Shanks v. Dupont, Peters’
Supreme Court Cases, iii. 246, and Commentaries, ii. 49.
* De Martens, Nouv. Rec. Gén. xix. 78.
* Dana (Note to Wheaton, No. 49) says that “Spain contends for an
unlimited right over returned subjects for subsequent as well as past
obligations.” He does not however mention his authority, and the statement
hardly seems to be consonant with the text of the Spanish law.
TO THE SUBJECTS OF THE STATE 237
necessary before foreign naturalisation can be acquired. Men PART II
and unmarried women of Swedish nationality also lose their CHAP. W.
nationality if domiciled abroad for ten consecutive years, unless
they have made a declaration before the expiration of that period
of their intention to remain Swedish subjects.]
By Norwegian law “a state citizen loses his rights as such Norway.
when he becomes a subject of a foreign state, and when he leaves
the kingdom for ever, except that he may within a year of his
departure make a declaration before a Norwegian Consul of his
intention to retain his nationality. The declaration is valid for
ten years, and can be renewed.
The law of Switzerland allows a Swiss citizen to renounce his Switzer-
nationality, if he has ceased to be domiciled in the country; if he and.
is in actual enjoyment of civil rights in the country of his residence,
and if he has acquired, or is assured of acquiring,” nationalisation
there for himself, his wife, and his children under age 1.
In Austria emigration is not permitted without consent of the Austria.
authorities; persons emigrating or taking up a foreign national
character with consent become foreigners; persons doing so
without consent equally lose their Austrian nationality, and are
punished by sequestration of any property which they may
possess within the empire.
The practice of Russia is not clear. There appears to be *
reason to suppose that a Pole naturalised in America was seized
and forced to serve in the army in 1866; but in the same year
another Pole was deprived of the rights of Russian citizenship
and banished for ever for being naturalised in the United States
without leave of the emperor. It is at any rate fair to conclude
that the acquisition of foreign nationality is not regarded as
ipso facto releasing a subject from his allegiance *.
* Federal Law of 1876, in Rev. de Droit Int. xii. 318.
* Naturalisation Commission Report, Appendix. It would appear from
several state papers quoted by Mr. Wharton (Digest, §§ 131 and I72) that
the government of the United States were not in possession of distinct
information as to the effect of Russian law up to the time of the publication
of the Digest in 1886. *
238 SOWEREIGNTY IN RELATION
PART II
CHAP. V.
Practice
of states
with re-
gard to
foreigners
natural-
ised by
them.
Turning from the views taken by states as to the position of
their own subjects when naturalised abroad, to their practice
with respect to the protection of foreigners who have been
received into their own community; the naturalisation law
of Russia is found to place strangers admitted to Russian
nationality ‘on a perfect equality in respect to their rights with
born Russians.' [In Spain it seems that “ aliens, who have
obtained certificates of naturalisation, are not held to be freed
from the obligations imposed by their nationality of origin,
unless their naturalisation has taken place with the permission of
their state.] In France it appears, from a correspondence which
took place in 1848 between M. Crémieux, then Minister of
Justice, and Lord Brougham, that the acquisition of French
nationality is considered to involve of necessity the severance
of all bonds between the naturalised person and his former
state, and his absorption for all purposes into the French nation.
In the other states above mentioned it does not appear to have
been distinctly laid down as a general principle, or to have been
shown by state action in particular instances, whether a
foreigner, on receiving naturalisation, would be regarded as
having acquired a right to protection as against his former
country". Judging from the analogy of their laws with respect
to their own natural-born subjects, it may however be presumed
that in Germany and Italy the right of a state would be
recognised to look upon naturalisation of its subjects as
conferring the quality of foreigner upon the persons naturalised
to such extent only as it might itself choose. In each of these
countries a subject naturalised abroad may be held responsible
upon his return within their jurisdiction for contraventions of
*s
* By the Swiss Law of 1876 it is provided that naturalisation shall not be
granted unless “les rapports” of the persons seeking naturalisation ‘avec
I’état auquel ils ressortissent sont tels, qu’il est a prévoir que leur admission
à la nationalité suisse n'entrainera pour la confédération aucun préjudice.’
But it does not appear what the effect of naturalisation, if granted, would be
understood to be as against the state to which the naturalised persons before
belonged.
TO THE SUBJECTS OF THE STATE 239
municipal law committed after or simultaneously with naturalisa- PART II
tion. That the number of punishable acts is small is of course * *
unimportant. The fact that any acts done after or simultaneously
with naturalisation are punishable affirms the principle that
naturalisation does not of itself destroy the authority of the original
sovereign". In the case of Austria no inference can probably be
safely drawn either from the law affecting its own subjects or that
regulating the conditions of the naturalisation of foreigners”.
It may be taken that the practice of the foregoing states gives Conclu-
tº tº * e - iº , Sions.
a fair impression of practice as a whole; and it may be assumed
that when a state makes the recognition of a change of nationality
by a subject dependent on his fulfilment of certain conditions
determined by itself, or when it concedes a right of expatriation
by express law, it in effect affirms the doctrine of an allegiance
indissoluble except by consent of the state 8. Such being the
case, the doctrine in question, disguised though it may be, is still
the groundwork of a vastly preponderant custom. It may be
* Where naturalisation is used to escape from liability to future military
service the offence is only committed by the completion of the act of
naturalisation; but the latter, if it be effective to substitute an entirely new
nationality for that previously existing, must obliterate the criminal character
of the act at the moment of its performance.
* Naturalisation Commission Report, Appendix; Calvo, $$ 765–71 ; Law-
rence, Commentaire, iii. 299. -
* Notwithstanding that M. Bluntschli holds the liberty of emigration not
to be absolute, and to be subject to ‘l’accomplissement préalable des obliga-
tions indispensables envers l'état,” such as military service, he thinks that
‘contrairement à l’ancienne opinion qui considérait le sujet comme per-
pétuellement obligé envers son prince ou envers son pays, et qui ne lui
permettait pas de briser ce lien de son autorité privée, on en est arrivé peu a
peu a reconnaitre le principe de la liberté d’émigration. Nul état civilisé ne
pourra à la longue se soustraire à l’application de cette nouvelle et libérale
maxime.” Rev. de Droit Int. ii. II5–6. It is difficult to understand how
liberty of emigration as a principle can be consistent with a regulatory power
in the state. Who but the state is to define the “obligations indispensables’
which must be satisfied ? And if the state may draw up a list of these
obligations, and may insert among them obligations stretching over a lifetime,
liberty of emigration becomes illusory. Incompatible principles cannot
Occupy an equal position. In the long run one must yield to the other, and
it is evident, as must inevitably be the case, that the principle of free
emigration yields with M. Bluntschli to that of the Supremacy of the state.
240 SOWEREIGNTY. IN RELATION
PART II
CHAP. W.
hoped, both for reasons of theory and convenience, that it will
continue to be so. An absolute right of expatriation involves
the anarchical principle that an individual, as such, has other
rights, as against his state in things connected with the or-
ganisation of the state society than the right not to be dealt
with arbitrarily, or dissimilarly from others circumstanced like
himself, which is implied in the conception of a duly ordered
political community; it supposes that the individual will is not
necessarily subordinated to the common will in matters of general
concernment. As a question of convenience, the objections to
admitting a right of expatriation are fully as strong. The right,
if it exists, is absolute; it can therefore only be curtailed with
the consent of each individual. But if the doctrine of permanent
allegiance be admitted, there is nothing to prevent the state from
tempering its application to any extent that may be proper.
Action upon it in its crude form is obviously incompatible with
the needs of modern life; but it is consistent with any terms of
international agreement which the respective interests of con-
tracting parties may demand, and if recognised in principle
and taken as an interim rule where special agreements have not
been made, it would do away with practical inconveniences which
frequently occur, and which as between certain countries might
in some circumstances give rise to international dangers. It
would be a distinct gain if it were universally acknowledged
that it is the right of every state to lay down under what
conditions its subjects may escape from their nationality of
origin, and that the acquisition of a foreign nationality must
not be considered good by the state granting it as against the
country of origin, unless the conditions have been satisfied. It
may at the present day be reasonably expected that the good sense
of states will soon do away with such rules as are either vexatious
or unnecessary for the safeguarding of the national welfare".
* For the naturalisation laws of various states see Reports of Her
Majesty's Representatives abroad upon the Laws of Foreign Countries, Parl.
Papers, Miscell. No 3, 1893; and Cogordan, La Nationalité, Annexes.
TO THE SUBJECTS OF THE STATE 241.
In the meantime, and until an agreement is come to upon the PART II
question of principle, it may be said that though a state has in . * *
strictness full right to admit foreigners to membership, and to j Oll
protect them as members, it is scarcely consistent with the comity º,
which ought to exist between nations to render so easy the gºting
nation-
acquisition of a national character, which may be used against ality, of
tº a r → ſº makin
the mother state, as to make the state admitting the foreigner ºne .
a sort of accomplice in an avoidance by him of obligations due . *
acquisi-
to his original country. When naturalisation laws are so lax tion too
as to lend themselves to an avoidance of reasonable obligations, easy.
the state possessing them can have no right to complain if ex-
ceptional measures, such as expulsion from the mother country,
are resorted to at the expense of its adopted subjects. After the
annexation of Frankfort to Prussia, a number of young men of
that town, taking advantage of the looseness of Swiss natu-
ralisation laws, obtained naturalisation in Switzerland in order
to avoid the incidence of the conscription laws, and returned to
Frankfort intending to live there as Swiss subjects. The Prussian
government expelled them, and the Swiss government admitted
that its conduct was fully justified.
A difference of practice exists with respect to the effects of Effects of
the naturalisation of a father upon children born before his tºº,
naturalisation, but minors at the moment when it is effected. ...”
on chil-
The laws of some countries, as for example of the United States dren who
3.I’e IOlill OTS
and Switzerland, provide that the child of a foreigner who is at the date
naturalised, becomes himself naturalised, if he be a minor, by *
the naturalisation of his father. In other cases, as in that of
France, a child retains his nationality of birth notwithstanding
that the nationality of his father is changed. The latter doc-
trine is a strict but reasonable deduction from the principle of
sovereignty; the former is certainly the more convenient. It
would probably be still more convenient to adopt as a rule the
provisions of a convention made between France and Switzerland
in 1879; and to give a right of choice to the child on attaining
his majority, he being freed up to that time, with respect to
HALL R.
242 SOWEREIGNTY IN BELATION
PART II both countries, from military and other special obligations flowing
** " from allegiance.
Claims on Questions have sometimes occurred, both with regard to the
º,” privileges and the responsibilities of the individual, as to the
...” effect of domicil or of a partial completion of formalities required
natural- -
ised for- for the acquisition of nationality, and as to that of doing acts
:::::::" the right to perform which is reserved as a privilege to the
citizens or subjects of a state. g
A question of the former kind, which attracted much attention
at the time, was given rise to by Martin Koszta, an Hungarian
insurgent of 1848–9. The merits of the case as a whole were
somewhat complicated; but the facts bearing on the present
point were few and simple. At the end of the rebellion Koszta
escaped to Turkey, whence he ultimately went to the United
States. He stayed in the latter country less than two years,
and then returned to Turkey upon business, after having made
a statutory declaration of his intention to become an American
citizen. While at Smyrna he was arrested by Austrian
authorities claiming to have the right to do so under the
capitulations between their state and Turkey, and he was put on
board an Austrian war brig, the Hussar, for conveyance to
Triest. Before the vessel got under weigh however an American
frigate arrived, and threatened to sink the Hussar unless Koszta
was at once delivered up. As the Austrian commander refused,
and as from the position of the ships a conflict would have
endangered the town, the matter was momentarily settled by
the delivery of the prisoner to the French Consul to be kept
until the two governments concerned should have an opportunity
of arriving at a decision. In the end the affair was compromised
by Austria consenting to Koszta being shipped off to the United
States, the right to proceed against him in case he returned to
Turkey being reserved. By the naturalisation law of the
United States the conditions requiring to be fulfilled before
admission to citizenship could take place were a residence of five
years in the country, and a declaration of intention to become
TO THE SUBJECTS OF THE STATE 243
a citizen made before a court of justice at least three years prior
to application for admission. It could not therefore be pretended,
and was not pretended, that Koszta was naturalised. The
original action of the representatives of the United States seems
nevertheless to have been suggested by the impression that a
right to protection was acquired by the declaration of intention
to be naturalised; the government at first went even further.
President Pierce, in a message to Congress, declared that “at the
time of his seizure Koszta was clothed with the nationality of
the United States.” Ultimately other ground was taken up.
‘It is a maxim of International law,’ wrote Mr. Marcy, ‘that
domicil confers a national character; it does not allow any one
who has a domicil to decline the national character thus
conferred; it forces it upon him often very much against his
will, and to his great detriment. International law looks only
to the national character in determining what country has the
right to protect. . . . . As the national character, according to
the law of nations, depends upon the domicil, it remains as long
as the domicil is retained, and is changed with it. Koszta was
therefore invested with the nationality of an American citizen at
Smyrna, if he in contemplation of law had a domicil in the
United States’.” Domicil no doubt imparts national character
* Mr. Marcy's doctrine was strangely inconsistent with the law of the
United States at the period when he wrote. It was no doubt open to him
to argue that a person might be entitled to the protection of the United
States as a member of the state community without being in possession of
those privileges of citizenship which naturalisation would give him, because
under the constitution of the Union several classes of persons are in that
position ; as for example Indians and the inhabitants of conquered country,
the latter of whom, as was the case with the inhabitants of California after
its conquest from Mexico, are aliens until they are admitted to citizenship
by an act of Congress, but are nevertheless “subjects’ as between the United
States and foreign powers (Halleck, ii. 456). But at the time in question
persons of foreign nationality who had declared their intention of becoming
citizens were incapable of receiving United States passports, and consequently
could not have been regarded as subjects. Since then, by an act of 1863,
such of them as were liable to military service were rendered capable of
receiving passports; but in 1866 this act was repealed and it was provided
that for the future passports should be issued to citizens only (Lawrence,
Commentaire, iii. 193). Dr. Woolsey seems to think that the merits of the
PART II
CHAP. V.
B, 2.
244 SOWEREIGNTY IN RELATION
PART II
CHAP. V’
for certain purposes; but those purposes, so far as they have to
do with public international law, are connected with the rules of
war alone, and Mr. Marcy’s contention was wholly destitute of
legal foundation. The ideas to which he gave expression were
not however peculiar to himself; they seem to have been
commonly held in America, and the action of the Confederate
States with reference to conscription in 1862 rendered it necessary
for the English government to urge the rudimentary doctrine,
‘That a domicil established by length of residence only, without
naturalisation or any other formal act whereby the domiciled
person has, so to speak, incorporated himself into the state in
which he resides, does not “for the time convert him into a
subject of the domicil in all respects save the allegiance he owes
his native sovereign.” Such a domiciled person is not a civis,
but a temporary subject, subdiffus temporarius, of the state in
which he is resident.” Later, when the Northern States were in
serious want of men in 1863, an act was passed subjecting
foreigners to military service who had expressed their intention
to become citizens. On this occasion Lord Russell, while
apparently admitting that the scope of the act was not beyond
the legitimate powers of a state over foreigners, represented that
persons affected by it ought to be allowed a reasonable, time to
withdraw from the country. A proclamation was consequently
issued giving sixty-five days for the departure of intending
citizens. In stating in the preamble that its issue was caused
by a claim made on behalf of such persons to the effect that
under the law of nations they retained the right of renouncing
their purpose of becoming citizens the government of the United
States went further than it was asked; and in giving what was
demanded not as a concession but as a right, abandoned all
case are affected by the fact that Koszta was in possession of a passport given
to him by the American Consul at Smyrna; but a passport granted in
contravention of the laws of the United States was obviously a mere piece of
waste paper. In the fifth edition of his work Dr. Woolsey adds the admission,
that Koszta's “mere declaration to become a citizen of the United States did
not affect his nationality’ (§ 80).
TO THE SUBJECTS OF THE STATE 245
assertion of right to control persons as being citizens whose PART II
naturalisation is incomplete, and by implication abandoned also “”
the assertion of a right to protect them ".
The position of persons exercising rights reserved to subjects
is different”. Whether or not they have been allowed to exercise
them under a misapprehension as to their being subjects is
immaterial. They have shown by their own acts that they wish
to share in privileges understood to belong to subjects only, and
they cannot afterwards turn round and repudiate their liability
to correlative responsibilities. During the American civil war
the English government very properly refused to interfere on
behalf of British subjects who had placed themselves in this
situation. It does not follow that such persons are in a better
position than ordinary foreigners as between third states and the
state within which they have arrogated to themselves the rights
of subjects, and the burdens of which they must consequently
bear. Third states, and the state of origin when it acknowledges
naturalisation as changing nationality, can only look to the fact
that the naturalisation laws of the state naturalising have or
have not been fully complied with. Until these laws are
satisfied the state into which a person has immigrated can have
no right of protecting him. -
When once the persons who are indisputably the subjects of The ques.
a state, or whom it may regard as such, are ascertained, no º
question having special reference to sovereignty in its relation to gº.
reignty in
the subjects of the state remains to be considered. International º to
subjects
law has nothing to do with the authority exercised over a subject with
within the jurisdiction of a state, whether such jurisdiction be . IIl-
territorial or is that which is possessed in unappropriated places. º law
* = ** tº e e - e i e" tº e © €8, S.
Within the jurisdiction of a foreign state no authority exists,
except in so far as those immunities from jurisdiction extend,
* Report of the Naturalisation Laws Commission, Appendix, pp. 42–5; De
Martens, Causes Cél. v. 583.
* For acts unreasonably taken as showing intention of adopting the local
national character, cf. antea, p. 216.
246 SOWEREIGNTY IN RELATION TO SUBJECTS
PART II which are discussed elsewhere *, as having more immediate
* * connexion with sovereignty in its relation to territory; the state
may issue any commands not incompatible with its duties to the
foreign state, but it cannot of course enforce them except by the
sanctions of municipal law, and consequently in places within its
own jurisdiction. Finally, the right of protecting subjects
abroad falls under the head of self-preservation *.
Persons In a certain number of cases it is possible for persons to be
º . destitute of any national character. In Austria, for example,
*:::::::: any one emigrating without permission of the state loses his
º nationality by the act of emigrating, and is consequently
without nationality until or unless he is formally received into
another state community; in the Argentine Confederation a
foreign woman does not acquire the nationality of her husband
on marrying an Argentine citizen, although she may have lost
her nationality of origin by marrying a subject of another state;
and the illegitimate son of an Englishwoman born in Russia,
though British in the eye of Russian law, is of no nationality
elsewhere, since by English law he is not British, and by
Russian law he is not Russian. It is evident that the existence
of numerous persons in like condition would be embarrassing ;
and it appears that much inconvenience was in fact caused until
lately both in Germany and Switzerland by the presence of
individuals who either had no nationality, or whose nationality
it was impossible to determine. It was ultimately settled by
convention as between the Swiss Cantons and as between the
German states that any one found to be in either of these
positions should be considered to be a subject of the state in
which he was living, provided that he had resided there five
years since attaining his majority, or had stayed there six weeks
after his marriage, or finally had married there. It might be
useful to adopt, as an international rule, a practice of ascribing
a nationality of domicil to persons without nationality or of
uncertain national character.
* See antea, pt. ii. chap. iv. I72 et seq. * See postea, p. 278.
CHAPTER WI
JURISDICTION IN PLACES NOT WITHIN THE
TERRITORY OF ANY STATE
ON the unappropriated sea, and on land not belonging to any PART II
community so far possessed of civilisation that its territorial dº y
º ſe e e e º º o I’a,
jurisdiction can be recognised, it is evident that, as between view of
1 and independent l lete lawl is to .
equal and Independent powers, unless complete lawlessness is to diction ex-
be permitted to exist, jurisdiction must be exercised either ºy
exclusively by each state over persons and property belonging places not
to it, or concurrently with the other members of the body *
of states over all persons and property, to whatever country .
they may belong. The former of these alternatives is that
which is most in consonance with principle. It has been seen
that the state retains control over the members of the state
community when beyond its territorial jurisdiction in so
far as such control can be exercised without derogating from
the territorial rights of foreign states, so that with respect
to individuals there is always a state in a position to assert
a claim to jurisdiction higher than any which can be put
forward by other states; and although jurisdiction cannot be
founded on non-territorial property so as to exclude or diminish
territorial jurisdiction, the possession of an object as property
at least forms a reasonable ground for the attribution of
exclusive control to its owner when no equal or superior right
of control can be shown by another. Concurrent jurisdiction
could therefore only be justified by a greater universal con-
venience than several jurisdiction can secure, and in most cases,
so far from universal convenience being promoted, it would be
distinctly interfered with, by the admission of a common right
of jurisdiction on the part of all nations. It is consequently
248 JURISDICTION IN PLACES NOT WITHIN
PART II
CHAP. VI
Theory of
the terri-
toriality
of vessels.
the settled usage that as a general rule persons belonging to
a state community, when in places not within the territorial
jurisdiction of any power, are in the same legal position as if on
the soil of their own state, and that, also as a general rule,
property belonging to a state or its subjects, while evidently
in the possession of its owners, cannot be subjected to foreign
jurisdiction.
For special reasons however exceptions are sometimes made
to this usage. It has been already pointed out that in time
of war a neutral state frees itself from responsibility for acts
done outside its frontier by its subjects, when they are not
employed as its own agents, by allowing a belligerent to exercise
so much jurisdiction over them and their property as is necessary
for the protection of his right to attack an enemy in the various
ways sanctioned by the customs of war. In such cases the right
of jurisdiction is wholly abandoned within defined limits. Con-
current jurisdiction, again, is conceded by a country to a specific
foreign state when subjects of the former take passage or service
on board the vessels of the latter, and to all foreign states when
the crew of a ship belonging to it is guilty of certain acts which
go by the name of piracy. Finally, when persons on board a ship
lying in or passing through foreign waters commit acts forbidden
by the territorial law the local authorities may pursue the
offending vessel into the open sea in order to vindicate their
jurisdiction.
It is unquestioned that in a general way a state has the rights
and the responsibilities of jurisdiction over ships belonging to it
while they are upon the open sea, but a difference of opinion
exists as to the theoretical ground upon which the jurisdiction of
the state ought to be placed, and this is so wide-reaching and
important in its effects as to make it worth while to examine
carefully into the reasonableness of the doctrines on either side
and into the amount of authority by which they are respectively
supported.
According to some writers ships are floating portions of the
THE TERRITORY OF ANY STATE 249
country upon which they depend, or, as the doctrine is sometimes
expressed, they are a ‘continuation or prolongation’ of territory.
According to others the jurisdiction possessed by a state over its
ships upon the ocean arises simply from the fact that no local
jurisdiction exists there; it is necessary for many purposes that
jurisdiction over a vessel shall be vested in a specific state; it is
natural to concede a right of jurisdiction to the owner of property
until his claim as such is opposed by a superior title on the part
of some one else; and all states being equally destitute of local
rights upon the ocean, no right to jurisdiction over a vessel can,
within the range of the purposes contemplated, be superior to
that of the state owning it. According to this theory it does
not follow that there are no rights other than those of the owner
which are ever able to assert themselves. Claims springing from
property may, for example, be confronted with claims based on
the rights of self-preservation. And as claims which are ulti-
mately founded on the latter right are actually made by
belligerents, the theory has at least the advantage of fitting in
better with existing practice than the competing doctrine. If
the latter is authoritative, usages such as that of the capture of
neutral vessels for contraband trade, instead of being sanctioned
under the general principles of international law, would become
exceptional and be thrown upon their defence. The legal position
of merchant ships in territorial waters would also be affected, and
it would be necessary upon that point to admit and to go beyond
the views of the French school which have already been stated
and rejected.
It does not appear that the doctrine of the territoriality of
vessels can be traced further back than to the ‘Exposition des
Motifs’ put forth in 1752 by the Prussian government in
justification of its behaviour in confiscating the funds payable to
its English creditors in respect of the Silesian Loan". In that
repertory of bad law it is said that ‘ the Prussian vessels, although
laden with property belonging to the enemies of England, were
PART II
CHAP. VI
* See postea, p. 370 m.
Its his-
tory.
250 JURISDICTION IN PLACES NOT WITHIN
PART II
CHAP. VI
a neutral place, whence it follows that it is exactly the same
thing to have taken such property out of the said vessels as to
have taken it upon neutral territory'.” The assertion, of which
the object was to produce the impression that the English, in
acting upon an ordinary usage, had been guilty of illegal conduct,
was supported by no reasoning. In its origin therefore the .
doctrine had just so much authority as belongs to a legal
proposition laid down by an advocate whose law is notoriously
bad. A few years later the idea reappears in Vattel, but he uses
it only incidentally to explain a particular custom, and evidently
without adequate consideration of its scope and bearings. Chil-
dren born at sea, he says, if born in a vessel belonging to the
state of which their parents are subjects, * may be considered to
be born within the territory, for it is natural to regard the ships
of the nation as parts of its territory, especially while they navigate
unappropriated waters, since the state preserves its jurisdiction
over them *. With Hübner the doctrine holds a more conspicuous
position. A proof was required that enemy’s goods ought not to
be captured on board neutral vessels. Let the territoriality of
merchant ships be granted and the proof was found. ‘It is
universally agreed that a belligerent cannot attack his enemy in
a neutral place, nor capture his property there. Neutral vessels
are unquestionably neutral places. Consequently when they are
laden with enemy’s goods a belligerent has no right to molest
them because of their cargoes”.’ The question is simply begged.
The territoriality of a vessel is a metaphorical conception; and
before a metaphor can be employed as an operative principle of
law, it must be proved to have been so adopted into law as to
render its use necessary, or at least reasonable. It was impossible
for Hübner to show this. It would have been idle for him to
appeal to the exterritoriality of sovereigns, ambassadors, or ships
of war, as one generally accepted, even if it had then been in fact
* De Martens, Causes Cél. ii. II.7.
* Liv. i. ch. xix. § 216.
* De la Saisie des Bâtimens Neutres, tom. i. p” ii. ch. ii. § 6.
THE TERRITORY OF ANY STATE 251
more fully accepted with respect to ships of war than it actually PART II
CHAP. Viſ
º
was. Enough has been said in stating the respective charac-
teristics of ships of war and commerce, and the reasons for
which privileges are conceded to the former within the territory
of foreign countries, and even in giving the arguments by which
the French view as to the position of merchant vessels in foreign
ports is supported, to show that the analogy between the two
classes of vessels is not close enough to require that a mode of
treating the one shall be extended to the other at the cost
of a reversal of usage. And usage, so far as merchant vessels
was concerned, was wholly inconsistent with the doctrine of
territoriality.
Notwithstanding that the theory was thus destitute of founda-
tion, it has always had a certain number of adherents, it is
probably adopted definitively by several states, it is professed by
living or recent writers of current authority, and its influence is
no doubt felt in much that is written against the established
customs of maritime war. -
The modern advocates of the doctrine are somewhat too apt to Its inad-
affirm that ‘international law has long admitted the principle that *
a ship leaves the country to which it belongs as a floating portion
of its territory,’ without adducing any proof of its admission.
If they endeavour to prove the correctness of their view, they
say with Massé that, as sovereignty cannot be established over the
seas, jurisdiction cannot be exercised there except over property
by the state owning it, and that acts done on the high seas under
the flag of a state are reputed to be done on the soil of that state".
* Bluntschli, Š 317; Massé, liv. ii. tit. i. ch. ii. sect. ii. § Io, art. i. See
also Heffter, § 78; Hautefeuille, Droits et Devoirs des Neutres, tit. vi. ch. i.
Sect. I ; Negrin, 95.
Ortolan (Dip. de la Mer, liv. ii. ch. x) appears to hold that merchant
vessels are territorial upon the ocean, and lose their territorial character on
entering territorial waters.
The territoriality of merchant vessels is not admitted by Lampredi
(Com. dei Pop. Neut. pt. i. § Xi), Wheaton (Elem. pt. ii. ch. ii. § Io), Manning
(Law of Nations, p. 275, Abdy’s ed.), Riquelme (i. 222), Twiss (i. § 159), Fiore
(pt. ii. ch. v. ed. 1868), Harcourt (Letters of Historicus, No. x).
The doctrine of the non-territoriality of merchant vessels has always been
252 JURISDICTION IN PLACES NOT WITHIN
Both statements are inconsistent with the facts. They are only
true of cases in which no other state than that to which a vessel
belongs has an interest in also exercising jurisdiction; they are
true of the effect of births, wills, &c., but they are not true, for
example, when a vessel carries goods contraband of war, the
seizure of which upon neutral territory would be a gross violation
of sovereignty.
International law indeed as laid down by these writers
themselves is inconsistent with the principle which they uphold.
It is admitted by the most thorough-going assertors of the
territoriality of merchant vessels that so soon as the latter enter
the ports of a foreign state they become subject to the local
jurisdiction on all points in which the interests of the country
are touched; that when a vessel or some one on board has
infringed the local laws she can be pursued into the open seas,
and can be brought back, or the culprit can be arrested there;
that in time of war a merchant ship can be seized and con-
demned for carriage of contraband or breach of blockade. Now
PART II
CHAP. VI
strongly, and often too strongly, held by English governments. Its position
in their view at the beginning of the present century was expressed without
exaggeration by Lord Stowell when he said that “the great and fundamental
principle of British maritime jurisprudence is, that ships upon the high seas
compose no part of the territory of a state. The surrender of this principle
would be a virtual surrender of the belligerent rights of this country.”
(Sir W. Scott, Report in Impressment Papers, 1804, quoted in Append. to
Report of Naturalisation Commission, p. 32.) The doctrine was not only
maintained to the full, but in dealing with impressment it was pushed
beyond its natural limits, and was converted into an assertion of concurrent
jurisdiction, not by way of a customary exception, but as a matter of
principle independently of general consent. Of course the conduct of England.
at the period in question had much to do with the vivacity which has been
displayed by the fiction with which her doctrine was incompatible; and it
tended to drive the United States into the opposite extreme. By the latter
power in fact the territoriality of the merchant vessel has been distinctly
asserted. Mr. Webster, writing to Lord Ashburton (Aug. 8, 1842) with
reference to impressment, says, “Every merchant vessel on the seas is
rightfully considered as part of the territory of the country to which it
belongs. The entry therefore into such vessel, being neutral, by a belligerent,
is an act of force, and is primá facie a wrong, a trespass, which can be justified
only when done for some purpose allowed to form a sufficient justification
by the law of nations.” Ib. p. 6o.
THE TERRITORY OF ANY STATE 253
it was long ago pointed out that if a merchant vessel is part of PART II
the territory of her state she must always be part of it". The “”
fiction is meaningless unless it conveys that a merchant ship is
clothed with the characteristic attributes of territory, and among
these are inviolability at all times and under all circumstances
short of a pressing necessity of self-preservation on the part of
another power than that to which the territory belongs, and
exclusiveness of jurisdiction except in so far as it is abated by
the custom of exterritoriality, which of course cannot be brought
into use as against a ship. This however the fiction does not
convey. Under the confessed practice of nations the alleged
territorial character disappears whenever foreign states have
strong motives for ignoring it. It cannot be seriously argued
that a new and arbitrary principle has been admitted into law
so long as a large part of universally accepted practice is
incompatible with it, and while at the same time its legal
character is denied both by important states and by jurists of
weight.
Putting aside the fiction of territoriality as untenable, it may Limits º
be taken for granted that the jurisdiction exercised by a state ...;
over its merchant vessels upon the ocean is conceded to it in ...
g over its
virtue of its ownership of them as property in a place where no merchant
local jurisdiction exists; this being a reasonable theory, and the . \
only one which enters into competition with the doctrine of º .*
territoriality. It only remains therefore to see what are the
limits of the jurisdiction thus possessed. As might be expected,
it is sufficient to provide for the good order of the seas, and
excludes foreign jurisdiction until grave reason can be shown
for its exercise. Its extent may be defined as follows. A
state has—
I. Administrative and criminal jurisdiction so as to bring all
acts cognizable under these heads, whether done by subjects or
foreigners, under the disciplinary authority established in virtue
* Manning, p. 276.

254 JURISDICTION IN PLACES NOT WITHIN
of state control on board the ship and under the authority of the
state tribunals 4.
2. Full civil jurisdiction over subjects on board, and civil juris-
diction over foreigners to the extent and for the purposes that it
is exercised over them on the soil of the state, unless partial
exemption is given to them when on board ship by the municipal
law of the state. -
3. Protective jurisdiction to the extent of guarding the vessel
against interference of any kind on the part of other powers,
unless she commits acts of hostility against them, or does certain
acts during war between two or more of them which belligerents
are permitted to restrain *, or finally, escapes into non-territorial
waters after committing, or after some one on board has com-
mitted, an infraction of the law of a foreign country within the
territory of the latter.
A state is responsible for all acts of hostility against another
state done on the ocean by a merchant vessel belonging to it,
and it is bound to offer the means of obtaining redress in its
courts for wrongful acts committed against foreign individuals
by her or by persons on board her. It is not responsible for
those acts above mentioned which belligerents are permitted to
restrain, or for acts, to be defined presently, which constitute
piracy. *
With respect to ships of war and other public ships little need
PART II
CHAP. VI
* It is worth while to note that an effect of this jurisdiction is to sometimes
change the character of continuing acts, done partly in foreign territorial
waters and partly on the high Seas, so that acts innocent under foreign
jurisdiction may become punishable when the vessel by issuing from it
becomes subject to the criminal jurisdiction of its own country. Thus, in
the case of Reg. v. Lesley (Bell’s Crown Cases Reserved, 220), the defendant,
who was master of a merchant vessel, entered into a contract with the Chilian
government to bring over to England certain Chilian subjects, who had been
sentenced to banishment. The banished persons were put on board, and
were retained on board, against their will. On the arrival of the vessel in
England the defendant was indicted and convicted for false imprisonment ;
it being held that the detention of his unwilling passengers, though perfectly
justified within Chilian waters, became unlawful so soon as the vessel crossed
their boundary. º
* See postea, pt. iv. chaps, v, vi, vii.
THE TERRITORY OF ANY STATE 255
be said. The fiction of territoriality is useless, but it is harmless; PART II
because it cannot cause larger privileges to be attributed to such jºi"
vessels than they are acknowledged for other reasons to possess. tion over
They represent the sovereignty and independence of their state ºi.
more fully than anything else can represent it on the ocean;
they can only be met by their equals there; and equals cannot
exercise jurisdiction over equals. The jurisdiction of their own
state over them is therefore exclusive under all circumstances,
and any act of interference with them on the part of a foreign
state is an act of war.
It follows from the amount of jurisdiction possessed by a Jurisdic-
tº tion of a
country over its vessels upon the ocean that a state concedes to state over
foreigners
in its
or taking passage in ships belonging to the latter. All acts ships.
a foreign power concurrent jurisdiction over its subjects serving
done, or things occurring, on board have the same civil or
criminal value relatively to the foreign state, and entail the
same consequences, as if done within the territory of the latter.
On the other hand it may be repeated that the state of which
the subjects are on board a foreign ship can of course appreciate
such acts or occurrences in whatever way it chooses, and may
affix what consequences it likes to them, as within its own
territory, provided that it does not supplant or exclude the
primary jurisdiction of the country to which the vessel belongs",
* It may be worth while to mention a somewhat recent illustrative case.
An English sailor on board an American vessel stabbed the mate. On the
arrival of the vessel at Calcutta, the sailor was handed over to the police for
safe keeping. The commission of the crime having been thus brought to the
notice of the authorities, they put the sailor on his trial under an Indian
statute considered by the High Court of Calcutta to give the courts of the
Empire jurisdiction over crimes committed by British subjects on the high
seas, even though such crimes should be committed on board a foreign vessel.
After the man was convicted the Consul General of the United States applied
for his extradition, which was refused on the ground that the government of
India was unable to order the surrender of a person on a charge in respect
of which he had already been tried and convicted by a competent British
court. Upon this the American Minister in London complained to the
British government of the exercise of jurisdiction of the High Court, urging
that ‘as regards common crimes committed on board merchant vessels on
the high seas, the competent tribunals of the vessel’s nation have exclusive
256 JURISDICTION IN PLACES NOT WITHIN
PART II
CHAP. VI
Pursuit of
a vessel
into non-
territorial
waters
for infrac-
tions of
law com-
mitted in
territorial
waters.
It has been mentioned that when a vessel, or some one on
board her, while within foreign territory commits an infraction
of its laws she may be pursued into the open seas, and there
arrested. It must be added that this can only be done when the
pursuit is commenced while the vessel is still within the territorial
waters or has only just escaped from them". The reason for the
permission seems to be that pursuit under these circumstances is
a continuation of an act of jurisdiction which has been begun,
or which but for the accident of immediate escape would have
been begun, within the territory itself, and that it is necessary to
permit it in order to enable the territorial jurisdiction to be
efficiently exercised. The restriction of the permission within
the bounds stated may readily be explained by the abuses which
would spring from a right to waylay and bring in ships at a
subsequent time, when the identity of the vessel or of the persons
on board might be doubtful”.
jurisdiction of the question of trial and punishment of any person thus
accused of the commission of a crime against its municipal law.” On ex-
amination it was found that the statute under which the trial took place
did not confer the supposed powers; the British government therefore
expressed its “regret that the action of the authorities at Calcutta should
have been governed by a view of the law which, in the opinion of Her
Majesty's government, cannot be supported '; but it at the same time
recorded its dissent from the general proposition laid down by the American
Minister. It was “not prepared to admit that a statute conferring jurisdiction
on the court of the country of the offender, in the case of offences committed
by its own subjects on the high seas, on board a foreign vessel or in places
within foreign jurisdiction, would violate any principle of International Law
or comity. On the contrary,’ it was ‘of opinion that there are many cases
in which the conferring of such jurisdiction would subserve the purposes of
justice, and be quite consistent with those principles. Such an assumption
of jurisdiction does not involve a denial of jurisdiction on the part of the
state in whose territory the offence was committed; it involves no more
than the right of concurrent jurisdiction.” Probably, as indicated in the
text, the claim to strictly concurrent jurisdiction is excessive. It might be
best that extradition of an accused person, who has fallen into the hands of
his territorial authorities, should be regarded as due whenever it is applied
for before committal for trial, or equivalent conclusion of preliminary or
instructional proceedings.
* Bluntschli, § 342; Woolsey, § 58. -
* A doctrine has lately been suggested, to which it may be worth while to
devote a few words. In the arguments laid before the Behring Sea Arbitral
THE TERRITORY OF ANY STATE 257
Pirates, according to Bynkershoek", are persons who depredate PART II
by sea or land without authority from a sovereign. The definition, rº, VI
like most other definitions of pirates and piracy, is at once too
wide and too narrow to correspond exactly with the acts which
are now held to be piratical, but it may serve as a starting-point
by directing attention to the external characteristic by which,
next to their violent nature, they are chiefly marked. Piracy
includes acts differing much from each other in kind and in moral
value; but one thing they all have in common : they are done
under conditions which render it impossible or unfair to hold any
state responsible for their commission. A pirate either belongs
to no state or organised political Society, or by the nature of his
act he has shown his intention and his power to reject the authority
of that to which he is properly subject. So long as acts of violence
are done under the authority of the state, or in such way as not
to involve its supersession, the state is responsible, and it alone
exercises jurisdiction. If a commissioned vessel of war indulges
Tribunal, on behalf of the United States, it was advanced as a proposition of
law that a state has a right to make enactments under which it can assume
jurisdiction upon the high seas, exercisable at an indefinite distance outside
territorial waters, for the purpose of safeguarding property, and of protecting
itself against acts “threatening invasion of its interests.” The laws so passed
were alleged to be ‘binding upon other nations because they are defensible
acts of force which a state has a right to exert.” In support of the supposed
right, the practice of nations was adduced in the form of ‘Hovering Acts,’
of fishery regulations, &c. It was not difficult for Great Britain to show
that the laws, by which it was argued that she and other states had acted in
conformity with the American pretension, were either restricted in their
operation to territorial waters, or were, probably everywhere, and certainly
in the case of the more important countries, intended only to be enforced
upon foreigners subject to the assent of their own government. The
arguments from precedent therefore fell to the ground. As regards the
principle involved, it will be seen later (pp. 269 et seq.) that a right of self.
defensive action upon the high seas, and even within the territory of a foreign
power, undoubtedly exists; but it will also be seen that its exercise is limited
to cases of grave and sudden emergency, and that the very ground and
essential nature of the right are incompatible with the steady and regular
application of law. Subject to the isolated practice mentioned in the text;
the laws of a state can only run outside its territorial waters against the
vessels and subjects of another state with the express or tacit consent of the
latter.
* Quaest. Jur. Pub. lib. is cap. xvii.
HALL S
258 JURISDICTION IN PLACES NOT WITHIN
PART II in illegal acts, recourse can be had to its government for redress;
CHAP. VI
if a sailor commits a murder on board a vessel the authority of
the state to which it belongs is not displaced, and its laws are
able to assert themselves; but if a body of men of uncertain
origin seize upon a vessel and scour the ocean for plunder, no
one nation has more right of control over them, or more re-
sponsibility for their doings, than another, and if the crew of a
ship takes possession of it after confining or murdering the captain,
legitimate authority has disappeared for the moment, and it is
uncertain for how long it may be kept out. Hence every nation
may seize and punish a pirate, and hence, in the strong language
of judges and writers whose minds have dwelt mainly upon piracy
of a particular sort, he is reputed to be the enemy of the whole
human race. -
When the distinctive mark of piracy is seen to be independence
or rejection of state or other equivalent authority, it becomes
clear that definitions are inadequate which, as frequently happens,
embrace only depredations or acts of violence done animofurandi.
If a vessel belonging to an extinguished state were to keep the
seas after the national identity had been wholly lost, and were
to sink the vessels and kill the subjects of the victorious state,
the intention to plunder would be absent, but the act at bottom
would be the same as one in which that intention was present.
In both cases the acts done would be acts of violence committed
by persons having no right to perform them without authority
from a politically organised society, but having no such society
behind them ; and in both cases they would be acts for which no
remedy could be obtained except upon the persons by whom they
were done.
It may on the other hand be worth while to remark that a
satisfactory definition of piracy must expressly exclude all acts
by which the authority of the state or other political society is
not openly or by implication repudiated. Probably it is never
intended to convey anything else, but the language of some
writers is sufficiently loose to render it uncertain whether cases
THE TERRITORY OF ANY STATE 250
even of common robbery, cognizable only by the sovereign of the
criminals, might not fall within the scope of the words used.
It is generally said that one of the conditions of the piratical
character of an act is the absence of authority to do it derived
from any sovereign state. Different language would no doubt
have been employed if sufficient attention had been earlier given
to societies actually independent, though not recognised as
Sovereign. Most acts which become piratical through being
done without due authority are acts of war when done under the
authority of a state; and as societies to which belligerent rights
have been granted have equal rights with permanently established
states for the purposes of war, it need scarcely be said that all
such acts authorised by them are done under due authority.
Whether the same can be said of acts done under the authority
of politically organised societies which are not yet recognised as
belligerent may appear more open to argument, though the
conclusion can hardly be different. Such societies being unknown
to international law, they have no power to give a legal character
to acts of any kind; at first sight consequently acts of war done
under their authority must seem to be at least technically piratical.
But it is by the performance of such acts that independence is
established and its existence proved; when done with a certain
amount of success they justify the concession of belligerent
privileges; when so done as to show that independence will be
permanent they compel recognition as a state. It is impossible
to pretend that acts which are done for the purpose of setting up
PART II .
CHAP. VI
a legal state of things, and which may in fact have already
succeeded in setting it up, are piratical for want of an external
recognition of their validity, when the grant of that recognition
is properly dependent in the main upon the existence of such a
condition of affairs as can only be produced by the very acts in
question. It would be absurd to require a claimant to justify
his claim by doing acts for which he may be hanged. Besides,
though the absence of competent authority is the test of piracy,
its essence consists in the pursuit of private, as contrasted with
S 2.
260 JURISDICTION IN PLACES NOT WITHIN
public, ends. Primarily the pirate is a man who satisfies his
personal greed or his personal vengeance by robbery or murder
in places beyond the jurisdiction of a state. The man who acts
with a public object may do like acts to a certain extent, but his
moral attitude is different, and the acts themselves will be kept
within well-marked bounds. He is not only not the enemy of
the human race, but he is the enemy solely of a particular state.
The only reason therefore for punishing him as a pirate is that an
unrecognised political society cannot offer a sufficient guarantee
that the agents employed by it will not make the warlike
operations in which they are engaged a cloak for indiscriminate
plunder and violence. The reason seems hardly adequate. It is
enough that the power must always exist to treat them as pirates
so soon as they actually overstep the limits of political action.
The true view then would seem to be that acts which are allowed
in war, when authorised by a politically organised society, are
not piratical. Whether a particular society is or is not politically
organised is a question of fact which must be decided upon the
circumstances of the case.
Usually piracy is spoken of as occurring only upon the high
seas. If however a body of pirates land upon an island un-
appropriated by a civilised power, and rob and murder a trader
who may be carrying on commerce there with the savage in-
habitants, they are guilty of a crime possessing all the marks of
commonplace professional piracy. In so far as any definitions of
piracy exclude such acts, and others done by pirates elsewhere
than on the ocean but of the kind which would be called piratical
if done there, the omission may be assumed to be accidental.
Piracy no doubt cannot take place independently of the sea, under
the conditions at least of modern civilisation; but a pirate does
not so lose his piratical character by landing within state territory
that piratical acts done on shore cease to be piratical".
PART II
CHAP. VI
* Molloy (bk. i. ch. iv. § 1) describes a pirate as “a sea thief, a hostis
humani generis, who to enrich himself, either by surprise or open force, sets
upon merchants or other traders by Sea.” Casaregis (disc. lxiv. 4) says:
THE TERRITOR Y OF AN Y STATE 261
If the foregoing remarks are well founded, piracy maybe said
to consist in acts of violence done upon the Ocean or unap-
propriated lands, or within the territory of a state through
descent from the sea, by a body of men acting independently of
any politically organised society.
The various acts which are recognised or alleged to be piratical
maybe classed as follows:—
I. Robbery or attempt at robbery of a vessel, by force or
intimidation, either by way of attack from without, or by way
of revolt of the crew and conversion of the vessel and cargo to
their own use. • •
PART I.
CHAP. VI
In what it
consists.
* Proprie pirata ille dicitur qui sine patentibus alicujus principis ex propria,
tantum et privata auctoritate per mare discurrit depredandi causa.” Kent
(Comm. i. 183) calls piracy “ a robbery or a forcible depredation on the high
seas, without lawful authority, and done animo furandi, and in the spirit
and intention of universal hostility.” Wheaton (Elem. pt. ii. ch. ii. S 15)
defines piracy as being “the offence of depredating on the seas, without
being authorised by any sovereign state, or with commissions from different
sovereigns at war with each other.” Riquelme (i. 237) says that º los piratas,
segun la ley de las naciones, son aquellos que corren los mares por su propia
autoridad, y no bajo el pabellon de un Estado civilizado, para cometer toda
clase de desafueros á mano armada, ya en paz ya en guerra, contra los buques
de todos los pueblos.” Ortolan (Dip. de la Mer, liv. ii. ch. xi) considers that
“à proprement parler, dans le sens le plus restreint et le plus généralement
adopté, les pirates ou forbans sont ceux qui courent les mers de leur propre
autorité, pour y commettre des actes de déprédation, pillant à main armée,
soit en temps de paix, soit en temps de guerre, les navires de toutes les
nations, sans faire aucume distinction que celle qui leur convient pour assurer
l'impunité de leurs méfaits.” Phillimore (i. S cccliii) calls piracy º an assault
upon vessels navigated on the high seas, committed animo furandi, whether
the robbery or forcible depredation be effected or not, and whether or not it
be accompanied by murder or personal injury.” Heffter (S Io4) says that it
“ consiste dans l'arrestation et dans la prise violente de navires et des biens
qui s y trouvent, dans un but de lucre et sans justifier d'une commission
délivrée à cet effet par un gouvernement responsable.” Bluntschli (S 343)
lays down that “les navires sont considérés comme pirates, qui sans l'auto-
risation d'une puissance belligérante cherchent à s'emparer des personnes, à.
faire du butin (navires et marchandises), ou à anéantir dans un but criminel
les biens d'autrui.” Calvo (S II34) understands by piracy º tout vol ou pillage
d'un navire ami, toute déprédation, tout acte de violence commis à main
armée en pleine mer contre la personne ou les biens d'un étranger, soit en
temps de paix, soit en temps de guerre.”
Bernard (The Neut. of Great Britain, II8) and Dana (Notes to Wheaton,
Nos. 83—4) have valuable remarks on what does, and what does not, con-
stitute piracy, R
Classifica-
tion of
acts which
are pirati-
cal, or are
262 JURISDICTION IN PLACES NOT WITHIN
PART II
CHAP. VI
alleged
to be pira-
tical.
2. Tepredation upon two belligerents at war with one another
under commissions granted by each of them.
3. Depredations committed at sea upon the public or private
vessels of a state, or descents upon its territory from the sea
by persons not acting under the authority of any politically
organised community, notwithstanding that the objects of the
persons so acting may be professedly political. Strictly all acts
which can be thus described must be regarded as in a sense
piratical. In the most respectable instances they are acts of war
which, being done in places where international law alone rules,
or from such places as a base, and being therefore capable of
justification only through international law, are nevertheless
done by persons who do not even satisfy the conditions precedent
of an attempt to become subjects of law, and who cannot
consequently claim like unrecognised political societies to be
endeavouring to establish their position as such. Often how-
ever the true character of the acts in question is far from
corresponding with their legal aspect. Sometimes they are
wholly political in their objects and are directed solely against
a particular state, with careful avoidance of depredation or attack
upon the persons or property of the subjects of other states. In
such cases, though the acts done are piratical with reference to
the state attacked, they are for practical purposes not piratical
with reference to other states, because they neither interfere with
nor menace the safety of those states nor the general good order
of the seas. It will be seen presently that the difference between
piracy of this kind and piracy in its coarser forms has a bearing
upon usage with respect to the exercise of jurisdiction.
4. A disposition has occasionally been shown to regard as
pirates persons taking letters of marque from one of two
belligerents, their own state being at peace with the other
belligerent. In 1839, France being at war with Mexico,
Admiral Baudin, commanding the fleet of the former power,
notified that every privateer sailing under the Mexican flag,
of which the captain and two-thirds of the crew were not
THE TERRITORY OF ANY STATE 263
Mexican subjects by birth, would be considered piratical and PART II
treated as such ; and in 1846, during the war of the United “ ”
States with Mexico, President Polk suggested in a message .
to Congress that it might be a question for the criminal courts
to decide whether bearers of commissions, issued in blank by the
Mexican government, and sold to foreigners by its agents
abroad, ought not to be regarded as pirates". That the views
entertained by the French and American governments on these
occasions were at variance with usage is confessed, but some
writers hold that usage ought to be modified in conformity with
them. It is argued that the change should be made because .
vessels acting in the manner contemplated would be disavowed
by the state to which they properly belong, and because it would
decline to be responsible for them; because, on the other hand,
they do not belong to the state of which they carry the
commission, since ‘they fulfil none of the conditions required
for the impress of a national character;' they are thus destitute
of any nationality. The reasoning does not appear to be very
conclusive. A vessel cannot be treated as piratical for the mere
absence of a clear national character, because a clear national
character is at least as much wanting to the vessels of a simply
belligerent community as to foreign vessels employed by a
sovereign state. In both cases, the acts purporting to be done
being in themselves permissible, or at least not criminal, when
authorised by a state or other political community, and criminal
when not so authorised, the essential point must be that a
responsible state or equivalent of a state shall really exist; and
it is impossible to maintain that the grant of letters of marque
or commissions to foreign vessels does not impose complete
* Ortolan, Dip. de la Mer, Iiv. ii. ch. xi, and Annexe H. The United
States appear to have made it an object of their policy to secure by treaty
from other states that the acceptance of letters of marque by the subjects
of a state from one foreign country against another should be reckoned
piracy; see e.g. treaties with France, I778 (De Martens, Rec. ii. 597);
England, 1794 (id. v. 678); Venezuela, 1836 (Nouv. Rec. Gén. xiii. 564);
Guatemala, 1849 (id. xiv. 318). . . r
264 JURISDICTION IN PLACES NOT WITHIN
responsibility upon the government issuing them. That a practice
of granting such letters or commissions would be highly ob-
jectionable, and that it would give rise to the most serious abuses,
is indisputable; but to say this, and to say that the persons
receiving them ought to be treated as pirates, are two very
distinct things. The true safeguard against the evils which
would spring from the practice would be to conclude treaties
binding the contracting powers not to issue such letters or
commissions. Fortunately the smallness of the number of states
which have not now become signataries of the Declaration of Paris
renders the question of little importance. It would indeed be
hardly worth discussing but for the opportunity which it gives
of indicating that the true nature of piracy has been consistently
observed in the formation of authoritative custom *.
It follows from the intimacy of the connexion between a state
and its public vessels that acts done by the latter must always be
presumed in the absence of distinct proof to the contrary to be
done under the authority of the state. Whatever therefore may
be the nature of the acts done by a ship of war or other public
vessel, it cannot be treated as a pirate unless it has evidently
thrown off its allegiance to the state under circumstances which
prevent it from being looked upon as the instrument of another
politically organised community, or unless under like cir-
cumstances it has been declared to be piratical by the legitimate
government. Unless one or other of these things has occurred,
redress for excesses committed by it can only be sought, as the
case may demand, either from the regular government of the
state or from that of its seceded portion.
As a general rule the vessels of all nations have a right to
PART II
CHAP. VI
Presump-
tion in
favour of
the inno-
cence of
a public
vessel
doing acts
primá facie
piratical.
* Ortolan, Dip. de la Mer, liv. ii, ch. xi.; Calvo, § 1145. Treaties binding
the contracting powers not to issue letters of marque to subjects of neutral
states were formerly frequent. Besides the treaties between the United
States and other powers already cited, see those between England and
France, 1786 (De Martens, Rec. iv. I57); Denmark and Genoa, I789 (ib.
447); Russia and Sweden, 18OI (id. vii. 331); France and Venezuela, 1843
(Nouv. Rec. Gén. v. 170); France and Chile, 1852 (id. xvi. 9).
THE TERRITORY OF ANY STATE 265
seize a pirate and to bring him in for trial and punishment by PART II
the courts of their own country irrespectively of his nationality nº
or of the nationality, if any, of the vessel in which he may be tion over
found; and when weighty reasons exist for suspecting that a pirates.
vessel is piratical all ships of war have a right to visit her for the
purpose of ascertaining her true character. When however
piratical acts have a political object, and are directed solely
against a particular state, it is not the practice for states other
than that attacked to seize, and still less to punish, the persons
committing them. It would be otherwise, so far as seizure is
concerned, with respect to vessels manned by persons acting with
a political object, if the crew, in the course of carrying out their
object, committed acts of violence against ships of other states
than that against which their political operation was aimed, and
the mode in which the crew were dealt with would probably
depend upon the circumstances of the case.
Some of the points connected with piracy of a more or less
political complexion may be illustrated from recent occurrences.
In 1873 a communalist insurrection broke out in the south- Cases of
east of Spain, and the Spanish squadron stationed at Carthagena .."*
fell into the hands of the insurgents. The crews of the vessels º
composing the squadron were proclaimed pirates by the govern-
ment of Madrid, and it became necessary for states having
vessels of war in the western Mediterranean to instruct the
commanders as to the line of conduct to be adopted by them.
Instructions were accordingly given by the governments of
England, France and Germany; these, though communicated by
each government to the others, were drawn up and issued
without previous concert; they were however so similar as to be
nearly identical. French and German naval commanders were
ordered to allow freedom of action to the insurgent vessels so
long as the lives or the property of subjects of their respective
states were not threatened; the orders given to British officers
differed only in directing interference in the case of danger to
Italian as well as to English persons or property. If in the
266 JURISDICTION IN PLACES NOT WITHIN
course of any interference which might be needed, Spanish
persons or ships were captured, British commanders were to hand
over their prisoners and the property seized to the agents of the
government of Madrid. Thus, the piracy of the Carthagenians
being political, no criminal jurisdiction was assumed over them ;
and though the right of summary action was asserted, its
exercise was limited to the requirements of self-protection".
In 1877 a revolutionary movement took place in Peru, the
first step in which consisted in the seizure at Callao of the
ironclad Huascar by the crew and some of her officers. The ship
got under weigh immediately for Iquique, where it was expected
that the leader of the movement would be met, and in the
course of the next few days, apparently while on her way
thither, she took a supply of coals from a British ship without
making any arrangement as to payment, and also stopped a
British steamer, from which Colonels Varela and Espinosa, two
government officials, were taken by force. In the meantime
the Peruvian government had issued a decree stating that it
would not be responsible for the acts of the persons on
board the Huascar, of whatever nature they might be. Under
these circumstances Admiral de Horsey, who was in command
of the English squadron in the Pacific, regarding the acts of the
Pſuascar as ‘piratical against British subjects, ships, and
property,’ attacked her [with the Shah] and fought an action
which remained undecided at nightfall, so that the Huascar
was able to escape and surrender to a Peruvian squadron. In
Peru the occurrence gave rise to great excitement, in which
the government shared or affected to share, and a demand.
for satisfaction was made upon England. There the question
was referred to the law officers of the crown, who reported
in effect that the acts of the Huascar were piratical. The
conduct of the Admiral was in consequence approved, and the
matter was allowed to drop by Peru”. -
PART II
CHAP. VI
The Huas-
car,
* Calvo, §§ II.46–8. * Parl. Papers, Peru, No. 1, 1877.
THE TERRITORY OF ANY STATE 267
In 1873, during the insurrection of part of Cuba against Spain, PART II
an affair took place of a widely different nature. The Virginius, º
a vessel registered as the property of an American citizen, but ginius.
in fact belonging to certain Cuban insurgent leaders, had sailed
from New York in 1870 as an American ship, and after making
sundry voyages for insurgent objects, found herself at Kingston
in the first-mentioned year. There she took on board some men
intended to be landed in Cuba, shipped a quantity of fresh
hands, who were ignorant of the true destination of the vessel,
and set sail ostensibly for Limon Bay in Costa Rica. While on
her way to Cuba, but upon the open sea, she was chased by and
surrendered to the Spanish vessel, the Tornado. She was taken
into Santiago de Cuba, and the greater part of those on board,
including several British subjects shipped in Jamaica, were shot
by order of the general commanding the place. When the
Fºrginius was captured she was undoubtedly engaged in an
illegal expedition, but she had committed no act of piracy, she
was sailing under the flag of the United States and with
American papers, she offered no resistance, and was in fact
unfitted both for offence and defence by the character of her
equipment. Although therefore the Spanish authorities had
ample reason for watching her, for seizing her if she entered
the Cuban territorial waters, and possibly even for precautionary
seizure upon the high seas, no excuse existed for regarding the
vessel and crew as piratical at the moment of capture. Had
they even been seized while in the act of landing the passengers
the business in which they would have been engaged would not
have amounted to piracy. The element of violence would have
been wanting. Invasion is in itself an act of violence. But an
invasion does not take place when a hundred men land in a
country without means of seriously defending themselves, and
when their only immediate object is to join their fellow rebels
quietly and without observation. The British government
demanded and obtained compensation for the families of the
British subjects who were executed. In their correspondence
268 EXTRA-TERRITORIAL JURISDICTION
PART II
CHAP. VI
with the government of Spain they did not complain of the
seizure of the vessel, or of the detention of the passengers
and crew, but argued that after this had been effected ‘no
pretence of imminent necessity of self-defence could be alleged,
and it was the duty of the Spanish authorities to prosecute
the offenders in proper form of law, and to have instituted
regular proceedings on a definite charge before the execution
of the prisoners; * maintaining further that had this been
done it would have been found that ‘ there was no charge
either known to the Law of Nations or to any municipal law
under which persons in the situation of the British crew of the
Virginius could have been justifiably condemned to death".”
By the municipal law of many countries acts are deemed
piratical and are punished as such which are not reckoned
piratical by international law. Thus the slave trade is piratical
in England and the United States; and in France the crew of
an armed vessel navigating in time of peace with irregular papers
become pirates upon the mere fact of irregularity without the
commission of any act of violence. It is searcely necessary to
point out that municipal laws extending piracy beyond the limits
assigned to it by international custom affect only the subjects of
the state enacting them and foreigners doing the forbidden acts
within its jurisdiction.
* Parl. Papers, lxxvi. 1874.
CHAPTER VII
SELF-PRESERVATION
IN the last resort almost the whole of the duties of states are PART II
subordinated to the right of self-preservation. Where law affords sº y
inadequate protection to the individual he must be permitted, if self-pre-
his existence is in question, to protect himself by whatever means i.
may be necessary; and it would be difficult to say that any act
not inconsistent with the nature of a moral being is forbidden, so
soon as it can be proved that by it, and it only, self-preservation
can be secured. But the right in this form is rather a governing
condition, subject to which all rights and duties exist, than a
source of specific rules, and properly perhaps it cannot operate in
the latter capacity at all. It works by suspending the obligation
to act in obedience to other principles. If such suspension is
necessary for existence, the general right is enough ; if it is not
strictly necessary, the occasion is hardly one of self-preservation.
There are however circumstances falling short of occasions upon
which existence is immediately in question, in which, through
a sort of extension of the idea of self-preservation to include
Self-protection against serious hurt, states are allowed to disregard
certain of the ordinary rules of law in the same manner as if
their existence were involved. This class of cases is not only
susceptible of being brought under distinct rules, but evidently
requires to be carefully defined, lest an undue range should be
given to it. -
The simplest form of the occasions on which the right of self- Permis-
te tº ſº s & e & sible
preservation, in its more limited sense, arises is offered when, on action
tº - e & within
an overt attack being made upon a state by persons enjoying the . eign
protection afforded by the territory of another state, it is useless .#
© 3,981 Il St, l Il-
either from the suddenness of the attack or from other causes to j
270 SELF-PRESERVATION
PART II
CHAP. VII
making it
a starting-
point for
attack.
call upon the state which serves as a cover for the act to preserve
its neighbour from injury. The attacked state takes upon itself
to exercise authority or violence within the territory of the other
state, and thereby violates the sovereignty of the latter ; it
consequently does an act which is primá facie hostile, and which
can only be divested of the character of hostility by the urgency
of the reason for it, and by an evident absence of hostile intention.
The conditions of permissible action are therefore, first, that the
danger shall be so great and immediate, or so entirely beyond
the control of the government of the country which is used by
the invaders, that a friendly state may reasonably, be expected
to consider it more important that the attacked state shall be
protected than that its own rights of sovereignty shall be
maintained untouched, and secondly, that the acts done by way
of self-protection shall be limited to those which are barely
necessary for the purpose ". - *
An instance in which the right of self-preservation was
exercised in this manner happened during the Canadian rebellion
of 1838%. A body of insurgents collected to the number of
several hundreds in American territory, and after obtaining small
arms and twelve guns by force from American arsenals, seized an
island at Niagara within the American frontier, from which shots
Case of the
Caroline.
* Phillimore, i. §§ ccxiii-v; Wattel, liv. iii. ch. vii. § 133; Klüber, $ 44;
Twiss, i. § Io2.
Some writers, while admitting the right of self-protection by means of
acts violating the sovereignty of another state, deny that it is a pacific
right, and class acts done in pursuance of it with operations of “imperfect
war,’ ‘any invasion of state territory being ' necessarily ‘an act of hostility,
which may be repelled by force.” (Halleck, i. 95 ; Calvo, §§ 203-4.) It is no
doubt open to a state to treat any violation of its territory as an act of war;
but a violation of the nature described is not hostile in intention, it may
indeed be committed with the express object of preventing occurrences
which would lead to war, and it is not directed against the state, or against
persons or property belonging to it because they belong to it, but against
specific ill-doers because of their personal acts; it therefore differs in very
important respects from ordinary acts of war, and it is wholly unnecessary
to consider it to be such until the state, of which the territory is violated,
elects to regard the acts done in a hostile light.
* Cf. antea, p. 218 m.
SELF-PRESERVATION 271
were fired into Canada, and where preparations were made to
cross into British territory by means of a steamer called the
Caroline. To prevent the crossing from being effected, the
Caroline was boarded by an English force while at her moorings
within American waters, and was sent adrift down the falls of
Niagara. The cabinet of Washington complained of the violation
of territory, and called upon the British government ‘to show a
necessity of self-defence, instant, overwhelming, leaving no choice
of means, and no moment for deliberation. It will be for it to
show also that the local authorities of Canada, even supposing
the necessity of the moment authorised them to enter the
territories of the United States at all, did nothing unreasonable
or excessive, since the act, justified by the necessity of self-defence,
must be limited by that necessity and kept clearly within it.”
There was no difficulty in satisfying the requirements of the
United States, which though perhaps expressed in somewhat too
emphatic language, were perfectly proper in essence. There was
no choice of means, because there was no time for application to
the American government; it had already shown itself to be
powerless; and a regiment of militia was actually looking on at
the moment without attempting to check the measures of the
insurgents. Invasion was imminent ; there was therefore no
time for deliberation. Finally, the action which was taken was
confined to the minimum of violence necessary to deprive the
invaders of their means of access to British territory. After an
exchange of notes the matter was dropped by the government of
the United States, which must have felt that it would have been
placed in a position of extreme gravity if the English authorities
had allowed things to take their course, and had then held it
responsible for consequences, to the production of which long-
continued negligence on its part would have been largely con-
tributory ". . -
As the measures taken when a state protects itself by violating
* Mr. Webster to Mr. Fox, April 24, 1841; and Lord Ashburton to Mr. Webster,
July 28, 1842. Parl. Papers, 1843, lxi. 46–51.
PART II
CHAP. VII
272 SELF-PRESERVATION
PART II
CHAP. VII
Limita-
tions upon
the right
of action.
Permis-
sible
action
against
states
which are
not free
agents.
the sovereignty of another are confessedly exceptional acts, beyond
the limits of ordinary law, and permitted only for the supreme
motive of self-preservation, they must evidently be confined
within the narrowest limits consistent with obtaining the re-
quired end. It is therefore more than questionable whether a
state can use advantages gained by such measures to do anything,
beyond that which is necessary for immediate self-protection,
which it would not otherwise be in a position to do. If, for
example, subjects starting from foreign territory to invade the
state are captured in the foreign territory in question, in the
course of preventive operations, there can be no doubt on the one
hand that they can be kept prisoners until the immediate danger
is over, but it is evident on the other that they cannot be put
upon their trial, or punished for treason, however complete the
crime may be, in the same manner as if they had been captured
within the state itself.
The right of self-preservation in some cases justifies the
commission of acts of violence against a friendly or neutral state,
when from its position and resources it is capable of being made
use of to dangerous effect by an enemy, when there is a known
intention on his part so to make use of it, and when, if he is not
forestalled, it is almost certain that he will succeed, either through
the helplessness of the country or by means of intrigues with a
party within it. The case, though closely analogous to that
already mentioned, so far differs from it that action, instead of
being directed against persons whose behaviour it may be presumed
is not sanctioned by the state, is necessarily directed against the
state itself. The state must be rendered harmless by its territory
being militarily occupied, or by the surrender of its armaments
being extorted. Although therefore the measures employed may
be consistent with amity of feeling, it is impossible to expect, as
in the former case, that a country shall consider it more important
that the threatened state shall be protected than that its own
rights of sovereignty shall be maintained intact, and while the
one state may do what is necessary for its own preservation, the
SELF-PRESERVATION 273
other may resent its action, and may treat it as an enemy. So PART II
long however as this does not occur, and war in consequence does CHAP. VII
not break out, the former professes that its operations are of a
friendly nature; it is therefore strictly limited to such action as
is barely necessary for its object, and it is evidently bound to make
compensation for any injury done by it".
The most remarkable instance of action of the kind in question English
is that which is presented by the English operations with respect *
to Denmark in 1807. At that time the Danes were in possession *
of a considerable fleet, and of vast quantities of material of naval
construction and equipment; they had no army capable of sus-
taining an attack from the French forces then massed in the
north of Germany; it was provided by secret articles in the
Treaty of Tilsit, of which the British government was cognizant,
that France should be at liberty to take possession of the Danish
fleet and to use it against England; if possession had been taken,
France ‘would have been placed in a commanding position for
the attack of the vulnerable parts of Ireland, and for a descent
upon the coasts of England and Scotland; ” in opposition, no
competent defensive force could have been assigned without
weakening the Mediterranean, Atlantic, and Indian stations to
a degree dangerous to the national possessions in those regions;
the French forces were within easy striking distance, and the
English government had every reason to expect that the secret
articles of the Treaty of Tilsit would be acted upon. Orders
were in fact issued for the entry of the corps of Bernadotte and
Davoust into Denmark before Napoleon became aware of the
* Grotius (De Jure Belli et Pacis, lib. ii. c.ii. § Io) gives the occupation of
neutral territory, under such circumstances as those stated, as an illustration
of the acts permissible under his law of necessity.; and the doctrine of Wolff
(Jus Gentium, § 339), Lampredi (Jur. Pub. Univ. Theorem, pt. iii. cap. vii.
§ 4), Klüber (§ 44), Twiss (i. § Io2), &c., covers the view expressed in the
text ; its best justification however is that the violation of the rights of
sovereignty contemplated by it is not more serious, and is caused by far
graver reasons, than can be alleged in support of many grounds of defensive
intervention, which have been acted upon, and have been commonly accepted
by writers. For defensive intervention, see postea, pp. 285–6.
HALL - T
274. SELF-PRESERVATION
PART II
CHAP. VII
Permis-
sible
action in
non-terri-
torial
Waters.
despatch, or even of the intended despatch, of an English ex-
pedition. In these circumstances the British government made
a demand, the presentatién of which was supported by a con-
siderable naval and military force, that the Danish fleet should
be delivered into the custody of England; but the means of
defence against French invasion and a guarantee of the whole
Danish possessions were at the same time offered, and it was
explained that “we ask deposit—we have not looked for capture;
So far from it, the most solemn pledge has been offered to your
government, and it is hereby renewed, that, if our demand be
acceded to, every ship of the navy of Denmark shall, at the
conclusion of a general peace, be restored to her in the same
condition and state of equipment as when received under the
protection of the British flag.” The emergency was one which
gave good reason for the general line of conduct of the English
government. The specific demands of the latter were also kept
within due limits. Unfortunately Denmark, in the exercise of
an indubitable right, chose to look upon its action as hostile,
and war ensued, the occurrence of which is a proper subject for
extreme regret, but offers no justification for the harsh judgments
which have been frequently passed upon the measures which led
to it, 1.
If acts of the foregoing kind are allowed, a fortiori acts are
also permitted which constitute less direct infringements of the
sovereignty and independence of foreign states. A country the
peace of which is threatened by persons on board vessels sailing
under the flag of another state may in an emergency search and
capture such vessels and arrest the persons on board, not-
withstanding that as a general rule there is no right of visiting
* Alison, Hist. of Europe, vi. 474–5; De Garden, Hist. des Traités de Paix,
x. 238–43 and 325–31. Writers who still amuse themselves by repeating
the” attacks upon the conduct of England, which were formerly common,
might read with profit the account of the transaction given by the best
French historian who has dealt with the Napoleonic period (Lanfrey, Hist.
de Napoléon I*, iv. 146–9) [and the comments on the English policy by
Captain Mahan of the U. S. Navy, ‘Influence of Sea Power upon the French
Revolution and Empire," ii. 277].
SELF-PRESERVATION 275
and seizing vessels of a friendly power in time of peace upon the
seas. That the act is somewhat less violent a breach of ordinary
rule than the acts hitherto mentioned does not however render
laxity of conduct permissible, or exonerate a state if the grounds
of its conduct are insufficient. As in other cases the danger
must be serious and imminent, and prevention through the
agency of the state whose rights are disregarded must be
impossible.
PART II
CHAP. VII
A case of which some account has already been given with Case of
the Vir-
reference to another point illustrates the different views which ...
may be held as to the circumstances under which protective
action of the kind under consideration is legitimate; and it also
opens a question whether a state may not have a power of
dealing more freely with subjects captured at sea than with such
as may be taken prisoners on the soil of a foreign state. It will
be remembered that in 1873 the Virginius, a vessel registered as
the property of an American citizen, but in fact belonging to
certain Cuban insurgent leaders, attempted to land upon the
island some men, among whom were persons of importance.
The vessel was captured when making for Cuba, but while still a
considerable distance outside territorial waters; and the Spaniards,
besides doing illegal acts which are not to the present point,
executed the insurgents on board. Whether the danger was
sufficient to justify the seizure of the vessel at the moment when
it was effected may, to say the least, be doubtful; but assuming
urgent danger to have existed, was its capture in other respects
permissible, and had the Spanish authorities a right to punish
insurgent subjects taken on board? The United States maintained
that the fact that the Virginius was primá facie an American
vessel was enough to protect her from interference of any kind
outside territorial waters. ‘Spain,’ argued the Attorney-General
in his opinion, “no doubt has a right to capture a vessel with an
American register and carrying the American flag, found on her
own waters, assisting or endeavouring to assist the insurrection
in Cuba, but she has no right to capture such a vessel on the
T 2.
276 SELF-PRESERVATION
PART II
CIH.A.P. VII
high seas on an apprehension that in violation of the neutrality
or navigation laws of the United States, she was on the way to
assist such rebellion. Spain may defend her territory and people
from the hostile attack of what is or appears to be an American
vessel; but she has no jurisdiction whatever on the question as
to whether or not such vessel is on the high seas in violation of
any law of the United States".” In taking up this position the
United States in effect denied the right of doing any acts of
self-protection upon the high seas in time of peace in excess
of ordinary peace rights. In the end, however, the question
between it and the Spanish government was settled on the
ground that the ship was not duly invested with an American
national character, according to the requirements of the municipal
law of the United States, so that much of what the latter
country had contended for was surrendered. If a vessel
fraudulently carrying a national flag may be seized, the right of
visit and search to establish the identity of the ship and to
substantiate the suspicion of fraud must be conceded; the broad
ground that the primd facie character of the ship covers it with
an absolute protection has been abandoned. And when once it
is granted that the means necessary to bring fraud to light may
be taken, and that a ship fraudulently carrying a national flag
may be seized, it would seem somewhat pedantic to say that
where clear evidenee of hostile intention is found on board a
vessel it is to be released, however imminent the danger, if it is
discovered that the suspicion of fraud is not justified, and that
the ship is really a vessel of its professed country, but engaged
in an unlawful act which its own government would be bound to
prevent if possible. Unless the principle upon which the whole
of the present chapter is founded is incorrect it must be
unnecessary for a threatened state, if imminently and seriously
threatened, to trouble itself with such refinements. Apparently
this was the view taken by the English government, which
* Parl. Papers, lxxvi. 1874, 65; and see President's Message of January 6,
I874, ib. 72.
SELF-PRESERVATION 277
became mixed up in the affair through the presence of Englishmen PART II
on board the Virginius as part of the crew. In demanding “ ”
reparation for the death of some of them who were executed it
does not take the ground of complaining of the seizure of the
Wirginius, nor of the detention of the passengers and crew . . .
Much may be excused,’ it was added with reference to their
deaths, ‘in acts done under the expectation of instant damage in
self-defence by a nation as well as by an individual. But after
the capture of the Virginius and the detention of the crew was
effected, no pretence of imminent necessity of self-defence could
be alleged".’ It is clear from this language that the mere
capture of the vessel was an act which the British government
did not look upon as being improper, supposing an imminent
necessity of self-defence to exist.
The fate of the insurgents who were captured and executed Due treat-
was not made a question between the English and American *:::::::
governments on the one hand and that of Spain on the other, *...,
and no international discussion appears to have taken place with vessels in
regard to other cases—if other cases have occurred—of subjects ºrri-
captured under like circumstances. General principles of law “”
therefore are the only guide by the help of which the rights of
a state over such persons can be arrived at. Looked at by their
light the matter would seem to stand thus. Although a
merchant ship is not part of the territory of the state to which
she belongs, under ordinary circumstances she remains while
upon non-territorial waters under the jurisdiction of her own
state exclusively; permission to another state to do such acts as
may be necessary for self-preservation cannot be supposed in any
case to imply a cession of more jurisdiction than is barely
necessary for the purpose, and when, as in the present case, no
cession of criminal jurisdiction is required, none can be presumed
to be made; whether therefore the conduct of persons on board
is criminal, and in what sense or to what degree, must be tested
by reference to the laws of the state to which the vessel belongs,
* Parl. Papers, lxxvi. 1874, 85.
278 SELF-PRESERVATION
PART II and they ought to be judged by its tribunals. The powers of
“” their own state would seem therefore to be limited to keeping
them in custody so long as may be necessary for its safety, and
to handing them over afterwards to the state owning the vessel
for trial and punishment under any municipal laws which they
may have broken by making attacks upon a friendly country.
On primeiple the powers of the capturing state would seem to be
no greater over persons captured on non-territorial seas than over
persons seized in foreign territory; and the conduct of the
Spanish authorities, in shooting the insurgents taken on board
the Virginius, might have been seriously arraigned by the
United States, had the latter country chosen to do so".
~ Protection States possess a right of protecting their subjects abroad which
S * is correlative to their responsibility in respect of injuries inflicted
upon foreigners within their dominions; they have the right,
/ that is to say, to exact reparation for maltreatment of their
subjects by the administrative agents of a foreign government
if no means of obtaining legal redress through the tribunals of
the country exist, or if such means as exist have been exhausted
in vain; and they have the right to require that, as between
their subjects and other private individuals, the protection of the
state and the justice of the courts shall be afforded equally, and
* The British government, in complaining of the execution of British
members of the crew after sentence by court martial, said that ‘it was the
duty of the Spanish authorities to prosecute the offenders in proper form
of law, and to have instituted regular proceedings on a definite charge
before the execution of the prisoners.’ On any principle too much seems
to have been conceded in saying this. Whether or not there can be any
doubt as to whether a subject of the state, unquestionably guilty of a crime
against it, can be punished when he has been seized within foreign jurisdic-
tion, it is impossible to admit that foreigners seized under like circumstances
may be put upon their trial ; properly until they enter a state they can
commit no crime cognizable by it (comp. antea, p. 210). As the Virginius was
an unarmed ship, and no resistance could consequently be made, it is difficult
to see that the Spanish authorities would have had a right to do more than
try the foreign crew ‘in proper form of law,' if she had been captured within
territorial waters, and in the act of landing her passengers;–a presumption,
where a vessel is unarmed, must always exist in favour of the innocence
or ignorance of the crew, which can only be destroyed by evidence more
carefully sifted than it is likely to be before a court martial.
SELF-PRESERVATION 279
that compensation shall be made if the courts from corruption PART II
or prejudice or other like causes are guilty of serious acts of
injustice. Broadly, all persons entering a foreign country must
submit to the laws of that country; provided that the laws are
fairly administered they cannot as a rule complain of the effects
upon themselves, however great may be the practical injustice
which may result to them ; it is only when those laws are not
fairly administered, or when they provide no remedy for wrongs,
or when they are such, as might happen in very exceptional
cases, as to constitute grievous oppression in themselves, that the
state to which the individual belongs has the right to interfere
in his behalf". When an injury or injustice is committed by the
government itself, it is often idle to appeal to the courts; in such
cases, and in others in which the act of the government has been
of a flagrant character, the right naturally arises of immediately
exacting reparation by such means as may be appropriate. _2^
It is evident that the legitimacy of action in any given case
and the limits of right action if redress be denied, are so essen-
tially dependent on the particular facts of the case that it is useless,
taking the question as a whole, to go beyond the very general
statement of principle which has been just made. A single case-
may however be mentioned, to illustrate the delicacy of the
questions to which the position of subjects in foreign countries
may give rise. A Mr. Rahming, a British subject and com-
mission agent in New York, was arrested during the American
civil war, and consigned to military custody, on a charge of
writer (§ 362) narrates a dispute which took place between England and
Prussia as an illustrative case. The question at issue was the conduct of
a certain criminal court in the latter country, before which an English
subject was brought. As M. Calvo has given the name of the accused
person, as from the date of the occurrence the latter is very likely to be still
alive, and as the affair would have been highly discreditable to him if
M. Calvo's account bore any resemblance to the facts, it is to be regretted
that M. Calvo did not take the precaution of looking into the English Blue
Book (Parl. Papers, 1861, lxv), where the most complete materials for form-
ing an accurate judgment are provided. Had he done so, the story would
have assumed a very different aspect in his pages.
CHAP. VII
280 SELF-PRESERVATION
IPART II
CHAP. VII
}
*
º:
A
**
Protec-
tion with
respect to
debts due
having endeavoured to persuade the owners of a vessel wrecked
six months before, to import cannon into Wilmington at some
time or other before the wreck took place. A writ of habeas
corpus was applied for and granted; but obedience to it was
refused by the commandant of Fort M*Henry under orders from
the executive government, and in answer to a complaint on the
part of Lord Russell, that ‘ the military authorities refuse to
pay obedience to, or indeed to notice, a writ of habeas corpus,’
Mr. Seward alleged that the President had the right of
suspending the writ whenever in his opinion the public safety
demanded that measure. The Supreme Court so little shared
this view that it issued an attachment against the commandant.
Lord Russell nevertheless forebore to press his remonstrances".
As Mr. Rahming was ultimately liberated on executing a bond,
with condition that he should do no act hostile to the United
States, the conduct of Lord Russell was no doubt judicious.
Had he however been kept in custody, the question would have
arisen whether a state is bound to abstain from interference on
behalf of a subject, so soon as constitutional authority is claimed
for an act, whether there be reason to believe that the claim is
well or ill founded. Certainly, as a general rule, a foreign
government must take its information as to the functions of the
different organs of a state from that one which is duly charged
with the conduct of foreign relations. To make this rule abso-
lute however would place foreign subjects at the mercy of a
ruler able and willing to violate the law; and a sovereign, if
bound to abandon his subjects to any moderately reasonable law,
however hardly it may press on them, is not bound to allow them to
be treated in defiance of law, even though they may be so treated
in common with all the other inhabitants of the territory in which
they are. In the particular case the authority of the Supreme
Court was undoubtedly superior to that of the Executive.
There is one general point upon which a few words may
be added. It has become a common habit of governments,
* Parl. Papers, North America, i. 1862.
SELF-PRESERVATION 281
especially in England, to make a distinction between complaints PART II
of persons who have lost money through default of a foreign CIHAP. VII
state in paying the interest or capital of loans made to it and foreign
the complaints of persons who have suffered in other ways. In States.
the latter case, if the complaint is thought to be well founded, it
is regarded as a pure question of expediency on the facts of the
particular case or of the importance of the occurrence whether
the state shall interfere, and if it does interfere, whether it shall
confine itself to diplomatic representations, or whether, upon
refusal or neglect to give redress, it shall adopt measures of
constraint falling short of war, or even resort to war itself. In
the former case, on the other hand, governments are in the habit
of refusing to take any steps in favour of the sufferers, partly
because of the onerousness of the responsibility which a state
would assume if it engaged as a general rule to recover money
so lost, partly because loans to states are frequently, if not
generally, made with very sufficient knowledge of the risks
attendant on them, and partly because of the difficulty which
a state may really havé, whether from its own misconduct or
otherwise, in meeting its obligations at the time when it makes
default. Fundamentally however there is no difference in Y. S.
principle between wrongs inflicted by breach of a monetary
agreement and other wrongs for which the state, as itself the
wrong-doer, is immediately responsible. The difference which is
made in practice is in no sense obligatory; and it is open to
governments to consider each case by itself and to act as seems ).
well to them on its merits". -
* The policy which has been pursued by England was laid down in 1848
by Lord Palmerston in the following terms, in a circular addressed to the
British representatives in foreign states:–
“Her Majesty's government have frequently had occasion to instruct her
Majesty's representatives in various foreign states to make earnest and
friendly, but not authoritative representations, in support of the unsatisfied
claims of British subjects who are holders of public bonds and money securi-
ties of those states.
“As some misconception appears to exist in some of those states with
regard to the just right of her Majesty's government to interfere authori-
tatively, if it should think fit to do so, in support of those claims, I have to
282 SELF-PRESERVATION
PART II
CHAP. VII
When the subject of a state is not merely passing through,
or temporarily resident in, a foreign country, but has become
domiciled there, the right of his state to protect him is somewhat
affected. He has deliberately made the foreign country the
chief seat of his residence; for many purposes, as will be seen
inform you, as the representative of her Majesty in one of the states against
which British subjects have such claims, that it is for the British govern-
ment entirely a question of discretion, and by no means a question of inter-
national right, whether they should or should not make this matter the
subject of diplomatic negotiation. If the question is to be considered simply
in its bearing on international right, there can be no doubt whatever of the
perfect right which the government of every country possesses to take up,
as a matter of diplomatic negotiation, any well-founded complaint which
any of its subjects may prefer against the government of another country,
or any wrong which from such foreign government those subjects may have
sustained ; and if the government of one country is entitled to demand
redress for any one individual among its subjects who may have a just but
unsatisfied pecuniary claim upon the government of another country, the
right so to require redress cannot be diminished merely because the extent
of the wrong is increased, and because instead of there being one individual
claiming a comparatively small sum, there are a great number of individuals
to whom a very large amount is due.
“It is therefore simply a question of discretion with the British govern-
ment whether this matter should or should not be taken up by diplomatic
negotiation, and the decision of that question of discretion turns entirely
upon British and domestic considerations.
‘It has hitherto been thought by the successive governments of Great
Britain undesirable that British subjects should invest their capital in loans
to foreign governments instead of employing it in profitable undertakings at
home ; and with a view to discourage hazardous loans to foreign govern-
ments, who may be either unable or unwilling to pay the stipulated interest
thereupon, the British government has hitherto thought it the best policy to
abstain from taking up as international questions the complaints made by
British subjects against foreign governments which have failed to make good
their engagements in regard to such pecuniary transactions.
“For the British government has considered that the losses of imprudent
men, who have placed mistaken confidence in the good faith of foreign govern-
ments, would prove a salutary warning to others, and would prevent any
other foreign loans from being raised in Great Britain, except by govern-
ments of known good faith and ascertained solvency. But nevertheless it
might happen that the loss occasioned to British subjects by the non-payment
of interest upon loans made by them to foreign governments might become
so great that it would be too high a price for the nation to pay for such
a warning as to the future, and in such a state of things it might become
the duty of the British government to make these matters the subject of
diplomatic negotiation.” (Quoted by Phillimore, ii. § v.) A short time
previously Lord Palmerston, in answer to a question in the House of Com-
SELF-FRESERVATION .283
later 1, he has become identified with it; he must be supposed to PART II
* tº º tº * * * * CHAP. VII
obtain some advantages from this intimacy of association, since
its existence is dependent on his own act; it would be un-
reasonable that he should be allowed to reap these advantages
on the one hand, and that on the other he should retain the
special advantages of a completely foreign character. To what
degree the right of a government to protect a subject is thus
modified it is at present impossible to say with any precision
in the abstract; but the rule is one which can in general be
probably applied without much difficulty to individual cases.
mons, indicated that under certain circumstances he might be prepared to
go to the length of using force. The doctrine and the principles of policy
laid down in Lord Palmerston’s circular were more lately reaffirmed by
Lord Salisbury. See the Times of January 7, 188o.
* Pt. iii. chap. vi.
PART II
CHAP. VIII
The equi-
vocal cha-
racter of
interven-
tion.
CHAPTER VIII
INTERVENTION
INTERVENTION takes place when a state interferes in the
relations of two other states without the consent of both or
either of them, or when it interferes in the domestic affairs of
another state irrespectively of the will of the latter for the
purpose of either maintaining or altering the actual condition
of things within it. Primă facie intervention is a hostile act,
because it constitutes an attack upon the independence of the
state subjected to it. Nevertheless its position in law is
somewhat equivocal. Regarded from the point of view of the
state intruded upon it must always remain an act which, if not
consented to, is an act of war. But from the point of view
of the intervening power it is not a means of obtaining redress
for a wrong done, but a measure of prevention or of police,
undertaken sometimes for the express purpose of avoiding war.
In the case moreover of intervention in the internal affairs of
a state, it is generally directed only against a party within the
state, or against a particular form of state life, and it is
frequently carried out in the interest of the government or of
persons belonging to the invaded state. It is therefore com-
patible with friendship towards the state as such, and it may
be a pacific measure, which becomes war in the intention of
its authors only when resistance is offered, not merely by persons
within the state and professing to represent it, but by the state
through the persons whom the invading power chooses to look
upon as its authorised agents. Hence although intervention
often ends in war, and is sometimes really war from the
commencement, it may be conveniently considered abstractedly
from the pacific or belligerent character which it assumes in
different cases.
INTERVENTION 285
It may also be worth while to simplify the discussion of the PART II
subject by avoiding express reference to intervention as between CHAP. VIII
different states, all questions relating to the conditions under
which such intervention may take place being covered by the
principles applicable in the more complex case of intervention
in the internal affairs of a single state.
It has been seen that though as a general rule a state lies under General
an obligation to respect the independence of others, there are ºions
rights which may in certain cases take precedence of the right º
of independence, and that in such cases it may be disregarded if vention.
respect for it is inconsistent with a due satisfaction of the superior
right". The permissibility of an infringement of the right of
independence being thus dependent upon an incompatibility of
respect for it with a right which may claim priority over it, the
legality of an intervention must depend on the power of the
intervening state to show that its action is sanctioned by some
principle which can, and in the particular case does, take pre-
cedence of it. That this may sometimes be done is undisputed;
but the right of independence is so fundamental a part of
international law, and respect for it is so essential to the existence
of legal restraint, that any action tending to place it in a sub-
ordinate position must be looked upon with disfavour, and any
general grounds of intervention pretending to be sufficient, no
less than their application in particular cases, may properly be
judged with an adverse bias.
Classifica-
The grounds upon which intervention has taken place, or upon tion *
tº © s > & {} {º © tº * grounds
which it is said with more or less of authority that it is permitted, upon
may be referred to the right of self-preservation, to a right of *...
opposing wrong-doing, to the duty of fulfilling engagements, and i.has
to friendship for one of two parties in a state. place, or
Interventions for the purpose of self-preservation naturally ..".
include all those which are grounded upon danger to the in- º
stitutions, to the good order, or to the external safety of the Self-pre-
e {e vation.
intervening state. servation
* See antea, pp. 53 et seq.
286 INTERVENTION
To some of these no objection can be offered. If a government
is too weak to prevent actual attacks upon a neighbour by its
subjects, if it foments revolution abroad, or if it threatens
hostilities which may be averted by its overthrow, a menaced
state may adopt such measures as are necessary to obtain
substantial guarantees for its own security. The state which is
subjected to intervention has either failed to satisfy its inter-
national duties or has intentionally violated them. It has done
or permitted a wrong, to obtain redress for which the intervening
state may make war if it chooses. If war occurs the latter may
exact as one of the conditions of peace at the end that a govern-
ment shall be installed which is able and willing to observe
its international obligations. And if the intervening state may
make war, a fortior; it may gain the same result in a milder way.
When however the danger against which intervention is levelled
does not arise from the acts or omissions of the state, but is
merely the indirect consequence of the existence of a form of
government, or of the prevalence of ideas which are opposed to
the views held by the intervening state or its rulers, intervention
ceases to be legitimate. To say that a state has a right to ask a
neighbour to modify its mode of life, apart from any attempt
made by it to propagate the ideas which it represents, is to say
that one form of state life has a right to be protected at the cost
of the existence of another; in other words, it is to ignore the
fundamental principle that the right of every state to live its life
in a given way is precisely equal to that of another state to live
its life in another way. The claim besides is essentially inequitable
in other respects. Morally a state cannot be responsible for the
effect of example upon the minds of persons who are not under
its control, and whom it does not voluntarily influence. If the
intervening state is imperilled, its danger comes from the spon-
taneous acts of its own subjects or of third parties, and it is against
them that it must direct its precautions".
PART II
CHAP. VIII
* De Martens, Précis, $ 74; Wheaton, Elem. pt. ii. ch. i. § 3 ; Phillimore,
i. §§ ccclxxxvii-viii and ceczcii; Halleck, i. 83, quoting a speech of Chateau-
INTERVENTION 287
Intervention to hinder internal changes in a state from PART II
prejudicing rights of succession or of feudal superiority possessed nº
by the intervening state is recognised as legitimate by some tion to
writers. Unquestionably, in the abstract, if provision is made #.
by treaty for the union of one state with another upon the ...”
occurrence of certain contingencies, the state to which the right
of succession belongs is justified in taking whatever measures
may be necessary to protect its reversionary interests. A state
may of course contract itself out of its common law rights. In
agreeing to invest another state with rights over itself, whether
contingent on the extinction of its ruling family or on anything
else, it must be held to have surrendered its right of dealing
with itself in matters affecting the reversion which it has granted;
and though the engagements into which it has entered may in
time become extremely onerous, and it may be morally justified
in endeavouring to escape from them, it has obviously no reason
to expect the state with which it has contracted to consent upon
such grounds to a rescission of the agreement. But it must be
remembered that the arrangements of this nature which have
been usually made have either been family compacts between
proprietary sovereigns, or have been designed to provide rather
for the succession of a family than of a state. In such cases the
permissibility of intervention can hardly be conceded. Inter-
national law no longer recognises a patrimonial state. A country
is not identified with its sovereign. He is merely its organ for
certain purposes, and it has no right to interfere for an object
which is personal to him. The question of the permissibility of
briand upon the French intervention in Spain in 1823, as stating the rule
clearly, and i. 465; Bluntschli, § 474 note, and § 478 ; Mamiani, Ioo—I ;
Fiore, i. 421–55. Calvo (§§ I41–2) adheres to the principles stated by Lord
Castlereagh in his circular of the 19th January, 1821. British and Foreign
State Papers, 1820–1, p. II60. Wattel, liv. ii. ch. iv. §§ 54 and 57, ignores
self-preservation as a ground of intervention, but admits the adequacy of the
weaker reason of oppression by a tyrannical sovereign, $ 56. Heffter, $$ 30–I
and 44–5, while also sanctioning intervention on more doubtful grounds,
limits what may be done under that of self-preservation to negotiation or to
the establishment at most of a military cordon.
288 INTERVENTION
intervention must in fact depend upon whether, at the time of
the arrangement being made upon which intervention is based,
it was intended by both states that in the contingency con-
templated a union should be effected irrespectively of the form
of government or of the persons composing the government of
the state owning the succession. If this was not intended, the
engagement, whether implied or expressed, is not one entered
into by the states but by individuals, who from their position
have the opportunity of giving to their personal agreements the
form of a state act; and it then only becomes possible to answer
in one way the question put by Sir R. Phillimore, who asks
whether it can be denied that when ‘ a state, having occupied
for a long period the position of a free and independent nation
in the society of other states, thinks fit to secure its constitution,
and to pass a fundamental law, similar to that by which Great
|Britain excluded James II and his descendants from her throne,
that no Prince of a certain race shall be henceforth their ruler,
the exercise of such a power is inherent in the nature of an
independent state".”
Interventions which have for their object to check illegal
intervention by another state are based upon the principle that
a state is at liberty to oppose the commission of any act, which
in the eye of the law is a wrong; and the frequent interventions
which have taken place upon the real or pretended grounds of
humanity and religion must be defended, in so far as they can
be defended at all, upon the same principle, coupled with the
assumption that international law forbids the conduct of rulers
to their subjects, and of parties in a state towards each other,
which such interventions are intended to repress.
PART II
CHAP. VIII
Interven-
tions in
restraint
of wrong-
doing :
* Phillimore, i. § ccce; De Martens, Précis, $ 75; Heffter, § 45; Bluntschli,
§ 479. The latest occasions on which any question of intervention on the
above ground seems to have arisen were in 1849, when, according to Phil-
limore, Austria meditated, but did not carry out, an intervention in Tuscany;
and in 1860, when Spain appears to have intervened diplomatically on
behalf of the Duchess of Parma, on the occasion of the annexation of Parma
to the kingdom of Italy by a popular vote,
INTERWENTION 289.
It has already been seen that the existence of a right to oppose
acts contrary to law, and to use force for the purpose when
infractions are sufficiently serious, is a necessary condition of the
existence of an efficient international law. It is incontestable
that a grave infraction is committed when the independence of
a state is improperly interfered with ; and it is consequently
evident that another state is at liberty to intervene in order to
undo the effects of illegal intervention, and to restore the state
subjected to it to freedom of action *.
Interventions of the second kind stand in a very different
position. International law professes to be concerned only with
the relations of states to each other. Tyrannical conduct of a
government towards its subjects, massacres and brutality in
a civil war, or religious persecution, are acts which have nothing
to do directly or indirectly with such relations. On what ground
then can international law take cognizance of them 2 Apparently
on one only, if indeed it be competent to take cognizance of
them at all. It may be supposed to declare that acts of the kind
mentioned are so inconsistent with the character of a moral being
as to constitute a public scandal, which the body of states, or
one or more states as representative of it, are competent to
suppress. The supposition strains the fiction that states which
are under international law form a kind of society to an extreme
point, and some of the special grounds, upon which intervention
effected under its sanction is based, are not easily distinguishable
in principle from others which modern opinion has branded as
unwarrantable. To some minds the excesses of a revolution
would seem more scandalous than the tyranny of a sovereign,
In strictness they ought, degree for degree, to be precisely
equivalent in the eye of the law. While however it is settled
* Heffter, $ 96; Mamiani, to 4; Bluritschli, § 479. Fiore (i. 445) considers
international law to be “sotto la protezione di tutti gli stati associati. Il
dovere della tutela giuridica importa da parte dei medesimi l’obbligo d'inter-
venire per ripristinare l'autorità del diritto se fosse lesa per parte di uno o di
più stati.”
HALL U
PART II
CHAP. VIII
I. against
illegal
acts ;
2. against
immoral
actS.
290 INTERVENTION
PART II
CHAP. VIII
that as a general rule a state must be allowed to work out its
internal changes in its own fashion, so long as its struggles do
not actually degenerate into internecine war, and intervention to
put down a popular movement or the uprising of a subject race
is wholly forbidden, intervention for the purpose of checking
gross tyranny or of helping the efforts of a people to free itself
is very commonly regarded without disfavour. Again, religious
oppression, short of a cruelty which would rank as tyranny, has
ceased to be recognised as an independent ground of intervention,
but it is still used as between Europe and the East as an accessory
motive, which seems to be thought by many persons sufficiently
praiseworthy to excuse the commission of acts in other respects
grossly immoral. Not only in fact is the propriety or impropriety
of an intervention directed against an alleged scandal judged
by the popular mind upon considerations of sentiment to the
exclusion of law, but sentiment has been allowed to influence the
more deliberately formed opinions of jurists. That the latter
should have taken place cannot be too much regretted. In
giving their sanction to interventions of the kind in question
jurists have imparted an aspect of legality to a species of
intervention, which makes a deep inroad into one of the cardinal
doctrines of international law; of which the principle is not even
intended to be equally applied to the cases covered by it; and
which by the readiness with which it lends itself to the uses of
selfish ambition becomes as dangerous in practice as it is plausible
in appearance.
It is unfortunate that publicists have not laid down broadly
and unanimously that no intervention is legal, except for the
purpose of self-preservation, unless a breach of the law as
between states has taken place, or unless the whole body of
civilised states have concurred in authorising it. Interventions,
whether armed or diplomatic, undertaken either for the reason
or upon the pretexts of cruelty, or oppression, or the horrors of
a civil war, or whatever the reason put forward, supported in
reality by the justification which such facts offer to the popular
INTERVENTION 291
mind, would have had to justify themselves, when not authorised
by the whole body of civilised states accustomed to act together
PART II
CHAP. VIII
for common purposes, as measures which, being confessedly
illegal in themselves, could only be excused in rare and extreme
cases in consideration of the unquestionably extraordinary
character of the facts causing them, and of the evident purity of
the motives and conduct of the intervening state. The record
of the last hundred years might not have been much cleaner
than it is; but evil-doing would have been at least sometimes
compelled to show itself in its true colours; it would have found
more difficulty in clothing itself in a generous disguise; and
international law would in any case have been saved from
complicity with it 1.
* The opinions of the modern international jurists who touch upon humani-
tarian intervention are very various, and for the most part the treatment
which the subject receives from them is merely fragmentary, notice being
taken of some only of its grounds, which are usually approved or disapproved
of without very clear reference to a general principle. Wattel (liv. i. ch. iv.
§ 56) considers it permissible to succour a people oppressed by its sovereign,
but does not appear to sanction any of the analogous grounds of intervention.
Wheaton (Elem. pt. ii. ch. i. § 9), Bluntschli (§ 478), Mamiani (p. 86), give
the right of aiding an oppressed race. Heffter (§ 46), while denying the
right of intervention to repress tyranny, holds that so soon as civil war has
broken out a foreign state may assist either party engaged in it. Calvo (§ 166)
and Fiore (i. 446) think that states can intervene to put an end to crimes
and slaughter. Mamiani (112), on the other hand, refuses to recognise
intervention on this ground. “Per vero,” he says, “a qual diritto positivo
degli altri popoli è recata ingiuria 2 Udiste mai alcuno che affermi essere
nell’ uomo il diritto di non avere dinanzi agli occhi se non buoni modelli di
virtù, e wivere tra cittadini nelle cui abitazioni non si commettano eccessi
d'aleuna sorta e i quali tutti professino opinioni vere e ammodate 2* The
reason is doubtfully admitted by Phillimore (i. § cccxciv) and Halleck (i. 465)
as accessory to stronger ones, such as self-defence or the duties of a guarantee.
Phillimore (i. §§ ecceii—iv) is the only writer who seems to sanction intervention
on the ground of religion.
A circular issued by the Russian government, when England and France
suspended diplomatic relations with Naples in consequence of the inhumanity
with which the kingdom was ruled, is not without value in itself, and is of
especial interest as issuing from the source from which it came. “We could
understand, it says, “that as a consequence of friendly forethought one
government should give advice to another in a benevolent spirit, that such
advice might even assume the character of exhortation ; but we believe that
to be the furthest limit allowable. Less than ever can it now be allowed in
TJ 2.
292 INTERVENTION
PART II. It may perhaps at one time have been an open question
º: whether a right or a duty of intervention could be set up by
º 3, treaty of guarantee binding a state to maintain ..a particular
guarantee, dynasty or a particular form of government in the state to which
the guarantee applied. But the doctrine that intervention on
this ground is either due or permissible involves the assumption
that independent states have not the right to change their
government at will, and is in reality a relic of the exploded
notion of ownership on the part of the sovereign. According to
the views which are now held as to the relation of monarchical
or other governments to the states which they represent, no case
could arise under which a treaty of the sort could be both needed
and legitimate. As against interference by a foreign power the
general right of checking illegal intervention is enough to
support counter interference; and as against a domestic movement
it is evident that a contract of guarantee is made in favour of
a party within the state and not of the state as a whole, that it
therefore amounts to a promise of illegal interference, and that
being thus illegal itself, it cannot give a stamp of legality to an
act which without it would be unlawful".
Europe to forget that sovereigns are equal among themselves, and that it is
not the extent of territory, but the sacred character of the rights of each
which regulates the relations that exist between them. To endeavour to
obtain from the King of Naples concessions as concerns the internal govern-
ment of his state by threats, or by a menacing demonstration, is a violent
usurpation of his authority, an attempt to govern in his stead ; it is an open
declaration of the right of the strong over the weak.” Martin, Life of the
Prince Consort, iii. 5ro.
* Some treaties, e.g. the Treaties in 1713, by which Holland, France, and
Spain guaranteed the Protestant succession in England (Dumont, viii. i. 322,
339, 393), and the Final Act of the Germanic Confederation, arts. 25 and 26
(De Martens, Nouv. Rec. v. 489), contain guarantees which clearly extend to
cases arising out of purely internal troubles; most treaties of guarantee
however are directed against the possible action of foreign powers. Twiss
(i. § 231) and Halleck (i. 85) deny the right of intervention under a treaty of
guarantee. Taking what Wattel (liv. ii. ch. xii. §§ 196-7) says as a whole he
may probably be understood to express the same doctrine. Phillimore
(ii. § lvi) appears to be somewhat doubtful. De Martens (Précis, $ 78),
Klüber (§ 51), and Heffter (§ 45) allow intervention under a treaty of
guarantee.
INTERVENTION 293
It is generally said, and the statement is of course open to no PART II
question, that intervention may take place at the invitation of i.º:
both parties to a civil war. But it is also sometimes said, even tion by
by modern writers, that interventions carried out at the invitation tºº,
of one only of the two parties are not always illegal. They are º civil
permitted, for example, both by M. Bluntschli and M. Heffter 1.
The former of these writers concedes a right of intervention on
behalf of an established government, for so long as it may be
considered the organ and representative of the state; and the
latter grants it in favour of whichever side appears to be in the
right. It is hard to see by what reasoning these views can be
supported. As interventions, in so far as they purport to be
made in compliance with an invitation, are independent of the
reasons or pretexts which have been already discussed, it must
be assumed that they are based either on simple friendship or
upon a sentiment of justice. If intervention on the ground of
mere friendship were allowed, it would be idle to speak seriously
of the rights of independence. Supposing the intervention to be
directed against the existing government, independence is violated
by an attempt to prevent the regular organ of the state from
managing the state affairs in its own way. Supposing it on the
other hand to be directed against rebels, 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 estab-
lish itself as the legal representative of the state. If, again,
intervention is based upon an opinion as to the merits of the
question at issue, the intervening state takes upon itself to pass
* Bluntschli, §§ 476–7 ; Heffter, § 46. See also Wattel, liv. ii. ch. iv. § 56.
Phillimore (i. § cccxcv) considers that intervention upon the application of
one party to a civil war “can hardly be asserted to be at variance with any
abstract principle of international law, while it must be admitted to have
received continual sanction from the practice of nations.” Halleck (i. 87) on
the other hand holds what might seem the obvious truth that an invitation
‘from only one of the contestants can by itself confer no rights whatever as
against the other party.’ Mamiani (p. 85) places the matter on its right
footing.
294, INTERVENTION
PART II judgment in a matter which, having nothing to do with the
” “relations of states, must be regarded as being for legal purposes
beyond the range of its vision.
Interven- A somewhat wider range of intervention than that which is
*Mºder possessed by individual states may perhaps be conceded to the
thority of
the body gº e e
of states. faith with sufficient warrant. In the general interests of
body of states, or to some of them acting for the whole in good
Europe, for example, an end might be put to a civil war by the
compulsory separation of the parties to it, or a particular family
or a particular form of government might be established and
maintained in a country, if the interests to be guarded were
strictly international, and if the maintenance of the state of
things set up were a reasonable way of attaining the required
object.
If a practice of this kind be permissible, its justification must
rest solely upon the benefits which it secures. The body of
states cannot be held to have a right of control, outside law, in
virtue of the rudimentary social bond which connects them.
More perfectly organised societies are contented with enforcing
the laws that they have made; in doing this they consider
themselves to have exhausted the powers which it is wise to
assume; they do not go on to impose special arrangements or
modes of life upon particular individuals; beyond the limits of
law, direct compulsion does not take place; and evidently the
community of states cannot in this respect have larger rights
than a fully organised political society.
Is then such intervention justified by its probable or actual
results? Certainly there must always be a likelihood that powers
with divergent individual interests, acting in common, will prefer
the general good to the selfish objects of a particular state. It
is not improbable that this good may be better secured by their
action than by free scope being given to natural forces. In one
or two instances, as, for example, in that of the formation of
Belgium, and in the recent one of the arrangements made by
the Congress of Berlin, and of the minor interventions springing
INTERVENTION 295
out of it, settlements have been arrived at, or collisions have
been postponed, when without common action an era of
disturbance might have been indefinitely, prolonged, and its
effects indefinitely extended. There is fair reason consequently
for hoping that intervention by, or under the sanction of, the
body of states on grounds forbidden to single states, may be
useful and even beneficent. Still, from the point of view of law,
it is always to be remembered that states so intervening are
going beyond their legal powers. Their excuse or their justifi-
cation can only be a moral one". [The latest instance of such
an intervention is not calculated to illustrate the disinterestedness
of the intervening powers. The original terms of the Treaty of
Shimonoseki, concluded in April 1895 between China and Japan,
provided for the cession to the latter of the Liao-tong Peninsula
including Port Arthur. Thereupon Russia, Germany and France
interposed with what was euphemistically termed ‘a friendly
representation,” and informed Japan, practically under the
threat of war, that she would not be allowed to retain any
increase of territory on the mainland. Great Britain was
invited to join in the remonstrance, but declined to do so;
Lord Rosebery however advised Japan to yield to the over-
whelming forces arrayed against her, a course which was
reluctantly adopted. The reason assigned for the intervention
was the danger to the independence of Korea and the humiliation
inflicted upon the Court of Pekin if Japan were thus to acquire
* M. Rolin Jaequenyns, in treating of the action of the European powers
with reference to the Greco-Turkish conflict of 1885–6 (Rev. de Droit Int.
xviii. 603), expresses the opinion that the Eastern Question constitutes a case
apart, and that within the area of the Turkish Empire and the small states
adjoining there exists “une autorité collective, historiquement et juridi-
quement établie ; c'est celle des grandes puissances.” I cannot see that the
case differs from any other in which common action is taken or settlements
are effected by the great European powers, except in the circumstance that
danger being great and constantly recurrent, preventive interference may
need also to be recurrent. Such interference must still be justified on each
occasion by the necessities of the moment [and no such ground as that laid
down by M. Jaequenyns was adopted by the Powers on the occasion of their
intervention on behalf of Greece after the war of 1897].
PART II
CHAP. VIII
296 INTERVENTION
PART II a footing upon the Gulf of Pe-chi-li. Into the motives of
*** * France and Germany it is unnecessary to enter; but the facts
that in 1898 Russia obtained from China a “lease” of Port
Arthur under which it has been converted into one of the
strongest naval ports in the world, and that she remains in
virtual occupation of the Liao-tong Peninsula, cast a significant
light upon her action.]
CHAPTER IX
THE AGENTS OF A STATE IN ITS INTERNATIONAL
EELATIONS
THE agents of a state in its international relations are— PART II
i. The person or persons to whom the management of foreign sº .
© & e gents O
affairs is committed. a state.
ii. Agents subordinate to these, who are—
I. Public diplomatic agents,
2. Officers in command of the armed forces of the state,
3. Persons charged with diplomatic functions but without
publicly acknowledged character,
4. Commissioners employed for special objects, such as the
settlement of frontiers, supervision of the execution of
a treaty, &c. -
With international agents of the state properly so called may be
classed consuls, who are only international state agents in a
qualified sense.
The person or persons who constitute the first-mentioned kind Person to
of state agent are determined by the public law of the stat *
the agents of which they are. A state may confide the whole...ºf
* foreign
management of its international affairs to a single person, or to affairs is
' commit-
a group of persons made up in one of many different ways; ied ºy the
but, as was before mentioned, foreign states are indifferent to *
the particular form of the government under which a community the state.
may choose to place itself, and can only require that there shall
be an ascertained agent or organ of some kind. However the ,
organ may be constituted, it is completely representative of the
state; its acts are the acts of the state, and are definitively binding
On the latter so long as the authority delegated by it has not
been recalled. For international purposes the continuance or the
298 THE AGENTS OF A STATE
PART II recall of authority is judged of solely upon the external facts of
“”, the case; so long as a person or body of persons are indisputably
in possession of the required power, foreign states treat with
- them as the organ of the state; so soon as they cease to be the
actual organ, foreign states cease dealing with them; and it is
usual, if the change is unquestionably final, to open relations with
their successors independently of whether it has been effected
constitutionally. When the finality of the change is doubtful, it
is open to a government in the exercise of its discretion, under
the same limitations with which it is open in the case of newly-
formed states, either to treat the person or body in whom the
representation of the country is lodged as being established, or to
enter only into such relations of an imperfect kind as may be
momentarily necessary".
observ- . When a state has an individual head, whether he be a
*...* sovereign or the chief of a republican government, he is con-
ſº, sidered so to embody the sovereignty of his state that the respect
state; due to the state by foreign powers in virtue of its sovereignty is
\reflected upon him, and takes the form of personal observances,
some of which are purely honorary, while others rest upon the
double foundation of respect and of their necessity to enable the
head of the state when abroad to be free to exercise the functions
with which he is usually invested. The nature and extent of the
latter observances have already been discussed”; the former, in
so far as their specific forms are concerned, are mere matters of
etiquette—it is sufficient to remark with reference to them that
their object being to express the respect due to an independent
state, an intentional neglect to comply with them must be
regarded as an insult to the state, and consequently as being an
act which it has a right to resent. w -
|
to an elec. Although no difference exists between the observances due to
... hereditary and elective heads of a state in their capacity of heads,
a certain difference appears in the conditions under which they
* Comp. antea, pt. li. ch. i. * Antea, p. 169. .
IN ITS INTERNATIONAL RELATIONS 299
are respectively regarded as appearing in that capacity. An PART II
hereditary sovereign is always looked upon as personifying his “”
state for ceremonial purposes, except when he suppresses his
identity by travelling in foreign countries incognito, or when he
puts himself in a position inconsistent with the assertion of
sovereignty by taking service under another sovereign; the chief
of a republic, on the other hand, only embodies the majesty of
his state when he ostensibly acts as its representative.
The political relations of states are as a rule carried on by Diplo. {\.
diplomatic agents, acting under the superior organs of their *.
states, and either accredited for the conduct of particular nego-
tiations or resident in a foreign state and employed in the
general management of affairs.
As those states which live under international law are
practically unable to withdraw themselves wholly from inter-
course with other states, and as diplomatic agents are the means
by which necessary intercourse is kept up, it is not in a general
way permissible for a state to refuse to receive a diplomatic agent
from another power, when the latter concéives that it is proper
to send him, and a state has of course conversely the right to
send one when it chooses; in practice, all states, with the
exception perhaps of a few very minute ones, have for a long
time past accredited permanent representatives to all foreign
civilised states of any importance. Every state can however Grounds
º te º º on which
refuse to receive diplomatic agents for special reasons; as, for st.
example, that their reception may be taken to imply acquiescence ; ..
in claims inconsistent with rights belonging to the state to receive
which they are sent, or that their personal position is in some *
way incompatible with the proper performance of their diplomatic
functions. Thus England did not receive a legate or nuncio from
the Pope when he was a temporal sovereign ; other states have
on several occasions refused to receive legates when invested with
powers incompatible with the state constitution; and the Pope
refused in 1875 to accept Prince Hohenlohe as ambassador from
Germany because, being a cardinal, he was ea officio a member
300 THE AGENTS OF A STATE
PART II of the curia. Countries again have refused to accept ministers
CHAP. IX
f
|
f
|
whose political opinions have been known to be at variance with
the established régime, and states frequently make it a rule not
to allow their own subjects to be diplomatically accredited to
them". Finally, a state may always decline to receive an agent
who is personally disagreeable to the sovereign, or who is
individually objectionable on other grounds. If, however, the
grounds are trivial, or are not such as to commend themselves to
the state accrediting a representative, it is not bound to acquiesce
in the rejection; and cases occasionally occur when a diplomatic
post remains vacant in consequence, or is only nominally filled,
for a considerable time. Thus in 1832, the Emperor Nicholas
* having refused to receive Sir Stratford Canning, his appointment
was not cancelled, and he remained ambassador for three years,
though he did not proceed to St. Petersburg; and when in 1885
the American minister then appointed to Vienna resigned, on
being objected to by the Austrian government, the legation was
left in the hands of a chargé d'affaires”. To avoid the in-
* It is sometimes discussed, as if the question were open, whether an
envoy, accredited to a government of which he is a subject, or a like person
attached to a legation remains liable to the laws of his own country. It is
of course open to a state to refuse to receive a particular person except upon
conditions varying from the ordinary diplomatic usage ; but equally of
course, unless the condition of subjection to the local laws be stated before
recognition of diplomatic character is given, it must be understood that the
person is accepted without reserve, and consequently with the advantage of
all diplomatic immunities.
In England, it may be noted, the indubitable rule has been affirmed by
judicial decision : Macartney v. Garbutt, L. R. xxiv. Q. B. D. 368.
* This case is a curious one of a double rejection, once upon good, and once
upon bad, grounds. The American minister above mentioned was in the
first instance appointed to Italy. Objection was taken to him there because
he had openly inveighed against the destruction of the temporal power of
the Pope. In the actual circumstances of Italy the objection was evidently
valid. He was then appointed to Austria; where the government was
indisposed to receive a person who had given umbrage to an allied power.
There were reasons for which it was inadvisable to put forward the true
motive of refusal, and objection was taken because it was believed, apparently
under a misapprehension, that he was married, by civil contract only, to a
Jewess. It was alleged that he would be in an untenable social position in
Vienna. The American government upheld the appointment on the ground
IN ITS INTERNATIONAL RELATIONS 301
conveniences and the possible dangers, which may spring from PART II
inadequate representation, it is the practice of most states to "“”
inquire confidentially before making an appointment whether the
intended agent will be acceptable to the government to which it
is proposed to accredit him. The mere expression of a wish may
reasonably be enough to prevent an appointment from being
made; good cause alone justifies a demand that it shall be
cancelled.
By regulations adopted at the Congress of Vienna and Aix-la-Classifica-
Chapelle, and conformed to by all states, diplomatic agents are l
divided into the following classes, arranged in the order of their
precedence.
I. Ambassadors. Degates; who are papal ambassadors
extraordinary, charged with special missions, primarily
that by the constitution of the United States it was debarred from inquiring
into the religious belief of any official. The pretended reason for non-
acquiescence may not have been good ; but the American government could
perhaps hardly in courtesy urge, as was the fact, that though the objection
taken was one which should have been listened to, if it had been made
before overt appointment, it was much too trivial to be made a ground of
Subsequent rejection. The domestic circumstances of the minister might be
a source of inconvenience to himself, but, in the particular case of Austria
and the United States, they could not seriously interfere with his diplomatic
usefulness. Wharton, Digest, i. 6or ; Geffcken in Holtzendorff's Handbuch,
iii. 632. [The most recent example of a person whom a foreign government
has refused to receive is also afforded by the United States. In 1891 the
Chinese government objected to the appointment of Mr. Blair as minister of
the United States to China on the ground that he had “abused the Chinese
labourers too bitterly while in the Senate and was conspicuous in helping to
pass the oppressive Exclusion Act.” Mr. Blair maintained that both his
language in the Senate and his attitude to the Chinese Exclusion Bill had
been misrepresented, but he placed his resignation in the hands of the
President. Mr. Wharton, Acting Secretary for Foreign Affairs at Washington,
admitted the sovereign rights of any government to determine the ac-
ceptability or non-acceptability of a Foreign Envoy while insisting that the
President in selecting Mr. Blair's successor could not take into account his
previous attitude on the Chinese question. And he declined to admit the
sufficiency of the objections urged against Mr. Blair on the ground that they
applied to any person who had cast a vote for any measure obnoxious to the
Chinese government. The President however preferred to treat the incident
as closed by the “peremptory resignation’ of Mr. Blair, and there was no
interruption of the diplomatic representation at Pekin. Martens, Nouv. Rec.
Gén. 2° Sér. xxii. p. 288.]
302
THE AGENTS OF A STATE
PART II
CHAP. IX
representing the Pope as head of the Church, always
cardinals, and sent only to states acknowledging the
spiritual supremacy of the Pope. Nuncios; who are
ordinary ambassadors resident, and are never cardinals.
2. Envoys and ministers plenipotentiary.
3. Ministers resident, accredited to the sovereign. .
4. Chargés d'affaires, accredited to the minister of foreign
affairs.
The classification is of little but ceremonial value; the right
which ambassadors are alleged to possess, of treating with the
Sovereign personally, having lost its practical importance under
modern methods of government. * ,
Creden- A diplomatic agent enters upon the exercise of his functions
tials.
from the moment, and from the moment only, at which the
evidence that he has been invested with them is presented by
him to the government to which he is sent, or to the agents of
other governments whom he is intended to meet, and has been
received by it or them. When he is sent to a specific state the
evidence with which he is required to be furnished consists in
a letter of credence of which the object is to communicate the
name of the bearer, to specify his rank as ambassador, minister
plenipotentiary, minister resident, or chargé d'affaires, and finally
to bespeak credit for what he will communicate in the name of
his government. When specific negotiations are to be conducted,
he must be furnished with powers to negotiate, which may either
‘f
| be contained in the letter of credence, or, as is more usual, may
*.
be conferred by letters patent; their object is to define the limits
within which the bearer has the right of negotiating and within
which, subject to the qualifications which will be made in
discussing treaties, his acts are binding on his government. The
full powers indispensable for signing treaties are invariably
conferred by letters patent. When a diplomatic agent is charged
with a double mission, the one part general and permanent, the
other special and temporary, as for example when a minister
resident is charged with the conclusion of a commercial treaty,
IN ITS INTERNATIONAL RELATIONS 303
he is furnished with special letters patent empowering him for PART II
the latter purpose, in addition to the general letters patent, or CHAP. IX.
to the powers contained in his letter of credence, given at
his entrance on his mission. Ambassadors or ministers not \
accredited to a specific state, but sent to a congress or conference,
are not generally provided with letters of credence, their full
powers, copies of which are exchanged, being regarded as
sufficient.
The entrance of a diplomatic agent upon the exercise of his Rights of
functions places him in full possession of a right of inviolability, *
of certain immunities from local jurisdiction, and of rights to *
ceremonial courtesy, which are conceded to him partly because
the intercourse of states could not conveniently be carried on
without them, and partly as a matter of respect to the person
representing the sovereignty of his state. The right of in-
violability primarily secures an envoy from all violence directed
against him for political reasons, from being retained as a
hostage, or kept as a prisoner of war; but it may also be
regarded as the source of that personal immunity from the local
jurisdiction which has been already discussed", and it so imparts
a character of peculiar gravity to offences committed against his
person that they are looked upon by the state to which he is
accredited as equivalent to crimes committed against itself. The
nature and extent of the immunities enjoyed by diplomatic agents
have been fully examined ; and upon the ceremonial branch of
his rights it is unnecessary to enlarge, because although the
principle that due ceremonial respect must be given is included
in international law, the particular observances, like those to
which sovereigns are entitled, fall within the province of
etiquette *. -
* Antea, p. IT2.
* Those who take an interest in these ‘graves riens,’ which however have
given rise to infinite disputes, may find them sufficiently or superfluously
descanted upon in Moser (Versuch, vols. iii. and iv.), De Martens (Précis,
§§ 206–13), Klüber (§§ 217–27), Heffter (§§ 220–1). The Germans have treated
the subject with exemplary seriousness, and the learning applicable to it has
304 THE AGENTS OF A STATE
PART II Although diplomatic agents do not enter upon the exercise of
CHAP. IX
their functions, nor consequently into the full enjoyment of their
rights, until their reception has taken place, they are inviolable
as against the state to which they are accredited while on their
voyage to it; and after entering it before their formal reception,
or, on being dismissed, until their departure from it, they have
a right to all their immunities, their diplomatic character being
sufficiently shown by their passports".
Termina- The mission of a diplomatic agent is terminated by his recall,
tion of a
mission.
by his dismissal by the government to which he is accredited, by
| his departure on his own account upon a cause of complaint
stated, by war or by the interruption of amicable relations
between the country to which he is accredited and his own, by
the expiration of his letter of credence, if it be given for a
specific time, by the fulfilment of a specific object for which he
may have been accredited, and in the case of monarchical
countries by the death of the sovereign who has accredited him.
There is some difference of opinion as to whether the death of
a sovereign to whom an ambassador or minister is accredited in
strictness necessitates a fresh letter of credence, but it is at least
lº common habit to furnish him with a new one ; though the
practice is otherwise when the form of government is republican.
A like difference of opinion exists as to the consequences of a
change of government through revolution, it being laid down on
one hand that the relations between the state represented by
a minister or other diplomatic agent and the new government.
may be regarded as informal or official at the choice of the
parties, and on the other that a new letter of credence is not
only necessary, but that the necessity is one of the distinctive
marks separating the position of a diplomatist from that of
been so patiently exhausted in monographs upon special points that
a treatise by Moser is devoted to an ambassador's ‘Recht mit sechs Pferden
zu fahren.” -
On the right of inviolability see Phillimore, ii. ch. iv.–vi; De Martens, $ 215;
Bluntschli, §§ 191—3; Heffter, § 212; Calvo, §§ 552–4.
* Heffter, $ 21o; Calvo, $ 420.
IN ITS INTERNATIONAL RELATIONS 805
a consul. Practice appears to be more in favour of the latter view. PART II
Letters of credence being personal, it is scarcely necessary to say * *
that a diplomatic mission comes to an end by the death of the .
person accredited". 0U , . . .
It is unnecessary to discuss the reasons for which recall may (“ ”
take place on the proper motion of the accrediting power. If
they are personal to the diplomatic agent, they lie between him
and his government; if they concern the relations between his
country and that to which he is accredited they have to do with
matters of offence and quarrel lying outside law. So...also when
an ambassador or minister is dismissed because of disagreements
between the two states, it lies wholly with the state dismissing
him to choose whether it will do an act which must bring about
an interruption of friendly relations. It is always open to one Dismissal;
state to quarrel with another if it likes. But there are occasions:"..."
on which a diplomatic agent is dismissed, or his recall isº
the state
demanded, for reasons professing to be personal to himself. In to which
such cases, courtesy to a friendly state exacts that the repre- *
sentative of its sovereignty shall not be lightly or capriciously:
sent away; if no cause is assigned, or the cause given is 9°.
inadequate, deficient regard is shown to the personal dignity of
his state; if the cause is grossly inadequate or false, there may
be ground for believing that a covert insult to it is intended.
A country, therefore, need not recall its agent, or acquiesce in
his dismissal, unless it is satisfied that the reasons alleged are
of sufficient gravity in themselves”.
& In justice to him his
* De Martens, Précis, $$ 238–42; Wheaton, Elem. pt. iii. ch. i. §§ 23–4;
Heffter, § 223; Phillimore, ii. § ccxl; Bluntschli, $$ 227–43; Calvo, $$ 473–41.
* M. Calvo says (§ 439) that a state is bound to recall a minister who has
become unacceptable to the government to which he is accredited, on the
bare information that he is so, and that it has no right to ask for any reason
to be assigned. It would be natural to treat M. Calvo's opinion with respect
as that of a professional diplomatist; but what he says is merely a textual
translation from Halleck (i. 307), who in turn can only rely upon an opinion
of Mr. Cushing, Attorney-General of the United States, which does not
support his contention. The language of Merlin, to whom Halleck also
refers, is wide of the point. He merely says that ‘le souverain Étranger me
peut s’offenser si l’on prie son ministre de se retirer quand il a terminé les
HALL X
306 THE AGENTS OF A STATE
º
PART II government also may, and usually does, examine whether his
CHAP. Ix
. i
|
conduet in fact affords reasonable foundation for the charges
AErought against him ; in the larger number of instances which
have occurred, states have been very slow and cautious in
consenting to recall, and no modern case seems to exist in which
dismissal has been held to be justified. Various grounds may be
imagined which would warrant a state in dismissing or in
tº º —s, , --~~~~~...~...~~~~~.
requiring the recall of a foreign diplomatic agent; but those
which have been alleged, and those which for practical purposes
are likely to be alleged, resolve themselves into offensive conduct
towards the government to which the agent is accredited, and
interference in the internal affairs of the state. In I804 the
minister of Spain to the United States was accused of attempting
to bribe a newspaper with reference to a matter at issue between
ithe two countries, and of other improper conduct; his recall was
demanded; after considerable deliberation the Spanish government
acceded to the request, but gave the minister permission to retire
at such season of the year as might be convenient to him; he
was still at Washington in October of 1807. In 1809 the
/
}
h
\
\
}
government of the United States demanded the recall of
Mr. Jackson, British minister at Washington, relations with
him being suspended until an answer should be returned ;
Mr. Jackson was stated to have given offensive toasts at public
dinners, and to have in effect charged the American administration
with “falsehood and duplicity.” The British government was
not satisfied with the evidence of ill conduct produced; but, in
order to show its friendliness to the United States, it consented
\to the recall, placing, however, on record that ‘His Majesty has
the United States, which has had the misfortune to supply
not marked with any expression of displeasure the conduct of
Mr. Jackson, who does not appear to have committed any
intentional offence against the United States.” Again in 1871
almost all the modern instances in which a government has felt
affaires qui l’avaient amené ; ” his view being that a state need not receive
resident ministers,
IN ITS INTERNATIONAL RELATIONS 307
itself unable to continue relations with a minister accredited to PART II
it, intimated to the Russian government its desire that the head CHAP. IX
of the Russian legation should be changed. Recall was avoided
on the alleged ground of the impossibility of replacing M. Catacazy.
at the moment ; and a compromise seems to have been arrived
at ; the minister was “tolerated” for some months on the tacit
understanding that he was to be afterwards withdrawn". Two
modern cases only of dismissal have occurred. In the spring of
I848 Spain, which was then under the reactionary government
of Narvaez, was greatly agitated by revolutionary infection
from France. That Queen Isabella occupied the throne was
principally due to England; English assistance had been given
on the condition of constitutional government; and England
was bound to a certain extent by treaty to support the existing
régime. In these circumstances Lord Palmerston, the Secretary
for Foreign Affairs, thought it opportune to warn the Spanish
government through Mr. Bulwer, British minister at Madrid, of
what he conceived to be the danger of the course which the
government was taking. The warning was violently resented,
and the Spanish administration seem to have determined to rid
themselves of Mr. Bulwer, whose views they knew to be in full
accordance with those of his own government. Shortly afterwards
his passports were sent him with an intimation that he must
quit Madrid within forty-eight hours. The reason assigned for
his dismissal was that he had mixed himself up with the party
opposed to the existing order of things, and that he was guilty
of complicity in actual revolt. As the Spanish government was
unable to offer, and in fact did not seriously attempt to offer,
any justification of their charges, Lord Palmerston responded by
dismissing the Spanish minister in London”. A still more
* Papers presented to Parliament in 1813; Wharton, Digest, $$ 84, Iod,
IoT, and Appendix $ IoG.
* State Papers, 1848. M. Calvo (§ 581) states as a fact that Mr. Bulwer was
implicated in the insurrectionary movement. To any one acquainted with
the traditions of the English public service the charge would in any case
X 2
808 THE AGENTS OF A STATE
PART II, recent, and very curious, case is that of Lord Sackville's dismissal
CHAP. IX &
* * from Washington".
Diplo- ( The character of a diplomatic agent is not, like that of a
matic ſº e ºn tº o a * *
agents in sovereign, inseparable from his personality; unlike military and
* naval commanders, he has usually no functions except in the
i 5 y p
states to
. state to which he is accredited; there is no practical reason for
hey are \ . . . & 1 & , * -
not ac- his immunities, and he does not represent his country, except
credited. i when he is actually engaged in his diplomatic business; he does
hot therefore as a general rule possess special rights or privileges
in states to which he is not accredited as against the government
| or laws of that state; and there are cases in which a minister
has been arrested for personal debts and other civil liabilities,
and even in which he has been criminally punished while stay-
ing in or passing through the territory of a friendly power.
Probably the only respect in which his position differs from that
appear to be scarcely credible; the State Papers above referred to contain
ample evidence of its entire groundlessness. -
| * Shortly before the American presidential election of 1888, a person,
| professing to be an ex-British subject who still “considered England his
mother land,’ wrote to Lord Sackville, asking him to advise ‘privately and
confidentially ” how the writer of the letter should vote, and to inform him
whether Mr. Cleveland, if re-elected, would adopt a policy of friendliness to
England. Lord Sackville answered vaguely and generally that the party in
power were fully aware that ‘any party openly favouring the mother country
would lose popularity;” that he “believed” the party in question ‘to be still
desirous of maintaining friendly relations with Great Britain ; ' but that it
was ‘plainly impossible to predict the course which Mr. Cleveland may
pursue in the matter.’ Usually it would be a piece of natural and almost
necessary courtesy to assume that a government was disposed to continue
friendly relations with a state with which it was on terms of amity ; to do
So in the United States would no doubt have been indiscreet if the expression
of opinion had been public ; it may be conceded that it was indiscreet for a
diplomatist to express any opinion at all, however privately, during all
selection; but the act was not treated as an indiscretion ; it was treated as
an open and intentional offence. The British government was requested to
recall Lord Sackville, and as it did not do so by telegraph, without waiting
to receive explanations from its minister, his passports were sent to him and
he was dismissed within three days. The government of the United States
endeavoured to support its action by alleging that Lord Sackville had spoken
insultingly of the President and Senate to a newspaper reporter. The
allegation was totally destitute of foundation. Parl. Papers, United States,
No. 4 (1888) and No. 1 (1889); [De Martens, Nouv. Rec. Gén. 2° Sér. xvi.
649.]

IN ITS INTERNATIONAL RELATIONS 309
of an ordinary foreign subject is that, while theoretically the PART II
latter has no right of access and passage overruling the will “”
of the state, a diplomatic agent must be allowed *
passage to the state to which he is accredited. Even thi
meagre privilege is qualified by a right, on the part of the
state through which he travels, to prescribe a route and to
require that his stay shall not be unnecessarily prolonged. In
at least one case indeed a government has gone somewhat
further, and has stopped a diplomatic agent on the threshold .
of its territory, until it could receive his assurance that no
longer sojourn would be made than was absolutely necessary.
In 1854 Mr. Soulé, a Frenchman by birth, but naturalised
in the United States, and accredited to Spain as minister of
the latter power, was stopped at Calais by order of the French
government, while on his journey to Madrid. In the cor-
respondence which followed, M. Drouyn de Lhuys declared
that ‘the government of the Emperor has not wished to prevent |
an envoy of the United States from crossing French territory
to go to his post, in order to acquit himself of the commission
with which he was charged by his government. But between
this simple passage and the sojourn of a foreigner, whose
antecedents have awakened, I regret to say, the attention of
the authorities invested with the duty of securing the public
order of the country, there exists a difference. If Mr. Soulé
was going immediately and directly to Madrid, the route of t
France was open to him ; if he intended to come to Paris with
a view of staying there, that privilege was not accorded to him.
It was therefore necessary to consult him as to his intentions,
and he did not afford time for doing this.’ Possibly the right
of a diplomatic agent to innocent passage may carry with it
that the sovereign of the country through which he passes
ought, as a matter of courtesy, to make provision for securing
him from the operation of its local laws in petty matters, so that
he may not be detained on his journey except by grave causes.
More than this it would be difficult at present to claim ; and it
310 THE AGENTS OF A STATE
PART II hardly seems that there is any need to go further in the
CHAP. IX e g g g tº gº © tº g
direction of protecting him from civil or criminal process in-
stituted by private persons".
f go ſº
Diplo- The case of negotiators at a congress or conference is ex-
ºt. at ceptional. Though they are not accredited to the government
a congress of the state in which it is held, they are entitled to complete
Or COn-
ference. A diplomatic privileges, they being as a matter of fact representative
of their state and engaged in the exercise of diplomatic functions”.
Diplo- As a diplomatic agent in the employment of a hostile country
*. is not only himself an enemy, but is likely from the nature of
found
within © tº
enemy ministers or other agents accredited by their country to a state
}
jurisdic- | e e © ſº •. tº
tion. friendly to it may be seized and retained as prisoners of war by
his functions to be peculiarly noxious, it is unquestionable that
* De Martens, Précis, $$ 246—7; De Garden, Traité de Diplomatie, ii. 212 ;
Calvo, 596–8; Heffter, § 207. The despatch of M. Drouyn de Lhuys is
quoted by Lawrence, note to Wheaton (Elem. pt. iii. ch. i. § 20). Wheaton
(loc. cit.) says that the opinion of jurists seems to be somewhat divided on
the question of the respect and protection to which a public minister is
entitled, in passing through the territories of a state other than that to
which he is accredited. He starts with the assertion that an ambassador
has a sacred character, and that a government in allowing him to enter its
territories makes an implied promise to respect it. He acknowledges that
Grotius (De Jure Belli et Pacis, lib. ii. c. 18. § 5), Bynkershoek (De Foro
Legatorum, c. ix. § 7), and Wicquefort (1626–82), De l'Ambassadeur, liv. i.
§ 29 are of a different opinion; Wattel (liv. iv. ch. vii. § 84), whom he quotes
in support of his view, merely says that acts of violence must not be done or
permitted against an ambassador which would be inconsistent with the
protection due to an ordinary stranger, and expressly states that a diplomatic
agent has no right to expect the full enjoyment of diplomatic privileges from
the hands of a government to which he is not accredited. The only authority,
in fact, whom Wheaton can adduce as taking the same view as himself is
Merlin (Répertoire, tit. Ministre Public). That an ambassador has a gene-
rally sacred character by modern custom, and that he enters a state to
which he is not accredited under an implied promise that he will be allowed
to enjoy diplomatic privileges, are of course the very points which require
to be proved by practice or by a consensus of opinion. Phillimore (§ clxxiv)
thinks that an ambassador on his passage through a country, where he is not
accredited, would probably be accorded exterritoriality by the courts of all
nations, although he could not claim the privilege as a matter of ‘tacit
compact.” He does not explain upon what ground the courts could take
upon themselves to accord exterritoriality in the absence of ‘tacit compact,”
or in other words of an international usage overriding municipal law.
.* Phillimore, loc. cit.
IN ITS INTERNATIONAL RELATIONS 311
an enemy, if they come without permission within the jurisdiction PART II
of the latter, whether the state to which they are accredited be “”
hostile or friendly to that which effects the capture. The arrest
of the Maréchal de Belleisle in 1744 constitutes a leading case
on the subject. He was charged with an embassy from the
court of France to that of Prussia, and on his way to Berlin he
unwittingly touched the soil of Hanover, which country in
conjunction with England was then at war with France. He
was seized and sent to England as a prisoner of war. His arrest
was not complained of as illegitimate either by himself or his
government, and it has since been commonly cited as an example
of legitimate practice". *
On the other hand, if a diplomatic agent accredited to a Diplo-
country which is at war with another is found by the forces of .
agents
the latter upon the territory of its enemy, he is conceded all the tº,
rights of inviolability which can come into existence as against of the
a state having only military jurisdiction *. Whether his sº
privileges extend further, and if so how much further, must ...
- accredited
probably be regarded as unsettled. The point has not been #. the º
considered by jurists, and until lately, whether by accident or tºr.
through the courtesy of belligerents, it has not presented itself
in the form of a practical question. During the siege of Paris Question
as to their
COrre-
authorities with reference to the correspondence of diplomatic *
however it was partially raised by the conduct of the German
representatives shut up in the besieged city. On the minister of i. ... .
the United States being refused leave to send a messenger with *
* Wattel, liv. iv. ch. vii. § 85; De Martens, Précis, $ 247; Heffter, § 207 ;
Moser, Versuch, iv. I2O, or De Martens, Causes Cél. ii. I. Phillimore (ii.
§ clxxv) while stating the existing rule suggests that “the true international
rule would be that the ambassador should be allowed in all cases the jus
transitus innoxii,” meaning apparently that he should only be liable to be
seized within an enemy's jurisdiction if he does acts of hostility there ; in
other words, he would compel a state to allow an ambassador to pass through
it in order to negotiate an offensive alliance against it with a state on the
further side. Fiore (ed. 1882, § 1221) says that a diplomatic agent of an
enemy state ‘entrando nel territorio senza Salvocondotto potrebbe essere
ricondotto alle frontiere.”
* De Martens, Précis, $ 247; Heffter, § 207.
312 THE AGENTS OF A STATE
PART II a bag of despatches to London, except upon condition that the
*** contents of the bag should be unsealed, Mr. Fish directed the
American minister at Berlin to protest against the act of the
German commanders, and argued in a note, in which the subject
was examined, that the right of legation, that is to say the right
of a state to send diplomatic agents to any country with which
it wishes to keep up amicable relations, is amply recognised by
international law, that a right of correspondence between the
government and its agent is necessarily attendant upon the right
of legation, that such correspondence is necessarily confidential
in its nature, that the right of maintaining it would be nullified
by a right of inspection on the part of a third power, and finally
that there is no trace of any special usage authorising a belli-
gerent to place diplomatic agents in a besieged town on the same
footing as ordinary residents by severing their communication
with their own governments".
The Looking at the question from the point of view of strict legal
iºn. ſ right, it is not altogether clear that any good reason can be
| assigned for giving the interests of a state accrediting an agent
priority over those of a belligerent. It is no doubt true that the
right of legation is fully established. But the right of legation,
primarily at least, is only a right as between the states sending
and receiving envoys; in other words, it only secures to each of
two states having relations with each other the opportunity of
diplomatic intercourse with the other. Is there any sufficient
reason for enlarging it to embrace a power of compelling third
states to treat countries sending envoys as exercising a right
which has priority over their own belligerent rights? Even in
time of peace it has been seen that an ambassador can only claim
his complete diplomatic immunities in the state to which he is
accredited. His privileges in their full extent are dependent on
the fact that he has business to transact with the power by
whom the privileges are accorded. Wholly apart therefore from
I D'Angeberg, Recueil des Traités, &c., concernant la guerre Franco-
Allemande, Nos. 756 and 783.
IN ITS INTERNATIONAL RELATIONS 313
any question as to the effect of a conflict between those privileges PART II
and urgent interests of a belligerent, there is no presumption in * *
favour of the existence of an obligation on the part of the latter
to grant more than personal inviolability. And if the existence
of a conflict can be alleged, the case against the priority of
ambassadorial rights over those of a belligerent becomes stronger.
The rules of war dealing with matters in which such conflict
occurs certainly do not presuppose that the rights of neutrals are
to be preferred to those of belligerents; and the government of
the United States itself, while in the very act of protesting
against the right of communication between a state and its agents
being subordinated to belligerent rights, admitted that ‘ evident
military necessity’ would justify a belligerent in overriding it.
On the whole it seems difficult, in the absence of a special
custom, to deny to belligerents the bare right of restricting the
privileges of a minister, not accredited to them, within such
limits as may be convenient to themselves, provided that his
inviolability remains intact. . -
The question however assumes a different aspect if it is looked
at from the point of view of the courtesy which a state may
reasonably be expected to show to a friendly power. Diplomatic
relations are a part of ordinary international life; there is no
reason for supposing that their maintenance is inconsistent with
amity towards the invading government; there is on the other
hand every reason to suppose that their interruption may be
productive of extreme inconvenience to its friend. To withhold
any privileges which facilitate those relations, in the absence of
suspicion of bad faith or of grave military reasons, is not merely
to be commonly discourteous, it is to be ready to injure or imperil
the serious interests of a friend without the existence of reasonable
probability that any important interests of the belligerent will be
remotely touched.
Officers in command of armed forces of the state when upon...;
g
\
friendly territory possess certain privileges, which have been ºf ºne.
5 °3 ; forces of
already defined, in virtue of their functions and of the repre- the state.
314 THE AGENTS OF A STATE
PART II, sentative character of the force which is under them; and in
* * \time of war they have certain powers of control within an
enemy’s country and of making agreements with the enemy in
matters incident to war, which will be mentioned in subsequent
chapters". To complete the view of their position, and of that
of the members of forces under their command, it is only
necessary to add that neither they, nor the members of such
forces, are in any case amenable to the criminal or civil laws of .
la foreign state in respect of acts done in their capacity of agents
for which they would be punishable or liable to civil process if
such acts were done in their private capacity. Thus, when a
! state in the exercise of its right of self-preservation does acts of
| violence within the territory of a foreign state while remaining
| at peace with it, its agents cannot be tried for the murder of
persons killed by them, nor are they liable in a civil action in
respect of damage to property which they may have caused.
Case of An incident which arose out of the case of the Caroline,
*** mentioned in a previous chapter”, is of some interest with
reference to this point. A person named M*Leod, who had been
engaged as a member of the colonial forces in repelling the attack
made upon Canada from United States territory, and who
consequently had acted as an agent of the British government,
was arrested while in the State of New York in 1841 upon a
charge of having been concerned in what was called the murder
of one Durfee, who was killed during the capture of the
Caroline. The British minister at Washington at once de-
manded his release, stating it to be “well known that the
destruction of the steamboat Caroline was a public act of
persons in Her Majesty’s service, obeying the orders of the
superior authorities. That act therefore, according to the
usages of nations, can only be the subject of discussion between
the two national governments. It cannot be justly made the
ground of legal proceedings in the United States against
the individuals concerned, who were bound to obey the authorities
* Cf. pt. iii. chaps. iv. and vii. * Antea, p. 270.
IN ITS INTERNATIONAL RELATIONS 315
appointed by their own government.’ The matter being in the PART II
hands of the courts it was impossible for the government of “”
the United States to release M*Leod summarily. Its duties
were confined to the use of every means to secure his liberation
by the courts, and to seeing that no sentence improperly passed
upon him was executed. Whether reasonable efforts were made
to fulfil the first of these duties it is not worth while to
discuss here; and fortunately M*Leod, after being detained
in prison for several months, was acquitted on his trial. The
essential point for the present purpose is that Mr. Webster,
Secretary of State in the latter portion of the time during
which the affair lasted, acknowledged that ‘the government of
the United States entertains no doubt that, after the avowal
of the transaction as a public transaction, authorised and under-
taken by the British authorities, individuals concerned in it
ought not, by the principles of public law, and the general usage
of civilised states, to be holden personally responsible in the
ordinary tribunals of law for their participation in it; ’ and
that, the year after, an act was passed directing that subjects
of foreign powers, if taken into custody for acts done or omitted
under the authority of their state, ‘the validity or effect whereof
depends upon the law of nations,’ should be discharged".
A diplomatic agent secretly accredited to a foreign government Diplo-
is necessarily debarred by the mere fact of the secrecy with which : motº
his mission is enveloped from the full enjoyment of the privileges º'
and immunities of a publicly accredited agent. He has the tº-
e e tº e character.
advantage of those only which are consistent with the mainten-
ance of secrecy; that is to say, he enjoys inviolability and the
various immunities attendant on the diplomatic character in so
far as the direct action of the government is concerned. Thus
his political inviolability is complete; as between him and the º
government his house has the same immunities as are possessed
by the house of a publicly accredited minister; and it may be \
e e Q = - º \
presumed that no criminal process would be instituted against
* Halleck, i. 430, and Ann. Register, 1841, p. 316.
316 THE AGENTS OF A STATE
PART IN him where the state charges itself with the duty of commencing
“*” (criminal proceedings. On the other hand, in all civil and
criminal cases in which the initiative can be taken by a private
person he remains exposed to the action of the courts; though
it would no doubt be the duty of the government to prevent a
criminal sentence from being executed upon him by any means
which may be at their disposal, consistently with the state
constitution '.
Commis- Commissioners for special objects are not considered so to
ÖN Sloners. w º - Q
S-> represent their government, or to be employed in such functions,
as to acquire diplomatic immunities. They are however held to
} have a right to special protection, and courtesy may sometimes
demand something more. It would probably not be incorrect
to say that no very distinct practice has been formed as to their
treatment, contentious cases not having sufficiently arisen ".
Bearers Persons carrying official despatches to or from diplomatic
ºne. agents have the same rights of inviolability and innocent passage
that belong to the diplomatic agent himself, provided that their
i official character be properly authenticated. It is usual to
provide this authentication in the form of special passports,
stating in precise terms the errand upon which they are
engaged.
Consuls. Consuls are persons appointed by a state to reside in foreign
countries, and permitted by the government of the latter to
reside, for the purpose partly of watching over the interests
of the subjects of the state by which they are appointed, and
partly of doing certain acts on its behalf which are important
to it or to its subjects, but to which the foreign country is
indifferent, it being either unaffected by them, or affected only
Their in a remote and indirect manner. Most of the duties of consuls
** are of the latter kind. They receive the protests and reports
of captains of vessels of their nation with reference to injuries
* * De Martens, Précis, $ 249; Heffter, § 222; De Garden, Traité de Dip. ii.
* De Garden, Traité de Dip. ii. 13 ; Bluntschli, $ 243; Heffter (§ 222)
considers that commissioners, &c., have a right to the ‘prérogatives essentielles
dues aux ministres publics.”
IN ITS INTERNATIONAL RELATIONS 317
sustained at sea; they legalise acts of judicial or other function-
aries by their seal for use within their own country; they
authenticate births and deaths; they administer the property of
subjects of their state dying in the country where they reside;
they send home shipwrecked and unemployed sailors and other
destitute persons; they arbitrate on differences which are
voluntarily brought before them by their fellow countrymen,
especially in matters relating to commerce, and to disputes
which have taken place on board ship; they exercise disciplinary
jurisdiction, though not of course to the exclusion of the local
jurisdiction, over the crews of vessels of the state in the
employment of which they are; they see that the laws are
properly administered with reference to its subjects, and com-
municate with their government if injustice is done; they
collect information for it upon commercial, economical and
political matters. In the performance of these and similar
duties the action of a consul is evidently not international.
He is an officer of his state to whom are entrusted special
functions which can be carried out in a foreign country without
interfering with its jurisdiction. His international action does
not extend beyond the unofficial employment of such influence
as he may possess, through the fact of his being an official
and through his personal character, to assist compatriots who
may be in need of his help with the authorities of the country.
If he considers it necessary that formal representations shall be
made to its government as to treatment experienced by them or
other matters concerning them, the step ought in strictness to
be taken through the resident diplomatic agent of his state—
he not having himself a recognised right to make such com-
munications". Thus he is not internationally a representative
of his state, though he possesses a public official character,
* By some Consular Conventions the right is given of making represen-
tations to the local authorities not only for the protection of subjects of their
state, but in the case of an infraction of any treaty, and of addressing them-
selves to the government itself, if attention is not paid to their representa-
tions, whenever the diplomatic representative of their state is absent.
PART II
t
CHAP. IX
|
f
|
|
f
}-
l
318 THE AGENTS OF A STATE
PART II
CHAP. IX."
Mode of
appoint-
ment.
which the government of the country in which he resides
recognises by sanctioning his stay upon its territory for the
purpose of performing his duties; so that he has a sort of
scintilla of an international character, sufficiently strong to
render any outrage upon him in his official capacity a violation
of international law, and to give him the honorary right of
placing the arms of his country upon his official house".
The persons employed as consuls are divided into consuls
general, consuls, vice-consuls, and consular agents, a difference
of official rank being indicated by the respective names. The
division is not one of international importance.
A consul may either be a foreigner to the country within
which he exercises his functions, and his office may be the only
motive of his sojourn there, or he may be a foreigner who for
purposes of commerce or other reasons lives in the state in-
dependently of his office, and has perhaps acquired a domicile
there, or finally he may be a subject of the state in which he
executes the functions of consul. A consul general or consul
is in all cases appointed by a commission or patent, which is
communicated to the government of the country where he is to
reside. On its receipt by the latter government he is recognised
by it through the issue of what is called an exeguatur or
confirmation of his commission, which enables him to execute the
duties of his office, and guarantees such rights as he possesses in
virtue of it. Vice-consuls and consular agents are usually also
appointed by patent, but sometimes are merely nominated by
the consul to whom they are subordinate; the recognition of
vice-consuls is generally given by means of an exeguatur; and
it is frequently issued even to consular agents, though it is
perhaps more common that recognition is given in a less formal
manner. An exequatur usually consists in a letter patent signed
by the sovereign, and countersigned by the minister of foreign
* Spain, which in several respects gives exceptional privileges to consuls,
in this matter is less liberal than other countries. The arms of the consul’s
state may only be put up inside his house.
IN ITS INTERNATIONAL RELATIONS 319
affairs; but it is not necessarily conferred in so formal a manner; PART II
in Russia and Denmark the consul merely receives notice that “”
he is recognised, and in Austria his commission is endorsed with
the word ‘exequatur’ and impressed with the imperial seal. The
exeguatur is not issued as of course, and it may be refused if the
person nominated as consul is personally objectionable for any
serious reason. Thus in 1869 the exeguatur was refused by
England to a certain Major Haggerty, an Irishman naturalised
in the United States, who was known to have been connected .
with Fenian plots. Again, the exeguatur may be revoked if the Dismissal.
consul outsteps the limits of his functions, especially if he
meddles in political affairs; and though revocation seldom takes
place, it being the practice to give an opportunity of recalling
the offending consul to the state by which he has been nominated,
a certain number of instances have occurred in which the measure
has been resorted to. Thus in 1834 the Prussian consul at
Bayonne having helped in getting clandestinely into Spain
supplies of arms for the Carlists, and his government having
refused to recall him, his exeguatur was withdrawn; in 1856 the
exeguatur of three English consuls in the United States was
revoked on the ground of their alleged participation in attempts
to recruit men for the British army during the Crimean War;
the exeguatur was withdrawn from an American citizen acting as
consul at St. Louis for a foreign power for endeavouring to make
use of his consular office to escape from military service during
the Civil War; and in 1866 the consul for Oldenburg at New
York was deprived of his exeguatur for refusing to appear and
give evidence before the Supreme Court in a cause to which he
was one of the parties". So soon as the exeguatur is revoked
* Possibly a state may in strictness have the right to withdraw an
exeguatur without cause. In 1861 the English and French consuls at
Charleston, under identical directions from their respective governments,
jointly expressed to the Confederate government a hope that the Confederate
States would observe the provisions of the Treaty of Paris with respect to the
capture of private property at sea. The exeguatur of the English consul was
revoked by the Federal government on the ground that, in making the
320 THE AGENTS OF A STATE
PART II the person up to that time consul totally loses his official
CHAP. IX ºf
ſcharacter.
Privileges.
The functions of a consul being such as have been described,
it being frequently the case that he is a subject of the state in
which he exercises them, and the tenure of his office being
dependent upon so formal a confirmation and continued per-
mission on the part of that state, it is natural that he should
not enjoy the same privileges as agents of a state employed in
purely international concerns or representative of its sovereignty.
As a general rule he is subjected to the laws of the country in
which he lives to the same extent as persons who are of like
status with himself in all points except that of holding the
consular office. Consuls, the sole object of whose residence is
the fulfilment of their consular duties, those who are chosen
from among persons domiciled in the country, and those who
are subjects of the state, are broadly in the same position
respectively as other commorants, domiciled persons, and subjects.
It is agreed however that the official position of a consul
commands some ill-defined amount of respect and protection;
that he cannot be arrested for political reasons; that he has the
specific privileges of exemption from any personal tax and from
liability to have soldiers quartered in his house, and the right of
communication in question, he had infringed a statute providing that no
person not authorised by the President should assist in any political
correspondence with the government of a foreign state “in relation to any
disputes with the United States, or to defeat the measures of their govern-
ment.” The alleged ground was obviously a mere pretence; for (1) the
exeguatur of the French consul was not withdrawn, (2) the consul was
employed in a business with which the United States had no concern, viz.
in obtaining protection for British commerce from a de facto authority.
The revocation of the exeguatur remained therefore without plausible ground
assigned or assignable. Nevertheless Lord Russell ‘did not dispute the right
of the United States to withdraw the exeguatur of Mr. Consul Bunch,
though H.M.'s government are of opinion that there was no sufficient ground
for that act of authority’ (Parl. Papers, North Am. 4, 1862); and it is in fact
not easy to see how the refusal without reason assigned to allow a person,
who is not representative of his state, and who therefore is not identified
with its sovereignty, to continue to exercise certain functions in a given ter-
ritory, can be beyond the strict powers of the sovereign of that territory.
IN ITS INTERNATIONAL RELATIONS 321
putting up the arms of his nation over his door; and that he PART II
tº º CHAP. IX
must be conceded whatever privileges are necessary to enable
him to fulfil the duties of his office, except such as would
withdraw him from the civil and criminal jurisdiction of the
courts",—it being understood to be implied in the consent given
by the state to his appointment for the performance of certain
duties that all reasonable facilities must be given for their
fulfilment. These latter privileges appear to be reducible to
inviolability of the archives and other papers in the consulate *,
and to immunity from any personal obligations, weighing under
the local law upon private persons, which are incompatible with
a reasonably continuous presence of the consul at his consulate
or with his ability to go wherever he may be called by his
* For obvious reasons a consul is not liable to the courts for acts done by
order of the government from which he holds his commission.
* In the second edition of this book I stated on the authority of M. Calvo
(§ 468) that the archives of the French consulate in London were seized and
sold not many years ago for arrears of house tax payable by the landlord of
, the house occupied by the consulate ; and on the authority of Mr. Lawrence
(Rev. de Droit Int. x. 317) that in 1857 the whole consular property in the
United States consulate at Manchester, with flag, seal, arms, and archives,
was seized for a private debt of the consul, and would have been sold if
security had not been temporarily given by a private person, and if the
American minister in London had not paid the amount due. I supposed
that the seizure had been found to be legally permissible, and it appeared to
me that a state of the law which permitted consular archives to be sold was
certainly not to be commended.
I regret that the fact of two similar but independent stories being told by
writers of repute, who had treated in much detail and apparently with care,
of the whole subject of the position of consuls, induced me to deviate from a
habit, which has been forced upon me by experience, of never repeating any
assertion to the disadvantage of England, made by a foreign writer, without
myself examining upon what evidence it rests. - -
In the Journal de Droit International Privé for 1888 (p. 66), M. Clunet
stated on the authority of the Foreign Office and the Inland Revenue De-
partment that no such incident had occurred as that alleged by M. Calvo.
I find on inquiry that the Manchester case is entirely unknown; and though
the circumstances differ from those of the London case in that the debt is
said to have been a private one, and that in consequence the seizure need not
necessarily have become known to the public departments, the American
minister is so unlikely to have neither taken official notice of the matter nor
tested the legality of the seizure, that I can have no hesitation in relegating
this case also to the domain of fiction.
}HALL, Y
322 THE AGENTS OF A STATE
PART II
CHAP. IX
§
consular duty". Thus it is held that consuls are exempt from
serving on juries, because such employment implies absence, and
may compel them to travel to some distance from their official
residence; and as a matter of course they cannot be drawn for
service in militia or even in a municipal guard. If possible also,
a consul accused of a criminal offence ought to be set at liberty
on bail, or be kept under surveillance in his own house, instead
of being sent to prison, where the exercise of his functions is
difficult or impossible. If a state consents to receive one of its
own subjects as consul for a foreign country it consents in doing
so to extend to him the same privileges as are due to consuls who
are subjects of the foreign country or of third powers.
It follows from the absence of any political tinge in the
functions of a consul that political changes in a state do not
affect his official position, and that the nomination of a person
for the performance of consular duties in a given territory does
not imply that the government of that territory, if of contested
legitimacy, is recognised by the state employing the consul. If
the form of government of a state is changed, or if the place in
which a consul resides is annexed to a state other than that from
which he has received his exeguatur, no new exeguatur is
required. The cases of consuls in the Confederated States,
nominated before the outbreak of the Civil War, who continued
to exercise their functions during its progress, and that of the
nomination of consuls by England to the various South American
Republics eighteen months before the earliest recognition of any
of them as a state, are instances of the dissociation of consular
relations from any question of political recognition.
When a place in which a consul is resident in time of war
becomes the scene of actual hostilities, it is usual to hoist the
flag of the state in the employment of which he is over the
Position
in case of
change of
govern-
ment in
the coun-
try of
residence.
Considera-
tion due toº
consular
house
during
hostilities.
* The United States only claim this immunity for such of their consuls
as are citizens of the United States and do not hold real estate or engage in
business in the country to which they are sent. Regulations for the Consular
Service of the United States, quoted in Halleck, i. 316.
IN ITS INTERNATIONAL RELATIONS 323
consular house; and the combatants become bound by a usage of PART II
e e º º e g CHAP. IX
courtesy, failure to observe which is peculiarly offensive, to avoid
injuring it by their fire or otherwise, except in cases of actual
military necessity, or when the enemy makes incontestible use of
it as a cover for his own operations”. t
Consuls are sometimes accredited as chargés d'affaires. When Consuls
º º g e o diploma-
such is the case their consular character is necessarily subordinated tially ac-
to their superior diplomatic character, and they are consequently credited.
invested with diplomatic privileges.
A state is responsible for, and is bound by, all acts done by its Responsi-
© a “º & º & e e r s & e bility of
agents within the limits of their constitutional capacity or of the a state
for acts
done by
in excess of the powers of the person doing them the state is not its agents.
functions or powers entrusted to them. When the acts done are
bound or responsible; but if they have been injurious to another
state it is of course obliged to undo them and nullify their
1 On the functions and privileges of consuls, see De Garden, Traité de Dip. i.
315; Phillimore, ii. §§ ccxlvi-lxxi.; Heffter, §§ 244-8; Bluntschli, $$ 244–75;
Halleck, i. 310–30 ; Calvo, $$ 442–500, and 515–20 ; and especially Lawrence,
Commentaire i. I–Io9.
Works devoted to the subject have been written by Miltitz (Manuel des
Consuls), Tuson (The British Consul's Guide), De Clercq et de Vallat (Guide
Pratique des Consulats), and Lehr (Manuel theorique et pratique des agents
diplomatiques et consulaires).
Of late there has been a growing tendency to define the position of consuls
by conventions. [The rapidity with which they have multiplied renders it
necessary to abandon their enumeration : they are all to be found in the
collections of De Martens. The typical example printed in Appendix v. to
the first edition of this book was the Convention between Austria and the
United States, De Martens, Nouv. Rec. Gén. 2° Sér. i. 44.] They differ as to
details, e.g. as to the way in which the evidence of consuls is to be procured
by the courts, or as to the contraventions of the territorial law for which
consuls can be arrested ; but in the main they are practically identical, and
represent, though with some enlargement, the privileges and functions with
which consuls are invested by custom ; and see antea, p. 203 n.
Consuls in states not within the pale of international law enjoy by treaty
exceptional privileges for the protection of their countrymen, without which
the position of the latter would be precarious. These privileges properly
find no place in works on international law, because they exist only by
special agreement with countries which are incompetent to set precedents in
international law. Information with respect to consuls in such states may
be found in Lawrence, Comment. roq-284, Phillimore, ii. §§ cclxxii-vii, Calvo;
§§ 501–I4, and the above-mentioned special works.
Y 2.
324 THE AGENTS OF A STATE, ETC.
PART II effects as far as possible, and, where the case is such that.
CHAP. IX punishment is deserved, to punish the offending agent. It is of
course open to a state to ratify contracts made in excess of the
owers of its agents, and it is also open to it to assume
responsibility for other acts done in excess of those powers. In
the latter case the responsibility does not commence from the
time of the ratification, but dates back to the act itself.
CHAIPTER X
TREATIES
IT follows from the position of a state as a moral being, at
liberty to be guided by the dictates of its own will, that it has
the power of contracting with another state to do any acts which
are not forbidden, or to refrain from any acts which are not
enjoined by the law which governs its international relations,
and this power being recognised by international law, contracts
made in virtue of it, when duly concluded, become legally
obligatory". *
They may be conveniently considered with reference to—
I. The antecedent conditions upon which their validity
depends.
2. Their forms.
3. Their interpretation.
4. Their effects.
5. Certain means of assuring their execution.
6. The conditions under which they cease to be obligatory.
7. Their renewal.
JPART II
CHAP. X .
Division
of the
subject.
* Contracts entered into between states and private individuals, or by the
organs of states in their individual capacity, are of course not subjects of
international law. Of this kind are—
I. Concordats, because the Pope signs them not as a secular prince, but
as head of the Catholic Church.
2. Treaties of which the object is to seat a dynasty or a prince upon a
throne, or to guarantee its possession, in so far as the agreement is directed
to the imposition of the dynasty or prince upon the state for reasons other
than strictly international interests, or to their protection against internal
revolution, because such contracts are in the interest of the individuals in
their personal capacity, and not in their capacity as representatives of the
will of the state. * -
3. Agreements with private individuals, e.g. for a loan.
4. Arrangements between different branches of reigning houses, or
between the reigning families of different states, with reference to questions
of succession and like matters.
326 - TREATIES
PART II
CHAP. X.
Antece-
dent con-
ditions of
the valid-
ity of a
treaty.
Capacity
to con-
tract.
Posses-
sion of
sufficient
authority
by the
persons
contract-
ing on be-
half of the
state.
The antecedent conditions of the validity of a treaty may be
stated as follows. The parties to it must be capable of con-
tracting ; the agents employed must be duly empowered to
contract on their behalf; the parties must be so situated that
the consent of both may be regarded as freely given; and the
objects of the agreement must be in conformity with law.
All states which are subject to international law are capable of
contracting, but they are not all capable of contracting for
whatever object they may wish. The possession of full in-
dependence is accompanied by full contracting power; but the
nature of the bond uniting members of a confederation, or
joining protected or subordinate states to a superior, implies
either that a part of the power of contract normally belonging
to a state has been surrendered, or else that it has never been
acquired. All contracts therefore are void which are entered
into by such states in excess of the powers retained by, or
conceded to, them under their existing relations with associated
or superior states".
The persons to whom the conduct of foreign relations is
delegated by the constitution of a state necessarily bind it by all
contracts into which they enter on its behalf”. There are also
persons who in virtue of being entrusted with the exercise of
certain special functions have a limited power of binding it by
contracts relating to matters within the sphere of their authority.
Thus officers in command of naval or military forces may conclude
agreements for certain purposes in time of war”. If such persons,
or negotiators accredited by the sovereign or the body exercising
the general treaty-making power in a state, exceed the limits of
the powers with which they are invested, the contracts made by
them are null; but it is incumbent upon their state, when any
* Bluntschli, § 403; Wattel, liv. ii. ch. xii. § 155; Calvo, $ 681.
* Comp. antea, p. 297.
* For the limits of the powers of military and naval commanders, see postea,
pt. iii. chap. viii. For certain cases in which local and other subordinate
authorities appear to have powers in some countries to make agreements for
particular purposes, see Bluntschli, $ 442.
TREATIES 327
act has been done by the other party in compliance with the PART II
agreement, or when any distinct advantage has been received CHAP. X
from it, either to restore things as far as possible to the condition
in which they previously were, or to give compensation, unless
the contract made was evidently in excess of the usual powers of
a person in the position of the negotiator, in which case the
foreign state, having prejudiced itself by its own rashness, may
be left to bear the consequences of its indiscretion'.
The freedom of consent, which in principle is held to be as Freedom
necessary to the validity of contracts between states as it is to of consent.
those between individuals, is understood to exist as between the
former under conditions which would not be thought compatible
with it where individuals are concerned. In international law
force and intimidation are permitted means of obtaining redress
for wrongs, and it is impossible to look upon permitted means as
vitiating the agreement, made in consequence of their use, by
which redress is provided for. Consent therefore is conceived to
be freely given in international contracts, notwithstanding that
it may have been obtained by force, so long as nothing more is
exacted than it may be supposed that a state would consent to
give, if it were willing to afford compensation for past wrongs
and security against the future commission of wrongful acts.
And as international law cannot measure what is due in a given
case, or what is necessary for the protection of a state which
declares itself to be in danger, it regards all compacts as valid,
notwithstanding the use of force or intimidation, which do not
destroy the independence of the state which has been obliged to
enter into them. When this point however is passed constraint
vitiates the agreement, because it cannot be supposed that a state
would voluntarily commit suicide by way of reparation or as
a measure of protection to another. The doctrine is of course
one which gives a legal sanction to an infinite number of
agreements one of the parties to each of which has no real
freedom of will; but it is obvious that unless a considerable
* Bluntschli, §§ 404-5 and 407 ; Heffter, $ 84.
328 TREATIES
degree of intimidation is allowed to be consistent with the
validity of contracts, few treaties made at the end of a war or to
avert one would be binding, and the conflicts of states would end
only with the subjugation of one of the combatants or the utter
exhaustion of both. -
Violence or intimidation used against the person of a sovereign,
of a commander, or of any negotiator invested with power to
bind his state, stand upon a different footing. There is no
necessary correspondence between the amount of constraint thus
put upon the individual, and the degree to which one state lies
at the mercy of the other, and, as in the case of Ferdinand VII
at Bayonne, concessions may be extorted which are wholly
unjustified by the general relations between the two countries.
Accordingly all contracts are void which are made under the
influence of personal fear. g
Freedom of consent does not exist where the consent is
determined by erroneous impressions produced through the fraud
of the other party to the contract. When this occurs there-
fore;—if, for example, in negotiations for a boundary treaty the
consent of one of the parties to the adoption of a particular line
is determined by the production of a forged map, the agreement
is not obligatory upon the deceived party".
The requirement that contracts shall be in conformity with
law invalidates, or at least renders voidable, all agreements
which are at variance with the fundamental principles of
international law and their undisputed applications, and with
the arbitrary usages which have acquired decisive authority.
Thus a treaty is not binding which has for its object the
subjugation or partition of a country, unless the existence of the
PART II
CIHAP. IX.
Effect of
personal
intimida-
tion.
()f fraud.
Conform-
ity with
law.
* Heffter, $ 85; Klüber, § 143; Bluntschli, §§ 408-9. De Martens (Précis,
§ 50) regards consent as remaining free whenever the contract is not palpably
unjust to the party, the freedom of whose consent is in question. The test of
justice or injustice is evidently not a practical one. Phillimore (ii. xlix) well
remarks that the obligation of international treaties conéluded under the
influence of intimidation is analogous to that of contracts entered into to
avoid or stop litigation, which are binding upon a party consenting only
from fear of the expense and uncertain issue of a law-suit.
TREATIES * 329
latter is wholly incompatible with the general security; and an
agreement for the assertion of proprietary rights over the open
ocean would be invalid, because the freedom of the open seas
from appropriation, though an arbitrary principle, is one that is
fully received into international law. It may be added that
contracts are also not binding which are at variance with such
principles, not immediately applicable to the relations of states,
as it is incumbent upon them as moral beings to respect. Thus
a compact for the establishment of a slave trade would be void,
because the personal freedom of human beings has been admitted
by modern civilised states as a right which they are bound to
respect and which they ought to uphold internationally.
Usage has not prescribed any necessary form of international
contract. A valid agreement is therefore concluded so soon as
one party has signified his intention to do or to refrain from
a given act, conditionally upon the acceptance of his declaration
of intention by the other party as constituting an engagement,
and so soon as such acceptance is clearly indicated. Between
the binding force of contracts which barely fulfil these re-
quirements, and of those which are couched in solemn form,
there is no difference. From the moment that consent on both
sides is clearly established, by whatever means it may be shown,
a treaty exists of which the obligatory force is complete".
Thus sometimes, when conventional signs have a thoroughly
understood meaning, a contract for certain limited purposes may
even be made by signal. The exhibition of white flags, for
example, by both of two hostile armies establishes a truce 4.
Generally of course international contracts are, as a matter of
prudence, consigned to writing, and take the form of a specific
agreement signed by both parties or by persons duly authorised
on their behalf. Agreements so made are sometimes called
treaties, and sometimes conventions. Essentially, there is no
* De Martens, Précis, $ 49 ; Klüber, § 143; Heffter, § 87; Phillimore, ii.
§ I ; Bluntschli, § 422.
* De Martens, Précis, $ 65; Bluntschli, 422.
PART II
CHAP. X
Forms of
contract.
330 TREATIES
difference between the two forms; but in practice the word
treaty is commonly used for the larger political or commercial
contracts, the term convention being applied to those of minor
importance or more specific object, such as agreements regulating
consular functions, making postal arrangements, or providing
for the suppression of the slave trade". Occasionally consent is
shown, and a treaty is consequently concluded, by edicts or
orders in some other shape given to the subjects of the
contracting powers”, or by a declaration and answer, or by
a declaration signed by the contracting parties or their agents”;
frequently it is shown by an exchange of diplomatic notes.
Except when an international contract is personally concluded
by a sovereign or other person exercising the sole treaty-making
power in a state, or when it is made in virtue of the power
incidental to an official station, and within the limits of that
power, tacit or express ratification by the supreme treaty-making
power of the state is necessary to its validity.
Tacit ratification takes place when an agreement, invalid
because made in excess of special powers, or incomplete from
want of express ratification, is wholly or partly carried out with
the knowledge and permission of the state which it purports to
bind; or when persons, such as ministers of state, who usually
act under the immediate orders or as the mouth-piece in foreign
affairs of the person or body possessing the treaty-making power,
PART II
CHAP. X.
Ratifica-
tion by
the su-
preme
power of
treaties
made by
its agents.
Tacit rati-
fication.
* During the negotiations for a treaty the discussion of each sitting and
the resolutions arrived at are set down in a document called a protocol.
When, as in important negotiations frequently occurs, it is wished that
the negotiators shall be bound to give effect to the views expressed by them
in the course of debate, the protocol is signed by them. The obligation
thus contracted however is practically only binding in honour. It is an
agreement which is conditioned upon the success of the negotiations as a
whole, and which consequently does not subsist if they fall through from
any cause.
* e. g. Treaty of Commerce of I785 between Austria and Russia by simul-
taneous edicts; De Martens, Rec. iv. 72 and 84.
* e. g. The Declaration of Paris of 1856 with respect to maritime law,
and that of St. Petersburg of 1868 forbidding the use of explosive balls
IIT. Wal’.
TREATIES 331
enter into obligations in notes or in any other way for which PART II
express ratification is not required by custom, without their “”
action being repudiated so soon as it becomes known to the
authority in fact capable of definitively binding the state".
Express ratification, in the absence of special agreement to Express
- ratifica-
the contrary, has become requisite by usage whenever a treaty t.
is concluded by negotiators accredited for the purpose. The
older writers upon international law held indeed that treaties,
like contracts made between individuals through duly authorised
agents, are binding within the limits of the powers openly
given by the parties negotiating to their representatives, and
that consequently where these powers are full the state is bound
by whatever agreement may be made in its behalf”. But it
was always seen by statesmen that the analogy is little more
than nominal between contracts made by an agent for an
individual and treaties dealing with the complex and momentous
interests of a state, and that it was impossible to run the risk
of the injury which might be brought upon a nation through
the mistake or negligence of a plenipotentiary. It accordingly
was a custom, which was recognised by Bynkershoek as forming
an established usage in the early part of the eighteenth century,
to look upon ratification by the sovereign as requisite to give
validity to treaties concluded by a plenipotentiary; so that full
powers were read as giving a general power of negotiating
subject to such instructions as might be received from time to
time, and of concluding agreements subject to the ultimate
decision of the sovereign ". Later writers may declare that by
* Wheaton, Elem. pt. iii. ch. ii. § 4 ; Halleck, i. 230. The writers who say
that ratification cannot be inferred from silence are evidently thinking of
conventions concluded in excess of specific powers, and not of agreements
which are practically within the powers of the persons making them, but
which are not technically binding from the moment of their conclusion,
owing to the signataries not being the persons in whom the treaty-making
power of the state is theoretićally lodged by constitutional law.
* This opinion appears still to meet with a certain amount of support ; see
Phillimore (ii. § lii), who relies on Klüber (§ 142). Heffter thinks that
a state is morally bound in such cases (§ 87).
* Quaest. Jur. Pub. lib. ii. C. vii.
332 r TREATIES
PART II the law of nature the acts of an agent bind his state so long
** as he has not exceeded his public commission, but they are
obliged to add that the necessity of ratification is recognised by
the positive law of nations".
Ratifica- The necessity of ratification by the state may then be taken
*:::::::: as practically undisputed, and the reason for the requirement
º is one which prevents it from being given as a mere formality. -
SOIlS. Ratification may be withheld; and perhaps in strict law it is
always open to a state to refuse it *. Morally however, if not
legally, it cannot be arbitrarily withheld. The right of refusal
is reserved, not simply to give an opportunity of reconsideration,
but as a protection to the state against betrayal into unfit
agreements. Its exercise therefore must be prompted by solid
reasons. It is agreed, for example, that a state is not bound if
a plenipotentiary exceeds his instructions; and a right of refusal
must also be held to exist if the new treaty conflicts with anterior
obligations, if it is found to be incompatible with the con-
stitutional law of one of the contracting states, if a sudden
change of circumstances occurs at the moment of signing it,
by which its power to accomplish its object is nullified or
seriously impaired, or if an error is discovered with respect to
facts, a correct knowledge of which would have prevented the
acceptance of the treaty in its actual form *. M. Guizot went
further when defending the French government for refusing, in
consequence of the opposition of the Chambers, to ratify a treaty
made in 1841 for the suppression of the slave trade. ‘Ratification,”
he maintained, ‘is a real and substantive right; no treaty is
complete without being ratified; and if, between the conclusion
and the ratification, important facts come into existence—new
and evident facts—which change the relations of the two powers
and the circumstances amidst which the treaty is concluded,
* Vattel, liv. ii. ch. xii. § 156; De Martens, Précis, $ 48.
* Bluntschli at least adopts this view expressly (§ 420), and most writers
treat the limitations upon the right of refusal as questions rather of morals
than of law.
* Wheaton, Elem. pt. iii. ch. ii. § 5; Calvo, $ 697.
TREATIES - 333
a full right of refusal exists.” Wide as is the discretion which PART II
the language of M. Guizot gives to a state, it probably cor- * *
responds better with the necessities of the case than any doctrine
which, in affecting to indicate the occasions, or the sort of
occasions, upon which ratification may be refused, tacitly excludes
cases which are not analogous to those mentioned. With the
complicated relations of modern states the reasons which may
justify a refusal to ratify a treaty are too likely to be new for it
to be safe to attempt to enumerate them. A state must be left
to exercise its discretion, subject to the restraints created by its
own sense of honour, and the risk to which it may expose itself
by a wanton refusal.
Exceptions to the rule that ratification ought not to be Excep-
© gº © © tions.
refused, except for solid reasons coming into existence or
discovered after the signature of the treaty, occur when by the
constitution of a state it is essential to the validity of a treaty
concluded by plenipotentiaries duly instructed by the appropriate
persons that it shall be sanctioned by a body, such as the Senate
in the United States, which is not necessarily even cognizant of
the instructions given to the negotiators, and when, the control
of expenditure or the legislative power not being in the hands of
the person or persons invested with the treaty-making power,
the treaty includes financial clauses or requires legislative
changes. In such cases, since the different agents of a state
bind it only within the limits of their constitutional competence,
and since it is the business of the state with which a contract is
made to take reasonable care to inform itself as to the competence
of those with whom it negotiates, it is an implied condition of
negotiations that an absolute right of rejecting a treaty is
reserved to the body the sanction of which is needed or in which
financial or legislative power resides, and that the discretion of
this body is not confined within the bounds which are morally
obligatory under other forms of constitution'. Reserva-
It is now the practice to make an express reservation of the tº: Tà-
Caul OIl.
* Wheaton, Elem. pt. iii. ch, ii. § 6; Calvo, §§ 707–8; Bluntschli, § 4IS.
334 TREATIES
PART II right of ratification either in the full powers given to the
*** negotiators or in the treaty itself. A reservation of this kind is
however of no legal value, because it does not enlarge the rights
which a state already possesses in law.
Effect of An exception to the requirement that a treaty shall be
#.ºon ratified by the contracting states is said to occur when, as was
* the case with the Convention of July 1840 between Austria,
effect Great Britain, Prussia, Russia, and Turkey, for the pacification
without tº a tº Q tº º
ratifical of the Levant, it is expressly provided that the preliminary
tion. engagements shall take effect immediately without waiting for
an interchange of ratifications". It is difficult to see in what
way a treaty of this kind can constitute an exception. The
plenipotentiaries who sign it, unless they act under a previous
enabling agreement between their states, have no more power
to debar their respective governments from the exercise of their
legal rights than they have to bind them finally for any other
purpose. The treaty is properly a provisional one, which, if
carried into effect, receives a tacit ratification by the execution
of its provisions.
Comple- Ratification is considered to be complete only when instru-
tion of ra- tº º g © o a
tification ments containing the ratifications of the respective parties have
been exchanged. So soon as this formality has been accom-
plished, and not until then, the treaty comes into definite
operation. But, in the absence of express agreement, effects
which are capable of being retroactive, such as the imposition
of national character upon ceded territory, are so to the date of
the original signature of the treaty, instead of commencing from
the time of the exchange of ratifications; and stipulations, the
execution of which during the interval between signature and
ratification has been expressly provided for, must be carried out
subject to a claim which the party burdened by them may make
to be placed in his original position, or to receive compensation,
if the treaty be not ratified by the other contracting state;
because if the stipulations are not carried out, their neglect will
* Wheaton, Elem. pt. iii. ch. ii. § 5 ; Twiss, i. § 233.
TREATIES 335
be converted into an infraction of the treaty so soon as its PART II
e tº e CHAP. X
ratification is effected 1.
Ratification is given by written instruments, of identical
form, exchanged between the contracting parties, and signed
by the persons invested with the supreme treaty-making power,
or where that power resides in a body of persons, by the agent
appropriate for the purpose. In strictness the provisions of the
treaty should be textually recited; but it is sufficient, and is
perhaps as usual, to recite only the title, the preamble, the date
and the names of the plenipotentiaries, the essential requirement
in a ratification being only that it shall evidently refer to the
agreement as expressed in the text of the treaty ".
Jurists are generally agreed in laying down certain rules of Treaties to
* * & ſº tº º * b & t tº-
construction and interpretation as being applicable when dis- |..."
agreement takes place between the parties to a treaty as to the
meaning or intention of its stipulations. Some of these rules are
either unsafe in their application or of doubtful applicability;
and rules tainted by any shade of doubt, from whatever source it
may be derived, are unfit for use in international controversy.
Those against which no objection can be urged, and which are
probably sufficient for all purposes, may be stated as follows:—
I. When the language of a treaty, taken in the ordinary 1. Accord.
© . . ë ... ing to
meaning of the words, yields a plain and reasonable sense, it tº plain
must be taken as intended to be read in that sense, subject to *
the qualifications, that any words which may have a customary
meaning in treaties, differing from their common signification,
* Bluntschli, § 421 ; Heffter, § 87. Occasionally exceptions are made by
agreement to the practice of making the effect of a treaty date from the time
of the signature. The Treaty of Paris in 1856 dated from the moment of
ratification.
* Some countries, especially the United States, have occasionally presented
a ratification clogged with a condition or embodying a modification of the
treaty agreed upon. Obviously in such cases it is not a ratification, but a
new treaty, that is presented for acceptance. The word ratification is simply
a misnomer, under which a refusal of ratification is disguised.
It is equally obvious that a new contract is not constituted by a ratifica-
tion which contains an interpretation clause, agreed upon between the two
parties, for the purpose of removing an obscurity in the original text.
336 TREATIES
PART II
CHAP. X.
Difference
between
England
and Hol-
land in
I756.
must be understood to have that meaning, and that a sense
cannot be adopted which leads to an absurdity, or to incompatibility
of the contract with an accepted fundamental principle of law.
A celebrated case, illustrating the operation of this rule, is
that of the difference between England and Holland in 1756 as
to the meaning of the treaties of guarantee of 1678, 1709, 1713,
and 1717, the last-mentioned of which was renewed by the
Quadruple Alliance of 1718 and by the Treaty of Aix la Chapelle
in 1748. By these treaties England and Holland guaranteed to
each other all their rights and possessions in Europe against ‘ all
kings, princes, republics and states,’ and specific assistance was
stipulated if either should “be attacked or molested by hostile
act, or open war, or in any other manner disturbed in the
possession of its states, territories, rights, immunities, and
freedom of commerce.” On assistance being demanded by
England from Holland, the latter power, which was unwilling
to give it, argued that the guarantee applied only to cases in
which the state in want of help was in the first instance the
attacked and not the attacking party in the war, and alleged
that England was in fact the aggressor. It was also argued
that even if France were the aggressor in Europe, her aggressions
there were only incidents of a state of war which had previously
arisen in America, to hostilities on which continent the treaties
did not apply. In taking up these positions the Dutch
government assumed that the guarantee which it had given
would be incompatible with international law if it were understood
as covering instances of attack upon the territories of the
guaranteed powers arising out of an aggression made by the
latter; and it consequently held that the language of the
treaties into which it had entered must be construed in some
other than its plain sense. The assumption made by Holland
was at variance with one of the principles upon which international
law rests, and necessarily rests. As has been already said, the
causes of war are generally too complex, and it is usually too
open to argument whether an attack is properly to be considered
TREATIES 337
aggressive or defensive, for the question whether a war is just PART II
or unjust to be subjected to legal decision. Accordingly both “ X.
parties in all wars occupy an identical position in the eye of the
law. The assumption of the Dutch being indefensible, all
justification of their conduct fell to the ground; for Mr. Jenkinson
in his ‘Discourse on the Conduct of the Government of Great
Britain in respect to Neutral Nations,” had no difficulty in
showing that the bare words of the treaties, if uncontrolled by
any principle of international law, could only be reasonably
understood to refer to attacks made at any time in the course of
a war, the expressions used being perfectly general".
A later case, in which it was necessary to reaffirm the Clayton-
rudimentary principle that effect is to be given to the plain Fº
meaning of the language of a treaty when a plain meaning
exists, is that of the Clayton-Bulwer Treaty of 1850. By that
treaty the government of Great Britain and the United States
declared ‘that neither one nor the other will ever . . . occupy, or
fortify, or colonise, or assume or exercise any dominion over
Nicaragua, Costa Rica, the Mosquito Coast or any part of
Central America, nor will either make use of any protection
which either affords, or may afford, or any alliance which either
has, or may have, to or with any state or people for the purpose
of erecting or maintaining any such fortifications, or of occupying,
fortifying or colonising Nicaragua, Costa Rica, the Mosquito
Coast, or any part of Central America, or of assuming or
exercising dominion over the same.” Under the terms of this
engagement the United States called upon England to abandon
a protectorate over the Mosquito Indians, which she had
exercised previously to the date of the treaty, urging that the
Indians being a savage race a ‘protectorate must from the
nature of things be an absolute submission of these Indians to
the British government, as in fact it has ever been.” Lord
Clarendon met the demand by referring to the principle that
* Jenkinson's Treaties, Discourse on the Conduct of the Government of
Great Britain in respect to Neutral Nations.
HALL Z
338 - TREATIES
PART II
CHAP. X
2. When
terms
have a
different
legal
meaning
in dif-
ferent
states,
according
to their
meaning
in the
state to
which
they
apply.
‘the true construction of a treaty must be deduced from the
literal meaning of the words employed in its framing, and
pointed out that the “possibility’ of protection is clearly
recognised, so that the intention of the parties to the arrangement
must be taken to be ‘not to prohibit or abolish, but to limit and
restrict such protectorate.” The whole of the words in fact
limiting the use which could be made of a protectorate must
have been excised before the interpretation contended for by the
American government could become matter for argument *.
2. When terms used in a treaty have a different legal sense
within the two contracting states, they are to be understood in
the sense which is proper to them within the state to which the
provision containing them applies; if the provision applies to
both states the terms of double meaning are to be understood in
the sense proper within them respectively. Thus by the treaty
of 1866 it was stipulated between Austria and Italy, that
inhabitants of the provinces ceded by the former power should
enjoy the right of withdrawing with their property into Austrian
territory during a year from the date of the exchange of
ratifications. In Austria, the word inhabitant signifies such
persons only as are domiciled according to Austrian law; in
3. When ,
a plain
sense is
wanting,
according
to their
Spirit, *: e * tº
, shown by the context of the incomplete, improper, ambiguous, or
Italy it is applied to every one living in a commune and
registered as resident. The language of the treaty therefore had
not an identical meaning in the two countries. As the provision
referred to territory which was Austrian at the moment of the
signature of the treaty, the term inhabitant was construed in
conformity with Austrian law”. -
3. When the words of a treaty fail to yield a plain and
reasonable sense they should be interpreted in such one of the
following ways as may be appropriate:—
a. By recourse to the general sense and spirit of the treaty as
§ 4. g. * g
obscure passages, or by the provisions of the instrument as
a whole. This is so far an exclusive, or rather a controlling
* De Martens, Rec. Gén. ii. 219–39. * Fiore, § 1121.
TREATIES 339
method, that if the result afforded by it is incompatible with that PART II
obtained by any other means except proof of the intention of the CHAP. X.
parties, such other ſmeans must necessarily be discarded; there
being so strong a presumption that the provisions of a treaty are
intended to be harmonious, that nothing short of clear proof of
intention can justify any interpretation of a single provision ſº-
which brings it into collision with the undoubted intention of the 2
remainder. - ****
£8. By taking a reasonable instead of the literal sense of words or their
when the two senses do not agree. It was stipulated, for rºle
example, by the Treaty of Utrecht that the port and fortifications
of Dunkirk should be destroyed, ‘nec dicta munimenta, portus,
moles, aut aggeres, denuo unquam reficiantur.' It was evident
that England required the destruction of Dunkirk not because of
any feeling with regard to the particular port and fortification
in themselves, but because her interests were affected by the
existence of a defensible place of naval armament immediately
opposite the Thames; the particular form of words chosen was
obviously adopted only because an attempt to avoid the obligations
of the treaty by the creation of a new place in a praetically
identical spot was not anticipated by the English negotiators.
When therefore France, while in the act of destroying Dunkirk
in obedience to her engagements, began forming a larger port,
a league off, at Mardyck, England objected to the construction
put upon the language of the treaty as being absurd. The
French government in the end recognised that the position
which it had taken up was untenable, and the works were
discontinued". -
4. Whenever, or in so far as, a state does not contract itself 4. So as to
out of its fundamental legal rights by express language a treaty .."*
must be so construed as to give effect to those rights. Thus, for ...”
l
example, no treaty can be taken to restrict by implication the . Of
exercise of rights of sovereignty or property or self-preservation. a state.
Any restriction of such rights must be effected in a clear and
* Phillimore, ii. § lxxiii.
Z 2.
340 TREATIES
PART II
CHA.P. X
distinct manner. A case illustrative of this rule is afforded by
a recent dispute between Great Britain and the United States.
By the Treaty of Washington of 1871, it was provided that the
inhabitants of the United States should have liberty, in common
with the subjects of Great Britain, to take fish upon the Atlantic
coasts of British North America. Subsequently to the conclusion
of the treaty, the Legislature of Newfoundland passed laws with
the object of preserving the fish off the shores of the colony;
a close time was instituted, a minimum size of mesh was
prescribed for nets, and a certain mode of using the seine was
prohibited. These regulations were disregarded by fishermen of
the United States; disturbances occurred at Fortune Bay between
them and the colonial fishermen; and the matter became a subject
of diplomatic correspondence in the course of which the scope of
the treaty came under discussion. It was argued by the United
States that the fishery rights conceded by the treaty were absolute,
and were to be ‘exercised wholly free from the restraints and
regulations of the Statutes of Newfoundland now set up as
authority over our fishermen, and from any other regulations of
fishing now in force or that may hereafter be enacted by that
government; ' in other words it was contended that the simple
grant to foreign subjects of the right to enjoy certain national
property in common with the subjects of the state carries with it
by implication an entire surrender, in so far as the property in
question is concerned, of one of the highest rights of sovereignty,
viz. the right of legislation. That the American government
should have put forward the claim is scarcely intelligible. There
can be no question that no more could be demanded than that
American citizens should not be subjected to laws or regulations,
either affecting them alone, or enacted for the purpose of putting
them at a disadvantage 1. -
5. Subject to the foregoing rule every right or obligation
which is necessarily attendant upon something clearly ascertained
5. So as to
give what
is neces-
sary to the
* De Martens, Nouv. Rec. Gén. xx. 708; Parl. Papers, U. S. No. 3, 1878.
Cf. antea, p. 278. *
TREATIES 341
to be agreed to in the treaty, including a right to whatever may PART II
be necessary to the enjoyment of things granted by it, is cº X
understood to be tacitly given or imposed by the gift or ment of
imposition of that upon which it is attendant'. º
When a conflict occurs between different provisions of a treaty º
or between different treaties, the provision or treaty to which º:
preference is to be given is determined by the following rules:— iºns
I. A generally or specifically imperative provision takes pre- ments.
cedence of a general permission. Thus if a treaty concedes
a right of fishing over certain territorial waters and at the same
time prohibits the persons to whom permission is given from
landing to dry or cure the fish which may be caught, the
prohibition outweighs the permission, notwithstanding that the
power of curing and drying on the spot may be found to be so
essential to the enjoyment of the fishing that the right to fish is
nullified by its absence. -
2. On the other hand, a special permission takes precedence of
a general imperative provision; that is to say, if a treaty contains
an agreement couched in general terms, and also an agreement
with regard to a particular matter which if allowed to opérate
will act as an exception from the former agreement, effect is
given to the exception.
3. If a penalty for non-observance is attached to one of two
prohibitory stipulations and not to the other, or if a more
severe penalty is attached to one than the other, preference
is given to that which is the better guarded. If a penalty is
attached to neither, the stipulation has precedence which has
the more precision in its command.
* On the whole subject of the interpretation of treaties see Grotius, De
Jure Belli et Pacis, lib. ii. cap. xvi; Vattel, liv. ii. ch. xvii.; Heffter, § 95;
Phillimore, ii. ch. viii; Calvo, $$ 713–22 ; Fiore, $$ II 17–31. 4.
Besides the above rules of interpretation many others are usually given,
which scarcely seem to be of much practical use in international law.
They are mainly rules of interpretation of Roman law, which appear to
have been imported into international law without a very clear conception
of the manner in which they can be supposed to be applicable. There is no
place for the refinements of the courts in the rough jurisprudence of nations.
342 TREATIES
PART II
CHAP. X
4. When stipulations are of identical nature, that is to say
when both are general and prohibitory or special and im-
perative, &c., and no priority can be ascribed to either upon
the grounds mentioned in the last rule, that which is the more
important must be observed by the party obliged, unless the
promisee, who is at liberty to choose that the less important
stipulation shall be performed, exercises his power of choice
in that direction. - º
5. When two treaties made between the same states at
different dates conflict, the latter governs, it being supposed
to be in substitution for the earlier contract. It is hardly an
exception from this rule that when of two conflicting treaties
the later is made by an inferior though competent authority,
the earlier is preferred. In the year 1800, for example, Piacenza
was surrendered with its garrison to the French by the Austrian
commandant, who from the nature of his command had authority
to conclude an agreement of the kind made. The surrender
took place at three in the afternoon, and at eight in the morning
of the same day a convention had been concluded between generals
Berthier and Melas, under which the whole Austrian forces were
to retire behind the Mincio, giving over Piacenza to the French,
but withdrawing the garrison. It was claimed and at once
admitted that the latter convention ought to be carried out
to the exclusion of the former". - -
6. When two treaties conflict which are made with different
states at different times, the earlier governs, it being of course
impossible to derogate from an engagement made with a
particular person by a subsequent agreement with another
person entered into without his consent. Hence until all the
parties to a treaty have consented to forego their rights under
it, no subsequent treaty incompatible with it can be valid;
any such treaty is null at least to the extent of its direct
incompatibility; and if the incompatible portions are not
* Corresp. de Nap. i. vi. 365.
TREATIES 343
separable from the remainder, it is null in its entirety". Thus PART II
© & d CHAP. X
when Russia, in 1878, concluded with Turkey the Treaty of
San Stefano, “every material stipulation of which involved a
departure from the treaty of 1856, that is to say, from a treaty
to which not only Russia and Turkey, but England, France,
Austria, Prussia and Sardinia were parties, the later treaty was
void as against the last-mentioned powers, or the states legally
representing them”. - . . .
A kind of treaty which demands a few words of separate Treaties of
g tº o tº 3 & g & guarantee.
notice on account of its special characteristics is a treaty of
guarantee. Treaties of guarantee are agreements through which
powers engage, either by an independent treaty to maintain
a given state of things, or by a treaty or provisions accessory to
a treaty, to secure the stipulations of the latter from infraction
by the use of such means as may be specified or required against
a country acting adversely to such stipulations.
Guarantees may either be mutual, and consist in the assurance
to one party of something for its benefit in consideration of the
assurance by it to the other of something else to the advantage
of the latter, as in the Treaty of Tilsit, by which France and
Russia guaranteed to each other the integrity of their respective
possessions; or they may be undertaken by one or more powers
for the benefit of a third as in the treaty of the 15th April,
1856, by which England, Austria, and France guaranteed
* Grotius, lib. ii. cap. xvi. § 29 ; Vattel, liv. ii. ch. xvii. §§ 312–22 ; Philli-
more, ii. ch. ix; Calvo, $$ 720–3.
M. Bluntschli (§ 414) says that “les traités de ce genre ne sont pas nuls
d’une manière absolue, mais seulement d’une manière relative. Ils con-
servent toute leur efficacité lorsque l’état dont les droits antérieurs sont
lésés nes'oppose pas aux modifications amenées par le traité.” It is difficult
to understand this doctrine. Two incompatibles cannot co-exist. One or
other of the treaties, in so far as they are incompatible with one another,
must be destitute of binding force. Either the second treaty has abrogated
the first or the first alone is operative. It is granted that the second treaty
has not abrogated the first ; it therefore has no efficacity to keep. It can only
acquire validity when all the parties with whom a contract was made in the
first treaty give their consent to the abrogation of the latter, and it must
date as a contract from that moment.
* De Martens, Nouv. Rec. Gén. 2° Sér. iii. 246, 259.
344 TREATIES
PART II ‘jointly and severally the independence and the integrity of the
CHAP. X
Ottoman Empire, recorded in the treaty concluded at Paris on
the 30th March; * or finally they may be a form of assuring the
observance of an arrangement entered into for the general benefit
of the contracting parties, as in the treaties of 1831 and 1839,
by which Belgium was constituted an independent and neutral
state in the common interests of the contracting powers, and
while placed under an obligation to maintain neutrality received
a guarantee that it should be enabled to do so; or in the treaty
of November, 1855, by which Sweden and Norway engaged not
to cede or exchange with Russia, nor to permit the latter to
occupy any part of the territory belonging to the crowns of
Sweden and Norway, nor to concede any right of pasturage or
fishery or other rights of any nature whatsoever, in consideration
of a guarantee by England and France of the Swedish and
Norwegian territory". In the two former cases a guarantor can
only intervene on the demand of the party or, where more than
one is concerned, of one of the parties interested, because the
state in favour of which the guarantee has been given is the best
judge of its own interests, and as the guarantee purports to have
been given solely or at least primarily for its benefit, no
advantage which may happen to accrue to the guaranteeing state
from the arrangements to the preservation of which the guarantee
is directed can invest the latter power with a right to enforce
them independently. In the last-mentioned case, on the other
hand, any guarantor is at liberty to take the initiative, every
guaranteeing state being at the same time a party primarily
benefited.
[The treaty of 1902 between Great Britain and Japan, though
clearly a Treaty of Guarantee, is too complex in its stipulations to
fall strictly within any of the above categories. Under it the
contracting parties, while mutually recognising the independence
of China and Corea, declared that in view of their special
* De Martens, Rec. viii. 642; Heitslet, Map of Europe by Treaty, 863, 870,
981, 983, I24I, I28I. - -
TREATIES 345
interests in these countries, it should be admissible for either of PART II
them to take such measures as might be indispensable to * *
safeguard those interests from the aggressive action of any other
powers or from internal disturbances necessitating intervention
for the protection of life and property. It was further agreed
that if either Great Britain or Japan should become involved in
war with another power in defence of their respective interests
as above described, the other contracting party should maintain
strict neutrality and use its best efforts to prevent other powers
from joining in hostilities against its ally. Should, however, any
other power or powers take part in the conflict, then it was
agreed that the other contracting party should come to the
assistance of its ally, conduct the war in common, and make
peace in mutual agreement with it".]
When a guarantee is given by a single state or by two or
more states severally, or jointly and severally, it must be acted
upon at the demand of the country benefited unless such action
would constitute a clear infraction of the universally recognised
principles and rules of international law, unless it would be
inconsistent with an engagement previously entered into with
another power, or unless the circumstances giving rise to the call
upon the guaranteeing power are of the nature of internal
political changes;–a guarantee given to a particular dynasty,
for example, is good only against external foes and not against
the effects of revolution at home, unless the latter object be
specifically mentioned, and then only subject to the limitations
before mentioned. It need scarcely be added that the fulfilment
of the guarantee must be possible”.
When a guarantee is given collectively by several powers the Eßet ºf a
... collective
extent of their obligation is not quite so certain. M. Bluntschli guarantee.
* [Annual Register Igo2, pp. 58, 59.]
* Vattel, liv. ii. ch. xvi. §§ 235—9; Klüber, $$ I57-9; Twiss, i. § 231 ;
Phillimore, ii. ch. vii; Bluntschli, SS 430–41. Sir R. Phillimore thinks that
a guarantee “contra quoscunque’ obliges to assistance against rebellion.
M. Bluntschli considers that a guarantee falls to the ground when it is
irreconcileable with ‘les progrès du droit international.”
346 TREATIES
PART II lays down that they are bound, upon being called upon to act in
CHAP. X.
the manner contemplated by the guarantee, to examine the affair
in common for the purpose of seeing whether a case for
intervention has arisen, and to agree if possible upon a common
conclusion and a common action; but that if no agreement can
be arrived at, each guarantor is not only authorised but bound to
act separately according to his view of the requirements of the
case. A very different doctrine was put forward by Lord Derby
in 1867 when explaining in the House of Commons the opinion
held by the English government as to the nature of the obliga-
tions undertaken by it in signing the Luxemburg convention
of that year. According to him a collective guarantee means,
‘ that in the event of a violation of neutrality all the powers who
have signed the treaty may be called upon for their collective
action. No one of those powers is liable to be called upon to act
singly or separately. It is a case, so to speak, of limited liability.
We are bound in honour—you cannot place a legal construction
upon it—to see in concert with others that these arrangements
are maintained. But if the other powers join with us it is
certain that there will be no violation of neutrality. If they,
situated exactly as we are, decline to join, we are not bound
single-handed to make up the deficiency. Such a guarantee has
obviously rather the character of a moral sanction to the
arrangements which it defends than that of a contingent liability
to make war. It would no doubt give a right to make war, but
would not necessarily impose the obligation ".” It is in favour
of the latter construction that a collective guarantee must be
supposed to be something different from a several, or a joint and
several, guarantee, and that if it imposes a duty of separate
intervention in the last resort it is not very evident what
distinction can be drawn between them. On the other hand,
a guarantee is meaningless if it does no more than provide for
common action under circumstances in which the guaranteeing
powers would act together apart from treaty, or for a right of
* Bluntschli, $ 44o ; Hansard, 3rd Ser, clxxxvii. 1922.
TREATIES * 347
single action under circumstances which would provoke such PART II
action as a matter of policy. The only objects of a guarantee CHAP, X
are to secure that action shall be taken under circumstances in
which a state might not move for its own sake, and to prevent
other states from disregarding the arrangement, or attacking the
territory guaranteed, by holding up to them the certainty that
the force of the guaranteeing powers will be employed to check
them. On the construction given to a collective guarantee by
Lord Derby neither end would be attained. Whichever view be
adopted the word collective is inconvenient. If it imposes
a duty, the extent of the duty is not at least clearly defined. If
it can be held to prevent a duty from being imposed, it would be
well to abstain from couching agreements in terms which may
seriously mislead some of the parties to them, or to avoid
making agreements at all which some of the contracting parties
may intend from the beginning to be illusory.
The effect of an international contract is primarily to bind the Effects of
parties to it by its provisions, either for such time as is fixed, if º:
it be made for a definite period, or until its objects are satisfied, the con-
or indefinitely if its object be the infinite repetition of certain tº:
acts, or the setting up once for all of a permanent state of
things. In all cases the continuance of the obligation is
dependent upon conditions which will be mentioned later.
In a secondary manner the due conclusion of an international 2. upon
contract also affects third parties. A state of things has come º
into existence which, having been legally created in pursuance
of the fundamental rights of states, other countries are bound to
respect, unless its legal character is destroyed by the nature of
its objects, or unless it is evidently directed, whether otherwise
legally or not, against the safety of a third state, and except in
so far as it is inconsistent with the rights of states at war with
one another. So long therefore as a contract is in accordance
with law, or consistent with the safety of states not parties to it,
the latter must not prevent or hinder the contracting parties
from carrying it out. -
348 TREATIES
PART II
CHAP, X
Modes of
assuring
execution
of treaties.
Extinc-
tion of
treaties.
It was formerly the habit to endeavour to increase the
security for the observance of treaties, offered by the pledged
word of the signataries, by various means, which have now
almost wholly fallen into disuse. Three only have at all
been employed in relatively modern times, viz. the taking of
hostages, the occupation of territory, and guarantee by a third
power.
The Treaty of Aix la Chapelle in 1748 was the last occasion
upon which hostages were given to secure the performance of
any agreement other than a military convention. Anything
which requires to be said about hostages may therefore be
postponed until conventions of the latter kind come under
notice. -
A guarantee by a third power is only one form of the treaties
of guarantee, which have already been noticed.
Occupation of territory was formerly often used as a mode
of taking security for the payment of debts for which the
territory occupied was hypothecated. In such cases the territory
occupied becomes the property of the creditor if a term fixed for
repayment of the debt passes without the claim being satisfied,
or if possession, as in the case of Orkney and Shetland, which
were mortgaged by Denmark to Scotland in 1469, has been
retained long enough for a title by prescription to be set up. In
recent times occupation of territory by way of security for the
payment of a debt has taken place only when the victor in a
war has retained possession of part of his enemy’s country until
payment of the sum levied for war expenses, and occupation to
compel the fulfilment of stipulations of other kinds has also
occurred only as part of the arrangements consequent upon the
conclusion of peace".
International contracts are extinguished when their objects
are satisfied or when a state of things arises through which
they become void, and they temporarily or definitively cease to
Klüber, 55 155–6; Phillimore, ii. §§ liv-v ; Bluntschli, Š 428; Calvo,
§ 702. - -
TREATIES 349
be obligatory when a state of things arises through which they PART II
are suspended or become voidable *. CHAP, X
The object of a treaty is satisfied if, as sometimes happens ãº.
with treaties of commerce, it has been concluded for a fixed time, jects are
so soon as the period which has been fixed has elapsed, or if it satisfied.
has been concluded irrespectively of time, so soon as the acts
stipulated in it have been performed. A treaty, for example, by
which one state engages to pay another a sum of money, as
compensation for losses endured by the subjects of the latter
through illegal conduct of the former, is satisfied on payment
being made; and an alliance between two states for the purpose
of imposing specified terms upon a third is satisfied when a
treaty has been concluded by which those terms are imposed.
It may at first seem to be an exception to this rule, though
it is not so in reality, that a treaty is not extinguished when the
acts contemplated by it, though done once for all, leave legal
obligations behind them. If a treaty stipulates for the cession
of territory or the recognition of a new state, the act of cession
or of recognition is no doubt complete in itself; but the true
object of the treaty is to set up a permanent state of things, and
not barely to secure the performance of the act which forms the
starting-point of that state; the ceding or recognising country
therefore remains under an obligation until the treaty has
become void or voidable in one of such of the ways to be
indicated presently as may be applicable to it”.
A treaty becomes void— -
I. By the mutual consent of the parties, shown either tacitly a. when
by the conclusion of a new treaty between them which is º
inconsistent with that already existing, or expressly by declara-Void.
tion of its nullity 8.
l For the effect of war in extinguishing and suspending treaties, see postea,
pt. iii., ch. i. -
* Calvo, $ 643. Most writers content themselves with saying that treaties
of the 'above kind are perpetual, without mentioning any reason for their
being $o.
* The former mode of showing mutual consent is of course frequent ; of
350 TREATIES
2. By express renunciation by one of the parties of advantages
taken under it.
3. By denunciation; when the right of denunciation has been
expressly reserved; or when the treaty, as in the case of treaties
of alliance or commerce, postal conventions and the like, is
voidable at the will of one of the parties, the nature of its
contents being such that it is evidently not intended to set up
a permanent state of things. e -
4. By execution having become impossible, as, for example, if
a state is bound by an offensive and defensive alliance with both
of two states which engage in hostilities with one another.
5. When an express condition upon which the continuance of
the obligation of the treaty is made to depend ceases to exist.
6. By incompatibility with the general obligations of states,
when a change has taken place in undisputed law or in views
universally held with respect to morals. If, for example, it were
found that, by successive renewals of treaties and incorporations
of treaties in others subsequently made, an agreement to allow
a state certain privileges in importing slaves into the territory of
the other contracting power was still subsisting, it might fairly
be treated as void, and as not protecting subjects of the former
state who might endeavour to introduce slaves in accordance with
its terms ".
Up to this point it has not been difficult to state the conditions
under which treaties cease to be binding. They resume themselves
into impossibility of execution, consent of the parties, either pre-
sent or anticipatory in view of foreseen contingencies, satisfaction
of the object of the compact, and incompatibility with undisputed
law and morals. With regard to such causes of nullity there can
be no room for disagreement, and little for the exercise of caution.
It is less easy to lay down precisely the conditions under which
the latter the Treaty of Paris of 1814 is an example, the treaties of Presburg
and Vienna between France and Austria, and those of Basle and Tilsit
between France and Prussia, having been declared by it to be null. Hertslet,
PART II
CHAP. IX
3. When
they
become
voidable.
Map of Europe by Treaty, 22 and 25.
* Klüber, Ś 164; Bluntschli, SS 450 and 454 ; Calvo, $ 726.
TREATIES 351
a treaty becomes voidable; that is to say, under which one of
the contracting parties acquires the right of declaring itself freed
from the obligation under which it has placed itself. A clear
principle is ready to hand, which, if honestly applied, would
generally furnish a sufficient test of the existence or non-existence
of the right in a particular case; but modern writers, it would
seem, are more struck by the impossibility of looking at inter-
national contracts as perpetually binding, than by the necessity
of insisting upon that good faith between states without which
the world has only before it the alternatives of armed suspense
or open war, and they too often lay down canons of such perilous
looseness, that if their doctrine is to be accepted an unscrupulous
state need never be in want of a plausible excuse for repudiating
an inconvenient obligation. And this unfortunately occurs at
a time when the growing laxity which is apparent in the conduct
of many governments and the curious tolerance with which gross
violations of faith are regarded by public opinion render it more
necessary than ever that jurists should use with greater than
ordinary care such small influence as they have to check wrong
and to point out what is right".
PART II
CHAP. X
The principle which has been mentioned as being a sufficient Test of
test of the existence of obligatory force or of the voidability of
a treaty at a given moment may be stated as follows. Neither
party to a contract can make its binding effect dependent at his
will upon conditions other than those contemplated at the moment
* Fénelon, in the following passage, perhaps claims too much favour for a
short prescription, and he writes with reference to the customs of his age ;
but essentially he is right for all time. “Pour donner quelque consistance
au moral et quelque streté aux nations il faut supposer, par préférence a
tout le reste, deux points qui sont comme les deux poles de la terre entière :
I'un que tout traité de paix juré entre deux princes est inviolable a leur égard,
et doit toujours étre pris simplement dans son sens, le plus naturel, et
interprété par l’exécution immédiate; l'autre, que toute possession paisible et
non-interrompue depuis le temps que la jurisprudence demande pour les pre-
scriptions les moins favorables doit acquérirunepropriété certaine et légitime a
celui qui a cette possession, quelquevice qu’elle ait pu avoir dans son origine.
Sans ces deux regles fondamentales point de repos ni de sûreté dans le genre
humain.” Directions pour la Conscience d'un Roi. CEuvres, vi. 319 (ed. 1810).
voidabi-
lity.
352 TREATIES
PART II when the contract was entered into, and on the other hand a con-
*** * tract ceases to be binding so soon as anything which formed an
implied condition of its obligatory force at the time of its con-
clusion is essentially altered. If this be true, and it will scarcely
be contradicted, it is only necessary to determine under what
implied conditions an international agreement is made. When
these are found the reasons for which a treaty may be denounced
or disregarded will also be found.
Implied It is obviously an implied condition of the obligatory force of
conditions
under every international contract that it shall be observed by both of
wº ; the parties to it. In organised communities it is settled by
made. municipal law whether a contract which has been broken shall
I. That it; i. tº * ſº
.." be enforced or annulled; but internationally, as no superior
ºved coercive power exists, and as enforcement is not always convenient
essentials or practicable to the injured party, the individual state must be
º allowed in all cases to enforce or annul for itself as it may choose.
to it. The general rule then is clear that a treaty which has been broken
by one of the parties to it is not binding upon the other, through
the fact itself of the breach, and without reference to any kind
of tribunal. The question however remains whether a treaty is
rendered voidable by the occurrence of any breach, or whether
its voidability depends upon the breach being of a certain kind
or magnitude. Frequently the instrument embodying an inter-
national compact includes provisions of very different degrees of
importance, and directed to different ends. Is it to be supposed
that an infraction of any one of these provisions, whether it be
important or unimportant, whether it has reference to a main
object of the treaty or is wholly collateral, gives to a state the
right of freeing itself from the obligation of the entire agreement 2
Some authorities hold that the stipulations of a treaty are insepar-
able, and consequently that they stand and fall together"; others
distinguish between principal and secondary articles, regarding
infractions of the principal articles only as destructive of the
* Grotius, lib. ii. cap. xv. 3 15 ; Vattel, liv. ii. ch. xiii. § 202; Heffter, 98.
TREATIES 353
binding force of a treaty'. Both views are open to objection.
It may be urged against the former that there are many treaties
of which slight infractions may take place without any essential
part being touched, that some of their stipulations, which were
originally important, may cease to be so owing to an alteration
in circumstances, and that to allow states to repudiate the
entirety of a contract upon the ground of such infringements is
to give an advantage to those which may be inclined to play fast
and loose with their serious engagements. On the other hand,
it is true that every promise made by one party in a treaty may
go to make up the consideration in return for which essential
parts of the agreement are conceded or undertaken, and that it is
not for one contracting party to determine what is or is not
essential in the eyes of the other. It is impossible to escape
altogether from these difficulties. It is useless to endeavour to
tie the hands of dishonest states beyond power of escape. All
that can be done is to try to find a test which shall enable
a candid mind to judge whether the right of repudiating a
treaty has arisen in a given case. Such a test may be found in
the main object of a treaty. There can be no question that the
breach of a stipulation which is material to the main object, or if
there are several, to one of the main objects, liberates the party
other than that committing the breach from the obligations of
the contract; but it would be seldom that the infraction of an
article which is either disconnected from the main object, or is
unimportant, whether originally or by change of circumstances,
with respect to it, could in fairness absolve the other party from
performance of his share of the rest of the agreement, though if
he had suffered any appreciable harm through the breach he
would have a right to exact reparation and an end might be put
to the treaty as respects the subject-matter of the broken
stipulation. It would of course be otherwise if it could be shown
Calvo (§ 729) adheres to the doctrine, but qualifies it afterwards in such a
manner as to make it doubtful how far he intends it to operate.
* Wolff, Jus Gentium, $ 432 ; De Martens, Précis, $ 59.
HALL A a
PART II
CHAP. X
354 TREATIES
PART II
CHAP. x.
Treaty of
Paris,
1856.
that a particular stipulation, though not apparently connected
with the main object of the treaty, formed a material part of the
consideration paid by one of the parties.
In 1856 the Crimean War was ended by the Treaty of Paris.
The object of the treaty was to settle the affairs of the East, so
far as possible, in a permanent manner; and in order that this
should be done it was considered necessary to secure Turkey
against being attacked by Russia under conditions decidedly
advantageous to the latter power. To this end the prevention
of the naval preponderance of Russia in the Black Sea was
essential, and the simplest mode of prevention was to forbid the
maintenance of a fleet. This course was accordingly fixed upon.
But as, without a fleet, Russia would be exposed to danger in
the event of war with a third power, unless access to the Black
Sea were denied to its enemy, and as at the same time, in the
absence of a Russian navy, the presence of foreign fleets was
unnecessary to Turkey, the Treaty of Paris, while limiting the
number of vessels to be kept within the Sea by the two powers
respectively, contained also a promise on the part of Turkey to
close the Bosphorus to foreign vessels of war, except in case of
hostilities in which she was herself engaged ; and the Black Sea.
was declared to be neutral. In 1870 the Russian government
seized the occasion presented by the Franco-German War to
escape from the obligations under which it lay, and issued a
circular declaring itself to be no longer bound by that part of
the Treaty of Paris which had reference to the Black Sea. The
grounds upon which it was attempted to justify this proceeding
were the following. It was alleged that fifteen years’ experience
had shown the principle of the neutralisation of the Black Sea
to be no more than a theory, because while Russia was disarmed,
Turkey retained the privilege of maintaining unlimited naval
forces in the Archipelago, and the Straits, and France and
England preserved their power of concentrating their squadrons
in the Mediterranean; it was asserted that ‘ the treaty of the
## March, 18 56, had not escaped the modifications to which
TREATIES 355
most European transactions have been exposed, and in the face
of which it would be difficult to maintain that the written law,
founded upon the respect for treaties as the basis of public right
and regulating the relations between states, retains the moral
validity which it may have possessed at other times,’ the modi-
fications indicated being the changes which had been sanctioned
in Moldavia and Wallachia, and which had been effected by
* a series of revolutions equally at variance with the spirit and
letter’ of the treaty ; finally, it was pretended that ‘ under
various pretexts, foreign men of war had been repeatedly suffered
to enter the straits, and whole squadrons, whose presence was an
infraction of the character of absolute neutrality attributed to
those waters, admitted to the Black Sea.” It needed some
boldness to put forward the two former excuses. The dis-
advantages under which Russia lay through the ability of
Turkey to maintain a fleet elsewhere than in the Black Sea, and
through the power of England and France to place squadrons
in the Mediterranean, were neither new nor revealed by the
experience of fifteen years; the second of them was of course.
independent of the treaty, and the first lay before the eyes of
the Russian negotiators when they consented to its stipulations.
As regards the Danubian Principalities, their relations with the
suzerain power had been put aside by the Treaty of Paris for
precise definition in a separate convention; the language of the
treaty did not exclude their union; they coalesced before a con-
vention was signed ; and Russia was a party to that by which
their unification was recognised. The third ground is the only one
which could be used with some plausibility. “Whole squadrons’
had not been admitted into the Black Sea, but in the course of
fifteen years three American vessels, one Russian, one English,
one French, and three of other nations, had apparently been
allowed to enter, for reasons other than certain ones expressly
recognised by the treaty as sufficient. There can be no question
that in strictness a breach of the treaty had been committed ;
but there can be equally little doubt that the admission of a few
.A a 2.
PART II
CHAP. X
356 TREATIES
PART II
CHAP. X
isolated ships at different times was not an act in itself calculated
to endanger the objects of the treaty, viz. the settlement of
Eastern affairs and the security of Turkey, or to impair the
efficacy of the safeguards given to Russia by way of compensation
for the loss of naval power. Lord Granville indeed in answering |
the Russian circular did not think it worth while to answer the
pleas which it contained. He took for granted that no breach had
taken place of such kind as to free Russia from her obligations,
and confined himself to ‘the question in whose hand lay the
power of releasing one or more of the parties to the treaty from
all or any of its stipulations. It has always been held, he
says, “that the right ° of releasing a party to a treaty ‘belongs
only to the governments who have been parties to the original
instrument. The despatches of the Russian government appear
to assume that any one of the powers who have signed the
engagement may allege that occurrences have taken place which
in its opinion are at variance with the provisions of the treaty,
and though their view is not shared nor admitted by the
co-signatary powers, may found upon that allegation, not a
request to those governments for a consideration of the case, but
an announcement to them that it has emancipated itself, or
holds itself emancipated, from any stipulations of the treaty
which it thinks fit to disapprove. Yet it is quite evident that
the effect of such doctrine and of any proceeding which, with or
without avowal, is founded upon it, is to bring the entire
authority and efficacy of treaties under the discretionary control.
of each of the powers who may have signed them; the result of
which would be the entire destruction of treaties in their essence.”
The protest of Lord Granville, although uttered under cir-
cumstances which made its practical importance at the moment
very slight, nevertheless compelled Russia to abandon the position
which it had taken up. A conference was held of such of the
powers, signatary of the Treaty of Paris, as could attend, at
which it was declared that ‘it is an essential principle of the law
of nations that no power can liberate itself from the engagements
TREATIES 357
of a treaty, nor modify the stipulations thereof, unless with the
consent of the contracting powers by means of an amicable
arrangement.’ The general correctness of the principle is in-
disputable, and in a declaration of the kind made it would have
been impossible to enounce it with those qualifications which
have been seen to be necessary in practice. The force of its
assertion may have been impaired by the fact that Russia, as the
reward of submission to law, was given what she had affected to
take. But the concessions made were dictated by political
considerations, with which international law has nothing to do.
It is enough from the legal point of view that the declaration
purported to affirm a principle as existing, and that it was
ultimately signed by all the leading powers of Europe".
force of a treaty is that if originally consistent with the primary
right of self-preservation, it shall remain so. A state may no
doubt contract itself out of its common law rights—it may, for
example, surrender a portion of its independence or may even
merge itself in another state; but a contract of this kind must
be distinct and express. A treaty therefore becomes voidable so
soon as it is dangerous to the life or incompatible with the
independence of a state, provided that its injurious effects were
not intended by the two contracting parties at the time of its
conclusion. Thus if the execution of a treaty of alliance or
guarantee were demanded at a time when the ally or guaranteeing
state were engaged in a struggle for its own existence or under
circumstances which rendered war inevitable with another state
against which success would be impossible, the country upon
which the demand was made would be at liberty to decline to
fulfil its obligations of alliance or guarantee. If, again, a
treaty is made in view of the continuance of a particular,
form of government in one or both of the contracting states,
either of them may release itself from the agreement so soon
* Hertslet’s Map of Europe by Treaty, 1256–7, 1892–8, 1904.
PART II
CHAP. X
2. That
it shall
remain
consistent
with the
rights of
self-pre-
servation.
358 TREATIES
PART II as its provisions become inconsistent with constitutional
CHAP. X. I
change *. -
3. That the It is also an implied condition of the continuing obligation of
arties t tº g & g
#’.” a treaty that the parties to it shall keep their freedom of will
retain
their free- º tº to g tº g *
º of th * itself a restraint upon liberty, and the condition is one which
WVIII WI g e gº ©
respect holds good even when such freedom of will is voluntarily given
to its -
Subject-
**ter a confederation of which the constitution is inconsistent with
with respect to its subject-matter except in so far as the treaty
up. If a state becomes subordinated to another state, or enters
liberty of action as to matters touched by the treaty, it is not
bound to endeavour to carry out a previous agreement in defiance
of the duties consequent upon its newly-formed relations. In
such cases the earlier treaty does not possess priority over the
later one, because it cannot be supposed that a state will subor-
dinate its will to that of another state, or to a common will of
which its own is only a factor, except under the pressure of
necessity or of vital needs, so that arrangements involving such
subordination, like those made under compulsion at the end of
a war, are taken altogether out of the category of ordinary
treaties.
ºther Beyond the grounds afforded by these three conditions there
*. is no solid footing upon which repudiation of treaty obligations
º, a can be placed. The other reasons for which it is alleged that
º © states may refuse to execute the contracts into which they have
voided. entered resolve themselves into so many different forms of excuse
for disregarding an agreement when it becomes unduly onerous
in the opinion of the party wishing to escape from its burden.
M. Heffter says that a state may repudiate a treaty when
it conflicts with ‘the rights and welfare of its people; ”
M. Hautefeuille declares that “a treaty containing the gratuitous
cession or abandonment of an essential natural right, such for
example as part of its independence, is not obligatory; ’
M. Bluntschli thinks that a state may hold treaties incompatible
* De Martens, Précis, $$ 52, 56; Wheaton, Elem. pt. iii. ch. ii. § Io;
Bluntschli, §§ 458, 46O.
TREATIES' & 359
with its development to be null, and seems to regard the
propriety of the denunciation of the treaties of 1856 by Russia
as an open question". The doctrine of M. Fiore exhibits the
extravagancies which are the logical consequence of these views.
According to him “all treaties are to be looked upon as null,
which are in any way opposed to the development of the free
activity of a nation, or which hinder the exercise of its natural
rights; * and by the light of this principle he finds that if ‘the
numerous treaties concluded in Europe are examined they are
seen to be immoral, iniquitous, and valueless *.” Such doctrines
as these may be allowed to speak for themselves. Law is not
intended to bring licence and confusion, but restraint and order;
and neither restraint nor order can be imposed by the principles
of which the expression has just been quoted. Incapable in their
vagueness of supplying a definite rule, fundamentally immoral
by the scope which they give to unregulated action, scarcely an
act of international bad faith could be so shameless as not to
find shelter behind them. High-sounding generalities, by which
anything may be sanctioned, are the favourite weapons of un-
scrupulousness and ambition; they cannot be kept from distort-
ing the popular judgment, but they may at least be prevented
from affecting the standard of law.
An extinguished treaty may be renewed by express or tacit
consent. It is agreed that when the consent is tacit it must be
signified in such a manner as to show the intention of the parties
unmistakably *; and it may be added that in the case of the
majority of treaties it would be hard to show intention tacitly
beyond chance of mistake. In such a case no doubt as that put
by Vattel, who supposes a treaty of subsidy to have been con-
cluded for a term, on the expiration of which a sum equal to the
annual amount of the subsidy is offered and taken, there can be
no question that the parties tacitly agree to renew the treaty for
* Heffter, § 98; Hautefeuille, i. 9; Bluntschli, §§ 415 and 456.
* Nouv. Droit Int. I* p”, chap. iv.
* Wattel, liv. ii. ch. xiii. § 199; Heffter, § 99; Calvo, $ 733; Fiore,
§§ II33-5.
PART II
CHAP. X
Renewal
of treaties.
360 TREATIES
twelve months, and that the power receiving the money is bound
for that time to render the services for which it is the payment.
But in general, intention cannot be inferred with like certainty.
If, for example, it is provided in a commercial treaty that certain
duties shall be levied on both sides, and the parties continue
after the expiration of the treaty to levy the duties fixed by it,
it is manifest that there is nothing to show that the admission
of goods by one party at a certain rate is intended to be
dependent upon admission by the other party at a corresponding
rate, still less that the condition, if intended, has been accepted 5
the conduct of both sides is consistent with volunteered action in
their own interests independently of any agreement'. It would
in fact be unsafe to assume a treaty to be tacitly renewed except
in cases in which something is done or permitted which it cannot
be supposed would have been done or permitted without such an
equivalent as that provided in the treaty ".
PART II
ÇIHAP. IX
* It might perhaps be otherwise if the whole of a commercial treaty con-
taining provisions of very various kinds continued to be observed. De Martens
(quoted by Phillimore, iii. § dxxix) mentions in his treatise ‘iber die
Erneuerung der Verträge' that more than one treaty of commerce entered into
in the seventeenth century was in existence towards the end of the eighteenth
century.
* Most writers devote considerable space to a classifieation of treaties.
Vattel, for example, divides them into equal treaties, by which ‘equal,
equivalent, or equitably proportioned” promises are made, and unequal
treaties in which the promises do not so correspond; personal treaties which
expire with the sovereign who contracts them, and real treaties which bind
the state permanently. De Martens arranges them under the heads of
personal and real treaties, of equal and unequal alliances, and of transitory
conventions, treaties properly so called, and mixed treaties. Of these last
the first kind, being carried out once for all, is perpetual in its effects; the
duration of the second, which stipulates for the performance of successive
acts, is dependent on the continued life of the state and other contingencies;
and the third partakes of both characters. Heffter divides them into (1)
‘conventions constitutives, qui ont pour objet soit la constitution d'un droit
réel sur les choses d'autrui, soit une obligation quelconque de donner ou de
faire ou de ne faire point (e.g. treaties of cession, establishment of servitudes,
treaties of succession); (2) conventions réglementaires pour les rapports
politiques et sociaux des peuples et de leurs gouvernements (e.g. treaties of
commerce); (3) traités de Société (e.g. of alliance, or for the repression of the
slave trade).” Calvo distinguishes treaties with reference to their form into
transitory and permanent, with reference to their nature into personal and
TREATIES 361
real, with reference to their effects into equal and unequal, and simple and
conditional, finally with reference to their objects into treaties of guarantee,
neutrality, alliance, limits, cession, jurisdiction, commerce, extradition, &c.
It is not very evident in what way these and like classifications are of
either theoretical or practical use. Wattel (liv. ii. ch. xii. §§ 172–97), De
Martens (Précis, $$ 58–62), Heffter (§ 89), Calvo (§§ 643-68), Twiss (i. ch. xii),
may however be consulted with respect to them.
It may be remarked that international law is not concerned with so-called
personal treaties. Accidentally the state may be mixed up with them as a
matter of fact when it is identified with the sovereign, but this does not
affect the question of principle. Either a treaty is such that one of the two
contracting parties must be supposed to have entered into it with a state as
the other party, in which case it is ‘real’ and not terminable with the death
or change of the sovereign, or else it is such that it must be supposed to
have been entered into with the sovereign in his individual capacity, in
which case it never affects the state except in so far as the individual who
happens to be sovereign is able to use the resources of the state for his private
purposes.
PART II
CHAP. X
|PART II
CHAP. XI
Modes of
settling
disputes
amicably.
Arbitra-
tion.
CHAPTER, XI
AMICABLE SETTLEMENT OF DISPUTES ; AND MEASURES
OF CONSTRAINT FALLING SEIORT OF WAR
DISPUTEs can be amicably settled either by direct agreement
between the parties, by agreement under the mediation of
another power, or by reference to arbitration. The last of these
modes is the only one of which anything need be said, the other
two being obviously outside law. -
When two states refer a disputed matter to arbitration, the
scope and conditions of the reference are settled by a treaty or
some other instrument of submission. Among the conditions
are sometimes the rules or principles which are to be applied in
the case. When no such rules or principles are laid down the
arbitrators proceed according to the rules of civil law, unless, as
is sometimes the case, they agree to be bound by special rules
framed by themselves. To form the arbitrating tribunal the
litigating states either choose a sovereign or other head of a
state as sole arbitrator, or they fix upon one or more private
persons to act in that capacity, or finally they commit to foreign
states the choice of either the whole or part of a body of arbi-
trators. When more than one person is appointed it is usual
either to make the number uneven, or to nominate a referee with
whom the decision lies in case of an equal division of votes. If
no such precaution is taken, and an equal division of votes occurs,
the arbitration falls to the ground. When the head of a state is
chosen as arbitrator it is not understood that he must examine
into and decide the matter personally; he may, and generally
does, place the whole affair in the hands of persons designated by
him, the decision only being given in his name. Private persons
on the other hand cannot delegate the functions which have
been confided to them. The arbitrating person or body forms
MEASURES OF CONSTRAINT SHORT OF WAR 363
a true tribunal, authorised to render a decision obligatory upon PART II
the parties with reference to the issues placed before it. It “”
settles its own procedure, when none has been prescribed by the
preliminary treaty; and when composed of several persons it
determines by a majority of voices.
An arbitral decision may be disregarded in the following cases;
viz. when the tribunal has clearly exceeded the powers given to it
by the instrument of submission, when it is guilty of an open
denial of justice, when its award is proved to have been obtained
by fraud or corruption, and when the terms of the award are
equivocal. Some writers add that the decision may also be
disregarded if it is absolutely contrary to the rules of justice,
and M. Bluntschli considers that it is invalidated by being
contrary to international law; he subsequently says that nothing
can be imposed by an arbitral decision which the parties them-
selves cannot stipulate in a treaty. It must be uncertain whether
in making this statement he intends to exemplify his general
doctrine or to utter it in another form. Whatever may be the
exact scope of these latter reserves, it is evident that an arbitral
decision must for practical purposes be regarded as unimpeachable
except in the few cases first mentioned; and that there is there-
fore ample room for the commission, under the influence of
sentiment, of personal or national prejudices, of erroneous
theories of law, and views unconsciously biassed by national
interests, of grave injustice, for which the injured state has no
remedy. It may be observed also that it must always be difficult
for a state to refuse to be bound by an arbitral award, however
unjust it may be. The public in foreign states will seldom give
itself the trouble to form a careful judgment in the facts; it
will prefer the simple course of assuming that arbitrators are
probably right ; a state by rejecting an award may stir up
foreign public opinion against itself; and this it is not worth while
to do unless very grave issues are involved. It must in these
circumstances be permissible to distrust arbitration as a means
of obtaining an equitable settlement of international controversies;
364 AMICABLE SETTLEMENT OF DISPUTES
TART II
CHAP. XI
at the same time it is to be admitted that where the matter at
stake is unimportant, and the questions involved are rather pure
questions of fact than of law or mixed fact and law, reference
to arbitration is often successful, both as a means of securing
that justice shall be done, and of allaying international irritation.
Of the arbitral decisions which have been delivered during the
last hundred years upon relatively unimportant matters, very
few are open to serious criticism; and more than one have
settled disputes out of which a good deal of ill feeling might
have arisen. It is unfortunate that both the proceedings and
the issue in the most important case of arbitration that has yet
occurred [namely, that arising out of the Alabama Claims] were
little calculated to enlarge the area within which confidence in the
results of arbitration can be felt. [On the other hand, both in
the recent case of the Behring Sea Fur Seal Fisheries and the still
more recent instance of the Venezuela Boundary, recourse has been
had to arbitration with conspicuous success', and the arbitral
method of settling international differences has acquired new
authority from the dignity and ability that marked the course of
the proceedings”.
* See antea, pp. III–II.3, 149.
* Wattel, liv. ii. ch. xviii. § 329 ; Heffter, § Io9 ; Phillimore, iii. § iii.;
Calvo, $$ 1512–32; Bluntschli, $$ 488–98; Fiore, §§ 1478–91. A scheme of
arbitral procedure drawn up by a Committee of the Institute of International
Law, was adopted at the meeting of the Institute held at the Hague in 1875;
See Annuaire de l’Institut de Droit International for 1877, pp. 123–33. Calvo
(§§ 1489–1510) gives a list of twenty-one disputes settled by arbitration from
I794 onwards. Four later examples may be found in the Rev. de Droit Int.
xix. I96 and xx. 51 I. One is a case of compensation for ill-treatment of
a foreigner; three are cases of doubtful boundary ; one is unimportant, the
other three are concerned only with matters of fact. They are therefore
cases which are eminently fitted to be settled by arbitration if there is good
faith. On both sides, and the arbitrator can be trusted to be equitable. In
these instances there is no reason to doubt that arbitration will be suc-
cessful ; but the rejection by the United States in 1831 of the award given
against it in the matter of the British-American boundary shows how little
calculated the method is to put an end to disputes of any magnitude unless
honesty of intention exists on every hand. [Mr. John Bassett Moore, in
his ‘History and Digest of the International Arbitrations to which the
TJnited States has been a party,’ has compiled a list of arbitral decisions in
general up to the year 1898; see pp. 4821, 4851 et seq.
MEASURES OF CONSTRAINT SHORT OF WAR, 365
On the 29th of July, 1899, a convention for the pacific
settlement of international disputes was signed by the repre-
sentatives of twenty-four of the states assembled at the Hague
on the initiative of the Czar to consider the practicability of
a reduction of international armaments and of the substitution of
pacific methods for force and violence in the sphere of foreign
relations. Under that convention a Permanent Court of Arbi-
tration, with an official staff, is constituted at the Hague, while
the signatary powers are each to designate not more than four
representatives to act as arbitrators in case of need, and as such
to be enrolled as members of the court. Should disputes arise
between any of the parties to the convention the court is always
at their disposal, and recourse may be had to it even by contestants
who have not signified their adhesion to the convention. The
powers who signed were Germany, Austria, Belgium, Denmark,
Spain, the United States, Mexico, France, Great Britain, Italy,
Japan, Luxembourg, Montenegro, Holland, Persia, Portugal,
Roumania, Russia, Servia, Siam, Sweden and Norway, Switzer-
land, and Bulgaria. The Republics of Salvador, Guatemala, and
Uruguay as well as the Empire of Corea have subsequently
requested to be admitted to the benefits of the convention.
The tribunal which has so recently made its award in the case of the
disputed Alaskan boundary was in all essentials a Court of Arbitration,
though its constitution was unusual. It consisted of “six impartial jurists
of repute, who should consider judicially the questions submitted to them,”
nominated in equal numbers by the British Sovereign and the President of
the United States. No provision was made for the contingency of an equal
division of votes, though the fact that the Commissioners appointed were three
British and three American subjects rendered such an event by no means
improbable. In the result a bare majority of four was obtained, and the two
Commissioners who formed the minority, both Canadians, declined to sign
the award. This fact, though unfortunate, did not of course affect its
validity. The serious blot on the proceedings was the manner in which the
United States chose to construe the term “impartial jurists of repute’; and
though the amicable settlement of a dispute of long standing is a matter for
congratulation, it seems improbable that recourse will again be had to a court
similarly composed. The full text of the award will be found in the Times
of October 21, 1903; the reasons of the Canadian Commissioners for refusing
to append their signatures are contained in the issue of the following day.]
PART II
CHAP. XI
366 AMICABLE SETTLEMENT OF DISPUTES
PART II
(CHAP, XI
Up to the present date only one judgment has been pronounced
by the Permanent Court of Arbitration, and that in a dispute of
long standing between the United States and Mexico relating
to ‘The Pious Fund of the Californias,” but the court is at this
moment sitting to decide certain questions of preferential treat-
ment arising out of the claims made by Great Britain, Italy, and
Germany against Venezuela. Under a treaty signed at Tokio in
August, 1902, the interpretation of various disputed clauses in
treaties between Japan, Great Britain, France, and Germany
are to go before the Hague Tribunal; and on October 14, 1903,
an agreement was entered into between the English and
Prench Governments, providing that questions of a judicial
character or relating to the interpretation of existing treaties
which might arise between the two countries should, if found
incapable of settlement by diplomatic means, be referred to the
same Court of Arbitration.
The existence of such a permanent body provides a convenient
machinery for the settlement of international disputes of a minor
order, and we may safely predict that recourse will be had to it
with growing frequency and success, while its decisions, both final
and interlocutory, will tend to furnish a body of precedents
possessing value and authority in the conduct of international
controversy. Whether there is any reasonable prospect of
the Hague Tribunal being invoked in cases where questions
of magnitude, or involving popular prejudices, are at stake
time alone can show. The omens as yet are scarcely pro-
pitious; and in the Anglo-French agreement mentioned in the
last paragraph it is expressly stipulated that the method of
arbitration shall apply only to such questions as do not involve
the vital interests, the independence, or the honour of the two
contracting parties".]
* [The text of the Hague Convention will be found in De Martens, Nouv.
Rec. Gén. 2° Sér. xxvi. 920–48. For additional information I am indebted
to Dr. L. H. Ruyssenaers, Secretary-General of the Permanent Court of
Arbitration. In the Recueil Général of De Martens, China and Turkey
appear among the signataries, but Dr. Ruyssenaers does not include them in
MEASURES OF CONSTRAINT SHORT OF WAR 367
A reference to arbitration falls to the ground on the death PART II
of an arbitrator, unless provision for the appointment of another CHAP. XI
has been made, and on the conclusion of a direct agreement
between the parties by way of substitution for the reference.
[The Hague Convention provides for the substitution of a fresh
arbitrator in cases of death, resignation, or removal.]
Of the measures falling short of war which it is permissible to
take, retorsion and reprisal are the subjects of longest custom.
Retorsion is the appropriate answer to acts which it is within Retorsion.
the strict right of a state to do, as being general acts of state
organisation, but which are evidence of unfriendliness, or which
place the subjects of a foreign state under special disabilities as
compared with other strangers, and result in injury to them. It
consists in treating the subjects of the state giving provocation
in an identical or closely analogous manner with that in which
the subjects of the state using retorsion are treated. Thus if the
productions of a particular state are discouraged or kept out of a
country by differential import duties, or if its subjects are put at a
disadvantage as compared with other foreigners, the state affected
may retaliate upon its neighbours by like laws and tariffs'.
Reprisals are resorted to when a specific wrong has been Reprisal.
committed; and they consist in the seizure and confiscation of
property belonging to the offending state or its subjects by way
of compensation in value for the wrong; or in seizure of
property or acts of violence directed against individuals with the
object of compelling the state to grant redress; or, finally, in
the suspension of the operation of treaties. When reprisals are
not directed against property they usually, though not necessarily,
are of identical nature with, or analogous to, the act by which
they have been provoked. Thus for example, when Holland in
I78o repudiated the treaty obligation, under which she lay, to
his list of the powers that have ratified. . The adhesion of Turkey to the
principle of arbitration was clogged by a declaration which robbed it of all
value (Nouv. Rec. Gén. I. c. p. 737); the course of events in China since the
summer of 1899 is sufficient explanation for its non-appearance.]
* De Martens, Précis, $ 254; Phillimore, iii. § vii; Bluntschli, § 505.
368 AMICABLE SETTLEMENT OF DISPUTES
PART II succour England when attacked, the British government exercised
CHAP. XI
reprisals by suspending ‘all the particular stipulations concerning
freedom of navigation and commerce, &c. contained in the several
treaties now existing between his majesty and the republic ".”
| Such measures as those mentioned are primd facie acts of war;
and that they can be done consistently with the maintenance of
peace must be accounted for, as in the case of like acts done in
pursuance of the right of self-preservation, by exceptional
reasons. The reasons however in the two cases are very
different. In the one they are supplied by urgent necessity; in
the other there is not only no necessity, but as a rule the acts for
which reprisals are made, except when reprisals are used as
a mere introduction to war, are of comparative unimportance.
It is this which justifies their employment. They are supposed
to be used when an injury has been done, in the commission of
which a state cannot be expected to acquiesce, for which it
cannot get redress by purely amicable means, and which is
scarcely of sufficient magnitude to be a motive of immediate war.
A means of putting stress, by something short of war, upon
a wrong-doing state is required; and reprisals are not only
milder than war, since they are not complete war, but are
capable of being limited to such acts only as are the best for
enforcing redress under the circumstances of the particular case.
It of course remains true that reprisals are acts of war in fact,
though not in intention, and that, as in the parallel instances of
intervention and of acts prompted by the necessities of self-
preservation, the state affected determines for itself whether the
relation of war is set up by them or not. If it elects to regard
them as doing so, the outbreak of war is thrown back by the
expression of its choice to the moment at which the reprisals
were made. - . -
The forms of reprisals most commonly employed in recent
times consist in an embargo of such ships belonging to the
* Declaration of the Court of Great Britain, 17th April, 1780. Ann. Regist.
for I780, p. 345. -
MEASURES OF CONSTRAINT SHORT OF WAR 369
offending state as may be lying in the ports of the state making PART II
reprisal, or in the seizure of ships at sea, or of any property “* *
within the state, whether public or private, which is not entrusted
to the public faith. Embargo is merely a sequestration. Vessels Embargo
subjected to it are consequently not condemned so long as the tºº."
abnormal relations exist which have caused its imposition. If
peace is confirmed they are released as of course; if war breaks
out they become liable to confiscation *. It is not necessary that
vessels, or other property, seized otherwise than by way of
embargo, should be treated in a similar manner. They may be
confiscated so soon as it appears that their mere seizure will not
constrain the wrong-doing state to give proper redress. In
recent times however instances of confiscation do not seem to
have occurred, and probably no property seized by way of
reprisal would now be condemned until after the outbreak of
actual war.
A somewhat recent case of reprisals by way of combined º
IOl3,016
seizure and embargo is afforded by the proceedings taken by #.
England against the Two Sicilies in 1839. A sulphur monopoly #. the
Two
had been granted by the latter country to a French company * in
in violation of a treaty of commerce made with Great Britain in
* The doctrine of the English courts with respect to the effect of embargo
was laid down by Lord Stowell in the case of the Boedes Lust (v. Rob. 246).
The seizure of Dutch property under an embargo in 1803 was, he said, “at
first equivocal ; and if the matter in dispute had terminated in reconciliation,
the seizure would have been converted into a mere civil embargo, and so
terminated. Such would have been the retroactive effect of that course of
circumstances. On the contrary, if the transaction end in hostility, the
retroactive effect is exactly the other way. It impresses the direct hostile
character upon the original seizure; it is declared to be no embargo ; it is no
longer an equivocal act, subject to two interpretations; there is a declaration
of the animus by which it is done ; that it was done hostili animo, and is to
be considered as a hostile measure, ab initio, against persons guilty of injuries
which they refuse to redeem by any amicable alteration in their measures.
This is the necessary course, if no particular compact intervenes for the
restoration of such property taken before a formal declaration of hostilities.”
It may be questioned whether this doctrine is not unnecessarily artificial.
To imagine a hostile animus at the moment of capture is surely needless
when the property has undoubtedly acquired an enemy character at the
time of condemnation through the fact that war has broken out.
HALL B b
370 AMICABLE SETTLEMENT OF DISPUTES
PART II 1816. The revocation of the grant was demanded and refused ;
CHAP. XI
Acts
which
may be
done by
way of
reprisal.
upon which the English government decided to make reprisals,
and the admiral commanding the Mediterranean fleet was ordered
‘ to cause all Neapolitan and Sicilian ships which he might meet
with either in the Neapolitan or Sicilian waters to be seized and
detained, until such time as notice should be received from her
Majesty’s minister at Naples that this just demand of her
Britannic Majesty's government had been complied with.” A
number of vessels were captured accordingly, and an embargo
was at the same time laid on all ships at Malta bearing the flag
of the Two Sicilies. These measures not being intended to
amount to war, or to be introductory to it, the English
minister was directed to remain at Naples; and he in fact
remained there notwithstanding that a counter embargo was
laid on British vessels by the Sicilian government. The affair
was ultimately composed under the mediation of France; the
grant of the monopoly being rescinded, the vessels seized and
embargoed by England were restored to their owners.
It must not be assumed that forms of reprisal other than the
above are improper because they have for a long time been rare.
The justification of reprisals being that they are the means of
avoiding the graver alternative of war, it must in principle be
conceded that anything short of complete war is permissible for
sufficient cause. Remedies must vary in stringency with the
seriousness of the injuries which call for their application. If
however on the one hand the acts which may be done by way of
reprisals cannot be kept within any precise bounds, on the other
they stray so widely from the ordinary rules of peace that the
burden of showing their necessity, and still more the necessity
that they shall be of a given severity, is thrown upon the state
making use of them. To make reprisals either disproportioned
to the provocation, or in excess of what is needed to obtain
redress, is to commit a wrong; and, to judge from the amount
of feeling which has been shown with respect to some cases in
which it was commonly thought that the action taken was in
MEASURES OF CONSTRAINT SHORT OF WAR 371
excess of the occasion, it may be added that the wrong is one PART II
which there is less disposition to judge leniently than there is to CHAP. XI
pardon offences of a much more really serious nature".
Since the beginning of the nineteenth century what is called Pacific
ſe tº blockade,
pacific blockade has been not infrequently used as a means of
constraint short of war. The first instance occurred in 1827,
when the coasts of Greece were blockaded by the English, French
and Russian squadrons, while the three powers still professed to
be at peace with Turkey. Other like blockades followed in
rapid succession during the next few years. The Tagus was
blockaded by France in 1831, New Granada by England in 1836,
Mexico by France in 1838, and La Plata from 1838 to 1840 by
* Bynkershoek, Quaest. Jur. Pub. lib. i. e. xxiv.; Wattel, liv. ii. ch. xviii.
§§ 342–54; De Martens, Précis, $$ 255–62; Ortolan, Dip. de la Mer, liv. ii.
ch. xvi; Heffter, § IIo; Twiss, ii. §§ 11–20; Calvo, $$ 1568–89; Bluntschli,
§§ 5oo and 50.2–4.
Much of what appears in the older and even in some modern books upon
the subject of reprisals has become antiquated. Special reprisals, or
reprisals in which letters of marque are issued to the persons who have
suffered at the hands of the foreign state, are no longer made ; all reprisals
that are now made may be said to be general reprisals carried out solely
through the ordinary authorised agents of the state, letters of marque being
no longer issued.
It is not a little startling to find M. Bluntschli enumerating amongst forms
of reprisal, the sequestration of the public debts of the state, and the arrest
of subjects of the state offering provocation who may happen to be within
the jurisdiction of the state making reprisals. It is true that as regards
sequestration M. Bluntschli at first limits the right of making such reprisals
to the case of the seizure by the wrong-doing state “des biens possédés sur
son territoire par des citoyens de l'autre état; ' but since he goes on to
mention the notorious case of the sequestration of the Silesian loan by
Frederic II as an example of such reprisals, and as legitimate, he cannot
intend to be bound by his general statement of law. As reprisals fall short
of war, acts cannot be legitimate by way of reprisal which are not permitted
even in war. It is well established that the action of Frederic II was in
every way a gross violation of the then accepted law, and the principle that
debts due by the state are inviolable in time of war has certainly not lost
authority since his time. The arrest of foreigners as hostages is equally
opposed to the unquestioned modern rule. Of course these or any other
acts may be done by way of retaliation for identical acts already done by
the other state ; but M. Bluntschli’s meaning is evidently not this ; moreover
such reprisals would be of the nature of hostile reprisals, that is to say,
of reprisals made in order to restrain the commission of acts illegitimate
according to the rules of war.
B b 2
372 AMICABLE SETTLEMENT OF DISPUTES
tº
France, and from 1845 to 1848 by France and England; the
Greek ports were blockaded by England in 1850, and Rio de
Janeiro by the same power in 1862. From the last-mentioned
year no fresh instance occurred until 1884, when France
blockaded a portion of the coast of Formosa. . In 1886 Greece
was blockaded by the fleets of Great Britain, Austria, Germany,
Italy and Russia. [And in 1897 the ‘concert of Europe,’
represented by the fleets of Great Britain, Austria, France,
Germany, Italy, and Russia, blockaded the Island of Crete where
an armed insurrection was raging and where a detachment of
Greek regular troops had been landed. Finally, in 1902 Venezuela
was blockaded by Great Britain and Germany. The fact that
in both these last cases it was found necessary by the blockading
fleets to fire on the inhabitants of the blockaded territory makes
‘pacific’ a word of doubtful applicability.]
The manner in which these blockades have been carried out
has varied greatly. During the blockade of Mexico by France
in 1838, not only were Mexican ships held liable to capture,
but vessels belonging to third powers were seized and brought
in for condemnation". In the other early instances of pacific
blockade the vessels both of the state operated against and
of other powers were sequestrated, and were restored at the
termination of the blockade, no compensation being given to
foreign ships for loss of time and expenses. In 1850 Great
Britain adopted a milder course; Greek vessels only were
seized and sequestrated, and even Greek vessels were allowed
to enter with cargoes bond fide the property of foreigners, and
to issue from port if chartered, before notice of the blockade
was given, for the conveyances of cargoes wholly or in part
PART II
CHAP. XI
* This is believed to be the only occasion on which vessels of third powers
have been confiscated ; though, if the pacific character of the Formosan
blockade had been omitted, and neutral vessels had been seized, they would
have been treated, it would seem, in like manner. M. F. de Martens, in his
recent work (Traité de Droit Int. iii. 174), has been misled by M. Hautefeuille
into saying that ‘l’Angleterre ne laisse passer miles navires de PÉtat bloqué
ni les navires neutres ; elle confisque les uns et les autres.’ The statement
is entirely destitute of foundation. -
MEASURES OF CONSTRAINT SHORT OF WAR 373
belonging to foreigners". In 1886 this precedent was fol-
lowed 4; but the blockade of Formosa in 1884 was intended
to be enforced in a very different spirit. The French govern-
ment disavowed any wish to assume the character of a
belligerent, but it proposed to treat neutral vessels as liable
to capture and condemnation; it was anxious to retain the
privilege of coaling its fleet at Hongkong, while it enjoyed
the powers attendant upon a hostile blockade. Lord Granville
refused to assent to conduct so inequitable towards China, and
intimated that he should consider the hostilities which had in
fact taken place, together with the formal notice of blockade,
to constitute a state of war *.
* State Papers, xxxix.
* The instructions given to the British Admiral were to detain every ship
under the Greek flag coming out from or entering any of the blockaded
ports or harbours, or communicating with any ports within the limit
blockaded. “Should any parts of the cargo on board of such ships belong
to any subject or citizen of any foreign power other than Greece, and other
than “Austria, Germany, Italy and Russia,” and should the same have
been shipped before notification of the blockade, or after such notification,
but under a charter made before the notification, such ship or vessel shall
not be detained. The officer who boards will enter in the log of any ship
allowed to proceed the fact of her having been visited and allowed to
proceed ; also date and at what place such visit occurred. . . . In case of
detention steps must be adopted as far as practicable to insure safety of ship
and cargo.” Parl. Papers, Greece, No. 4, 1886. Incidentally some occurrences
PART II
CHAP. XT
perhaps took place which must have been beyond the intended action of
the powers. For example, it is alleged that at Skiathos part of the Austrian {{
squadron made requisitions of provisions on the island, carrying off so much
flour as to exhaust the stock, and that it also cut telegraphic communication,
and seized fishing boats. There seems however to be much doubt as to the
truth of the allegation. [In 1902 Great Britain reverted to the stricter custom,
and it was notified that vessels attempting to violate the blockade rendered
themselves “liable to all measures authorised by the law of nations and the
respective treaties between His Majesty and the different neutral powers.”
(Parl. Papers, No. 1 (1903), p. 131.) Though the blockade was thus made
applicable to all nationalities there does not appear to have been any seizure
of vessels not flying the Venezuelan flag. The blockade was rendered effective
from the day of publication (Dec. 20), but fifteen days of grace were allowed
for vessels “lying in ports now declared to be blockaded,” and varying periods
were granted to steamers and sailing vessels which had left harbour prior
to notification.] -
* “The contention of the French government that a “pacific blockade”
confers on the blockading power the right to capture and condemn the ships
874 AMICABLE SETTLEMENT OF DISPUTES
PART II
CHAP. XI
Between blockades so different in their incidents there is
little in common. With regard to those under which vessels
of third powers are condemned or even sequestrated, the
question arises whether a state in time of peace can endeavour
to obtain redress from a second state for actual or supposed
injuries by means which inflict loss and inconvenience upon
other countries. In England at any rate it was soon thought
not. In 1846, Lord Palmerston said in writing to Lord
Normanby, the ambassador at Paris, with reference to the
blockade of La Plata, ‘The real truth is, though we had
better keep the fact to ourselves, that the French and English
blockade of the Plata has been from first to last illegal. Peel
and Aberdeen have always declared that we have not been at
war with Rosas; but blockade is a belligerent right, and unless
you are at war with a state you have no right to prevent ships
of other states from communicating with the ports of that
state—nay, you cannot prevent your own merchant ships from
doing so. I think it important therefore, in order to legalise
retrospectively the operations of the blockade, to close the
matter by a formal convention of peace between the two powers
and Rosas’.” To this language there is nothing to add, except
an expression of surprise that the subject could have ever
presented itself to any mind in a different light. No state can
expect another to submit to annoyance, still less to loss, for its
mere convenience. It is only under the supreme necessities of
war, when the gain or loss of belligerent states is wholly out of
proportion to the loss inflicted upon neutral individuals, that
other states can be reasonably asked to forego their right of
intercourse with the enemy. If a country itself professes that
its quarrel is not serious or dangerous enough to make recourse
to hostilities necessary, its needs cannot be so urgent as to justify
of third nations for a breach of such a blockade is in conflict with well
established principles of international law.” Lord Granville to M. Wad-
dington, Nov. II, 1884; Parl. Papers, France, No. 1, 1885.
* Lord Dalling's Life of Lord Palmerston, iii. 327.
MEASURES OF CONSTRAINT SHORT OF WAR 375
a demand for privileges conceded only upon the ground of
necessity and danger.
The practice however assumes a very different aspect when it
is so conducted as to be harmless to the interests of third powers.
It is a means of constraint much milder than actual war, and
therefore, if sufficient for its purpose, it is preferable in itself.
It is true that its very mildness may tempt strong powers to
employ it against weak countries on occasions when, if debarred
from its use, they would not resort to hostilities; but it is not
to be forgotten that weak countries sometimes presume upon
their weakness, and that the possibility of taking measures
against them less severe than war may be as much to their
advantage as to that of the injured power. Moreover the
circumstances of the Greek blockade of I886 show that occasions
may occur in which pacific blockade has an efficacy which no
other measure would possess. The irresponsible recklessness of
Greece was endangering the peace of the world; advice and
threats had been proved to be useless; it was not till the
material evidence of the blockade was afforded, that the Greek
imagination could be impressed with the belief that the majority
of the Great Powers of Europe were in earnest in their deter-
mination that war should be avoided.
Pacific blockade, like every other practice, may be abused.
But, subject to the limitation that it shall be felt only by the
blockaded country, it is a convenient practice, it is a mild one in
its effects even upon that country, and it may sometimes be of
use as a measure of international police, when hostile action
would be inappropriate and no action less stringent would be
effective *.
* Pistoye et Duverdy (Traité des Prises Maritimes, ii. 376–8), and Woolsey
(§ 119), deny the existence of a right to enforce pacific blockade, but their
minds were fixed upon its earlier form. Heffter (§ III), Calvo (§ 1591), and
Cauchy (ii. 428) pronounce in favour of it. Bluntschli (§§ 506–7) approves
of the practice on condition that the blockade shall be so conducted as not
to touch third states. Von Bulmerincq (Holtzendorff's Handbuch, 1889,
vol. iv. § 127) unwillingly admits it as being at any rate a less evil than
war. The opinions of many recent writers will be found summarised by von
PART II
CHAP. XI
376 AMICABLE SETTLEMENT OF DISPUTES
PART II
CHAP. XI
Embargo
in contem-
plation of
WV 3. I’.
It was formerly common to place ships of a foreign power
under embargo, not by way of reprisals, but in contemplation of
war, in order to make sure of having enemy's property, of a kind
liable to condemnation, under command at the outbreak of
hostilities. The practice has happily not been followed as a
preliminary to recent wars. On the contrary, a tendency has
been shown to found a custom not only of permitting ships to
leave, but of giving a time of grace for lading and reaching their
port of destination. As is remarked by Sir Travers Twiss, “An
embargo which is made merely in contemplation of war under
circumstances in which reprisals could not justly be granted,” or,
it may be added, whether they could or could not be justly
granted, so long as the embargo does not in fact purport to
operate by way of reprisals, ‘ cannot well be distinguished from
a breach of good faith to the parties who are the subject
of it; 1.” -
Bulmerincq. In 1887 the Institut de Droit International, twenty-seven
members being present, adopted the following “declaration’ on the subject
of Pacific Blockade :-‘L'établissement d’un blocus en dehors de l'état de
guerre ne doit étre considéré comme permis par le droit des gens que sous
les conditions suivantes :
1°. Les navires de pavillon étranger peuvent entrer librement malgré le
blocus.
2°. Le blocus pacifique doit étre déclaré et notifié officiellement, et main-
tenu par une force suffisante.
3°. Les navires de la puissance bloquée qui ne respectent pas un pareil
blocus peuvent étre séquestrés. Le blocus ayant cessé, ils doivent
être restitués avec leurs cargaisons a leurs propriétaires, mais sans
dédommagement a aucun titre.’ Annuaire de l’Institut, 1887–8,
p. 3OO.
* Twiss, ii. § 12 ; Calvo, $ 1583. M. Bluntschli (§ 509) condemns embargo
in contemplation of war unless its object is “d’avoir sous la main un nombre
de navires suffisant pour user de représailles envers un ennemi qui abuserait
du droit de prises maritimes.” M. Bluntschli seems always ready to support
any practice, however doubtful its legality, or undoubted its illegality, which
can be used to injure or embarrass captors of private property at Sea.
PART III
CHAPTER I
COMMENCEMENT OF WAR
ON the threshold of the special laws of war lies the question PART III
whether, when a cause of war has arisen, and when the duty of wº
endeavouring to preserve peace by all reasonable means has been the issue
ſe te & e g g tº * > of a de-
satisfied, the right to commence hostilities immediately accrues, jaration
or whether it is necessary to give some preliminary notice of .
festo be-
intention. A priori it might hardly be expected that any doubt fore the
GOIIl-
could be felt in the matter. An act of hostility, unless it be mence-
done in the urgency of self-preservation or by way of reprisal, ...,
is in itself a full declaration of intention; any sort of previous º *
.declaration therefore is an empty formality unless an enemy must
be given time and opportunity to put himself in a state of defence,
and it is needless to say that no one asserts such quixotism to be
obligatory. Nevertheless a declaration in some form is insisted
upon by the majority of writers, and it has sometimes been treated
as being so essential to the justice of hostilities that a neglect to
issue one has supplied an excuse for a good deal of unnecessary
invective against one at least of the states which at various times
have dispensed with it.
The opinion that the date of the commencement of war must
be indicated by a formal notification appears to rest upon the idea
that without such a notification the date of commencement must
be uncertain. As between belligerents however—and the subject
is being considered here solely as between belligerents—no un-
certainty need exist. The date of the commencement of a war
can be perfectly defined by the first act of hostility. A more real
doubt used formerly to arise from the very fact that declarations
378 COMMENCEMENT OF WAR
PART III were commonly issued. In the eighteenth century declarations
"** were frequently published several months after letters of marque
had been granted, after general reprisals had been ordered, and
even after battles had been fought ; and disputes in consequence
took place as to whether war had begun independently of the
declaration, or from the date of the declaration, or in consequence
of the declaration, but so as to date, when once declared, retro-
spectively to the time of the first hostilities. As the legitimacy
of the appropriation of private property depends upon the exist-
ence of a state of war, it is evident that conflicts of this nature
were extremely embarrassing and, where different theories were in
play, were altogether insoluble. To take the state of war on the
other hand as dating from the first act of hostility, only leads to
the inconvenience that in certain cases, as for example of inter-
vention, a state of war may be legally set up through the com-
mission of acts of hostility, which it may afterwards appear that
the nation affected does not intend to resent by war; and, as in
such cases the nation doing hostile acts can always refrain from
the capture of private property until the question of peace or war
is decided, the practical inconvenience is small.
History of It may be suspected that the writers who in recent times have
* maintained the necessity of notification of some kind have been
unconsciously influenced by the merely traditional force of ideas
which belong to a period anterior to international law, and which
are of little value under the conditions of modern war. During
the middle ages, and down to the sixteenth century, direct notice
of war was always given to an intended enemy, in the earlier
times by letters of defiance, and latterly by heralds. Whether
the practice had a distinct origin, or whether it descended from
the fetial law of the Romans, is immaterial; it was at any rate
of undisputed authority, and, owing to the way in which war
was then made, it was of great value in its time. When there-
fore it began to die away in the transition from mediaeval to
modern civilisation, it is not surprising that the conception of
right which it had so long embodied should reappear in another
COMMENCEMENT OF WAR 379
shape; and it happened that by leaning on natural law and on PART III
the growing authority of Roman custom it was able to secure * *
vigorous allies. The practice of sending heralds was disused in
the beginning of the seventeenth century, but Albericus Gentilis
had already cited Roman usage in support of the assertion that
the voice of God and Nature ordered men to renounce friendship
expressly before embarking in war; and Grotius, though seeing
clearly that express notification is useless, when it is once under-
stood that demands made on one side will not be granted on the
other without war, allowed himself in describing the ‘conditional
declaration’ which he held to be commanded by natural law, to
be tied down by ancient precedent, and especially by fetial forms,
to a demand for reparation coupled with notice of war in case of
non-compliance". Zouch, in laying down that declaration is
necessary, relies only upon fetial law. Pufendorf barely states
that war must be duly proclaimed; but if the language of his
predecessors be kept in mind, there can be little doubt as to
the intention of his doctrine. Cocceius regards declaration as
only necessary before an offensive war”. Thus in the seventeenth
century the theoretical assertion of the necessity of declaration
was continuous and nearly universal; but the views and habits of
men of action are better represented in a passage of Molloy than
in the pages of Grotius or Pufendorf. “A general war,’ he says,
‘ is either solemnly denounced or not solemnly denounced; the
former is when war is solemnly declared or proclaimed by our
king against another state. Such was the Dutch war, 1671.
An unsolemn war is when two nations slip into a war without
any solemnity; and ordinarily happeneth among us. Again, if
a foreign prince invades our coasts, or sets upon the king's navy
* Alb. Gent. De Jure Belli, lib. ii. cap. i ; Grotius, De Jure Belli et Pacis,
lib. iii. cap. iii. §§ 6 and 7. The latest instances of the employment of a
herald were in 1635, when Louis XIII sent one to Brussels to declare war
against Spain, and in 1657, when Sweden declared war against Denmark by
a herald sent to Copenhagen. Twiss, ii. § 32.
* Zouch, Juris Fecialis Explicatio, parsi. sect. 6; Pufendorf, bk. viii. C. vi.
§ 9 ; Cocceius, note to Grotius, lib. iii. cap. iii. § 6.
380 COMMENCEMENT OF WAR,
PART III at sea, hereupon a real, though not solemn war may, and hath
CHAP. I formerly, arisen. Such was the Spanish invasion in 1588. So
that a state of war may be between two kingdoms without any
proclamation or indiction thereof, or other matter of record to
prove it ".” The distinction which is here drawn between solemn
and unsolemn war is indicative of the tenacity of life which is
shown by forms; and the history of the eighteenth century shows
how powerless in this case they really were. They inspired
sufficient respect to prevent prizes taken before declaration of
war from being condemned until after declaration took place, and
it was perhaps worth while to endeavour to excite odium against
* De Jure Maritimo, bk. i. e. I.
Most of the wars of the seventeenth century began without declaration,
though in some cases declarations were issued during their continuance.
Gustavus Adolphus began and carried on his war against the Emperor
without declaration (Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 2, and Ward,
An Enquiry into the Manner in which the different Wars in Europe have
commenced, II); in 1652 Blake and Tromp fought in the Downs before
manifestos were issued, and in 1654 the expedition of Penn and Venables
sailed for the West Indies without notice to Spain (Lingard, Hist. of England,
xi. I53 and 257): from 1645 to I657 the Dutch and the Portuguese fought in
Brazil, in Africa, and in Ceylon, and it was not till the latter year that war
was formally declared (De Garden, Hist. des Traités de Paix, i. 61–2); for
a year before the English declared war against the Dutch in 1665 the latter
ravaged British commerce in the Indies and the former were engaged in
conquering the Dutch establishments in Africa and America (Lingard, xii.
II6, &c., or De Garden, ii. 46); the letter in which Louis XIV in 1667
announced his intention to take possession of the Spanish Netherlands
‘sans que la paix soit rompue de notre part” was rather a piece of insolence
than a compliance with any supposed duty of declaring war (Martin, Hist.
de France, xiii. 315); finally in 1688, when war broke out between France
and the Empire, Kaiserslautern was taken by the French on the 20th Septem-
ber, and the declaration of war was dated at Versailles on the 24th of the
same month (Ward, 18). *
Of the foregoing wars the expedition sent by Cromwell against the Spanish
West Indies was little better than filibustering, and in many cases as much
damage as possible was done to commerce before purely military or naval
operations began. The occurrence of such incidents as the former, and the
uncertainty induced by sudden attacks upon commerce, were no doubt a
chief cause of the inclination to represent the issue of a declaration as a
necessity ; but the evil was really in the manners of the time, and it could
not have been cured by an alteration of form. A declaration which could
be issued at the very moment of attack (Grotius, lib. iii. cap. iii. § 13)
could be no safeguard against unscrupulous conduct. -
COMMENCEMENT OF WAR 381
a nation by accusing it of not observing due formalities"; but PART III
wars constantly began without declaration so long as the custom “'
of using declarations continued, and when after the Seven Years’
War a practice of publishing manifestos within the country
beginning the war, and of communicating them to neutral states,
was substituted for direct presentation of a declaration to the
enemy, wars were begun without manifestos”. The majority of
writers however continued to repeat that declaration is necessary *.
* Austria, for example, made use in this way of the absence of any declara-
tion on the occasion of the invasion of Silesia by Prussia in 1740.
* The War of Succession began in 1761 ; the Emperor's declaration
appeared on the 15th May, 1702, and that of the King of France in the
following July; in 1718 the Spaniards occupied Sardinia and attacked Sicily
without declaration, the Spanish fleet was destroyed by the English at Cape
Passaro in August of the same year and war was declared in December; in
1740 Frederic invaded Silesia two days before his ambassador arrived at
Vienna to demand the surrender of the province, no demand having been
at any time previously made, so that the Austrian court was ignorant of the
existence of even a ground of quarrel ; in I744 an action was fought off
Toulon between the English and French fleets in February and declarations
were not issued till the end of March (Ward, 19–30); in 1747 the French
entered Holland without declaring war (Moser, Versuch, ix. 67); before
English and French declarations were exchanged in May and June, I'756,
war had been waged for two years in America, and it had become maritime
since June 1755; that Frederic II on invading Saxony in 1756 pretended to
have no hostile intention did not alter the fact that his conduct was only
consistent with war, he blockaded the Saxon army in Pirna, he occupied
the whole country, and he caused the taxes to be paid to himself (Lord
Mahon's Hist. of England, ch. xxxiii); in 1778 the expedition of D'Estaing
sailed for America in April without any declaration or manifesto on the part
of France, and it was the accident of a slow voyage which prevented him
from surprising the English, as he had intended, in the Delaware, where he
arrived on the 7th July. A declaration was issued at Versailles on the 28th
of that month (Ward, 42, and Marten, Hist. de France, xvi. 433).
Col. (now Major-General Sir Frederick) Maurice, in his “Hostilities without
declaration of War,’ has made a valuable collection of all the instances from
17oo to 1870 in which acts of violence have been directed against a state without
previous intimation of intention. From the scientific point of view it might
have been wished that he had distinguished between cases of war properly
so called, and cases of intervention, of attacks by unauthorized forces, &c.,
but in its practical aspects the collection is none the less useful for its indis-
criminate inclusion; it proves more clearly than a stricter enumeration would
show, how difficult it often is to be sure whether or not a state of war exists.
* Wolff, Jus Gentium, $ 71o ; Burlamaqui (1694–1678), vol. ii. pt. iv. c. iv.
§§ 15–18 is logical, and says that an enemy ought not to be attacked
382 COMMENCEMENT OF WAR
In the present century the views of jurists are more divided.
To M. Hautefeuille the necessity of a declaration made direct to
the state against which an attack is intended seems to be in-
contestible, and all hostile acts done before its issue are ‘flagrant
violations of “le droit primitif.” It is difficult to say whether
Heffter looks upon a direct declaration as a necessity in law or
only as the preferable practice. M. Calvo, in spite of some
inconsistencies of language, appears to regard declaration as
obligatory. Riquelme thinks that a manifesto is indispensable
to the regularity of war as between the belligerents, though, as
it is not addressed specifically to or served upon one by the other,
it is not easy to see how it can act as a notice. M. Bluntschli
considers that the intention to make war must be notified to an
enemy, but holds that notification is effected by the publication
of a manifesto, and also that in a defensive war no declaration is
required, and that a war undertaken for defensive motives is a
defensive war notwithstanding that it may be militarily offensive.
It would probably be seldom that a state adopting this doctrine
would feel itself obliged to publish a manifesto. Wheaton says
that “no declaration or other notice to the enemy of the existence
of war is necessary in order to legalise hostilities,” but he is
sufficiently influenced by the conception of a difference between
solemn and unsolemn war to believe that without a manifesto ‘it
might be difficult to distinguish in a treaty of peace those acts
which are to be accounted lawful effects of war from those which
either nation may consider as naked wrongs, and for which they
may, under certain circumstances, claim reparation.” Klüber and
Twiss consider that the practice of giving notice of hostility to
an enemy ceased with the disuse of declarations in the middle of
last century, and think with Phillimore that manifestos are
IPART III
CHAP. I
Opinions
of jurists
in the
present
century.
immediately after declaration of war, “otherwise the declaration would only
be a vain ceremony; Vattel (liv. iii. ch. iv. §§ 51–60) also pronounces for
declaration, but he allows it to be issued after the enemy's territory has
been entered. Bynkershoek (Quaest. Jur. Pub. lib. i. c. ii) and Heineccius
(Elem. Jur. Nat. et Gent. lib. ii. § 199) pronounced for the legitimateness of
beginning war without declaration.
COMMENCEMENT OF WAR 383
intended for the information of neutrals and of the subjects of PART III
the state issuing them, and that no obligation to declare war now “.
exists as between the enemy states'. Practice on the other hand Recent
has been less variable than formerly. The United States began * ractice.
war with England in 1812, and with Mexico in 1846, without
either notice or manifesto; Piedmont opened hostilities against
Naples in 1860 in like manner; and the war between France and
Mexico in 1838, beginning in a blockade instituted by the former
country which the latter chose to consider an act of hostility,
forms an exact parallel in its mode of commencement to many of
the wars of last century. The war of 1870, which was com-
*menced by a declaration handed to Count Bismarck by the
French chargé d'affaires, and that in 1877 between Russia and
Turkey, which was declared by a formal despatch handed to the
Turkish chargé d'affaires at St. Petersburg, afford instances of
direct notice. In most, if not all, other cases, hostilities have
been preceded by manifestos. [President Kruger, it will be re-
membered, issued an ultimatum to the British Government on
* Hautefeuille, tit. iii, ch. i. sect. 2; Heffter, § I2O ; Calvo, Ś 1663 ; but
See also $ 1649; Riquelme, i. I31–3; Bluntschli, §§ 52I–2 ; Wheaton, pt. iv.
ch. i. § 6; Klüber, §§ 238–9 ; Twiss, ii. §§ 35–7; Phillimore, iii. ch. v. In
Holtzendorff’s Handbuch (1889, vol. iv. §§ 82–4) neither declaration nor
manifesto is held to be necessary though a belligerent ought, it is said, to
give notice of some sort if he can do so consistently with his political interest
and his military aims. F. de Martens (Traité de Droit Int. iii. 205) considers
that neither proclamation nor diplomatic notice are obligatory, provided
that the state of relations is such that hostilities will not be a surprise.
Hostilities which constitute a surprise he characterises as brigandage and
piracy. As instances of such attacks he mentions the invasion of Silesia in
I740, and the commencement of war by the United States in 1812 before the
vote of Congress was known in England. Geffcken (1888, notes to Heffter,
§ I2O) regards a notice fixing a date, from which hostilities shall be con-
sidered to begin, to be necessary in the interests of neutrals and of the
subjects of the belligerent states. To this view, so far as neutrals and
the subjects of the state commencing hostilities are concerned, no ob-
jection can be taken ; but if there is no duty towards the enemy state,
there can be no duty towards its subjects. Probably M. Geffcken is influ-
enced by the consideration that enemy subjects ought not to be exposed
without warning to danger of life, and to the manifold risks and horrors of
war upon land. This is so ; but for reasons which have nothing to do with
the illusory safeguard of a manifesto.
384 COMMENCEMENT OF WAR,
PART III Oct. 9, 1899, demanding, inter alia, that all British troops should
“’ be withdrawn from the borders of the Republic and all reinforce-
ments stopped; default of a satisfactory answer within forty-eight
hours would be regarded as a formal declaration of war. On the ex-
piration of this period the Transvaal forces crossed the frontier, and
the President of the Orange Free State at the same time declared
war on Great Britain in a manifesto addressed to his Burghers.]
Conclu- Looking at the foregoing facts as a whole it is evident that it
S1 OILS. is not necessary to adopt the artificial doctrine that notice must
be given to an enemy before entering upon war. The doctrine
was never so consistently acted upon as to render obedience to it
at any time obligatory. Since the middle of last century it has"
had no sensible influence upon practice. In its bare form it
meets now with little support, compared with that which it
formerly received. In the form of an assertion that a manifesto
must be published it is so enfeebled as to be meaningless. To
regard a manifesto as the equivalent of a declaration is to be
satisfied with a fiction, unless it be understood that hostilities
are not to commence until after there is a reasonable certainty
that authenticated information of its contents has reached the
enemy government. The use of a declaration does not exclude
surprise, but it at least provides that notice shall be served an
infinitesimal space of time before a blow is struck. A manifesto,
apart from the reservation mentioned, is quite consistent with a
blow before notice. The truth is that no forms give security
against disloyal conduct, and that when no disloyalty occurs
states always sufficiently well know when they stand on the
brink of war. Partly for the convenience of the subjects of the
state, and partly as a matter of duty towards neutrals", a mani-
festo or an equivalent notice ought always to be issued, when
possible, before the commencement of hostilities; but to imagine
a duty of giving notice to an enemy is both to think incorrectly
and to keep open a door for recrimination in cases, which may
sometimes arise, when action, for example on conditional orders
* See postea, p. 574.
COMMENCEMENT OF WAR 385
to a general or admiral, takes place in such circumstances that PART III
a manifesto cannot be previously published. & CHAP. I
If the above views are correct, the moment at which war
begins is fixed, as between belligerents, by direct notice given by
one to the other, when such notice is given before any acts of
hostility are done, and when notice is not given, by the commis-
sion of the first act of hostility on the part of the belligerent who
takes the initiative. e -
The outbreak of war, besides calling into existence the rights Negative
tº tº ſº * tº ff f
which will be discussed in the following chapters, has the nega- tºº.
tive effect of - jºr
I. Abrogating and suspending treaties of certain kinds. War.
2. Putting an end to all non-hostile relations between subjects
of the belligerent states. -
It is not altogether settled what treaties are annulled or Abroga-
- & © © ..., tion and
suspended by war, and what treaties remain in force during its suspen.
sion of
treaties.
writers all treaties are annulled, except in so far as they are opinions
concluded with the express object of regulating the conduct of the * *
parties while hostilities last 1. Wheaton considers that so-called
‘transitory conventions,” which set up a permanent state of
things by an act done once for all, such as treaties of cession or
boundary, or those which create a servitude in favour of one
nation within the territory of another, generally subsist notwith-
standing the existence of war, and although their operation may
in some cases,’ which he does not specify, “be suspended during
war, they revive on the return of peace without any express
stipulation ;’ other treaties, as of commerce and navigation,
continuance or revive at its conclusion. According to some
expire of course, except ‘such stipulations as are made expressly
with a view to a rupture *.” De Martens is of the same opinion,
except that he thinks that transitory conventions may always be
suspended and sometimes annulled *. Other writers, and the
English and American courts, hold that ‘transitory conventions’
I Vattel, liv. iii. ch. x. § 175; Riquelme, i. ITI. -
* Elem. pt. iii. ch. ii. §§ 9, Io. * Précis, $ 58.
HALL. - C C
386 COMMENCEMENT OF WAR
PART III are in no case destroyed or suspended by war, they being, ac-
CHAP. I
cording to Sir Travers Twiss, less of the nature of an agreement
than of a recognition of a right already existing, or, as the same
view was put in the form of an example by an American judge,
if treaties which ‘contemplate a permanent arrangement of
territorial or other national rights were extinguished by the
event of war, even the treaty of 1783, so far as it fixed our limits
and acknowledged our independence, would be gone,’ and on the
occurrence of war between England and the United States “we
should have had again to struggle for both upon original revo-
lutionary principles’.” Others again think that all treaties
remain binding unless their terms imply the existence of peace,
or unless the reason for their stipulations is destroyed by the war;
or else that treaties of the last-mentioned kind, such as treaties
of alliance, are annulled, but that treaties of commerce, postal
conventions, and other arrangements of like character, are sus-
pended only, and that treaties or provisions in them, such as
those ceding or defining territory, which are intended to be
permanent, remain in force; or finally that treaties are put an
end to or suspended only when or in so far as their execution is
incompatible with the war itself”. -
A like divergence of opinion is suggested by the conduct of
states at the conclusion of recent wars. By the Treaty of
Paris, which ended the Crimean War, it was stipulated that until
the treaties or conventions existing before the war between the
belligerent powers were renewed or replaced by fresh agreements,
trade should be carried on on the footing of the regulations in force
before the war, and the subjects of the inter-belligerent states
should be treated as between those states as favourably as those
Recent
practice.
* Twiss, i. §§ 225–6; Sutton v. Sutton, i. Russell and Mylne, 663; The
Society for the Propagation of the Gospel in Foreign Parts v. The Town of
Newhaven, viii Wheaton, 494. Sir. R. Phillimore (pt. xii. ch. ii) seems to
consider that treaties which “recognise a principle and object of permanent
policy” remain in operation, and that those which relate ‘to objects of
passing and temporary expediency’ are annulled ; but he does not very clearly
indicate the boundaries of the two classes.
* Heffter, $$ 122 and 180–1 ; Calvo, Ś 1687 ; Bluntschli, § 538.
COMMENCEMENT OF WAR 387
of the most favoured nation. Under this provision, not only PART III
were fresh treaties of commerce concluded, but it seemed neces- CHAP. I
sary to Russia and Sardinia to exchange declarations to the effect
that a convention for the abolition of the droit d’aubaine, than
which no agreement could seem to be more thoroughly made in
view of a permanent arrangement of rights, was to be considered
as having recovered its force from the date of the exchange of
ratifications of the treaty. Again, as between Austria and
Sardinia in 1859, all treaties in vigour upon the commencement
of the war of that year were confirmed, that is to say were stated
by way of precaution to be in force, by the Treaty of Zurich, and
among those treaties seem to have been a treaty of commerce
and a postal convention; but as between Austria and France no
revival or confirmation of treaties was stipulated although agree-
ments of every kind existed between them. In 1866 the Treaty
of Vienna between Austria and Italy confirmed afresh the
engagements with which the Treaty of Zurich had dealt, and the
Treaty of Prague revived, or in other words restipulated, all the
treaties existing between Prussia and Austria in so far as they
had not lost their applicability through the dissolution of the
German Confederation. In 1871 the Treaty of Frankfort re-
vived treaties of commerce and navigation, a railway Convention
having reference to the customs, copyright conventions and ex-
tradition treaties, without making any mention of other treaties
by which France and Germany were bound to each other.
Looking at the matter apart from authority and from practice, Classifica-
G e o tion of
treaties and other conventions, except those made in express treaties
with re-
ference to
general treaties, as to the binding force of which during hostilities war.
contemplation of war, or articles so made forming part of more
there is no question, would seem to fall naturally for present
purposes under the following heads:—
1. Treaties, such as great European territorial settlements and
dynastic arrangements, intended to set up a permanent state of
things by an act done once for all, in which the belligerent parties
have contracted with third powers as well as with each other.
C C 2.
388 COMMENCEMENT OF WAR
PART III
CHAP. I
Conclu-
sions.
2. Treaties also binding the belligerent states with third
powers as well as to each other, but unlike the former class
stipulating for continuous acts or for acts to be done in certain
contingencies, such for example as treaties of guarantee.
3. Treaties with political objects, intended to set up a per-
manent state of things by an act done once for all, which have
been concluded between the belligerent parties alone, such as
treaties of cession or of confederation.
4. Treaties concluded between the belligerent states only, and
dealing with matters connected with the social relations of
states, which from the nature of their contents appear to be
intended to set up a permanent state of things, such as con-
ventions to abolish the droit d'aubaine or regulate the acquisition
and loss of nationality. g
5. Treaties concluded between the belligerent states only,
whether with political objects or not, which from the nature of
their contents do not appear to be intended to set up a permanent
state of things, such as treaties of alliance, commercial treaties,
postal conventions, &c.
With regard to the first of these classes of treaties it is
obvious that the fact of war makes no difference in their
binding force, since each party remains bound to another with
whom he is not at war. There is also no difficulty in observing
them, since they merely oblige to an abstention from acts at
variance with their provisions. The second class remain equally
obligatory, subject to the condition that there shall be a
reasonable possibility of carrying out their provisions; but as
those provisions require performance of acts, and not simply
abstention from them, compliance may readily be inconsistent
with the state of war or with the incidents of the particular war.
Treaties of this kind therefore must be viewed according to
circumstances, as continuing or as being suspended. Compacts
of the third kind, on the other hand, must in all cases be
regarded as continuing to impose obligations until they are
either supplanted by a fresh agreement or are invalidated by
COMMENCEMENT OF WAR 389
a sufficiently long adverse prescription. Suppose, for example, PART III
that a province belonging to one of two states is held under CHAP. I
a treaty of cession from the other. On the outbreak of war
between them, if the treaty were annulled by the occurrence of
hostilities, the former owner would re-enter the province as his
own, or if it were suspended he would be able to exercise the
rights of a sovereign there as against those of an occupant in
the remainder of his enemy’s territory. Neither of these things
however takes place. The rights of a belligerent in territory
which he has formerly ceded are identical with those which he
has in territory which has never belonged to him. In both
he has merely the rights of a military occupant; he may
appropriate both ; but neither become definitively his until the
conclusion of a peace assigning the territory to him, or, if his
enemy refuses to treat, until a due term of prescription has
elapsed. As regards treaties of the fourth class, it would seem
reasonable that they should continue or be suspended at the will
of either of the belligerents. They are intended to be permanent
arrangements so long as peace shall exist, and there is nothing
in the fact of war to prevent them from recommencing their
operation automatically with the conclusion of peace; there is
therefore no reason for supposing them to be annulled. But as
all social relations are suspended for the time of war except by
express or tacit permission of the sovereign, it is impossible to
look upon treaty modifications of the normal social relations
which are thus interrupted as being compulsorily operative
during the progress of hostilities; except that the effects of acts
previously done under their sanction must remain unaltered.
Treaties of the fifth class are necessarily at least suspended by
war, many of them are necessarily annulled, and there is nothing.
in any of them to make them revive as a matter of course on
the advent of peace,—frequently in fact a change in the relations
of the parties to them effected by the treaty of peace is in-
consistent with a renewal of the identical stipulations. It
would appear therefore to be simplest to take them to be all
390 COMMENCEMENT OF WAR
PART III annulled, and to adopt the easy course, when it is wished to put
** them in force again without alteration, of expressly stipulating
for their renewal by an article in the treaty of peace.
In all cases in which war is caused by differences as to the
meaning of a treaty, the treaty must be taken to be annulled.
During hostilities the right interpretation is at issue; and it
would be pedantry to press the analogy between war and legal
process so far as to regard the meaning ultimately sanctioned by
victory as representing the continuing obligation of the original
compact. Whether the point in dispute be settled at the peace
by express stipulations, or whether the events of the war have
been such as to render express stipulations unnecessary, a fresh
starting-point is taken ; a peace which, whether tacitly or in
terms, gives effect to either of two interpretations has substituted
certainty for doubt, and thus has brought a new state of things
into existence.
* To say that war puts an end to all non-hostile relations
...” between the subjects of enemy states, and between the subjects
hostile
...is of one and the government of the other, is only to mention one
. f of the modes of operation of the principle, which lies at the root
SULOT eGUS O --
tº: of the laws of war, that the subjects of enemy states are enemies.
º The rule is thus one which must hold in strict law in so far as
tº gº..., no exception has been established by usage. Logically it
vernment . © º © ſº e
of the one implies the cessation of existing intercourse, and therefore a
i. of right on the part of a state to expel or otherwise treat as
** enemies the subjects of an enemy state found within its territory;
the suspension or extinction of existing contracts according to
their nature, among extinguished contracts being partnerships,
since it is impossible for partners to take up their joint business
on the conclusion of war at precisely the point where it was
abandoned at its commencement; a disability on the part of the
subjects of a belligerent to sue or be sued in the courts of the
other [or to be naturalised in the state with which their country
is at war]"; and finally, a prohibition of fresh trading or other
* Rex v. Lynch, L. R. I903, i K. B. 444.
COMMENCEMENT OF WAR 391
intercourse and of every species of private contract'. Of late PART III
- ºf CHAP. I
years it is seldom that a state has exposed itself, together with
its enemy, to the inconveniences flowing from a rigid main-
tenance of the rule of law; but the mitigations of it which have
taken place have generally been either too distinctly dictated by
the self-interests of the moment alone, or have been too little
supported by usage, to constitute established exceptions”.
Probably the only application of the rule, a relaxation of which
has acquired international authority, is that which has to do
with the treatment of enemy subjects who happen to be in a
belligerent country at the outbreak of war.
Bynkershoek in speaking of the right of a belligerent state to Excep-
o tº tº s = º e & ti I
treat as prisoners enemy subjects found within its boundaries at º with
the beginning of war, mentions that the right had seldom been : to
exercised in recent times, and gives a list of treaties, which might subjects
* Contracts arising out of the state of war, and permitted under the
customs of war;--as ransom bills (see postea, p. 460), are exceptions. They
can be made and enforced during the continuance of war.
* Bynkershoek, Quaest. Jur. Pub. lib. i. e. iii; The Hoop, i Rob. 196;
The Rapid, viii Cranch, 160–2 ; Mr. Justice Story in Brown v. the United
States, ib. 136; Wheaton, Elem. pt. iv. ch. i. §§ 13, 15; Twiss, ii. §§ 46–57 ;
Phillimore, pt. ix. ch. vi. De Martens (Précis, $ 269) thinks that the out-
break of war does not produce the above effects of itself, but that a state
may if it chooses issue “letters inhibitory’ of all intercourse with the enemy.
Heffter (§ 123) is of the same opinion. Bluntschli (§ 674) says only that
‘tous rapports entre les contrées occupées par les armées ennemies sont dans
la regle interdits; ' thus suggesting that only personal intercourse within
the area of military operations is forbidden ; he at least argues, on the
strength of his doctrine that the subjects of enemy states are not enemies,
that this ought to be the case. Calvo (§§ 1682-6) admits the rule of law to
be that all relations between the subjects of states at war with one another
become interdicted by the fact of war, but regards the rule as out of date and of
unjustifiable rigour. Dr. Lueder in Holtzendorff's Handbuch (1889, iv. § 87)
follows Heffter, because “die Handelsfreiheit ist das Ursprüngliche, die
Regel und das naturgenläss den einzelnen Menschen Zukommende.’ His
opinion might have more weight if he had not given his reason for it.
Geffcken (1888, notes to Heffter, $ 123) agrees fully with the statement of
law given in the text, and holds that any relaxations given must be expressly
granted.
For the revival of the right at the end of a war to enforce contracts made
before its outbreak, and therefore suspended during its continuance, see Ex
parte Bousmaker, xiii Vesey, 71, and Wheaton, Elem. pt. iv. ch. i. § I2.
392 COMMENCEMENT OF WAR
PART III easily be enlarged, stipulating for the reservation of a specified
CHAP. I
time during which the subjects of the contracting parties should
be allowed to withdraw themselves and their property from the
respective countries in the event of war between them". By the
early part of the eighteenth century therefore a usage was in
course of growth, under which enemy subjects were secured the
opportunity of leaving in safety, and though the custom did not
establish itself so firmly as to dispense altogether with the support
of treaties, those which were made in the end of that century,
and which have been made since then, may rather be looked upon
in a belli-
gerent
state at
the out-
break of
Wal”,
* Quaest. Jur. Pub. lib. i. c. iii. Wattel (liv. iii. ch. iv. § 63) says that ‘le
souverain qui déclare la guerre ne peut retenir les Sujets de l'ennemi qui se
trouvent dans ses états au moment de la déclaration. Ils sont venus chez
lui sur la foi publique: en leur permettant d’entrer dans ses terres et d’y
séjourner, il leur a promis tacitement toute liberté et toute sūreté pour le
retour. Il doit donc leur marquer un temps convenable pour se retirer avec
leurs effets; et s'ils restent au delà du terme prescrit, il est en droit de les
traiter en ennemis, toutefois en ennemis désarmés.” Moser, on the other
hand, could still write in 1779 that ‘wann keine Verträge deswegen vorhan-
den seynd, ist es dem Europäischen Völkerrecht nicht entgegen, wann ein
Souverain die in seinem Lande befindliche feindliche Unterthanen arrestirt”
(Versuch, ix. i. 49).
In the infancy of international law the harsher of these two doctrines, as
might be expected, existed alone. Ayala says, “Est quoque notatu dignum
quod inter duos populos bello exorto, qui ex hostibus apud utrumque populum
fuerint, capi possint, licet in pace venerint ; nam et olim servi efficiebantur’
(De Jure et Off. Bell. lib. i. cap. v. § 25). And Grotius writes, ‘Ad minuen-
das hostium vires retineri eos (i. e. enemy subjects within the country of a
belligerent) manente bello non iniquum videbatur ; bello autem composito
nihil obtendi poterat, quominus dimitterentur. Itaque consensum in hoc
est; ut tales in pace semper libertatem obtinerent, ut confessione partium
innocentes’ (De Jure Belli et Pacis, lib. iii. c. ix. § 4). .
During the middle ages nevertheless it seems to have been a pretty general
practice not to detain enemy subjects, and to give them when expelled
sufficient warning to enable them to carry off or to sell their property. When
Louis IX arrested the English merchants within his kingdom on the com-
mencement of war in 1242 Matthew Paris stigmatises his conduct as ‘laedens
enormiter in hoc facto antiquam Galliae dignitatem;’ by the Statute of
Staples, 27 Ed. III, it was provided that on war breaking out foreign
merchants should have forty days in which to depart the realm with their
goods; an Ordinance of Charles V shortly afterwards gave a like indulgence
in France ; and in I483 a treaty was concluded between France and the
FIanse Towns under which merchants of the Hanse Confederation were to be
at liberty to remain in the French dominions for one year after war broke
out. Twiss, ii. § 49.
COMMENCEMENT OF WAR 393
as intended to secure a reasonable length of time for withdrawal PART III
and for the settlement of private affairs than to guard against “
detention *. The solitary modern instance of detention, which is
presented by the arrest of the English in France in 1803, is only
excused by writers whose carelessness has allowed them to rest
content with the French assertion that the act was a measure of
reprisal *. There can be no doubt that a right of detention no
longer exists, except when persons have wilfully overstayed a
period granted to them for withdrawal, and in the case of persons
whose conduct or the magnitude of whose importance to their
state afford reasons for special treatment; perhaps also in the
case of persons belonging to the armed forces of their country.
It is a more real question whether, or to what extent, a usage Custom of
of permitting enemy subjects to remain in a country during good sº -
behaviour is becoming authoritative. The origin of the practice ..."
remain in
is not remote. It may fairly be inferred from the manner in a country
which Wattel mentions the permission to remain which was given ...
by the English government at the opening of the war of 1756 to ”
French persons then in the country, that the instance was the
only one with which he was acquainted *. When a custom began
to form it is difficult to say, because residence was no doubt often
tacitly allowed where evidence of permission is wanting ; but in
recent wars express permission has always been given, and the
sentiment of the impropriety of expulsion has of late become so
strong that when in 1870 the government of the National
Defence in France so far rescinded the permission to remain
which was accorded to enemy subjects at the beginning of the
war as to expel them from the department of the Seine, and to
require them either to leave France or to retire to the south of
* The period provided in the numerous treaties which have been concluded
with this object during the last century and a half ranges from six months
to a year. They will be found in the collections of De Martens ; the earliest
in date is that between England and Russia in I766 (Recueil, i. 396).
* [For a very half-hearted attempt to justify the conduct of Bonaparte on
this ground see the Mémoires du Chancelier Pasquier, i. 164.]
* Liv. iii. ch. iv. § 63. A like permission was given to Spanish subjects in
England in I762. Twiss, ii. 89.
394 COMMENCEMENT OF WAR
PART III the Loire, it appeared to be generally thought that the measure
CHAP, I
was a harsh one". It is scarcely probable that the feeling which
showed itself would have been entertained unless public opinion.
was not only moving in advance of the notion that persons
happening to be in a country at the outbreak of war between
it and their own state ought to have some time for withdrawal,
but was already ripe for the establishment of a distinct rule
allowing such persons to remain during good behaviour. In the
particular case some injustice was done to the French govern-
ment. The fear that danger would arise from the presence of
Germans in Paris may have been utterly unreasonable; but their
expulsion was at least a measure of exceptional military precau-
* For the French permission of the 20th July, and the order of Gen. Trochu
of the 28th of August, see D’Angeberg, Nos. I94 and 367. -
The writers by whom the subject is mentioned still generally hold to the
doctrine that a reasonable space of time for leaving the country is all that
can be asked for. Heffter says (§ 126) that “les sujets ennemis qui, lors de
l'ouverture des hostilités, se trouvent sur le territoire de l’une des puissances
belligerantes ou qui y sont entrés dans le cours de la guerre, devront obtenir
un délai convenable pour le quitter. Les circonstances néanmoins peuvent
aussi rendre nécessaire leur séquestration provisoire, pour les empêcher de
faire des communications et de porter des nouvelles ou des armes à l'ennemi.’
Twiss (ii. §§ 47–8, 5o) seems to think that where a commercial domicil has
been acquired by a foreigner a sort of tacit contract may be presumed
between him and the state that he will be allowed to live under its protection
so long as he obeys its laws; but that in ‘strict right he may nevertheless
be expelled on the outbreak of war, and that foreigners in transitwhave no
shadow of a claim to be allowed to stay. Calvo (§ I712) does not appear to .
regard even the right of withdrawal to be wholly assured where no treaty
stipulations exist. Riquelme (i. I35) mentions the practice of allowing enemy
subjects to continue to reside, but considers that international law only
prescribes that they shall be allowed to leave the country. F. de Martens
(1887, iii. 200) regards permission to remain as a settled usage.
There are a certain number of treaties in which the right of residence
during good behaviour is stipulated for. In the treaty between England
and the United States in 1795 it was stipulated that merchants and other
enemy subjects ‘shall have the privilege of remaining or continuing their
trade, so long as they behave peaceably and commit no offence against the
laws ; and in case their conduct should render them suspected and the
respective governments should think proper to order them to remove, the
term of twelve months from the publication of the order shall be allowed
them for that purpose" (De Martens, Rec. v. 684). The term allowed for
removal varies considerably in the different treaties; in the treaty of 1886
between France and Mexico it is merely ‘un délai suffisant.”
COMMENCEMENT OF WAR 395
tion. The conduct of the government may have been foolish, PART III
but it was not wrong. Any right of staying in a country during CHAP. I
good behaviour, which may be acquired by enemy subjects, must
always be subordinate to considerations of military necessity; and
whatever progress may have been made in the direction of ac-
quiring the right itself, there can be no doubt that it is not yet
firmly established.
When persons are allowed to remain, either for a specified time
after the commencement of war, or during good behaviour, they
are exonerated from the disabilities of enemies for such time as
they in fact stay, and they are placed in the same position as
other foreigners, except that they cannot carry on a direct trade
in their own or other enemy vessels with the enemy country.
t CHAPTER II
RIGHTS WITH RESPECT TO THE PERSON
OF ENEMIES
PART III BELLIGERENT rights with respect to the person of an enemy,
CHAP. II * * - e e
tº e in their actual form, represent the general right of violence over
Limits to
the right the person of all the inhabitants of a hostile country which an
of violence & e e
jº enemy formerly considered himself to possess, as modified by the
. P." mitigating principle, which has gradually succeeded in establish-
son of º & • , tº de º
enemies. ing a superior authority, that the measure of permissible violence
is furnished by the reasonable necessities of war".
These reasonable necessities are marked out in a broad way by
the immediate objects at which a belligerent aims in attacking
the person of his enemy. He endeavours to break down armed
resistance, because upon the ability of his enemy to offer it
depends the power of the latter to reject the terms to which it
is sought to bring him. A belligerent consequently kills his
armed enemies so far as is needed to overcome the national
resistance, and makes prisoners of them and of persons by whom
the action of the enemy state is directed. But the attainment
The * [Since the last edition of this book the International Peace Conference
Hague held at the Hague during May, June and July, 1899, has dealt with many of
ºr. the subjects treated in this and the following chapters. While the Conference
e failed signally to attain the object for which it was originally convened by
the Czar—the limitation and diminution by common consent of international
armaments on land and sea—its labours in other directions were crowned by
considerable success. In addition to the establishment of a Permanent
Court of International Arbitration two conventions were concluded dealing
with the laws and customs of war by land, and adapting to maritime warfare
the principles of the Geneva Convention of 1864. The majority of the
Powers assembled also agreed upon three declarations prohibiting the use in
warfare of projectiles the only object of which is the diffusion of asphyxiating
gases, and of bullets which expand or flatten easily in the human body, and
forbidding projectiles and explosives to be launched from balloons. These
declarations were left unexecuted by the representatives of Great Britain as
well as by those of the United States.]
PERSONAL RIGHTS OF ENEMIES 397
of this immediate object of crushing the armed force opposed to PART III
him is not helped by the slaughter or ill-usage of persons who CHAP. II
either are unable to take part in hostilities, or as a matter of fact
abstain from engaging in them ; and although the adoption of
such measures might tend, by intimidating the enemy, to per-
suade him to submit, their effect is looked upon with reason as
being too little certain or immediate to justify their employ-
ment *. Hence the body of persons who are enemies in law split
themselves in the main into two classes;–non-combatants, whom
a belligerent is not allowed to ill-use or to kill intentionally,
except as a punishment for certain acts, which though not done
with the armed hand, are essentially hostile”; and combatants,
whom in permitted places it is allowable to capture at all times,
and under certain conditions to kill".
Of the non-combatant class little need be said. It only re-
Non-com-
batants.
* The principle that innocuous persons ought not to be killed was asserted
in the Canon De Treuga (Decretal. Greg. lib. i. tit. xxxiv. cap. 2), and
Franciscus à Victoria declares explicitly that ‘ nunquam licet per se et ex
intentione interficere innocentem. Fundamentum justi belli est injuria;
Sed injuria non est ab innocente : ergo non licet bello uti contra illum.”
Hence ‘sequitur quod etiam in bello contra Turcos non licet interficere
infantes. Imo nec foeminas inter infideles, . . . imo. idem videtur judicium
de innoxiis agricolis apud Christianos, imo de alia gente togata et pacifica,
Quia omnes praesumuntur innocentes nisi contrarium constaret.” (Relect.
Theol. vi.) But these utterances of a doctrine of mercy were far in advance
of the habits of the time; and their repetition by Grotius was contemporary
with the horrors of the Thirty Years' War (lib. iii. cap. xi. §§ 8–12). From
that period however opinion changed rapidly. The conduct of the French
armies in the Palatinate and the Low Countries, and the Proclamation of
Louis XIV to the Dutch, in which he announced that ‘lorsque les glaces
Ouvriront le passage de tous cótés, sa Majesté ne donnera aucun quartier aux
habitants des villes' (Dumont, Mém. Politiques pour servir à la parfaite
Intelligence de la Paix de Ryswick, ii. 66), were reprobated throughout
Europe; Pufendorf (bk. viii. c. vi. § 7) in echoing the doctrine of Grotius,
spoke to a world which was already convinced ; and Bynkershoek (Quaest.
Jur. Pub. lib. i. cap. i.) stands alone in the eighteenth century in giving to
a belligerent unlimited right of violence. -
* For these acts see postea, pp. 471–2, 539. º
* On the whole subject of rights with respect to the person of enemies see
the Manuel des Lois de la Guerre sur Terre, drawn up by a Committee of
the Institut de Droit International, and published by the Institut (Brussels,
1880). - &
398 RIGEITS WITH RESPECT
PART III quires to be pointed out that the immunity from violence to
CHAP. II
Combat-
ants.
which they are entitled is limited by an important qualification,
which is no doubt in part necessary to the prosecution of military
and naval operations, but the extent of which is only to be
accounted for by remembering that if the principle that the
measure of permissible violence is furnished by the reasonable
necessities of war is theoretically absolute, the determination of
reasonable necessity in practice lies so much in the hands of
belligerents that necessity becomes not infrequently indistin-
guishable from convenience. The qualification in question is
that though non-combatants are protected from direct injury,
they are exposed to all the personal injuries indirectly resulting
from military or naval operations directed against the armed
forces of the state, whether the mode in which such operations
are carried out be reasonably necessary or not. So far as death
or injury may be caused by such acts as firing upon a ship
carrying passengers, or an attack upon the train of an army, in
the course of which for example chaplains or surgeons might be
killed without deliberate purpose, there is no reason to complain
of the effect of the qualification. But the bombardment of a
town in the course of a siege, to take an example on the other
side, when in strict necessity operations need only be directed
against the works, and when therefore bombardment really
amounts to an attempt to obtain an earlier surrender than would
be militarily necessary, through the pressure of misery inflicted
on the inhabitants, is an act which, though permissible by
custom, is a glaring violation of the principle by which custom
professes to be governed. - &
The right to kill and wound armed enemies is subordinated to
the condition that those enemies shall be able and willing to
continue their resistance. It is unnecessary to kill men who are
incapacitated by wounds from doing harm, or who are ready to
surrender as prisoners. A belligerent therefore may only kill
those enemies whom he is permitted to attack while a combat
is actually in progress; he may not as a general rule refuse
TO THE PERSON OF ENEMIES 399
quarter; and he cannot mutilate or maim those who fall into PART III
his power". - CHAP. II
The general duty to give quarter does not protect an enemy Duty of
who has personally violated the laws of war, who has declared iºr.
his intention of refusing to grant quarter or of violating those
laws in any grave manner, or whose government or commander
has done acts which justify reprisals 4. It may be doubted
however whether the right of punishment which is thus placed
in the hands of a belligerent has been used within the present
century in any strictly international war, and though its existence
may be a wholesome check to the savage instincts of human
nature which now and then break through the crust of civilised
habit, it is certain that it ought only to be sparingly exercised
after great and continuous provocation, and that any belligerent
who availed himself of his power would be judged with extreme
severity. [Article 23 of the Hague Convention on the Laws
and the Customs of War expressly forbids a belligerent to declare
that no quarter will be given.] -
An exception to the rule that quarter cannot be refused is Possible
also supposed to arise whén from special circumstances it is exception.
impossible for a force to be encumbered with prisoners without
danger to itself”. Instances of such impossibility have not
presented themselves in modern warfare. Prisoners who cannot
safely be kept can be liberated, and the evil of increasing the
strength of the enemy is less than that of violating the dictates
* Wattel, liv. iii. ch. viii. § 140 ; De Martens, Précis, $ 272; American
Instructions for Armies in the Field, Art. 6o; Bluntschli, $ 58o ; Art. 13
of the Project of Declaration on the Laws and Usages of War, adopted by
the Conference of Brussels in 1874 as a basis of negotiation with a view to
a general agreement upon the subject of the practices of war. De Martens, .
Nouv. Rec. Gén. 2° Sér. iv. I. *
* Qui merci prie, merci doit avoir’ was already a maxim in the fourteenth
century, but in the beginning of the seventeenth century prisoners might in
strict law be still slaughtered, though to do so was looked upon as ‘mauvaise
guerre.” --
* De Martens, Précis, $ 272 ; American Instruct., Art. 63.
* Wattel, liv. iii. ch. viii. § 151 ; De Martens, Précis, $ 272 ; American
Instruct., Art. 6o ; Bluntschli, § 58o.
400 RIGHTS WITH RESPECT
PART III of humanity, unless there is reason to expect that the prisoners
char. It if liberated, or a force successfully attempting rescue, would
massacre or ill-treat the captors. Subject to the condition that
there shall be reasonable ground for such expectation it may be
admitted that cases might occur in which the right could be
legitimately exercised, both at sea and in campaigns resembling
those of the Indian Mutiny, when small bodies of troops remained
for a long time isolated in the midst of enemies".
* Formerly quarter was not given to the garrison of a place which resisted
an attack from an overwhelming force, which held out against artillery
in the absence of sufficient fortifications, or which compelled the besiegers
to deliver an assault. In 1543, for example, the French took “Sainct Bony”
in Piedmont by storm, “et furent tous ceux de dedans tuez, hors mis le
capitaine, qui fu pendu, pour avoir esté si oultrageux de vouloir tenir une
si meschante place devant le canon' (Mém. de Martin du Bellay, liv. ix).
It might have been hoped that such a usage would now only rank among
the curiosities of history. But Wattel (liv. iii. chap. viii. § 143) thinks it
necessary to argue at length against executing a commandant ; M. Heffter
(§ 128) expresses the hope that such an execution will never occur again ;
M. Calvo (§ 856) treats as a still existing opinion the view that the garrison
of a weak place may be massacred for resistance; Gen. Halleck (ii. 9o),
while condemning the practice as contrary to humanity, seems to state
it as a living usage; and the Duke of Wellington, though he never acted
in conformity with it, wrote in 1820 that “I believe it has always been
understood that the defenders of a fortress stormed have no right to quarter ;
and the practice, which has prevailed during the last century, of surrender-
ing a fortress when a breach was opened in the body of the place and the
counterscarp was blown in, was founded upon this understanding' (De-
spatches, 2nd Series, i. 93); finally, the Russian government thought it
worth while in the original sketch of a convention respecting the laws of .
war to enumerate among forbidden acts “la menace d’extermination envers
une garnison qui défend obstinément une forteresse.”
In spite of this accumulated evidence that up to a late period the usages
of war allowed a garrison to be massacred for doing their duty to their
country, there can be no hesitation in excluding the practice from the
list of those which are now permitted. It is wholly opposed to the spirit
of the general body of the laws of war, and it therefore can only pretend
to rank as an exceptional usage. But for an exceptional usage to possess
validity in opposition to general principles of law it must be able to point
to a continued practical recognition, which the usage in question is unable
to show. -
There is probably no modern instance of the indiscriminate slaughter
of a garrison, except that of the massacre of the garrison and people of
Ismail by the Russians in 1790, and if one instance were now to occur,
the present temper of the civilised world would render a second impossible.
[Since these words were written (in 1880) an even more hideous massacre
TO THE PERSON OF ENEMIES 401
In the case of enemies rendered harmless by wounds or disease, PART III
the growth of humane feeling has long passed beyond the simple ****
requirements that they shall not be killed or ill-used, and has cast
upon belligerents the duty of tending them so far as is consistent
with the primary duty to their own wounded. But the care Treatment
which the wounded of a defeated army thus obtain is necessarily º
inadequate to their wants, and the usefulness of surgeons on both
sides is hampered by their liability to be detained as prisoners.
A step, of which the value in mitigating the unnecessary horrors
of war cannot be over-estimated, would therefore be made if a
general, and sufficiently full, understanding were arrived at as to
the treatment of sick and wounded, and of persons and things
engaged in their service, which should give free scope, so far as
the exigencies of war permit, to the action of every one whom
duty or charity may enlist in the mitigation of suffering. Under The Ge-
the Convention of Geneva of 1864, the greater part of the Euro- .. wº
pean states bound themselves to observe a code framed with this
object, and the accession of nearly all the civilised states of the
world has converted its provisions into rules of overwhelming
authority. The states which have not yet signified their adhe-
sion are indeed of such slight importance that the contents of
the Convention may fairly be regarded as forming a portion
than that of Ismail has been perpetrated. On November 21, 1894, the
Japanese army stormed Port Arthur and for five days indulged in the
promiscuous slaughter of non-combatants, men, women, and children, with
every circumstance of barbarity. The only excuse alleged was that officers
and soldiers alike were roused to uncontrollable fury by the sight of the
mutilated remains of comrades who had fallen into the hands of the Chinese
and been tortured to death (Times, Jan. 8, 1895). Though an enquiry was
Ordered by the Japanese military authorities, no satisfactory explanation or
reparation was ever tendered, but the scrupulous anxiety shown by Japan
on every other occasion throughout the war to conduct its operation in har-
mony with the laws of humanity has been accepted in condonation of a
solitary though deplorable lapse into savagery. Of the frightful atrocities
committed by some of the European contingents on the defenceless Chinese
population during the advance upon Pekin in August 1900, and in the
subsequent operations, there is unhappily no room for doubt ; and the
slaughter by the Russians of the whole Chinese population of Blagovest-
chensk recalls the worst horrors of the Thirty Years' War.] e
HALL I) d
402 RIGHTS WITH RESPECT
PART III of authoritative international law". The provisions, however,
“” which were agreed upon by no means exhausted the matters
which needed regulation, or sufficiently dealt with those which
were touched, and a conference was held at Geneva in 1868 with
the object of framing a supplementary Convention. Further
rules were drafted by the plenipotentiaries of the states repre-
sented, but while they were accepted in principle, they failed to
secure ratification, and they remain without binding force, though
the provisional agreement which was arrived at with regard to
them lends no inconsiderable weight in a general sense to their
prescriptions. [Article 21 of the Hague Convention for regu-
lating the laws of land warfare, while re-enacting the Geneva Con-
vention of 1864, is silent as to the supplementary Convention;
but in many respects the stipulations of the latter are given effect
to in the various formal Acts of the Hague Conference.]”
Under the Geneva Conventions wounded and sick soldiers must
be collected and tended; while in field or military hospitals, in
hospital ships, or in course of being transferred from one hospital
to another, wounded or sick men belonging to land or sea forces
are regarded as neutrals; and if on recovery while in the hands
of the enemy it appears that they are unfit for military service
they must be sent back to their country. By an article of the
* The states which acceded to the Convention in the first instance, and
which are still independent, were Switzerland, France, Belgium, Denmark,
Italy, Spain, the Netherlands, Greece, Great Britain, Prussia, Sweden,
Austria, Russia, and Turkey. The names are arranged in the order of time
in which ratification was given. Since then Roumania (1874), Persia,
San Salvador, Montenegro, Servia, Bolivia, Chile, the Argentine Confedera-
tion, Peru, Nicaragua, the United States (1882), Bulgaria (1884), and Japan
(1886), have notified their adhesion. Thus the only states which have not
yet adopted the Convention are Portugal, Brazil, Mexico, Colombia, Costa
Rica, Uruguay and Venezuela. [But Art. 21 of the Hague Convention for
regulating the laws of land warfare expressly imposed the Geneva Conven-
tion of I864 on all its signataries, amongst whom are numbered Portugal and
Mexico.] -
* A very full account of the Geneva Convention will be found in Holtzen-
dorff's Handbuch (1889, iv. §§ 76–9). For the text of the two Conventions
[and for those of the Hague] see Parl. Papers. [See also for the latter De
Martens, Nouv. Rec. Gén., 2° Sér. xxvi. 958.] t
TO THE PERSON OF ENEMIES 403
supplementary Convention which probably demands more from PART III
a belligerent than a just regard for his own interests will allow CHAP. II
him to perform, ability to serve was not to prevent the restora-
tion of convalescents on parole, except in the case of superior
officers. Surgeons and other persons engaged in attendance on
the sick and wounded or in their transport, whether they are
volunteers or in the service of the enemy, are neutralised during
such time as they are actually employed; so long as there are
any sick or wounded to succour, they may remain in any hospital
to which they may be attached, and so long as they stay with it
they must continue to fulfil their duties; but they may also in
the exercise of their own discretion rejoin the corps or return to
the country to which they belong, the enemy having only the
right to detain them for such time as may be required by strict
military necessities. Field and military hospitals are also neutra-
lised so long as any sick or wounded are in them : but while
ambulances with their horses and medical and surgical stores are
in no case liable to seizure, and accompany their staff when the
latter rejoin the enemy, in fixed hospitals the stores are appro-
priated by the captors, and the medical staff in leaving only carry
with them their private property. The special conditions of
naval war call for provisions applicable to it alone, and an attempt
was made to supply them by the Conference of 1868. Trading
vessels containing sick and wounded passengers exclusively, and
not laden either with enemy’s goods or with contraband of war,
were not to be seized ; but the fact of a visit notified in the log-
book by an enemy’s cruiser, by establishing ability to capture,
rendered the sick and wounded incapable of serving during the
continuance of the war. Surgeons belonging to a captured vessel
were bound to give their assistance until and during the removal
of the wounded; so soon as this is effected they were free to
return to their country. As hospital ships may be deprived of
protection by accident of weather or position, and their capture
is not therefore, as in the case of military hospitals, necessarily
connected with the defeat of the force to which they belong,
D d 2
404 RIGHTS WITH RESPECT
PART III they were not assimilated to fixed hospitals on land, but enjoyed
“" a complete neutrality, if they had been officially designated as
hospitals before the outbreak of war, and if they were unfit for
warlike use; when these conditions were not satisfied they
became the property of the captor, but he could not divert them
from their special employment until after the conclusion of peace.
Hospital ships fitted out by societies for the aid of sick and
wounded, if provided with certain guarantees, were recognised
as neutral, and permitted to operate under the reserve of a right
of control and visit on the part of the belligerents. In order that
neutralised objects and persons shall be recognised, hospitals were
to be indicated by a special flag, hospital ships by a distinctive
colour, and persons attendant on the sick and wounded by a
badge. [These provisions were embodied in the Convention for
the adaptation to maritime warfare of the principles of the
Geneva Convention signed at the Hague by the representatives
of all the twenty-six powers there assembled, and they now form
part of the recognised laws of war.]
There can be no doubt that the Geneva [and Hague] Conven-
tions embody the principles on which the services giving aid to sick
and wounded in war ought to be, and will be, regulated in the
future, but the specific rules will probably undergo some change.
In their present form they are open to criticism in many details,
and the occurrences of 1870, besides suggesting that voluntary
assistance may need to be brought under firmer control, betrayed
at least one serious omission in the stipulations which have been
accepted. The instances of disregard for the Convention, which
appear to have been unfortunately numerous during the Franco-
German War, may in part be explained by unavoidable accident,
and in the main may probably be referred to an ignorance in the
soldiery of the duties imposed upon them which it may be hoped
has not been allowed to continue; but the possibility must always
exist that acts will take place which cannot be so leniently judged,
and until belligerents see proof that intentional violation of the
Convention will be punished by their enemy, every violation will
TO THE PERSON OF ENEMIES 405
be regarded as the evidence of a laxity of conduct on his part PART III
which will lead to corresponding laxity in them. In 1868 a “*”
proposal was made, and rejected by the European governments,
that an article should be added to the Convention rendering in-
fractions of it penal under their Articles of War. If the language
of the article had covered wilful infractions only, its rejection
would not have been to their credit". [During the late South
African War there were serious complaints, not confined to one
side only, of the violation of the Geneva Convention. Strictly
speaking, its provisions were not binding upon either of the com-
batants, since the Dutch Republics had not given adhesion to it
and had not been represented at the Peace Conference at the
Hague. It need hardly be said that no disposition to take ad-
vantage of this was manifested on the part of Great Britain, and
the Boers, with rare exceptions, showed, in their treatment of the
* M. Bluntschli (§§ 587–9, 590–1–2) makes several criticisms on the details
of the Convention and suggestions for its improvement. He notices with
justice (§ 586) that the meaning of an expression in the Ist article is equi-
vocal. It is stated that “la neutralité cesserait si ces ambulances ou
hôpitaux étaient gardés par une force militaire.” If the word ‘gardés' is to
be taken to signify ‘militarily held,’ no objection can be felt to the clause ;
but if it is to be read in the more natural sense of “protected,” it sanctions
a practice less liberal than that which has hitherto been customary. It is
often necessary to place guards over hospitals to protect the inmates, or to
prevent their contents from being plundered, and if on the appearance of the
enemy these guards offer no resistance it has been usual to allow them to return
to their army. The usage, and the duty of non-resistance correlative with
the privilege, are illustrated by an occurrence which took place during the
Peninsular War. Col. Trant on entering Coimbra, which was full of French
sick and wounded, was resisted by the captain in command of the company
left as a hospital guard. After sustaining an attack for three hours the
captain requested to be allowed to rejoin the French army, and supported
his demand when it was refused by referring to the case of an English
company which had just before been sent in after the battle of Busaco.
Colonel Trant required an unconditional surrender. “You are not,’ he said,
“in the same position as the English company. I have taken you with
arms in your hands. You have killed or wounded thirty men and a superior
officer; your resistance has been long and obstinate. You may think your-
selves only too happy to be prisoners at all.’ Koch, Mém. de Masséna, vii.
238. General Koch insinuates that the fact of resistance ought to have
made no difference in the treatment accorded to the guard; but his judgment
was apt to be warped when the conduct of English was in question.
406 RIGHTS WITH RESPECT
wounded and prisoners a desire to act in accordance with its spirit.
It cannot be affirmed, however, that they were equally scrupulous
in some other respects, and there were undoubtedly occasions on
which the white flag and the Geneva badge were abused". The
enormously increased range of modern cannon and rifles tends to an
ever-increasing difficulty in the location of field hospitals, and it
cannot be expected that combatants will allow their operations
to be impeded by the presence of an ambulance in the line of fire.
Many of the so-called Ambulance Corps fitted out in neutral
states were utilised as a cloak by volunteers from Europe and
America desirous of joining the armies of the Republics, and in
future wars it may be safely assumed that this form of inter-
national benevolence will be closely scrutinised by the belligerent
powers.]
All persons whom a belligerent may kill become his prisoners
of war on surrendering or being captured. But as the right to
hold an enemy prisoner is a mild way of exercising the general
rights of violence against his person, a belligerent has not come
under an obligation to restrict its use within limits so narrow as
those which confine the right to kill. He may capture all persons
who are separated from the mass of non-combatants by their im-
portance in the enemy’s state, or by their usefulness to him in
his war. Under the first of these heads fall the sovereign and the
members of his family when non-combatants, the ministers and
high officers of government, diplomatic agents, and any one who
for special reasons may be of importance at a particular moment.
Persons belonging to the auxiliary departments of an army,
whether permanently or temporarily employed, such as commis-
sariat employés, military police, guides, balloonists, messengers,
and telegraphists, when not offering resistance on being attacked
by mistake, or defending themselves personally during an attack
PART III
CHAP. II
What per-
sons may
be made
prisoners
of war.
* For instance at Driefontein, on March Io, 1900, Lord Roberts reports from
his own observation a “flagrant breach of the recognised usages of war’ in
connexion with the white flag, and complains of the persistent use by the
enemy of flat-nosed expanding bullets. Annual Register, Igoo, p. 399.
TO THE PERSON OF ENEMIES 407
made upon the combatant portions of the army, in which case PART III
they become prisoners of war as combatants, are still liable to “"
capture, together with contractors and every one present with
a force on business connected with it, on the ground of the direct
services which they are engaged in rendering. Finally, sailors
on board enemy’s trading vessels become prisoners because of
their fitness for immediate use on ships of war". The position
of surgeons and chaplains, apart from the Convention of Geneva,
* Bluntschli, §§ 594–6; Manuel de Droit Int, a l'Usage des Officiers de
l'Armée de Terre (French Official Handbook), 37; American Instruct., art.
5o ; Project of Declaration of Brussels, $ 34 ; Heffter, § 126. M. Bluntschli,
the American Instructions, and the Project of Declaration include corre-
spondents of newspapers among persons liable to be made prisoners of war.
Probably it is only meant that they may be detained if their detention
is recommended by special reasons. All persons however can be made
prisoners for special reasons; newspaper correspondents in general seem
hardly to render sufficiently direct service to justify their detention as a
matter of course ; and they are quite as often embarrassing to the army
which they accompany as to its enemy. Perhaps it is unfortunate that they
are enumerated as subjects of belligerent right together with persons who
are always detained. The Manual of the Institut de Droit International
(art. 22) directs that newspaper correspondents shall be detained for so long
only as military necessity may dictate.
In 1870 Count Bismarck denied that sailors found in merchant vessels
can be made prisoners of war, and in a note addressed to the government
of the National Defence threatened to use reprisals if those who had been
captured were not liberated. In justification of his doctrine he pretended
that the only object of seizing merchant seamen is to diminish the number
of men from whom the crews of privateers could be formed, and that
therefore as France was a party to the Declaration of Paris, it must be
Supposed that it had ‘adhered in advance ’ to their immunity from
capture. The Comte de Chaudordy had no difficulty in showing that no
Such inference could be drawn from the fact of adherence to the Declara-
tion of Paris, that the usage of capturing sailors had been invariable, that
the mercantile marine of a nation, apart from any question of privateering,
is capable of being transformed at will into an instrument of war, and that
in countries where, as in Germany, all seafaring men are subject to conscrip-
tion for the navy of the state, the reasons for capture are of double force
(D’Angeberg, Nos. 580, 694, 813, 826, 911). Count Bismarck executed his
threat to use reprisals, and sent Frenchmen of local importance as prisoners
to Bremen in a number equal to that of the captains of merchantmen who
were detained in France. The pretension of Count Bismarck to create an
international rule by his simple fiat need scarcely be treated seriously, but
it is a matter for indignation that he should attempt to prevent an adversary
from acting within his undoubted rights by means which are reserved to
punish and to brand violations of law.
408 * RIGHTS WITH RESPECT
PART III is not fully determined. In the eighteenth century they were
*** liable to capture, but on an exchange of prisoners they were com-
monly returned without equivalents or ransom. During the
Peninsular War they shared the lot of other non-combatants.
According to De Martens a usage had in his time grown up of
sending them back to the enemy, and Klüber recognises their
entire immunity; but as both writers class with them non-com-
batants of whose liability to capture there can be no doubt, the
value of their evidence is open to question. More recently
IM. Heffter subjects surgeons and chaplains to seizure; and the
American Instructions for armies in the field, by directing that
they are only to be retained if the commander of the army cap-
turing them has need of their services, render their dismissal
a matter of grace". On the whole it may be concluded that as
the Convention of Geneva is not yet universally binding, bellige-
rents, who are unfettered as respects their enemy by its obligations,
still have the right to treat his medical staff as prisoners of war.
* Moser, ix. ii. 255 and 260. Cartel of exchange between England and
France in 1798, De Martens, Rec. vi. 498. In some cases doctors, surgeons,
and their assistants were returned without ransom long before any usage
in their favour had begun to be formed. So far back as 1673 a provision
to this effect was made in a cartel between France and the United Provinces,
Dumont, vii, i. 231 ; and a like indulgence is stipulated for in the Anglo-
French Cartel of 1780, De Martens, Rec. iii. 306. De Martens, Précis, $ 276;
Klüber, § 247; Heffter, $ 1.26; American Instruct., art. 53. On Massena
assuming command of the army of Portugal, Lord Wellington proposed
that surgeons and officers of other civil departments should, if captured,
be returned. At the moment an arrangement to this effect was believed
by the French to be contrary to their interests, and no notice was taken of
the suggestion; but after the seizure by Colonel Trant of the whole of the
French hospitals at Coimbra, the same proposal was made by Massena in
his turn. It does not appear whether under the then circumstances Lord
Wellington would have acceded to it, as before any answer could be given
it became known that an arrangement had been made between the English
and French governments for a general exchange. Wellington Despatches,
vii. 591. [Mr. Larpent, Judge-Advocate-General to the British forces in
the Peninsular War, who was captured by the French in 1813, was treated as
a prisoner of war and exchanged in the ordinary way. See his “Private
Journal, ii. Io9, where he says there was much difficulty about it. Under
art. 3 of the Hague Convention non-combatants attached to armed forces
of a belligerent ‘have the right to be treated as prisoners of war.’]
TO THE PERSON OF ENEMIES 409
The rights possessed by a belligerent over his prisoners under PART III
the modern customs of war are defined by the same rule, that º II t;
Featrºle]]
more than necessary violence must not be used, which ought to of prison-
govern him in all his relations with his enemy. The seizure of "
a prisoner is the seizure of a certain portion of the resources of
the enemy, and whatever is needed to deprive the latter of his
resources during the continuance of the war may be done; a
prisoner therefore may be subjected to such regulations and
confined with such rigour as is necessary for his safe custody.
Beyond this point or for any other object no severity is per-
missible. The enemy has been captured while performing a legal
act, and his imprisonment cannot consequently be penal.
By the practice which is founded on these principles prisoners
are usually interned in a fortress, barrack, or camp, where they
enjoy a qualified liberty, and imprisonment in the full sense of
the word is only permissible under exceptional circumstances, as
after an attempt to escape, or if there is reason to expect that
an attempt to escape will be made". If a prisoner endeavours
to escape, he may be killed during his flight, but if recaptured
[it used to be held that] he cannot be punished, except by con-
finement sufficiently severe to prevent the chance of escape,
because the fact of surrender as prisoner of war is not understood
to imply any promise to remain in captivity”; ſnow, however,
the Hague Convention subjects a prisoner of war to disciplinary
punishment for attempting to escape]. A belligerent may
exact obedience to rules necessary for safe custody under the
sanction of punishment, and he also has the right of punishing
in order to maintain discipline.
* Formerly a harsher practice obtained. During the wars of Independence
and of the French Revolution and Empire, prisoners of war were often kept
On board ships, and sometimes in common gaols. At a remoter period they
Were still worse treated,—prisoners were not only sent to the galleys, but
were kept there after the termination of war. In 1630 it was stipulated
between England and Spain that this should not be done, and the practice
does not seem to have been wholly abandoned till near the end of the seven-
teenth century.
* Bluntschli, § 607; American Instruct., art. 77. [Hague Convention, art.8.]
410 RIGHTS WITH RESPECT
PART III, Prisoners are fed and clothed at the expense of the state
CHAP. II
which holds them in captivity, and they sometimes also receive
an allowance of money". The expenses thus incurred may be
recouped by their employment on work suited to their grade and
social position; provided that such work has no direct relation
to the war”. Prisoners are themselves allowed to work for hire
on their own account, subject to such regulations as the military
authorities may make. In principle the right of the captor
appears to be sufficiently just, and labour is obviously better for
the health of the men than is unoccupied leisure in a confined
space; but it might be wished that their privilege were held to
* It was formerly the custom for each state to pay the cost of the main-
tenance of its prisoners in the enemy's country, and when advances were
made by the enemy for the subsistence of the prisoners, accounts were
sometimes balanced from time to time during the war, and sometimes at
its termination. Several treaties—e.g. those of Paris in 1763 (De Martens,
Rec. i. 64), of Versailles in 1783 (id. ii. 465), between England and the
Dnited Provinces in 1783 (ib. 522), between the United States and Prussia
in 1785 (ib. 577), of Amiens in 1802 (id. sup. ii. 565), of Paris in 1814
(Nouv. Rec. ii. 16), and of Ghent in 1814 (ib. 78)—contain stipulations for
repayment of the amount expended on either side. See also Moser, Versuch,
ix. ii. 272, and Wolff, Jus Gentium, § 816.
TJnder the more modern practice each state maintains the prisoners
captured by it. Comp. Bluntschli (§ 605), Calvo (§ 1857), the proposed
Declaration of Brussels (art. 27), and the Manual of the Institute (art. 69).
In 1793 the French National Convention decreed that prisoners should be
given the pay of a corresponding rank in the French service (De Martens,
Rec. v. 370). During the war of 1870 France paid to officers from £4 to
£13 Ios. per month according to their rank, and to private soldiers 7.5o C.
per day. Germany was not so liberal; privates received nothing, and officers
from £1 16s. to £3 158, per month. (D’Angeberg, No. 694.) [Article I7 of the
Hague Convention provides that officers may receive, if necessary, the full
pay allowed them in this position by their country’s regulations, the amount
to be repaid by their Government.]
* Klüber, § 249 ; Heffter, § 129; Manuel de Droit Int, a l’Usage, &c., 74;
American Instruct., art. 76; Project of Declaration of Brussels, art. 25 ;
Manual of the Institute, arts. 71–2. Bluntschli (§ 608) would allow the
employment of prisoners on any work which was not an ‘immediate ’
relation to the war; they may be used to construct fortifications “pendant
que la lutte est encore éloignée.’ He appears to stand alone. [Articles 4 to
20 of the Hague Convention are devoted to the treatment of prisoners of war.
Article I4 provides for the establishment in each belligerent state of a
‘Bureau de renseignements’ to watch after the treatment of prisoners of
war, to ascertain the various places of detention, to supply information to
the relatives, and to undertake the delivery of letters and packages.]
TO THE PERSON OF ENEMIES 4ll
overrule the right of the enemy, so that they could only be com- PART III
pulsorily employed in default of work yielding profit to themselves. “”
Prisoners are often released from confinement or are dismissed Dismissal
to their own country on pledging their parole, or word of honour, ºn-
to observe conditions which render them innocuous to their enemy. Pºº".
They are allowed to live freely within a specified district on
undertaking not to pass the assigned bounds, or they return
home on giving their word not to serve against the captor for
a stated time or during the continuance of the war.
The release of prisoners in this manner is not necessarily an
act of grace on the part of the captor; for it may often occur
that his willingness to parol them may be caused by motives of
convenience or by serious political or military reasons. Hence
prisoners cannot be forced to give their parole, and their
dismissal with a simple declaration by the enemy that they are
paroled affects them with no obligation. So also non-com-
missioned officers and privates, who are not supposed to be able
to judge of the manner in which their acceptance of freedom
upon parole may touch the interests of their country, are not
allowed to pledge themselves, except through an officer, and
even officers, so long as a superior is within reach, can only give
their word with his permission. Finally, the government of
the state to which the prisoners belong may refuse to confirm
the agreement, when made ; and if this is done they are bound
to return to captivity, and their government is equally bound to
permit, or if necessary to enable, them to do so.
The terms upon which prisoners may be paroled are naturally
defined by the character of the rights which their captor possesses
over them. By keeping them in confinement he may prevent
them from rendering service to their state until after the
conclusion of peace. He may therefore in strictness require
them to abstain not only from acts connected with the war, but
also from engaging in any public employment. Generally
however a belligerent contents himself with a pledge that his
prisoner, unless exchanged, will not serve during the existing
412 RIGHTS WITH RESPECT
PART III war against the captor or his allies engaged in the same war.
CHAIP. II
This pledge is understood to refer only to active service in the
field, and does not therefore debar prisoners from performing
military duties of any kind at places not within the seat of
actual hostilities, notwithstanding that the services thus rendered
may have a direct effect in increasing the power of the country
for resistance or aggression. Thus paroled prisoners may raise
and drill recruits, they may fortify places not yet within the
scope of military operations, and they may be employed in the
administrative departments of the army away from the seat of
war. As the right of a belligerent over his prisoners is limited
to the bare power of keeping them in safe custody for the
duration of the war, he cannot in paroling them make stipu-
lations which are inconsistent with their duties as subjects, or
which shall continue to operate after the conclusion of peace.
Thus if prisoners are liberated on condition of not serving
during a specified period, before the end of which peace is
concluded and hostilities again break out, they enter upon the
fresh war discharged from obligation to the enemy.
A prisoner who violates the conditions upon which he has
been paroled is punishable with death if he falls into the hands
of the enemy before the termination of the war". [But the
Hague Convention merely states that he loses the right to be
treated as a prisoner of war, and ‘peut àtre traduit devant
les tribunaux.’]
Prisoners may acquire their definite freedom during the
continuance of war either by ransom or exchange.
When the European nations, under the influence of Chris-
tianity, desisted from reducing their prisoners to slavery, they
preserved a remnant of the ideas which they had before held,
Ransom.
* Wattel, liv. iii. chap. viii. § 151 ; Moser, Versuch, ix. ii. 369 ; De Martens,
Précis, $ 275; American Instruct., arts. I 19–33 ; Bluntschli, §§ 617–26 ;
I’roject of Declaration of Brussels, arts. 31–3. [Hague Convention, art. I2.]
The practice of paroling troops for a specified period was common in the
eighteenth century; it is now usual to require an engagement not to serve
during the duration of the war.
TO THE PERSON OF ENEMIES 413
and regarded the individual captor as acquiring a right to get PART º
CHAP.
such profit by way of ransom out of his prisoner as the prospect
of indefinite captivity would enable him to exact. So long as
armies were composed of feudal levies or of condottieri this
practice remained nearly undisturbed, and it only so far changed
that prisoners of great importance became the property of the
sovereign, and that the sums payable, which were at first
dependent on agreement in each case, gradually became settled
by usage according to a tolerably definite scale". But in
proportion as royal armies took the place of the earlier forms of
levies, the sovereign who paid his soldiers took to himself the
right of dealing with their prisoners in the manner best suited
to his interests. Under the practice which thus became
established in the seventeenth century, one mode of liberation
continued to be by ransom, but this agreement instead of being
personal became international, and a common scale under which
either state should be allowed to redeem its prisoners was fixed
by cartel either at the outbreaking of the war or from time to
* Edward III was amongst the first, if not the first, to take prisoners of
consequence out of the hands of their captors. He was obliged however to
buy them. (Lingard, Hist. of England, vol. iv. IoT.) Before the end of the
sixteenth century it had become an ‘old custom’ in England, France, and
Spain, that dukes, earls, barons, or other persons magni nominis, should belong
to the king (Ayala, De Jure et Off. Bell. § 27). The private interest of the
actual captor however in prisoners of inferior rank died out very slowly.
From a Proclamation of Charles I, of July 23, 1628, it seems that at that
time it had not wholly disappeared in England; prisoners brought into the
kingdom by private men were to be kept in prison at the charge of the
captors, until they could be delivered by way of exchange or otherwise
Gustavus Adolphus reserved to himself all prisoners of note taken by his
troops, and recompensed the captor “according to the quality of the person,”
but left the prisoners of inferior rank to the takers, subject to the proviso
that they should not be ransomed without the leave of a general officer.
The Swedish Discipline (Lond. 1632), art. Ior. Albericus Gentilis (De Jure
Belli, lib. ii. c. 15) and Grotius (De Jure Belli et Pacis, lib. iii. c. xiv. § 9)
mention rates of ransom customary in their day; the former stating the
amount as the equivalent of the annual pay or income and pay of the
prisoner, the latter as the equivalent of three months’ or a month’s pay, ac-
cording as it would seem to the prisoner's rank. Probably Gentilis is speak-
ing only of prisoners of superior, and Grotius of those of inferior, station.
414 RIGHTS WITH RESPECT
PART III time during its continuance. Gradually this mode of recovering
CHAP. II
captive subjects became alternative with or supplementary to
exchange, and of late has been so entirely superseded by it, that
ransom might almost be regarded as obsolete, were it not that
the possibility of its employment is contemplated by the American
Instructions for Armies in the Field, and that as there is no
moral objection to the practice, the convenience of particular
belligerents might revive it at any moment".
Exchange consists in the simple release of prisoners by each of
two belligerents in consideration of the release of prisoners
captured by the other, and takes place under an agreement
between the respective governments, expressed in a special form
of convention called a Cartel 4. As belligerents have a right to
keep their prisoners till the end of the war, exchange is a purely
voluntary arrangement, made by each party for his own con-
venience; it may therefore be refused by either, but if accepted
it must evidently be based on the principle that equal values
shall be given and received. Equality of value is roughly ob-
tained by setting off the prisoners against each other, man by
man according to their grade or quality, or by compensating for
superiority of rank by the delivery of a certain number of inferior
grade. But the principle of equality is not fully satisfied unless
the prisoners handed over on one side are as efficient as those
which are received from the other : if an officer is worth several
privates, so also a disciplined soldier is worth more than a man
Exchange.
* Vattel, liv. iii. ch. viii. § 153, and ch. xvii. §§ 278–81 ; American Instruct.,
art. Io& ; Bluntschli, § 616. A Cartel of 1673 made between France and the
United Provinces (Dumont, vii. i. 231) provided for ransom alternatively
with exchange ; and like agreements became common from that time.
Examples of the rates of ransom paid in the eighteenth century for military
officers and soldiers may be seen in Moser (Versuch, ix. ii. 390 and 408),
and for naval officers and sailors in De Martens (Rec. iv. 287). The Cartel
agreed to between England and France in 178o (ib. 276), which provided
for the ransom of members of the naval and military forces of the two
nations, is the latest instance of such agreements; and since that time no
prisoners have probably been ransomed except sailors captured in merchant
vessels which have subsequently been released under a ransom bill.
* For cartels and matters connected with them, see postea, p. 550.
TO THE PERSON OF ENEMIES 415
destitute of training, and a healthy man more than an invalid. PART III
A government therefore in proposing or carrying out an exchange “”
is bound not to attempt to foist upon its enemy prisoners of lower
value than those which it obtains from him ".
Some controversies have occurred which illustrate the bearing Contro-
of this rule. In 1777 an agreement for an exchange of prisoners . be-
was made between General Washington and Sir W. Howe, in 1. England
which it was merely stipulated that “officers should be given for t;
officers of equal rank, soldier for soldier, citizen for citizen.’ sº in
When the agreement came to be carried out, the Americans
objected that ‘a great proportion of those sent out ’ by the
English were not fit subjects of exchange when released, and
were made so by the severity of their treatment and confinement,
and therefore a deduction should be made from the list’ to the
extent of the number of non-effectives. Sir W. Howe, while
denying the alleged fact of severe treatment, and referring the
bad state of health of the prisoners to the sickness which is said
to have prevailed in the American army at the time, fully granted
‘that able men are not to be required by the party, who contrary
to the laws of humanity, through design, or even neglect of
reasonable and practicable care, shall have caused the debility of
the prisoners he shall have to offer to exchange *.’
In 1810 negotiations for an exchange took place between 2. England
England and France. At that time 43,774 French soldiers and #.
sailors, together with 2,700 Dutch, Danes, and Russians, were **
prisoners in England. France on her part could only offer
11,458 efficient English, but she also held in custody 500 civilian
‘ détenus’ and 38,355 Spaniards. The English government
proposed an exchange of English as against French only ; but
the Emperor demanded that as the Spaniards were the allies of
England they should be exchanged against French on like terms
with the English, and pari passu with them so far that for every
* Wattel, liv. iii. ch. viii. § 153; American Instruct., arts. Io5–6, Io9 ;
Bluntschli, §§ 612–14 ; Wheaton, Elem. pt. iv. ch. ii. § 3.
* Washington's Corresp., vol. iv. 439, 454, and Append. xiii and xiv.;
Moser, Versuch, ix. ii. 291—31I.
416 RIGHTS WITH RESPECT
PART III three Frenchmen exchanged one Englishman and two Spaniards
CHAP. II
should be handed over. The difference of quality between Eng-
lish or French soldiers and Spanish troops rendered the pretension
that all should be exchanged on equal terms an absurd one, and
the British government refused at first to admit it. Afterwards
in their anxiety to procure the release of the civilians detained in
France they consented to a general exchange; making it only a
condition of the agreement that the exchange should begin with
the release of the English against an equivalent number of
Frenchmen. Their caution was justified by the condition being
rejected, and the negotiations consequently fell through ".
It is the usage that in the absence of express stipulation ex-
changed prisoners must not take part in the existing war”.
Under an old custom chaplains and members of the medical
staff are given up on an exchange taking place without equiva-
lents being demanded *.
A belligerent, besides having the rights over his enemy which
flow directly from the right to attack, possesses also the right of
punishing persons who have violated the laws of war, if they
afterwards fall into his hands, of punishing innocent persons by
way of reprisal for violations of law committed by others, and of
seizing and keeping non-combatants as hostages for the purpose
of enabling himself to give effect without embarrassment to his
rights of war.
To the exercise of the first of the above-mentioned rights no
objection can be felt so long as the belligerent confines himself to
punishing breaches of universally acknowledged laws. Persons
convicted of poisoning wells, of assassination, of marauding, of the
use of a flag of truce to obtain information, or of employing
weapons forbidden on the ground of the needless suffering caused by
them, may be abandoned without hesitation to the fate which they
* Corresp. de Nap. i. xxi. 69; Ann. Register for 1811, p. 76.
* Bluntschli, § 613.
* For examples of early cartels in which stipulations for such surrender
Rights of
punish-
ment and
security.
Punish-
ment.
are contained, see Dumont, vii. i. 231 ; Pelet, Mém. Milit. relatifs à la Succ.
d'Espagne, iii. 778; Moser, ix. ii. 397 and 418.
TO THE PERSON OF ENEMIES 417
deserve. When however the act done is not universally thought PART III
to be illegitimate, and the accused person may therefore be guilt- CHAP. Iſ
less of intention to violate the laws of war, it may be doubtful
whether a belligerent is justified in enforcing his own views to
any degree, and unquestionably he ought as much as possible to
avoid inflicting the penalty of death, or any punishment of a
disgraceful kind. . In 1870 the Germans issued a proclamation
under which French combatants, not possessing the distinguish-
ing marks considered by their enemy to be necessary, were to be
liable to the penalty of death, and in cases in which it was not
inflicted were to be condemned to penal servitude for ten years,
and to be kept in Germany until the expiration of the sentence".
The whole question by what kind of marks combatants should
be indicated, and to what degree such marks should be con-
spicuous, was at the time an open one; if inadequate marks
were used, they would be used in the vast majority of instances
under the direction or permission of the national authorities;
and the individual would as a rule be innocent of any intention
to violate the laws of war. If the marks sanctioned by the
French government were glaringly insufficient, there might be
good reason for executing a few members of its irregular forces
or for condemning some to penal servitude until the end of the
war. But measures of this kind ought only to be threatened
when disregard of the laws of war on the part of an enemy is
clear; they ought only to be carried out in the last extremity;
and it can never be legitimate to inflict a penalty extending
beyond the duration of the war. To do so is to convert a
deterrent into a punishment for crime; and in such cases as that
in question a crime cannot be committed by the individual so
long as he keeps within the rangé of acts permitted by his
government. The case of individuals who outstep this range is
of course a wholly different one.
Reprisal, or the punishment of one man for the acts of another, Reprisal.
* The proclamation is given in Delerot, Versailles pendant l'Occupa-
tion, IO4.
HALL. E €
4.18 RIGHTS WITH RESPECT, ETC.
PART III is a measure in itself so repugnant to justice, and when hasty or
CHAP. II
Seizure of
hostages.
excessive is so apt to increase rather than abate the irregularities
of a war, that belligerents are universally considered to be bound
not to resort to reprisals except under the pressure of absolute
necessity, and then not by way of revenge, but only in cases
and to the extent by which an enemy may be deterred from
a repetition of his offence".
Hostages are often seized in order to ensure prompt payment
of contributions and compliance with requisitions, or as a col-
lateral security when a vessel is released on a ransom bill; more
rarely they are used to guard against molestation in a retreat
and for other like purposes”. Under a usage which has long
become obligatory it is forbidden to take their lives, except
during an attempt at escape, and they must be treated in all
respects as prisoners of war, except that escape may be guarded
against by closer confinement *.
* Manuel de Droit Int, a 1'Usage, &c., 25; American Instruct., arts. 27–8;
Manual of the Institute, art. 86. See also the Articles on Reprisals submitted
by the Russian Government to the Conf. of Brussels, Parl. Papers, Miscell.
No. i. 1875, p. Io9. - -- .
* Bluntschli, § 600 ; Moser, Versuch, ix. 395, and ix. ii. 458; Twiss, ii.
360 ; Valin, Ord. de la Marine, liv. iii. tit. ix. art. 19. The German army
appears to take hostages almost as a matter of course when requisitioning
and even when foraging; Von Mirus, Hülfsbuch des Kavalleristen, 2*
Theil, Kap. 18. In Wolseley's Soldier's Pocket Book, p. 167, the seizure of
hostages is recommended as a means of obtaining information. For hostages
taken to guarantee the maintenance of order in occupied territory, see postea,
P. 474.
* Wattel, liv. ii., ch. xvi. §§ 246–7; Bluntschli, § 600.
CHAPTER III
RIGHTS WITH RESPECT TO THE PROPERTY
OF THE ENEMY
Under the old customs of war a belligerent possessed a right PART III
to seize and appropriate all property belonging to an enemy jº
state or its subjects, of whatever kind it might be, and in any of the
place where acts of war are permissible. Gradually this extreme subject.
right has been tempered by usage under the influence of the
milder sentiments of recent times. In a few directions it has
disappeared; in most it has been restricted by limitations greater
or less according to the nature of the property and the degree to
which its seizure is possible or advantageous to the belligerent.
The law upon the subject therefore is broken up into several
distinct groups of rules corresponding to the differences indicated.
Those relating to the appropriation of the ultimate or eminent
property possessed by the state in its territory may be put aside
for the moment. As such appropriation cannot be completed
until peace has been concluded or an equivalent state of things
has been set up, they will find their proper place in another
chapter. The remaining rules may be conveniently divided into
the heads of those affecting— -
1. State property other than ultimate territorial property, viz.
moveables and land and buildings in which the immediate as
well as the ultimate property is in the hands of the state.
2. Private property within the territory of its owner's state.
3. Private property within the jurisdiction of the enemy.
4. Private property in places not within the jurisdiction of
any state.
Behind the customs with respect to the appropriation of enemy Rough
division of
property, and modelling them with tolerable, though not with property
E 6 2.
420 RIGHTS WITH RESPECT.
PART III
CHAP. III
susceptible
of appro-
priation
from pro-
perty
insuscep-
tible of
appropri-
ation.
State pro-
perty.
Moveables.
complete consistency and success, may perhaps be found the
principle that property can be appropriated of which immediate
use can be made for warlike operations by the belligerent seizing
it, or which if it reached his enemy would strengthen the latter
either directly or indirectly, but that on the other hand property
not so capable of immediate or direct use or so capable of strength-
ening the enemy is insusceptible of appropriation. Whether this
is the case or not, there is at least a rough correspondence between
the principle and accepted practice, which it may be worth while to
keep in mind as a sort of guide to what may or may not be seized.
As a general rule the moveable property of the state may be
appropriated. Thus a belligerent seizes all munitions of war
and other warlike materials, ships of war and other government
vessels, the treasure of the state and money in cheques or other
instruments payable to bearer, also the plant of state railways,
telegraphs, &c. He levies the taxes and customs, and after
meeting the expenses of administration in territory of which he
is in hostile occupation, he takes such sum as may remain for his
own use *.
So far there is no question. A belligerent either seizes pro-
perty already realised and in the hands of the state, or property
which he may perhaps be considered to appropriate under a sort
of mixed right, of which it is difficult to disentangle the
elements, partly as moneys belonging to the state when they
accrue due, and partly as private property appropriated according
to a scale conveniently supplied by the amount of existing
taxation. It is, no doubt, unsatisfactory to explain thus the
latter kind of appropriation ; and it probably can only be
accounted for logically by adopting an inadmissible doctrine
which will be discussed under the head of military occupation.
The practice however is settled in favour of the belligerent.
But can he go further ? Can he substitute himself for the
* From the taxes, customs, or other state revenues which an enemy may
take for his own use must be excepted any which have been hypothecated
by the state in payment of any loan contracted with foreign lenders before
the commencement of the war.
TO THE PROPERTY OF THE ENEMY 421
invaded state, and appropriate moneys due upon bills or cheques PART III
requiring endorsement, or upon contract debts in any other “”
form 2 Seizure in such case might not be direct; it might have
to be enforced through the courts, and possibly through the
courts of a neutral state; seizure also would not be effected
once for all; upon the question of its validity or invalidity
would depend whether the invaded state could demand a second
payment at a future time. . The matter is therefore one of con-
siderable importance. The majority of writers, it would seem *,
consider funds in the shape contemplated to be amongst those
which a belligerent can take. The arguments of M. Heffter
and Sir R. Phillimore in a contrary sense appear however to be
unanswerable. According to them, incorporeal things can only
be occupied by actual possession of the subject to which they
adhere. When territory is occupied, there are incorporeal rights,
such as servitudes, which go with it because they are inherent
in the land. But the seizure of instruments or documents re-
presenting debts has not an analogous effect. They are not the
subject to which the incorporeal right adheres; they are merely
the evidence that the right exists, “ or, so to speak, the title-
deeds of the obligee.’ The right itself arises out of the purely
personal relations between the creditor and the debtor; it inheres
in the creditor. It is only consequently when a belligerent is
entitled to stand in the place of his enemy for all purposes, that
is to say, it is only when complete conquest has been made and
the identity of the conquered state has been lost in that of the
victor, that the latter can stand in its place as a creditor, and
gather in the debts which are owing to it”.
* Heffter, S 134. Power to appropriate recoverable or negotiable debts or
securities belonging to the state is recognised by the Manual of the Institute,
art. 50. [But by art. 53 of the Hague Convention an army of occupation is
only permitted to take possession of the cash, funds, and property liable to
requisition belonging strictly to the state, and generally all moveable property
of the state which may be used for military operations.] -
* Heffter (§ 134) discusses the question tersely; Sir R. Phillimore (pt. xii.
ch. iv) with extensive learning. *
The latter writer remarks that the jurists who consider that the seizure of
422 RIGHTS WITH RESPECT
PART III Land and buildings on the other hand may not be alienated. -
CIHAP. III
Land and
buildings.
They may perhaps be conceived of as following the fate of the
territory, and as being therefore incapable of passing during
the continuance of war, though as the immediate property of the
state is distinguishable from the ultimate or eminent property,
this view would not be satisfactory; and it is more probable
that the custom, which has now become compulsory, originally
grew out of the impossibility of giving a good title to a pur-
chaser. Purchase, unlike the payment of taxes, is a voluntary
act; the legitimate government therefore in recovering possession
is obviously under no obligation to respect a transaction in which
the buyer knows that he is not dealing with the true owner.
An occupant may however seize the profits accruing from the
real property of the state and may make what temporary use
he can of the latter, subject it would seem to the proviso that he
must not be guilty of waste or devastation. Thus he can use
buildings to quarter his troops and for his administrative services,
he receives rents, he can let lands or buildings and make other
contracts with reference to them, which are good for such time
as he is in occupation, and he can cut timber in the state
forests; but in cutting timber, for example, apart from the local
necessities of war, he must conform to the forest regulations
of the country, or at least he must not fell in a destructive
manner so as to diminish the future annual productiveness of the
forests'. [In the words of the Hague Convention, he ‘must
an instrument representing a debt carries with it the right to exact payment
from the debtor appear to have been misled by supposed analogies of Roman
law. As in the cases contemplated by that law intention to transfer the
right is supposed, and the instrument is understood to be handed over as
a bequest or donation in proof of the right, the analogy is not evident.
* In 1870 the German government sold I5,ooo oaks growing in the state
forests of the Departments of the Meuse and the Meurthe. After the con-
clusion of peace the French government seized those which had not already
been removed. The purchasers appealed to the German government ; but
the latter, recognising that it had exceeded its rights, replied that the matter
must be left to the judgment of the French Courts, which annulled the
sale as being wasteful and excessive. Journal de Droit Int. Privé, 1874,
p. I26. [See Hague Convention, art. 55.]
TO THE PROPERTY OF THE ENEMY 423.
protect the capital of these properties and administer it according PART III
to the rules of usufruct.’]
CHAP. III
From the operation of this general right to seize either the State pro-
erty at-
totality, or the profits, of property according to its nature are fºilo
excluded property vested in the state but set permanently apar
t the main-
tenance of
for the maintenance of hospitals, educational institutions, and hospitals,
scientific or artistic objects, and also the produce of rates and
taxes of like kind levied solely for local administrative purposes".
C.
It is also forbidden to seize judicial and other legal documents Archives,
or archives and state papers, except, in the last case, for specific
objects connected with the war. The retention of such docu-
ments is generally of the highest importance to the community
to which they belong, but the importance is as a rule rather
of a social than of a political kind; their possession by an in-
vader, save in the rare exception stated, is immaterial to him ;
their seizure therefore constitutes a wanton injury. • &
&c.
Although the matter is sometimes treated as being open to Cºntents
of mu-
doubt, there seems to be no good ground for permitting the seums, &c.
appropriation of works of art or the contents of museums or
libraries. If any correspondence ought to exist between the
right of appropriation and the utility of a thing for the purposes
of war, it is evident that the objects in question ought to be
exempted. There is besides a very persistent practice in their
favour ; though it must be admitted that the major part of that
practice has been prompted by reasons too narrow to support
a rule of exemption as things are now viewed. During the
eighteenth century works of art and the contents of collections
were spared, as royal palaces were spared, on the ground of the
personal courtesy supposed to be due from one prince to another.
Museums and galleries are now regarded as national property.
The precedents afforded by last century are consequently searcely
in point. But usage has remained unchanged. Pictures and
| Manuel de Droit Int, a 1'Usage, &c., 2° p", tit. iv. ch. i. § 1 ; American
instruct., arts. 31 and 34; Manual of the Institute, arts. 52–3; Halleck, ii.
97; Bluntschli, §§ 646, 648. [Hague Convention, art. 56.] -
424 RIGHTS WITH RESPECT
PART III statues and manuscripts have not been packed in the baggage of
"*" a conqueror, except during the campaigns of the Revolution and
of the first French Empire. The events which accompanied the
conclusion of peace in 1815 were not of a kind to lend value to
the precedents which those campaigns had created. The works
of art which had been seized for the galleries of Paris during the
early years of the century were restored to their former owners;
and Lord Castlereagh in suggesting their restoration by a note
addressed to the ministers of the allied powers on Sept. I I, 1815,
pointed out that it was a duty to return them to the countries to
which they of right belonged,” and stigmatised the conduct of
France as ‘a reproach to the nation by which it has been adopted.’
A restoration effected in consequence of this note may be taken
to be a solemn affirmation of the principle of exemption by all
the great powers except France; and if the language of the
Declaration on the laws of war proposed at the Conference
of Brussels was somewhat ambiguous, the discussion reported
in the Protocols shows that it was not wished to reserve a
right of carrying off works of art, but to subject them to
the momentary requirements of military necessity'. [And
* The practice or doctrine of exemption is indicated or stated by Moser
(Versuch, ix. i. 159); De Martens (Précis, $ 289); Klüber (§ 253); Calvo
(§§ 1915–17). See also Manuel de Droit Int, à l'Usage, &c., p. II9. [Hague
Convention, art. 56.]
Sir T. Twiss (§ 68) also seems to hold that public collections are exempt
from capture, and quotes a case in which a collection of Italian paintings
and prints taken by a British vessel on its passage from Italy to the United
States in 1812 was restored to the Academy of Arts at Philadelphia on the
ground that “the arts and Sciences are considered not as the peculium of
this or that nation, but as the property of mankind at large, and as belonging
to the common interests of the whole species ; and that the restitution of
such property to the claimants would be in conformity with the Law of
Nations, as practised by all civilised countries.” For the documents relating .
to the restoration of the works of art in Paris in 1815 to their former owners,
See De Martens, Nouv. Rec. ii. 632–50; in one of the despatches there given
the Duke of Wellington speaks of the French appropriations as having been
“contrary to the practice of civilised war.’
Vattel and Heffter take no notice of the matter; Wheaton (pt. iv. ch. ii.
$ 6) refrains from giving any opinion of his own.
Halleck (ii. IoA) and Bluntschli (§ 651) consider that the immunity of
Works of art and like objects is not obligatory on a belligerent. Sir Samuel.
TO THE PROPERTY OF THE ENEMY 425
the practice is absolutely forbidden by the terms of the Hague PART III
Convention.] - CHAP. III
Finally, vessels engaged in exploration or scientific discovery vessels.
are granted immunity from capture. The usage began in the *
last century when Bougainville and La Pérouse appear to have *Y*Y.
been furnished with safe-conducts to protect them in the event
of war breaking out during their voyage, and the French
government in 1776 ordered all men of war and privateers to
treat Captain Cook as a neutral so long as he abstained from
acts of hostility. During the present century there have been
several occasions on which there has been reason for behaving in
a like manner, and on which accordingly vessels have been fur-
nished with protections. The most recent of these was the
despatch of the Austrian corvette Novara on a scientific
expedition in 1859 . *
Of the private property found by a belligerent within the Private
territory of his enemy, property in land and houses, including §.
property in them held by others than their absolute owners, was ."
very early regarded as exempt from appropriation. The ex-owner's
* • state.
emption was no doubt determined by reasons much the same . d, &c.
as those which have been suggested as accounting for the
prohibition to alienate state domains. Land being immoveable,
its fate was necessarily attendant on the ultimate issue of
hostilities; an invader could not be reasonably sure of continued
possession for himself, nor could he give a firm title to a
purchaser; and these impossibilities re-acted upon his mind so
as to prevent him from feeling justified in asserting the land to
be his,
Personal property on the other hand, until a late period, :
Romilly's speech of February 20, 1816, which is sometimes quoted in favour
of this view, merely objects to the restitution made by the allies, that the
most valuable of the works of art seized by the French had been secured to
them by treaty stipulations, and that the allies had no right to override
treaties made between France and other states by unilateral acts of their
own. This contention may be well founded enough, but of course it has
nothing to do with the principle in question. Hansard, xxxiii. 759.
* Halleck, ii. I49; Calvo, $ 2056. -
426 RIGHTS WITH RESPECT
PART III consisted mainly in the produce of the soil, merchandise, coin,
CHAP. III
and moveables of value. It was therefore of such kind that
much of it being intended to be destroyed in the natural course
of use, an invader could render his ownership effective by
consuming the captured objects, and that all of it was capable
of being removed to a place of safety whither it might reasonably
be supposed that its owner would be unable to follow it. Hence
personal property remained exposed to appropriation by an
enemy; and so late as the seventeenth century, armies lived
wholly upon the countries which they invaded, and swept away
what they could not eat by the exercise of indiscriminate pillage.
But gradually the harshness of usage was softened, partly from
an increase of humane feeling, partly for the selfish advantage
of belligerents, who saw that the efficiency of their soldiers was
diminished by the looseness of discipline inseparable from
marauding habits, and who found, when war became systematic,
that their own operations were embarrassed in countries of which
the resources were destroyed. A custom grew of allowing the
inhabitants of a district to buy immunity from plunder by the
payment of a sum of money agreed upon between them and the
invader', and by furnishing him with specified quantities of
* Both the Swedes and Imperialists commonly admitted towns to ransom
during the Thirty Years' War ; see the cases, e.g. of Munich, Würtzburg,
Freisingen, and Rothenburg, which paid contributions to the Swedes, and
those of Hildesheim, Spires, Bayreuth, and Altenburg, to the Imperialists.
Swedish Intell. pts. ii. and iii. From the Army Regulations of Gustavus
Adolphus may be seen the intimate connexion between the restriction of
pillage and the sense of its bad effect on the efficiency of the soldiery. “They
that pillage or steale eyther in our land or in the enemies or from any of
them that come to furnish our leaguer or strength, without leave, shall be
punisht for it as for other theft. If it so please God that we beate the enemy
either in the field or in his leaguer then shall every man follow the chace
of the enemies; and no man give himself to fall upon the pillage, So long as
it is possible to follow the enemy, and untill such time as he be assuredly
beaten. Which done then may their quarters be fallen upon, every man
taking what he findeth in his owne quarter.” The Swedish Discipline,
London, 1632, p. 56. It would seem that as a general rule pillage was only
permitted in the Swedish army after a battle or the capture of a town ; the
Swedish soldiers however were at that time far better organised and dis-
ciplined than those of any other country, and the habits of the Imperialists
TO THE PROPERTY OF THE ENEMY 427
articles required for the use of his army; and this custom has PART III
since hardened into a definite usage, so that the seizure of “”
moveables or other personal property in its bare form has, except
in a very few cases, become illegal.
The former custom of pillage was the most brutal among the
recognised usages of war. The suffering which directly attended
it was out of all proportion to the advantages gained by the
belligerent applying it; and it opened the way to acts which
shocked every feeling of humanity. In the modern usage,
however, so long as it is not too harshly enforced, there is little
to object to. As the contributions and requisitions which are
the equivalents of compositions for pillage are generally levied
through the authorities who represent the population, their
incidence can be regulated; they are moreover unaccompanied
by the capricious cruelty of a bombardment, or the ruin which
marks a field of battle. If therefore they are compared, not
merely with universal pillage, but with more than one of the
necessary practices of war, they will be seen to be relatively
merciful. At the same time if they are imposed through
a considerable space of territory, they touch a larger proportion
-of the population than is individually reached by most warlike
measures, and they therefore not only apply a severe local stress,
but tend, more than evils felt within a narrower range, to
indispose the enemy to continue hostilities.
The regulated seizure of private property is effected by the Contribu-
levy of contributions and requisitions. Contributions are such *
payments in money as exceed the produce of the taxes, which, as tions.
has been already seen, are appropriated as public property.
Requisitions consist in the render of articles needed by the army
for consumption or temporary use, such as food for men and
animals, and clothes, waggons, horses, railway material, boats,
and other means of transport, and of the compulsory labour,
whether gratuitous or otherwise, of workmen to make roads, to
were very different. [The pillaging of a town taken by assault is expressly
forbidden by the Hague Convention, art. 28.] -
428 RIGHTS - WITH RESPECT
PART III drive carts, and for other such services". The amount both of
CHAP. III
contributions and requisitions is fixed at the will of the invader”;
the commander of any detached body of troops being authorised
under the usual practice to requisition objects of immediate use,
such as food and transport, while superior officers are alone per-
mitted to make demands for clothing and other articles for
effecting the supply of which some time is necessary *, and con-
* It is constantly said, apparently on the authority only of De, Garden,
that the term ‘requisition, and the mode of appropriation signified by it,
were both invented by Washington. The term may very possibly have been
invented by him, but the practice is of much older date. Indeed, consider-
ing the difficulties of transport before his time, requisitions were most likely
larger during the whole of the eighteenth century in proportion to the size
of the armies employed than they now are. The use of the word contribution
to express both contributions and requisitions has tended to keep the fact
that the latter were exacted from becoming prominent ; but there are plenty
of passages in despatches and military memoirs in which the context shows
that the word contribution is used of contributions in kind, that is to Say
of determinate quantities of specified articles furnished on the demand of
an enemy by a given place or district. Not infrequently the levy of requisi-
tions is plainly stated; and their systematic use is prescribed by Frederic II.
“If an army is in winter quarters in an enemy's country,” he says, “the
soldiers receive gratis bread, meat, and beer, which are furnished by the
country.” A few lines further on he adds that “the enemy country is bound
to supply horses for the artillery, munitions of war, and provisions, and to
make up any deficiency in money.” Les Principes Généraux de la Guerre,
CEuv. xxviii. 91. Comp. Moser, Versuch, ix. i. 378.
* Towards the end of the seventeenth century the custom of making
bargains with towns or districts by way of compounding for pillage seems
to have been changed into one under which belligerent sovereigns at the
commencement of war made arrangements with each other limiting the
amount of the contributions which should be levied in their respective
territories on invasion taking place, and fixing the conditions under which
they should be imposed (Wattel, liv. iii. ch. ix. § 165); but in the eighteenth
century usage again altered, and while contributions were invariably substi-
tuted for pillage, except in the case of towns taken by assault, the amount
was usually settled in the same manner as at present. Moser (Versuch, ix.
i. 376) gives both methods as used. *
* In 1870, for example, an order issued by the commanders-in-chief of
the German armies stated that “tous les commandants de corps détachés
auront le droit d'ordonner la réquisition de fournitures nécessaires à l’entre-
tien de leurs troupes. La réquisition d'autres fournitures jugées indispen-
sables dans l’intérêt de l’armée ne pourra étre ordonnée que par les généraux
et les officiers faisant fonctions de généraux." D'Angeberg, No. 328. In
I797 Napoleon ordered that a general of division should not make “d'autres
réquisitions que celles nécessaires pour les objets de subsistance, pour les
TO THE PROPERTY OF THE ENEMY 429
tributions can be levied only by the commander-in-chief, or by PART III
the general of a corps acting independently. Hostages are some- " "
times seized to secure the payment or render of contributions and
requisitions ; and when the amount demanded is not provided by
the time fixed, the invader takes such measures as may be
necessary to enforce compliance at the moment or to guard by
intimidation against future disobedience*. Receipts or * bons de
réquisition * are given in acknowledgment of the sums or quanti-
: ties exacted in order that other commanders may not make fresh
impositions without knowing the extent ofthose already levied, and
to facilitate the recovery by the inhabitants from their own govern-
ment of the amounts paid, if the latter determines on the conclusion
of peace to spread the loss suffered over the nation as a whole *.
transports indispensables, et pour les souliers ;' all others were to be made
by the commander-in-chief alone. Corresp. ii. 32 I. See also the Project
of Declaration of Brussels, arts. 41-2. . <.
* The nature of the methods which are sometimes used may be seen from
the measures taken by the Germans in Nancy in January, I87I :-
* Considérant qu'après avoir requis 5oo ouvriers, en vue d'exécuter un
travail urgent, ceux-ci n'ont pas obtempéré à nos ordres ; arrêtons :- .
* I°. Aussi longtemps que ces 5oo ouvriers ne se seront pas rendus à leur
poste, tous les travaux publics du département de la Meurthe seront sus-
pendus ; sont donc interdits tous travaux de fabrique, de voirie, de rues ou
de chemins, de construction et autres d'utilité publique.
* 2°. Tout atelier privé qui occupe plus de dix ouvriers sera fermé dès à
présent et aux mêmes conditions que pour les travaux prémentionnés ; sont
donc fermés tous ateliers de charpentiers, menuisiers, maçons, manœuvres,
tous travaux de mine et fabriques de toute espèce. -
* 3°. Il est en même temps défendu aux chefs, entrepreneurs et fabricants,
dont les travaux ont été suspendus, de continuer à payer leurs ouvriers.
* Tout entrepreneur, chef ou fabricant qui agira contrairement aux dis-
positions ci-dessus mentionnées, sera frappé d'une amende de Io à 5o,ooo
francs pour chaque jour où il aura fait travailler et pour chaque paiement
opéré. - - ©r
* Le présent arrêté sera révoqué aussitôt que les 5oo ouvriers en question
se seront rendus à leur poste, et il leur sera payé à chacun un salaire de
3 francs pâr jour.' -
An intimation was at the same time made to the Mayor of Nancy which
caused him to issue the following proclamation :-* Monsieur le Préfet de la .
Meurthe vient de faire à la mairie de Naney l'injonction suivante : * Si
demain mardi, 24 janvier, à midi, 5oo ouvriers des chantiers ne se trouvent
pas à la gare, les surveillants d'abord, et un certain nombre d'ouvriers
ensuite, seront saisis et fusillés sur lieu.** D'Angeberg, Nos. IoI6, IoI7.
* On contributions and requisitions see Vattel, liv. iii. ch. ix. $ 165 ; Moser,
480 RIGHTS WITH RESPECT
PART III
CHAP. III
No usage is in course of formation tending to abolish or re-
strain within specific limits the exercise of the right to levy
contributions and requisitions. The English on entering France
in 1813, the army of the United States during the Mexican War,
and the Allied forces in the Crimea, abstained wholly or in the
main from the seizure of private property in either manner; but
in each case the conduct of the invader was dictated solely by
motives of momentary policy, and his action is thus valueless as
a precedent. There is nothing to show that the governments of
any of the countries mentioned have regarded the levy of con-
tributions and requisitions as improper; and that of the United
States, while allowing its generals in Mexico to use their discre-
tion as to the enforcement of their right, expressly affirmed it in
the instructions under which they acted". One of the articles of
the proposed Declaration of Brussels, had it become law, would
have deprived an invader of all right to levy contributions except
in the single ease of a payment in money being required in lieu
of a render in kind, and would therefore have enabled him at
a maximum to demand a sum not greater than the value of all
articles needed for the use and consumption of the army and not
actually requisitioned”. But so long as armies are of the present
size it may be doubted whether the inhabitants of an occupied
territory would gain much by a rule under which an invader
Versuch, ix, i. 375–83; Halleck, ii. Io9–14; Bluntschli, § 653; Calvo,
§§ 1933–9; Manuel de Droit Int. a l'Usage, &c., 2° p", tit. iv. ch. iii.; Manual
of the Institute, arts. 56, 58, and 6o. [Hague Convention, arts. 48, 49, 51, 52, 53.]
* Mr. Marcy’s Instructions to Gen. Taylor, quoted by Halleck, ii. II2. The
Treaty of Guadalupe Hidalgo, which closed the Mexican war, provided that
during any future hostilities requisitions shall be paid for ‘at an equitable
price if nećessity arise to take anything for the use of the armed forces.” De
Martens, Nouv. Rec. Gén. xiv. 34. Probably the treaty of 1785 between the
United States and Prussia (id. Rec. ii. 576) is the only other in which a like
provision is contained, and the article directing that private property if
taken should be paid for was struck out when the treaty was renewed in 1799
(id. Sup. ii. 226). s
* The so-called contributions by way of fine, or as equivalents of the taxes
payable by the population to its own government, which are mentioned in
the same article, are not of course contributions in the proper sense of the
word.
TO THE PROPERTY OF THE ENEMY 431
would keep possession of so liberal a privilege; and though the PART III
& e - te - CHAP. III
representatives of some minor states put forward the view that
a belligerent ought to pay or definitively promise to pay for
requisitioned articles, the scheme of declaration as finally settled
gave to the right of requisition the entire scope which is afforded
by the so-called ‘necessities’ of war; [and this view has been
followed in the Hague Convention]". It must not be forgotten
that in the war of 1870—I the right of levying contributions and
requisitions was put in force with more than usual severity”.
The subject of the appropriation of private property by way Whether
te te tº º f tº º . contribu-
of contribution and requisition cannot be left without taking ions and
requisi-
? tions are
and which the assailants of the right of maritime capture use in a form of
e e appropria-
the endeavour to protect themselves against a charge of incon-tion of
sistency. It is denied that contributions and requisitions are #y.
notice of a doctrine which is held by a certain school of writers
a form of appropriation of private property. As pillage is not
now permitted, payments in lieu of it must, it is said, have
become illegal when the right to pillage was lost ; a new
‘juridical motive’ must be sought for the levy of contributions
and requisitions; and it is found in ‘a right, recognised by
public law as belonging to an occupying belligerent, to exercise
sovereign authority to the extent necessary for the maintenance
* Declaration of Brussels, arts. 40—I [and Hague Convention, arts. 49, 52],
and see Parl. Papers, Miscell. i. 1875, 97–9, Io2–9, 128.
* The language of some writers (Heffter, § 131 ; Bluntschli, §§ 653–5;
Calvo, §§ 1938–9) might at first sight be supposed to mean that under the
existing rules of law articles or services can only be obtained by requisition
on payment of their value. . A closer examination shows this construction to
be hasty. According to M. Heffter the payment is to be provided for by the
terms of peace; in other words, the invader merely pays if his enemy
becomes strong enough to compel him to do so. M. Bluntschli says that ‘il
faut dédommager les propriétaires, et d'après les principes du droit naturel,
cette tâche incombe en première ligne à l'état qui saisit ces biens et les
emploie à son profit. Siles réclamations dirigées contre cet état n’aboutis-
saient pas, l'équité exigerait que l'état sur le territoire duquel la réquisition
a eu lieu füt rendu subsidiairement responsable.” But he remarks elsewhere
that ‘l’armée ennemie manque la plupart du temps de l'argent nécessaire ;
elle se bornera done en général a constater le paiement des contributions. . . .
Les réquisitions sont done la plupart du temps pour les particuliers un mal
inséparable de la guerre et qui doit étre supporté par ceux quien Sont atteints.’
432 RIGHTS WITH RESPECT
PART III and safety of his army in the occupied country, where the power
*** * of the enemy government is suspended by the effect of his
operations.’ Private property is thus not appropriated, but
‘subjected to inevitable charges' laid upon it in due course of
ordinary public law". It is not the place here to discuss the
assertion that an invader temporarily stands in the stead of the
legitimate sovereign. It is enough for the moment to say that
the legal character of military occupation will be shown later to
be wholly opposed to the doctrine of such substitution, that in
order to find usages of occupation which require that doctrine to
explain them it is necessary to go back to a time of less regulated
violence than the present, that taking occupation apart from any
question as to contributions and requisitions practice and opinion
have both moved steadily away from the point at which substitu-
tion was admitted, and that thus the theory which affects to
be a progress is in truth a retrogression”. On the minor point
of the alleged necessity of the charges laid by way of con-
tribution and requisition on the population of an occupied
territory, it can hardly be requisite to point out that no such
necessity exists. It is often impracticable to provide subsistence
and articles of primary necessity for an army without drawing
by force upon the resources of an enemy’s country; labour is
often urgently wanted, and when wanted it must be obtained;
but there is nothing to prevent a belligerent from paying on the
spot or giving acknowledgments of indebtedness binding himself
to future payment. If a state cannot afford to pay, it simply
labours under a disadvantage inseparable from its general position
in the world, and identical in nature with that which weighs
upon a country of small population or weak frontier. Whether
states cannot or will not pay, fictions cannot be admitted into
law in order to disguise the fact that private property is seized.
That its seizure is effective, and that seizure as now managed is
a less violent practice than many with which belligerent popula-
* See for example Bluntschli, Du Droit du Butin, Rev. de Droit Int. ix. 545.
* Comp. postea, p. 469.
TO THE PROPERTY OF THE ENEMY 433
tions unhappily become familiar, has been already said. It may PART III
be indulged in without shame while violence is legitimate at all; CHAP. III
and so long as the practice lasts, it will be better to call it
honestly what it is than to pretend that it is authorised by
a right which a belligerent does not possess and a necessity that
does not exist.
Thus far contributions and requisitions have been considered Under
º g - s what con-
with tacit reference to that phase of warfare only, viz. warfare jas
on land, with which they have hitherto been associated. But .
tions and
the great increase which has taken place in several countries requisi-
t g tions may
in the number of rich undefendéd coast towns, the larger be levied
facilities for making descents upon them which are afforded ºval
by the use of steam, and, finally, certain recent indications
that the levy of money under threat of attack may be used as
a means of offence in the next naval war, render it necessary
to consider whether the exaction of requisitions is a permissible
incident, and the levy of contributions a permissible form, of
hostilities conducted by a naval force. -
In 1882 Admiral Aube, in an article on naval warfare of the
future, expressed his opinion that ‘armoured fleets in possession
of the sea will turn their powers of attack and destruction against
the coast towns of the enemy, irrespectively of whether these are
fortified or not, or whether they are commercial or military, and
will burn them and lay them in ruins, or at the very least will
hold them mercilessly to ransom ; ” and he pointed out that to
adopt this course would be the true policy of France, in the event
of a war with England". There is no reason to believe that either
political or naval opinion in France dissented from these views”;
* Revue des Deux Mondes, tom. 1. p. 33+.
* The French government, on being asked by the British government
whether it accepted responsibility for Admiral Aube's articles, dissociated
itself from him ; but a repudiation, which was immediately followed by his
appointment as Minister of Marine, and by the adoption of a scheme of naval
construction in accordance with his views, could have no serious value. His
proposals met with the approval of the newspaper press. They were
supported and exceeded in various articles spread over a considerable space
of time by “TJn Officier de la Marine * in the Nouvelle Revue, and in the
HALL F f
434 RIGHTS WITH RESPECT
PART III very shortly after their publication Admiral Aube was appointed
*** Minister of Marine; and he was allowed to change the ship-
building programme of the country, and to furnish it with
precisely the class of ships needed to carry them out. During
the English Naval Manoeuvres of 1888, an attempt was made to
bring home to the inhabitants of commercial ports what the con-
sequences of deficient maritime protection might be, by inflicting
imaginary bombardments and levying imaginary contributions
upon various places along the coast. Mr. Holland objected to
these proceedings on the ground that they might be cited by an
enemy as giving an implied sanction to analogous action on his
part. A correspondence followed, in which several naval officers
of authority combated Mr. Holland’s objections, partly on the
ground that, in view of foreign naval opinion on the subject,
an enemy must be expected to attack undefended English towns,
partly on the ground that attack upon them would be a legitimate
operation of war". Still more significant is the fact, which has
become known, that in 1878 it was intended by the Russian
government that the fleet at Vladivostock should sail for the
undefended Australian ports and lay them under contribution
immediately on the outbreak of hostilities.
Two questions are suggested by the above indications of opinion
and of probable action on the part of naval powers. First, the
restricted one, whether contributions and requisitions can legiti-
mately be levied by a naval force under threat of bombardment,
without occupation being effected by a force of debarkation; and,
secondly, the far larger one, whether the bombardment and
devastation of undefended towns, and the accompanying slaughter
of unarmed populations, is a proper means of carrying on war.
The latter question will find its answer elsewhere”.
Requisitions may be quickly disposed of. They are not likely
Revue des Deux Mondes by M. Charmes, whose position and influence in the
Foreign Office renders his utterances noticeable. The only voice raised
against them was that of Admiral Bourgois in 1885 (Nouvelle Revue).
* The Times, August, 1888. * See postea, p. 536.
TO THE PROPERTY OF THE ENEMY 435
to be made except under conditions in which a demand for the PART III
articles requisitioned would be open to little, if any, objection. CHAP. III
A vessel of war or a squadron cannot be sent to sea in an efficient
state without having on board a plentiful supply of stores
identical with, or analogous to, those which form the usual and
proper subjects of requisition by a military force. It is only in
exceptional and unforeseen circumstances that a naval force can
find itself in need of food or of clothing; when it is in want of
these, or of coal, or of other articles of necessity, it can unquestion-
ably demand to be supplied wherever it is in a position to seize;
it would not be tempted to make the requisition except in case of
real need ; and generally the time required for the collection and
delivery of large quantities of bulky articles, and the mode in
which delivery would be effected, must be such that if the opera-
tion were completed without being interrupted, sufficient evidence
would be given that the requisitioning force was practically in
possession of the place. In such circumstances it would be
almost pedantry to deny a right of facilitating the enforcement
of the requisition by bombardment or other means of intimi-
dation".
Contributions stand upon a different footing. They do not
find their justification in the necessity of maintaining a force in
an efficient state; they must show it either in their intrinsic
reasonableness, or in the identity of the conditions, under which
they would be levied, with those which exist when contributions
are levied during war upon land. Such identity does not exist.
In the case of hostilities upon land a belligerent is in military
occupation of the place subjected to contribution ; he is in it,
and remains in it long enough to deprive the inhabitants of the
equivalent of the contribution demanded, by plundering the town,
or by seizing and carrying off the money and the valuables
* If articles are requisitioned which are not needed for the efficiency of the
force, such as articles of luxury, or articles which will not be used by it, but
will be turned into money, a disguised contribution is of course levied, and
the propriety or impropriety of the demand must be judged by the test of the
propriety or the impropriety of contributions. * - - -
F f 2
436 RIGHTS WITH RESPECT
PART III which he finds within it; he accepts a composition for property
“" which his hand already grasps. This is a totally different matter
from demanding a sum of money or negotiable promises to pay,
under penalty of destruction, from a place in which he 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. Ability to seize, and the further ability, which is
also consequent upon actual presence in a place, to take hostages
for securing payment, are indissolubly mixed up with the right
to levy contributions; because they render needless the use of
violent means of enforcement. If devastation and the slaughter
of non-combatants had formed the sanction under which con-
tributions are exacted, contributions would long since have dis-
appeared from warfare upon land. It is not to be denied that con-
tributions may be rightly levied by a maritime force; but in order
to be rightly levied, they must be levied under conditions identical
with those under which they are levied by a military force. An
undefended town mayfairly be summoned by a vessel or a squadron
to pay a contribution; if it refuses a force must be landed; if it
still refuses like measures may be taken with those which are taken
by armies in the field. The enemy must run his chance of being
interrupted, precisely as he runs his chance when he endeavours to
levy contributions by means of flying columns. A levy of money
made in any other manner than this is not properly a contri-
bution at all. It is a ransom from destruction. If it is per-
missible, it is permissible because there is a right to devastate,
and because ransom is a mitigation of that right".
* See postea, p. 533. It is to be regretted that the officers who levied
imaginary contributions during the British Naval Manoeuvres of 1889 acted
in a manner which in war would have been wholly indefensible. At Peter-
head two officers were sent in with a message demanding a large sum within
two hours under penalty of bombardment; a very large sum was in like
manner demanded of Edinburgh by a force which could not possibly have
ventured to set foot on land. [The Institute of International Law, at their
meeting at Venice in 1896, condemned the bombardment of open towns by
a naval force for the purpose of obtaining a ransom or merely to bring
pressure on a belligerent. It sanctioned the practice, however, “aux fins
TO THE PROPERTY OF THE ENEMY 437
Foraging consists in the collection by troops themselves of PART III
.* CHAP. III
forage for horses, and of grain, vegetables, or animals as provision * *
Foraging.
for men, from the fields or other places where the materials may
be found. This practice is resorted to when from want of time
it would be inconvenient to proceed by way of requisition. With
it may be classed the cutting of wood for fuel or military use.
Booty consists in whatever can be seized upon land by a belli- Booty.
gerent force, irrespectively of its own requirements, and simply
because the object seized is the property of the enemy. In
common use the word is applied to arms and munitions in the
possession of an enemy force, which are confiscable as booty,
although they may be private property; but rightly the term
includes also all the property which has hitherto been mentioned
as susceptible of appropriation.
Enemy's property within the territorial waters of its own state Property
is subject to the same rules which affect enemy’s property in #:
places not within the jurisdiction of any power. - : OWI).
Property belonging to an enemy which is found by a belli- Private
gerent within his own jurisdiction, except property entering terri- º
torial waters after the commencement of war, may be said to the juris-
enjoy a practical immunity from confiscation; but its different º
kinds are not protected by customs of equal authority, and **
although seizure would always now be looked upon with extreme
disfavour, it would be unsafe to declare that it is not generally
within the bare rights of war. - tº
In one case a strictly obligatory usage of exemption has no Moneys
doubt been established. Money lent by individuals to a state is º the
not confiscated, and the interest payable upon it is not seques-
trated. Whether this habit has been dictated by self-interest, or
whether it was prompted by the consideration that money so lent
was given ‘ upon the faith of an engagement of honour, because
a Prince cannot be compelled like other men in an adverse way
by a Court of Justice, it is now so confirmed that in the absence
d’obtenir par voie de réquisitions ou de contributions ce qui est nécessaire
pour la flotte.” Annuaire de l’Institut, xv. 150.]
438 RIGHTS WITH RESPECT
PART III of an express reservation of the right to sequestrate the sums
* “ placed in its hands on going to war a state in borrowing must be
understood to waive its right, and to contract that it will hold
itself indebted to the lender and will pay interest on the sum
borrowed under all circumstances *.
Other pro- Real property, merchandise and other moveables, and incorpo-
perty. real property other than debts due by the state itself, stand in
a less favourable position. Although not appropriated under the
usual modern practice they are probably not the subjects of a
thoroughly authoritative custom of exemption. During the middle
ages time was often given to merchants at the outbreak of war
to withdraw with their goods from a belligerent country, but
the indulgence was never transformed into a right, and at the
beginning of the seventeenth century all kinds of property belong-
ing to an enemy were habitually seized. In the course of that
century milder practices began to assert themselves, and it became
unusual to appropriate land, though its revenues were taken pos-
session of during the continuance of war, and confiscations
sometimes occurred so late as the war of the Spanish Succession.
In the treaties of peace made in 1713 between France and Savoy,
* Writers in international law frequently support their statement of the
above unquestioned rule by reference to the Anglo-Prussian controversy
of I753, and to the conduct of the British government with respect to the
Russian Dutch Loan during the Crimean War. The King of Prussia, by
way of reprisal for the capture of Prussian vessels engaged in prohibited
commerce, while himself at peace with Great Britain, seized certain funds
which had been lent by English subjects upon the security of the Silesian
revenues, and which he had bound himself to repay under the treaties of
Preslau and Dresden. The facts of the case are not therefore in point ;
but they are connected with the rule under consideration through the
statement of law put out by the English government, which went beyond
the necessities of the moment and covered the case of a loan as between
enemy states. The reason for which mention is made of the Russian Dutch
Loan is not easy to divine. The English government simply paid interest
during the war to the agents of the Russian government upon a debt which
Great Britain had taken over from Holland under a treaty in which, the
circumstances being somewhat exceptional, it was provided specifically that
payment should not cease in case of war. To have stopped payment would
have been, not merely to disobey a rule of law, but to be false to an express
engagement.
TO THE PROPERTY OF THE ENEMY 439
the United Provinces and the Empire, it was stipulated that con- PART III
fiscations effected during the preceding war should be reversed 1. CHAP. III
During the eighteenth century the complete appropriation of real
property disappeared, but its revenues continued to be taken, or
at least to be sequestrated; and property of other kinds was
sometimes sequestrated and sometimes definitely seized. In order
to guard in part against these effects of acknowledged law it was
stipulated in many commercial treaties that a specified time vary-
ing from six months to a year should be allowed for the withdrawal
of mercantile property on the outbreak of war”; but property
of other kinds was still governed by the general rule, and cases
frequently occurred, owing to the absence of special stipulations,
in which mercantile property was sequestrated or subjected to
confiscation. In the Treaties of Campo Formio, Lunéville,
Amiens, Friedrichshamm, Jönköping, and Kiel, and in those
between France and Wurtemberg and France and Baden in 1796,
and between Russia and Denmark in 1814, and between France
and Spain in the same year, it was necessary to provide for the
removal of sequestrations which had been placed upon incomes of
private persons and upon debts *; at the commencement of war
between England and Denmark in 1807, the former power seized
and condemned the Danish ships lying in British waters, and the
* Dumont, viii. i. 365, 367, 419.
* The treaty of 1786 between England and France, and that of I795
between England and the United States, permitted the subjects of the
respective states to continue their trade during war unless their conduct
gave room for suspicion, in which case twelve months were to be allowed
for winding up their affairs; and the latter treaty provided that in no case
should ‘debts due from individuals of the one nation to individuals of the
other, nor shares, nor monies which they may have in the public funds or
in the public or private banks,’ be sequestrated. (Article x.)
* De Martens, Rec. vii. 208 (Campo Formio), id. 536 (Lunéville), id. Sup.
ii. 563 (Amiens); Nouv. Rec. i. 27 (Friedrichshamm); ib. 224 (Jönköping);
ib. 674 (Kiel); Rec. vi. 670 (France and Wurtemberg); ib. 679 (France and
Baden); Nouv. Rec. i. 681 (Denmark and Russia); Hertslet, Map of Europe
by Treaty, i. 36 (France and Spain). The confiscation of English property
in France in 1793 and the sequestration of English property by Russia in
‘I8oo have not been instanced in the text, because, being in violation of the
treaties of I786 and I797, they were mere acts of lawlessness.
440 RIGHTS WITH RESPECT
PART III latter confiscated all ships, goods and debts within the kingdom
CHAP. III
which belonged to English subjects; in 1812 also the majority
of the Supreme Court of the United States held that, though
enemy property within the territory at the outbreak of war could
not be condemned in the then state of the law of the United
States, it was competent for the legislature to pass a law autho-
rising confiscation, and Justice Story considered that no legislative
act was necessary, and that ‘ the rule of the law of nations is that
every such exercise of authority is lawful, and rests in the sound
discretion of the nation".” Since the end of the Napoleonic wars
the only instance of confiscation which has occurred was supplied
by the American Civil War, in which the Congress of the
Confederate States, by an Act passed in August 1861, enacted
that “property of whatever nature, except public stocks and
securities held by an alien enemy since the 21st May 1861, shall
be sequestrated and appropriated *.” The custom which has
become general of allowing the subjects of a hostile state to
reside within the territory of a belligerent during good behaviour
brings with it as a necessary consequence the security of their
property within the jurisdiction, other than that coming into
territorial waters, and indirectly therefore it has done much to
foster a usage of non-confiscation; but as it is not itself strictly
* Wolff against Oxholm, vi Maule and Selwyn, 92; Brown v. the United
States, viii Cranch, IIo. De Martens remarks, both in the early editions
of his Précis, and in those which appeared down to 1822, that ‘lā oil il n’y
a point de lois ou de traités sur ce point, la conduite des puissances de
l’Europe n'est rien moins qu'uniforme ' (§ 268). Lord Ellenborough was
obviously mistaken in saying in the course of his judgment in Wolff against
Oxholm that the ‘Ordinance of the Court of Denmark stands single and
alone, not supported by any precedent. . . . No instance of such confiscation
except the Ordinance in question is to be found for more than a century.”
* Lord Russell to Acting Consul Cridland. State Papers, 1862, lxii. No. i.
Io8. All persons domiciled within the States with which the Confederate
States were at war were held to be subject to the provisions of the Act.
On this point Lord Russell remarked that “whatever may have been the
abstract rule of the Law of Nations in former times, the instances of its
application in the manner contemplated in the Act of the Confederate Con-
gress in modern and more civilised times, are so rare and have been so
generally condemned that it may almost be said to have become obsolete.”
TO THE PROPERTY OF THE ENEMY 441
obligatory, it cannot confer an obligatory force, and the treaties PART III
e * © ... • o CHAP. III
which contain stipulations in the matter, though numerous, are
far from binding all civilised countries even to allow time for the
withdrawal of mercantile property".
Upon the whole, although, subject to the qualification made
with reference to territorial waters, the seizure by a belligerent
of property within his jurisdiction would be entirely opposed to
the drift of modern opinion and practice, the contrary usage,
so far as personal property is concerned, was until lately too
partial in its application, and has covered a larger field for too
short a time to enable appropriation to be forbidden on the ground
of custom as a matter of strict law; and as it is sanctioned by
the general legal rule, a special rule of immunity can be estab-
lished by custom alone. For the present therefore it cannot be
said that a belligerent does a distinctly illegal act in confiscating
such personal property of his enemies existing within his juris-
diction as is not secured upon the public faith; but the absence
of any instance of confiscation in the more recent European wars,
no less than the common interests of all nations and present
feeling, warrant a confident hope that the dying right will never
again be put in force, and that it will soon be wholly extinguished
by disuse *.
* Most of these treaties will be found to contain stipulations either that
‘merchants and other subjects’ shall have the privilege of remaining and
continuing their trade “as long as their conduct does not render them objects
of suspicion,’ or that “persons established in the exercise of trade or special
employment' shall be ałlowed so to remain, other persons being given time
to wind up their affairs. Others merely stipulate for a term during which
the subjects of the contracting parties should be at liberty to withdraw with
their property after the outbreak of war from the enemy’s country. Seques-
tration and confiscation have been expressly forbidden by a convention be-
tween the United States and France in 1800 (De Martens, Rec. vii. 484) and
by a number of treaties during the last century, to which, with scarcely an
exception, one of the parties is a South American state. It might be argued
not unfairly that if like treaties do not exist between European countries,
and between them and the United States, it is because there has been for
a long time little fear that the right guarded against would be exercised by
well-regulated states.
* Some writers suggest that “whenever a government grants permission
to foreigners to acquire property within its territories, or to bring and deposit
442 RIGHTS WITH RESPECT
PART III Enemy property entering territorial waters after the com-
CHAP. III e º &
mencement of war is subject to confiscation.
Property Ç g
entering . Apart from an indulgence which has sometimes been granted
territorial . . . . tº e I
waſ j in recent wars, and which will be mentioned on a later page’,
the enemy º g o g o
...? the only exceptional practice which claims to be of some authority
COIT) - is one of exempting from capture shipwrecked vessels, and
IIle]]. Ge-
ment of vessels driven to take refuge in an enemy’s port by stress of
WàI’. e e -
weather or from want of provisions. There are one or two cases
in which such exemption has been accorded. In 1746 an English
man-of-war entering the Havana, and offering to surrender, was
it there, it tacitly promises protection and security' (Hamilton's Letters
of Camillus, quoted by Woolsey, $ 124, note); but, as is properly remarked
by Dana (note to Wheaton, § 308), ‘persons who either leave their property
in another country or give credit to a foreign citizen, act on the understand-
ing that the Law of Nations will be followed whatever that may be. To
argue therefore that the rule under the Law of Nations must be to abstain
from confiscation because the debt or property is left in the foreign country
on the public faith of that country seems to be a petitio principii.’
It is evident that although it is within the bare rights of a belligerent
to appropriate the property of his enemies existing within his jurisdiction,
it can very rarely be wise to do so. Besides exposing his subjects to like
measures on the part of his adversary, his action may cause them to be
obliged to pay debts twice over. The fact of payment to him is of course
no answer to a suit in the courts of the creditor's state ; and property
belonging to the debtor coming into the jurisdiction of the latter at
a subsequent time might be seized in Satisfaction of the creditor's claim.
For recent opinion upon the whole question of the rights of a belligerent
with respect to property of his enemy within his jurisdiction, see Dana
(note to Wheaton, § 305), Woolsey (Introd. to Int. Law, § 124), Twiss (ii.
§§ 56 and 59), Calvo (§§ 1671–8), Heffter (§ I40). -
In delivering judgment in the case of the Johanna Emilie during the
Crimean War Dr. Lushington said, “With regard to an enemy’s property
coming to any port of the kingdom or being found there being seizable,
I confess I am astonished that a doubt could exist on the subject. . . . There
are many instances in which a capture has been made in port by non-com-
missioned captors. . . . If the property was on land, according to the ancient
law it was also seizable ; and certainly during the American War there
were not wanting instances in which such property was seized and con-
demned by law. That rigour was afterwards relaxed. I believe no such
instance has occurred from the time of the American War to the present
day, no instance in which property inland was subject to search or seizure,
but no doubt it would be competent to the authority of the crown, if it
thought fit.' Spinks, I4.
* See postea, p. 449.
TO THE PROPERTY OF THE ENEMY 443
given means of repairing damages and was allowed to leave with a PART III
passport protecting her as far as the Bermudas; in 1799 a Prussian “”
vessel called the Diana which had taken refuge in Dunkirk was
restored by the French courts; and a few years afterwards an
English frigate in distress off the mouth of the Loire was saved
from shipwreck and allowed to leave without being captured.
But a French Ordonnance of the year 1800 prescribed a contrary
conduct, and in the same year the precedent of the Diana was
reversed and a vessel which had entered a French port under like
circumstances was condemned. Some writers, without assert-
ing that a rule of exemption exists, think that justice, or
humanity, or generosity demand that a belligerent shall refuse
to profit by the ill-fortune of his enemy. Whether this be so or
not—and in the case of a ship of war at any rate a generosity
would seem to be somewhat misplaced which furbishes arms for
an adversary, and puts them in his hands, without making any
condition as to their use—it is clear that a belligerent lies under
no legal obligations in the matter".
In places not within the territorial jurisdiction of any power, Private
g º * * * ropert
that is to say for practical purposes, on non-territorial seas, #. i.
property belonging to enemy subjects remains liable to appro- #. *
priation, save in so far as the usage to this effect is derogated tory *
from by certain exceptional practices, to be mentioned presently. any State.
That the rule of the capture of private property at sea has Theory of
until lately been universally followed, that it is still adhered to º
by the great majority of states, that it was recognised as law by .
- property
all the older writers, and is so recognised by many late writers, at sea from
* * g e capture.
is uncontested”. A certain amount of practice however exists
* Pistoye et Duverdy, ii. 89 ; Ortolan, Dip. de la Mer, liv. iii. ch. viii.;
Halleck, ii. I52 ; Calvo, $ 2054.
* The existing law will be found stated within the present century either
with approval, or without disapproval, by De Martens (Précis, $ 281), Kent
(Comm. pt. i. lect. v), Klüber (§§ 253–4), Wheaton (Elem. pt. iv. ch. ii. § 7),
Manning (p. 183), Hautefeuille (tit. iii. ch. ii. sect. iii. § 1), Ortolan (Dip.
de la Mer, liv. iii. ch. ii), Heffter (§ 137), Riquelme (i. 264), Twiss (ii. § 73),
Phillimore (iii. § cccxlvii), Dana (Notes to Wheaton's Elem., No. 171),
Negrin (tit. ii. cap. iv.).
444 RIGHTS WITH RESPECT
PART III of recent date in which immunity of private property from
CHAP. III
E’ractice
in its
favour.
capture has been agreed to or affirmed; and a certain number of
writers attack warmly, and sometimes intemperately, both the
usage of capture itself, and the state which is supposed to be the
chief obstacle to its destruction 1. It becomes therefore necessary
to see what value can be attached to the practice in question and
to the new doctrines.
Turning the attention first to practice and to indications of
national opinion, the United States is found, under the presidency
of Mr. Monroe, proposing to the governments of France, England,
and Russia that merchant vessels and their cargoes belonging to
subjects of belligerent powers should be exempted from capture
by convention. Russia alone accepted the proposal in principle,
but refused to act upon it until it had been also accepted by the
maritime states in general. Again in 1856, Mr. Marcy, in
refusing on the part of the United States to accede to the
Declaration of Paris, by which privateering was abolished, stated
that as it was a cardinal principle of national policy that the
country should not be burdened with the weight of permanent
armaments, the right of employing privateers must be retained
unless the safety of the mercantile marine could be legally
assured, but he offered to give it up if it were conceded that ‘ the
private property of the subjects of one or other of two belligerent
powers should not be subject to capture by the vessels of the
other party, except in cases of contraband of war.” That the
United States, as might be expected from its situation, has
remained willing to consent to the abolition of the right to cap-
ture private property at sea, is shown by two more recent facts.
In 1870 Mr. Fish expressed his hope to Baron Gerolt that ‘the
government and people of the United States may soon be gratified
by seeing the principle of the immunity of private property at
* Vidari (Del rispetto della proprieta privata fra gli stati in guerra), Calvo
(§ 2 Io9), De Laveleye (Du Respect de la Propriété Privée en Temps de
Guerre), Bluntschli (Du Droit de Butin, Rev. de Droit Int. tom. ix and x),
Fiore (Nouv. Droit Int. pt. ii. ch. vii, viii). M. F. de Martens has written
a pamphlet in Russian on the subject.
TO THE PROPERTY OF THE ENEMY 445
sea ‘universally recognised as another restraining and humanising PART III
influence imposed by modern civilisation on the art of war; ’ and CHAP. III
in 1871 a treaty was concluded with Italy by which it is
stipulated that private property shall not be seized except for
breach of blockade or as contraband of war. Italy had already
shown its own disposition in a decisive manner by passing a
marine code in 1865, by which the capture of mercantile vessels
of a hostile nation by Italian vessels of war is forbidden in all
cases in which reciprocity is observed. Austria and Prussia on the
outbreak of the war of 1866 declared that enemy ships and
cargoes should not be captured so long as the enemy state granted
a like indulgence, and hostilities were accordingly carried on both
as between those states and as between Austria and Italy with-
out the use of maritime capture. Finally, in 1870 the Prussian
government issued an ordonnance exempting French vessels from
capture without any mention of reciprocity". In the above facts
is comprised the whole of the international practice which can be
adduced in favour of the new doctrine. They extend over a
short time; they are supplied only by four states; to three out
of these four the adoption of the doctrine as a motive of policy
was recommended by their maritime weakness. Even therefore
if it were not rash to assume that the views of the states in
question would remain unchanged with a change in their circum-
stances, it is plain that up to now not only is there no practice of
strength enough to set up a new theory in competition with the
old rule of law, but that there are scarcely even the rudiments of
such a practice,
Is there then any sound theoretical reason for abandoning the Its rela-
te & g tion to the
right to capture private property at sea 2 Its opponents declare general
that it is in contradiction to the fundamental principle that war ºple
is “a relation of a state to a state, and not of an individual to an
* De Laveleye, Du Respect de la Propriété Privée en Temps de Guerre;
Bluntschli, Du Droit de Butin, Rev. de Droit Int. tom. ix.
In 1870 France acted upon the established law; in January 1871, con-
Sequently, Prussia changed her attitude, and stated her intention to make
captures (D’Angeberg, No. 971). -
446 RIGHTS WITH RESPECT
PART III individual,” and that it constitutes the sole important exception
CHAP. III
Its moral
aspect.
to the principle of the immunity of private property from seizure,
which is proclaimed to be a corollary of the former principle,
and to have been besides adopted into international law by the
consent of nations. The value of the first of these two principles,
and its claims to form a part of international law, have been
already examined in the chapter upon the general principles of
the law governing states in the relation of war". It may be
judged whether it is true that capture at sea is a solitary
exception to the immunity of private property in war by reading
the section upon contributions and requisitions in the present
chapter, together with the portion of the chapter on military
occupation which is there referred to as bearing upon the
assertion that contributions and requisitions are not a form of
appropriation of private property.
Finally, is there any moral reason for which maritime states
ought to abandon their right of capturing private property at
sea? Is the practice harsher in itself than other common
practices of war; or, if it be not so, is it harsher in proportion
to the amount of the stress which it puts upon an enemy, and so
to the amount of advantage which a belligerent reaps from it 2
The question hardly seems worth answering. It is needless to
bring into comparison the measures which a belligerent takes for
the maintenance of his control in occupied country, or to look at
the effects of a siege, or a bombardment, or any other operation
of pure military offence. It is enough to place the incidents of
capture at sea side by side with the practice to which it has
most analogy, viz. that of levying requisitions. By the latter,
which itself is relatively mild, private property is seized under
conditions such that hardship to individuals—and the hardship
is often of the severest kind—is almost inevitable. In a poor
country with difficult communications an army may so eat up
the food as to expose the whole population of a large district to
privations. The stock of a cloth or leather merchant is seized ;
* Antea, pt. i. ch. iii.
TO THE PROPERTY OF THE ENEMY 447
if he does receive the bare value of his goods at the end of the PART III
war, which is by no means necessarily the case, he gets no CHAP. III
compensation for interrupted trade and the temporary loss of
his working capital. Or a farmer is taken with his carts and
horses for weeks or months and to a distance of a hundred or
two hundred miles; if he brings back his horses alive, does the
right to ask his own government at some future time for so
much daily hire compensate him for a lost crop, or for the
damage done to his farm by the cessation of labour upon it 2. It
must be remembered also that requisitions are enforced by
strong disciplinary measures, the execution of which may touch
the liberty and the lives of the population; and that in practice
those receipts which are supposed to deprive requisitioning of
the character of appropriation are not seldom forgotten or
withheld. Maritime capture on the other hand, in the words of
Mr. Dana, ‘takes no lives, sheds no blood, imperils no households,
and deals only with the persons and property voluntarily
embarked in the chances of war, for the purposes of gain, and .
with the protection of insurance,” which by modern trading
custom is invariably employed to protect the owner of property
against maritime war risks, and which effects an immediate
distribution of loss over a wide area. Mild however as its
operation upon the individual is, maritime capture is often an
instrument of war of a much more efficient kind than re-
quisitioning has ever shown itself to be. In deranging the
common course of trade, in stopping raw material on its way to
be manufactured, in arresting importation of food and exportation
of the produce of the country, it presses upon everybody SOOIner
or later and more or less; and in rendering sailors prisoners of
war it saps the offensive maritime strength of the weaker
belligerent. In face of the results that maritime capture has
often produced it is idle to pretend that it is not among the most
formidable of belligerent weapons; and in face of obvious facts
it is equally idle to deny that there is no weapon the use of
which causes so little individual misery.
448 RIGHTS WITH RESPECT
PART III Legally and morally only one conclusion is possible; viz. that
CHAP. III.
Conclu-
Sion.
any state which chooses to adhere to the capture of private
property at sea has every right to do so *. It is at the same
time to be noted that opinion in favour of the contrary principle
is sensibly growing in volume and force; and it is especially to
be noted that the larger number of well-known living inter-
national lawyers, other than English, undoubtedly hold that the
principle in question ought to be accepted into international law.
It is easy in England to underrate the importance of continental
jurists as reflecting, and still more as guiding, the drift of foreign
opinion *. -
* The question whether it is wise for states in general, or for any given
state, to agree as a matter of policy to the abolition of the right of capture of
private property at sea, is of course entirely distinct from the question of
right. It may very possibly be for the common interests that a change in
the law should take place ; it is certainly a matter for grave consideration
whether it is not more in the interest of England to protect her own than
to destroy her enemies’ trade. Quite apart from dislike of England, and
jealousy of her maritime and commercial position, there is undoubtedly
enough genuine feeling on the continent of Europe against maritime capture
to afford convenient material for less creditable motives to ferment; and
contingencies are not inconceivable in which, if England were engaged in
a maritime war, European or other states might take advantage of a set of
opinion against her practice at sea to embarrass her seriously by an un-
friendly neutrality. The evils of such embarrassment might, or might not,
be transient ; there are also conceivable contingencies in which the direct
evils of maritime capture might be disastrous. In the Contemporary Review
for 1875 (vol. xxvi. pp. 737-51) I endeavoured to show that there are strong
reasons for doubting whether England is prudent in adhering to the existing
rule of law with respect to the capture of private property at sea. The
reasons which were then urged have grown stronger with each successive
year; and the dangers to which the practice would expose the country are at
length fully recognised. That there is not a proportionately active wish for
the adoption of a different rule is perhaps to be attributed to a doubt as to
what the action of foreign powers would be under the temptation of a war
with England.
* At the meeting of the Institute of International Law, held at the Hague
in 1875, the following resolutions were adopted —
“Il est a désirer que le principe de l'inviolabilité de la propriété privée
ennemie naviguant sous pavillon ennemi soit universellement accepté dans
les termes suivants, empruntés aux déclarations de la Prusse, de l’Autriche,
et de l’Italie en 1866, et sous la réserve ci-après ;—les navires marchands et
leurs cargaisons ne pourront étre captures que s'ils portent de la contrebande
de guerre ou s'ils essaient de violer un blocus effectif et déclaré. r
“Il est entendu que, conformément aux principes généraux qui doivent
TO THE PROPERTY OF THE ENEMY 449
The chief and most authoritative exception to the rule that PART III
2 tº * º CHAP. III
enemy’s goods at sea are liable to capture is made in favour of Excep-
cargo shipped on board neutral vessels, which by an artificial tions
doctrine are regarded as having power to protect it. As the ºthat
modern usage in the matter forms a concession to neutrals, and #ºy
has arisen out of the relation between them and belligerents, it at sea
tº e e tº may be
will be convenient to treat of it together with the rest of the captured.
law belonging to that relation ; and the only exceptions which
claim to be noticed here are, the more doubtful one which
exempts from seizure boats engaged in coast-fishing, and an
occasional practice under which enemy’s vessels laden with
cargoes for a port of the belligerent are allowed to enter the
latter and to reissue from it in safety.
The doctrine of the immunity of fishing-boats is mainly Fishing-
founded upon the practice with respect to them with which boats.
France has become identified, but which she has by no means
invariably observed. During the Anglo-French wars of the
Middle Ages it seems to have been the habit of the Channel
fishermen not to molest one another, and the French Ordonnances
of 1543 and 1584, which allowed the Admiral of France to grant
fishing-truces to subjects of an enemy on condition of reciprocity,
did no more than give formal effect to this custom. It does not
appear to what degree the power vested in the Admiral was used
régler la guerre sur mer aussi bien que sur terre, la disposition précèdente
n’est pas applicable aux navires marchands qui, directement ou indirecte-
ment, prennent part ou sont destinés à prendre part aux hostilités.’
At the meeting of the Institute at Turin in 1882 a clause, asserting that
“la propriété privée est inviolable sous la condition de réciprocité et sauf les
cas de violation de blocus,’ &c., was inserted in a project for a Règlement
international des prises maritimes, there adopted. Annuaire de l’Institut,
1877, p. 138, and I 882–3, pp. 182–5.
The Hague resolution, which merely expressed a desire for alteration in
the law, was passed without a division, though under protest from the
English members; at Turin, the more positive resolution was only carried
by ten votes to seven, two English members being present. The difference
is indicative of the stage at which opinion on the question has arrived.
M. Geffcken stands almost alone in urging, in an able note to Heffter
(p. 319, ed. I883), the adoption of the principle of immunity upon practical
rather than upon legal or moral grounds.
HALL O”
G 8.5
450 RIGHTS WITH RESPECT
PART III during the early part of the seventeenth century, but by the
“" Ordonnances of 1681 and I692 fishing-boats were subjected to
capture, and from that time until the war of American Indepen-
dence both France and England habitually seized them. Through-
out that war and in the beginning of the revolutionary wars both
parties refrained from disturbing the home fisheries, but the English
government in 1800 distinctly stated that in its view the liberty
of fishing was a relaxation of strict right made in the interests
of humanity, and revocable at any moment for sufficient reasons
of war. The attitude of the French government is less clear.
Napoleon no doubt complained that the seizure of fishing-boats
was contrary to all the usages of civilised nations,’ but as his
declaration was made after the English government had begun
to capture them on the ground that they were being used for
warlike purposes, it is valueless as an expression of a settled
French policy; it was merely one of those utterances of generous
sentiment with which he was not unaccustomed to clothe bad
faith. At a later time during the wars of the Empire the coast
fisheries were left in peace". The United States followed the
same practice in the Mexican [and Spanish] wars; and France in
the Crimean, Austrian, and German wars prohibited the capture
of fishing-vessels for other than military and naval reasons”.
In the foregoing facts there is nothing to show that much real
* Pardessus, Col. de Lois Marit. iv. 319 ; Ortolan, Dip. de la Mer, liv. iii.
ch. ii; De Martens, Rec. vi. 511–14. The English courts gave effect to the
doctrine of the English government ; the French courts, on the other hand,
appear to have considered the immunity of fishing-vessels to exist as of
right. Lord Stowell said, ‘In former wars it has not been usual to make
captures of these small fishing-vessels; but this was a rule of comity only,
and not of legal decision ; it has prevailed from views of mutual accom-
modation between neighbouring countries and from tenderness to a poor and
industrious order of people. In the present war there has, I presume, been
sufficient reason for changing this mode of treatment, and as they are
brought before me for my judgment they must be referred to the general
principles of this court. . . . They are ships constantly and exclusively
employed in the enemy’s trade.” The Young Jacob and Johanna, i Rob. 20.
La Nostra Segnora de la Piedad y Animas, Pistoye et Duverdy, i. 331.
* Calvo, ii. §§ 2049–52 [and see for the most recent American practice The
Paquete Habana, I75 U. S. Reports, p. 677 and 189, p. 453].
TO THE PROPERTY OF THE ENEMy 451
difference has existed in the practice of the maritime countries. PART III
England does not seem to have been unwilling to spare fishing- * *
vessels so long as they are harmless, and it does not appear that
any state has accorded them immunity under circumstances of
inconvenience to itself. It is likely that all nations would now
refrain from molesting them as a general rule, and would capture
them so soon as any danger arose that they or their crews might
be of military use to the enemy; and it is also likely that it is
impossible to grant them a more distinct exemption. It is
indisputable that coasting fishery is the sole means of livelihood
of a very large number of families as inoffensive as cultivators of
the soil or mechanics, and that the seizure of boats, while in-
flicting extreme hardship on their owners, is as a measure of
general application wholly ineffective against the hostile state.
But it must at the same time be recognised that fishing-boats
are sometimes of great military use. It cannot be expected that
a belligerent, if he finds that they have been employed by his
enemy, will not protect himself against further damage by seizing
all upon which he can lay his hands; nor that he will respect
them under circumstances which render their employment prob-
able. The order to capture French fishing-boats given by the
British government in 18oo was caused by the use of some as
fire-vessels against the British squadron at Flushing, and of
others with their crews to assist in fitting out a fleet at Brest;
and it was intended that between 500 and 6oo should form part
of the flotilla destined for the invasion of England. They had
before this time been largely used as privateers to prey upon
British commerce in the Channel; and they continued to be so
used. They lay about, apparently fishing, with most of their
crews concealed; at night or in thick weather they drew along-
side merchantmen, which were easily boarded and captured by
surprise". Any immunity which is extended to objects on the
ground of humanity or of their own innocuousness, must be
* De Martens, Rec. vii. 295; Corresp. de Nap. i. viii. 483; Mahan,
Influence of Sea Power upon the French Revolution and Empire, ii. 208.
G g 2
452. RIGHTS WITH RESPECT
PART III subject to the condition that they shall not be suddenly converted
CHAP. III
Enemy’s.
vessels on
their
Voyage at
the out-
break of
War to a
bellige-
rent port,
&c.
into noxious objects at the convenience of the belligerent; and it
is not probable that states will consent to forego the advantages
which they may derive from the use of their fishing-vessels in
contingencies which cannot always be foreseen ".
It has never been contended, except by the French at the
beginning of the last century, that vessels engaged in deep-sea
fishing are exempt from capture.
Enemy’s vessels which at the outbreak of war are on their
voyage to the port of a belligerent from a neutral or hostile
country, and even vessels which without having issued from an
enemy or other foreign port have commenced lading at that time,
are occasionally exempted from capture during a specified period.
At the beginning of the Crimean war an Order in Council
directed that ‘any Russian merchant vessel which prior to the
date of this Order shall have sailed from any foreign port bound
for any port or place in her Majesty's dominions, shall be
permitted to enter such port or place and to discharge her cargo,
and afterwards forthwith to depart without molestation, and any
such vessel, if met at sea by any of her Majesty’s ships, shall be
permitted to continue her voyage to any port not blockaded.”
France gave a like indulgence; and in 1870 German vessels
which had begun to lade upon the date of the declaration of war
were allowed to enter French ports without limit of time, and to
reissue with a safe-conduct to a German port. In 1877 also,
Turkish vessels were permitted to remain in Russian ports until
they had taken cargo on board and to issue freely after-
wards”. [In 1898 President McKinley issued a proclamation on
* M. Calvo (loc. cit.) seems to think that the principle of immunity is
settled, and M. Heffter (§ 137) states the rule absolutely. M. Bluntschli
(§ 667) considers that fishing-boats can only be captured while being actually
used for a military purpose.
* London Gazette, March 29, 1854; Pistoye et Duverdy, i. 123; D’Ange-
berg, Nos. I94, 224, 326; Journal de St. Pétersbourg, ## May, 1877. In 1870
England objected that in according the privilege then given an injustice was
done to 'neutrals, since German ships bound for neutral ports or inversely
remained liable to capture for due cause from the day of the commencement
TO THE PROPERTY OF THE ENEMY 453
April 20, allowing Spanish merchant vessels in United States PART III
ports to load their cargoes and depart up to May 21, with “ III
permission, if met at sea by a man of war, to continue their
voyage should their papers be found on examination to be
satisfactory. Spanish vessels sailing from a foreign to an
United States port prior to the declaration of war were permitted
to enter, discharge cargo, and depart without molestation. The cor-
responding Spanish proclamation merely gave a period of five days
for United States vessels anchored in Spanish ports to depart.]
It being the right of a belligerent sovereign to appropriate what con-
under specified conditions certain kinds of moveable property ºf
belonging to his enemy, the effectual seizure of such property in ...”
itself transfers it to him. Beyond this statement it is needless effect.
for legal purposes to go as between the captor and the original
owner, because possession is evidence that an act of appropriation
has been performed the value of which an enemy can always
test by force. But it is possible for persons other than the
captor or the owner to acquire interests in the property seized
through its recapture, or through its transfer by the appropriator
to a neutral or a friend; and as no one can convey a greater
interest than he himself possesses, the existence of such interests
depends upon whether the belligerent in the particular case has
not only endeavoured to appropriate the property, but has given
clear proof of his ability to do so. If objects which have duly
passed to the captor are recaptured by an ally of the owner, they
become the prize or booty of the recaptor, but if change of
ownership has not taken place, they must be restored to the
original possessor. So also if the original owner in the course
of his war finds the objects which he has lost in the hands of
a co-belligerent or a neutral, he may inquire whether they were
effectually seized, and if not, he may reclaim them. Thus it
becomes necessary to determine in what effectual seizure consists.
of war. Equity appears certainly to demand that if a belligerent for his own
convenience spares enemy's ships laden with cargoes destined for him, he
should not put neutrals to inconvenience who have not had an opportunity
of sending their goods in vessels which are free from liability to capture.
454. * RIGHTS WITH RESPECT
PART III To do this broadly is sufficiently easy. It is manifest that
CHAP. III
momentary possession, although coupled with the intention to
appropriate the captured objects, affords no evidence of ability
to retain them, and that a presumption of such ability can only
be raised either by an acknowledgment of capture on the part
of the owner, as when a vessel hauls down her flag in token of
surrender, or by proof from the subsequent course of events that
the captor, at the time of seizure, had a reasonable probability of
keeping his booty or prize. But the latter test is in itself vague. It
can only be applied through a more or less arbitrary rule, and con-
sequently, as is usual in such cases, considerable varieties of prac-
tice have been adopted at different times and by different nations.
In the Middle Ages a captor seems, under the more authori-
tative usage, to have acquired property in things seized by him
on their being brought within his camp, fortress, port, or fleet.
It was provided in the Consolato del Mare that if a vessel was
retaken before arriving in a place of safety, it was to be given
up to the owners on payment of reasonable salvage; if after-
wards, it belonged to the recaptors; and Ayala in the end of
the sixteenth century lays down unreservedly that booty belongs
to the captor when it has entered within his lines". Before that
time however a practice had become very general under which
a captor was regarded as not acquiring ownership of a vessel or
booty until after possession during twenty-four hours. This
view found expression in a French Edict of 1584; it was very
early translated into a custom of England, Scotland, and Spain;
it seems to have been adopted by the Dutch in the first years of
the Republic ; and was taken in Denmark with respect to
captured vessels”. In the seventeenth century therefore it was
IEarly
practice.
* Consolato del Mare ; Pardessus, Col. de Lois Marit. ii. 338-9 and 346;
Ayala, De Jur. et Off. Bell. lib. i. e. ii., § 37 ; Albericus Gentilis, De Jure
Belli, lib. iii. c. I7 ; Chief Justice Hale, Concerning the Customs of Goods
exported and imported, Hargrave's Tracts, vol. i. The principle is that
which was applied by Roman law to persons captured by an enemy : “Ante-
quam in praesidia perducatur hostium manet civis.”
* Pardessus, iv. 312 ; Hale, Customs of Goods, Hargrave's Tracts, i. 246;
%
ł
:
!
!
}
TO THE PROPERTY OF THE ENEMY 455
on the way to become the ground of an authoritative rule. From PART III
that period however it has become continuously less and less “"
general. The larger number of writers attribute an equal or
greater authority to the opinion that property is lost by an
owner only when the captured object has reached a place of safe
custody; and as in countries governed by the Code Napoléon
‘ possession gives title in respect of moveables, the rule that
security of possession is the test of the acquisition of property
is more in consonance with the municipal law of France and
of the states which have usually followed its example in matters
of International Law than the arbitrary rule of twenty-four
hours; finally, the latter was abandoned by England in the 3.
seventeenth century". Probably therefore it may now be said Rule that
& e © the cap-
that, in so far as exceptional practices have not been formed, ...,
o is tran d on being brought into a perty must
property in moveables is transferred on be ng broug O be brought
place so secure that the owner can have no immediate prospect into a
: place of
of recovering them. An exceptional mode of dealing with .
recaptured vessels has however become common, under which *
the transfer of property effected by capture is ignored as between
the recaptor and the original owner, and therefore as the right
Grotius, De Jure Belli et Pacis, lib. iii. ch. vi. § 3, and Barbeyrac's note ;
Twiss, $ I73. The rule is said to have been derived from, and very likely may
have a common origin with, a game law of the Lombards, under which
a hunter might recover possession during twenty-four hours of an animal
killed or wounded by him.
* Zouch (Juris Fecialis Explicatio, pars ii. sect. viii) and Molloy (De Jure
Marit. bk. i. c. I. § 12), in the seventeenth century, Bynkershoek (Quaest. Jur.
Pub. lib. i. c. iv), Wolff (Jus Gentium, § 860), and Vattel (liv. iii. ch. xii.
§ 196), in the eighteenth century, state the rule of deposit in a safe place
absolutely. Lampredi (Jur. Pub. Theoremata, pars iii. ch. xiii. § 6) and
IClüber (§ 254) thought that the twenty-four hours' rule had been established
by custom. De Martens thinks that it is authoritative in continental war-
fare, but remarks that both practices are adopted at sea. Wheaton (Elem.
pt. iv. ch. ii. § II) mentions the two rules as alternative. Heffter (§ 136)
says that the twenty-four hours’ term “a passé en usage chez quelques
nations dans les guerres terrestres et maritimes. Toutefois il ne laisse pas
de présenter certaines difficultés dans l'application, et il ne saurait étre
regardé comme une régle commune du droit international.” Lord Stowell
considered that “a bringing infra praesidia is probably the true rule' at sea;
The Santa Cruz, i Rob. 60.
456 RIGHTS WITH RESPECT
PART III to make direct seizure of property in continental warfare is now
CHAP. III
restricted within narrow limits, the general rule has been reduced
to slight importance".
Evidence
of inten-
tion to
retain pos-
session.
If capture, in order to be effectual, must be proved by a certain
firmness of possession, it is evidently still more necessary that
the captor shall show an intention to seize and retain his prize
or booty. With respect to the latter no difficulty can arise.
The fact of custody, when it exists at all, can be easily recog-
nised. But a prize is often necessarily separated from the ship
which has taken it, and though it is the usual, and where
possible the obvious course, to secure a captured vessel by putting
a prize-crew in her of sufficient strength to defeat any attempt
at rescue, it may under some circumstances be impossible to spare
a sufficient force, or even to place it on board. Hence a maritime
captor is allowed to indicate his intention to keep possession by
any act from which such intention may fairly be inferred. It
has been held that he can establish his right of property as
against subsequent captors by sending a single man on board,
although the latter may exercise no control, and may not inter-
fere with the navigation of the ship. So also when a vessel
has been brought to, and obliged to wait for orders, and to obey
the direction of the captor, but owing to the boisterousness of the
weather has received no one on board, he has been considered to
have taken effectual possession *.
Disposalof As the property in an enemy’s vessel and cargo is vested in
captured
property.
the state to which the captor belongs so soon as an effectual
seizure has been made, they may in strictness be disposed of by
him as the agent of his state in whatever manner he chooses *.
So long as they were clearly the property of the enemy at the
* See postea, p. 493.
* The Grotius, ix. Cranch, 370; The Resolution, vi Rob. 21 ; The Edward
and Mary, iii Rob. 306. -
* It is the invariable modern custom for the state to cede its interest in
vessels belonging to private owners to the actual captors, and the property
so ceded does not vest until adjudication has been made by a competent
tribunal ; but this is merely an internal practice, designed to prevent abuses,
and has no relation to the date at which the property of the state is acquired.
TO THE PROPERTY OF THE ENEMY 457
time of capture, it is immaterial from the point of view of Inter- PART III
national Law whether the captor sends them home for sale, or CHAP. III
destroys them, or releases them upon ransom. But as the property º
& t º g .., rule that
of belligerents is often much mixed up with that of neutrals, it it hail be
<e e 24- * & p te º brought
is the universal practice for the former to guard the interests of . port
the latter, by requiring captors as a general rule to bring their ºut.
º tº g C&CIOIl,
prizes into port for adjudication by a tribunal competent to
decide whether the captured vessel and its cargo are in fact
wholly, or only in part, the property of the enemy". And though
the right of a belligerent to the free disposal of enemy property
taken by him is in no way touched by the existence of the practice,
it is not usual to permit captors to destroy or ransom prizes,
however undoubted may be their ownership, except when their
retention is difficult or inconvenient.
Perhaps the only occasions on which enemy’s vessels have been Destrue-
systematically destroyed, apart from any serious difficulty in tion.
otherwise disposing of them, were during the American revolu-
tionary war and that between Great Britain and the United
States in 1812–14. On the outbreak of the latter war the
American government instructed the officers in command of
squadrons to ‘ destroy all you capture, unless in some extraordi-
nary cases that shall clearly warrant an exception.’ ‘The
commerce of the enemy,” it was said, “is the most vulnerable point
of the enemy we can attack, and its destruction the main object;
* Although the practice now exists for the benefit of neutrals, its of gin is
due to the fact that formerly the state abandoned a part only of the value of
prizes to the actual captors. In Spain the enactment in the Partidas of 1266,
which reserved a fifth of all prizes to the king ‘por razon de Señorío’ (tit.
xxvi. Iey xxix, Pardessus, vi. 30), remained in force till after the time of
Grotius. The Dutch government also took a fifth (Grotius, De Jure Belli et
Pacis, lib. iii. cap. vi. § 24). In France the Admiralty claimed the tenth
share of every prize until the war of I756, when it was remitted for the first
time to the captors (Valin, Ord. de la Marine, liv. iii. tit. ix. art. 32); and as
in England a proclamation issued in May of that year gave “sole interest in
and property of every ship and cargo to the officers and Seamen on board his
Majesty's ships from and after the 17th of that month' during the continu-
ance of the war with France (Entick's Hist. of the Late War, i. 4I4), it may
be inferred that the Crown took a share at least in the prizes made during
I755 and the early part of I756.
458 RIGHTS WITH RESPECT
PART III and to this end all your efforts should be directed. Therefore,
CHAP. III
unless your prizes should be very valuable and near a friendly
port, it will be imprudent and worse than useless to attempt to
send them in. A single cruiser, if ever so successful, can man
but few prizes, and every prize is a serious diminution of her
force; but a single cruiser destroying every captured vessel has
the capacity of continuing in full vigour her destructive power,
so long as her provisions and stores can be replenished, either from
friendly ports or from the vessels captured.” Under these instruc-
tions seventy-four British merchantmen were destroyed”. The de-
struction of prizes by the ships commissioned by the Confederate
States of America was not parallel because there were no ports
into which they could take them with reasonable safety; and the
practice of the English and French navies has always been to
bring in captured vessels in the absence of strong reasons to the
contrary *.
* Mr. Bolles, Solicitor to the Navy; quoted in Parl. Papers, America,
No. 2, 1873, p. 92.
* The view taken in the English courts as to the circumstances under
which vessels should be destroyed may be illustrated from the judgment of
Lord Stowell in the case of the Felicity (ii Dodson, 383) : “The captors fully
justify themselves to the law of their own country which prescribes the
bringing in, by showing that the immediate service in which they were
engaged, that of watching the enemy’s ship of war, the President, with
intent to encounter her, though of inferior force, would not permit them to
part with any of their own crew to carry her into a British port. Under
this collision of duties nothing was left but to destroy her, for they could
not, consistently with their general duty to their own country, or indeed its
express injunctions, permit enemy's property to sail away unmolested. If
impossible to bring in, their next duty is to destroy, enemy’s property.”
During the Crimean War Dr. Lushington said, “it may be justifiable or even
praiseworthy in the captors to destroy an enemy's vessel. Indeed the
bringing into adjudication at all of an enemy’s vessel is not called for by any
respect to the right of the enemy proprietor, where there is no neutral
property on board.” The Leucade, Spinks, 221. By the French Ordonnance
of I681 a captor ‘ne pouvant se charger du vaisseau pris’ was allowed to
destroy it. The circumstances enumerated by Valin as justifying this course
are ‘lorsque la prise est de peu de valeur, ou qu’elle n'est pas assez con-
siderable pour mériter d’être envoyée dans un lieu de sûreté ; surtout s'il
fallait pour cela affaiblic l'équipage du corsaire au point de ne pouvoir plus
continuer la course avec succès ; and ‘lorsque la prise est si délabrée par le
combat Ou par le mauvais temps qu’elle fait assez d’eau pour faire craindre
TO THE PROPERTY OF THE ENEMY 459
It is at the same time impossible to ignore the force of the PART III
CHAP. TI I
consideration suggested by the government of the United States
in the latter part of the foregoing extracts. It would be unwise
to assume that a practice will be invariably maintained which
has been dictated by motives not necessarily of a permanent
character. Self-interest has hitherto generally combined with
tenderness towards neutrals to make belligerents unwilling to
destroy valuable property; but the growing indisposition of
neutrals to admit prizes within the shelter of their waters, to-
gether with the wide range of modern commerce, may alter the
balance of self-interest, and may induce belligerents to exercise
their rights to the full 1.
qu’elle ne coule bas; lorsque le navire pris marche si mal qu’il expose
l'armateur corsaire à la reprise; ou lorsque le corsaire, ayant aperçu des
vaisseaux de guerre ennemis, se trouve obligé de prendre la fuite et que sa
prise le retarde trop ou fait craindre une révolte.” Ord. de la Marine, ii. 28i.
In 1870 a French ship of war destroyed two German vessels, because from
the large number of prisoners whom she had on board she was unable safely
to detach prize crews. A claim for restitution in value being made by the
owners, the prize court determined ‘qu’il résultait des papiers de bord et de
Tinstruction que ces bâtiments appartenaient à des sujets allemands, que
leur prise était done bonne et valable ; que la destruction ayant été causée
par force majeure pour conserver la sûreté des opérations du capteur, il n’y
avait pas lieu a répartition au profit des captures; qu’en agissant comme ils
avaient fait, les capteurs avaient usé d’un droit rigoureux sans doute, mais
dont l'exercice est prévu par les lois de la guerre et recommandé par les
instructions dont ils étaient porteurs.” Calvo, § 2817. {
* Some authorities appear to look upon the destruction of captured enemy's
vessels as an exceptionally violent exercise of the extreme rights of war.
M. Bluntschli says that ‘l’anéantissement du navire capture n'est justifiable
qu’en cas de nécessité absolue, et toute atteinte a ce principe constituerait
une violation du droit international’ (§ 672), and Dr. Woolsey calls ‘the
practice a barbarous one, which ought to disappear from the history of
nations' (§ 148). It is somewhat difficult to see in what the harshness
consists of destroying property which would not return to the original
owner, if the alternative process of condemnation by a prize court were
suffered. It has passed from him to the captor, and if the latter chooses
rather to destroy than to keep what belongs to himself, persons who have no
proprietary interest in the objects destroyed have no right to complain of his
behaviour. Destruction of neutral vessels or of neutral property on board an
enemy's vessel would be a wholly different matter.
By the model ‘reglement des prises maritimes’ adopted by the Institut de
Droit International at Turin in 1882 it is provided that a captor may burn or
sink a captured vessel :– -
460 RIGHTS WITH RESPECT
PART III
CHAP. III
Ransom.
Ransom is a repurchase by the original owner of the property
acquired by the seizure of a prize. As the agreement to ransom
is a voluntary act on his part, and as he can always allow his
vessel to be sent in for adjudication or to be destroyed, it must
be supposed to be advantageous to him ; the crew also is released
under it, instead of becoming prisoners of war. The practice
therefore constitutes a distinct mitigation of the extreme rights
of capture *.
When a vessel is released upon ransom the commander gives
a Ransom Bill, by which he contracts for himself and the owner
of the vessel and cargo that a stipulated sum shall be paid to
the captor. A copy of the ransom bill is retained by himself,
and serves as a safe-conduct protecting the vessel from seizure
by ships of the enemy country or its allies, so long as a prescribed
“r. LOrsau’il n'est pas possible de tenir le navire à flot, a cause de son
mauvais état, la mer étant houleuse ;
2. Lorscue le navire marche si mal qu'il ne peut pas suivre le navire de
guerre et pourrait facilement étre repris par l'ennemi;
3. Lorsque l’approche d’une force ennemie supérieure fait craindre la
reprise du navire Saisi;
4. Lorscue le navire de guerre ne peut mettre sur le navire Saisi un
équipage suffisant sans trop diminuer celui qui est mécessaire à Sa
propre sāreté ;
5. Lorsgue le port oil il Serait possible de conduire le navire Saisiest trop
éloigné.’ Annuaire de l’Institut, 1883, p. 22I.
* The same reasons for which ransom is a mitigation of the rights of war
cause most nations to be unwilling to allow captors to receive it. In England
captors were formerly liable to fines for liberating a prize on ransom, unless
the Court of Admiralty could be satisfied that “the circumstances of the case
were such as to have justified ' the act. With respect to English ships
captured by an enemy, the sovereign in council may permit or forbid con-
tracts for ransom by orders issued from time to time, and any person enter-
ing into such contract in contravention of an order so issued may be fined to
the extent of five hundred pounds. In France public vessels of war appear
not to be prohibited from ransoming ships which they may have taken, but
privateers could only do so with the consent of the owners. Spain allows
ransom to be received by privateers which have taken three prizes, and
which may therefore be assumed not to be in a condition to spare any
portion of their crew. Russia, Sweden, Denmark, and the Netherlands
wholly forbid the practice. The United States, on the other hand, permit
contracts for ransom to be made in all cases. 27 and 28 Vict. c. 25; Règle-
ment of 1803, De Martens, Rec. viii. 18; Twiss, ii. § 183; Calvo, § 2 I2I ;
Pistoye et Duverdy, i. 28o.
TO THE PROPERTY OF THE ENEMY 461
course is kept for a port of destination agreed upon. If the PART III
ransomed vessel voluntarily diverges from her course, or exceeds “”
the time allowed for her voyage in the ransom bill, she becomes
liable to be captured afresh, and any excess of value realised from
her sale over the amount stipulated for in the bill then goes to
the second captors; if on the other hand she is driven from her
course or delayed by stress of weather, no penalty is incurred.
The captor on his side, besides holding the ransom bill, usually
keeps an officer of the prize as a hostage for the payment of the
stipulated sum. If on his way to port, with the bill and hostage
or either of them on board, he is himself captured, the owner of
the prize is exonerated from his debt"; but as the bill and
hostage are the equivalent of the prize, this consequence does
not follow from his capture if both have previously arrived in
a place of safety.
Foreign maritime tribunals rank arrangements for ransom
among commercia belli; hence they allow the captor to sue
directly upon the bill if the ransom is not duly paid. The
Bnglish courts refuse to except such arrangements from the
effect of the rule that the character of an alien enemy carries
with it a disability to sue, and compel payment of the debt
indirectly through an action brought by the imprisoned hostage
for the recovery of his freedom”. J
The property acquired through effectual seizure by way of boºty Loss of
A property
or prize is devested by recapture or abandonment, and in the ...;
case of prize it is also lost by escape, rescue by the crew of th ºr
prize itself, or discharge. The effect of abandonment when the
*Twiss (ii. § 181), referring to Emérigon, Traité des Assurances, c. 12.
sect. 23. § 8. But, as is remarked by Dr. Woolsey, who nevertheless acknow-
ledges the authority of the practice, ‘why, if the first captor had transmitted
the bill, retaining the hostage who is only collateral security, should not
his claim be still good 2" Introd. to Int. Law, § 51 o.
* On the whole subject see Twiss, ii., §§ 180–2; Calvo, $$ 2123–7; Wheaton,
IElem. pt. iv. ch. ii. § 28; Valin, Ord. de la Marine, liv. iii. tit. ix. art. xix.
Anthon v. Fisher, ii Douglas, 650, note, and the Hoop, i Rob. 200, give the
principles on which the English courts proceed.
If a ransomed vessel is wrecked the owner is naturally not exonerated
from payment of the ransom.
462 RIGHTS AS TO PROPERTY OF THE ENEMY
PART III property is found and brought into port by neutral salvors is
** perhaps not conclusive. By the courts of the United States at
any rate it has been held that the neutral Court of Admiralty
has jurisdiction to decree salvage, but cannot restore the property
to the original belligerent owners, it being considered that by
the capture the captors acquire such a right of property as no
neutral nation can justly impugn or destroy ; consequently the
proceeds, after deducting salvage, belong to the original captors,
and neutral nations ought not to inquire into the validity of
a capture between belligerents".
* The Mary Ford, iii Dallas, 188.
CHAPTER IV
MILITARY OCCUPATION
WHEN an army enters a hostile country, its advance, by ousting PART III
CHAP. IV
g º e • {
the forces of the owner, puts the invader into possession of terri-
o & e e e & g ! Nature of f(x_j
tory, which he is justified in seizing under his general right to military ºf
Occupa-
appropriate the property of his enemy. But he often has notion in its
intention of so appropriating it, and even when the intention tº:acie
exists there is generally a period during which, owing to in-
Security of possession, the act of appropriation cannot be looked
upon as complete. In such cases the invader is obviously a
person who temporarily deprives an acknowledged owner of the
enjoyment of his property; and logically he ought to be regarded
either as putting the country which he has seized under a kind
of sequestration", or, in stricter accordance with the facts, as
being an enemy who in the exercise of his rights of violence
has acquired a local position which gives rise to special necessities
of war, and which therefore may be the foundation of special
belligerent rights.
Self-evident as may seem to be this view of the position of an Theories
invader, when the intention or proved ability to appropriate his : tº it.
enemy’s territory is wanting, it was entirely overlooked in the
infancy of international law. An invader on entering a hostile
country was considered to have rights explicable only on the
assumption that ownership and sovereignty are attendant upon
the bare fact of possession. Occupation, which is the momentary Confusion
detention of property, was confused with conquest, which is the .."
definitive appropriation of it. Territory, in common with all º
other property, was supposed, in accordance with Roman Law, dle of 18th
º º & century.
to become a res nullius on passing out of the hands of its owner
* This is the view taken by Heffter (§ 131).
464 MILITARY OCCUPATION
PART III in war; it belonged to any person choosing to seize it for so long
CHAP. IV
as he could keep it. The temporary possession of territory there-
fore was regarded as a conquest which the subsequent hazards
of war might render transient, but which while it lasted
was assumed to be permanent. It followed from this that an
occupying sovereign was able to deal with occupied territory as
his own, and that during his occupation he was the legitimate
ruler of its inhabitants. -
Down to the middle of the eighteenth century practice con-
formed itself to this theory. The inhabitants of occupied territory
were required to acknowledge their subjection to a new master
by taking an oath, sometimes of fidelity, but more generally of
allegiance; and they were compelled, not merely to behave peace-
ably, but to render to the invader the active services which are
due to the legitimate sovereign of a state *. Frederic II, in his
General Principles of War, lays down that “if an army takes up
winter quarters in an enemy’s country it is the business of the
commander to bring it up to full strength; if the local authorities
are willing to hand over recruits, so much the better, if not,
they are taken by force; and the wars of the century teem
with instances in which such levies were actually made”. Finally,
* In the seventeenth century express renunciation of fealty to the legiti-
mate Sovereign was sometimes exacted. During the decadence of the usage
in the eighteenth century an oath of allegiance was perhaps not required
unless it was intended to retain the territory, and the promise of fidelity
and obedience may have been taken as sufficient when it was wished to
leave its fate in uncertainty. Swedish Intelligencer, pt. ii. 4; Moser, Versuch,
ix. i. 231, 28o, and ix. ii. 27 ; Memorial of the Elector of Hanover to the
Diet of the Empire, Entick, Hist. of the Late War, ii. 425 ; De Martens,
Précis, $ 28o ; Heffter, § 132. [The Hague Convention (Arts. 44, 45) forbids
any compulsion of the population of occupied territory to take part in mili-
tary operations against its own country, or to take the oath to the hostile
power.]
* CEuvres de Fréd. II. xxviii. 98. In 1743 Bavarian militia were used
by the Austrians to fill up gaps in their Italian armies; in 1756 the
Prussians on breaking into Saxony immediately required the States, who
were in session, to supply Io, ooo men, and two years afterwards I2, ooo
more were demanded. In 1759 the French made levies in Germany.
Moser, Versuch, ix. i. 296, 389. It was sometimes necessary to stipulate
On the conclusion of peace for the restitution of men taken in this
MILITARY OCCUPATION 465
the territory itself was sometimes handed over to a third power PART III
while the issue of hostilities remained undecided; as in the case CHAP. IV
of the Swedish provinces of Bremen and Verden, which were
sold by the King of Denmark during the continuance of war to
the Elector of Hanover".
After the termination of the Seven Years' War these violent
usages seem to have fallen into desuetude, and at the same time
indications appear in the writings of jurists which show that
a sense of the difference between the rights consequent upon
occupation and upon conquest was beginning to be felt. In saying
that a sovereign only loses his rights over territory which has
fallen into the hands of an enemy on the conclusion of a peace
by which it is ceded, Wattel abandons the doctrine that territory
passes as a res nullius into the possession of an occupant, and in
effect throws back an intrusive foe for a justification of such acts
of authority as he may perform within a hostile country upon his
mere right of doing whatever is necessary to bring the war to
a successful conclusion”. But the principle which was thus Doctrine
admitted by implication was not worked out to its natural results. *:::::
While the continuing sovereignty of the original owner became .º.
- tial sub-
generally recognised for certain purposes, for other purposes the stitution
occupant was supposed to put himself temporarily in his place. tºº.
The original national character of the soil and its inhabitants
remained unaltered; but the invader was invested with a quasi-
sovereignty, which gave him a claim as of right to the obedience
of the conquered population, and the exercise of which was limited
only by the qualifications, which gradually became established,
that he must not as a general rule modify the permanent institu-
tions of the country, and that he must not levy recruits for his
army. The first portion of this self-contradictory doctrine,
besides being a common-place of modern treatises, has, in several
manner. See, for example, art. 8 of the Peace of Hubertsburg, De Martens,
Rec. i. I40.
* Lord Stanhope, Hist. of England, ch. vii.
* Wattel, liv. iii. ch. xiii. § 197. Lampredi takes the same view, Jur. Pub.
Univ. Theorem. pt. iii. c. xiii. § 6. ->
HALL. H h
466 MILITARY OCCUPATION
PART III countries, been expressly affirmed by the courts. In 1808, when
*" the Spanish insurrection against the French broke out, Great
Britain, which was then at war with Spain, issued a proclamation
that all hostilities against that country should immediately cease.
A Spanish ship was shortly afterwards captured on a voyage to
Santander, a port still occupied by the French, and was brought
in for condemnation. In adjudicating upon the case Tord
Stowell observed: “Under these public declarations of the state
establishing this general peace and amity, I do not know that it
would be in the power of the Court to condemn Spanish property,
though belonging to persons resident in those parts of Spain
which are at the present moment under French control, except
under such circumstances as would justify the confiscation of
neutral property ".” In France the Cour de Cassation has had
occasion to render a decision of like effect. In 1811, during the
occupation of Catalonia, a Frenchman accused of the murder of
a Catalan within that province was tried and convicted by the
assize Court of the Department of the Pyrénées Orientales. Upon
appeal the conviction was quashed, on the ground that the courts
of the territory within which a crime is perpetrated have an ex-
clusive right of jurisdiction, subject to a few exceptions not
affecting the particular case, that ‘ the occupation of Catalonia by
French troops and its government by French authorities had not
communicated to its inhabitants the character of French citizens,
nor to their territory the character, of French territory, and that
such character could only be acquired by a solemn act of incor-
poration which had not been gone through *.’ It is somewhat
* The Santa Anna, Edwardes, 182.
* Ortolan, Dip. de la Mer, liv. ii. ch. xiii. p. 324 ad finem. See also the
American case of the American Insurance Company v. Canter, i Peters, 542.
During the Mexican War the Attorney-General of the United States took
the same view with respect to crimes committed during the occupation of
Mexico as that adopted by the French courts in the Catalan murder case.
Halleck, ii. 451. The continuance of the sovereignty of the state over its
occupied parts is affirmed, though in the subordinate shape of a kind of
“latent title,’ by Klüber, § 256 ; Wheaton, Elem. pt. iv. ch. iv. § 4, and
Manning, ch. 5, among the earlier writers of this century. De Martens
(Précis, $ 28o) would seem by his silence to adhere to the ancient doctrine.
MILITARY OCCUPATION 4.67
eurious that a principle which has sufficiently seized upon the PART III
minds of jurists to be applied within the large scope of the fore- CHAP. IV
going cases should not have been promptly extended by inter-
national lawyers to cover the whole position of an occupied country
relatively to an invader. The restricted admission of the principle
is the more curious that the usages of modern war are perfectly
consistent with its full application. The doctrine of substituted
sovereignty, and with it the corollary that the inhabitants of
occupied territory owe a duty of obedience to the conqueror,
are no longer permitted to lead to their natural results.
They confer no privileges upon an invader which he would not
otherwise possess ; and they only now serve to enable him to
brand acts of resistance on the part of an invaded population with
a stigma of criminality which is as useless as it is unjust. Until
recently nevertheless many writers, and probably most belligerent
governments, have continued to hold that in spite of the un-
changed national character of the people and the territory, the
fact of occupation temporarily invests the invading state with
the rights of sovereignty, and dispossesses its enemy, so as to
set up a duty of obedience to the former and of disregard to the
commands of the latter. The reasoning or the assumptions upon ..º.
which this doctrine rests may be stated as follows. The power doctrine.
to protect is the foundation of the duty of allegiance; when
therefore a state ceases to be able to protect a portion of its
subjects it loses its claim upon their allegiance; and they either
directly ‘pass under a temporary or qualified allegiance to the
conqueror,” or, as it is also put, being able in their state of free-
dom. to enter into a compact with the invader, they tacitly agree
to acknowledge his sovereignty in consideration of the relinquish-
ment by him of the extreme rights of war which he holds over
their lives and property ". It is scarcely necessary to point out
* Klüber, § 256; De Martens, Précis, $ 28o; Mr. Justice Story in Shanks
v. Dupont, iii Peters, 246 ; Halleck, ii. 462-4 ; Twiss, ii. § 64.
A recent instance of the assertion of substituted sovereignty by a belli-
gerent government is supplied by the proclamation which Count Bismarck
Bohlen, Governor-General of Alsace, issued on entering on his office in
H h 2
468 MILITARY OCCUPATION
PART III that neither of these conclusions is justified by the premises.
CHAP. IV
Supposing a state to have lost its right to the allegiance of its
subjects, the bare fact of such loss cannot transfer the right to
any other particular state. The invaded territory and its inhabi-
tants merely lie open to the acceptance or the imposition of a new
sovereignty. To attribute this new sovereignty directly to the
occupying state is to revive the doctrine of a res nullius, which is
consistent only with a complete and permanent transfer of title.
Recent
doctrine.
On the other hand, while it may be granted that incapacity on
the part of a state to protect its subjects so far sets them free to
do the best they can for themselves as to render valid any bargain
actually made by them, the assertion that any such bargain as
that stated is implied in the relations which exist between the
invader and the invaded population remains wholly destitute of
proof. Any contract which may be implied in these relations can
only be gathered from the facts of history, and though it is
certain that invaders have habitually exercised the privileges of
sovereignty, it is equally certain that invaded populations have
generally repudiated the obligation of obedience whenever they
have found themselves possessed of the strength to do so with effect.
The only understanding which can fairly be said to be recognised
on both sides amounts to an engagement on the part of an invader
to treat the inhabitants of occupied territory in a milder manner
than is in strictness authorised by law, on the condition that, and
so long as, they obey the commands which he imposes under the
guidance of custom. -
In the face of so artificial and inconsistent a theory as that
which has just been described it is not surprising that a tendency
should have become manifest of late years to place the law of
occupation upon a more natural basis. Recent writers adopt the
view that the acts which are permitted to a belligerent in
August, 1870. It begins as follows: “Les événements de la guerre ayant
amené l'occupation d'une partie du territoire français par les forces alle-
mandes, ces territoires se trouvent parce fait même soustraits à la souveraineté
impériale, en lieu et en place de laquelle est établie l'autorité des puissances
allermandes.' D'Angeberg, No. 371.
MILITARY OCCUPATION 469
occupied territory are merely incidents of hostilities, that the PART III
e g º º * CHAP. IV
authority which he exercises is a form of the stress which he
puts upon his enemy, that the rights of the sovereign remain
intact, and that the legal relations of the population towards the
invader are unchanged. If the same doctrine has not yet been
expressly accepted by most of the great military powers, it is
probably not premature to say that the smaller states are
unanimous in its support, and the former at the Conference of
Brussels at least consented to frame the proposed Declaration in
language which implies it ".
Looking at the history of opinion with reference to the Conclu-
- g S10][] S.
legal character of occupation, at the fact that the fundamental
principle of the continuing national character of an occupied
territory and its population is fully established, at the amount
of support which is already given to the doctrines which are
necessary to complete its application in detail, and to the
uselessness of the illogical and oppressive fiction of substituted
sovereignty, the older theories may be unhesitatingly ranked
as effete, and the rights of occupation may be placed upon
the broad foundation of simple military necessity, -
If occupation is merely a phase in military operations, and i.º. p
º e º § 3 º g * ne rights \,
implies no change in the legal position of the invader with of a miſſi.
* e ;4-ov, e e e & tary occu-
respect to the occupied territory and its inhabitants, the rights º
which he possesses over them are those which in the special
circumstances represent his general right to do whatever acts
are necessary for the prosecution of his war *; in other words
* Calvo, $ 1877; Rolin Jaequenyns, La Guerre actuelle dans ses Rap-
ports avec le Droit International, p. 29 ; Heffter, § 131. Bluntschli, §§ 539–
40 and 545, fully recognises the purely military character of the invader's
authority, but seems somewhat to confuse the extreme inadvisability under
Ordinary circumstances of resisting it with the absence of right to resist.
See also American Instruct., arts. I and 3. The text of the Project of
Declaration of Brussels requires to be read in connexion with the discus-
sions which took place at the Conference. The French Manuel de Droit Int.
à l'Usage, &c. says (p. 93), ‘L'occupation est simplement un état de fait, qui
produit les conséquences d'un cas de force majeure ; l'occupant n'est pas
substitué en droit au gouvernement légal.”
* The right of appropriating all property of the enemy state which is
470 MILITARY OCCUPATION
PART III he has the right of exercising such control, and such control
CHAP. IV
their
limits.
only, within the occupied territory as is required for his safety
and the success of his operations. But the measure and range of
military necessity in particular cases can only be determined by
the circumstances of those cases. It is consequently impossible
formally to exclude any of the subjects of legislative or
administrative action from the sphere of the control which is
exercised in virtue of it; and the rights acquired by an invader
in effect amount to the momentary possession of all ultimate
legislative and executive power. On occupying a country an
invader at once invests himself with absolute authority; and the
fact of occupation draws with it as of course the substitution of
his will for previously existing law whenever such substitution
is reasonably needed, and also the replacement of the actual civil
and judicial administration by military jurisdiction. In its
exercise however this ultimate authority is governed by the
condition that the invader, having only a right to such control as
is necessary for his safety and the success of his operations,
must use his power within the limits defined by the fundamental
notion of occupation, and with due reference to its transient
character. He is therefore forbidden as a general rule to vary
or suspend laws affecting property and private personal relations,
or which regulate the moral order of the community". Commonly
also he has not the right to interfere with the public exercise of
religion *, or to restrict expression of opinion upon matters not
separable from the occupied territory, e.g. the produce of taxes, is usually
classed with rights of occupation (Bluntschli, § 545); it clearly flows how-
ever, not from any right of occupation, but from the general right of appro-
priation. Cf. antea, p. 431.
* If an occupant does forbidden acts of the above kind they cease to have
legal effect from the moment that his occupation ceases. Compare a decision
of the French Cour de Cassation, in 1841, in which it was laid down that
acts which ‘troublent la Société et compromettent l'ordre public tombent
de plein droit aussitót que l'occupation cesse ; si, d'autre part, ils concourent
au bien-ètre de ce pays, et Sont conformes aux intentions du Souverain légi-
time, ils persistent jusqu’à leur abrogation expresse.’ Journal Int. Privé,
1874, p. 224. Comp. also postea, p. 488.
* It would be an exception if, owing to the fanaticism of the population,
MILITARY OCCUPATION 471
directly touching his rule, or tending to embarrass him in his PART. III
CHAP. IV"
negotiations for peace".
The invader deals freely with the relations of the inhabitants Practice
of the occupied territory towards himself. He suspends the #.
the public performance of the ceremonies of their religion could not take tºº.
place without risk of an excitement which might lead to outbreaks. Occupant.
* Bluntschli, §§ 539–40 ; and comp. American Instruct., arts. I–3. The
manner in which the will of the invader acts under ordinary circumstances
is thus described by the Duke of Wellington : ‘Martial law is neither more
nor less than the will of the general who commands the army. In fact
martial law means no law at all ; therefore the general who declares martial
law, and commands that it shall be carried into execution, is bound to lay
down distinctly the rules and regulations and limits according to which his
will is to be carried out. Now I have in another country carried out martial
law ; that is to say, I have governed a large proportion of a country by my
own will. But then what did I do 2 I declared that the country should be
governed according to its own national law; and I carried into execution
that my so declared will.' Hansard, 3rd Series, czv. 881. Compare the
Project of Declaration of Brussels, art. 3, and the decision of the delegated
Commission of the Conference, made at the sitting of Aug. 22, that art. 3
shall be understood to mean that political and administrative laws shall
be subject to suspension, modification, or replacement in case of necessity,
but that civil and penal laws shall not be touched. Parl. Papers, Miscell.
i. 1875, p. 12o. On assuming the government of Alsace in 1870, Count
Bismarck Bohlen declared that ‘le maintien des lois existantes, le ré-
tablissement d'un ordre de choses régulier, la remise en activité de toutes
les branches de l’administration, voilà ou tendront les efforts de mon
gouvernement dans la limite des mécessités imposées par les opérations
militaires. La religion des habitants, les institutions, et les usages du pays,
la vie et la propriété des habitants jouiront d’une entière protection.”
Proclam. of Aug. 30, D'Angeberg, No. 371. [Cf. Art. 43 of the Hague Con-
vention, “L’autorité du pouvoir légal ayant passé de fait entre les mains
de l'occupant, celui-ci prendra toutes les mesures qui dépendent de lui en
vue de rétablir et d’assurer, autant qu'il est possible, l'ordre et la vie publics
en respectant, sauf empêchement absolu, les lois en vigueur dans le pays.”
The well-known definition of martial law quoted above from the Duke of
Wellington must be limited to the case of alien enemies in a foreign country.
The question whether a British ēommander has any right which the Civil
Courts would recognise to supersede within British territory during war time
the ordinary law is a far broader one. It assumed much importance both
during the Boer invasions of Cape Colony and Natal and our own occupation
of the annexed Dutch Republics, but it belongs clearly to the domain of
constitutional rather than international law. The Privy Council in Ex parte
Marais, L. R. I902, A. C. Io9, decided that where actual war is raging acts done
by the military authorities are not justiciable by the Ordinary tribunals; see
also Law Quarterly Review, vol. xviii. pp. II7, 133, 152, for a discussion of the
historical aspect of martial law. The confusion between military and martial
law has been the cause of much loose speaking and writing.]
472 MILITARY OCCUPATION
|PART III operation of the laws under which they owe obedience to their
“*” legitimate ruler, because obedience to the latter is not consistent
'with his own safety; for his security also, he declares certain
i acts, not forbidden by the ordinary laws of the country, to be
'punishable; and he so far suspends the laws which guard personal
liberty as is required for the summary punishment of any one
doing such acts. All acts of disobedience or hostility are regarded
as punishable; and by specific rules the penalty of death is
incurred by persons giving information to the enemy, or serving
as guides to the troops of their own country, by those who while
serving as guides to the troops of the invader intentionally mislead
them, and by those who destroy telegraphs, roads, canals, or
bridges, or who set fire to stores or soldiers’ quarters". If the
inhabitants of the occupied territory rise in insurrection, whether
in small bodies or en masse, they cannot claim combatant privi-
leges until they have displaced the occupation, and all persons
found with arms in their hands can in strict law be killed, or if
captured be executed by sentence of court martial”. Sometimes
the inhabitants of towns or districts in which acts of the foregoing
nature have been done, or where they are supposed to have
originated, are rendered collectively responsible, and are punished
by fines or by their houses being burned. In 1871 the German
governor of Lorraine ordered, ‘in consequence of the destruction
of the bridge of Fontenoy, to the east of Toul, that the district
included in the Governor-Generalship of Lorraine shall pay an
extraordinary contribution of Io,000,ooo francs by way of fine,’
and announcéd that ‘the village of Fontenoy has been imme-
diately burned.” In October 1870 the general commanding in
chief the second German Army issued a proclamation declaring
that all houses or villages affording shelter to Francs Tireurs
would be burned, unless the Mayor of the Commune informed
* Bluntschli, §§ 631, 636, 641. Rolin Jaequenyns (Second Essai sur la
Guerre Franco-Allemande, p. 30) remarks that while the right of inflicting
death for such acts must be maintained, its actual infliction ought only
to take place in exceptional cases.
* American Instruct, 85 ; Bluntschli, $ 643.
MILITARY OCCUPATION 473
the nearest Prussian officer of their presence immediately on their PART III
arrival in the Commune; all Communes in which injury was " "
suffered by railways, telegraphs, bridges or eanals, were to pay
a special contribution, notwithstanding that such injury might
have been done by others than the inhabitants, and even without
their knowledge. A general order affecting all territory occupied
or to be occupied had been already issued in August, under which
the Communes to which any persons doing a punishable act
belonged, as well as those in which the act was carried out, were
to be fined for each offence in a sum equal to the yearly amount
of their land-tax *. -
1 D'Angeberg, Nos. 328, 854, and IoT5. The following extract from the
General Orders issued to the Prussian Army in August, I87o, gives a con-
nected view of the acts punished by the Germans and of the penalties
which they affixed to their commission :-
* I°. La juridiction militaire est établie par la présente. - Elle sera appli-
quée dans toute l'étendue du territoire français occupé par les troupes alle-
mandes à toute action tendant à compromettre la sécurité de ces troupes,
à leur causer des dommages ou à prêter assistance à l'ennemi. La juridic-
tion militaire sera réputée en vigueur et proclamée pour toute l'étendue d'un
canton, aussitôt qu'elle sera affichée dans une des localités qui en font partie.
* 2°. Toutes les personnes qui ne font pas partie de l'al'mée française et
n'établiront pas leur qualité de soldat par des signes extérieurs et qui :
* (a) Serviront l'ennemi en qualité d'espions ;
* (b) Egareront les troupes allemandes quand elles seront chargées de
leur servir de guides ;
* (c) Tueront, blesseront ou pilleront des personnes appartenant aux
troupes allemandes ou faisant partie de leur suite ;
* (d) Détruiront des ponts ou des canaux, endommageront les lignes
télégraphiques ou les chemins de fer, rendront les routes impraticables,
incendieront des munitions, des provisions de guerre, ou les quartiers de
troupes ; f
* (e), Prendront les armes contre les troupes allemandes ;
seront punis de la peine de mort.
* Dans chaque cas, l'officier ordonnant la procédure instituera un conseil
de guerre chargé d'instruire l'affaire et de prononcer le jugement. Les
conseils de guerre ne pourront condamner à une autre peine qu'à la peine
de mort. Leurs jugements seront exécutés immédiatement.
* 3°. Les communes auxquelles les coupables appartiendront, ainsi que
celles dont le territoire aura servi à l'action incriminée, seront passibles,
dans chaque cas, d'une amende égale au montant annuel de leur impôt
foncier.' D'Angeberg, No. 328.
A proclamation, issued on the occasion of the insurrection in Lombardy
in I796, shows the manner in which Napoleon dealt with risings in occupied
countries :- 4
474 MILITARY OCCUPATION
PART III It has been confessed that it is impossible to set bounds to the
CHAP. TV º * # $ $ @ $
demands of military necessity ; there may be occasions on which
a violent repressive system, like that from which the foregoing
examples have been drawn, may be needed and even in the end
humane ; there may be occasions in which the urgency of peril
might exeuse excesses such as those committed by Napoleon in
Italy and Spain. But it is impossible also not to recognise that
in very many cases, probably indeed in the larger number, the
severity of the measures adopted by an occupying army is entirely
, disproportioned to the danger or the inconvenience of the acts
which it is intended to prevent ; and that when others than the
perpetrators are punished, the outrage which is done to every
feeling of justice and humanity can only be forgiven where
military necessity is not a mere phrase of convenience, but an
imperative reality. [The language of the Hague Convention on
this subjectis somewhat lacking in precision : * No general penalty,
* L'armée française, aussi généreuse que forte, traitera avec fraternité les
habitants paisibles et tranquilles ; elle sera terrible comme le feu du ciel pour
les rebelles et les villages qui les protégeraient. Art. I. En conséquence
le général en chef déclare rebelles tous les villages qui ne se sont pas con-
formés à son ordre du 6 prairial (which was, Ceux qui, sous 24 heures,
n'auront pas posé les armes et n'auront pas prêté de nouveau serment
d'obéissance à la République, seront traités comme rebelles ; leurs villages
seront brûlés). Les généraux feront marcher contre les villages les forces
nécessaires pour les réprimer, y mettre le feu, et faire fusiller tous ceux
qu'ils trouveront les armes à la main. Tous les prêtres, tous les nobles qui
seront restés dans les communes rebelles seront arrêtés comme otages et
envoyés en France. Art. 2. Tous les villages où l'on sonnera le tocsin seront
Sur le champ brûlés. Les généraux sont responsables de l'exécution du dit
ordre. Art. 3. Les villages sur le territoire desquels serait commis l'assassinat
d'un Français seront taxés à une amende du tiers de la contribution qu'ils
payaient à l'archiduc dans une année, à moins qu'ils ne déclarent l'assassin
et qu'ils ne l'arrêtent, et le remettent entre les mains de l'armée. Art. 4. .
Tout homme trouvé avec un fusil et des munitions de guerre sera fusillé de
suite, par ordre du général commandant l'arrondissement. Art. 5. Toute
campagne où il sera trouvé des armes cachées sera condamnée à payer le tiers
du revenu qu'elle rend, en forme d'amende. Toute maison où il sera trouvé
un fusil sera brûlée, à moins que le propriétaire ne déclare à qui il appartient.
Art. 6. Tous les nobles ou riches qui seraient convaincus d'avoir excité le
peuple à la révolte, soit en congédiant leurs domestiques, soit par des propos
contre les Français, seront arrêtés comme otages, transférés en France, et
la moitié de leurs revenus confisquée.' Corresp. de Nap. i. i. 323, 327.
MILITARY OCCUPATION 475
pecuniary or otherwise, can be inflicted on the population on PART III
account of the acts of individuals for which it cannot be “”
regarded as collectively responsible".’
Hostages are sometimes seized by way of precaution in order
to guarantee the maintenance of order in occupied territory. The
usage which forbids that the life of any hostage shall be taken,
for whatever purpose he has been seized or accepted, and which
requires that he shall be treated as a prisoner of war, renders the
measure unobjectionable; but in proportion as it is unobjection-
able it fails to be deterrent. The temporary absence of a deposit
which must be returned in the state in which it was received can
only prevent action where it is a necessary means to action; and
the detention of hostages when they are treated in a legal manner
can only be of use if it totally deprives a population of its natural
leaders”. Hence the seizure of hostages is less often used as
a guarantee against insurrection than as a momentary expedient
or as a protection against special dangers, which it is supposed
cannot otherwise be met. In such cases a belligerent is sometimes
drawn by the convenience of intimidation into acts which are
clearly in excess of his rights. In 1870 the Germans ordered
that ‘ railways having been frequently damaged, the trains shall
be accompanied by well-known and respected persons inhabiting
the towns or other localities in the neighbourhood of the lines.
These persons shall be placed upon the engine, so that it may be
understood that in every accident caused by the hostility of the
inhabitants, their compatriots will be the first to suffer. The
competent civil and military authorities together with the railway
companies and the etappen commandants will organise a service
of hostages to accompany the trains.” The order was universally
and justly reprobated on the ground that it violated the principle
which denies to a belligerent any further power than that of
keeping his hostage in confinement; and it is for governments
* Hague Convention, art. 50.
* Napoleon endeavoured to do this in Italy in 1796. See Arts. I and 6
of Proclamation quoted above.
4.76 MILITARY OCCUPATION
PART III
CHAIP. IV
to consider whether it is worth while to retain a right which can
only be made effective by means of an illegal brutality which
existing opinion refuses to condone". [It is to be regretted that
Practice
in admin- tº e tº g *
administration is suspended as of course so soon as occupation
istrative
matters,
&c.
on some occasions during the South African War the British
military authorities should have adopted a similar policy in the
hope of stopping the epidemic of train-wrecking. Its futility,
to say nothing of the question of humanity, was speedily
recognised.]
It has been seen that the authority of the local civil and judicial
takes place. It is not usual however for an invader to take the
whole administration into his own hands. Partly because it is
more easy to preserve order through the agency of the native
functionaries, partly because they are more competent to deal
with the laws which remain in force, he generally keeps in their
posts such of the judicial and of the inferior administrative officers
as are willing to serve under him, subjecting them only to super-
vision on the part of the military authorities, or of superior civil
authorities appointed by him”. He may require persons so serving
him to take an oath engaging themselves during the continuance
of the occupation to obey his orders, and not to do anything to
* Order of the Civil Governor of Rheims. D'Angeberg, No. 686; Rolin
Jaequenyns, La Guerre Actuelle, p. 32 ; Calvo, ii. 1868–71. Bluntschli
(§ 6oo) says that the measure was ‘peu recommandable.’
At St. Quentin and other places the Germans innocently but uselessly
required hostages as a guarantee against the commission of irregular hostili-
ties between the surrender of the town and the completion of its occupation.
It is not easy to suppose that any hot-headed person who might be inclined
to break into acts of violence at such a moment would be deterred by the
prospect that two municipal counsellors would be prisoners in Germany until
the end of the war.”
* In 1806 Napoleon, on occupying the greater part of Prussia, retained the
existing administration under the general direction of a French official.
Lanfrey, Hist. de Nap. i. iv. 25. The Duke of Wellington, on invading
France, directed the local authorities to continue the exercise of their
functions, apparently without appointing any English superior. Wellington
Despatches, xi. 307. The Germans, on the other hand, in 1870 appointed
officials, at least in Alsace and Lorraine, in every department of the admin-
istration and of every rank. Calvo, § 1896. See also the French Manuel
a l'Usage, &c. p. 98.
MILITARY OCCUPATION 477
his prejudice"; but he cannot demand that they shall exercise PART III
their functions in his name”. The former requirement is merely “”
a precaution which it is reasonable for him to take in the interests
of his own safety; the latter would imply a claim to the posses-
sion of rights of sovereignty, and would therefore not be justified
by the position which he legally holds within the occupied territory.
Under the general right of control which is granted to anſUse of the
o © g • I'êSOULFCe
invader for the purposes of his war he has obviously the right of of the S
preventing his enemy from using the resources of the occupied.”
territory. He therefore intercepts the produce of the taxes, of
duties”, and other assistance in money, he closes commercial
access so as to blockade that portion of the territory which is
conterminous with the occupied part, and forbids the inhabitants
of the latter, under such penalties as may be necessary, from
joining the armies of their country “. *
1 American Instruct., art. 26 ; Bluntschli, § 551. The following was the
oath taken in 1806 by the Prussian officials who continued to exercise their
functions during the French occupation : ‘I swear to exercise with fidelity
the authority which is committed to me by the Emperor of the French, and
to act only for the maintenance of the public tranquillity, and to concur
with all my power in the execution of all the measures which may be
ordered for the service of the French army, and to hold no correspondence
with its enemies.” Alison, Hist. of Europe, v. 855.
* Calvo, Ś 1891. In 1870 this rule was infringed by the German authorities
in France, who after the fall of the Emperor Napoleon ordered the Courts at
Nancy to administer justice in the name of the “High German . Powers
occupying Alsace, Lorraine, &c.,’ alleging that the formula ‘in the name of
the French people and government,” which was actually in use, implied
a recognition of the republic. The situation was no doubt embarrassing, as
Prussia was at that time unwilling to negotiate with any but the Imperial
government ; but there can be equally little doubt that the manner in which
the difficulty was met was eminently improper. Few will probably be found
to dispute the common sense of the remark of M. Bluntschli, who says (§ 547)
that “la solution la plus naturelle aurait été ou bien une formule neutre, par
exemple: “au nom de la loi,” ou la suppression de la formule elle-même,
dont l’utilité est fort contestable.” The courts refused to obey, and sus-
pended their sittings. For documents connected with the occurrence, see
Calvo, Ś 1896. The French Manuel à l'Usage, &c. (p. Ioo) prescribes that
magistrates shall be allowed to administer justice in the name of the
legitimate sovereign.
* Foreigners paying duties to an invader are of course not liable to pay
them a second time when he is expelled or withdrawn.
* During the Franco-German War, if persons subject to conscription
478 MILITARY OCCUPATION
PART III | Under the same general right he may apply the resources of
CHAP. IV ,fhe country to his own objects. He may compel the inhabitants
( to supply him with food, he may demand the use of their horses,
carts, boats, rolling stock on railways, and other means of trans-
port, he may oblige them to give their personal services in matters
which do not involve military action against their sovereign.
according to French law, and inhabiting occupied territory not comprised
within the governor-generalship of Alsace-Lorraine, left their place of
residence clandestinely, or without sufficient motive, their relatives were
fined 5o francs for each day of absence (Ordonnance of 27th Oct., 187o,
D'Angeberg, No. 684). Within Alsace-Lorraine a decree ordered (art. I) that
* celui qui se joint aux forces militaires françaises est puni par la confiscation
de sa fortune présente et future et par un bannissement de dix ans. (Art. 5.)
Celui qui veut s'éloigner du siège de son domicile, doit en demander, après
justification préalable de motif, l'autorisation par écrit au préfet. De celui
qui s'est éloigné, sans cette autorisation, plus longtemps que huit jours de
son domicile, on suppose en droit qu'il est allé rejoindre les forces françaises. .
Cette supposition suffit pour la condamnation.' (D'Angeberg. No. 875.)
Commenting upon the latter order M. Bluntschli says ($ 54o) that * au sujet
des peines de la confiscation et du bannissement prononcées contre les con-
trevenants des doutes graves peuvent être soulevés, d'une part, parce que ces
peines paraissent d'une rigueur excessive, et ensuite parce que leurs effets ont
une durée plus considérable que les intérêts militaires ne l'exigent.' M. Rolin
Jaequemyns thinks (Second Essai, p. 34) * qu'il n'est pas contraire au droit
d'exiger des habitants que, pour s'absenter, ils se munissent d'un permis
spécial, et de considérer comme suspects ceux qui, étant en âge de porter les
armes, voyagent sans ce permis.' But, * nous ne pouvons que trouver
exorbitants les moyens indiqués par le décret. La peine odieuse par elle-
même de la confiscation générale de tous biens présents et futurs devient
plus odieuse encore lorsqu'elle s'applique à un acte qui dans l'opinion de ses
auteurs a dû passer non seulement pour légitime, mais pour obligatoire. .. .
On peut comparer l'individu qui a réussi à s'échapper sans permis à un
vaisseau . . .. qui violerait un blocus. Une fois l'obstacle franchi, c'est
à I'état dont la vigilance a été en défaut à en subir les conséquences. . . .
Tout ce que l'on pourrait admettre c'est que, jusqu'au retour de la personne
absente sans permis, l'état envahissant mit ses biens sous séquestre pro-
visoire.' It may be answered to the above criticisms that the rights of
punishment possessed by an invader being entirely independent of the
legitimateness of the action for which its punishment is inflicted, it is
immaterial whether the individual is acting rightly or wrongly ; the sole
point to consider is whether a certain amount of rigour is necessary to attain
an end, and whether that end is important enough to justify rigour. It is
clear that emigration to join a national army is in itself as hostile an act as
others which a belligerent is authorised to repress with severity, and that if
carried on largely over a considerable area it would be highly dangerous to
him. It is hard therefore to say that if milder means are first tried, any
MILITARY OCCUPATION 479
But the right to take a thing does not necessarily involve the PART III.
right to take it without payment, and the right of an invader is | chAP. Iv
a bare one; so long therefore as he confines himself within the
limits defined by his right of control he can merely compel the
render of things or services on payment in cash or by an ac-
knowledgment of indebtedness which he is himself bound to
honour. If he either makes no such payment or gives receipts,
the value represented by which he leaves to the sovereign of the
occupied territory to pay at the end of the war, he oversteps these
limits, and seizes private property under his general right of
appropriation *.
It has been already mentioned that belligerents have commonly Legal re-
g tº te º tº $ tº lation of
assumed, and that some writers still maintain, that it is the duty ...emy
of the inhabitants of an occupied country to obey the occupying ...
e & tº tº I tº govern-
sovereign, and that the fact of occupation deprives the legitimate ment and
e te º people of
sovereign of his authority. It has been shown however, upon an occu-
ſº •; . pied ter-
the assumption that the rights of an occupant are founded only ritory.
on military necessity, that this view of the relation between the
invader and the invaded population, and between the latter and
their government, is unsound. The invader succeeds in a military
operation, in order to reap the fruits of which he exercises control
within the area affected; but the right to do this can no more
imply a correlative duty of obedience than the right to attack
and destroy an enemy obliges the latter to acquiesce in his own
ultimate harshness is too great. In the particular case the Alsace-Lorraine
decree was not issued till December; it strikes no one but the emigrant
himself; and 12, ooo men had already escaped to join the French army
(Circular of Count Chaudordy, D’Angeberg, No. Io24); under all the circum-
stances therefore it possibly was not too severe. The earlier decree affecting
the other occupied provinces is far more open to criticism. Vicarious
punishment never commends itself by its justice, and recourse should only
be had to it in the last extremity. M. Bluntschli’s objection that the effects
of a punishment ought not to have a greater duration than the state of
military affairs which renders it necessary is sound. The termination of
war ought to put an end to all punishments which are still in progress.
* See antea, p. 423. The distinction must be kept in mind, belligerent
governments and some writers being anxious to represent seizure without
payment for military purposes as an act of sovereignty and not of military
violence.
480 MILITARY OCCUPATION
PART III destruction. The legal and moral relation therefore of an enemy
* Y to the government and people of an occupied territory are not
changed by the fact of occupation. He has gained certain
rights; but side by side with these the rights of the legitimate
sovereign remain intact. The latter may forbid his officials to
serve the invader, he may order his subjects to refuse obedience,
or he may excite insurrections". So also the inhabitants of the
occupied territory preserve full liberty of action. Apart from an
express order from their own government they are not called
upon to resist the invader, or to neglect such commands as do
not imply a renunciation of their allegiance; but on the other
hand they may rise against him at any moment, on the full
understanding that they do so at their own peril.
Though the fact of occupation imposes no duties upon the in-
habitants of the occupied territory the invader himself is not left
equally free. As it is a consequence of his acts that the regular
government of the country is suspended, he is bound to take
whatever means are required for the security of public order”;
and as his presence, so long as it is based upon occupation, is
confessedly temporary, and his rights of control spring only from
Duties of
8. It OCCUL-
pant.
* Bluntschli (§ 541) justly says that when the government of an invaded
territory withdraws its functionaries, and even its police, as was done by
Austria in 1866, the enemy suffers much less than the inhabitants. The
ordinary life of the country is paralysed, but the invader will find the means
of doing whatever is necessary for his own convenience. If however the
doctrine stated in the text is well founded, M. Bluntschli is wrong in
declaring (§ 540) that the French government overstepped the limits of its
rights in December 1870, when it forbade the people in Lorraine under pain
of death to work for the German forest administration. It was only guilty
of forcing them to choose between the alternative of immediate punishment
by the Germans, and of possible future punishment, with the brand of
unpatriotism added, from the courts of their own nation. Such acts are
generally unwise and even cruel, but they are none the less clearly within
the rights of a government. *
* The costs of administration are defrayed out of the produce of the
regular taxes, customs, &c. of the country, which the invader is authorised
to levy for this purpose. These costs must be satisfied before he exercises
his right to appropriate the taxes, &c. to his own profit. Comp. American
Instruct., art. 39 ; Project of Declaration of Brussels, art. 5; Bluntschli,
§ 647 ; [art. 48 of the Hague Convention].
MILITARY OCCUPATION 481
the necessity of the case, he is also bound, over and above the PART III
limitations before stated", to alter or override the existing laws CHAP. IV
as little as possible, whether he is acting in his own or the general
interest. As moreover his rights belong to him only that he may
bring his war to a successful issue, it is his duty not to do acts
which injure individuals, without facilitating his operations, or
putting a stress upon his antagonist. Thus though he may make
use of or destroy both public and private property for any object
connected with the war, he must not commit wanton damage,
and he is even bound to protect public buildings, works of art,
libraries, and museums”.
The consequences of occupation being so serious as they in fact When oe-
are to the inhabitants of an occupied territory, it becomes im- iºd
portant to determine as accurately as possible at what moment it *
begins and ends in a given spot. Up to a certain point there
can be no doubt. Within the outposts of an army and along its
lines of communication, so long as they are kept open, the exclu-
sive power of the invader is an obvious fact. But in the territory
along the flank and in advance of the area thus defined it is an
unsettled question under what conditions occupations can exist.
According to one view it is complete throughout the whole of a
district forming an administrative unit so soon as notice of occu-
pation has been given by placard or otherwise at any spot within
it, unless military resistance on the part of duly organised national
troops still continues *; when occupation is once established it
does not cease by the absence of the invading force, so that flying
columns on simply passing through a place can render the in-
habitants liable to penalties for disobedience to orders issued
subsequently when no means of enforcing them exists, or for
* These duties are clearly stated in arts. 2 and 3 of the Project of Declara-
tion of Brussels. See also the Manual of the Institute of Int. Law, arts.
42-9.
* [See Hague Convention, art. 56.]
* The administrative unit adopted by the Germans in 1870 as that, the
whole of which was affected by notice of occupation given at any spot within
it, was the canton. The average size of a French canton is about 72 square
miles.
HALL I i
482 MILITARY OCCUPATION
PART III resistance offered at any later time to bodies of men in themselves
CHAP. IV
|
*
#
pinsufficient to subdue such resistance; although also occupation
comes to an end if the invader is expelled by the regular army
of the country, it is not extinguished by a temporary dispossession,
effected by a popular movement, even if the national government
has been reinstated. This doctrine may be gathered from the
recent German practice, and from that of Napoleon in the early
years of last century; it is therefore that which has been acted
upon in most modern wars in which occupation has taken place
upon a large scale". No distinct usage of a more moderate kind
can, on the other hand, be said to have formed itself; though
* M. Bluntschli’s language (§ 544) expresses the above view, except that
he would seem to exclude occupation by flying columns : “La prise de
possession du territoire necesse pas par le simple fait du départ des troupes
d'occupation. Lorsou’une armée pénêtre sur le territoire ennemi, elle
conserve la possession de la partie du territoire situé derrière elle, même
lorsqu’elle n°y a pas laissé de Soldats, et cela tant qu’elle ne renonce pas
intentionnellement asa possession ou qu’elle n'est pas dépossédée parl'ennemi.”
See Gen. Von Voigts Rhetz on flying columns and temporarily successful
insurrections, Parl. Papers, Miscell. i. 1875, p. 65 ; art. I of the German
Arrété of 1870, quoted above, p. 473. A good example of the manner in
which the Germans maintained occupation during the French War without
the support of present or neighbouring force is afforded by their occupation
of the country lying between Paris, Amiens, and the sea. “I once travelled,’
says Mr. Sutherland Edwards, “from St. Germain to Louviers, a distance of
fifty miles along a road occupied theoretically by the Prussians, without
seeing a Prussian soldier. From the outskirts of Rouen to Dieppe, nearly
fifty miles, I met here and there, and at one place found a post of perhaps
half-a-dozen men. At Dieppe, Prussian proclamations on the walls and the
local cannons spiked or otherwise spoiled; the police and firemen disarmed ;
the telegraph in every direction cut, the postal service stopped; but no-
where a Prussian or a German soldier. From Dieppe to Neufchâtel, not
a soldier, with the exception of a few invalids kept in Neufchâtel in hospital;
from Neufchâtel to the advanced posts of the army at Amiens, again not
a soldier. Yet from St. Germain, by way of Louviers and Elboeuf to Rouen,
from Rouen to Dieppe, from Dieppe to Amiens, the roads and adjacent
districts were all under Prussian rule.” (The Germans in France.) The
practice of Napoleon with respect to flying columns may be indicated by an
order issued in 1806 to Marshal Lannes when the French army had not yet
passed the Oder : “Mon intention est que vous réunissiez toute, votre
cavallerie legère au delà de l'Oder, et qu’elle batte tout le pays jusqu’à la
Vistule. Wous donnerez pour instructions aux commandants de défendre
aux recrues d'aller rejoindre, conformément à l'appel que leur fait en ce
rmoment le roi de Prusse, et de faire connaitre partout que le premier village
qui Iaissera partir ses recrues sera puni.” Corresp. xiii. 467.
MILITARY OCCUPATION 483
there are indications of the growth of an opinion hostile to the PART III
current practice. The discussions which took place at the CHAP. Iv
Conference of Brussels resulted in the introduction of a new
article into the Project of Declaration for the purpose of defining
the conditions under which territory should be considered to be
occupied. By this, occupation was said to ‘extend only to
territories where the authority of the enemy’s army is established
and is capable of being exercised,’ and it is evident from the
Protocols that capacity to exercise authority was understood to
depend upon the existence of an immediately available force ".
The language of the article is wanting in precision, and if it
were received without amendment as the standard of law,
Lord Derby would be justified in entertaining the fear which
he has expressed, that ‘the inhabitants of an invaded territory
would find in such colourless phrases very inadequate protection
from the liberal interpretation of the necessities and possibilities
of warfare by a victorious enemy”.” Defective however as it is,
and notwithstanding that it represents little more than an
endeavour to find out a common ground upon which conflicting
opinions might momentarily unite, distinct gain would have
accrued from the acceptance of any definition, however imperfect,
which is more in harmony with the true basis of the law of
occupation than that to which great military states have hitherto
been in the habit of giving effect. The principle that occupation,
\
in order to confer rights, must be effective, when once stated, is
too plainly in accordance with common sense, and too strictly t
follows the law already established in the analogous case of
* The delegates of Sweden and Switzerland directed attention to the close
analogy which exists between occupation and a blockade (Parl. Papers,
Miscell. i. 1875, p. 64). The right of blockade which, like occupation, is
based solely upon the military necessities of a belligerent, gives him certain
rights within limits of place which are defined by his immediately effective
force. See postea, part iv. chap. vi. The principle of the article was
approved of by a considerable number of jurists at a meeting of the Institute
of International Law in 1875. See also Rolin Jaequenyns, Second Essai,
p. 34.
* Parl. Papers, Miscell., No. ii. I875, p. 5.
I i 2
484 MILITARY OCCUPATION
PART III blockade, to remain unfruitful, and there can be little doubt that
CHAP, IW
practice will in time be modified so as to conform within
reasonable bounds to the deductions which may logically be
drawn from it. [The principle of the Brussels article has now
been adopted by the Hague Convention of 1899 "..]
That the more violent usage is theoretically indefensible
scarcely requires proof. Rights which are founded upon mere
force reach their natural limit at the point where force ceases to
be efficient. They disappear with it; they reappear with it;
and in the interval they are non-existent. If moreover neither
the legitimate sovereign of a territory nor an invader holds a
territory as against the other by the actual presence of force, so
that in this respect they are equal, the presumption must be that
the authority of the legitimate owner continues to the exclusion of
such rights as the invader acquires by force. As a matter of fact,
except in a few cases which stand aside from the common in-
stances of extension of the rights of occupation over a district, of
which part only has been touched by the occupying troops, the
enforcement of those rights through a time when no troops are
within such distance as to exercise actual control, and still more
the employment of inadequate forces, constitute a system of
terrorism, grounded upon no principle, and only capable of being
maintained because an occupying army does not scruple to
threaten and to inflict penalties which no government can impose
upon its own subjects.
If it were settled that occupation should be considered to exist
only together with the power of immediate enforcement of the
rights attendant on it, occupation by flying columns, and occu-
pation evidenced by the presence of a plainly inadequate force,
would disappear; and with them would disappear the abuses
which are now patent. To insist without reservation upon the
requirement of present force would not however be altogether
+ [Art. 42. Un territoire est considere comme occupé lorsqu’il se trouve
* * > y * a A- & e
placé de fait sous l'autorité de l'armée ennemie. L'occupation ne s'étend
qu'aux territoires oil Čette autorité est établie et en mesuré de s'exercer.]
}
&
MILITARY OCCUPATION 485
just to the invader. It must be admitted that the country PART III
which is covered by the front of an army, although much of it CIHAP. IV
may not be strongly held, and though it may in part be occupied
only by the presence of a few officials, is as a rule far more
effectually under command than territory beyond those limits,
even when held by considerable detachments. This is so much
the case that in such districts a presumption in favour of efficient
control may be said to exist which the occurrence of a raid by
national troops, the momentary success of an insurrection, or the
presence of guerilla bands, is not enough to destroy. An invader
may therefore fairly demand to be allowed to retain his rights of
punishment, within the district indicated, until the enemy can
offer proofs of success, solid enough to justify his assertion that
the occupier is dispossessed. This requirement might probably
be satisfied, and at the same time sufficient freedom of action
might be secured to the invaded nation by considering that a
territory is occupied as soon as local resistance to the actual pre-
sence of an enemy has ceased, and continues to be occupied so
long as the enemy's army is on the spot ; or so long as it covers
it, unless the operations of the national or an allied army or local
insurrection have re-established the public exercise of the legiti-
mate sovereign authority.
CHAPTER V
POSTLIMINIUM
PART III WHEN territory which has been occupied and population which
* Y has been controlled by an enemy comes again into the power of
In what
postiimi- its own state during the progress of a war, or when a state the
nium con-
sists.
whole of which has been temporarily subjugated throws off the
yoke which has been placed upon it before a settled conquest has
been clearly effected, or finally when a state or portion of a state
is freed from foreign domination by the action of an ally before a
conquest of it has been consolidated,the legal state of things exist-
ing prior to the hostile occupation is re-established. In likemanner,
when property of any of the kinds which have been mentioned
as being susceptible of appropriation during the course of hostili-
ties is captured by an enemy, and is then recaptured by the state
to which it belongs or of which the person to whom it belongs is
a subject, or by an ally, before the moment at which it so be-
comes the property of its captor that third parties can receive a
transfer of it, the owner is replaced in legal possession of it. In
all these cases the legal state of things existing before the hostile
occupation or capture is conceived of for many purposes as having
been in continuous existence". -
The above rule is based upon what is called, by an unnecessarily
º imposing name, the right of postliminium, from a somewhat
distant analogy to the jus post/iminii of the Roman law.
Properly it is difficult to see that the so-called right has any
ground for claiming existence as such. Hostile occupation of
territory being merely the detention of property belonging to
* Grotius, De Jure Belli et Pacis, lib. iii. c. ix; Wattel, liv. iii. ch. xiv.;
De Martens, Précis, $283; Phillimore, iii. §§ ccc.ciii-vi; Bluntschli, $$ 727–8,
736. Grotius, followed by Wattel and some more modern writers, supposes
postlininium not to extend to moveables.
POSTLIMINIUM 487
another, the control exercised over its inhabitants being the PART III
mere offspring of military necessity, and appropriation by con- *** *
quest, in those cases in which the intention to conquer is present,
being incomplete during the continuance of war, the rights of
the original state person, where the life of the state is momen-
tarily suspended, or of the legal owner, where a portion of its
territory is cut off, remain untouched. The state is simply de-
prived temporarily of the means of giving effect to those rights;
and when the cause of the deprivation is taken away, it is not a
right, but the fact of power which revives. In the case there-
fore of territory recovered after hostile occupation the right of
postlininium is merely a kind of substantive dress which is
given to the negative fact that a legitimate owner is under no
obligation to recognise as a source of rights the disorder which
is brought into his household by an intruder; and though the
case of property susceptible of appropriation during war is not
identical, since the right of the enemy to deal with it as his own
arises immediately that effectual seizure is made, it is rendered
closely analogous by the fact that evidence of effectual seizure is
only considered to be sufficient to bind the other belligerent, or
to warrant recognition by neutrals, after the captured object has
been taken into a safe place. In effect, the doctrine of post-
liminium amounts to the truistic statement that property and
sovereignty cannot be regarded as appropriated until their appro-
priation has been completed in conformity with the rules of
international law.
Putting aside certain of the effects of postliminium, which
are mentioned by writers, but with which international law
is not concerned, such as its effect in reviving the constitution
of the state, there seem to be only four subjects connected with
it which need to be touched upon—viz.
I. Certain limitations to the operation of the right in the
case of occupied territory.
2. The effect of acts done by an invader in excess of his
rights.
488 POSTLIMINIUM
PART III 3. The effect of the expulsion of an invader by a power not
CHAP. W. in alliance with the occupied state.
4. Special usages with regard to property recaptured at
Se2,.
Limita- As a general rule the right of postliminium goes no further
tions upon
i... than to revive the exercise of rights from the moment at which
tion of * ge e tº *
postlini- it comes into operation. It does not, except in a very few
à. … cases, wipe out the effects of acts done by an invader, which for
occupied one reason or another it is within his competence to do. Thus
territory. judicial acts done under his control, when they are not of a
political complexion, administrative acts so done, to the extent
that they take effect during the continuance of his control, and
the various acts done during the same time by private persons
under the sanction of municipal law, remain good. Were it
otherwise, the whole social life of a community would be
paralysed by an invasion; and as between the state and
individuals the evil would be scarcely less, it would be hard
for example that payments of taxes made under duress should be
ignored, and it would be contrary to the general interest that
sentences passed upon criminals should be annulled by the
disappearance of the intrusive government. Political acts on
the other hand fall through as of course, whether they introduce
any positive change into the organisation of the country, or
whether they only suspend the working of that already in
existence. The execution also of punitive sentences ceases as of
course when they have had reference to acts not criminal by the
municipal law of the state, such for example as acts directed
against the security or control of the invader. Again, while acts
done by an invader in pursuance of his rights of administrative
control and of enjoyment of the resources of the state cannot be
nullified in so far as they have produced their effects during his
occupation, they become inoperative from the moment that the
legitimate government is restored. Thus—to recur to a case
which has already been glanced at in a slightly different
aspect—in 1870–I certain persons entered into contracts with
|
POSTLIMINIUM 489
the German government for felling timber in state forests in PART III
France. They were paid in advance, and the stipulated fellings “ ”
not having been finished at the time of the signature of the
treaty of peace between the two countries, the contractors urged
that as the German government was within its rights in causing
the fellings to be made, the French government was bound to
allow them to be completed. The French government held that
the re-establishment of its own control had ipso facto nullified
the contracts, and on the occasion of the signature of the
supplementary convention of December II, 1871, it made a
declaration to that effect, which was accepted by the German
government as correct in point of law. That French authority
was re-established in the particular case by a treaty of peace is
unimportant, the effects of re-establishment by treaty and in
other ways being in such matters confessedly identical".
When an invader exceeds his legal powers, when for example Effects of ‘
he alienates the domains of the state or the landed property of º
the sovereign, his acts are null as against the legitimate govern-inyº II].
5 **2 excess of
ment. Such acts are usually done by an invader who intends to his rights.
effect a conquest, and supposes himself to have succeeded.
Whether therefore they are valid or invalid in a given instance
depends solely upon the strength of the evidence for and against
his success.
Some difference of opinion exists as to the effect of the Effect of ,
& * * ſº ſº g tº }riº *_*
expulsion of an invader by a power not in alliance with the º: ...”
occupied state. As the annexation of Genoa to Sardinia in 1815 sº
forms the leading case upon the subject, and is that to which all not in
- e g ge alliance
arguments have reference, it may be as well to begin by stating ºn the
it. In the spring of 1814 Lord William Bentinck landed on ºpied
the coast of Tuscany with a small Anglo-Sicilian force, and case of
learning that the city of Genoa was inadequately garrisoned, º in
I e
determined to attempt its capture. The results of a couple of 5
days’ fighting induced the commandant to capitulate. The
place was surrendered; the garrison retired under the terms of
* Heffter, § 188; Bluntschli, $ 731 ; Calvo, $ 2990.
490 POSTLIMINIUM
PART III the capitulation to Nice; and the whole territory of the former
CHAP. V.
republic fell into the hands of England, by conquest as between
itself and France. The Genoese state had been destroyed in
I797, but the British government, in making the treaty of
Amiens, had refused to acknowledge its destruction, and its
formal union with France in 1805 had remained equally un-
recognised. On the expulsion of the French a local republican
government was set up with the sanction, and indeed at the
suggestion, of Lord William Bentinck; but ultimately the city
with its attendant territory was annexed to Sardinia, against
the wishes of the inhabitants, in consequence of the general
territorial redistribution which was made at the Congress of
Vienna. Considerable feeling was excited in Éngland by the
latter occurrence, and resolutions condemnatory of it were
moved in the House of Commons by Sir James Mackintosh.
In the course of his speech in support of them he argued that
‘ in the year 1797, when Genoa was conquered by France, then
at war with England, under pretence of being revolutionised, the
Genoese republic was at peace with Great Britain ; and con-
sequently, in the language of the law of nations, they were
friendly states. Neither the substantial conquest in 1797, nor
the formal union of 1805, had ever been recognised by this
kingdom. When the British commander therefore entered the
Genoese territory in 1814, he entered the territory of a friend
in the possession of an enemy. Can it be inferred that he
conquered it from the Genoese people P. We had rights of
conquest against the French ; but what right of conquest would
accrue from their expulsion as against the Genoese? How could
we be at war with the Genoese ?—not as with the ancient
republic of Genoa, which fell when in a state of amity with us-
not as subjects of France, because we had never legally and
formally acknowledged their subjection to that power. There
could be no right of conquest against them, because there was
neither the state of war, nor the right of war. Perhaps the
powers of the continent, which had either expressly or tacitly
POSTLIMINIUM 491
recognised the annexation of Genoa in their treaties with France, PART III
might consistently treat the Genoese people as mere French “”
subjects, and consequently the Genoese territory as a French
province, conquered from the French government, which as
regarded them had become the sovereign of Genoa. But England
stood in no such position:-in her eye the republic of Genoa still
of right subsisted. Genoa ought to have been regarded by
England as a friendly state, oppressed for a time by the common
enemy, and entitled to reassume the exercise of her sovereign
rights as soon as that enemy was driven from her territory by
a friendly force”.” - -
The views of Sir James Mackintosh have very commonly been
regarded as sound”, but they are not admitted by all writers.
Heffter supposes, in agreement with the line of conduct pursued
by England, that a state freed by the exertions of a power which
is not its ally does not recover its existence as of course; and
M. Bluntschli argues that though the liberating power cannot
dispose of the country wholly without reference to the wishes of
the population, yet that a state which is neither able to defend
itself in the first instance nor to re-establish itself afterwards
cannot be held to possess a clear and solid right to existence, and
at the same time the liberating power has a right to be rewarded
for its sacrifices, which indeed cannot be supposed to have been
made in a spirit of pure disinterestedness;–in settling the future
of the liberated country the interests and wishes both of it and
of its liberator ought, he thinks, to be taken into consideration *.
* Hansard, xxx. 387 and 891, or Mackintosh's Miscell. Works, p. 703;
Alison's Hist. of Europe, x. 209 and 295. -
* Phillimore, iii. § cxxiii.; Halleck, ii. 520–1 ; Calvo, $ 2986. The same
view had already been taken by Wattel, liv. iii. ch. xiv. § 213.
* Heffter, § 188 and § 184*; Bluntschli, § 729. Woolsey (§ 153) follows
Heffter.
Perhaps the value of M. Bluntschli’s opinion is somewhat affected by the
fact that he instances “les négociations entre la Prusse et le duc Frédéric
d’Augustenbourg, au sujet des duchés de Schleswig et de Holstein, 1865–6, après
gue ces duchés eurent été affranchis par la Prusse de la domination danoise ’ as
an example of the right course of conduct to adopt. But it is not quite clear
how the case is an example at all of the class of cases under consideration.
492 POSTLIMINIUM
PART III
CHAP. V.
Conclu-
Sions.
It may probably be safely concluded that the opinions of
Sir James Mackintosh and his followers on the one hand and of
M.M. Heffter and Bluntschli on the other both contain elements
of truth. As a matter of common sense, there can be no question
that conquest cannot be held to be consolidated while a war
continues which by any reasonable chance may extend to the
conquered territory, and that a country which has been inde-
pendent must be supposed to retain its existence in law as
between itself and a foreign state so long as the latter has not
recognised that conquest has taken place. The foreign state
cannot at the same moment deny proprietary rights to the
intruder, and arrogate rights to itself which can only be derived
from the enemy character of the country which has been tempo-
rarily or permanently subjugated. Nor does the fact that it has
made sacrifices in ejecting the invader from the invaded territory
alter its legal position, whether the sacrifices have been made
disinterestedly or not. It was not obliged to make them. On
the other hand it cannot be placed in a worse position by being
at war with the intrusive state than it would otherwise have
held. The legal effects of a war are not modified by the fact
that one of the parties to it is waging another wholly distinct
war at the same time. If therefore a conquest seems, either
from the attitude taken up by the conquered population towards
the victor, or from his apparent solidity of possession, to be so
settled that a state would be justified if at peace with him in
recognising it as definitive, there can be no reason for denying
to an enemy the right of making up its own mind whether
occupation continues or conquest has taken place;—he is merely
prevented by the nature of the relation existing between him
and the invader from showing what opinion he has formed until
the course of his war leads him to attack the territory in question.
In all cases then in which conquest has unquestionably not
been consolidated, and in which the territory of a state is
therefore only occupied, the state recovers its existence and all
the rights attendant on it as of course so soon as it is relieved
POSTLIMINIUM 493
from the presence of the invader. Where, on the other hand, PART III
there is reasonable doubt as to whether a state is occupied or CHAP. V.
conquered, the third state must be allowed to determine the point
for itself, and to act accordingly".
The circumstance that commercial vessels and their cargoes Recap- t
belong to private owners and that they are generally of more or * -
less considerable value, coupled with the fact that recaptors are
generally fellow-subjects of the original owners of recaptured
property, has led to the adoption of certain usages with respectſ
to maritime recapture by which the application of the right of
postlininium is somewhat blurred. On the one hand, it has
been thought well to reward recaptors by paying them salvage
in all cases, so that property never returns unconditionally to the
owner; on the other, property is as a rule returned to him upon
payment of salvage, notwithstanding that the enemy may have
evidenced his capture by taking the captured ship into a safe
place, or even by formal condemnation in his courts.
In 1632 the Dutch government, in the interests of commerce,
issued a placard directing restitution to the owners of vessels
recaptured before being taken into an enemy’s port, and by
a decree of 1666 they regarded property in them as unchanged
until after sale and a fresh voyage to a neutral port. In 1649
England ordered restitution of all British vessels to the owners
on payment of salvage irrespectively of time or of the manner in
which they had been dealt with by the enemy; and the practice
has been continued by successive Prize Acts to the present time,
an exception only being made in the case of ships which before
recapture have been commissioned by the enemy as vessels of
war *. Gradually a like mode of dealing with recaptured ships
* Of course where the ejecting state appears ostensibly in the character
of a liberator it is bound by its own professions. In the case of Genoa, for
example, it may be a question whether England by the general attitude
which she assumed towards the Italian populations did not morally bind
herself to restore such of them as might wish it to the position which they
Occupied before the French conquest.
* Bynkershoek, Quaest. Jur. Pub. I. i. c. iv.; Nostra Signora del Rosario,
494 POSTLIMINIUM
PART III has been adopted by other nations, and the municipal laws of
CHAP. V
|
the United States, Portugal, Denmark, Sweden, Holland, France
and Spain now direct their restitution. The cases in which
restitution is made, and the conditions of restitution, are not
however altogether similar in these various countries. The
United States restores only when the recapture has been effected
before condemnation in a prize court; France restores vessels
retaken by a public ship of war after twenty-four hours’ pos-
session by an enemy, but leaves them as prizes in the hands of
a privateer; Spain gives greater indulgence to neutrals than to
her own subjects and returns recaptured vessels to the former,
unless they are laden with enemy’s property; Portugal, Denmark,
Sweden, and Holland follow the English practice of making
restitution in all cases. Payment of salvage is always required,
but the amount varies in different countries. In France one
tenth of the value is exacted, unless recapture has taken place
before the expiration of twenty-four hours, when one thirtieth
only is demanded; in England the amount given is one eighth,
except in cases of special difficulty and danger; in Spain the
rate is one eighth if the recapture has been effected by a public
ship of war, and one sixth if a privateer is the recaptor; in
Portugal the corresponding rates are one eighth and one fifth
respectively; in Denmark one third and in Sweden one half is
demanded; the normal rate in the United States is one eighth of
the value, but other rates are levied in special cases”. . In the
majority of instances the above regulations have been made for
municipal purposes, but it is usual to extend the same treatment
to allies and friends as is applied by the recapturing state to its
iii Rob. Io; L’Actif, Edwardes, 185; The Ceylon, i Dodson, 118-9 ; 27 and
28 Vict. c. 25.
* 27 and 28 Vict. c. 25; Twiss, ii. §§ 174–5; Wheaton, Elem. pt. iv. ch. ii.
§ 12 ; Pistoye et Duverdy, ii. IoS ; Negrin, p. 288. As between England
and France the treatment to be applied is still dictated by a treaty of 1786;
if an enemy has taken a vessel which is recaptured after less than twenty-
four hours’ possession it is restored to its owner on payment of a third of
its value ; if it is recaptured after more than twenty-four hours’ possession
it belongs to the recaptors. Pistoye et Duverdy, ii. Io9.
POSTLIMINIUM 495
own subjects, provided the allied or friendly government acts PART III
upon the principle of reciprocity; if it give effect to a less liberal “” "
rule, its own practice is followed".
* The Santa Cruz, i Rob. 60. In the United States it is provided by Act
of Congress that when a practice is known to exist in a foreign country with
respect to vessels of the United States, such practice is to be observed with
respect to vessels of that country, except that they are not to be returned
if they have been condemned in a prize court ; where no such practice is
known the rules applicable to subjects of the United States are to be followed.
Wheaton, Elem. pt. iv. ch. ii. § 12 ; The Schooner Adeline, ix. Cranch, 288.
CHAPTER WI
ENEMY CHARACTER,
PART III INDIVIDUALS being identified with the state to which they
CHAP. VI e & {} - e e G
Persons belong, and it being, besides, a special principle of the laws of
and pro- war that the subjects of a state are the enemies of its enemy, it
fººd might primá facie be expected that the whole of the subjects of
- wº |a state would in all cases be the enemies of a state at war with it.
ºter, On the other hand, it might also be expected that the subjects of
º a state at peace with both parties could in no case be looked upon
...” was the enemies of either. The bare legal fact however that a
º ºny person is or is not the subject of a state is of less practical impor-
Stjä,1562.
tance in war than the consideration that he does or does not render
| assistance directly or indirectly to the enemy. It was seen in
the chapter on the general principles of the law as between belli-
gerents and neutrals that the former are allowed in certain
cases to restrain neutral individuals from trade with the enemy,
and to impose penalties for a breach of their rules. Where the
association of the neutral person with the enemy is closer; where
the assistance is given, not accidentally, but because the neutral
person has chosen to identify himself with the enemy by taking
service in the country or by establishing himself in it, it is
natural that a belligerent should be permitted to go further, and
to regard the neutral individual as himself hostile, at least to the
extent that his acts are of advantage to the enemy, or that he
presents himself as a member de facto of the enemy community.
On the other hand, when the subject of a belligerent state has
established himself in a neutral country, the closeness with which
a person is identified with the place where he finds a home
operates to free him, in so far as he is associated with it rather
than with his own country, from the consequences of his belli-
ENEMY CHARACTER, 497
gerent character; to seize his ships or his goods would be to put PART III
a stress, not upon the enemy, but upon the neutral state. With CHAP. VI
these reasons of a merely practical nature the effects of sover-
eignty, or in other words, of the authority which a state exercises
over foreigners within its territory, combine to prevent the attri-
bution of enemy character from corresponding exactly with the
fact of national character. A foreigner living and established
within the territory of a state is to a large extent under its
control; he cannot be made to serve it personally in war, but he
contributes by way of payment of ordinary taxes to its support,
and his property is liable, like that of subjects, to such extra-
ordinary subsidies as the prosecution of a war may demand. His
property being thus an element of strength to the state, it may
reasonably be treated as hostile by an enemy. Conversely, when
the foreigner lives in a neutral country, he is so far subject to
its sovereignty that it can restrain him from taking advantage
of its territory to do acts of hostility against the enemy of his
state, and it is responsible for his acts, if he does them. For
the purposes of the war therefore he is in reality a subject. of
the neutral state. Finally, if property be regarded separately,
although on the one hand it cannot escape from the consequences
of enemy ownership, it may on the other be necessarily hostile by
its origin irrespectively of a neutral national character of its
owner, and it is also capable of being so used in the service of a
belligerent as to fall completely under his control, and to become
his for every purpose of his hostilities. -
Enemy character may thus attach either to persons of neutral
national character and to their property as attendant on them, or
to property owned by neutrals in virtue of its origin or of the
use to which it is applied. *
The chief test of the existence of such an identification of a Effect ork
neutral subject with an enemy state as will suffice to clothe him ania.
with an enemy character is supplied by the fact of domicil. * {
For belligerent purposes a person may be said to be domiciled What con-
º ë © & . stitutes
in a country when he lives there under circumstances which giveiji
HALL, K k
f
|
|
|
498 ENEMY CHARACTER
PART II
CHAP. VI
for belli- \
gerent
purposes.
|
:
rise to a reasonable presumption that he intends to make it his
sole or principal place of residence during an unlimited time.
The circumstances upon which such a presumption can be founded
are the two, which may be united in infinitely varying pro-
portions, of the past duration and the object of residence. If
a person goes to a country with the intention of setting up in
business he acquires a domicil as soon as he establishes himself,
because the conduct of a fixed business necessarily implies an
intention to stay permanently ; if on the other hand he goes for
a purpose of a transitory nature, he does not necessarily acquire
a domicil, even though he lingers in the country after his
immediate object is satisfied; he only does so if at last by the
length of his residence he displaces the presumption of merely
temporary sojourn which is supplied by his original purpose".
Of these two elements of time and object, time is nevertheless
the more important ultimately. Lord Stowell said with regard
to it that ‘ of the few principles that can be laid down generally,
I may venture to hold that time is the grand ingredient in
constituting domicil. I think that' hardly enough is attributed
to its effects, in most cases it is unavoidably conclusive. . . . I can-
not but think that against a long residence, the plea of an
original special purpose could not be averred ; it must be in-
ferred in such a case that other purposes forced themselves upon ’
the person living in a foreign state and mixed themselves with
his original design, and impressed upon him the character of the
country where he resided. Suppose a man comes into a belli-
gerent country at or before the beginning of a war, it is cer-
* The first of these examples may be illustrated by the case of Mr. White-
hill, who “arrived at St. Eustatius only a day or two before Admiral Rodney
and the British forces made their appearance ; but it was proved that he
had gone to establish himself there, and his property was condemned.”
(Referred to in The Diana, v Rob. 60.) The two latter are covered by the
language of Lord Stowell in the case of The Harmony, quoted in the text.
Foreign writers generally devote little attention to questions of enemy
character. English and American writers merely reflect the doctrines laid
down in the decisions rendered by the courts in the two states; it is not
therefore usually necessary to refer to them.
ENEMY CHARACTER 499
tainly reasonable not to bind him too soon to an acquired char- HART III
acter, and to allow him a fair time to disengage himself, but if * VI
he continues to reside during a good part of the war, contributing
by payment of taxes or other means to the strength of that
country, I am of opinion that he could not plead his special pur-
pose with any effect against the rights of hostility. If he could,
there would be no sufficient guard against the fraud and abuses
of masked, pretended, original and sole purposes of a long-con-
tinued residence. There is a time which will estop such a plea ;
no rule can fix the time & priori, but such a time there must be.
In proof of the efficacy of mere time it is not impertinent to
remark that the same quantity of business which would not fix a
domicil in a certain space of time would nevertheless have that
effect, if distributed over a larger space of time. Suppose an
American came to Europe with six contemporary cargoes of
which he had the present care and management, meaning to
return to America immediately; they would form a different
case from that of the same American coming to any particular
country of Europe with one cargo, and fixing himself there to
receive five remaining cargoes, one in each year successively.
I repeat that time is the great agent in this matter; it is to be
taken in a compound ratio of the time and the occupation, with
a great preponderance on the article of time; be the occupation
what it may, it cannot happen but with few exceptions that
mere length of time shall not constitute a domicil'.”
As domicil is acquired for private purposes of business or Change of
tº ſº ... domicil
pleasure, and the consequences to a man of its possession by him during
flow, not from an attitude of hostility on his part, but from the "“”
accidental circumstance that his conduct is of advantage to a
belligerent, he is not tied down to the domicil in which he is found
at the beginning of war. So soon as he actually removes else-,
where, or takes steps to effect a removal in good faith and without
intention to return, he severs his connexion with the belligerent
country. He thus recovers his friendly character, and with it!
* The Harmony, ii Rob. 322.
K k 2
500 ENEMY CHARACTER
PART III recovers also the rights of a friend. In 1783, for example, a
CHAP. WI
Mr. Johnson, an American subject, came to England to trade,
and by staying there till 1797 acquired an English domicil.
Some time before the latter year he had formed an intention of
leaving, and during its course he actually left. Before his
departure however a vessel belonging to him, which he had sent
out in order that she should be freighted for America, but which
an agent, supposing that Mr. Johnson would have reached the
United States before the completion of the voyage, had sent to
ports enemy of England and then back to the latter country,
was detained there. It was held that as ‘the national character
of Mr. Johnson as a British merchant was founded on residence
only, as it was acquired by residence, and rested on that circum-
stance alone, he was in the act of resuming his original character,
and is to be considered as an American, from the moment he
turns his back on the country where he has resided on his way
to his own country; the character that is gained by residence
ceases by residence; it is an adventitious character which no
longer adheres to him from the moment that he puts himself in
motion bond ſide to quit the country sine animo revertend?".”
A person though not resident in a country may be so associated
with it through having, or being a partner in, a house of trade
there, as to be affected by its enemy character, in respect at least
of the property which he possesses in the belligerent territory;
if he is a merchant in two countries, of which one is neutral and
the other belligerent, he is regarded as neutral or belligerent
according to the country in which a particular transaction of his
commerce has originated. Things are different when a merchant
living in a neutral country, and carrying on an ordinary neutral
* The Indian Chief, iii Rob. I2. For an application of the principle
during the Crimean War under the somewhat delicate circumstances of the
sale of a vessel, in view of the outbreak of war, by a Russian father to a son
domiciled in England, who afterwards removed to Denmark in order to
carry on a neutral trade, see the Baltica, Spinks, 264. For an American
decision, see the Venus, viii Cranch, 28o. For a case in which the
House of
trade.
change of domicil was held to be not effected in good faith, see the Ernst
Merck, Spinks, 89. -
ENEMY CHARACTER, 501
trade has merely a resident agent in the belligerent state, the PART III
agent being looked upon as only an instrument for facilitating *** *
the conduct of a trade which in other respects is not distinguish-
able from that of other neutral merchants. If however the trade
is in itself such as to create any special association, through the
concession of exceptional privileges or otherwise, between the
merchant and the belligerent state, the former becomes impressed
with a hostile character relatively to enemies of the state, not-
withstanding the fact of his absence. Thus an American,
possessing a tobacco monopoly in the Caraccas, but not residing
in Spanish territory, and conducting his trade through an
agent, was held to have contracted a Spanish mercantile
character".
The application of the foregoing rules is not modified in the
practice of England and the United States by the fact that a
merchant falling under their operation is a consul either for
a neutral or a belligerent power. He has the mercantile character
of the country in which he is commercially domiciled, and he
receives no protection or harm in his private affairs from his
official position. If his property is liable to condemnation upon
his mercantile character it is condemned ; and on the other hand, if
he is domiciled in neutral territory, he does not forfeit his neutral
character by acting as consul of a belligerent state. The French
practice is so far different that the property of a neutral subject,
consul for a neutral state in a belligerent country, and carrying
on trade in the latter, is held to be itself neutral *.
When a person belonging to a neutral state takes permanent Effect of
civil or military service with a foreign state he identifies himself hººvil
so fully with it that he becomes the enemy of its enemies for º
every purpose. When he merely contracts to do specific services, ment.
* The Jonge Classina, v Rob. 302; The Freundschaft, iv. Wheaton, IoS ;
The Anna Catherina, iv Rob. I 19 ; The Portland, iii Rob. 44; Calvo,
§ I7I9.
* The Indian Chief, iii Rob. 27; Admiralty Manual of Prize Law
(Holland), 1888, p. 11; Le Hardi contre la Voltigeante, Pistoye et Duverdy,
i. 32.I ; La Paix, ib. -
502 ENEMY CHARACTER
PART III he becomes an enemy to the extent, and for the purposes, of those
*** * services.
The occasions during the progress of a war upon which a
neutral openly holds forth himself or his property as identified
with the enemy, or being so identified in fact takes up by
resistance a hostile attitude, need no discussion; those in which
during the progress of the war it falls to the courts of a belli-
gerent, when the neutral has submitted to capture, to draw
inferences from his conduct, will be best treated in another
connexion *. It is only necessary here to consider a preliminary
question raised, not by the character of the acts, but by the
moment at which they are done. Can a neutral so identify
himself or his property with a possible or intending belligerent
before the outbreak of war that hostilities can be opened by an
attack upon him or by the capture of his property P In some
extreme cases the answer is at once evident. No one would deny
that a body of troops raised and officered among a neutral
population is as much a part of the army of the state which
employs them as are troops native to the country. And there
are more temporary services, of which the nature is as little
uncertain, that a foreigner can render to a state. If a Belgian
vessel, laden with French troops, other vessels laden in like
manner being in the neighbourhood, were found near the English
coast, and heading for it, the neutral would be unable to pretend
that he imagined his service to be pacific ; the circumstances
indeed might well be such that the captain of a British man of
war would be fully justified in opening fire immediately without
regard to the Belgian flag. But there are many cases in which
the intention of the neutral would be doubtful; there are many
in which there would be a presumption in his favour, or a
certainty of his innocence. If, for example, he were engaged
solitarily in conveying a French force to Martinique it would be
possible, it might even be extremely probable, that he should
suppose himself to be employed in carrying out an ordinary
* See postea, pt. iv. ch. vi.
ENEMY CHARACTER, 503
service of reliefs for the garrison. In such circumstances is he PART III
liable to capture? The answer in reality is no less clear. However *** *
innocent the intention of the neutral may be, he serves a state
which is operating with a view to hostilities, or against which
hostilities are about to be undertaken; in either case his action
may be gravely prejudicial to the vital interests of the country
which is about to be an enemy. It would be futile, it would be
unjust, and it would almost be ridiculous, to exact that with vital
interests at stake the enemy should look impassively on until an
opportunity had occurred of showing the existence of war by
collision with the armed forces of his adversary; and the enemy
alone can decide whether the interests at stake are serious or not.
In effect he must so far have a free hand as to be able to arrest
the action which threatens to injure him. He must therefore be
permitted to establish the facts by visit and capture if he finds
that something is being done important enough to induce him to
commence hostilities. From the summons to bring to, and the
subsequent visit, the neutral gains full knowledge of the actual
state of things; he is no more taken by surprise than he would
be if a fleet action, of which he was unaware, had taken place on
the previous day. It becomes his duty to allow himself to be
brought in; it becomes the duty of the prize court in turn to
release the vessel if there be any room whatever for the supposi-
tion of innocence. It is scarcely necessary to add that as visit
upon the high seas is only permitted during war, and as, con-
sequently, a summons to bring to delivered by a vessel, giving
evidence that she is a public vessel of her state, amounts to notice
that war exists, the neutral who endeavours to escape or resists
throws in his lot actively with the belligerent whom he serves,
and exposes himself to be forcibly dealt with ". It is equally
superfluous to point out that the state which through its agents
* [For the application of this principle to the case of the Kowshing,
a British vessel sunk by a Japanese cruiser, July 25, 1894, while conveying
Chinese troops prior to declaration of war, see Professor Holland, Studies
in International Law, p. 126.]
504 ENEMY CHARACTER
§
**
*
<&
PART III seizes, or even visits, the neutral vessel does an act from which it
C P. VI e g º º e e
HA cannot recede; it is irretrievably committed to war". -
How pro- Property is considered to be necessarily hostile by its origin
tv be- e º {º -
...” when it consists in the produce of estates owned by a neutral
affected
º, in belligerent territory, although he may not be resident there.
Sºter. Land, it is held, being fixed, is necessarily associated with the
permanent interests of the state to which it belongs, and its
proprietor, so far from being able to impress his own character,
if it happens to be neutral, upon it or its produce, is drawn by
the intimacy of his association with property which cannot be
moved into identification in respect of it with its national character.
The produce of such property therefore is liable to capture under
all circumstances in which enemy’s property can be seized ".
Broperty, not impressed with a belligerent character by its
origin, and belonging to a neutral, becomes identified with a
belligerent by being subjected wholly to his control, or being
incorporated into his commerce. Thus, a vessel owned by a
neutral, but manned by a belligerent crew, commanded by a belli-
gerent captain, and employed in the trade of a belligerent state,
is deemed to be a vessel of the country from which she navigates;
and the acceptance of a pass or a licence from a belligerent state,
or the fact of sailing under its flag, entails the same consequence *.
Further Besides the foregoing points connected with the possibility of
* the acquisition of an enemy character by neutral persons and
things, questions present themselves with regard to—
I. Things originally belonging to an enemy, but sold to a
neutral during war, or shortly before its commencement
* For the due conduct of a state on commencing hostilities towards neutral
states and towards neutrals not engaged in carrying out a military or naval
operation for his enemy, see postea, p. 574. -
* The Phoenix, v Rob. 20; Thirty Hogsheads of Sugar v. Boyle, ix Cranch, 191.
* The Vigilantia, i Rob. I3 ; Admiralty Manual of Prize Law (Holland),
1888, p. 6. The navigation laws of some states are so lax that international
conflicts might readily arise out of the above rules. To take an extreme case,
in Colombia a vessel owned solely by foreigners, and with a foreign crew,
may be registered as Colombian, so that a ship not even owned by a Colom-
bian neutral might endeavour to cover herself with Colombian neutrality
while carrying on a purely belligerent trade.
ENEMY CHARACTER 505
under circumstances admitting of the suspicion of sale in PART III
anticipation of war. CHAP. VI
2. Goods consigned by neutrals from neutral ports to an enemy
consignee, or vice versä,
3. Places belonging to a belligerent which are in the military
occupation of his enemy.
4. Places under double or ambiguous sovereignty.
As a general rule a neutral has a right to carry on such trade:Questions
as he may choose with a belligerent. But the usages of war: .
imply the assumption that the exercise of this right is subjected º,
to the condition that the trade of the neutral shall not be suchº
as to help the belligerent in prosecuting his own operations, or in war.
escaping from the effects of those of his enemy. When neutral
commerée produces this result the belligerent who suffers from
the trade is allowed to put it under such restraint as may be
necessary to secure his freedom of action. Hence, as private
property is liable to capture at sea, and as an unlimited right of
transfer from belligerent to neutral owners, irrespectively of time
or place, might evidently be used as a means of preserving belli-
gerent property from confiscation, a belligerent may refuse to
recognise any transfers of property which seem to him to be
made with fraudulent intent; and as a matter of fact sales of
such property as is liable to capture at sea are not indiscrimi-
mately permitted. *
The right which a neutral has to carry on innocuous trade
with a belligerent of course involves the general right to export
from a belligerent state merchandise which has become his by
bond ſide purchase. Vessels, according to the practice of France,
and apparently of some other states, are however excepted on the
ground of the difficulty of preventing fraud. Their sale is
forbidden, and they are declared good prize in all cases in which
they have been transferred to neutrals after the buyers could
have knowledge of the outbreak of a war'. In England and
* Pistoye et Duverdy, ii. 3. The sale of a vessel, to be good, must be
proved by authentic instruments anterior to the commencement of hos-
506 ENEMY CHARACTER,
PART III the United States, on the contrary, the right to purchase vessels
“” is in principle admitted, they being in themselves legitimate
objects of trade as fully as any other kind of merchandise, but
the opportunities of fraud being great, the circumstances attending
a sale are severely scrutinised, and a transfer is not held to be
good if it is subjected to any condition or even tacit understanding
by which the vendor keeps an interest in the vessel or its profits,
a control over it, a power of revocation, or a right to its restora-
tion at the conclusion of the war *. -
With respect to vessels and merchandise, belonging to an
enemy, in transit upon the ocean, the French doctrine gave no
scope for special usage until the freedom of neutral goods on
board belligerent vessels was accepted by the Declaration of
Paris. A valid sale of a vessel being always impossible during
war, enemy goods on board an enemy vessel necessarily remained
liable to capture; and enemy goods in course of transport by
a neutral being protected by the flag, the effect of sale did not
need to be considered. By English and American custom all
sales during war of property in transitu are bad, unless the
transferee has actually taken possession, the probability that
they are fraudulently intended being thought to be so high as
to amount to a practical certainty; in the words of Lord Stowell,
tilities, and must be registered by a public officer. The practice dates back
to 1694, when it was defined by the Règlement of Feb. 17 of that year.
Valin, Ord. de la Marine, ii. 246.
* The Bernon, i Rob. Io9 ; Halleck, ii. 139; Admiralty Manual of Naval
Prize Law (Holland), 1888, p. 9. The principle that the circumstances of
the sale must be clear has been sometimes applied with extreme strin-
gency. Before the Crimean War a vessel was sold by its Russian owner
to a Belgian firm ; the vessel was afterwards brought in for adjudication on
suspicion of the sale being fraudulent. The sale was genuine, but it had
not been made to the persons who professed to be owners. Restitution was
decreed, but without costs or damages. The general rule was laid down
that “if any doubt exists as to the character of a ship claimed to be the
property of a neutral being still enemy’s property, the claimant shall be put
to strict proof of ownership, and any circumstances of fraud or contrivance,
or attempt at imposition on the court, in making out his title, is fatal to the
claimant. Condemnation of the ship as enemy's property necessarily
follows.” Bullen v. The Queen, xi Moore, 271.
IENEMY CHARACTER, 507
“if such a rule did not exist, all goods shipped in the enemy’s PART III
CHAP. VI
country would be protected by transfers which it would be
impossible to detect ".”
Transfer in transitu being legitimate in time of peace, ºr
. …, a . \OI OrC-
transfers effected up to the actual outbreak of war are primá facie iº by
an enemy
immedi-
case that the vendor has sold, to the knowledge of the purchaser, . be-
e º e tº ſº te Ore Walº.
in contemplation of war the contract is invalidated, notwith-
valid; where however it appears from the circumstances of the
standing that the purchaser may have been in no way influenced
in buying by a wish to assist the vendor. The transaction is
held to be in principle the same as a transfer in transitu effected
during the progress of war. ‘The nature of both contracts,’
says Lord Stowell, ‘is identically the same, being equally to
protect the property from capture in war, not indeed in either
case from capture at the present moment, but from the danger
of capture when it is likely to occur. The object is the same in
both instances, to afford a guarantee against the same crisis. In
other words, both are done for the purpose of eluding a belligerent
right, either present or expected. Both contracts are framed
with the same animo fraudandi, and are in my opinion justly
subject to the same rule”.”
It is the general rule that a consignor, on delivering goods. Goodseon-
ordered to the master of a ship, delivers them to him as the agentº
of the consignee, so that the property in them is vested in theº.
tral ports
latter from the moment of such delivery. In time of peace this * ºy
rule may be departed from by special agreement, or may be consignee,
changed by the custom of a particular trade, so that the property ..."
in the goods may remain in the consignor until their arrival in
the port of the consignee and actual delivery to him. In time
of war, however, the English and American courts, keenly alive
to the opening which would be given to fraud by allowing special
* The Vrow Margaretha, i Rob. 338; The Odin, ib. 25o ; The Ann Green,
i Gallison, 291 ; Halleck, ii. 137; Admiralty Manual of Prize Law (Holland),
1888, p. 26.
* The Jan Frederick, v Rob. 133.
# *
508 ENEMY CHARACTER,
JPART III. agreements to be made, refuse to recognise them, as between
CHAP. VI ja neutral consignor and an enemy consignee, whether they have
been concluded during the progress of hostilities or in contem-
plation of them; and the breadth with which it is stated by
Mr. Justice Story that in time of war ‘property consigned to
become the property of an enemy upon its arrival shall not be
permitted to be protected by the neutrality of the shipper,’ may
give rise to a doubt whether proof of a custom of trade varying
from the common rule would be admitted to prevent property
shipped by a neutral to an enemy on the conditions of the custom
from being confiscated. When the consignor is an enemy, as
an attempt to disguise the true character of property would take
the form, not of setting up a fictitious contract, but of hiding
the existence of a real one, evidence is required that the consignee
is as a matter of fact the owner. It must appear that he is
bound absolutely to accept the goods, and that, except in the case
of his insolvency, the consignor has no power to reclaim them ".
French practice seems to be different”.
Places be- Although the national character of a place and its inhabitants
ºils w is not altered by military occupation on the part of an enemy,
*...*... yet for many belligerent purposes they are necessarily treated as
which are
in #. hostile by their legitimate sovereign. They are in fact under
I •e
º the control of the enemy, and to treat them as friendly would be
tion of his
enemy. to relieve him from the pressure and losses of war. Trade with
them, consequently, is subjected to the same restrictions as trade
! with the enemy and his territory, and property the produce of
the country or belonging to persons domiciled there is confiscable
under the same conditions as enemy's property. When, for
example, the island of Santa Cruz was captured from Denmark
by the British, some sugar shipped from there on board an
English ship was captured by an American privateer, and was
condemned as British property, Chief Justice Marshall saying
* The Packet de Bilboa, ii Rob. 133; The Ann Green, i Gallison, 291 ;
The Francis, ib. 450; Kent, Comm. i. 86.
* Calvo, § 1998.
ENEMY. CHARACTER 509
that ‘some doubt has been suggested whether Santa Cruz, while PART III
in the possession of Great Britain, could properly be considered CHAP. VI
as a British island. But for this doubt there can be no foundation,
although acquisitions made during war are not considered as
permanent, until confirmed by treaty, yet to every commercial
and belligerent purpose they afe considered as part of the domain
of the conqueror, so long as he retains the possession and govern-
ment of them 1.’
It is to be regretted that this necessary doctrine has been used
by the English and American courts to cover acts which it does
not justify. It is reasonable that property which has become
hostile through the conquest by an enemy of the port at which
its owners are domiciled shall be condemned; but if this be done,
no good cause can be shown for deciding that hostile property
shall not become friendly to a belligerent state from the moment
at which the latter obtains possession of the port to which the
property belongs. Lord Stowell ruled otherwise. A vessel,
owned by merchants residing at the Cape of Good Hope, was
captured on a voyage from Batavia to Holland. The voyage
was begun before the conquest of the Cape by the English, but
the capture was effected afterwards. Lord Stowell condemned
the vessel upon the ground, which would not have been taken up
in the inverse case, and which, the change of character being
involuntary, was not really in point, that the ship, ‘having sailed
as a Dutch ship, her character during the voyage could not be
changed.” In like manner an English vessel was condemned
during the American Civil War by a majority of judges in the
Supreme Court, on the ground that ‘ the occupation of a city by
a blockading belligerent does not terminate a public blockade of
it previously existing; the city itself being hostile, the opposing
enemy in the neighbourhood, and the occupation limited, recent,
and subject to the vicissitudes of war *.” In both these cases
* Thirty Hogsheads of Sugar, ix. Cranch, 195.
* The Danckebaar Africaan, i Rob. IoT. The Circassian, ii Wallace, 135.
In the latter case compensation for wrongful capture was subsequently
510 ENEMY CHARACTER
PART III the essential fact was lost sight of that the property of individuals
“ ” engaged in mercantile acts is confiscated, not because they are
personally hostile to the belligerent, but because they are members
of the enemy state or closely associated with it, and so contribute
to its strength, or else because they are doing acts inconvenient
to the belligerent. So soon as they cease, in whatever manner,
or from whatever cause, to be members of an enemy state, or to
be associated with it, or so soon as their acts cease to be incon-
venient, all reason for the confiscation of their property falls to
the ground.
Places un- It is possible for a place to possess at the same moment
º: ºuble a belligerent and a neutral character. So long, for example, as
* the sovereignty of Turkey is not extinguished in Bosnia and the
reignty. Herzegovina or in Cyprus, these provinces are probably capable
of being belligerent territory in virtue of Austrian or English
authority, and neutral territory in respect of Turkey, or vice
versâ"; and while the German Confederation existed, that part
of its territory which belonged to Austria or Prussia was always
in this equivocal position whenever either of those states was at
Case of war. On one occasion the awkwardness arising from a double
º " character was brought strongly into notice. During the Austro-
Sardinian war of 1848 an Austrian squadron took refuge from
the Sardinian fleet in the port of Triest, which belonged both to
Austria and the Confederation. A blockade was declared by the
Italians on the grounds that Triest had become a place de guerre
awarded by the Mixed Commission on British and American Claims. Parl.
Papers, North Am..., No. 2, 1874, p. I24.
* [To these territories must now be added the Island of Crete. Since 1898
it has been under the government of a High Commissioner, appointed by
Great Britain, Italy, France, and Russia, who is charged with the establishment
of an autonomous administration, while recognising the Sovereign rights of
the Sultan (Annual Register, 1898, p. 284 ; Igor, p. 305).] Their precise
legal position it is very difficult, and perhaps impossible, to determine.
Holtzendorff (1887; Handbuch, ii. § 51) examines it carefully, quotes the
varying opinions of several recent writers, and comes to the conclusion that
“eine juristische Prüfung dieser Verhältnisse kann jedoch nur Zu negativen
Resultaten führen : es handelt sich um ein politisches Interimisticum, bei
dem Recht und. Thatsache in Widerspruch stehen.”
ENEMY CELARACTER, 511
by being fortified with a castle and several batteries which were PART III
garrisoned by a numerous body of enemy troops, that the CHAP. VI
Austrian squadron had found refuge there, that the place had
also been used for aggressive purposes, and that fire had been
opened from it upon the Sardinian vessels. Upon the consuls of
the various German states protesting against the blockade, the
Italian admiral declared that he would recognise that the town
belonged to the Confederation when the German colours were
hoisted instead of the Austrian flag. Subsequently, after com-
munication with his government, he announced that he would
allow all merchant vessels, whether Austrian or foreign, to go in
and out, provided that they had on board no soldiers, arms, or
munitions of war, or articles of contraband for a naval force; all
vessels were to be visited and were only to be permitted to enter
or come out by day. While therefore the blockade was made as
little onerous as possible, it was maintained in principle. The
minister for foreign affairs of the Confederation protested against
the measures taken by Sardinia; denying that as a matter of
fact Triest had been used as a base of offensive operations, he
argued that a state in amity with Germany could have no right
to throw obstacles in the way of free communication between
one of its ports and foreign countries, that in time of peace no
right of visit existed, and that articles contraband of war were
necessarily innocent from the neutrality of their port of consign-
ment'. Supposing the fact to be, as stated by the minister,
that Triest had not really been used for offensive purposes, the
protest put forward on behalf of the Confederation amounts to
a claim that where any shadow of over-sovereignty exists, and
the one sovereign is neutral, territory shall be taken to be neutral
notwithstanding that it is used as a place of retreat for defeated
or overmatched forces and as a means of obtaining munitions of
war and other supplies. The difference between such use and
employment as a base of offensive operations is too slight to make
it important to separate them in principle. If then any claim of
* De Martens, Nouv. Rec. Gén. xii. 497–506.
512 ENEMY CHARACTER
f
º
PART III the sort were admitted, it could hardly stop short of covering
CHAP. VI
fully with the neutrality of an over-sovereign all belligerent use
of territory in which over-sovereignty exists. Conversely the
belligerency of an over-sovereign would taint such territory even
though the whole effective authority within it were in the hands
of a neutral. -
The contention of the German Confederation was obviously
inadmissible. It would indeed have been barely worth while to
state it if it did not serve to bring into relief the necessity of
frankly adopting the alternative view that the belligerency or
neutrality of territory subject to a double sovereignty must be
determined for external purposes, upon the analogy of territory
under military occupation, by the belligerent or neutral character
of the state de facto exercising permanent military control within
Effect of
a personal
union
between
States.
it. As we have just seen, when a place is militarily occupied by
an enemy, the fact that it is under his control, and that he
consequently can use it for the purposes of his war, outweighs
all considerations founded on the bare legal ownership of the
soil. In like manner, but with stronger reason, where sovereignty
is double or ambiguous a belligerent must be permitted to fix his
attention upon the crude fact of the exercise of power. He must
be allowed to deal his enemy blows wherever he finds him in
actual military possession, unless that possession has been given
him for a specific purpose, such as that of securing internal tran-
quillity, which does not carry with it a right to use the territory
for his military objects. On the other hand, where a scintilla of
sovereignty is possessed by a belligerent state over territory where
it has no real control, an enemy of the state, still fixing his
attention on facts, must respect the neutrality with which the
territory is practically invested. - s
It has been pointed out in a former chapter that states joined
by a personal union are wholly separate states, which happen to
employ the same agents for the management of their affairs,
and that they are not responsible for each other's acts. It is the
clear rule therefore that either may remain neutral during a war
ENEMY CHARACTER 513
in which the other is engaged. It is only necessary so far to PART III
qualify this statement as to say that any suspicion of indirect aid onar. v.
given by the neutral state, or of any fraudulent use of the produce
of its taxes or other resources, gives the enemy of the belligerent
power a right to disregard the character which the associated
state claims to possess. The connexion between the two states is
such, wherever at least the common sovereign may happen not -
to be trammelled by a constitution, that a right of ceasing to
respect a neutrality thought to be unreal may fairly be held to
arise upon less evidence of non-neutral conduct than would be
required in the case of two wholly separate countries.
The irresponsibility of one of two states joined by a personal Case of
union for the acts of the other has usually, but not quite ...
invariably, been respected by belligerents. In 1803 a case, in º
which one of two states united by a personal tie was improperly
attacked on account of its connexion with the other, arose out of
the personal union between England and Hanover. George III
studiously kept distinct his position as Elector from that
which he held as King ; in 1795 the French government by
allowing him to accede to the treaty of Basle in his former
capacity had shown that they understood and acknowledged the
reality of the severance which he made ; and the principle of his
neutrality as Elector had been confirmed both on the occasion of
the treaty of Luneville, and by arrangements subsequently made
with respect to the indemnities of German states. On the
outbreak of war however between France and England in 1803
a French corps entered Hanover and compelled the electoral
troops to capitulate at Suhlingen. A copy of the capitulation
was sent over by the French government to Lord Hawkesbury,
Secretary of State for Foreign Affairs, accompanied with the
announcement that Hanover had been occupied as a pledge for
the evacuation of Malta, with a demand that the capitulation
should be ratified, and the statement that if it were not ratified
Hanover should be treated with all the rigours of war, as a
country which being abandoned by its sovereign had been
HALL L 1
514 ENEMY CHARACTER,
PART III conquered without capitulation. Lord Hawkesbury, in refusing
CHAP. VI
on behalf of George III to do any act which would imply an
admission of identity between England and Hanover, pointed
out that the neutrality of the latter country was not assumed
with reference to the then existing circumstances, that it had
been maintained during the former war, and that it had been
recognised in the ways mentioned above. The French govern-
ment nevertheless declared the Convention of Suhlingen to be
null, and imposed a fresh and less favourable capitulation upon
the Hanoverian army".
1. De Martens, Rec. viii. 86; Alison's Hist. of Europe (ed. 1843), v. 14o ; De
Garden, Hist. des Traités de Paix, viii. 192.
CHAPTER VII
MEANS OF EXERCISING THE RIGHTS OF
OFFENCE AND DEFENCE
THE rights of offence and defence possessed by a belligerent PART III
community are exercised through the instrumentality of armed nº."
forces, and by means of military and naval operations. The of the
legal questions which present themselves with reference to the subject.
constitution of armed forces being necessarily distinct from those
having reference to the manner in which such forces may act,
the general subject of the law dealing with the rights of offence
and defence is primarily divided into two heads, the first of
which may be again conveniently divided, since, though the
principles which govern continental and maritime warfare are
identical, the differences which exist in the external conditions
under which the two are carried on lead to differences in the
particular rules affecting the constitution of the forces employed.
Hostilities on land are for the most part carried on by the Hostili-
regular army of a state. The characteristics of this force from ...”
a legal point of view may be said to be that it is a permanently Question *
ſº º e g jas to who
organised body, so provided with external marks that it can be are legiti-
readily identified, and so under the efficient control of the state.”
that an enemy possesses full guarantees for the observance by its
members of the established usages of war. It is the instrument
expressly provided for the conduct of hostilities, and expressly
adapted to carry them on in a legal manner.
But belligerent acts are also performed by bodies of men less
formally organised, and the legal position of some of these is not
yet so defined as to be in all cases clear.
It has been seen that although all the subjects of a belligerent
state were originally in fact, and still are theoretically, the
enemies of the enemy state, a distinction has long been made,
L l 2
516 MEANS OF EXERCISING THE RIGHTS
PART III. under the influence of humanity and convenience, between com-
“” batant and non-combatant individuals. The latter are not proper
objects of violence; the former may be killed and made prisoners,
but when captured they must be treated in a specified way. It
is evident that the treatment which is accorded to the two classes
respectively, and the distinctive privileges which they enjoy,
being caused by the difference in their character, must have been
conceded on the tacit understanding that the separation between
them shall be maintained in good faith. Non-combatants are
exempted from violence because they are harmless; combatants .
are given privileges in mitigation of the full right of violence for
the express reason that they hold themselves out as open enemies.
If either class were able to claim the immunities belonging to
the other without permanently losing those proper to itself, an
enemy would have made concessions without securing any cor-
responding advantage. Non-combatants would not be harmless
and combatants would not be known. Those persons only there-
fore can properly do belligerent acts and claim belligerent
privileges on being captured who openly manifest their intention
to be combatant; and a belligerent, before granting such privi-
leges, has obviously the right to exact evidence of intention. In
the case of an invading army the distinction is easily made.
With the exception of surgeons and other persons, whose employ-
ments, though ancillary to war, are conventionally regarded as
peaceful, all persons must be taken to be combatant. But in the
case of defensive forces the legitimate demands of an invader
tend to conflict with the unrestricted right of self-defence, which
is possessed by the individual as a component part of the assailed
community. It is impossible to push the doctrine that com-
batants and non-combatants must remain separate to its logical
results when the duty and sentiment of patriotism, and the injury,
which even in modern warfare is always suffered by private
persons, combine to provoke outbursts of popular resistance.
Persons must sometimes be admitted to the privileges of soldiers
who are not included in the regular army. At the same time the
OF OFFENCE AND DEFENCE 517
interests of invading belligerents lead them to reduce the range PART III
of privilege as much as possible. Naturally practice shows the “”
marks of these opposing influences. It is confused and not a little
uncertain.
The evidences of intention to form part of the combatant class,
which belligerents have been in the habit of exacting, fall under ‘.
the heads of
1. The possession of an authorisation given by the sovereign.
2. The possession of a certain number of the external charac-
teristics of regular soldiers.
The rule that permission from the sovereign is the condition Whether 2.
of legitimate warfare, as a matter of historical fact, sprang rather *
from the requirements of sovereignty than from those of the º *
belligerent rights possessed by an enemy. When the notions º*
involved in the idea of the modern state began to be formed,
sovereigns in investing themselves with the exclusive right to
make war, by implication kept to themselves the right of regu-
lating the war when begun, and so refused to their subjects the
power of attacking the common enemy when and how they pleased.
Subjects acted simply as the agents of the sovereign. At first
they were all agents. The want of fleets and sufficient armies
compelled sovereigns to rely upon the population at large ; leave
therefore was usually given in a general manner at the beginning
of war, and the declaration that “we permit and give leave to all
our subjects to take up arms against the above-named by sea and
land,” or the order to ‘courir sus’ upon all the subjects of the
enemy rendered warfare permissible to every one who chose to
undertake it ". But as war became more systematic, offensive,
operations were necessarily conducted by the regular forces of the
state; and in defence it was found, either that irregular levies
plundered their fellow-countrymen without doing service against
the enemy, or that the rising of an unarmed peasantry in
despair was merely the signal for a massacre. The old forms of
* “Ile Cry de la Guerre ouverte entre le Roi de France et l’Empereur' in
the Papiers d’Etat du Cardinal de Granvelle, ii. 630 ; Dumont, vii. i. 323.
518 MEANS OF EXERCISING THE RIGHTS
PART III permission continued, but they ceased to have a natural meaning';
CHAP. VII
and in the eighteenth century hostilities on land were in practice
exercised only by persons furnished with a commission from their
sovereign. Belligerents acting on the offensive were not slow to
give to facts an interpretation in consonance with their interests;
and although the right of taking up arms in its own defence with
the permission of the sovereign might still be conceded in books
to an invaded population *, it became the habit to refuse the
privileges of soldiers not only to all who acted without express
orders from their government, but even to those who took up arms
in obedience to express orders when these were not addressed to
individuals as part of the regular forces of the state”. The doctrine
* For instance, Vattel says that in the eighteenth century the order to
‘courir sus’ was understood as meaning that persons and things belonging
to the enemy were to be detained if they fell into the hands of those to
whom the order was addressed, but that it gave no right of offensive action ;
liv. ii. § 227.
* Vattel, liv. iii. § 223.
* De Martens, Précis, $ 271. See the Proclamations of the Austrians on
entering Provence in 1747 and Genoa in 1748 (Moser, Versuch, ix. i. 232–6),
of the French on landing in Newfoundland in 1762 (ib. 240), and of the
French on entering Hanover in 1761 (Ann. Register for IT61, p. 278).
Jomini (Guerres de la Révolution, viii. 137) in speaking of the execution,
by Napoleon's orders in I796, of the magistrates of Pavia and the slaughter
of the peasants who had endeavoured to defend the town, says that “le droit
public moderne avait jusqu'alors tiré une ligne de démarcation positive
entre le citoyen paisible et les troupes de la ligne, et les habitants qui pre-
naient part aux hostilités Sans faire partie de l'armée régulière étaient
traités comme des révoltés.”
A proclamation issued by the commanders of the Russo-Austrian army
in the Lower Valais in 1799 is of little interest with reference to the present
point, because the invaders may have looked upon the population of the
Lower Valais as being in insurrection against the suzerainty of the Upper
Valais; but it is sufficiently atrocious and curious to be worth quoting on
its own account. The generals order ‘le peuple du bas Valais par la présente
de poser les armes sans aucun délai,’ and declare that “si au mépris de
notre proclamation . . . quelques-uns d’entre vous sont trouvés les armes
à la main, nous vous annonçons qu'ils seront sans grâce passés au fil de l’épée,
leurs avoirs confisqués, et leurs femmes et enfants même ne seront pas
épargnés pour servir d'exemple à tous les mutins. C'est pourquoi, chrétiens
frères, rentrez en vous-mêmes, tournez enſin vos armes contre vos Véritables
ennemis, qui vous trompent en se disant vos amis; Songez que votre der-
nière heure a sonné et qu'il dépend encore dans cet instant de vous choisir
votre parti.’ Koch, Mém. de Masséna, Pièces justificatives, iii. 475.
OF OFFENCE AND DEFENCE 519
which was thus on the point of being fixed was however to a great PART III
extent broken down by the events of the French revolutionary and “ ”
imperial wars. France, Prussia and Russia all called upon their
people at different times to embody themselves in levies which until
then had not been recognised as legitimate, and other states encou-
raged or permitted still more irregular risings. No doubt nations
were little willing to accord to others the rights of defence which
they used for themselves; but the change in the character of wars
from mere contests of princes, as they generally were in the
eighteenth, to struggles between peoples, as they generally were
in the beginning of the following century, left its trace upon
opinion. Of the writers who more immediately succeeded the
Napoleonic period De Martens appears to incline to the old doc-
trine ; but Wheaton gives combatant privileges not only to the
regular forces of a nation, but to ‘all others called out in its
defence, or spontaneously defending themselves in case of urgent
necessity, without any express authority for that purpose ; * and
Klüber recognises levies en masse, and thinks besides that inhabi-
tants of a fortress assisting in its defence act under an implied
authorisation *. Statements of this kind, made after the question
of the permissibility of the employment of subjects otherwise
than as regular soldiers had been brought forcibly to the atten-
tion of the world, have greater weight than those of earlier
writers. For a long time it was not necessary for any state to
declare itself on the subject. In 1863 however it fell to the lot)
of the United States to do so. In that year the ‘Instructions
for the Government of Armies in the Field” were issued, and the
51st article says that “if the people of that portion of an invaded
country which is not yet occupied by the enemy, or of the whole
country, at the approach of a hostile army, rise, under a duly
authorised levy, en masse to resist the invader, they are now
treated as public enemies, and if captured, are prisoners of war.”
In 1870 the Germans acted in a harsher spirit. Notwithstanding
* De Martens, Précis, $ 271 ; Wheaton, Elem. pt. iv. ch. ii. § 9 ; Klüber,
§ 267. * r
520 MEANS OF EXERCISING THE RIGHTS
PART III that a law was passed by the French Assembly in August of
CHAP. VII
that year under which citizens rising spontaneously in defence
of the territory’ were considered to form part of the national
guard,” provided that they were distinguished by one at least of
the distinctive signs of that corps, the Prussian government
required that ‘ every prisoner, in order to be treated as a prisoner
\
.*
of war, shall prove that he is a French soldier by showing that
he has been called out and borne on the lists of a military
organised corps, by an order emanating from the legal authority
and addressed to him personally ".” This requirement, though
far less stringent than the demands made in the eighteenth cen-
tury, has failed to commend itself to the minds of jurists”; and the
ninth article of the Declaration of Brusselslaid down only that corps
of volunteers shall ‘have at their head a person responsible for his
subordinates.’ The tenth article declared that ‘ the population of
a territory, not occupied, which spontaneously takes up arms at
the approach of an enemy in order to combat the invading force,
without having had time to organise itself conformably’ to certain
other requirements of the preceding article, shall be considered
as ‘belligerent if it respects the laws and customs of war.”
Under these proposals, which were approved of by the larger
military powers, and to which objection was made by the dele-
gates of the smaller states on the ground only that enough scope
was not left by them for spontaneous effort, the doctrine of state
authorisation was doomed for all practical purposes to disappear.
* Art. ii of the French law mentioned provided that ‘sont considérés
comme faisant partie de la garde nationale les citoyens qui se portent
spontanément à la défense du territoire avec l’arme dont ils peuvent dis-
poser, et en prenant un des signes distinctifs de cette garde qui les couvre
de la garantie reconnue aux corps militaires constitués.” Calvo, § 18oo.
Proclamation of the General commanding-in-chief transcribed from the
German Recueil Officiel, published at Versailles, in Delerot, Versailles pen-
dant l'Occupation, Ioa. Part of a similar proclamation is quoted by Blunt-
schli, § 570, bis.
* The majority of the members of the Institute of International Law
present at the Hague in 1875, by expressing their approval of the Russian
project of a declaration upon the laws and customs of war as modified by the
Brussels Conference, condemned the conduct of the Germans.
OF OFFENCE AND DEFENCE 521
In some cases a rising would be permitted without authorisation, PART III
whether express or implied; in all it would be implied if a CHAP. VII
responsible person, not necessarily a soldier, were found at the
head of a body of men possessing certain of the external marks
characteristic of regular forces. The requirement of a state,
authorisation is generally superfluous. It offers no guarantee
for the observance of the usages of war that is not better given
by other rules, which are in most cases necessary, and to the
enforcement of which there is no objection. In the few cases
where the requirement of authorisation would work indepen-
dently it may be questioned whether its effect would not be
distinctly bad. History does not suggest that sudden uprisings
of a population in face of an advancing enemy will often occur;
but when they do take place, the depth of the patriotic sentiment
which must have inspired them, and their helplessness against an
organised force, call rather for treatment of unusual leniency
than for exceptional severity.
The characteristics of regular soldiers which armed forces whether
have been required by belligerents to possess as the condition of ºo:
being recognised as legitimate combatants, may be said to be, º
either together or separately, according to the circumstances of ternal
the case,_ tº.
I. The fact of acting in more or less organised bodies of...".
considerable size, required.
2. The existence of a responsible chief. J
3. The possession of a uniform, or of permanent distinguish-
ing marks on the dress.
With these conditions, as with authorisation, the tendency
of usage has of late been towards relaxation. According to
De Martens", it was scarcely allowed in the eighteenth century
that a militia force could claim the privileges of regular troops,
although in its nature it is a permanently organised body and
consequently rather more than satisfied the first two of the three
requirements. There are certainly some cases which go as far as
* Précis, $ 27.I.
fi
522 MEANS OF EXERCISING THE RIGHTS
PART III.
CHAP. VII
Imperfect-
ly Organ-
ised levies:
permis-
sible in
principle.
Contro-
versy dur-
ing the
Franco-
German
war of
I87o.
this. In 1742 the Austrians excluded the Bavarian militia from
belligerent rights; and the capitulation of Quebec in 1759, by
providing that the inhabitants who had borne arms should not
be molested, on the ground that ‘it is customary for the
inhabitants of the colonies of both crowns to serve as militia,”
suggests that, apart from the special custom, they would have
been left to the mercy of the English general". The root of
this indisposition to admit militia to be legitimate combatants
was rather in military pride than in any doubt as to the sufficiency
of the guarantees which they presented. Through prejudice
inherited from feudal times and the era of mercenaries, soldiers
thought a militia unworthy to share in privileges which were
looked upon as the sign of the honourable character of the
military calling, because its members were neither soldiers by
profession, nor able to share in the larger operations of war
which were the peculiar business of the latter. The same
causes which shook the doctrine of the necessity of express
authority during the revolutionary and Napoleonic wars could
not but be fatal to a distinction founded on no more solid a basis
than this; and accordingly from that time no doubt has been
entertained as to the legitimacy in principle of militia and other
imperfectly organised levies. Such questions as exist refer
solely to the quantity and relative value of the marks by which
the legal position of a force, not belonging to the army proper,
can be ascertained.
In the course of the war of 1870–I bodies of irregulars called
Francs Tireurs were formed in France, who acted independently,
without a military officer at their head, and who were distin-
guished in respect of dress only by a blue blouse, a badge, and
sometimes a cap. The Germans refused to consider them
legitimate belligerents on the double ground that they were not
* Moser, Versuch, ix. i. 268; Ann. Regist. for 1759, p. 247. By the capitu-
lation of the French troops in Canada in the ensuing year it is agreed that
the militia “shall not be molested on account of their having carried arms.’
Ann. Regist, for I760, p. 222.
OF OFFENCE AND DEFENCE 523
embodied as part of the regular forces of the state, viz. as part PART III
of the army or of the Garde Mobile, and that the distinguishing * *
marks on the dress were insufficient or removable. The blouse,
it was said, was the common dress of the population, and the
badge and cap could be taken off and hidden at will. It was
demanded that the marks should be irremovable and distin-
guishable at rifle distance. Where bodies of men are small, are
acting independently, and especially if they are not under the
immediate orders either of a military officer or of a local
notability, such as a mayor in certain countries, an administra-
tive official of sufficient rank, or a landed proprietor of position,
they depend solely upon their dress marks for their right to
belligerent privileges, since it is solely through them that the
enemy can ascertain their quality. It is clear therefore that
such marks must be irremovable; but to ask for marks distin-
guishable at a long distance is to ask not only for a complete
uniform, but for a conspicuous one. The essential points are
that a man shall not be able to sink into the class of non-
combatants at his convenience, and that when taken prisoner
there shall be no doubt on the patent facts how he ought to be
dealt with. For both these purposes irremovable marks, clearly
distinguishable at a short distance, are amply sufficient.
The question whether irregular levies must be under the general Brussels
military command, whether in fact, as a matter not of authori- ºr.
sation but of the sufficiency of the guarantees which it can offer
for proper behaviour, a population has the right of spontaneous
action in a moment of opportunity or emergency, was discussed
at the Conference of Brussels. In the original draft Project of
Convention it was made a condition of the possession of com-
batant rights that the persons claiming to have them should be
under such command, and the representative of Germany showed Require-
& & tº * ments
a strong desire to maintain the requirement. After a good deal which
ū. g {e e e & may
of discussion however the paragraph containing the condition I’eaSOIl-
was modified, and it became difficult for the great military states :
€xa,Cte
to ignore the admissions made on their behalf, and to refuse to from
524 MEANS OF EXERCISING THE RIGHTS
PART III acknowledge bodies of men headed by any responsible person as
CHAP. VII
being combatant, irrespectively of connexion with the general
military command, provided that, as a body, they conform to the
rules of war, and that if in small numbers they are distin-
guishable by sufficient marks. If in large numbers the case is
different. Large bodies, which do not possess the full marks
of a militia, must belong to one of two categories. They must
either form part of the permanent forces of a state, which from
poverty or some other reason is unable to place them in the field
properly uniformed, or perhaps officered, as in the instance of
the Norwegian Landsturm, to which attention was directed at
Brussels by the Swedish representative *; or else they must
consist in a part of the unorganised population rising in arms
spontaneously or otherwise in face of the invader. In neither
case are dress marks required. In the first the dependence on
military command is immediate, and affords sufficient guarantees.
In the second, dress marks are from the nature of the case
impossible as well as unnecessary. The fact that a large body
is operating together sufficiently separates it as a mass from the
non-combatant classes, and there can be no difficulty in supplying
the individual members with certificates which would prove
their combatant quality when captured singly or in small
detachments. The possession of belligerent privilege in such
cases hinges upon subordination to a responsible person, who by
I. IOleIl
acting in
small
bodies,
2. In 16]]
acting in
large
bodies.
* The case of the Ordenanza in Portugal was similar. It was an organised
but un-uniformed militia, which during the advance of Massena in 1810
was used by Lord Wellington to harass the communications of the French
army. Massena issued an order that all who might be captured should be
shot, on which the English general addressed a letter to the former stating
that “ce que vous appelez “des paysans sans uniforme,” “des assassins et
des voleurs de grand chemin,” sont l’Ordenanza du pays, qui comme j'ai
déjà eu l'honneur de vous assurer sont des corps militaires commandés par
des officiers, payés, et agissant sous les lois militaires. Il parait que vous
exigez que ceux qui jouiront des droits de la guerre soient revétus d'un
uniforme ; mais vous devez vous souvenir que vous-même avez augmenté
la gloire de l’armée française en commandant des soldats qui m'avaient pas
d’uniforme.’ Wellington Despatches, vi. 464. ‘La legon que Masséna regut
à cette occasion du général anglais ne saurait étre trop connue,' remarks
Lanfrey, Hist. de Nap. i. v. 386.
OF OFFENCE AND DEFENCE 525
his local prominence, coupled with the fact that he is obeyed PART III
by a large force, shows that he can cause the laws of war to be “”
observed, and that he can punish isolated infractions of them if
necessary".
[The principles which were maintained at Brussels and Hague
Conven-
tion.
have now been largely adopted by the Hague Convention, and
supported at greater detail in the previous editions of this book
may be regarded as law. By the first article of that instrument)
it was declared that the laws, rights, and duties of war apply
not only to armies but also to militia and volunteer corps fulfilling.
the following conditions, namely that they should :
I. Be commanded by one person responsible for his sub-
ordinates; -
2. Have a fixed distinctive emblem recognisable at a distance;
3. Carry arms openly ; and
4. Conduct their operations in accordance with the laws and
customs of war.
The second article provides, that if the population of a terri-
tory which has not been occupied shall spontaneously take up
arms on the enemy’s approach to resist the invading troops
without, having time to organise themselves in accordance with
the former article, they shall be regarded as belligerents if they
respect the laws and customs of war. It will be noticed that the
doctrine of state authorisation is thus abandoned, and that in
case of a national rising against an invader the necessity for
a commander responsible for the action of his subordinates is
apparently waived, as well as the possession by the combatants
of any distinctive marks. To dispense with such requirements
* D'Angeberg, Nos. 375, 854; Parl. Papers, Miscell., No. i. 1875, 8o, 122,
I4o ; arts. 9 and 45 of the Project of Convention, and arts. 9 and Io of the
Project of Declaration of Brussels. See also American Instruct., §§ 49, 51–2;
the French Manuel de Droit Int. a 1'Usage, &c., 30 ; and the Manual of the
Inst. de Droit Int., art. 2.
M. Rolin Jaequenyns (La Guerre Actuelle and Second Essai sur la Guerre
Franco-Allemande) and Mr. Droop (Papers read before the Juridical Soc.,
vol. iii. pt. xxi) have examined the questions treated of in the above
section.
526 MEANS OF EXERCISING THE RIGHTS
PART III is open to the grave objections pointed out on a previous page,
“” and we may hazard the conjecture that non-compliance with
the latter of them at any rate would be regarded as a breach of
the laws and customs of war.]
Maritime Hostilities at sea are in the main carried on by the regular
'll hostilities.
navy of the state, which corresponds with the regular military
forces employed on land.
Priya- Until lately all maritime states have also been in the habit of
| using privateers, which are vessels belonging to private owners,
and sailing under a commission of war empowering the person
to whom it is granted to carry on all forms of hostility which
are permissible at sea by the usages of war. Before giving
|a privateering commission, it is usual for the government
issuing it to require the lodgment of caution money or the
execution of a bond by way of security against illegal conduct
on the part of the holder, and against a breach of the instructions
which are issued for his guidance. The commission is revocable
on proof of its misuse being produced, and by the English law
at least the owners of the vessel were liable in damages; it was
also usual for the Lords of the Admiralty to institute proceedings
in the Admiralty Court upon complaint of ill-conduct. As
a further safeguard, a privateer is liable to visit by public vessels
of war; and as she is not invested with a public character,
neutral ships of war are permitted to verify the lawfulness of
the commission under which she sails by requiring its production.
Universally as privateers were formerly employed, the right to
use them has now almost disappeared from the world. It formed
part of the Declaration adopted at the Congress of Paris in 1856
with reference to Maritime Law that ‘ privateering is and
remains abolished; ? and all civilised states have since become
signataries of the Declaration, except the United States, Spain,
and Mexico. For the future privateers can only be employed by
signataries of the Declaration of Paris during war with one of
the last-mentioned states'. [Strangely enough the most im-
# * teers.
* [Hertslet, Map of Europe by Treaty, No. 27.I.]
OF OFFENCE AND DEFENCE 527
portant maritime war since the Declaration of Paris has been PART III
waged between two of these non-signatary powers. In 1898 char. VII
the United States government announced its intention ‘not to
.resort to privateering, but to adhere to the rules of the Declaration §
of Paris.’ Spain, while maintaining her right to issue letters of
marque, limited herself by proclamation for the immediate
present’ to “a service of auxiliary cruisers of the navy composed
of ships of the Spanish mercantile marine and subject to the
statutes and jurisdiction of the navy.’ The Spanish govern-
ment also declared its intention of treating as pirates the officers
of non-American vessels manned as to one-third of the crew by
other than American citizens and committing acts of war against
Spain'..]
A measure taken by Prussia during the Franco-German war Volunteer
of 1870 opens a rather delicate question as to the scope of the “”
engagement not to employ privateers by which the signataries
of the Declaration of Paris are bound. In August of that year
the creation of a volunteer navy was ordered by decree. The
owners of vessels were invited to fit them out for attack on
French ships of war, and large premiums for the destruction of
any of the latter were offered. The crews of vessels belonging
to the volunteer navy were to be under naval discipline, but they
were to be furnished by the owners of the ships; the officers
were to be merchant seamen, wearing the same uniform as naval
officers, and provided with temporary commissions, but not
forming part of, or attached to, the navy in any way, though
capable of receiving a commission in it as a reward for exceptional
services; the vessels were to sail under the flag of the North
German navy. The French government protested against the
employment of private vessels in this manner as an evasion of
the Declaration of Paris, and addressed a despatch on the subject
to the government of England. The matter was laid before the
law officers of the Crown, and they reported that there were
substantial differences between a volunteer navy as proposed by
* [Hertslet, Commercial Treaties, xxi. pp. 836, IoT4..]
528 MEANS OF EXERCISING THE RIGHTS
PART III the Prussian government and the privateers which it was the
CHAP, VII object of the Declaration to suppress. Lord Granville in con-
sequence declared himself unable to make any objection to the
intended measure on the ground of its being a violation of the,
engagement into which Prussia had entered. Nevertheless it
hardly seems to be clear that the differences, even though
substantial, between privateers and a volunteer navy organised
in the above manner would necessarily be always of a kind to
prevent the two from being identical in all important respects.
In both the armament is fitted out by persons whose motive is
wish for gain, in both the crews and officers are employed by
them and work therefore primarily rather in their interests than
in those of the nation. The difference that in the particular
case of the Prussian volunteer navy attacks upon men of war
were alone contemplated was accidental and would have been
temporary. At the beginning of the war Prussia announced her
intention not to capture private property at sea in the hope of
forcing France to spare the commerce which she was herself
unable to protect. If the war had been continued for any length
of time after January 1871, when this announcement was with-
drawn, and if a volunteer navy had in fact been formed, it
would of course have been authorised to capture private property;
and there is no reason to suppose that any state acting upon the
custom of seizing private property would make a distinction
between public and private vessels in the powers given to its
volunteer navy. The sole real difference between privateers and
a volunteer navy is then that the latter is under naval discipline,
and it is not evident why privateers should not also be subjected to
it ". It cannot be supposed that the Declaration of Paris was
merely intended to put down the use of privateers governed by
* Bluntschli (§ 670) makes the fact that the Prussian volunteer navy
was to be under general naval command a point of distinction from priva-
teers. But, as he properly says in an earlier part of the same section, “le
corsaire reconnaissait l'autorité de l’amiral commandant la flotte.” Was
the dependence intended to be closer in the one case than it has been in
the other ? -
OF OFFENCE AND DEFENCE 529
the precise regulations customary up to that time. Privateering PART III
was abandoned because it was thought that no armaments CHAP. VII
maintained at private cost, with the object of private gain, and
often necessarily for a long time together beyond the reach of
the regular naval forces of the state, could be kept under proper
control. Whether this belief was well founded or not is another
matter. If the organisation intended to be given to the Prussian
volunteer navy did not possess sufficient safeguards, some
analogous organisation no doubt can be procured which would
provide them. If so there could be no objection on moral
grounds to its use; but unless a volunteer navy were brought
into closer connexion with the state than seems to have been
the case in the Prussian project it would be difficult to show as
a mere question of theory that its establishment did not constitute
an evasion of the Declaration of Paris".
The incorporation of a part of the merchant marine of a country )
in its regular navy is of course to be distinguished from such
a measure as that above discussed. A marked instance of incor-
poration is supplied by the Russian volunteer fleet. The vessels
are built at private cost, and in time of peace they carry the
mercantile flag of their country; but their captain and at least
one other officer hold commissions from their sovereign, they are
under naval discipline, and they appear to be employed solely in
public services, such as the conveyance of convicts to the Russian
possessions on the Pacific. Taking the circumstances as a whole,
it is difficult to regard the use of the mercantile flag as serious;
they are not merely vessels which in the event of war can be
instantaneously converted into public vessels of the state, they
are properly to be considered as already belonging to the imperial
navy. The position of vessels belonging to the great French
mail lines is different. They are commanded by a commissioned
officer of the navy, but so long as peace lasts their employment
* D'Angeberg, Nos. 352 and 362 ; Bluntschli, $ 67o ; Calvo, $ 2086. M.
Geffcken (note to Heffter, ed. 1883, p. 279) is right in saying that the action
of Prussia ‘ne prouve qu'une chose, c'est que l'abolition de la course n'a pas
résolu toute la question.”
HALL M Ol
530 MEANS OF EXERCISING THE RIGHTS
PART III is genuinely private and commercial; means is simply provided
CHAP. VII
by which they can be placed under naval discipline and turned
into vessels of war so soon as an emergency arises. They are
not now incorporated in the French navy, but incorporation
would take place on the outbreak of hostilities. [The Liners
which of recent years have been subsidised by the British
Government in return for a lien on their services as cruisers in
time of war stand on a similar footing, except that in peace time
they are not under the command of an officer in the Royal Navy.]
Non-commissioned vessels have a right to resist when sum-.
moned to surrender to public ships or privateers of the enemy.
The crews therefore which make such resistance have belligerent
privileges; and it is a natural consequence of the legitimateness
of their acts that if they succeed in capturing their assailant the
capture is a good one for the purpose of changing the ownership
of the property taken and of making the enemy prisoners of
war".
By some writers it is asserted that a non-commissioned ship
has also a right to attack *. If there was ever anything to be
said for this view, and the weight of practice and of legal
authority was always against it *, there can be no question that
it is too much opposed to the whole bent of modern ideas to be
now open to argument. There is no such reason at sea as there
is on land for permitting ill-regulated or unregulated action.
On the common ground of the ocean a man is not goaded to
leave the non-combatant class, if he naturally belongs to it, by
the peril of his country or his home. Every one's right to be
there being moreover equal, the initiative in acts of hostility
must always be aggressive; and on land irregular levies only rise
Right of
non-com-
missioned,
vessels to
resist cap-
ture.
Attack by
El OIl-COIſl-
missioned
ships ille-
gitimate.
* Kent, i. 94; Halleck, ii. 12; Mr. Justice Story in Brown v. The United
States, viii Cranch, 135.
* Wheaton, pt. iv. ch. ii. § 9. Kent (i. 96) thinks that persons depredating
without the leave of their state expressed in a commission commit a muni-
cipal wrong, but that ‘as respects the enemy they violate no rights by
capture.”
* Wattel, liv. iii. ch. xv. § 226; De Martens, Précis, $ 289; Queen's Naval
Regulations, 1861. t
OF OFFENCE AND DEFENCE 53]
for defence, and are Qnly permissible for that purpose. It is PART III
scarcely necessary to add that non-commissioned ships offer no CHAP. VII
security that hostilities will be carried on by them in a legitimatel
manner. Efficient control at sea must always be more difficult
than on land; and if it was found that the exercise of due
restraint upon privateers was impossible, & fortior; it would be
impossible to prevent excesses from being indulged in by non-
commissioned captors. -
In a general sense a belligerent has a right to use all kinds of General 2.
violence against the person and property of his enemy which º A. "
may be necessary to bring the latter to terms. Primă facie.
violence.
therefore all forms of violence are permissible. But the quali-
fication that the violence used shall be necessary violence has
received a specific meaning; so that acts not only cease to be
permitted so soon as it is shown that they are wanton, but when
they are grossly disproportioned to the object to be attained;
and the sense that certain classes of acts are of this character
has led to the establishment of certain prohibitory usages.
These prohibitory usages limit the right of violence in
respect of - \
I. The means of destruction which may be employed.
2. The conditions under which a country may be de-
vastated. -
3. The use of deceit.
Some questions not falling under either of these heads have
to be determined by reference to the general limitation for-
bidding wanton or disproportionate violence. -
The first of the above prohibitory usages may be described as Specific
the rough result of a compromise between a dislike to cause jº
needless suffering and a wish to use the most efficient engines of º to,
€
war. On the whole it may be said generally that weapons are means of
e © a º e º & © ºr is º a º ‘ destruc-
illegitimate which render death inevitable or inflict distinctlytion
more suffering than others, without proportionately cripplingº,
the enemy. Thus poisoned arms have long been forbidden, and employed;
guns must not be loaded with nails or bits of iron of irregular
M. In 2.
532 MEANS OF EXERCISING THE RIGHTS
PART III shape. To these customary prohibitions, the European powers,
CHAP. VII except Spain, have added as between themselves the abandonment
of the right to use explosive projectiles weighing less than
fourteen ounces; and in the Declaration of St. Petersburg, by
which the renunciation of the right was effected in 1868, they
took occasion to lay down that the object of the use of weapons
in war is ‘to disable the greatest possible number of men, that
this object would be exceeded by the employment of arms which
needlessly aggravate the sufferings of disabled men, or render
their death inevitable, and that the employment of such arms
would therefore be contrary to the laws of humanity'.” [In one
of the supplementary Hague Declarations of July 29, 1899, the
representatives of all the powers assembled, with the exception
of Great Britain, the United States and Portugal, bound
themselves to abstain from the use of bullets which expand or
flatten in the human body”.] On the other hand, the amount
of destruction or of suffering which may be caused is immaterial
if the result obtained is conceived to be proportionate. Thus no
objection has ever been made to mines; it is not thought
improper to ram a vessel so as to sink her with all on board;
and torpedoes have been received without protest among the
modern engines of war. [The powers assembled at the Hague,
* De Martens, Nouv. Rec. Gén. xviii. 474, or Hertslet, No. 414; Wattel, liv.
iii. § 156; Ortolan, liv. iii. ch. i ; Bluntschli, §§ 557–8. Klüber (§ 244) pre-
tends that the use of chain-shot is forbidden. Heffter (§ 124) and Bluntschli
(§ 56o) transform into a prohibition of red-hot shot the remarks of Klüber
and De Martens (§ 273 note) that its use has been renounced by agreement
in several naval wars, and that doubts have been expressed as to whether it
can be legitimately employed. [The Hague Convention, art. 23, apart from
the stipulation of the Geneva or other Conventions, prohibits the employment
of poison, poisoned weapons, and of any weapons, projectiles or materials
calculated to cause unnecessary suffering.]
* [“Balles qui s'épanouissent ou s'aplatissent facilement dans le corps
humain, telles que les balles à enveloppe dure dont l'enveloppe ne couvrirait
pas entièrement le noyau ou serait pourvue d'incisions.” The objection felt
by a power like Great Britain, whose normal warfare is conducted against
savage tribes, has received fresh justification during the recent military
operations in Somaliland; to the warriors of the Indian frontier or the
Soudan the Lee-Metford bullet is little more than a pinprick unless it breaks
a limb or touches a vital organ.] -
OF OFFENCE AND DEFENCE 533
with the exception of Great Britain and the United States, PART III
bound themselves to prohibit the employment of projectiles solely
intended to spread asphyxiating or noxious gases. Lyddite, which
was presumably aimed at, was freely employed in the South
African War with somewhat disappointing results; its object
moreover is primarily destructive, only secondarily asphyxiating.
In another of the Hague Declarations the powers, with the excep-
tion of Great Britain, bound themselves for a probationary period
of five years from July 1899 to abstain from utilising balloons or
analogous inventions for dropping projectiles and explosives.]
of the permitted kinds of violence used in order to bring an
enemy to terms, or as incidental to certain military operations,
and permissible only for the purpose of carrying them out.
Formerly it presented itself in the first of these aspects. Grotius
held that ‘ devastation is to be tolerated which reduces an enemy
CHAP. VII
in a short time to beg for peace,’ and in the practice of his time
it was constantly used independently of any immediate military
advantage accruing from it *. But during the seventeenth
century opinion seems to have struggled, not altogether in vain,
to prevent its being so used in more than a certain degree ; and
though the devastation of Belgium in 1683 and of Piedmont in
I693 do not appear to have excited general reprobation”,
Louis XIV was driven to justify the more savage destruction of
the Palatinate by alleging its necessity as a defensive measure
for the protection of his frontiers. In the eighteenth century
the alliance of devastation with strategical objects became more
close. It was either employed to deny the use of a tract of
country to the enemy by rendering subsistence difficult, as when
* De Jure Belli et Pacis, lib. iii. c. xii. § I. -
* But the better minds of the time already disapproved of devastation.
IEvelyn (Memoirs, iii. 335) says, under the date 1694, ‘Lord Berkeley burnt
Dieppe and Havre in revenge for the defeat at Brest. This manner of
destructive war was begun by the French, and is exceedingly ruinous,
especially falling on the poorer people, and does not seem to tend to make a
more speedy end of the war, but rather to exasperate and incite to revenge.”
#
* :
Devastation is capable of being regarded independently as one 2. Devas- *
tation ;
534, MEANS OF EXERCISING THE RIGHTS
PART III the Duke of Marlborough wasted the neighbourhood of Munich
CHAP. VII
in 1704, and the Prussians devastated part of Bohemia in 1757;
or it was an essential part of a military operation, as when the
Due de Vendôme cut the dykes and laid the country under
water from the neighbourhood of Ostend to Ghent, while
endeavouring to sever the communications with the former place
of the English engaged in the siege of Lille". At the same
time devastation was still theoretically regarded as an in-
dependent means of attack. Wolff declares it to be lawful both
as a punishment and as lessening the strength of an enemy;
Wattel not only allows a country to be ‘rendered uninhabitable,
that it may serve as a barrier against forces which cannot
otherwise be arrested,” but treats devastation as a proper mode of
chastising a barbarous people; and Moser in like manner permits
it both in order to “deprive an enemy of subsistence which a
territory affords to him,” and ‘to constrain him to make peace”.”
But every few years an advance in opinion is apparent.
De Martens restricts further the occasions upon which recourse
can be had to devastation. Property he says may be destroyed
which cannot be spared without prejudicing military operations,
and a country may be ravaged in extraordinary cases either to
deprive an enemy of subsistence or to compel him to issue from
his positions in order to protect his territory “. Even at the
beginning of this century instances of devastation of a not
necessary kind occasionally present themselves. In 1801 the
enlargement of Lake Mareotis by the English during the siege
of Alexandria was no doubt justified by the bare law as it was
then understood; but the measure, though of great advantage
to the besiegers, was not the sole condition of success *. The
destruction of the towns of Newark and York by the American
troops during their retreat from Canada in 1813 and of the
* Marlborough's Despatches, i. 378 and iv. 269; Moser, Versuch, ix. i. I22.
* Wolff, Jus Gentium, § 823; Wattel, liv. iii. c. ix. § 167; Moser, Versuch,
ix. i. I2I.
* Précis, $ 28o.
* Wilson’s Hist. of the British Expedition to Egypt, ii. 65.
OF OFFENCE AND DEFENCE 535
public buildings of Washington by the English in 1814 may be PART III
classed together as wholly unnecessary and discreditable 1. The * VII
latter case was warmly animadverted upon by Sir J. Mackintosh
in the House of Commons; and since that time not only have
no instances occurred, save by indulgence in an exceptional
practice to be mentioned presently, but opinion has decisively
laid down that, except to the extent of that practice, the measure
of permissible devastation is to be found in the strict necessities
of war *.
The right being thus narrowed, it is easy to distinguish between When de-
three groups of cases, in one of which devastation is always jº.
permitted, while in a second it is always forbidden, and in a third *
it is permitted in certain circumstances. To the first group belong,
those cases in which destruction is a necessary concomitant of
ordinary military action, as when houses are razed or trees cut
down to strengthen a defensive position, when the suburbs of
a fortified town are demolished to facilitate the attack or defence
of the place, or when a village is fired to cover the retreat of an
army. Destruction, on the other hand, is always illegitimate
when no military end is served, as is the case when churches or
public buildings, not militarily used and so situated or marked
that they can be distinguished, are subjected to bombardment in
common with the houses of a besieged town. Finally, all devasta-
tion is permissible when really necessary for the preservation of
the force committing it from destruction or surrender; it would
even be impossible to deny to an invader the right to cut the
dykes of Holland to save himself from such a fate; but when,
as in the case supposed, the devastation is extensive in scale and
lasting in effect, modern opinion would demand that the necessity
should be extreme and patent *.
* The case of Washington so far differs from the former that it may
perhaps be not unreasonably defended as an act of reprisals.
* Ann. Regist. for 1814, pp. 145 and I77; Hansard, xxx. 527; Manning,
ch. v ; Heffter, § 125 ; Twiss, War, § 65; Bluntschli, § 663 ; Calvo, Ś 1919.
* It is scarcely necessary to point out that the above restrictions upon
devastation apply only to devastation of an enemy's country.
536 MEANS OF EXERCISING THE RIGHTS
PART III So stands the law; and no change has taken place in the
CIH.A.P. VII
conditions under which war is waged that can justify or excuse
a change in practice. Nevertheless it was seen in a former
section " that some naval officers of authority are disposed to
ravage the shores of a hostile country and to burn or otherwise
destroy its undefended coast towns; on the plea, it would appear,
that every means is legitimate which drives an enemy to sub-
mission. It is a plea which would cover every barbarity that
disgraced the wars of the seventeenth century. That in the face
of a continued softening of the customs of war it should be
proposed to introduce for the first time into modern maritime
hostilities” a practice which has been abandoned as brutal in
hostilities on land, is nothing short of astounding. Happily,
before things of such kind are done, states are likely to reflect
that reprisals may be made, and that reprisals need not be
confined to acts identical with those which have called them
forth 3.
The exceptional practice of which mention has been made
consists in the bombardment, during the siege of a fortified
town, of the houses of the town itself in order to put an indirect
pressure on the commandant inducing him to surrender on
account of the misery suffered by the inhabitants. The measure
is one of peculiar cruelty, and is not only unnecessary, but more
often than not is unsuccessful. It cannot be excused; and can
only be accounted for as a survival from the practices which were
formerly regarded as permissible and which to a certain extent
* Antea, p. 433.
* One instance, that of the bombardment of Walparaíso by Admiral Nuñez,
has no doubt occurred, in which a commercial town has been attacked as
a simple act of devastation, but the act gave rise to universal indignation at
the time, and has never been defended.
* Of course nothing which is above said has reference to the destruction of
property capable of being used by an enemy in his war. No objection can
be taken to the bombardment of shipbuilding yards in which vessels of war
or cruisers can be built. Of course, also, a belligerent is not responsible for
devastation caused by, say, the accidental spreading of a fire to a town from
Bombard-
ment of
towns.
vessels in harbour burnt because of their possible use as transports, or from
burning naval or military stores.
OF OFFENCE AND DEFENCE 537
lasted, as has been seen, till the beginning of the present century. PART III
For the present however it is sanctioned by usage; and it was ſ” ”
largely resorted to during the Franco-German war of 1870.
[At the Hague Conference an endeavour was made to keep the
effects of bombardment within as narrow limits as are consistent
with accepted modern usage. In the first place, the bombardment
of undefended towns, villages and dwellings is absolutely for-
bidden. In the case of bombardment which does not form part of
a general assault or storm, the officer commanding the besiegers
is bound to notify his intention, to the best of his power, to the
authorities of the town. In bombardments and sieges generally
every possible care is to be taken to spare churches and buildings
set apart for objects of art, science, or benevolence, as well as
hospitals and places where the sick and wounded are sheltered,
provided that they are not used for military purposes and that
they are designated by special marks visible to the besiegers and
communicated to them beforehand. This connexion, it must be
remembered, refers only to land warfare, and leaves untouched the
question of bombardment from the sea".]
As a general rule deceit is permitted against an enemy; and 3. Deceit.
it is employed either to prepare the means of doing violent acts
under favourable conditions, by misleading him before an attack,
or to render attack unnecessary, by inducing him to surrender,
or to come to terms, or to evacuate a place held by him. But
under the customs of war it has been agreed that particular acts
and signs shall have a specific meaning, in order that belligerents
may carry on certain necessary intercourse; and it has been seen
that persons and things associated with an army are sometimes
exempted from liability to attack for special reasons. In these
cases an understanding evidently exists that particular acts shall
be done, or signs used, or characters assumed, for the appropriate
purposes only; and it is consequently forbidden to employ them
in deceiving an enemy. Thus information must not be surrepti-
tiously obtained under the shelter of a flag of truce, and the
* [Hague Convention on the laws and customs of war, articles 35, 36, 37.]
538 MEANS OF EXERCISING THE RIGHTS
PART III bearer of a misused flag may be treated by the enemy as a spy;
CHAP. VII buildings not used as hospitals must not be marked with a hospital
flag; and persons not covered by the provisions of the Geneva
Convention must not be protected by its cross".
A curious arbitrary rule affects one class of stratagems by
forbidding certain permitted means of deception from the moment
at which they cease to deceive. It is perfectly legitimate to use
the distinctive emblems of an enemy in order to escape from him
or to draw his forces into action; but it is held that soldiers
clothed in the uniforms of their enemy must put on a conspicuous
mark by which they can be recognised before attacking, and
* Wattel, liv. iii. §§ 177–8; Halleck, ii. 25; Bluntschli, § 565; American
Instruct., arts. IoI, II4, 187; Project of Declaration of Brussels, art. I3 ;
Manuel de l’Inst. de Droit Int., art. 8.
Occasionally stratagems are criticised upon grounds which imply some
confusion of mind. In the year 18oo an English squadron is said to have
seized a Swedish galliot on the high seas near Barcelona, and put a force of
soldiers and marines on board, which under cover of the apparent innocence
of the vessel was able to surprise and mainly contribute to the capture of two
Spanish frigates lying in the roads. As is very frequently the case with
occurrences which are made the subject of animadversion against England
in foreign works on international law, owing to a too common neglect to
compare the English with the foreign sources of information, the true facts
were wholly different from those alleged. No ruse was employed, and the
Swedish vessel had nothing to do with the attack (James's Naval Hist. iii.
50). Assuming the facts however to be correctly stated by M. Ortolan (Dip.
de la Mer, liv. iii. ch. i.), it would be interesting to know how he and
M. Calvo (§ 2063) could separate the case from that of a vessel flying, as she
is confessedly at liberty to do, false colours until the moment before firing
her first gun. It is not pretended that the Swedish galliot was laid along-
side the frigates and that the boarding was effected from her, nor that
a single shot was fired from her; yet the English are accused of ‘treason
towards the enemy.” It seems pretty clear that the writers quoted must
have allowed themselves to be influenced by the fact that the vessel was
really Swedish, although the impression produced upon the minds of the
Spanish commanders was entirely independent of this circumstance. How-
ever distinctly Swedish the galliot may have been in build and rig, she
might have become British property by condemnation for carriage of con-
traband or breach of blockade. She would then have been an English ship
using the legitimate ruse of flying the Swedish flag, and the Spaniards had
no means of knowing that this was not actually the case. MM. Ortolan and
Calvo point out rightly, on the assumed facts, that a gross breach of
neutrality was committed ; but as between the two enemies, the breach of
neutrality would have had no bearing on the character of the acts done, and
the deception effected would have been of a perfectly legitimate kind.
OF OFFENCE AND DEFENCE 539
that a vessel using the enemy’s flag must hoist its own flag ºf III
before firing with shot or shell. The rule, disobedience to which CHAP. VII.
is considered to entail grave dishonour, has been based on the
statement that ‘in actual battle, enemies are bound to combat
loyally and are not free to ensure victory by putting on a mask
of friendship.” In war upon land victory might be so ensured,
and the rule is consequently sensible; but at sea, and the pro-
hibition is spoken of generally with reference to maritime war,
the mask of friendship no longer misleads when once fighting
begins, and it is not easy to see why it is more disloyal to wear
a disguise when it is obviously useless, than when it serves its
purpose ".
A spy is a person who penetrates secretly, or in disguise º
under false pretences, within the lines of an enemy for the
purpose of obtaining military information for the use of the army
employing him. Some one of the above indications of intention
being necessary to show the character of a spy, no one can be
treated as such who is clothed in uniform, who whether in
uniform or not has accidentally strayed within the enemy's lines
while carrying despatches or messages, or who merely endeavours
to traverse those lines for the purpose of communicating with
a force beyond or of entering a fortress.
It is legitimate to employ spies; but to be a spy is regarded
as dishonourable, the methods of obtaining information which are
used being often such that an honourable man cannot employ
them. A spy, if caught by the enemy, is punishable after trial,
by court-martial with the ignominious death of hanging ; though, \
as M. Bluntschli properly remarks, it is only in the more dan-
gerous cases that the right of inflicting death should be acted
upon, the penalty being in general out of all proportion with the
crime *.
* Ortolan, liv. iii. ch. i ; Pistoye et Duverdy, i. 231-4; Bluntschli, § 565.
Lord Stowell (The Peacock, iv. Rob. 187) in stating the rule gives a different
reason for it from that mentioned above, but it is one that is not applicable
to all cases.
* Bluntschli, §§ 628–32, 639; American Instruct., &c., arts. 88, 99, Ioo; Projet.
540 MEANS OF EXERCISING THE RIGHTS
PART III
CHAP. VII
Together with spies, as noxious persons whom it is permitted
to execute, but differing from them in not being tainted with
dishonour, and so in not being exposed to an ignominious death,
are bearers of despatches or of verbal messages, when found
Persons in
balloons.
within the enemy’s lines, if they travel secretly or, when soldiers,
without uniform, and persons employed in negotiating with com-
manders or political leaders intending to abandon or betray the
country or party to which they belong.
A strong inclination was shown by the Germans during the
war of 1870 to treat as spies persons passing over the German
lines in balloons. “All persons,’ says Colonel Walker in writing
to Lord Granville, “who attempt to pass the Prussian outposts
without permission, whether by land, water or air,’ were deported
to Prussia under suspicion of being French spies; ” and it was
declared by Count Bismarck, in writing of an English subject
captured in a balloon, that apart from the fact that he was sus-
pected to be the bearer of illicit correspondence, his arrest and
trial by court-martial ‘would have been justified, because he had
spied out and crossed our outposts and positions in a manner
which was beyond the control of the outposts, possibly with
a view to make use of the information thus gained, to our preju-
dice.” As a matter of fact, though persons captured from balloons
were in no case executed as spies, they were treated with great
severity. A M. Verrecke, for example, dropped with some
companions in Bavaria, and was of course captured ; the whole
party were sent to a military prison, and only liberated two
months after the signature of peace. A M. Nobécourt had his
balloon fired upon, and when subsequently captured, he was
condemned to death; the sentence was commuted to fortress
imprisonment at Glatz. Neither secrecy, nor disguise, nor
pretence being possible to persons travelling in balloons, the
view taken by the Germans is inexplicable; and it is satisfactory
d’une Déclaration, &c., arts. I9 and 22 ; Manuel de Droit Int. a l’Usage, &c.,
p. 32 ; Manuel de l’Inst. de Droit Int., arts. 23–6. [Hague Convention,
arts. 29–31.]
OF OFFENCE AND DEFENCE 541
to notice that the treatment of balloon travellers as spies [is PART III
forbidden in the Hague Convention], and that their right to be CHAP. VII
treated as prisoners of war is affirmed in the French official
manual for the use of military officers *.
A person punishable as a spy, or subject to penalties for the
other reasons mentioned above, cannot be tried and punished
or subjected to such penalties if after doing the punishable act
he has rejoined the army by which he is employed before his
arrest is effected *.
* Parl. Papers, 1871, lxxii; Journal de Droit Int. Privé, xviii. 442 ; Projet
d’une Déclaration, &c., art. 22 ; Manuel à l'Usage, &c., p. 40. See also the
Manuel de l’Inst. de Droit Int., art. 21. [Hague Convention, art. 29.]
* [Hague Convention, art. 31.]
CHAPTER VIII
NON-HOSTILE RELATIONS OF BELLIGERENTs
PART III UNDER the modern customs of war belligerents are brought
CHAP. VIII
General from time to time into non-hostile or quasi-amicable relations
character with each other, which impose obligations, and for the due
i. establishment of which certain formalities are required. These
* relations sometimes consist in a temporary cessation of hostility
towards particular individuals, who are protected by flags of
truce, passports, safe-conducts, or licences; or towards the whole
or part of the armed forces of the enemy under suspensions of
arms, truces, or armistices; and sometimes in the partial abandon-
ment of the rights of hostility under cartels and agreements for
capitulation. As hostility ceases in so far as these relations are
set up, the arrangements which are made under them proceed
upon the understanding that they will be carried out with the
same good faith which one nation has a right to demand from
another in time of peace, and therefore both that no attempt
will be made to use them as a cover for acts not contemplated by
them, and that on the other hand the enemy will be given the
full benefit of their expressed or implied intention.
Flags of A flag of truce is used when a belligerent wishes to enter into
truce. negotiations with his enemy. The person charged with the
negotiation presents himself to the latter accompanied by a
drummer or a bugler and a person bearing a white flag. As
belligerents have the right to decline to enter into negotiations
they are not obliged to receive a flag of truce; but the persons
bearing it are inviolable; they must not therefore be turned back
by being fired upon, and any one who kills or wounds them
intentionally is guilty of a serious infraction of the laws of war.
If however they present themselves during the progress of an
NON-HOSTILE RELATIONS OF BELLIGERENTS 543
engagement, a belligerent is not obliged immediately to put PART III
a stop to his fire, the continuance of which may be of critical * VIII
importance to him, and he cannot be held responsible if they are
then accidentally killed. If the enemy receives persons under
the protection of a flag of truce he engages by implication to
suspend his war with respect to them for so long as the negotia-
tion lasts; he cannot therefore make them prisoners, and must |
afford them the means of returning safely within their own
lines; but a temporary detention is permissible if they are likely
to be able to carry back information of importance to their army
[and & fortiori if they are convicted of actually doing sol.
Lffectual precautions may always be taken to hinder the acquisi-
tion of such knowledge; bearers of flags of truce may for example
be blindfolded, or be prevented from holding communication with
other persons than those designated for the purpose of having
intercourse with them.
It is a necessary consequence of the obligation to conduct the
non-hostile intercourse of war with good faith, that a belligerent
may not make use of a flag of truce in order to obtain military
information; and though its bearer is not expected to refrain
from reporting whatever he may learn without effort on his own
part, any attempt to acquire knowledge surreptitiously exposes
him to be treated as a spy. Deserters, whether bearing or in
attendance upon a flag of truce, are not protected by it ; they
may be seized and executed, notice being given to the enemy of
the reason of their execution *.
Passports are written permissions given by a belligerent to Passports. . .
subjects of the enemy whom he allows to travel without special
}
restrictions in the territory belonging to him or under his control.
* American Instruct., arts. IoI–I2; Manuel de l’Inst. de Droit Int., arts.
27–31 ; Calvo, § 2128; Bluntschli, §§ 681–4 ; Halleck, ii. 361 ; Washington's
Corresp. v. 34.1-2. [Hague Convention, arts. 32–34. It should be noted
that the Convention is silent as to the right of treating as a spy the bearer of
a flag who abuses his position by obtaining military information, and merely
authorises a temporary detention. The envoy who has been proved beyond
all doubt to have taken advantage of his privileged position to commit an act
of treachery ‘loses his rights of inviolability.’]
544. NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III Safe-conducts are like permissions under which persons to whom
CHAP. VIII
they are granted may come to a particular place for a defined
object. Passports, being general, must be given by the govern-
ment or its duly appointed agents; safe-conducts may be
conceded either by the government or by any officer in military
or naval command in respect of places within his district, but in
the latter case they may be rescinded by a higher authority; and
both passports and safe-conducts may be annulled by the person
who has given them, or by his superior, whenever owing to any
change of circumstances their continued use has in his judgment
become dangerous or inconvenient. When this is done, good
faith obviously requires that the grantee who has placed himself
in the grasp of his enemy under a promise of immunity shall be
allowed to withdraw in safety; it is not necessary however that
he shall be permitted to retire in a direction chosen by himself if
he has a passport, or in that contemplated by his safe-conduct :
his destination and his route may be fixed for him. Neither
passports nor safe-conducts are transferable. When they are
given for a certain time only, but from illness or other unavoid-
able cause the grantee is unable to withdraw from the hostile
jurisdiction before the end of the specified term, protection must
be extended to him for so long as is necessary; if, on the other
hand, he voluntarily exceeds prescribed limits of time and place
he forfeits the privileges which have been accorded to him, and
he may be punished severely if it can be shown that he has
taken advantage of the indulgence which he has received for
improper objects".
Agreements for the temporary cessation of hostilities are
called suspensions of arms when they are made for a passing and
merely military end and take effect for a short time or within
a limited space; and they are called truces or armistices when
Suspen-
Sions of
arms and
armis-
tices.
* Halleck, ii. 351 ; Calvo, §§ 21 11–4; Bluntschli, §§ 675–8. An Act of
Congress passed in I79o exposes any civilian violating a passport or safe-
conduct to imprisonment for three years and a fine of indeterminate amount,
and sends soldiers before a court-martial. -
NON-HOSTILE RELATIONS OF BELLIGERENTS 545
they are concluded for a longer term, especially if they extend PART III
to the whole or a considerable portion of the forces of the ºH.A.P. VIII
belligerents, or have an entirely or partially political object”.
As neither belligerent can be supposed in making such agree-
ments to be willing to prejudice his own military position, it is
implied in them that all things shall remain within the space
and between the forces affected as nearly as possible in the
condition in which they were at the moment when the compact
was made, except in so far as causes may operate which are
independent of the state of things brought about by the previous
operations; the effect of truces and like agreements is therefore
not only to put a stop to all directly offensive acts, but to
interdict all acts tending to strengthen a belligerent which his
enemy apart from the agreement would have been in a position
to hinder. Thus in a truce between the commander of a fort-
ress and an investing army the besieger cannot continue his
approaches or make fresh batteries, while the besieged cannot
repair damages sustained in the attack, nor erect fresh works in
places not beyond the reach of the enemy at the beginning of
the truce, nor throw in succours by roads which the enemy at
that time commanded ; and in a truce between armies in the
field neither party can seize upon more advanced positions, nor
put himself out of striking distance of his enemy by retreat, nor
redistribute his corps to better strategical advantage. But in the
former case the besieged may construct works in places hidden
from or unattainable by his enemy, and the besieger may receive
reinforcements and material of war; and in the latter case
magazines may be replenished and fresh troops may be brought
up and may occupy any position access to which could not have
been disputed during the progress of hostilities. During the
continuance of a truce covering the whole forces of the respective
* It is hardly possible to draw a clear line of distinction between sus-
pensions of arms, truces, and armistices, though in their more marked forms
they are readily to be distinguished. See Vattel (liv. iii. ch. xvi. § 233),
Halleck (ii. 342–7), Bluntschli (§§ 688–9), and Calvo (§ 2130).
HALL N Il
546 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III states a belligerent may still do all acts, within such portion of
*** * his territory as is not the theatre of war, which he has a right
Revictual-
ling of a
besieged
place.
to do independently of the truce; he may therefore levy troops,
fit out vessels, and do everything necessary to increase his power
of offence and defence ". -
Whether the revictualling of a besieged place should be
permitted as of course during the continuance of a truce is
a question which stands somewhat apart. The introduction of
provisions is usually mentioned by writers as being forbidden in
the absence of special stipulations whenever the enemy might but
for the truce have prevented their entrance; there can be no doubt
that the same view would be taken by generals in command of a
besieging army"; and as it is not in most cases possible to
introduce trains of provisions in the face of an enemy, the act of
doing so under the protection of a truce might at first sight seem
to fall naturally among the class of acts prohibited for the reason
that apart from the truce they could not be effected. It is
however in reality separated from them by a very important
difference. Provisions are an exhaustible weapon of defence,
the consumption of which, unlike that of munitions of war,
continues during a truce or armistice; the ultimate chances of
successful resistance are lessened by every ration which is eaten,
* The principle of the law regulating acts permitted during a truce was
very early recognised; see Albericus Gentilis, De Jure Belli, lib. ii. c. 13.
The modern doctrine on the subject is given by Halleck (ii. 345), Bluntschli
(§§ 691–2), Calvo (§ 2136). The American Instructions for Armies in the
Field (§ 143) regard it as an open question whether the garrison of a besieged
town has a right to repair breaches and throw up new works, irrespectively
of whether the enemy could have prevented them if hostilities had continued.
Heffter however (§ 142) seems to be the only modern writer who is inclined
to give this advantage to a garrison, and it is difficult to see what reasons
could be alleged in its favour. Nevertheless to avoid possible disputes it may
be worth while, in accordance with the direction given in the American
Instructions, to make a special stipulation on the subject.
* Halleck, ii. 345; Wheaton, Elem. pt. iv. ch. ii. § 22 ; Calvo, $ 2137. The
consideration that a belligerent may intend to reduce the besieged places by
famine seems to weigh with the latter; but the essence of a truce is that all
forms of hostile action are suspended, and the continuance of steps taken
towards, an ultimate reduction by famine is necessarily a continuance of
hostile action.
NON-HOSTILE RELATIONS OF BELLIGERENTS 547
and to prohibit their renewal to the extent to which they are PART III
consumed is precisely equivalent to destroying a certain number HAP. VIII
of arms for each day that the armistice lasts. To forbid
revictualment is therefore not to support but to infringe the
principle that at the end of a truce the state of things shall be
unchanged in those matters which an enemy can influence.
Generally no doubt armistices contain special stipulations for
the supply of food by the besieger, or securing the access of
provisions obtained by the garrison or non-combatant population
under the supervision of the enemy, who specifies the quantity
which may from time to time be brought in *. The view
consequently that revictualling is not a necessary accompaniment
of a truce is rarely of practical importance; but as a belligerent
cannot be expected to grant more favourable terms to his enemy
than can be demanded in strict law, if he sees advantage in
severity he will be tempted to refuse to allow provisions to be
brought into an invested place, if he is strong enough to impose
his will, whenever the starvation of the garrison and the inhabit-
ants is likely to influence the determination of his adversary.
A case in point is supplied by the refusal of Count Bismarck in
November, 1870, to allow Paris to receive sufficient food for the
subsistence of the population during an armistice of twenty-five
days’ duration which it was then proposed to conclude in order
that an Assembly might be elected competent to decide upon
the question of making peace”. There can be no question that
* By the Armistice of Treviso in 18or Mantua was to be revictualled from
ten days to ten days with a fixed amount of provisions for the garrison ; the
inhabitants were to be at liberty to bring in supplies for themselves, but the
French army was to be free to take measures to prevent the quantity
exceeding the daily consumption (De Martens, Rec. vii. 294); by that of
Pleiswitz in 1813 the fortresses held by the French were to be revictualled every
five days by the commanders of the investing troops. A commissary named
by the commandant of each of the besieged places was to watch over the
exactness of the supply (id. Nouv. Rec. i. 584).
* M. de Chaudordy in a circular addressed to the French diplomatic agents
abroad thus expresses his view of the principle of law affecting the matter.
While I do not think that the law is in conformity with his views, there can
be no question that it ought to be so. “Dans la langue du droit des gens, les
N In 2.
. 548 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III a rule permitting revictualment from day to day, or at short
“” intervals, under the supervision of the besieger, unless express
stipulations to the contrary were made, would be better than
that at present recognised. Besides being more equitable in
itself, it would strengthen the hands of the besieged, or in other
words the weaker party, in negotiation.
Truces When a truce affects a considerable area it is not always
*a possible at once to acquaint the whole forces on both sides with
** the fact that it has been concluded; it is therefore usual to fix
different dates for its commencement at different places, the
period allowed to elapse before it comes into force at each place
being proportioned to the length of time required for sending
information. It sometimes happens in spite of this precaution
when it is taken, and even when, a limited area being affected,
the armistice begins everywhere at the same moment, that acts of
hostility are done in ignorance of its having commenced. In
such cases no responsibility is incurred by the belligerent who
has unintentionally violated the truce on account of destruction
of life or property, unless he has been remiss in conveying
information to his subordinates; but prisoners and property
which have been captured are restored, and partial truces or
capitulations made by detached forces which are at variance with
the terms of the wider agreement are annulled. Ignorance is
considered to exist until the receipt of official notification; if
therefore one of the belligerents at a given spot receives noti-
fication sooner than the other, and communicates his knowledge
to his enemy, the latter is not bound to act upon the information
termes ont une valeur qu'on ne peut pas dénaturer, et le principe d'un
armistice accepté par M. de Bismarck implique nécessairement, quand il est
question d’une place assiégée, le ravitaillement de cette place. Ce n'est pas
là un objet de libre interprétation, mais bien une consequence naturelle de
I'expression même dont on s'est servi et que nous ne pouvions entendre dans
un autre sens que celui qui est universellement adopté. Pour tous les
peuples en effet, la condition du ravitaillement est implicitement contenue
dans le principe de l'armistice, puisque chaque belligărant doit se trouver, a
la fin de la suspension d'hostilités, dans l'état oil il se trouvait au commence-
ment.’ D’Angeberg, Rec. No. 758.
NON-HOSTILE RELATIONS OF BELLIGERENTS 549
which is presented to him, or before acting may require rigorous PART III
CHAP. VIII
proof of its correctness". -
In the absence of special stipulations the general prohibition
of commercial and personal intercourse which exists during war
remains in force during an armistice.
All commanding officers may conclude suspensions of arms Persons
with a view to burying the dead, to have time for obtaining tººtent -
permission to surrender, or for a parley or conference; for longer tº.
periods and larger purposes officers in superior command have
provisional competence within their own districts, but armistices
concluded by them cease to have effect if not ratified by the tº
supreme authority, so soon as notice of non-ratification is given
to the enemy; agreements for an armistice binding the whole
forces of a state are obviously state acts, the ordinary powers of
a general or admiral in chief do not therefore extend to them,
and they can only be made by the specially authorised agents of
the government *.
Truces and like agreements are sometimes made for an Termina-
e tº º tº tion of a
indefinite, but more commonly for a definite, period. In the je.
former case the agreement comes to an end on notice from one
of the belligerents, which he is sometimes required to give at
a stated time before the resumption of hostilities; in the latter.
case provision is sometimes made for notice to be given a certain
number of days before the date fixed, and sometimes the truce
expires without notice ". Disregard of the express or tacit
conditions of a truce releases an enemy from the obligation to
* Wattel, liv. iii. ch. xvi. § 239 ; Halleck, ii. 344; American Instruct.,
art. I39; Bluntschli, $ 690 ; Calvo, $ 2143.
* Halleck, ii. 342 ; American Instruct., art. I4o ; Calvo, $ 2134. See also
Bluntschii, § 688.
* For examples see De Martens, Rec. vii. 76, 291, and Nouv. Rec. i. 583.
An omission to state the hour at which hostilities are to recommence upon
the terminal day, or an ambiguity in the indication of the day itself, might
lead to serious consequences; it is therefore usual in modern armistices and
truces to mark with precision the moment at which they are intended to
expire. For opinions as to the manner in which lax phraseology should be
construed, see Vattel, liv. iii. ch. xvi. § 244; Calvo, $ 2145.
550 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III observe it, and justifies him in recommencing hostilities, without
** "notice if the violation has clearly taken place by the order or
with the consent of the state, or in case of doubt after a notice
giving opportunity for the disavowal and punishment of the
delinquent. Violation of the terms of a truce by private persons,
acting on their own account, merely gives the right to demand
their punishment, together with compensation for any losses
which may have been suffered".
Cartels. Cartels are a form of convention made in view of war or
during its existence in order to regulate the mode in which such
direct intercourse as may be permitted between the belligerent
nations shall take place, or the degree and manner in which
derogations from the extreme rights of hostility shall be carried
out. They provide for postal and telegraphic communication,
when such communication is allowed to continue, for the mode
of reception of bearers of flags of truce, for the treatment of the
wounded and prisoners of war, for exchange and the formalities
attendant on it, and for other like matters. Whether postal or
telegraphic communication is forbidden or allowed is a subject
upon which the belligerents decide purely in accordance with
their own convenience, and the principles and usages which
govern the treatment of bearers of flags of truce and of wounded
combatants and the exchange of prisoners have been already
Cartel stated. Hence the only points which now require notice are any
"* special practices with regard to details which may not have been
mentioned, and such practices exist only in the case of vessels,
called cartel ships, which are employed in the carriage by sea
of exchanged prisoners. These are subjected to a few rules
calculated to secure that they shall be used in good faith.
* Wattel (liv. iii. ch. xvi. § 242) and Bluntschli (§§ 695-6) give the right of
recommencing hostilities without notice whenever a private person is not
the delinquent. The proposed Declaration of Brussels would only have given
the right to denounce the armistice even when an infraction by the state had
clearly taken place. [Articles 36–41 of the Hague Convention deal with
Armistices, but they throw little light on the questions discussed in the text
or on the established practice.] -
NON-HOSTILE RELATIONS OF BELLIGERENTS 551
A cartel ship sails under a safe-conduct given by an officer called PART III
a commissary of prisoners, who lives in the country of the enemy,
and she is protected from capture or molestation, both when she
has prisoners on board, and when she is upon a voyage to fetch
prisoners of her own country or is returning from handing over
those belonging to the enemy. This protection does not extend
to a voyage undertaken from one port to another within the
territory of the cartel ship for the purpose of taking prisoners
on board at the latter place for conveyance to the hostile territory;
and it is lost if she departs from the strict line of the special
purpose for which she is used, or gives reason to suspect that
she intends to do so. Thus she may not carry merchandise or
passengers for hire, a fraudulent use must not be made of her to
acquire information or to convey persons noxious to the enemy,
and she must not be in a condition to exercise hostilities 1.
A capitulation is an agreement under which a body of troops
or a naval force surrenders upon conditions. The arrangement
is a bargain made in the common interest of the contracting
parties, of which one avoids the useless loss which is incurred in
a hopeless struggle, while the other, besides also avoiding loss, is
spared all further sacrifice of time and trouble and is enabled to
use his troops for other purposes. Hence capitulations vary
greatly in their conditions, according to the amount of the gene-
rosity shown by the victors, and more frequently according to the
extent to which the power of the surrendering force to prolong
resistance enables it to secure favourable terms. The force
surrendering may become prisoners of war, certain indulgences
only being promised to it or to the inhabitants of a place falling
by its surrender into the hands of the victors; as when the right
of being released upon parole is reserved to such officers as choose
to receive their personal freedom, or when provision is made for
* Calvo, $$ 2117-9; The Daifje, iii Rob. I41–3; The Venus, ib. iv. 357–8;
Admiralty Manual of Prize Law (Holland), 1888, pp. II–12. The privileges of
cartel ships have been accorded to vessels sailing under an understanding
with a commanding officer, even though unprovided with formal documents,
when the bona fides of the employment has been clear. La Gloire, v Rob. 192.
CHAP. VIII
Capitula-
|tions.
552 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III
CHAP. VIII
the security of privileges of the inhabitants during the continu-
ance of hostilities. Under more honourable forms of capitulation
the garrison of a besieged fortress marches out with the honours
of war, leaving the place and the warlike material contained in
it in the hands of the enemy, but itself proceeding to the nearest
posts of its own army; or a portion of territory and the maga-
zines within it are yielded on condition of the force holding it
being sent home with or without arms, and subject to or free
from an engagement not to serve for the remainder of the war".
In so far as capitulations are agreements of a strictly military
kind, officers in superior or detached command are as a general
rule competent to enter into them. But stipulations affecting
the political constitution or administration of a country or place,
or making engagements with respect to its future independence,
cannot be consented to even by an officer commanding in chief
without the possession of special powers; and a subordinate
commander cannot grant terms without reference to superior
authority, under which the enemy gains any advantage more
solid than permission to surrender with forms of honour. In
the one case it is evident that the functions belonging to officers
commanding in chief in virtue of their employment are exceeded;
in the other, as forces excluded from the control of the subordinate
officer may be so placed when the agreement is arrived at, or
may be intended so to move, as to render it unnecessary to give
any better conditions than those least favourable to the enemy,
the officer conceding advantageous terms necessarily oversteps
the limits of his military competence. Capitulations therefore
which include articles of such nature are void unless they are
ratified by the state or commander-in-chief on the side of the
Persons
competent
to con-
clude
them.
* Wheaton, Elem. pt. iv. chap. ii. § 24; Halleck, ii. 348; Bluntschli,
§§ 697–9. The capitulation of Sedan, which was the type to which most
capitulations conformed during the war of 1870, that of Belfort, and the
Convention of Cintra, may serve as examples of the different varieties
mentioned in the text. See D'Angeberg, Nos. 392 and Io96; Wellington
Despatches, iv. I27. For other specimens see Moser's Versuch, ix. ii. I60,
I62, 176, 193, 206, 224; Washington’s Correspondence, viii. 533.
NON-HOSTILE RELATIONS OF BELLIGERENTS 553
officer accepting the surrender, and unless the party surrendering PART III
is willing on the arrival of the ratification to carry out his “ ”
agreement. :
The capitulation of El Arisch in 18oo is an instance which Capitula-
illustrates the working of this rule. In December, 1799, º
General Kleber, who had been placed by Buonaparte at the
head of the French army in Egypt, finding that he had no
prospect of maintaining himself permanently in the country,
made proposals for a capitulation to the Grand Vizier, who was
advancing through Syria, and to Sir Sidney Smith, who acted
upon the coast as commodore under the orders of Lord Keith,
the admiral in command of the Mediterranean fleet. Sir Sidney
Smith, believing that his government would be fully satisfied by
any agreement under which the retirement of the French from
Egypt was secured, consented that they should go to France,
and be transported thither with their arms, baggage, and other
property; and on the 24th January, 1800, he signed a convention
to that effect. On the previous 17th December, however, orders
had been sent to Lord Keith instructing him not to agree to any
capitulation unless the French forces surrendered themselves
prisoners of war, and the orders were repeated to Sir Sidney
Smith on the 8th January. At the time therefore when he
granted terms which were beyond his competence as a sub-
ordinate commander, because they protected the enemy against
a force which was not under his control, orders had actually been
received by his superior officer prohibiting him from concluding
any arrangement of the kind. The British government not
being in any way bound by the acts of Sir Sidney Smith, when
the instructions sent by it were communicated to General Kleber
in March, the latter with entire propriety assumed the agreement
to be non-existent, and notwithstanding that Sir Sidney Smith
stated his intention of endeavouring to procure its ratification,
he immediately recommenced hostilities. The English Cabinet
on their part, on hearing of the convention in the same month,
while expressing their disapproval of it, directed, as the French
554. NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III general had supposed Sir Sidney Smith to be sufficiently
CHAP. VIII
Safe-
guards.
Licences
to trade, to the subjects of its enemy, either in the form of a general
authorised, that effect should be given to it; but General Menou,
who had succeeded to the command before the arrival of their
consent, thinking himself strong enough to hold the country,
refused to renew the agreement, and it accordingly fell to the
ground *. -
A safeguard is a protection to persons or property accorded
as a grace by a belligerent. It may either consist in an order
in writing, or in a guard of soldiers charged to prevent the
performance of acts of war. The objects of such protections
are commonly libraries, museums, and buildings of like nature,
or neutral or friendly property; sometimes they are granted
to an enemy as a special mark of respect. When a safeguard
is given in the form of soldiers, the latter cannot be captured
or attacked by the enemy “.
A licence to trade is sometimes granted by a belligerent state
permission to all enemy subjects to trade with a particular place
or in particular articles, or of a special permission addressed to
individuals to do an act of commerce or to carry on a commerce
which is specified in the licence. In both cases all the dis-
abilities under which an enemy labours are removed by the
permission to the extent of its scope, so that he can contract
with the subjects of the state and enforce his contracts in its
courts *.
) The propriety of granting a licence is a question of policy,
* De Garden, Hist. des Traités de Paix, vi. 21 o–I4, 288; De Martens, Rec.
vii. 1; Alison, Hist. of Europe, chap. xxxiv.; Parliamentary History, xxxv.
587–97. The insinuation made by Wheaton (Elem. pt. iv. ch. ii. § 24) that
the English government acted in bad faith is inexcusable. His reference to
the parliamentary discussions shows that he had, at least at some time, been
acquainted with the facts.
* Moser, Versuch, ix. ii. 452–6; De Martens, Précis, $ 292 ; Halleck, ii. 353 ;
Calvo, §§ 2 II5–6.
* Halleck, ii. 364 and 374; Usparicha v. Noble, 13 East, 341. According
however to Lord Ellenborough in Kensington v. Ingles (8 East, 290) an enemy
trader in England cannot sue in his own name, though he can sue through
the medium of a British agent or trustee.
NON-HOSTILE RELATIONS OF BELLIGERENTS 555
and the grant of a privilege exempting from the ordinary effects PART III
of war is a high exercise of sovereign power; as a rule * VIII
consequently licences can only be given by the Supreme authority
of the state; a general or admiral-in-chief may however concede
them to the extent of the needs of the force or district under his
command. Thus during the war between the United States
and Mexico, supplies being scarce in California and American
vessels being wanting on that coast, licences for the import of
supplies were issued by the commander of the Pacific squadron
and by the military governor of the occupied province. If an
officer in command grants licences in excess of his powers, his
protection is good as against members of the force under his
immediate command, but is ineffectual as against other forces of
the state 1.
It is an implied condition of the validity of all licences that
an application for them, if made, shall not have been accompanied
by misrepresentation or suppression of material facts. A licence,
says Lord Stowell, ‘is a thing strict; juris, to be obtained by
a fair and candid representation and to be fairly pursued.’ It is
not even necessary, in order to invalidate it, that the misrepre-
sentation or suppression shall have been made with intention to
deceive ; the grant of a licence being a question of policy, it
cannot be certain that it would be made under any other
circumstances than those disclosed in the application. Thus
a licence was held void, although there was no proof of fraudulent
intent, in the case of a person who had a house of business in
Manchester, and who received leave under the description of
a Manchester merchant to import goods into England, upon its
being discovered that he had also a house of business in Holland
and that he was the exporter from there as well as the importer
into England. And in another case, a licence given to a person
described as ‘Hampe, of London, merchant,’ was invalidated on
the ground that he was not at the time settled in London, but
* Halleck, ii. 366; The Hope, i Dodson, 229.
556 NON-BIOSTILE RELATIONS OF BELLIGERENTS
PART III was only about to go there, and was in fact resident in Heligo-
CHAP. VIII
How they
are to f
be con-
strued.
land 1.
The objects of a licence and the circumstances in view of
| which it is given are such that it is not necessary to the interests
! of the grantor that it shall be construed with literal accuracy,
and on the other hand it is necessary that it shall be construed
with reference to his intentions entertained, and capable of being *
supposed by a grantee acting in good faith to be entertained, at
the time of gift. The principle therefore, which is applicable to
the construction of a licence, is that a reasonable effect must be
given to it in view, first, of the general conditions under which
licences are granted, and secondly, of the particular circumstances
of the case. Applying this principle to the several heads of the
persons who may use a licence, the merchandise and means of
conveyance which it will cover, the permissible amount of
deviation in a voyage, and the time within which it is good, the
following may be said.
I. If a licence is granted to a particular person by name, he
or his agent may use it for the purposes of his trade; if it be
granted to a particular person and others, he may act either as
principal or agent, and he need not necessarily have any interest
in the property in which trade is carried on under it; if, finally,
it be granted to a particular person by name, he is incompetent
to act as the agent of other persons, and so in effect to make his
personal privilege a subject of transfer and sale”.
2. When goods in favour of which a licence is given are
* The Vriendschap, iv. Rob. 98 ; Klingender v. Bond, E4 East, 484 ; the
Jonge Klassina, v. Rob. 297. That in the two latter cases the persons to
whom the licences were issued were not enemies does not affect the principle
of the decisions.
The fraudulent alteration of a licence destroys its validity, even where the
person claiming protection under it is innocent of the fraud. The Louise
Charlotte de Guilderoni, i Dodson, 308.
* Halleck, ii. 37o; Feize v. Thompson, i Taunton, 12I ; Warin v. Scott,
iv. Taunton, 605; Robinson v. Morris, v Taunton, 740. When a licence is
not granted to specific individuals, but is perfectly general in its terms, the
privilege of trade which it grants can be sold. The Acteon, i Dodson, 53.
NON-HOSTILE RELATIONS OF BELLIGERENTs 557
limited in quantity or specified in character, it is not necessary PART III
that there shall be more than a fair general correspondence “”
between the cargo conveyed and the amount and kind permitted;
a small excess, that is to say, or small quantities of goods
varying somewhat from the description in the licence, or even
wholly foreign to it if they are inoffensive in their nature, will
not entail condemnation. In the same way immaterial variations
in the mode of conveyance are regarded as innocent. Thus
when leave was given to import a cargo of brandy from the
Charente, and owing to all vessels lying there having been put
under an embargo importation from there was impossible, brandy
of due quantity, but imported from Bordeaux, and in two small
vessels instead of in a single large one, was released ".
3. As a rule, deviation from a prescribed course entails con-
fiscation. Deviation caused by stress of weather is of course
excepted; and it appears that to touch for orders at a port
which, though lying out of the prescribed course, is not
absolutely interdicted, is permissible *.
4. The effect of a limitation in time is different when it has
reference to the beginning or to the end of a voyage. If a date
is fixed as that before which a voyage must begin, the licence is
voided if the vessel possessed of the licence has not set sail
before the proper time; when, on the other hand, a date is fixed
before which the vessel must arrive, stress of weather, delays
interposed by the enemy, and other like causes are taken into
consideration, and condemnation takes place on account only of
delays which cannot be so accounted for *.
* The Vrow Cornelia, Edwards, 35o ; Halleck, ii. 371-3.
* The Manly, i Dodson, 257; The Emma, Edwards, 366.
* The Sarah Maria, Edwards, 361 ; The AEolus, i Dodson, 3oo; Effurth
v. Smith, V Taunton, 329; Williams v. Marshall, vi Taunton, 390.
CHAPTER IX
TER, MINATION OF WAR,
PART III, WAR is terminated by the conclusion of a treaty of peace, by
wº * simple cessation of hostilities, or by the conquest of one, or of
OOie S II).
which part of one, of the belligerent states by the other.
war may
be termi-
nated. belligerent countries in their normal relation to each other. The
º state of peace is set up, and they enter at once into all the
º: rights and are bound by all the duties which are implied in
... and that relation. It necessarily follows that, so soon as peace is
tions. concluded, all acts must cease which are permitted only in time
of war. Thus if an army is in occupation of hostile territory
when peace is made, not only can it levy no more contributions
or requisitions during such time as may elapse before it evacuates
the country, but it cannot demand arrears of those of which the
payment has been already ordered. It is obviously not an
exception to this rule that an enemy may be authorised by the
treaty of peace itself to do certain acts which, apart from
agreement, would be acts of war; such as to remain in occu-
pation of territory until specific stipulations have been fulfilled,
or to levy contributions and requisitions if the subsistence of
the troops in occupation is not provided for by the government
of the occupied district; a state may of course always contract
itself out of its common law rights. It can also hardly be said
to be an exception that although prisoners of war acquire a right
to their freedom by the simple fact of the conclusion of peace,
it is not necessary that their actual liberation shall instantaneously
take place; their return to their own country may be subordinated
to such rules, and they may be so far kept under military
surveillance, as may be dictated by reasonable precaution against
The general effect of a treaty of peace is to replace the
)
|
TERMINATION OF WAR 559
misconduct or even by reasonable regard for the convenience of PART III
the state by which they have been captured". s CHAP. IX
By the principle commonly called that of uţi possidetis it is
understood that the simple conclusion of peace, if no express
stipulation accompanies it, or in so far as express stipulations do
not extend, vests in the two belligerents as absolute property
whatever they respectively have under their actual control in the
case of territory and things attached to it, and in the case of
moveables whatever they have in their legal possession at the
moment; occupied territory, for example, is transferred to the
occupying power, and moveables on the other hand, which have
been in the territory of an enemy during the war without being
confiscated, remain the property of the original owner. The
doctrine is not altogether satisfactory theoretically, but it supplies
a practical rule for the settlement of such matters relating to
property and sovereignty as may have been omitted in a treaty,
or for covering concessions which one or other party has been
unwilling to make in words. This advantage could evidently
not be claimed by the necessarily alternative doctrine that,
except in so far as expressly provided, all things should return
to their state before the war”. *
When a stipulation to the latter effect is made it is to be under-
stood, if couched in general terms, to mean only that any terri-
tory belonging to one party, which may be occupied by the other
party, with the buildings &c. on it, is to be handed back with
no further changes than have been brought about by the opera-
tions of war, or by acts legitimately done during the course of
hostilities. The clause covers neither property which has been
appropriated, nor property which has been destroyed or damaged,
in accordance with the laws of war *.
Notwithstanding that treaties only become definitely binding
* Wattel, liv. iv. ch. ii. § 19 ; Halleck, i. 265; Bluntschli, §§ 708, 716, 717;
Calvo, $$ 2949, 2953, 2956.
* Wattel, liv. iv. ch. ii. § 21 ; Heffter, § 181 ; Phillimore, iii. § dlxxxvi;
Bluntschli, § 715; Nuestra Señora de los Dolores, Edwards, 60.
* Wattel, liv. iv. ch. ii. § 22, and ch. iii. § 31 ; Phillimore, iii. § dlxxxiv.
560 TERMINATION OF WAR
PART III on the states between which they are made on being ratified,
CHAP. IX. - º e • a tº
Date from * treaty of peace, whether it be in the form of a definitive treaty
.#. hos- or of preliminaries of peace", is so far temporarily binding from the
III U19'S o
cease on date of signature, unless some other date for the commencement
conclusion
of a treaty.
\ immediately cease. It acts as an armistice, if no separate armi-
of its operation is fixed by the treaty itself, that hostilities must
}stice is concluded 4. The rule is obviously founded on the fact
that the chance in any given case that ratification will be refused
is not sufficient to justify fresh attempts on the part of either
belligerent to secure a better position for himself at the cost of
effusion of blood, and of infliction of misery on the population
inhabiting the seat of war.
The exceptional case that a future date is fixed by a treaty
for the commencement of peace occurs when hostilities extend
to regions with which immediate communication is impossible.
Under such circumstances it is usual to make the termination of
hostilities depend upon the length of time necessary for sending
information that a treaty has been concluded, and to fix accord-
ingly different dates after which acts of war become illegal in
different places. When in such cases duly authenticated informa-
tion reaches a given place before the time fixed for the cessation
of hostilities, the question arises whether further hostilities are
legitimate, or whether, as a margin of time is only given in order
that knowledge may be obtained, they ought at once to be
1 Preliminaries of peace are an agreement intended to put an end to
hostilities at an earlier moment than that at which the terms of a defini-
tive treaty can be settled. They contain the stipulations which are essential
to the re-establishment of peace, together sometimes with arrangements
having a temporary object; minor points which lie open to discussion or
bargain, and details for the settlement of which time is required, being held
over for more leisurely treatment. Preliminaries thus constitute a treaty
which is binding in every respèct so far as it goes, but which is intended
to be superseded by a fuller arrangement, and is so superseded when the
definitive treaty is signed. For an example of preliminaries and of a de-
finitive treaty of peace see the Preliminaries of Versailles and the definitive
Treaty of Frankfurt in D’Angeberg, Nos. III9 and II 79.
* It is the practice to conclude an armistice before signing a treaty of
peace; the above rule could therefore seldom, if ever, come into operation,
unless as the result of accidental circumstances.
TERMINATION OF WAR 561
stopped. The latter and reasonable doctrine seems now to be PART III
thoroughly accepted in principle ; but its value is somewhat ow. IX
diminished by the reservation, which is perhaps mecessarily made,
that a naval or military commander is not obliged to accept any
information as duly authenticated, the correctness of which is
not in some way attested by his own government. In the case Case of
of the English ship Swineherd, for example, a vessel provided i.WII 16-
with letters of marque sailed from Calcutta for England before
the end of the period of five months fixed by the Treaty of Amiens
for the termination of hostilities in the Indian seas, but after the
news of peace had reached Calcutta, and after a proclamation of
George III, requiring his subjects to abstain from hostilities from -
the time fixed, and therein mentioned, had been published in a
Calcutta paper. The Swineherd had a copy of this proclamation
on board. She was captured by the Bellone, a French privateer,
without resistance, there being only enough powder on board for
signalling purposes. The Bellone had been informed by a Portu-
guese vessel bearing a flag of truce which had put into the
Mauritius, by an Arab vessel, and by an English vessel which she
had captured, that peace was concluded; her commander was
shown the proclamation in the Gazette extraordinary of Calcutta,
and he could see for himself that a privateer, which by the date
of the Gazette must have sailed lately from Calcutta, was with-
out powder; so that there was nº room to doubt the accuracy of
the information given or the good faith of the statement that the
intentions of the Swineherd herself were peaceful. The vessel was
nevertheless condemned in France as good prize. In a case like this,
in which the fact that peace had been concluded was established
beyond all possibility of question, the rule that an officer in
command of armed forces of his state may disregard all informa-
tion which is not authenticated by his own government, operates
with extreme harshness; and though the right of seizure could
scarcely be abandoned, there seems to be no reason for not sub-
sequently restoring ships captured after receipt of information
which should turn out in the end to be correct. For most
HALL O O.
562 TERMINATION OF WAR
PART III purposes of war however the rule must be a hard and fast one.
*** The consequences of suspending hostilities upon erroneous infor-
mation might easily be serious, and if it were once conceded that
commanders were ever bound to act upon information not pro-
ceeding from their own government, it would be difficult to
prevent them from being sometimes misled by information
intentionally deceptive". **
Effects of A treaty of peace has the following effects with reference to
treaty of • * *
...” “acts done before the commencement of the war which it has
peace |
With refer terminated.
ence to /
I. Acts | I. It puts an end to all pretensions, and draws a veil over all
*...º. quarrels, out of which the war has arisen. It has set up a new
º € order of things, which forms a fresh starting-point, and behind
ment of which neither state may look. War consequently cannot be
"“” renewed upon the same grounds.
2. It revives the execution of international engagements of
a certain kind, when such execution has been suspended by one
or both of the parties to a war”. - Y.
3. In a general way it revives all private rights, and restores the
remedies which have been suspended during the war—contracts,
for example, are revived between private persons if they are not
of such a kind as to be necessarily put an end to by war", and if
their fulfilment has not been rendered impossible by such acts of
a belligerent government as the confiscation of debts due by
subjects to those of its enemy; the courts also are re-opened for
the enforcement of claims of every kind *.
i. º As between the contracting states, a treaty of peace is a final
º ºr. settlement of all matters connected with the war to which it puts
Y” an end. If therefore any acts have been done during the course
of hostilities in excess or irrespectively of the rights of war under
the authority of one of the belligerent states, the enemy state
* Kent, Comm. i. 171; Wheaton, Elem. pt. iv. ch. iv. § 5 ; Heffter, § 183;
La Bellone contre le Porcher, Pistoye et Duverdy, i. 149. -
* See antea, p. 385. - * See antea, p. 390.
* Wheaton, Elem. pt. iv. ch. iv. § 3; Heffter, Ś 18o. -
TERMINATION OF WAR 563
cannot urge complaints or claims from the moment that a treaty PART III
is signed, either on its own behalf or on behalf of its subjects. | char. Is
It is possible however that ordinary acts of war may have been
done without sufficient authority, that wrongful acts may have
been done wholly without authority, and that subjects of one of
the two belligerent states, without having committed treason,
may yet have compromised themselves with their own govern-
ment by dealings with the enemy. In order to bury the occur-
rences of the war in oblivion, and to prevent ill-feeling from
being kept alive, in order also to protect men who may only have
been guilty of a technical wrong, or who may at any rate have
been carried away by the excitement of hostilities, and finally in
the common interests of belligerents who may be in occupation
of an enemy’s country, it is understood that persons acting in
any of the ways above mentioned are protected by the conclusion
of peace from all civil or criminal processes to which they might
be otherwise exposed in consequence of their conduct in the war,
except civil actions arising out of private contracts, and criminal
prosecutions for acts recognised as crimes by the law of the
country to which the doer belongs, and done under circumstances
which remove them from the category of acts having relation to
the war. Actions, for example, can be brought on ransom bills;
if a prisoner of war borrows money or runs into debt he may be
sued; or if a prisoner of war or a soldier on service commits
a common murder he may be tried and punished. The immunity
thus conceded is called an amnesty.
Usually, but far from invariably, the rule of law is fortified
by express stipulation, and a clause securing an amnesty is
inserted in treaties of peace. Though unnecessary for other
purposes, it is required as a safeguard for subjects of a state
who, having had distinctly treasonable relations with an enemy,
are not protected by an amnesty which is only implied".
* Halleck, i. 258; Bluntschli, §§ 7Io-I2; Calvo, $ 2955; Lord Stowell in
the Molly, i Dodson, 396; Crawford and Maclean v. The William Penn,
iii Washington, 491–3, and the cases there cited : and for examples of
O O 2.
564 TERMINATION OF WAR
PART III Acts of war done subsequently to the conclusion of peace, or to
sº the time fixed for the termination of hostilities, although done
war done in ignorance of the existence of peace, are necessarily null.
sºn, to They being so, the effects which they have actually produced
tº: must be so far as possible undone, and compensation must be
peace. given for the harm suffered through such effects as cannot be
undone. Thus, territory which has been occupied must be given
up; ships which have been captured must be restored; damage
from bombardment or from loss of time or market, &c., ought to
be compensated for ; and it has been held in the English courts,
with the general approbation of subsequent writers, that com-
pensation may be recovered by an injured party from the officer
through whose operations injury has been suffered, and that it
is for the government of the latter to hold him harmless. It
is obvious, on the other hand, that acts of hostility done in
ignorance of peace entail no criminal responsibility".
Termina- The termination of war by simple cessation of hostilities is ex-
º: tremely rare. Possibly the commonly cited case of the war between
;. Sweden and Poland, which ceased in this manner in 1716, is the
*****sa.
ties.
only unequivocal instance; though it is likely that if anything
amnesty clauses see the Treaties of Tilsit (De Martens, Rec. viii. 640 and
666), and that of Paris in 1856 (Hertslet, 1254). Some writers, e.g. Vattel
(liv. iv. ch. ii. §§ 20, 22), Wheaton (Elem. pt. iv. ch. iv. § 3), and Heffter
(§ 18o), treat an amnesty as applying to conduct of one belligerent state
towards the other, and the language of some of the older treaties stipulates
for oblivion of all acts done on the two sides respectively ; see, e.g., the
Treaty of Teschen (De Martens, Rec. ii. 663).
* Halleck, ii. 262—4; Phillimore, iii. § dxviii.; Bluntschli, $ 709 ; Calvo,
§ 2964. In the case of the Mentor, which was an American ship captured
off the Delaware by English cruisers, all parties being ignorant that a cessa-
tion of hostilities had taken place, Lord Stowell said, ‘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 exercised, it does not necessarily follow that
mere ignorance of that fact would protect the officers from civil responsi-
bility. If by articles a place or district was put under the king's peace, and
an act of hostility was afterwards committed therein, the injured party
might have a right to resort to a court of prize, to show that he had been
injured by this breach of the peace, and was entitled to compensation ; and
if the officer acted through ignorance his own government must protect
him ; ’. . . he is to be ‘borne harmless at the expense of that government.”
The Mentor, i Rob. 183.
TERMINATION OF WAR 565
had occurred to compel the setting up of distinct relations of PART III
some kind between Spain and her revolted colonies in America “*”
during the long period which elapsed between the establishment
of their independence and their recognition of the mother country,
it would have been found that the existence of peace was tacitly
assumed. No active hostilities appear to have been carried on
later than the year 1825, and no effort was made to hold neutral
states or individuals to the obligations imposed by a state of war;
but it was not till 1840 that intercourse with any of the Central
or South American republics, except Mexico, was authorised by
the Spanish government. In that year commercial vessels of
the republic of Ecuador were admitted by royal decree into the
ports of the kingdom, and at various subsequent times like decrees
were issued in favour of the remaining states. It was only how-
ever in 1844, three years after commercial relations had been
established, that Chile, which was the earliest of the republics
except Mexico to receive recognition, was formally acknowledged
to be independent; and Venezuela, which was the last, was not
recognised till 1850 1.
The inconvenience of such a state of things is evident. When
war dies insensibly out the date of its termination is necessarily
uncertain. During a considerable time the belligerent states and
their subjects must be doubtful as to the light in which they are
regarded by the other party to the war, and neutral states and
individuals must be equally doubtful as to the extent of their
rights and obligations. Nevertheless a time must come sooner
or later at which it is clear that a state of peace has supervened
upon that of war. When this has arrived, the effects of the
informal establishment of peace are identical with those general
effects flowing from the conclusion of a treaty which are neces-
sarily consequent upon the existence of a state of peace. Beyond
this it is difficult to say whether any effects would be produced.
It is at any rate certain that the pretensions which may have
given rise to the war cannot be regarded as abandoned, and that
* Lawrence, Commentaire, ii. 327.
566 TERMINATION OF WAR
PART III the quarrel cannot be assumed to have been definitively settled.
*** It would always be open to either side to begin a fresh war upon
the same grounds as those which supplied the motive for hostilities
in the first instance.
Conquest. Conquest consists in the appropriation of the property in, and
of the sovereignty over, a part of the whole of the territory of
a state, and when definitively accomplished vests the whole
rights of property and sovereignty over such territory in the
conquering state. -
When it As in the case of other modes of acquisition by unilateral acts,
º, w it is necessary to the accomplishment of conquest that intention
* to appropriate and ability to keep shall be combined. Intention
to appropriate is invariably, and perhaps necessarily, shown by
a formal declaration or proclamation of annexation. Ability to
keep must be proved either by the conclusion of peace or by the
establishment of an equivalent state of things; the conqueror
must be able to show that he has solid possession, and that he
has a reasonable probability of being able to maintain possession,
in the same way and to much the same degree as a political
society which claims to be a state must show that it has indepen-
dence and a reasonable probability of maintaining it. A treaty of
peace by which the principle of uţi possidetis is allowed to operate
affords the best evidence of conquest, just as récognition of the
independence of a revolted province on the part of the mother
country is the best evidence of the establishment of a new state;
but possession which is de facto undisputed, and the lapse of a
certain time, the length of which must depend on the circumstances
of the case, are also admitted to be proof when combined; and
recognition by foreign states, though in strictness only conclusive,
like all other unilateral acts, against the recognising states them-
selves, affords confirmation which is valuable in proportion to
the number and distinctness of the sources from which it springs.
Notwithstanding the necessary uncertainty in the abstract
of evidence supplied by possession and recognition, the fact of
conquest is generally well marked enough to be unquestioned.
TERMINATION OF WAR 567
One instructive modern case however exists in which the con- PART III
clusiveness of an alleged conquest was disputed. In the beginning ...”
of the nineteenth century the Elector of Hesse Cassel held as Hesse
e º & 8 - tº tº ſº Cassel.
private property domains within his own territory, and sums
lent on mortgage to subjects of other German states. Shortly
after the battle of Jena, he was expelled from his dominions by
French troops, and he did not return until French domination in
Germany was put an end to by the battle of Leipzig. For about
a year after its occupation Hesse Cassel remained under the
immediate government of Napoleon; it was then handed over
by him to the newly-formed kingdom of Westphalia, the
existence of which was expressly recognised by Prussia and
Russia in the Treaty of Tilsit and, through the maintenance of
friendly relations, by such other European states as were at peace
with France and its satellites. Napoleon intended to effect
a conquest, he dealt with the territory which he had entered
as being conquered, and was acknowledged by a considerable
number of states to have made a definitive conquest. One of
his acts of conquest, effected before the transfer of the territory
to the kingdom of Westphalia, was to confiscate the private
property of the Elector, which, as the latter after his expulsion
had taken service in the Prussian army, was seized apparently
as that of a person remaining in arms against the legitimate
sovereign of the state. However revolting it may be morally
that Napoleon should have taken advantage of the position
which he had acquired through his own wrong-doing to inflict
further injury upon a man whom he had already plundered
without provocation, there can be no doubt that if his conquest
was complete he was within his strict legal rights. Was then
his conquest a complete one? The question was first raised,
in a suit brought by the Elector after his return, before the
Mecklenburg courts, as creditor of the estate of a certain Count
Hahn Hahn. The Count had borrowed money on mortgage
from the Elector before his expulsion, and had obtained a release
in full from Napoleon on payment of a portion of the debt.
568 TERMINATION OF WAR
PART III The Elector contested the validity of the discharge. The
*** Mecklenburg court appears not to have given judgment, but
to have remitted the matter to the University of Breslau, whence
it was successively carried by way of appeal to two other German
Universities. The ultimate judgment affirmed the legality of
the act of confiscation on the grounds—
I. That the restored government of the Elector could not be
regarded as a continuation of his former government, because he
had not been constantly in arms against Napoleon during his
absence from Hesse Cassel, and because he had been treated by
the peaces of Tilsit and Schönbrunn as politically extinct, the
kingdom of Westphalia having been recognised as occupying the
place of the electorate,
2. That Napoleon had in fact effected a conquest, and con-
sequently had a right as sovereign to confiscate the property of
an active enemy of the state. *
3. That even if the property of the Elector could have been
held to revert with the conclusion of peace, a restored owner,
“according to the letter of the Roman law,' must take his
property as he finds it, without compensation for the damage
which it may have suffered in the interval".
The above judgment appears to have met with very general
approval; and though the Congress of Vienna refused to interfere
to prevent the resumption by the Elector of alienated domains
within the electorate, there is nothing to show that any of the
powers represented there considered his action to be right under
the circumstances of the particular case; Prussia pronounced
herself adversely to it *. There can indeed be no doubt that the
k-
*-*
* Phillimore, pt. xii. ch. vi.
* Sir R. Phillimore points to the fact that ‘Austria, Prussia, Russia, the
Bourbon sovereigns in France and Italy, Sardinia, and the Pope’ left un-
disturbed titles acquired through the intrusive rulers of territory which
they had lost during the revolutionary and Napoleonic wars, as confirmatory
of the view that the conduct of the Elector was wrong. The conduct of the
Elector was no doubt wrong, but the case against him is not made stronger
by suggesting inexact analogies. Possession of the territory wrested from
Austria, Prussia, and Russia was in all cases confirmed by treaty ; the aliena-
TERMINATION OF WAR 569
title which Napoleon assumed himself to have acquired by con- PART III
quest became consolidated by lapse of time, and that alienations “”
made in virtue of it were consequently good. It does not follow
from this that the confiscation was in the first instance valid.
It took place immediately after the conclusion of the treaties of
Tilsit. Although it was impossible to suppose that Hesse Cassel
would ever be able to shake off the yoke of France for herself,
there was nothing in the aspect of Europe to induce the belief
that the settlement of Germany then made was a final one ; war
still continued with England; it was certain that war would
sooner or later be renewed on the continent, and it was necessarily
uncertain how soon it might arrive; finally, most of the recog-
Initions given to the kingdom of Westphalia were of little value,
because they were given by states which were hardly free agents
in the matter. In such a state of things time was absolutely
necessary to consolidate the conquest. At first Napoleon and
those who derived their title from him were merely occupiers
with the pretensions of conquerors. But with the lapse of time
the character of occupier insensibly changed into that of a true
conqueror; and when the fact of conquest was definitively
established, it validated retroactively acts which the conqueror
had prematurely done in that capacity. It would be idle to
argue, in all the circumstances of the case, that possession had
not hardened into conquest during the interval between 1806
and 1813 ".
tions made in France were the result, not of foreign conquest, but of internal
revolution ; and though the case of the Italian States is very much nearer to
that of Hesse, it is prevented from being identical by the much greater duration
of the foreign intrusion to which they were subjected. The government of
Hanover, which was in exactly the same position as Hesse, acted in the
same manner as the Elector.
* It is sometimes not only very difficult to be sure whether a conquest has
in fact been effected, but also to determine what view of the facts, which
may be supposed to have constituted a conquest, has in the long run been
taken by states interested in forming an opinion, and by the occupied or
conquered country itself, after it has been freed from the control of its
enemy.
The kingdom of the Netherlands offers a singularly confused instance of
570 TERMINATION OF WAR
PART III : The effects of a conquest are:—
CHAP. IX
Effects of
conquest.
I. To validate acts done in excess of the rights of a military
{\
this kind. In 1795 the republic of the United Netherlands was overrun
by French troops, and a republic of the French type, practically dependent
on France, was substituted for the government previously existing ; in 1806
the republic was converted into a kingdom under Louis Bonaparte ; and in
1810 the country was forcibly annexed to France, to which it remained
attached until 1814. Whether in the then condition of Europe these four
years of union sufficed to effect a conquest in the absence of treaties confirm-
ing it may be doubtful ; but in 1815 the Netherlands regarded the political
existence of Holland as having ended at the date of the annexation ; and
though the identity of a state is not usually affected by a change of govern-
ment, it would have been reasonable in the special circumstances of the
case to argue that Holland had so lost her separate life at the accession of
King Louis as to make it fair to assume that date instead of 1810 as the
commencement of French possession. In 1814, however, this view was not
taken by the four Great Powers. Article vi of the General Treaty of Peace
placed Holland under the Sovereignty of the House of Orange, and provided
that it should receive an “increase of territory ; * and the Congress Treaty
of the 9th June, 1815, provided that the ‘ancient United Provinces of the
Netherlands' and the late Belgic Provinces shall form the Kingdom of the
Netherlands. Holland was regarded as a state already in existence, which
was merely to receive enlargement and a new form of government, and
which was to resort to its former name so far as it could do so consistently
with its new position as a kingdom. But at the very moment that Holland
was reconstituting itself in this manner under the sanction of Europe, it
denied the continuity of its existence by regarding a treaty made before the
French revolution as annulled by subsequent events. So early as February,
1815, the Dutch Minister at Washington was instructed to open negotiations
for a new treaty of commerce upon the basis of the Treaty of 1782, and it
is clear from two notes written by Mr. Monroe to him, that he stated the
treaty in question to be, in the opinion of the Dutch government, no longer
in force. Subsequently the American government, in order to claim com-
pensation for the seizure and confiscation of vessels and cargoes belonging
to subjects of the United States under the reign of Louis Bonaparte, urged
that the identity of the state had not been changed ; and it appears from
a despatch of Mr. Adams of the year 1815, that both States at that time
were acting on the supposition that the Treaty of I782 was binding upon
them. The government of the Netherlands, in order to meet the American
demands, reverted to the view that the treaty had been annulled ; and
argued that the identity of the state had been destroyed by its incorporation
into France. The United States yielded, and abandoned their claims, but
without admitting the validity of the argument from incorporation. They
simply took the fact that the kingdom of the Netherlands repudiated the
continued identity of the state, together with the further facts that the form
of government was different, and the territory enlarged, as sufficient ground
for supposing that a new state had been created. Hertslet, Map of Europe
by Treaty ; Wharton, Digest, § 137.
TERMINATION OF WAR 57.1
occupant between the time that the intention to conquer has PART III
been signified and that at which conquest is proved to be “”
completed ".
2. To confer upon the conquering state property in the
conquered territory, and to invest it with the rights and affect
it with the obligations which have been mentioned as accom-
panying a territory upon its absorption into a foreign state”.
3. To invest the conquering state with sovereignty over all
subjects of a wholly conquered state and over such subjects of
a partially conquered state as are identified with the conquered
territory at the time when the conquest is definitively effected,
So that they become subjects of the state and are naturalised
for external purposes, without necessarily acquiring the full
status of subject or citizen for internal purposes *. The persons
who are so identified with conquered territory that their nation-
ality is changed by the fact of conquest, are of course mainly
those who are native of and established upon it at the moment
of conquest; to these must be added persons native of another
part of the dismembered state, who are established on the con-
quered territory, and continue their residence there. Correla-
tively persons native of the conquered territory, but established
in another part of the state to which it formerly belonged,
ought to be considered to be subjects of the latter.
In strictness, the effects of a cession, of a treaty concluded on Difference
the basis of uţi possidetis, and of conquest, upon the inhabitants º,
g e e | .#
of territory which changes hands at the conclusion of a war are ...”
* Halleck, ii. 484 ; Calvo, § 2162. Quest.
* See antea, pp. 98, 99, and compare also pp. 91 et seq.
* Dana, note to Wheaton's Elém. No. 169; Lord Mansfield in Hall v.
Campbell, i Cowper, 208. For the position of the inhabitants of a country
Conquered by the United States, see antea, p. 243, note. For French law
and practice, see Foelix, § 35, and Cogordan, La Nationalité, 2*. 6d. For the
action of the allied powers in 1814, see Lawrence, Commentaire, iii. I92.
“A rule of public law,’ it is laid down in a recent American case, ‘is that
the conqueror who has obtained permanent possession of the enemy’s
country has the right to forbid the departure of his new subjects or citizens
from it, and to exercise his sovereign authority over them.” United States v.
De Repentigny, v Wallace, 26o.
572 TERMINATION OF WAR
PART III identical, though for somewhat different reasons in the three
*** cases. In each case the population is subjected to the sovereignty
of the state by which the territory is acquired; but while in
the cases of bare conquest, and of conquest confirmed by a
treaty grounded on the principle of uţi possideſis, the sovereignty
is simply appropriated by the conquering state, in that of express
cession a transfer of it is effected through an act of the state
making the cession, by which the members of that state are
bound.
It has however been usual in modern treaties to insert a clause
securing liberty to inhabitants of a ceded country to keep their
nationality of origin ". In the case of persons native of, and
established in, the ceded territory, and even in the case of persons
who are established in, without being natives of, the ceded
territory, this liberty is commonly saddled with the condition
that they shall retire within the territory remaining to their
state of origin, a certain time being allowed to them to arrange
their affairs and dispose of landed and other property which they
may be unable to take with them *. In the most recent treaty
* Like provisions sometimes appear in older treaties, e.g. those of Ryswick
and Utrecht.
* The Treaties of Vienna in 1809 (De Martens, Nouv. Rec. i. 214), of Paris
in 1814 (id. ii. 9), and of Vienna in 1864 (Nouv. Rec. Gén. xvii. ii. 482) gave
six years, that of Frederikshamm in 1809 gave three years (Nouv. Rec. i. 25),
and those of Zurich in 1859 (Nouv. Rec. Gén. xvi. ii. 520), of Turin in 1860 (ib.
540), and of Vienna in 1866 (id. xviii. 409) afforded one year. The Treaty of
Frankfurt in 1871 conceded liberty of emigration until October 1, 1872 (Nouv.
Rec. Gén. xix. 689). -
Halleck (ii. 486-7) and Calvo (§ 2164) think that inhabitants of a ceded
country have a right of keeping their old allegiance if they choose to
emigrate. It is unquestionable that to prevent them from doing so would be
harsh and oppressive in the extreme, but as the possession of such a right is
inconsistent with the general principles of law, it could only have been
established by a practice of which there is certainly as yet no reasonable
evidence. In the United States v. De Repentigny, already cited, it was
expressly laid down that persons choosing to adhere without permission to
their former state “deprive themselves of protection to their property'
situated within the conquered portion ; and the alienation of the property of
the Elector of Hesse Cassel (see antea, p. 567), which, on the assumption
that a conquest was effected, has universally been held to be good, would
have been illegal if persons have a right to withdraw themselves from an
TERMINATION OF WAR 573
of cession a more liberal treatment was accorded ; natives of PART III
& o wº e CHAP. IX
Alsace and the ceded districts of Lorraine, who chose to retain
their French nationality, though compelled to emigrate, were
allowed by the Treaty of Frankfurt to keep their landed property
within the ceded territory".
Residence in foreign countries being a frequent incident of
modern life, withdrawal from a ceded district is not conclusive
of the intention of the person withdrawing to reject the nation-
ality of the conquering state. It is therefore usual to exact an
express declaration of intention, as a condition of preservation of
the nationality of birth, from persons against whom there is
a presumption of changed nationality—that is to say, from
persons born within the territory and living there, and from
persons born within the territory but absent at the date of
annexation. There being no such presumption against persons
born in another part of the state making the cession, the simple
fact of withdrawal is in their case sufficient.
allegiance imposed by conquest, and therefore à fortiori by cession. It is of
course not to the point that, as between persons adhering to their former
state, and removing into it, and that state, the national character of origin is
always preserved ; the state of origin has no reason for rejecting them or for
refusing them the rights of subjects. -
It is to be remarked that as the individual has no right of keeping his old
allegiance, irrespectively of treaty, he may find that the sovereign, for whom
he would wish to elect, declines to accept him as a subject, if the treaty
merely gives a right to emigrate and contains no specific stipulation pro-
viding for choice of nationality. After 1814 and 1815 the restored monarchy
of France considered that “les habitants des pays annexes à l’Empire
Napoléonien n’avaient pas €té plus legitimenent Français, que l’Empereur
m’await été légitimement souverain de la France.’ It was unwilling to add
to the Napoleonic element in the population. Accordingly persons emi-
grating from the restored provinces into France were required to obtain
naturalisation as ordinary foreigners. Cogordan, La Nationalité, 2* 6d., 333.
* It may be pointed out that the treaties usually fail to deal with all the
classes of persons which are affected by them, and that their language is
often insufficiently precise. Thus the Treaty of Turin left open the position
of minors and of natives of Savoy and Nice residing outside their own
country ; and many delicate questions have arisen upon the construction of
the Treaty of Frankfurt. See Cogordan, chap. vii. §§ 5 and 8.
PART IV
CHAP. I
Notifica-
P A R T IW
CHAPTER I
THE COMMENCEMENT OF WAR IN ITS RELATION
TO NEUTRALITY
IT was shown in an earlier chapter that as between belligerents
no necessity exists for a notification that war has begun or is
tion of the about to begin. As between belligerents and neutrals however
outbreak
of war to
be made
when pos-
sible.
the case stands differently. As a matter of courtesy it is due to
the latter as friends that a belligerent shall not if possible allow
them to find out incidentally and perhaps with uncertainty that
war has commenced, but that they shall be individually informed
of its existence. As a matter of law they can only be saddled
with duties and exposed to liabilities from the time at which
they have been affected with knowledge of the existence of war;
when there is no privity between two persons, one cannot impose
duties or liabilities upon the other by doing an act without the
knowledge of the person intended to be affected.
Hence it is in part that it has long been a common practice to
address a manifesto to neutral states, the date of which serves
to fix the moment at which war begins; and it is evident that
when practicable the issue of such a manifesto is the most
convenient way of bringing the fact of war to their knowledge.
Where war breaks out at a moment which is not determined by
the respective governments engaged, or by that which has just
done acts of war; as for example when it results from conditional
orders given to an armed force, or from an act of self-preservation
or pacific intervention being regarded as hostile, a manifesto
cannot of course be issued before its commencement. But in
WAR IN ITS RELATION TO NEUTRALITY 575
such cases a belligerent cannot expect states to take up the
attitude of neutrality contemporaneously with the outbreak of
hostilities; even when he has reason to think that the existence
of war is known it is his clear duty to give every indulgence to
neutrals; and where war breaks out through the performance
of an act which one of the two parties elects to consider hostile,
the date of its commencement, though carried back as between
the belligerents to the occurrence of the hostile act, must be
taken as against neutrals to be that of the election through
which third powers become acquainted with the fact of war.
Hence war can never so exist as to throw upon neutrals their
ordinary duties and liabilities without opportunity for the issue
of a manifesto having arisen; and though to give express notice,
whether in that or in any other form, is merely an act of courtesy,
because it is the fact of knowledge however acquired which
constitutes the ground of neutral duty, it is evident that the
omission of notice may be productive of so much inconvenience
and even of loss to neutrals, through the doubt in which they
may for some time be left, that the issue of a manifesto is as
obligatory as an act of courtesy can well be".
* Cf. however antea, p. 502. What is said above as to the moment from
which states, and therefore their subjects, become affected by the consequences
of non-neutral actions does not apply to cases in which neutral persons are
engaged knowingly or even ignorantly in carrying out a naval or military
operation for an intending belligerent.
PART IV
CHAP. I
CHAPTER II
GROWTH OF THE LAW AFFECTING BELLIGERENT
AND NEUTRAL STATES TO THE END OF
THE EIGHTEENTH CENTURY
PART IV. UNTIL the latter part of the eighteenth century the mutual
CHAP. II
*: Of subject of the least determinate part of international usage. At
ception of
neutral
duty...in, to work out an at least rudimentary code for neutral trade in time
the Middle
Ages. of war, the relations of states themselves remained in a chaos,
relations of neutral and belligerent states were, on the whole, the
a time when the daily necessities of intercourse had forced nations
from which order was very slowly developed.
Throughout the Middle Ages it was neither contrary to habit
nor repugnant to moral opinion that a prince should commit, or
allow his subjects to commit, acts of flagrant hostility against
countries with which he was formally at peace. It may even be
said broadly that at the end of the sixteenth century a neutral
state might allow the enemy of its ally to levy troops within its
dominions, it might lend him money or ships of war, and it might
supply him with munitions of war. What the state might do
its subjects might also do. The common law of nations permitted
a license which was checked only by the fear of immediate war.
Its But as it was the interest of every one in turn to diminish the
* wide liberty of action which was exercised by neutral powers,
most nations became gradually so bound by treaties on every
hand as to make a rough friendliness their standard of conduct.
For centuries innumerable treaties, not only of simple peace and
friendship, but even of defensive alliance, contained stipulations
that the contracting parties would not assist the enemies of the
other, either publicly with auxiliary forces or subsidies, or
GROWTH OF LAW AS BETWEEN STATES 577
privately by indirect means. They were also to prevent their PART IV
subjects from doing like acts". The habits thus formed reacted “"
* The treaties are sometimes couched in general, and sometimes in very
specific language. The following may be taken as fairly typical specimens:—
In 1502, Henry VII and Maximilian, King of the Romans, agreed ‘quod
nullus dictorum principum movebit aut faciet etc. guerram etc., nee dabit
auxilium, consilium, vel favorem, publice vel occulte, ut hujusmodi guerra
moveatur vel excitetur quovismodo.” In 1505, Henry VII and the Elector of
Saxony covenanted that neither of the contracting parties ‘patrias, dominia,
etc. alterius a suis subditis invadi aut expugnari permittet, sed expresse et
cum effectu prohibebit et impediet,’ and neither of them ‘alicui alteri patrias,
dominia etc., alterius invadenti etc. consilium, auxilium, favorem, subsidium,
naves, pecunias, gentes armorum, victualia aut aliam assistentiam quam-
cunque publice vel occulte dabit, aut praestari consentiet, sed palam et
expresse prohibebit et impediet.”
The following treaties may be cited as giving sufficiently varied examples
of the stipulations which were commonly made. It will be observed to how
late a period it was necessary to insist upon them :—
I. TREATIES OF DEFENSIVE ALLIANCE.
1465. Edward IV and Christian I of Denmark Dumont, Corps
Diplomatique iii. i. 586.
1467. Edward IV and Henry IV of Castile . 35 iii. i. 588.
I475. Charles Duke of Burgundy and Galeazzo
Sforza tº * & * •. ë 5 5 iii. i. 496.
I475. Frederic III and Louis XI g 22 iii. i. 521.
1506. Henry VII and Joanna Queen of Castile 23 iv. i. 76.
I508. Henry VII and Joanna Queen of Castile ?? iv. i. Io9.
I5Io. Ferdinand King of Aragon and Joanna
Queen of Castile . . . . . 72 iv. i. 521.
1623. James I and Michael Federowitz Grand
Duke of Russia . Jºe & de & 33 v. ii. 437.
1655. Frederic William of Brandenburg and
the United Provinces & º & 22 vi. ii. III.
II. TREATIES OF SIMPLE PEACE AND FRIENDSHIP.
I559. Elizabeth and Mary of Scotland . . Dumont, Corps
- Diplomatique v. i. 29.
I559. Peace of Château Cambrésis . e © ?? V. i. 32.
I564. Elizabeth and Charles IX . tº & ?? V. i. 21.I.
1610. Louis XIII and James I e i.e. © 73 V. ii. I49.
1631. Louis XIII and the Elector Maximilian
of Bavaria . ū ſº º & ſº 22 vi. i. I4.
The Treaty of Münster, in 1648, provided that “alter alterius hostes
praesentes aut futuros nullo unquam titulo, vel praetextu, vel ullius con-
troversiae bellive ratione contra alterum armis, pecunia, milite, commeatu
HALI, P p
578 GROWTH OF LAW AS BETWEEN STATES
PART IV upon thought, and men grew willing to admit the doctrine, that
v. ; what they had become accustomed to do flowed from an obliga-
the duty tion dictated by natural law. By the latter half of the seven-
of neutral {} te
states teenth century it was no longer necessary to stipulate for neutra-
i.lity in precise language. The neutrality article dwindled into
*:::::, a promise of mutual friendship'. But it would be a mistake to
’ infer from this that international practice conformed to the more
stringent provisions of former treaties. These had certainly not
been observed when a sovereign felt tempted to infringe them ;
and though thinkers had begun to apply ethics to the conduct of
nations, no one had so marked out the principles of neutrality
that particular usages could be compared with them and improved
bºro. with their help. Grotius gave the subject no serious considera-
o tion, and went no farther in his meagre chapter ‘De his qui in
bello medii sunt' than to say that ‘it is the duty of those who
stand apart from a war to do nothing which may strengthen the
side whose cause is unjust, or which may hinder the movements
of him who is carrying on a just war; and in a doubtful case, to
act alike to both sides, in permitting transit, in supplying pro-
visions to the respective armies, and in not assisting persons
besieged "." Elsewhere he incidentally remarks that ‘it is not
aliterve juvet, aut illis copiis quas contra aliquem hujus pacificationis con-
sortem a quocumque duci contigerit, receptum, stativa, transitum indulgeat.”
Dumont, vi. i. 451.
* The Peace of the Pyrenees (1659) has merely the general words ‘Les
Roys, &c., áviteront de bonne foy tant qu’il leur sera possible le dommage
I’un de l'autre.’ Dumont, vi. ii. 265. Like language is found in the Treaty
of Breda, between England and France, in 1667 (Dumont, vii. i. 4I); in the
Peace of Lisbon, between Spain and Portugal, in 1668 (Dumont, vii. i. 73);
in the Treaty of Nymeguen, in 1678 (Dumont, vii. i. 357); and the Peace of
Ryswick, in 1697 (Dumont, vii. ii. 389). The treaty between England and
Denmark in 1669, and that between the same powers in 1686 (Dumont, vii.
i. I27), are exceptions. The contracting parties promise ‘se alterutrius
hostibus, qui aggressores fuerint, nihil subsidii bellici, veluti milites, arma,
machinas, bombardas, naves et alia bello gerendo apta et necessaria Submini-
straturos, aut Suis subditis subministrare passuros; si vero alterutrius regis
subditi hisce contravenire audeant, tum ille rex, cujus subditi id fecerint,
obstrictus erit in eos acerbissimis poenis, tanquam seditiosos et foedifragos
animadvertere.” -
* “Eorum qui a bello abstinent officium est nihil facere, quo validior fiat is
GROWTH OF LAW AS BETWEEN STATES 579
inconsistent with an alliance that those who are attacked by one PART IV
of the parties to it shall be defended by the other—peace being CHAP. II
maintained in other respects *.” Various quotations from ancient
authors, from which he draws no conclusions, suggest that he
looked upon an impartial permission to raise levies as consistent
with neutrality, but that the grant of a subsidy or the supply of
munitions of war was an hostile act.
So long as these somewhat incoherent doctrines alone Practice of
represented the views of theorists it is not strange that usage *
was in general rude, or that countries concluded treaties with century.
the express object of restricting its operation on themselves.
Henry IV allowed entire regiments of French soldiers to pass ,
into the service of the United Provinces; the expedition,
numbering 6,000 men, which the Marquis of Hamilton, with
the consent of his sovereign, led to the assistance of Gustavus
Adolphus in 1631, was exceptional only in its size “; and Burnet
draws a lively picture of the character of English neutrality at
a much later time. In 1677 complaints were made in Parliament
‘ of the regiments that the King kept in the French army, and
of the great service done by them. It is true the King suffered
the Dutch to make levies. But there was another sort of
encouragement given to the levies of France, particularly in
Scotland; where it looked liker a press than a levy. They had
not only the public gaols given them to keep their men in, but
when these were full, they had the castle of Edinburgh assigned
to them, till ships were ready for their transport *.”
It was important to small and ambitious states, which occupied
a larger space in the field of politics than was justified by their
qui improbam fovet causam, aut quo justum bellum gerentis motus im-
pediantur; in re vero dubia aequos se praebere utrisque in permittendo
transitu, in commeatu praebendo legionibus, in obsessis non sublevandis.”
De Jure Belli et Pacis, lib. iii. Cap. xvii.
1 : Non pugnat autem cum foedere, ut quos alii offenderent, hi defende-
rentur ab aliis, manente de Caetero pace.” Lib. ii. Cap. xvi.
* Martin, Hist. de France, x. 497; Burnet, Memoirs of James and William,
Dukes of Hamilton, pp. 7 and 9.
* Hist. of his own Time, ii. II4 (ed. I623).
P p 2
580 GROWTH OF LAW AS BETWEEN STATES
PART IV inherent power, to keep their hold on foreign recruiting-grounds.
CHAP. II
A treaty therefore between Brandenburg and the United
Provinces in 1655 declares that ‘the levy of land or sea forces,
and the purchase, lading, and equipment of vessels of war shall
always be permitted, and be lawful, in the lands and harbours
° and in 1656 a treaty between England and
of the two parties;
Sweden provided, more in the interest of the latter than the
former power, that it should be “lawful for either of the
contracting parties to raise soldiers and seamen by beat of drum
within the kingdoms, countries, and cities of the other, and to
hire men of war and ships of burden ".”
A treaty of neutrality may secure something more, and will
certainly provide for nothing less, than the bare performance of
strict neutral duties. By that which was concluded between
Louis XIV and the Duke of Brunswick in 1675, the Duke
promises to observe a ‘sincere and perfect neutrality towards the
King. . . . In conformity with this neutrality, his Highness
will not anywhere assist the enemies of the King directly or
indirectly, and will not permit any levies to be made in his
states, nor the passage of troops through them, nor the formation
of any kind of magazines”.’
In other words he promises :—
I. That no active assistance shall be given by Brunswick to
any enemy of France as by one sovereign state to another.
2. That it will not afford passive aid by permitting en-
listments or by allowing its territory to be made a base of
operations. -
He does not promise to restrain the individual action of his
subjects in any way.
It would therefore seem that towards the end of the seventeenth
century the utmost that could be demanded by a belligerent
* Dumont, vi. ii. III, and vi. ii. I25. The provision was ‘propounded by
the ambassador’ of Sweden, and six thousand men were levied for Sweden in
England. Whitelock's Memorials, 633–6.
* Dumont, vii. i. 312.
GROWTH OF LAW AS BETWEEN STATES 581
from a neutral state was that the latter should refrain from PART IV
giving active help to the enemy of the belligerent, and should “”
prevent his territory from being continuously used for a hostile
purpose. Indeed, his customary right to so much as this may
have been far from unquestionable; and neither then nor long
afterwards had he any good grounds for complaint if privileges
given to his enemy could be shared by himself. -
It must not however be forgotten that though the practice of
neutrality in the seventeenth century was highly imperfect, and
though its theory was not thought out, the ethical view of the
general relations of states to each other which was commonly
taken by writers prepared the way for a more rapid settlement
of its fundamental conceptions, when once attention was directed
to them, than might otherwise have taken place.
The right of a sovereign to forbid and to resent the perform- Rights of
ance of acts of war within his lands or waters was theoretically º
held as fully then as now to be inherent in the fact of ...".
stood in
sovereignty". In 1604, James I issued a Proclamation directing the seven-
that ‘ all officers and subjects by sea and land shall rescue and tº.
succour all such merchants and others as shall fall within the
danger of such as await the coasts.” And in 1675, Sir Leoline
Jenkins, in writing to the King in Council with respect to
a vessel which had been seized by a French privateer, says that
‘ all foreign ships, when they are within the King’s Chambers,
being understood to be within the places intended in these
directions’ of James I, ‘must be in safety and indemnity, or
else when they are surprised must be restored to it, otherwise
they have not the protection worthy of your Majesty”.”
Philip II, so early as 1563, had published an edict forbidding,
under pain of death, that any violence should be done to his
subjects or allies, whether for reason of war or for any other
* “Alienum territorium securitatem praestat,” says Albericus Gentilis (De
Jure Belli, lib. ii. c. 22); it is true that he also says, “etiam nec puto grave
delictum in loco non licito hostes offendisse.”
* Wynne, Life of Sir Leoline Jenkins, ii. 780.
582 GROWTH OF LAW AS BETWEEN STATES
PART IV cause, within sight of shore. The Dutch, after acquiring their
CHAP. II
independence, made a like decree *; and several treaties exist in
which it was stipulated that the rights of sovereignty should be
enforced by neutral nations for the benefit of an injured belli-
gerent”.
But the history of the century bristles with occurrences which
show how little the doctrine had advanced beyond the stage of
theory. In 1627, the English captured a French ship in Dutch
waters; in 1631, the Spaniards attacked the Dutch in a Danish
port; in 1639, the Dutch were in turn the aggressors, and
attacked the Spanish fleet in English waters; again in 1666,
they captured English vessels in the Elbe, and in spite of the
remonstrances of Hamburg and of several other German states
did not restore them ; in 1665, an English fleet endeavoured to
seize the Dutch East India squadron in the harbour of Bergen,
but were beaten off with the help of the forts; finally, in 1693,
the French attempted to cut some Dutch ships out of Lisbon,
and on being prevented by the guns of the place from carrying
them off, burnt them in the river”.
In the eighteenth century the principle of sovereignty was on
the whole better respected. In 1759, when Admiral Boscawen
pursued a French squadron into Portuguese waters and captured
How far
they were
observed.
* Bynkershoek, Quaest. Jur. Pub., lib. i. e. viii.
* Art. xxi of the Treaty of Breda (1667) declares : ‘Item, si qua navis aut
naves, quae subditorum aut incolarum alterutrius partis aut neutralis alicujus
fuerint, in alterutrius portubus a quovis tertio capiantur, qui ex subditis et
incolis alterutrius partis non sit ; illi, quorum in portu aut ex portu aut
quacunque ditione praedictae naves captae fuerint, pariter cum altera parte
dare operam tenebuntur in praedictis nave vel navibus insequendis et
reducendis, suisque dominis reddendis ; verum hoc totum fiet dominorum
impensis, aut eorum quorum id interest.’ Dumont, vii. i. 47. Like pro-
visions were contained in the treaties made between the United Provinces
and England in 1654 and I661, and France in 1662.
* Bynkershoek, op. cit.; Pepys's Diary, Aug. 19, 1665. It is significant of
the view which was commonly taken of such acts that Pepys, with evident
surprise, speaks of ‘the town and castle, without any provocation, playing on
our ships.’ This surprise can have no reference to the agreement which is
supposed to have been made by the English with the King of Denmark, for
his silence shows that he was ignorant of its existence.
GROWTH OF LAW AS BETWEEN STATES 583
two vessels, the government of Portugal, though perfectly PART IV
indifferent in fact, was obliged to demand reparation in order to * *
avoid embroilment with France; and as full reparation by
surrender of the vessels was not exacted, France subsequently
alleged that the neutrality of Portugal was fraudulent, and
grounded her declaration of war in 1762 in part upon the
occurrence. Progress nevertheless was slow, as is sufficiently
testified by the following passage in a memorial respecting
a proposed augmentation of the land forces of the United
Provinces, which was presented to the States-General by the
Princess Regent in 1758. ‘This augmentation,” she says, “ is
the more necessary, as it behoves the state to be able to hinder
either army from retiring into the territory of the state if it
should be defeated; for in that case the conqueror being
authorised to pursue his enemy wherever he can find him would
bring the war into the heart of our own country'.”
In the course of the eighteenth century, opinion ripened Growth of
greatly as to the due relations of belligerents and neutral states. *
It was not strong enough to form an adequate or consistent º,
usage; but it adopted a few general principles with sufficient
decision to afford the basis of a wholesome rule of conduct. This
progress was in part owing to text writers, who formulated the
best side of international practice into doctrines, which from
their definite shape, and their alliance with natural law, seemed
to be clothed with more authority than was perhaps their due,
and which soon came to be acknowledged as standards of right.
Bynkershoek was the earliest writer of real importance, and Bynkers.
few of his successors have equalled him in sense or insight. In hoek.
his ‘Questiones Juris Publici,’ written in 17 37, he says, “I call
those non-enemies who are of neither party in a war, and who
owe nothing by treaty to one side or to the other. If they are
* Lord Stanhope's Hist. of England from the Peace of Utrecht, iv. 148, and
Append. xxxiv.; Ann. Register for IT58, p. 150. Bynkershoek (Quaest. Jur.
Pub., lib. i. e. viii) says, “Ad summum largiendum est, proelio recens
commisso, hostem fugientem persequi licere in alterius imperio.”
584 GROWTH OF LAW AS BETWEEN STATES
PART IV under any such obligation they are not mere friends but allies . . .
CHAP. II
Their duty is to use all care not to meddle in the war . . . If
I am neutral, I cannot advantage one party, lest I injure the
other . . . The enemies of our friends may be looked at in two
lights, either as our friends, or as the enemies of our friends.
If they are regarded as our friends, we are right in helping them
with our counsel, our resources, our arms, and everything which
is of avail in war. But in so far as they are the enemies of our
friends, we are barred from such conduct, because by it we
should give a preference to one party over the other, inconsistent
with that equality in friendship which is above all things to be
studied. It is more essential to remain in amity with both than
to favour the hostilities of one at the cost of a tacit renunciation
of the friendship of the other ".”
Wolff, who wrote in 1749, calls those neutrals ‘who adhere
to the side of neither belligerent, and consequently do not mix
themselves up in the war.” They are in a state of amity with
both parties, and owe to each whatever is due in time of general
peace. Belligerents have therefore the right of unimpeded access
to neutral territory, and of buying there at a fair price such
things as they may want. This right, it is true, is qualified by
the requirement that it shall be exercised for a causa justa, but
war is a causa justa, and therefore the passage of troops is to be
permitted. -
Vattel, who published his work in 1758, says that neutrality
b.
*.
**.
Wolff.
Vattel.
‘ ‘Non hostes appello qui neutrarum partium sunt, nec ex foedere his
illisve quicquam debent; si quid debeant, foederati sunt, non simpliciter
amici. . . . Horum officium est omni modo cavere ne se bello interponant....
Si medius sim, alteri non possum prodesse, ut alteri noceam. . . . Crede
amicorum nostrorum hostes bifariam considerandos esse, vel ut amicos
nostros, vel ut amicorum nostrorum hostes. Si ut amicos consideres, recte
nobis iis adesse liceret ope, consilio, eosque juvare, milite auxiliari, armis et
quibuscunque aliis, quibus in bello habent. Quatemus autem amicorum
nostrorum hostes Sunt, id nobis facere non licet, quia sic alterum alteri in
bello praeferremus, quod vetat aequalitas amicitiae, cui in primis studendum
est. Praestat cum utroque amicitiam conservare, quam alteri in bello favere,
et sic alterius amicitiae tacite renunciare.’ Quaest. Jur. Pub., lib. i. e. ix.
* Jus Gentium, § 672.
GROWTH OF LAW AS BETWEEN STATES 585
consists in an impartial attitude so far as the war is concerned,
and so far only; and it requires—Ist, that the neutral people
shall abstain from furnishing help when they are under no prior
obligation to grant it, and from making free gifts of troops,
arms, munitions, or anything else of direct use in war. I say
that they must abstain from giving help, and not that they
must give it equally, for it would be absurd that a state should
succour two enemies at the same moment. Besides, it would be
impossible to do so equally ; the very same things—the same
number of troops, the same quantity of arms, of munitions, &c.,
furnished under different circumstances, are not equivalent succour.
2nd, that in all matters not bearing upon the war a neutral and
impartial nation shall not refuse to one of the parties, because of
the existing quarrel, that which it accords to the other'. Wattel
afterwards so far qualifies this sound general statement as to lay
down that a country without derogating from its neutrality, may
make a loan of money at interest to one of two belligerents,
refusing a like loan to the other, provided the transaction between
the states is of a purely business character”. The qualification is
only of importance as tending to show in how narrow a sense
Wattel would have been inclined to construe his own words.
It is to be observed that these authors, in dealing with conduct
failing to satisfy the obligations of neutrals, speak only of acts
done by the state itself with the express object of assisting
* “Un peuple neutre doit garder une impartialité . . . qui se rapporte
uniquement à la guerre, et comprend deux choses: I. Ne point donner de
secours quand on n’y est pas obligé ; me fournir librement ni troupes, ni
armes, ni munitions, ni rien de ce qui sert directement à la guerre. Je dis
ne point donner de secours et non pas en donner également ; car il serait
absurde qu'un état secourtit en même temps deux ennemis. Et puis il serait
impossible de le faire avec Śgalité; les mémes choses, le même nombre de
troupes, la méme quantité d'armes, de munitions, etc., fournies en des
circonstances différentes ne forment plus de secours équivalents. 2. Dans
tout ce qui ne regarde pas à la guerre, une nation neutre et impartiale ne
refusera point à l’une des parties, a raison de Sa querelle présente, ce qu’elle
accorde à l'autre.' Droit des Gens, liv. iii. c. vii. § 104. See also Barbeyrac,
note to Pufendorf, blº. viii. e. vi., and Burlamaqui, vol. ii. pt. iv. c. viii.
* Liv. iii. C. vii. § IIo.
PART IV º,
CHAP. II
586 GROWTH OF LAW AS BETWEEN STATES
PART IV a belligerent. They say nothing indicating how far in their
“" view a nation was bound to watch over the acts of its subjects;
and in practice this doctrine as to state conduct was controlled
by the action of treaties.
i. of It was clearly open to a state, without abandoning its position
.#" of neutrality, to supply a body of troops to a belligerent under
º a treaty between the two powers, either for mutual help, or for
ºned succour to be given by one only to the other in the event of
tl]] Clel" te e • . . . ſº wº te
treaty by a war which might be in contemplation by an intending belli-
a neutral
state to
º: of this kind were often made, and were sometimes guarded
sov. ' *
gerent at the very moment of concluding the treaty. Agreements
against by express stipulation. In 1727, when England was
already in a state of informal war with Spain, the Landgrave of
Hesse Cassel agreed to provide her with 12,000 troops whenever
they should be wanted 1.” One of the most marked instances of
the practice is furnished by the conduct of the United Provinces
during the war of the Austrian Succession. Under their guarantee
of the Pragmati Sanction they sent in 1743 an auxiliary corps
of 20,000 men to the assistance of Maria. Theresa, and they
gradually so engaged with their whole force in the active opera-
tions of the war that the brilliant campaign of Marshal Saxe in
1746 left them destitute of an army. Nevertheless, when in the
next year the French forces entered Holland, a Royal Declaration
announced that the invasion was solely intended to put a stop to
the effects of the protection given to the English and Austrian
armies by the Republic, ‘sans rompre avec elle *.” Piedmont
engaged in like manner in the same war; and England in it,
as in the Seven Years' War and that of American Independence,
drew large bodies of troops from neutral German states under
treaty with their sovereign 8. Bynkershoek says, “What if
I have promised help to an ally, and he goes to war with my
e e º is e
* Martin, Hist. de France, lib. xcv. § ii.
* Lord Stanhope, Hist. of England, vol. iii. I44, vol. iv. 49, and vol. vi. 86;
De Martens, Rec. ii. 417 and 422.
GROWTH OF LAW AS BETWEEN STATES 587
friend ? I think that I ought to stand by my promise, and PART IV
that I can do so properly.” The neutral may however abstain CHAP. II
when the war has been undertaken unjustly on the part of his
ally; and when it is once begun no new engagement must in
any case be entered into ".
It was not until 1788 that the right of a neutral state to give
succour under treaty to a belligerent gave rise to serious, if to
any, protest. Denmark, while fulfilling in favour of Russia an
obligation of limited assistance contracted under treaty, declared
itself to be in a state of amity with Sweden. The latter power
acquiesced as a matter of convenience in the continuance of
peace, but it placed on record a denial that the conduct of
Tenmark was permissible under the Law of Nations”. Probably
Sweden stood almost alone in her view as to the requirements of
neutral duty. In 1785, the United States agreed with Prussia
that ‘ neither one nor the other of the two states would let for
hire, or lend, or give any part of its naval or military forces to
the enemy of the other to help it or to enable it to act offensively
or defensively against the belligerent party’ to the treaty ; and
in 178o a similar treaty had been concluded between England
and Denmark 8. It is needless to repeat that positive covenants
are not inserted in treaties merely to embody obligations which
without them would be of equal stringency; and the continuance
of the old practice is proved by the conclusion of a treaty in
1788 under which the Duke of Brunswick contracted to supply
Holland with 3,000 men, and of another in the same year with
a like object between Holland and Mecklenburg-Schwerin “.
It is more doubtful whether the levy of troops by belligerents As to
wº tº 8 º' tº © e levies in
on their own account within neutral territory was still recog- a hºt...I
mised by custom, when allowed apart from treaty to both parties **
* Quaest. Jur. Pub. lib. i. e. ix.
* The declaration and counter declaration are quoted in full by Phillimore,
iii. § cxl.
* Elliot, American Diplomatic Code, i. 347 ; Chalmers, Collection of
Treaties, i. 97.
* De Martens, Rec. iv. 349 and 362.
588 GROWTH OF LAW AS BETWEEN STATES
indifferently. Bynkershoek says, “I think that the purchase of
soldiers among a friendly people is as lawful as the purchase of
munitions of war"; ” they would merely be subject to capture
like other contraband articles on their way to the belligerent
state. Wattel in somewhat inconsistent language probably in-
tends to give the same liberty ". But there are a few treaties to
the contrary effeet between some of the most important powers.
England and Holland were both reciprocally bound with France
by the Treaties of Utrecht to prevent their subjects from accept-
ing commissions in time of war from the enemies of whichever
might be engaged in hostilities; a treaty of the year 1670 of
the same nature was still in force between England and Denmark;
and in 1725 Spain entered into a like engagement with the
Empire *. When troops were wanted they seem to have been
generally, if not always, obtained under treaty; England and
Holland for municipal reasons enacted laws expressly to restrain
their subjects from entering the service of foreign states; and
the neutrality edicts of the Two Sicilies in 1778, and of Venice
and the Papal States in 1779, forbid enlistment with a belligerent
under pain of exile or imprisonment *. The old practice may
PART IV
C}[AP. II
apart from
treaty.
* ‘Quod juris est in instrumentis bellicis, idem esse puto in militibus apud
amicum populum comparandis.’ Quaest. Jur. Pub. lib. i. cap. xxii.
In the usually sensible Derecho Internacional of Pando (written in 1838)
is a curious instance of the tendency of a doctrine, once sanctioned by
a writer of authority, to perpetuate itself, like an organ which has become
useless, and only remains in a rudimentary state to attest an epoch of lower
development. He almost repeats the words of Bynkershoek: “Los hombres
deben considerarse como articulo de guerra, en que es libre à todas naciones
comerciar de la misma manera queen losotros, y con iguales restricciones’
(§ clxxxix). In the particular case the doctrine is too much out of harmony
with modern opinion to do mischief; but it is only an unusually glaring
example of a common, and—as text writers are quoted in international con-
troversy—a dangerous practiee.
* Droit des Gens, liv. iii. c. vii. § IIo. His qualification that troops may
be levied in a neutral state—‘à moins qu’elles ne soient données pour envahir
les états' of the opposite belligerent, and provided that they are not too
numerous—takes away with one hand what he gives with the other.
* 9 Geo. II. c. 30 and 29 Geo. II. c. 17. For comments on the intention
of these acts, see Debates on the Foreign Enlistment Act, Hansard, xl (1819);
GROWTH OF LAW AS BETWEEN STATES 589
therefore be taken to have fallen into desuetude, and perhaps to PART IV
CHAP. II
have become illegal.
The equipment by private adventure of cruisers to be employed As to
te *UISGI’S
under letters of marque in the service of a belligerent is an act jºut
analogous to the levy of a body of men in aid of his land force, ..."
but from the conditions of marine warfare it is more mischievous
to his enemy. A better defined rule might therefore be expected
to exist with regard to it. Perhaps, on the whole, this was the
case; but the dispute between England and France in 1777 Diº
ſº tº & 1spute
shows that it would be easy to overvalue the significance of between
facts tending to show such adventures to be illegal under the fºund
common law of nations. During the correspondence between France.
the two governments with reference to the covert help afforded
to the American insurgents in France, M. de Vergennes admitted
that France was bound to prevent ships of war from being armed
and manned with French subjects within its territory to cruise
against England. But in this instance, and in all the controversy
of that time between the two nations, the demands of one party
and the admissions of the other were alike based upon obligations
under the Treaties of Utrecht and of Paris. It is not probable
that England in her frequent Notes and her elaborate ‘Mémoire
Justificatif’ would have refrained from supporting the special
obligations of treaties by the authority of general law had she
thought that its voice would be distinct enough for her purpose".
De Martens, Rec. iii. 47, 53, 74. Bynkershoek (Quaest. Jur. Pub. lib. i. c. xxii)
says that in his day most states permitted their subjects to enter foreign
Service.
* De Martens, Causes Célèbres, iii. 152. The fifteenth article of the Treaty
of Commerce of Utrecht declares that “il ne sera pas permis aux armateurs
étrangers, qui ne seront pas sujets de l'une ou de l'autre couronne, et qui
auront commission de quelqu'autre Prince ou Etat ennemis de l’un et de
l'autre, d'armer leurs vaisseaux dans les ports de l’un et de l'autre des deux
royaumes, d’y vendre ce qu'ils auront pris, . . . ni d'acheter même d'autres
Vivres que ceux qui leur seront nécessaires pour parvenir au port le plus
prochain du Prince dont ils auront obtenu des commissions.” Dumont, viii. i.
348. The stipulations of the Treaty of Utrecht were revived by the Treaty
of Paris. The absence of reference to the authority of general law rather
than to treaty stipulations is the more significant that the above article
evidently fails to cover the acts complained of.
590 GROWTH OF LAW AS BETWEEN STATES
PART IV
CHAP. II
Neutral-
ity edicts.
Neutral
duty at
Yet she had occasion to complain of acts which in the present
day would seem to be of extraordinary flagrancy. The Reprisal,
an American privateer, sailed from Nantes to cruise against the
Pnglish. She returned to L’Orient, sold her prizes, and took in
reinforcements of men. She then again cruised in company with
a privateer which had been armed at Nantes, and was manned
solely by Frenchmen ; and fifteen ships captured by the two
vessels were brought into French ports and sold.
The evidence tending to show that general opinion already
looked upon the outfit and manning of cruisers by private persons
as compromising the neutrality of a state, mainly consists in the
neutrality edicts which were issued shortly after this time on
the outbreak of actual war between England and France. Venice,
Genoa, Tuscany, the Papal States, and the Two Sicilies, subjected
any person arming vessels of war or privateers in their ports to
a fine; and in 1779 the States-General of the United Provinces
issued a placard reciting that it was suspected that subjects of
the state had equipped and placed on the sea armed vessels under
a belligerent flag, and declaring such ‘conduct to be contrary
to the law of nations, and to the duties binding on subjects of
a neutral power".”
Ten years later De Martens summed up the duties of neutrality
i.e., of as follows. ‘It is necessary,’ he says, “for the observance of
the eigh-
teenth
century
according
to De
Martens.
complete neutrality to abstain from all participation in warlike
expeditions. . . . But can a power, without overstepping the
bounds of neutrality, allow its subjects to accept letters of
marque from a belligerent P In strictness, it would seem that
it cannot. Treaties of commerce often contain an express promise
* De Martens, Rec. iii. 25, and 47, 53, 62, 74. It appears however from
a recital in the Treaty of 1787 between Russia and the Two Sicilies that
subjects of the latter power were forbidden both in time of war and peace to
build ships for, or to sell them to, foreigners; and that they were also for-
bidden to buy them without express permission. Id. iv. 240. On the other
hand, the Venetian government expressly refers to its wish to observe ‘la
più esatta ed imparziale neutralità '; but the provisions of the edict go in
several respects further than can be required by law as it now is.
GROWTH OF LAW AS BETWEEN STATES 591
not to accord any such permission.” He adds that a state which
sends succour in troops or in money to one of the two belligerents
‘ can no longer in strictness demand to be looked upon as a
neutral, although in the case of pre-existent treaties it is ‘the
custom to regard it as such *.’ It has been remarked by Kent
that De Martens attached exaggerated importance to treaties,
and in this case it would seem to be mainly on their authority
that he declares neutrality to be inconsistent with the acceptance
by neutrals of letters of marque. And, after all, his doctrine is
expressed with some hesitation. Both applications of his general
principles are carefully limited by the words ‘à la rigueur.”
Custom in these matters was growing ; it was not yet established.
The United States had the merit of fixing it permanently.
PART IV
CHAP. II
I793.
Neutral-
On the outbreak of war in Europe in I793, a newly-appointed ity policy
French Minister, M. Genêt, on landing at Charlestown, granted tº a
commissions to American citizens who fitted out privateers and States.
manned them with Americans to cruise against English commerce.
Immediate complaint was made by the English Minister, who
expressed his ‘persuasion that the government of the United
States would regard the act of fitting out these privateers in
its ports as an insult offered to its sovereignty”.” The view
taken by the American government was in fact broader, and
Mr. Jefferson expressed it clearly and tersely in writing to
M. Genêt, ‘ that it is the right of every nation to prohibit acts
of sovereignty from being exercised by any other within its
limits, and the duty of a neutral nation to prohibit such as
would injure one of the warring powers; that the granting
military commissions” within the United States by any other
authority than their own is an infringement of their sovereignty,
and particularly so when granted to their own citizens to lead
them to commit acts contrary to the duties they owe to their
* Précis du Droit des Gens, $$ 264, 265, and note to latter section, ed. IT88.
The later editions are modified.
* Mr. Hammond to Mr. Jefferson, June 7, 1793.
* M. Genét maintained that to grant commissions and letters of marque
was one of the usual functions of French consuls in foreign ports. :
592 GROWTH OF LAW AS BETWEEN STATES
PART IV country'.” Somewhat later he writes to Mr. Morris, American
CHAP. II
Minister in Paris, ‘that a neutral nation must in all things
relating to the war observe an exact impartiality towards the
two parties . . . that no succour should be given to either, unless
stipulated by treaty, in men, arms, or anything else directly
serving for the war; that the right of raising troops being one
of the rights of sovereignty, and consequently appertaining
exclusively to the nation itself, no foreign power or person can
levy men within its territory without its consent; that if the
United States have a right to refuse the permission to arm vessels
and raise men within their ports and territories, they are bound
by the laws of neutrality to exercise that right and to prohibit
such armaments and enlistments *.’ Taking this language
straightforwardly, without forcing into it all the meaning which
a few phrases may bear, but keeping in mind the facts which
were before the eyes of Mr. Jefferson when he penned it, there
ean be no doubt that the duties which it acknowledges are the
natural if not inevitable deductions from the general principles
stated by Bynkershoek, Wattel, and De Martens; and there can
be as little doubt that they had not before been frankly fulfilled.
To give effect to the views then stated, instructions were issued
to the collectors of customs scheduling ‘rules concerning sundry
particulars which have been adopted by the President as deductions
from the laws of neutrality established and received among
nations.” Under these, ‘ equipments of vessels in the ports of
the United States which are of a nature solely adapted for war,’
and the enlistment of ‘inhabitants’ of the United States, were
forbidden. On the other hand, it was permitted to furnish
merchant vessels and ships of war with equipments of doubtful
nature, as applicable either to war or commerce". The trial of
Gideon Henfield for cruising in one of the privateers commis-
sioned by M. Genêt soon proved that the existing law was not
* June 5, 1793. American State Papers, i. 67.
* Aug. 16, 1793. American State Papers, i. II6.
* Appendix iii to Report of Neutrality Law Commissioners, 1868.
GROWTH OF LAW AS BETWEEN STATES 593
strong enough to enable the government to carry out neutrality PART IV
in the sense in which they defined it'. An Act was accordingly “”
passed by Congress to prevent citizens or inhabitants of the
United States from accepting commissions or enlisting in the
service of a foreign state, and to prohibit the fitting out and
arming of cruisers intended to be employed in the service of
a foreign belligerent, or the reception of any increased force by
such vessels when armed *.
The policy of the United States in 1793 constitutes an epoch
in the development of the usages of neutrality. There can be no
doubt that it was intended and believed to give effect to the
obligations then incumbent upon neutrals. But it represented
by far the most advanced existing opinions as to what those
obligations were ; and in some points it even went further than
authoritative international custom has up to the present time
advanced. In the main however it is identical with the standard
of conduct which is now adopted by the community of nations.
* Wharton's State Trials, p. 49.
* Statutes at Large of the United States, ed. by Peters, i. 381.
HALL Q Q
CHAPTER III
THE EXISTING LAW AIFFECTING BELLIGERENT
AND NEUTRAL STATES
PART IV FROM the somewhat incoherent practice followed by belligerents
dº." and neutrals with respect to each other during the eighteenth
principles century, three principles disengage themselves with clearness. The
of the law - e - º º
of neutraj. neutral state was bound not to commit any act favouring one of
º two belligerents in matters affecting their war, and it was in turn
aſ the end incumbent on belligerents to respect the sovereignty of the
tºº. neutral. It was also recognised, though less fully, that it is the
century. duty of a state to restrain foreign governments and private per-
sons from using the territory and resources of a country for
belligerent purposes. In these principles are involved every obli-
gation under which a neutral state can lie, and almost every right
the possession of which is important to it. But the foregoing
sketch has shown that they were not always observed, and still
more that they were not made to yield all the results which
logically flow from them. Those results which were in fact
reached were not entirely consistent with each other.
Their re. During the present century expansion of trade and quickness
º of communication have given birth in certain directions to new
doctrine, difficulties in the relations of neutrals and belligerents, while at
the same time the vitality of some of the older customs has never
been tested in action. Hence a certain number of doctrines
appear to survive which can hardly in any true sense be said to
live; and on the other hand, new applications of the old principles
have continually to be made to complex facts, in dealing with
which there is no strict precedent, and sometimes a very doubtful
analogy. The most convenient mode therefore of treating the
EXISTING LAW AS BETWEEN STATES 595
present relations of neutral and belligerent states will be, after
clearing away a few cases of effete doctrine, to take the applica-
tions of the principles which have been laid down in the order
of their complexity. In the principles themselves there is never
any difficulty; the only question to be answered is, whether or
not they ought to be applied to a certain state of facts.
PART IV
CHAP. III
Although, since late in the eighteenth century, no nation has whether
given military assistance to an ally while professing to maintain
troops can
be fur-
neutrality, and although no government would probably now º
venture to conclude a treaty with that object, there are text treaty.
writers, recent or of existing authority, in whose works the
opinion lingers, that a treaty made before the outbreak of war
justifies the gift of such assistance and shelters the neutral from
the consequences of his act.
According to Manning, the custom is ‘directly at variance
with the true basis of neutrality, but it has now been established
by the habitual and concurrent practice of states, and is at the
present day an undisputed principle of the European law of
nations.” Kent and Wheaton are equally positive as to the
law and more blind as to the moral aspect of the case; and
the doctrine is reasserted in the more modern, work of
M. Bluntschli.”.
It is impossible to ignore the authority of these writers, but
they cite no later precedent than that of the Danish loan of
troops to Russia in 1788; it is even doubtful whether the facts
of that case are not more against than in favour of the conclusion
which they are brought to establish ; and no nation is now bound
by any like obligation. The usage is not therefore upheld by
continuing practice, and it is not in conformity with legal
principle, by which, or by practice, it could alone be rendered
authoritative. It is granted that the acts contemplated would,
apart from prior agreement, be a violation of neutrality as now
understood, and it is unnecessary to argue that a prior agreement
* Manning, p. 225; Kent, Comm. lect. vi.; Wheaton, Elem. pt. iv. chap. iii.
§ 5; Bluntschli, § 759. -
Q q 2.
596 EXISTING LAW AS BETWEEN STATES
!
PART IV in no way affects the character of acts with reference to a non-
CHAP. III & tº
consenting third party ".
Whether It is usually said that a loan of money to one of the bellige-
:* rent parties is a violation of neutrality ". That it is so, if made
indi- or guaranteed by the neutral state, is abundantly evident. But
viduals
are per- it is difficult to understand why modern writers repudiate analogy
missible. & * * >
and custom by condemning the negotiation of a loan by neutral
subjects under ordinary mercantile conditions. M. Bluntschli
says that the neutral state must abstain from making loans
for purposes of war, and adds that the rule is equally applic-
able to loans negotiated by private persons. Sir R. Phillimore
uses language not easily to be reconciled with his emphatic
assertions of the right of a neutral subject to trade. Calvo,
while agreeing that loans during war are illicit, will not admit
that the neutral government is able so to control the acts of
individuals in such matters as to be held responsible for their
consequences *. But outside the boards of works on International
Law a healthier rule is unquestioned. A modern belligerent no
more dreams of complaining because the markets of a neutral
nation are open to his enemy for the purchase of money, than
because they are open for the purchase of cotton. The reason is
obvious. Money is in theory and in fact an article of commerce
* The above view is taken by Phillimore, vol. iii. § cxxxviii.; Calvo, § 2322 ;
and Heffter, § 117.
* Formerly neutrals seem occasionally to have acted under the impression
that it is so, and the language of modern books may be founded upon the
unnecessary responsibilities which some states may have assumed. In
I795 “le comité du salut public, croyant que la paix conclue avec l’Espagne
lui donnerait plus de crédit a l’étranger, imagina de contracter un emprun &
pour mettre l’armée d’Italie en état de reprendre l'offensive, et le ministre
Villars fut autorisé a ouvrir des négociations dans Génes à ce sujet. Un
mois s'écoula dans l’attente des premiers versements; enfin le Sénat, se
retranchant derrière sa neutralité, refusa formellement son autorisation.”
Koch, Mém. de Masséna, i. 220. -
* Bluntschli ($ 768), Phillimore (iii. § clvii), Calvo (§ 2331). Wheaton,
Manning, De Martens, Klüber, Heffter, and Twiss make no mention of loans,
whether by the sovereign or by subjects. Kent merely says that ‘a loan of
money to one of the belligerent parties is considered to be a violation of
neutrality;” but it does not appear whether this language is intended to
include private as well as public loans. -
EXISTING LAW AS BETWEEN STATES 597
in the fullest sense of the word. To throw upon neutral govern- PART IV
ments the obligation of controlling dealingsin it taking place within “” “
their territories would be to set up a solitary exception to the funda-
mental rule that states are not responsible for the commercial
acts of their subjects. And not only would the existence of such
an exception be unwarranted by anything peculiar in the nature
of money, which is certainly not more noxious than munitions of
war, but it would burden states with a responsibility which they
would be wholly unable to meet. Money is a merchandise the
transmission of which would elude all supervision. Loans need
not be handed over in specie ; it is possible that payment might
be made in bills not one of which might enter the neutral country
in which the contract is made; and if it were attempted to stop
the practice by penalties, nothing would be more easy than for
the real lenders to conceal themselves behind names borrowed in
the country of the belligerent debtor. The true law on the
subject was laid down by Mr. Webster in 1842 with a decision,
and in language, which indicate how clear and invariable the
practice of nations is. “As to advances and loans,’ he says,
‘ made by individuals to the government of Texas or its citizens,
the Mexican government hardly needs to be informed that there
is nothing unlawful in this, so long as Texas is at peace with the
United States, and that these are things which no government
undertakes to restrain".”
The general principle that a mercantile act is not a violation of whether
a state neutrality, is pressed too far when it is made to cover the º: .#
sale of munitions or vessels of war by a state. Trade is not one Yºkº
º † g use by a
of the common functions of a government ; and an extraordinary neutral
* Mr. Webster to Mr. Thompson, Executive Documents, 27th Congress,
1841–2. The dictum of Lord Wynford in De Wütz v. Hendricks, on which
Sir R. Phillimore relies as expounding the view of the English courts, merely
expresses his opinion that it is ‘contrary to the law of nations for persons
residing in this country to enter into engagements by way of loan for the pur-
pose of supporting subjects of a foreign state in arms against a government in
alliance with our own.’ ix Moore, 586. During the Franco-German War
both the French Morgan Loan and part of the North German Confederation
Loan were issued in England.
598 EXISTING LAW AS BETWEEN STATES
PART IV motive must be supposed to stimulate an extraordinary act. The
CHAP. III
state is
permis-
sible.
Limits of
the duty
to pro-
hibit the
levy of
nation is exceptionally unfortunate which is forced to get rid of
surplus stores precisely at the moment when their purchase is
useful to a belligerent. In the year 1825, the Swedish govern-
ment, wishing to reduce its navy, offered six frigates for sale to
the government of Spain. The latter refused to buy, and three
of them were then sold to an English mercantile firm, who, as it
afterwards appeared, were probably acting on behalf of Mexico,
then in revolt against the mother country. In any case it be-
came known before the vessels were handed over that a further
sale had been or was about to be effected to the recognised
Mexican agent in England; and the Swedish government,
listening to the warmly expressed complaints of Spain, rescinded
the contract at some monetary loss to itself, notwithstanding
that the ships had been sold in ignorance of their ultimate
destination 4. During the war between France and Prussia, the
government of the United States seems to have taken an opposite
view of its duty”; but there can be no question that Sweden, in
yielding, chose the better part. The vendor of munitions of war
in large quantities during the existence of hostilities knows
perfectly well that the purchaser must intend them for the use of
one of the belligerents, and a neutral government is too strictly
bound to hold aloof from the quarrel to be allowed to seek
safety in the quibble that the precise destination of the articles
bought has not been disclosed.
The principle that it is incumbent on the neutral sovereign to
prohibit the levy of bodies of men within his dominions for the
service of a belligerent, which was gradually becoming authorita-
men with-tive during the eighteenth century, is now fully recognised as
in neutral
the foundation of a duty. And its application extends to isolated
territory.
* De Martens, Causes Célèbres, v. 229.
* A series of public sales of surplus guns, rifles, and other arms took place
at New York. Large quantities were bought by French agents, were taken
on board French ships direct from the arsenal at Governor’s Island, and
were paid for through the French consul. Mr. Thornton to Lord Granville,
State Papers, 1871, lxxi. 202. On the general question comp. Ortolan, ii. 182.
EXISTING LAW AS BETWEEN STATES 599
instances when the circumstances are such as to lead to serious PART IV
harm being done to a friendly nation. The acceptance of letters “
of marque by neutral subjects from a belligerent is now pro-
hibited by international common law, and is always forbidden by
the neutral sovereign ", although from several points of view the
act is unobjectionable. An individual may abandon his country
and take service with a foreign state; the foreign state is free to
accept his services. But in accepting a letter of marque he does
not cut himself off from his own state. It is able to lay hands
on him; and that ability is enough to fix it with responsibility.
On the other hand, a state is not expected to take precautions
against the commission of microscopic injuries”. The true limits
of neutral care as regards individuals were indicated in the
Proclamations of Neutrality issued by England in 1861, 1870
[and 1898]. At the outbreak of the American Civil War it
was thought possible that large numbers of English subjects
might engage in it, and an express prohibition of such service
was therefore inserted in the Proclamation. In that issued at .
the beginning of the war between France and Germany the
prohibition was omitted, it not being likely that any sufficient
number to justify government action would be found in the
ranks of either army “[but it appears again in the Proclamation
issued at the outbreak of war between Spain and the United
States]. As a matter of fact a few English served as officers in
both the German and French armies, without the neutrality of
Great Britain being in any way supposed to be compromised.
It is scarcely an exception from the general prohibition to
* E. g. see Proclamations of Neutrality issued by Austria, France, Italy,
Spain, and the Netherlands, Append. iv to Report of Neutrality Law
Commissioners, 1868; and the Spanish Proclamation of 1870, D’Angeberg,
No. 254. [See also the British Proclamation of Neutrality, during the war of
1898, between the United States and Spain. Hertslet’s Commercial Treaties,
vol. xxi. p. 826.] Formerly treaties with respect to letters of marque were
very common, for the last half century it has only been thought necessary to
make them with South American States; see antea, p. 264 n.
* Calvo, § 2321 ; Heffter, § I45.
* Hansard, 3rd Series, vol. cc.iii. Io98.
600 ExISTING LAW AS BETWEEN STATES
PART IV make levies in a neutral state that a belligerent ship entering
CHAP. III
a neutral port with a crew reduced from whatever cause to
a number less than that necessary to her safe navigation may
take on board a sufficient number of men to enable her to reach
a port of her own country. In doing this, and no more, she
does not become capable of being used as an engine of war, and
consequently does nothing which the neutral state is bound to
prevent as inconsistent with its neutrality. The matter of course
stands otherwise if the limits of bare necessity are passed.
During the eighteenth century it was an undisputed doctrine
that a neutral state might grant a passage through its territory
to a belligerent army, and that the concession formed no ground
of complaint on the part of the other belligerent. The earlier
writers of the last century, and Sir R. Phillimore more lately,
preserve this view, only so far modifying it as to insist with
greater strength that the privilege, if accorded, shall be offered
impartially to both belligerents". But the most recent authors
assert a contrary opinion *; no direct attempt has been made
since 1815 to take advantage of the asserted right ; and the
permission granted to the allies in that year to cross Switzerland
in order to invade France was extorted from the Federal Council
under circumstances which would in any case rob the precedent
of authority ". The same country in 1870 denied a passage to
bodies of Alsatians, enlisted for the French army, but travelling
without arms or uniforms “; and there can be no question that
existing opinion would imperatively forbid any renewed laxity of
conduct in this respect on the part of neutral countries. Passage
for the sole and obvious purpose of attack is clearly forbidden.
The grant of permission is an act done by the state with the
express object of furthering a warlike end, and is in its nature
Whether
a neutral
state may
permit a
belli-
gerent
force to
pass
through
its terri-
tory.
* De Martens, Précis, $ 31o ; Kent, lect. vi; Klüber, § 284; Manning,
p. 245 ; Wheaton, Elem. pt. iv. c. iii. § 8; Phillimore, iii. § cliii. Pando
(§ cxci) follows Wattel in saying that in cases of extreme necessity the belli-
gerent may effect his passage even against the will of the neutral.
* Heffter, š I.47 ; Bluntschli, $ 770 ; Calvo, § 2345; Negrin, p. 173.
* Wheaton, Elem. pt. iv. chap. iii. § 4. * Bluntschli, § 770.
EXISTING LAW AS BETWEEN STATES 601
an interference in the war. It is therefore a non-neutral act ;
and the only excuse which can be accepted for its performance
would be the impossible one that it is equally advantageous to,
and desired by, both belligerents at once.
A broad distinction is however to be drawn between a grant
of passage for a specific purpose in time of war, and a grant of
passage made in time of peace to enable a state to reach an out-
lying portion of its territory, or to enable it to reach its possession
with more ease than would otherwise be practicable. In the
former case the grant, as has been seen, is essentially un-neutral;
in the latter it is essentially colourless when made ; and if by
the occurrence of a war which happens to touch the outlying
territory its effects become injurious to one of the two belli-
gerents, the result is an accidental and possibly an unforeseen
one. It is difficult to separate the harmless use of the neutral
territory for mere garrison purposes from its use for belligerent
purposes; and if the former use has been habitual, and especially
PART IV
CHAP. III
if it has been secured by treaty, it probably could not be fairly
held that the neutral state is guilty of un-neutral conduct in
allowing the passage of troops during war. Its behaviour would
however require to be judged by the circumstances of the case;
a hard and fast line could scarcely be drawn; and while a rigid
limitation of the force permitted to pass to the amount of the
ordinary reliefs might be the equivalent of handing over the
detached territory to the enemy, the grant of passage to greatly
more than the usual numbers might be as definitely un-neutral
an act as a grant made solely for the purposes of the war".
* The simplification of the map of Europe which has been effected by the
formation of the German Empire has notably diminished the possible occa-
sions upon which the question of the permissibility of continued passage
could arise ; but at least in one case a right still exists, the use of which in
war time might possibly become a subject of dispute. [The railway from
Constance to Basle, which leads from the interior of Germany to the Rhine,
passes through the Canton Schaffhausen, and Germany has a right of mili-
tary passage over it. But by the opening of the line from Ulm to Basle, via
Sigmaringen, Tuttlingen, and Waldshut, which passes altogether clear of
Swiss territory, an alternative route has now been provided.]
602 EXISTING LAW AS BETWEEN STATES
PART IV
CHAP. III
Analogous
use of
neutral
territory.
With the passage of troops in an organised condition across
neutral territory, and as illustrating the advantages which a belli-
gerent might reap from such passage, may be mentioned an
ingenious attempt which was made by Germany in 1870 to use
Belgian territory, under a plea of humanity, to facilitate the
operations of war. After the battle of Sedan, the victorious
army was embarrassed by masses of wounded, whom it was
difficult to move into Germany by the routes which were open,
and whose support in France in part diverted the commissariat
from its normal function of feeding the active army. The
German government therefore applied to Belgium for leave to
transport the wounded across that country by railway. In
consequence of the strong protest of France, Belgium, after
consultation with the English government, rejected the applica-
tion. It is indeed difficult to see, apart from the grant of direct
aid or of permission to move a corps d’armée from the Rhine
Provinces into France, in what way Belgium could have more
distinctly abandoned her neutrality than by relieving the railway
from Nancy to the frontier from encumbrances, by enabling the
Germans to devote their transport solely to warlike uses, and by
freeing the commissariat from the burden of several thousand
men lodged in a place of difficult access. [But under article 59 of
the Hague Convention a neutral state may authorise the passage
through its territory of wounded or sick belonging to the belli-
FIostili-
ties com-
mitted
within
neutral
territory.
gerent armies, on condition that the trains bringing them shall
carry neither combatants nor war material.]
It has been already seen that the commission of hostilities
within neutral territory was the earliest subject of legal restraint.
Their prohibition was so necessary a consequence of the doctrine
of sovereignty, and is so undisputed a maxim of law, that it
would be superfluous to recur to the subject were it not that
aberrations in practice have been more common than in any
other matter connected with neutrality in which the rule is so
clear. In 1793 the French frigate Modeste was captured in the
harbour of Genoa by two English men of war; and it was neither
EXISTING LAW AS BETWEEN STATES 603
restored nor was any apology made for the violation of Genoese
neutrality". But in the same year the American government
acted upon this law by causing the restoration of the ship Grange,
seized in Delaware Bay; and the English Courts gave effect to it
by voiding a capture which took place within the mouths of the
Mississippi *. The principle upon which the closely allied act
of issuing from neutral ground for an immediately hostile end is
interdicted was laid down by Lord Stowell in a case in which an
English frigate lying within Prussian waters sent out its boats
to make captures among vessels anchored in the neighbouring
roads at the entrance of the Dollart.
PART IV
CHAP. III
Much the larger number of cases in which the conduct of Use of
neutral
a neutral forms the subject of complaint is when a belligerent ...y
uses the safety of neutral territory to prepare the means of º a belli-
erent as
ultimate hostility against his enemy, as by fitting out expeditions a base of
pera-
* tº & tº e e e e & O
in it against a distant objective point, or by rendering it a general tions.
base of operations. In many such cases the limits of permissible
action on the part of the belligerent, and of permissible indif-
ference on the part of the neutral, have not yet been settled.
Generally the neutral sovereignty is only violated constructively.
The acts done by the offending belligerent do not involve force,
and need not entail any interference with the supreme rights of
the state in which they are performed. They may be, and often
are, innocent as regards the neutral except in so far as they
endanger the quiescence of his attitude towards the injured belli-
gerent ; and their true quality may be, and often is, perceptible
only by their results.
At the root of this class of cases lies the principle that a neutral
state cannot allow its territory to become a scene of hostile
operations to the disadvantage of one of two belligerents. The
* Botta, Storia d’Italia, i. 161 and 192. See also the case already men-
tioned of the Swedish vessels seized at Oster Rigser (antea, p. 8o); that of the
General Armstrong in 1814 (postea, p. 624); and that of the Florida, captured
in Bahia Bay by the Wachusett in 1864 (id. p. 620).
* Mr. Jefferson’s letter to M. Ternant, Am. State Papers, i. 77 ; The Anna,
v Rob, 373. *
604 EXISTING LAW AS BETWEEN STATES
extension of this principle to acts of hostility taking their
commencement in neutral ground and leading to immediate
violence, which was made by Lord Stowell, is equally applicable
to acts the completion of which is more remote in point of time
or place, but which have been as fully prepared within the
neutral territory. All such acts must be offences against the
neutral on the part of the belligerent performing them ; and if
knowingly permitted by the neutral they are offences on his part
against the belligerent for whose injury they are intended.
Ordinarily their identification presents little difficulty. There
could be no question as to the nature of the filibustering expedi-
tions from the United States, of those which fed the Cretan
insurrection [of 1867], or of the Fenian incursions into Canada;
and there can be as little question that the conduct of the Greek
and American governments presented examples of grave devia-
tions from the spirit of the rule of neutrality and from the letter
of that which guides nations in time of general peace". In cases
of this kind the neutral country is brought under the common
military definition of a base of operations; it becomes the territory
‘ from which an army' or a naval force ‘draws its resources and
reinforcements, that from which it sets forth on an offensive
expedition, and in which it finds a refuge at need”.”
But there are some cases in which the question whether
a neutral territory is so converted by a belligerent into a base of
operations as to affect the neutral state with responsibility is not
so readily answered. An argument placed before the Tribunal
of Arbitration at Geneva on behalf of the United States, though
empty in the particular case to which it was applied, suggests
that the essential elements of the definition of a base possess
PART IV
CHAP. III
Special
mode in
which
cruisers
may make
Ineutral
ports
their
base of
Opera-
tions.
* [The landing of Colonel Vassos in Crete with a force of regular Greek
troops in February, 1897, falls within a different category. The expedition was
under the direct sanction of his government who were then on the brink of
war with Turkey, and though the Greek army did not cross the Thessalian
frontier till seven weeks later (April 8), the acceptance of responsibility for
the action of Vassos was tantamount to a declaration of war.]
* Jomini, Précis de l’Art de la Guerre, I* partie, chap. iii. art. 18.
EXISTING LAW AS BETWEEN STATES 605
a wider scope than is usually given to them. In 1865 the PART IV
Shenandoah, a Confederate cruiser, entered Melbourne in need CHAP. III
of repairs, provisions, and coal, and with a crew insufficient for
purposes of war. She was refitted and provisioned, and obtained
a supply of coal, which seems to have enabled her to commit
depredations in the neighbourhood of Cape Horn on whalers
belonging to the United States; her crew having been sur-
reptitiously recruited at the moment of her departure from
Port Philip. It was urged on the part of the government of
that country that ‘ the main operation of the naval warfare of
the Shenandoah having been accomplished by means of the
coaling ‘and other refitment,” Melbourne had been converted
into her base of operations. The argument was unsound because
continued use is above all things the crucial test of a base, both
as a matter of fact, and as fixing a neutral with responsibility
for acts in themselves innocent or ambiguous. A neutral has no
right to infer evil intent from a single innocent act performed
by a belligerent armed force; but if he finds that it is repeated
several times, and that it has always prepared the way for
warlike operations, he may fairly be expected to assume that
a like consequence is intended in all cases to follow, and he
ought therefore to prevent its being done within his territory.
If a belligerent vessel, belonging to a nation having no colonies,
carries on hostilities in the Pacific by provisioning in a neutral
port, and by returning again and again to it, or to other similar
ports, without "ever revisiting her own, the neutral country
practically becomes the seat of magazines of stores, which though
not warlike are necessary to the prolongation of the hostilities
waged by the vessel. She obtains as solid an advantage as
Russia in a war with France would derive from being allowed to
march her troops across Germany. She is enabled to reach her
enemy at a spot which would otherwise be unattainable.
That previously to the American Civil War neutral states
were not affected by liability for acts done by a belligerent to
a further point than that above indicated, there can be no
606 EXISTING LAW AS BETWEEN STATES
PART IV
CHAP. III
question ; but there is equally little question that opinion has
moved onwards since that time and the law can hardly be said
to have remained in its then state. Even during the American
Civil War ships of war were only permitted to be furnished with
so much coal in English ports as might be sufficient to take
them to the nearest port of their own country, and were not
allowed to receive a second supply in the same or any other port,
without special permission, until after the expiration of three
months from the date of receiving such coal. The regulations
of the United States in 1870 were similar ; no second supply
being permitted for three months unless the vessel requesting it
had put into a European port in the interval". There can be
little doubt that no neutral states would now venture to fall
below this measure of care ; and there can be as little doubt that
their conduct will be as right as it will be prudent. When
vessels were at the mercy of the winds it was not possible to
measure with accuracy the supplies which might be furnished to
them, and as blockades were seldom continuously effective, and
the nations which carried on distant naval operations were all
provided with colonies, questions could hardly spring from the
use of foreign possessions as a source of supplies. Under the
altered conditions of warfare matters are changed. When
supplies can be meted out in accordance with the necessities
of the case, to permit more to be obtained than can, in
a reasonably liberal sense of the word, be called necessary for
reaching a place of safety, is to provide the belligerent with
means of aggressive action; and consequently to violate the
essential principles of neutrality. * -
In the case of an expedition being organised in and starting
from neutral ground, a violation of neutrality may take place
without the men of whom it is composed being armed at the
What con-
stitutes an
expedi-
tion.
* Earl Russell to the Lords Commissioners of the Admiralty, January 31,
1862. State Papers, 1871, lxxi. I67. Among late writers, Ortolan (ii. 286),
Bluntschli (§ 773), and Heffter (§ 149) simply register the existing rule.
Calvo (§ 2371) expresses his approval of the English regulations.
|EXISTING LAW AS BETWEEN STATES 607
moment of leaving. In 1828, a body of troops in the service of PARTIV
Dona Maria, who had been driven out of Portugal, took refuge CHAP. III
in England. They remained for some time an organised body
under military officers. In the beginning of 1829 they embarked
in four vessels, nominally for Brazil, but in fact for Terceira, an
island belonging to Portugal. In order to avoid the arrest of
the expedition in England, the arms intended for it had been
sent as merchandise from a port other than that from which the
men started. The English government considered that as the
men were soldiers, although unarmed, they constituted a true
expedition, and a small squadron was placed in the neigh-
bourhood of Terceira to prevent a landing from being effected.
The vessels were stopped within Portuguese waters, and were
escorted back to Europe". The British government interfered
so thoroughly at the wrong time and in the wrong manner, that
in curing a breach of its own neutrality it was drawn into
violating the sovereignty of Portugal. But on the main point,
as to the character of the expedition, it was no less distinctly
right than in its methods it was wrong.
On the other hand, the uncombined elements of an expedition
may leave a neutral state in company with one another, provided
they are incapable of proximate combination into an organised
whole. In 1870, during the Franco-German War, nearly 1,200
Frenchmen embarked at New York in two French ships, the
Lafayette and the Ville de Paris, for the purpose of joining
the armies of their nation at home. They were not officered
or in any way organised; but the vessels were laden with
96,000 rifles and II,000,ooo cartridges. Mr. Fish was of
opinion that the ships could not be looked upon as intended to
be used for hostile purposes against Germany; the men not
being in an efficient state, and the arms and ammunition being in
themselves subjects of legitimate commerce”. There can be no
* Hansard, N. S. xxiii. 738–81, and xxiv. 126–214; Bulwer's Life of Lord
Palmerston, i. 301–2.
* Mr. Thornton to Lord Granville, Aug. 26, 1870; State Papers, 1871,
608 EXISTING LAW AS BETWEEN STATES
PART IV doubt that the view taken by the government of the United
” “ States was correct. It was impossible for the men and arms to
be so combined on board ship, or soon after their arrival in
France, as to be capable of offensive use. It would have been
a different matter if the men had previously received such
military training as would have rendered them fit for closely
proximate employment.
Expedi- It has been proposed to stretch the liability of a neutral
tions com-
bined
. of two independent acts done within his jurisdiction, each in
territory itself innocent, but intended by the persons doing them to form
from part of a combination having for its object the fitting out of
sovereign so as to make him responsible for the ultimate effect
elements
... a warlike expedition at some point outside the neutral state.
separately
from it. The argument upon which this proposal rests has been shortly
stated as follows: “ The intent covers all cases, and furnishes the
test. It must be immaterial where the combination is to take
place, whether here or elsewhere, if the acts done in our territory
—whether acts of building, fitting, arming, or of procuring
materials for those acts—be done as part of a plan by which
a vessel is to be sent out with intent that she shall be employed
to cruise ".”
In accordance with this view, it was contended on the part of
the United States before the Tribunal of Arbitration at Geneva
that the Alabama and Georgia, two vessels in the Confederate
service, were in effect ‘armed within British jurisdiction.” The
Alabama left Liverpool wholly unarmed on July 29, 1862, and
received her guns and ammunition at Terceira, partly from
a vessel which cleared a fortnight later from Liverpool for
Nassau in the Bahamas, and partly from another vessel which
started from London with a clearance for Demerara. In like
manner the Georgia cleared from Glasgow for China, and
lxxi. I28. [But in the recent case of Wiberg v. United States, 163 United
States Reports, p. 632, the Supreme Court took a stricter view of the proximate
combination into an expedition of men, arms and ammunition when conveyed
in the same ship to a common destination with a common object.]
* Dana, Notes to Wheaton, Elem. No. 215.
EXISTING LAW AS BETWEEN STATES 609
received her armament off the French coast from a vessel which
sailed from Newhaven in Sussex.
The intent of acts, innocent separately, but rendered by this
theory culpable when combined, can only by their nature be
proved when the persons guilty of them are no longer within
neutral jurisdiction. They cannot therefore be prevented by
the state which is saddled with responsibility for them ; and
this responsibility must mean either that the neutral state will
be held answerable in its own body for injury suffered by the
belligerent, in which case it will make amends for acts over
which it has had no control, or else that it is bound to exact
reparation from the offending belligerent, at the inevitable
risk of war.
If this doctrine were a legal consequence of the accepted
principles of international law it might be a question whether it
would not be wise to refuse operation to it on the ground of
undue oppressiveness to the neutral. But no such difficulty
arises; for, as responsibility is the correlative of power, if a
nation is to be responsible for innocent acts which become noxious
by combination in a place outside its boundaries, it must be
enabled to follow their authors to the place where the character
of the acts becomes evident, and to exercise the functions of
sovereignty there. But even on the high seas it is not per-
missible for a non-belligerent state to assume control over persons
other than pirates or persons on board its own ships; and within
foreign territory it has no power of action whatever.
The true theory is that the neutral sovereign has only to do
PART IV
CIH.A.P. Ill I
Limits of
neutral
with such overt acts as are performed within his own territory, ...i.
and to them he can only apply the test of their immediate
quality. If these are such in themselves as to violate neutrality
or to raise a violent presumption of fraud, he steps in to prevent
their consequences; but if they are presumably innocent, he is
not justified in interfering with them. If a vessel in other
respects perfectly ready for immediate warfare is about to sail
with a crew insufficient for fighting purposes, the neutral
HALL. B, I’
bility.
610 EXISTING LAW AS BETWEEN STATES
PART IV
CHAP. III
Equip-
ment of
vessels
of war in
neutral
territory.
When, on
general
principles
of Inter-
national
Law,
(I) a
breach of
neutrality
IS COIO-
mitted,
sovereign may reasonably believe that it is intended secretly to
fill up the complement just outside his waters. Any such
completion involves a fraudulent use of his territory, and an
expectation that it is intended gives him the right of taking
precautions to prevent it. But no fraudulent use takes place
when a belligerent in effect says: I will not compromise your
neutrality, I will make a voyage of a hundred miles in a helpless
state, I will take my chance of meeting my enemy during that
time, and I will organise my expedition when I am so far off
that the use of your territory is no longer the condition of its
being.
It is somewhat difficult to determine under what obligations
a neutral state lies with respect to vessels of war and vessels
capable of being used for warlike purposes, equipped by or for
a belligerent within its dominions.
I. Is the mere construction and fitting out, in such manner
that they shall be capable of being used by him for warlike
purposes, an international offence P or,
2. Is such construction to be looked upon as an act of
legitimate trade; and is it necessary, to constitute an inter-
national offence, that some further act shall be done, so as to
make such vessels elements in an expedition ?
The direct logical conclusions to be obtained from the ground
principles of neutrality go no further than to prohibit the issue
from neutral waters of a vessel provided with a belligerent
commission, or belonging to a belligerent and able to inflict
damage on his enemy. A commission is conclusive evidence as
to the fact of hostile intent; and in order to satisfy the alterna-
tive condition it is not necessary that the ship shall be fully
armed or fully manned. A vessel intended to mount four guns
and to carry a crew of two hundred men would be to an unarmed
vessel sufficiently formidable with a single gun and half its
complement of seamen. But to possess any force at all, it must
possess a modicum of armament, and it must have a crew
sufficient at the same time to use that armament and to handle
EXISTING LAW AS BETWEEN STATES 611
the ship. If then the vessel seems at the moment of leaving the PART IV
neutral port to fulfil these conditions, the neutral must, judging “"
from the facts, infer a hostile intent, and prevent the departure
of the expedition.
On the other hand, it is fully recognised that a vessel *
completely armed, and in every respect fitted the moment it vessel is
receives its crew to act as a man of war, is a proper subject of .
commerce. There is nothing to prevent its neutral possessor from º Of
selling it, and undertaking to deliver it to the belligerent either
in the neutral port or in that of the purchaser, subject to the
right of the other belligerent to seize it as contraband if he
meets it on the high seas or within his enemy’s waters. ‘There
is nothing,’ says Mr. Justice Story, ‘in the law of nations that
forbids our citizens from sending armed vessels as well as
munitions of war to foreign ports for sale. It is a commercial
adventure which no nation is bound to prohibit '.' If the neutral
may sell his vessel when built, he may build it to order; and it
must be permissible, as between the belligerent and the neutral
state, to give the Order which it is permissible to execute. It
would appear therefore, arguing from general principles alone,
that a vessel of war may be built, armed, and furnished with
a minimum navigating crew, and that in this state, provided it
has not received a commission, it may clear from a neutral
harbour on a confessed voyage to a belligerent port without any
infraction of neutrality having been committed.
The question remains, Is there a special usage with respect to Effect of
the building and fitting out of ships which abridges the common “”
law privileges of neutrals P
It has been already mentioned that in 1779 the neutrality
edicts of various minor Italian States rendered it penal to sell,
build, or arm privateers or vessels of war for any of the
then belligerents; and a like provision occurs in the Austrian
ordinances of 18o3 °.
* La Santissima Trinidad, vii Wheaton, 34o.
* Antea, p. 590 ; De Martens, Rec. viii. Ioë.
R. I. 2.
612 EXISTING LAW AS BETWEEN STATES
In 1793 the instructions issued to the collectors of customs
of the United States professed, according to an accompanying
memorandum, to mark out the boundaries of neutral duty as
then understood by the American government. And though
Washington, in a speech to Congress *, took the narrower ground
that in the then posture of affairs he had resolved to ‘adopt
general rules which should conform to the treaties and assert the
privileges of the United States, the wider language of the
memorandum should probably be preferred. The first paragraph
declares ‘ that the original arming and equipping of vessels in
the ports of the United States by any of the belligerent parties
for military service, offensive or defensive, is deemed unlawful; ”
and the seventh adds that “equipments of vessels in the ports of
the United States which are of a nature solely adapted to war
are deemed unlawful”.’ These regulations, besides forbidding
the original arming and equipping of vessels by a belligerent,
prohibit the reception of any warlike equipment by vessels
already belonging to him; but they do not specify as illegal the
building and arming of a vessel intended to be delivered outside
neutral territory, but not belonging to a belligerent at the
moment of exit, although built to his order. The Neutrality
Act of the United States went further, and made it penal to fit
out and arm or procure to be fitted out and armed, &c., any ship
or vessel with intent that such ship or vessel shall be employed
in the service of any foreign state to cruise or commit hostilities
against the subjects, &c., of another state with which the United
States shall be at peace “. For some time the policy of the
PART IV
CHAP. III
Practice
of the
|United
States.
Relation of
* Dec. 3, 1793.
* The word ‘original not being repeated, either the first paragraph be-
comes mere surplusage, or the equipment forbidden in the seventh para-
graph must be read as equipment other than original.
* Act of 1795, sect. 3. In this instance indications external to the Act
municipal lead to the belief that it was intended to give effect to what was believed
laws to
inter-
national
duty.
to be the duty of a neutral state ; but it must be remembered that it is ,
generally unsafe to use municipal laws to define the view of international
duty taken by a nation. It may be more convenient to discourage the
inception of acts, which would only in the later stage become international
wrongs, than to deal with them when ripe; and it was never pretended
EXISTING LAW AS BETWEEN STATES 613
United States was in strict accordance with their municipal PART IV
law; and subsequently they have at least expected the conduct “”
of other nations to be in conformity with its requirements; it
must therefore be supposed to continue to embody what are to
their view international duties.
England has also retained a Foreign Enlistment Act for many of Eng-
years upon her Statute Book, and she has strengthened its land.
provisions after full warning of the manner in which municipal
laws may be employed to damnify the position of a nation in
international controversy.
Finally, Great Britain and the United States have agreed that
they will for the future use due diligence to prevent the fitting
out, arming, or equipping within the jurisdiction of the con-
tracting power of any vessel which it has reasonable ground to
believe is intended to cruise or to carry on war against a power
with which it is at peace; and also to use like diligence to
prevent the departure from its jurisdiction of any vessel intended
that a nation lies under an international obligation to give effect to its
municipal regulations, until the United States suggested the doctrine for
a special object to the arbitrators at Geneva. For reasons of humanity
England chose to go beyond the line of duty towards persons not her own
subjects in keeping up a squadron on the coast of Africa for the suppression
of slavery. It would be as reasonable to say that she contracted an inter-
national obligation to continue the maintenance of this squadron, as to
declare that a country is bound by a municipal law which is in advance
of what can be required of it by international usage. -
There are only two ways—both of them indirect—in which municipal
laws can produce an international effect. After a law has been administered
for some time by the courts of a state, it either insensibly becomes to the
majority of the people their standard of right, or it arouses in them pro-
nounced dislike. In the latter case a law dealing with such matters as
international relations will fall into desuetude or be repealed. In the
former a tendency will in time grow up to act according to its provisions
irrespectively of the obligations which it imposes. So long also as the law
is administered at all, foreign nations will each expect to reap the full
benefit which has accrued to another from its operation ; and any failure
On the part of the neutral government to make use of its powers gives
a ground for suspecting unfriendliness, which the belligerent cannot be
expected in the heat of war to estimate at its true value. It is therefore
unwise for a people to enact or to retain neutrality laws more severe than
it believes the measure of its duty to compel.
614 EXISTING LAW AS BETWEEN STATES
PART IV to cruise or carry on war as above, such vessel having been
CHAP. III
specially adapted, in whole or in part, within such jurisdiction,
to warlike use ".” As the respective governments of the two
countries are not agreed qn the true meaning of this language,
it is useless to speculate as to the effect which might be given to
the provisions of the Treaty of Washington during any future
war in which either Great Britain or the United States is a
belligerent, the other of the two being neutral.
In France no special law exists forbidding the construction or
outfit of vessels of war, but all persons exposing the state to
reprisals or to a declaration of war are liable to punishment
under the Penal Code, which leaves the state to accommodate
its rules to international law existing for the time being *; and
in 1861, on the outbreak of the American Civil War, a Pro-
clamation of Neutrality was issued, referring to the appropriate
articles of the Code, and prohibiting all French subjects from
‘assisting in any way the equipment or armament of a vessel of
war or privateer of either of the two parties.” Under this
proclamation six vessels which were in course of construction in
French ports for the Confederate States were arrested.
In 1864 the Danish War gave occasion to Italy for the
adoption of a like rule; and in 1866 the government of the
Netherlands for the first time * undertook to see that the
equipment of vessels of war intended for the belligerent parties
should not take place in the ports of the Netherlands’.” The
codes of Austria, Spain, Portugal, and Denmark prohibit any
one from procuring arms, vessels, or munitions of war for the
service of a foreign power *. The intention may have been to
prevent the issue of privateers, but the language would no doubt
Of France.
Of other
nations.
* Treaty of Washington, art. vi.; De Martens, Nouv. Rec. Gén. xx. 702.
* Code Pénal, arts. 84 and 85. For a summary of the municipal laws of
France affecting enlistments and expeditions, see letters of M. de Moustier to
Mr. Fane, Neut. Laws Commissioners' Rep., Append. iv. p. 46.
* Note of M. Zuylen de Nyevelt to Mr. Ward, 1867. For this and the
whole continental practice in the matter, see Neut. Laws Commissioners'
Rep., Append. iv. -
* Rev. de Droit Int. vi. 502.
EXISTING LAW AS BETWEEN STATES 615
restrain the construction of vessels for belligerent use. No PART IV
nation except England and the United States has gone further “”
than to prohibit the armament of a vessel fitted solely for
fighting purposes.
A comparison of international custom with the logical results Conclu-
of the unquestioned principles of neutrality seems then to lead ...”
to these conclusions. law.
I. That an international usage prohibiting the construction
and outfit of vessels of war, in the strict sense of the term, is in
course of growth, but that although it is adopted by the most
important maritime powers, it is not yet old enough or quite
wide enough to have become compulsory on those nations which
have not yet signified their voluntary adherence to it.
2. That in the meantime a ship of war may be built and
armed to the order of a belligerent, and delivered to him outside
neutral territory ready to receive a fighting crew; or it may be
delivered to him within such territory, and may issue as belli-
gerent property, if it is neither commissioned nor so manned as
to be able to commit immediate hostilities, and if there is not
good reason to believe that an intention exists of making such
fraudulent use of the neutral territory as has been before
indicated.
That the usage which is in course of growth extends the duties
of a neutral state into new ground is plain; but it does not follow
that the extension is either unhealthy or unnecessary. Though
an armed ship does not differ in its nature from other articles
merely contraband of war, it does differ from all in the degree in
which it approaches to a completed means of attacking an enemy.
The addition of a few trained men to its equipage, and of as
much ammunition as can be carried in a small coasting vessel,
adapts it for immediate use as part of an organised whole of
which it is the most important element. The same cannot be
said of any other article of contraband. It is neither to be
expected nor wished that belligerent nations should be patient
of the injury which would be inflicted upon them by the
616 EXISTING LAW AS BETWEEN STATES
PART IV
CHAP. III
Within
what
limits
equip-
ment of
vessels
should be
forbidden.
supply of armed vessels to their enemies as mere contraband
of war.
But it is much to be hoped that the rule will not retain the
indefiniteness which attaches to it in its present inchoate form.
In planting their doctrine upon the foundation of the intent of
the neutral trader, or of the agent of the offending belligerent in
the neutral country, instead of upon the character of the ship
itself, jurists appear hardly to have realised how unimportant is the
advantage which is given to the injured belligerent in comparison
with the grave evils of an indefinite increase in the number of
international controversies. Experts are perfectly able to distin-
guish vessels built primarily for warlike use; there would therefore
be little practical difficulty in preventing their exit from neutral
ports, and there is no reason for relieving a neutral government
from a duty which it can easily perform. But it is otherwise
with many vessels primarily fitted for commerce. Perhaps few
'fast ships are altogether incapable of being so used as to inflict
damage upon trade; and there is at least one class of vessels
which on the principles urged by the government of the United
States in the case of the Georgia might fix a neutral state with
international responsibility in spite of the exercise by it of the
utmost vigilance. Mail steamers of large size are fitted by their
strength and build to receive, without much special adaptation,
one or two guns of sufficient calibre to render the ships carrying
them dangerous cruisers against merchantmen. These vessels,
though of distinct character in their more marked forms, melt
insensibly into other types, and it would be impossible to lay
down a rule under which they could be prevented from being
sold to a belligerent and transformed into constituent parts of an
expedition immediately outside neutral waters without paralysing
the whole ship-building and ship-selling trade of the neutral
country".
* In 1875, the Institute of International Law adopted a series of resolu-
tions with respect to the duties of neutrals, founded upon the three rules of
the Treaty of Washington. In these it was declared that ‘l’Etat neutre est
EXISTING LAW AS BETWEEN STATES 617
The jurisdiction of a sovereign being exclusive, upon him PARTIV
tº © e CHAP. III
necessarily depends the liberty of the person and the ownership E.
of property within his dominions. If any one is retained in neutral
Vé-
tº e e tº gº * , SO &
captivity there, he is identified with the act; and therefore, as reignty
it has always been held, with obvious reason, that it is a con: ..., d
tinuation of hostilities to bring prisoners of war into neutral persons,
territory, its sovereign cannot allow subjects of a state with
which he is in amity to remain deprived of their freedom in
places under his control. If they touch his soil they cease to
be prisoners". An exception from this general rule is made in
the case of prisoners on board a commissioned ship of a belligerent
power, since the act of retaining them in custody falls under
the head of acts beginning and ending on board the ship, and
not taking effect externally to her, and is therefore one in
respect of which a ship of war, under its established privileges,
is independent of the jurisdiction of a foreign state within the
waters of which it may be *.
tenu de veiller a ce que d’autres personnes (than its own agents) ne mettent
des vaisseaux de guerre à la disposition d’aucun des États belligerants dans
ses ports ou dans les parties de mer qui dépendent de Sa juridiction. Lors-
que l'Etat neutre a connaissance d’entreprises ou d’actes de ce genre,
incompatibles avec la neutralité, il est tenu de prendre les mesures néces-
Saires pour les empêcher, et de poursuivre comme responsables les individus
gui violent les devoirs de la neutralité.” Annuaire de l’Inst. de Droit Int.
I877, p. I29.
* Wattel, liv. iii. chap. vii. § 132; Ilord Stowell, in The Twee Gebroeders,
iii Rob. 165; Bluntschli, § 785. In 1588 several hundred Turkish and
Barbary captives escaped from one of the galleys of the Spanish Armada
which was wrecked near Calais. They were claimed by the ambassador of
Spain, but the council of the king decided that in touching the shores of
France they had regained their liberty, and they were sent to Constanti-
nople. Martin, Hist. de France, x. 93. The Neutrality Ordinance of Austria
of 1803 says: “Il ne sera pas permis aux Puissances belligerantes de mettre
a terre dans nos ports, etc., aucun individu comme prisonnier de guerre :
car aussitót que de tels prisonniers auraient misle pied sur le territoire d'un
souverain neutre ou ami de leur gouvernement ils devront étre regardés
comme libres, et toutes les autorités civiles et militaires leur devront, sous
ce rapport, protection et assistance.” De Martens, Rec. viii. III ; and the
Neutrality Edict of Venice, I779, art. xx, ib. iii. 84.
* See antea, p. 194. The principle is applicable to privateers, L’Invincible,
i Wheaton, 252 ; and according to Hautefeuille (tit. vi. chap. ii. Sect. 3) and
618 EXISTING LAW AS BETWEEN STATES
PART IV
CHAP. III
2. pro-
perty.
It is not easy to see why property should not be subject to
the principle which governs the treatment of persons. It is in
fact admitted in the case of that which has come into the pos-
session of a belligerent by way of booty, if the requirement of
deposit in a safe place of possession during twenty-four hours
has not been satisfied before neutral territory is entered". But
the practice with respect to property taken at sea has till lately
been anomalous. The right of the captor to that which un-
questionably belongs to his enemy is no doubt complete as be-
tween him and his enemy so soon as seizure has been effected;
but as between him and a neutral state, as has been already seen *,
further evidence of definitive appropriation is required, and his
right to the property of a neutral trader seized, for example, as
being contraband goods or for breach of blockade, is only com-
plete after judgment is given by a prize court. If therefore
the belligerent carries his prize into neutral waters, without
deposit in a safe place or possession during twenty-four hours in
the case of hostile property, or without protection from the judg-
ment of a prize court in the case of neutral property, he brings
there property which does not yet belong to him ; in other words,
he continues the act of war through which it has come into his
power. Indirectly also he is militarily strengthened by his use of
the neutral territory; he deposits an encumbrance, and by
recovering the prize crew becomes free to act with his whole
force. Nevertheless, although the neutral may permit or forbid
the entry of prizes as he thinks best, the belligerent is held, until
express prohibition, to have the privilege not only of placing his
prizes within the security of a neutral harbour, but of keeping
them there while the suit for their condemnation is being pro-
secuted in the appropriate court ". Most writers think that he
Calvo (§§ II32–3) it so far extends to prizes that prisoners may be retained on
board of them. - *
* Vattel, liv. iii. ch. vii. § 132.
* Antea, pp. 453 et seq.
* “An attentive review of all the cases decided in the courts of England
and the North American United States during the last war (1793–1815) leads
EXISTING LAW AS BETWEEN STATES 619
is also justified by usage in selling them at the neutral port after PART IV
condemnation; and, as they then undoubtedly belong to him, it “"
is hard to see on what ground he can be prohibited from dealing
with his own ". But it is now usual for the neutral state to
restrain belligerents from bringing their prizes into its harbours,
except in cases of danger or of want of provisions, and then for
as short a time as the circumstances of the case will allow ; and
it is impossible not to feel an ardent wish that a practice at once
wholesome and consistent with principle may speedily be trans-
formed into a duty”.
It follows from the fact of a violation of the sovereignty of Duty of
º gº & & tº e a neutral
a nation being an international wrong, that the injured country tºº,
e tº tº tº a tº procure re-
has the right of demanding redress; and the obligation under dress for
which a neutral state lies to prevent infraction of its neutrality º:
ſº & f * > g . ClOne UO
would seem to bring with it the duty of enforcing such redress in a beiii.
gerent
all cases in which the state would act if its own dignity and within its
interests were alone affected. Its duty cannot be less than this, territory.
because quiescence under any act, which apart from the interests
of the belligerent would not be permitted, is the concession of
a special favour to his enemy; and it cannot be more, because no
to the conclusion that the condemnation of a capture by a regular prize
court, sitting in the country of the belligerent, of a prize lying at the time
of the sentence in a neutral port, is irregular, but clearly valid.’ This is
also the law in France. Phillimore, iii. § ccclxxix.
. . * Ortolan, Dip. de la Mer, ii. 303, 306, 3Io. He grounds the admission
of prizes into a neutral port on the primá facie evidence of property which is
afforded by the belligerent flag.
Kent, Comm. lect. vi; Manning, 387; Wheaton, Elem. pt. iv. ch. iii. § 13;
Heffter, § 147.
Bluntschli (§§ 777 and 857) appears to agree with the above writers as to
the existing law, but to think, as is unquestionably the fact, that it is in
course of being changed.
Phillimore (iii. § cxxxix) seems to look upon a treaty made before out-
break of war as needed to make the reception of prizes a strictly legitimate
act.
* Denmark laid down the rule for her guidance so long ago as 1823, and
England, France, the United States, Prussia, Italy, Sweden, Holland, Spain,
Portugal, and the Hanseatic Towns gradually acceded, to it. Some admit
prizes taken by public ships of war, while excluding those captured by
privateers; but all forbid their sale. Neut. Ilaws Commissioners' Report,
Append. iv.; Calvo, $ 2379.
620 EXISTING LAW AS BETWEEN STATES
one has a right to expect another to incur greater inconvenience
or peril for him in their common quarrel than a man actuated by
the ordinary motives would undergo on his own account. A state
is supposed not to allow open violations of its territory to take place
without exacting reparation; it is therefore expected to demand
such reparation in the interest of the belligerent who may have
received injury at the hands of his enemy within the neutral
jurisdiction. And, as, from the exclusive force of the will of a
sovereign state, all acts contrary to it done within the territory
of the state are void, the redress which it is usual to enforce
consists in a replacement in its anterior condition, so far as may
be possible, of anything affected by the wrongful act. Thus,
when in 1864 the Confederate cruiser Florida was seized in the
harbour of Bahia by the United States steamer Wachusett, the
Brazilian Government immediately demanded reparation from
the Cabinet at Washington. The latter was unable to restore
the vessel, which had foundered in Hampton Roads, but it
surrendered the crew, and offered a more special satisfaction for
the affront to Brazilian sovereignty by saluting the flag of the
Empire at the spot where the offence had been committed, by
dismissing the consul at Bahia, and by sending the captain of
the Wachusett before a court-martial. Again, in 1863, the Chesa-
peake, a passenger boat plying between New York and Portland,
was captured on its voyage by a small number of Confederate
partisans, who had embarked at New York. She was pursued
by an armed vessel belonging to the United States, which found
her and seized her in British waters. Two men only were on
board, the rest of the captors having deserted her, but a third
prisoner was taken out of an English ship lying alongside. The
United States surrendered the vessel and the men, and made an
apology for the violation of territory of which its officers had
been guilty".
If an occasion offers, the neutral sovereign will take upon him-
self to undo the wrongful act of the belligerent. When property
PART TV
CHAP. III
Practice
in the
matter.
When pro-
perty cap-
tured in
* Dana's Wheaton, note, Nos. 207 and 209, gives the cases in detail.
EXISTING LAW AS BETWEEN STATES 621
is captured in violation of neutrality, whether actually within PART IV
the neutral territory, or by a vessel fitted out in a neutral port, it will char. In
g e e & ºn tº g º & violation
be seized on entering the neutral jurisdiction, and will be restored of neu-
tº & © tº trality I'ê-
- I .
to its original owner"; and as a state possesses a right of pur- i.
suing vessels into the open sea and arresting them there for i. neu-
- ral juris-
* Wheaton, Elem. pt. iv. chap. iii. § 12 ; Pando, tit. iii. sect. vii. § 192 ; diction.
Hautefeuille, tit. vi. sect. ii. and tit. xiii. sect. i. § 2; Ortolan, Dip. de la
Mer, ii. 298; Phillimore iii. §§ clvii-viii, cccKxvii, and ccclxxii. Calvo
(§ 2843) limits the right of the neutral sovereign to cases of capture within
Lº his jurisdiction. --
º “When a captured vessel is brought, or voluntarily comes infra praesidia Mode in
of the neutral power, that power has the right to inquire whether its own which
| neutrality has been violated by the capture, and if so it is bound to restore restitution
the property.” La Estrella, iv. Wheaton, 298. See also La Amistad de is effected.
; Rues, v Wheaton, 385; Talbot v. Janson, iii Dallas, 157; and The Betsey
f \ Cathcart, Bee. 292.
Y. Properly, whatever the municipal means employed, restoration ought in
all cases to be effected, so far as the surrender to the belligerent is con-
Cerned, by an immediate act of the state. The wrong being solely inter-
national, all its consequences are international also ; and in most countries
restoration may be made either by the state administratively, or by its
courts judicially. Calvo, $ 2363; Hautefeuille, ubi sup. But the advantage,
when the property of individuals is involved, of a judicial investigation of
Aſ evidence, generally throws such cases into the lap of the courts. When
ºf restoration is craved on the ground of capture within the neutral territory,
| the belligerent government is expected itself to prosecute the suit—the
| individual owner will not be heard ; and even a consul is not clothed with
sufficient representative character to appear on behalf of his state. Note
to The Twee Gebroeders, iii Rob. 162 ; La Santissima Trinidad, vii Wheaton,
sº 341 ; The Anne, iii Wheaton, 446. The latter part of the rule is undoubtedly
“) logical. ‘Capture in neutral waters as between enemies is deemed to all
intents and purposes rightful. If the neutral sovereign omits or declines
to put in a claim, the property is condemned jure belli to the captors.’ The
Anne, iii Wheaton, 447 ; and see Bluntschli, § 786. But when the capture.
has been the result of a remoter breach of neutrality on the part of the
offending belligerent, as by making neutral territory a base of operations,
the private owner is allowed to claim in the courts of the United States.
Justice Story, speaking in 1822, said: ‘If the question were entirely new
it would deserve very grave consideration whether a claim founded on
a violation of our neutral jurisdiction could be asserted by private persons,
or in any other manner than by a direct interposition of the government
itself. But the practice from the beginning of this class of cases, a period
of nearly thirty years, has been uniformly the other way, and it is now too
late to disturb it.” La Santissima Trinidad, vii Wheaton, 349. If the
captured property has been carried into the jurisdiction of the belligerent
whose subjects are the wrongdoers, his courts will do justice to the neutral
State on application being made by it to them. Twee Gebroeders, ubi sup. ;
622 EXISTING LAW AS BETWEEN STATES
PART IV
CHAP. III
When it
so returns
after hav-
ing been
infra prae-
sidia of
the captor.
When it is
a vessel
which has
been con-
verted
into a
commis-
sioned
ship of
Wà,] .
infractions of its municipal laws, directed only against itself, it
must be held competent to give effect by like action to its neutral
duties 1.
According to Wheaton it is doubtful whether the neutral will
restore property which has been once carried infra praesidia of
the captor's country, and there regularly condemned in a com-
petent court of prize; but Ortolan justly urges that as the
sovereign rights of a nation cannot be touched by the decision
of a foreign tribunal, the consequences of such a decision cannot
be binding upon it”; and it may be put still more generally
that nothing performed mero motu by a wrong-doer in confirma-
tion of his own wrongful act can affect the rights of others.
The case however stands differently when the captured pro-
perty is a ship which, before returning to the neutral port,
has been furnished with a commission from the captor’s sovereign.
The Admiralty courts of the neutral may enquire whether the
vessel is in fact commissioned *; but so soon as it is proved to be
invested with a public character, though the right of the neutral
state to expect redress for the violation of its sovereignty remains
La Nostra Señora del Carmel contre la Vénus de Médicis; Pistoye et Du-
verdy, Traité des Prises Maritimes, i. Ioë ; Ortolan, ii. 298.
The practice is everywhere more or less erroneous theoretically. There
can be no doubt that it is the government within whose territory the
wrong has been done which ought to call into action its own courts in all
instances in which the prize comes within its jurisdiction; and that the
neutral state, when the property has been carried into the dominions of
the belligerent, should confine itself to international means for obtaining
restitution.
* Comp. antea, p. 256. The Courts of the United States have decided to
the above effect; Hudson v. Guestier, vi Cranch, 284, overruling Rose v.
Himely, iv Cranch, 279. These cases only involved breaches of municipal
regulations; but they are generally held to admit of a wider application.
* Wheaton, Elem. pt. iv. chap. iii. § 13; Ortolan, Dip. de la Mer, ii. 312.
An incidental remark of Justice Johnson, made while giving a decision in
the Supreme Court of the United States, supports, and perhaps was the
source of, Wheaton’s opinion. The Arrogante Barcelones, vii. Wheaton,
519. It has also been said that “The sentence of a court of admiralty or of
appeal in questions of prize binds all the world as to everything contained
in it, because all the world are parties to it.” Penhallow v. Doane’s Executors,
iii Dallas, 86. -
* L'Invincible, i Wheaton, 254.
EXISTING LAW AS BETWEEN STATES 623
unaltered, its own right to apply the remedy is gone. The vessel PART TV
has become invested with the immunities belonging to public CHAP. III
ships of a state. Its seizure would therefore be an act of war,
and the neutral can only apply for satisfaction to the offending
belligerent *.
But though, if a vessel so commissioned is admitted at all Exclusion
within the ports of the neutral, it must be accorded the full Hºm
privileges attached to its public character, there is no inter- º
national usage which dictates that ships of war shall be allowed
to enter foreign ports, except in cases of imminent danger or
urgent need. It is fully recognised that a state may either
refuse such admission altogether, or may limit the enjoyment of
the privilege by whatever regulations it may choose to lay down".
It is therefore eminently to be wished that a practice may be
established under which a neutral government shall notify at
the commencement of a war, that all vessels mixed up in certain
specified ways, whether as agents or as objects, with an in-
* It was contended on behalf of the United States before the Tribunal of
Arbitration of Geneva, that Great Britain had a right to seize vessels fitted
out in violation of her neutrality on entry into her ports after receipt of
a commission. State Papers, North America, 1872, Case of the United
States, p. 55, Argument of the United States, p. 113. The argument seems
to rest on the assumptions, I. That the privileges accorded to foreign public
vessels are revocable at will ; 2. That a belligerent people not recognised as
a nation does not possess the same belligerent privileges as a recognised
state. Neither assumption can be admitted for a moment to be correct. It
is unfortunate that the arbitrators, with the exception of Sir A. Cockburn,
committed themselves to the statement that “the privilege of exterritoriality
accorded to vessels of war has been admitted into the Law of Nations, not
as an absolute right, but solely as a proceeding founded on the principle of
courtesy and mutual deference between different nations, and therefore can
never be appealed to for the protection of acts done in violation of neutrality.”
Whatever sources the immunities of vessels of war may have originally
sprung from—and, as has been seen (antea, p. 169), courtesy was no doubt
one, though not the only one—there is no question that those immunities
cannot now be refused at will. For the extent of the immunities of vessels
of war see antea, p. I94.
* “Siendo el asilo un derecho y no un deber para la Potencia neutra, claro
está que puede negarlo 6 concederlo, y en este ältimo caso imponer a los
buques admitidos todas las restricciones que estime convenientes à su Seguri-
dad 6 Å SuS intereses.” Negrin, p. I79.
624 EXISTING LAW AS BETWEEN STATES
fringement of its neutrality, will be excluded from its ports.
The rules established by the Empire of Brazil during the
American Civil War adopted this precaution, though in
dangerously vague language, by directing that no belligerent
who had once violated the neutrality of the Empire should be
admitted to its ports during the continuance of hostilities, and
that all vessels attempting acts tending to such violation should
be compelled to leave its maritime territory immediately,
without receiving any supplies".
No practice as yet exists with respect to the exaction by
the neutral sovereign of reparation for acts done outside his
jurisdiction, but flowing from a violation of his neutrality, when
neither the captured property nor the peccant vessel return to
his territory. *
A belligerent who, when attacked in neutral territory, elects
to defend himself, instead of trusting for protection or redress to
his host, by his own violation of sovereignty frees the neutral
from responsibility. -
In 1814 an American privateer, the General Armstrong,
was found at anchor in Fayal harbour by an English squadron.
A boat detachment from the latter approached the privateer and
was fired upon. The next day one of the vessels of the squadron
took up position near the General Armstrong to attack her.
The crew, not finding themselves able to resist, abandoned and
destroyed her. The United States alleged that the Portuguese
governor had failed in his duty as a neutral, and demanded
a large compensation for the owners of the privateer. After
much correspondence the affair was submitted in 1851 to the
arbitration of the President of the French Republic, who held
that as Captain Reid, of the privateer, ‘had not applied at the
beginning to the neutral, but had used force to repel an improper
* State Papers, North America, 1873; Protocols, &c., 202. Mr. Bernard,
however, shows that such a practice would not be unattended with incon-
venience. Neutrality of Great Britain, 414. [And no such provision is
PART IV
CHAP. III
Riffect of
resistance
by a belli-
gerent at-
tacked
within
neutral
territory.
contained in the British Proclamation and rules of neutrality issued during
the Spanish-American War.]
EXISTING LAW AS BETWEEN STATES 625
aggression, of which he stated himself to be the object, he had PART IV
himself disregarded the neutrality of the territory in which he “ III
was, and had consequently released its sovereign from all
obligations to protect him otherwise than by his good offices;
that from that moment the Portuguese government could not
be responsible for the results of a collision which had taken place
in contempt of its sovereign rights *.”
A neutral state which overlooks such violations of its Repara-
neutrality as it can rightly be expected to prevent, or which tº, *.
neglects to demand reparation in the appropriate cases, becomes º
itself an active offender. It is bound therefore to give satis- mitted
faction in some form, if satisfaction be required, to the belligerent yºIl
whose interests have been prejudiced by its laches. The nature trality.
of this satisfaction is of course a matter for agreement between
the parties.
Although it is incumbent on the neutral not to lend his territory #na
for purposes of war, his right to admit his friends within it asylum.
extends to the reception of belligerent forces under such condi-
tions as shall guard against any abuse of his hospitality. Custom
and the inherent difference between land and marine war have
rendered these conditions unlike in the two cases. Perhaps the To land
only occasion which hostilities on land afford to the neutral of º f
extending his hospitality to belligerent persons other than those *
who resort to his country for commercial or private reasons, and
who have therefore no relation to the war, is when a beaten
army or individual fugitives take refuge in his territory from the
pursuit of their enemy. Humanity and friendship alike recom-
mend him to receive them, but his duty to the other belligerent
requires that they shall not again start from his soil in order to
resume hostilities; and it has been the invariable practice in late
wars to disarm troops crossing the neutral frontier and to intern
* Ortolan (Dip. de la Mer, ii. 547) gives the text of the President’s award.
Mr. Justice Story (The Anne, iii Wheaton, 447) seems to have considered
a belligerent attacked in neutral, territory to be justified in using force in
self-defence.
HALL S S
626 EXISTING LAW AS BETWEEN STATES
PART IV them till the conclusion of peace. The convention of February
CHAP. III
1871 under which Switzerland received the army of General
Clinchant suggests a difficulty which may in the future interfere
with the continuance of neutral custom in the precise form which
it wears at present". It would be intolerably burdensome to
a neutral state to maintain as guests for a long time any
considerable body of men; on the other hand, by levying the
cost of their support upon the belligerent an indirect aid is given
to his enemy, who is relieved from the expense of keeping them
and the trouble of guarding them as prisoners of war, while he
is as safe from the danger of their reappearance in the field as if
they were in his own fortresses. Perhaps the equity of the case
and the necessity of precaution might both be satisfied by the
release of such fugitives under a convention between the neutral
and belligerent states by which the latter should undertake not
to employ them during the continuance of the war. [The Hague
Convention imposes upon the neutral state the duty of supporting
the interned troops, subject to reimbursement on the conclusion of
hostilities”.]
Marine warfare so far differs from hostilities on land that the
forces of a belligerent may enter neutral territory without being
under stress from their enemy. Partly as a consequence of the
habit of freely admitting foreign public ships of war belonging
to friendly powers to the ports of a state as a matter of courtesy,
partly because of the inevitable conditions of navigation, it is not
the custom to apply the same rigour of precaution to naval as to
military forces. A vessel of war may enter and stay in a neutral
harbour without special reasons; she is not disarmed on taking
refuge after defeat ; she may obtain such repair as will enable her
to continue her voyage in safety, she may take in such provisions
as she needs, and if a steamer she may fill up with enough coal
to enable her to reach the nearest port of her own country; nor
is there anything to prevent her from enjoying the security of
To naval
forces.
* De Martens, Nouv. Rec. Gén. xix. 639.
* Art. 58.
EXISTING LAW AS BETWEEN STATES 627
neutral waters for so long as may seem good to her. To disable PART IV
e e e CHAP. III
a vessel, or to render her permanently immoveable, is to assist her
enemy; to put her in a condition to undertake offensive opera-
tions is to aid her country in its war. The principle is obvious;
its application is susceptible of much variation; and in the treat-
ment of ships, as in all other matters in which the neutral holds
his delicate scale between two belligerents, a tendency towards
the enforcement of a harsher rule becomes more defined with
each successive war.
It is easy to fix the proper measure of repairs; difficulties,
short of such circumstances as those which have already been
discussed, may sometimes occur with reference to supplies of coal
or provisions; but if a belligerent can leave a port at his will,
the neutral territory may become at any moment a mere trap for
an enemy of inferior strength. Accordingly, during a consider-
able period, though not very generally or continuously, neutral
states have taken more or less precaution against the danger of
their waters being so used". Perhaps the usual custom until
lately may be stated as having been that the commander of
a vessel of war was required to give his word not to commit
hostilities against any vessel issuing from a neutral port shortly
before him, and that a privateer as being less a responsible person
was subjected to detention for twenty-four hours”. The disfavour
however with which privateers have long been regarded has not
* So long ago as 1759 Spain laid down the rule that the first of two vessels
of war belonging to different belligerents to leave one of her ports should
only be followed by the other after an interval of twenty-four hours.
Ortolan, Dip. de la Mer, ii. 257. In 1778 the Grand Duke of Tuscany for-
bade both ships of war and privateers to go out for twenty-four hours after
a ship whether enemy or neutral (di qualsivoglia bandiera). De Martens,
Rec. iii. 25. The Genoese rule was the same ; Venice was contented with
the promises of the neutral commander that he would not molest an enemy
or neutral for twenty-four hours, but she retained privateers for that time
in port. Ib. 80. The Austrian proclamation of neutrality of 1803 ordered
vessels not to hover outside the Austrian ports, nor to follow their enemies
out of them ; it also imposed the twenty-four hours' rule on privateers, and
in the case of ships of war required the word of the captain that he would
not commit hostilities.
* Pistoye et Duverdy, i. Io9.
628 EXISTING LAW AS BETWEEN STATES
PART IV infrequently led to their entire exclusion, save in cases of danger
"*" from the sea or of absolute necessity; and the twenty-four hours'
rule has been extended to public ships of war by Italy, France,
England, the United States, and Holland. Probably it may now
be looked upon as a regulation which is practically sure to be
enforced in every war.
Mr. Bernard says: ‘The rule that when hostile ships meet in
a neutral harbour the local authority may prevent one from
sailing simultaneously with or immediately after the other, will
not be found in all books on international law. It is however
a convenient and reasonable rule; it has gained, I think, sufficient
foundation in usage; and the interval of twenty-four hours
adopted during the last century in a few treaties and in some
marine ordinances has been commonly accepted as a reasonable
and convenient interval’.”
It will probably be found necessary to supplement the twenty-
four hours' rule by imposing some limit to the time during which
belligerent vessels may remain in a neutral port when not actually
receiving repairs. The insufficiency of the twenty-four hours’
rule, taken by itself, is illustrated by an incident which occurred
during the American Civil War. In the end of 1861, the United
States corvette Tuscarora arrived in Southampton Water with
the object, as it ultimately appeared, of preventing the exit of
the Confederate cruiser Nashville, which was then in dock. By
* Hist. Acc. of the Neut. of Great Britain, p. 273. The treaties in which
the exercise of this rule is provided for are all with the Barbary States,
Bluntschli declares in unqualified terms that “in strict law a ship of war
cannot quit a neutral port for four-and-twenty hours after the departure of
an enemy's vessel.” $ 776 bis. If international law contained any such
rule, a correlative duty of enforcing it would weigh upon the neutral ; but
of this I can find no indication. The neutral may take what precautions
he chooses in order to hinder a fraudulent use being made of his ports pro-
vided he attains his object. If he prefers to rely upon the word of a com-
mander, there is nothing to prevent him. Even if the twenty-four hours'
rule becomes hardened by far longer practice than now sanctions it, the
right of the neutral to vary his own port regulations can never be ousted.
The rule can never be more than one to the enforcement of which a belli-
gerent may trust in the absence of notice to the contrary. -
EXISTING LAW AS BETWEEN STATES 629
keeping up steam and having slips on her cable, so that the PART IV
g CHAP. III
moment the Nashville moved, the Tuscarora could precede her,
and claim priority of sailing, by moving and returning again
within twenty-four hours, and by notifying and then postponing
her own departure, the latter vessel attempted and for some time
was able to blockade the Nashville within British waters. In
order to guard against the repetition of such acts, it was ordered
in the following January that during the continuance of hostilities,
any vessel of war of either belligerent entering an English port
should “be required to depart and to put to sea within twenty-
four hours after her entrance into such port, except in case of
stress of weather, or of her requiring provisions, or things
necessary for the subsistence of her crew, or repairs; in either
of which cases the authorities of the port were ordered ‘to require
her to put to sea as soon as possible after the expiration of such
period of twenty-four hours.” In 1870 [and in 1898] the same
rule was laid down ; and the United States, unwilling to allow
to others the license which she permitted to herself, adopted an
identical resolution. It is perhaps not unlikely soon to become
general".
* Bernard, 27o ; Neut. Laws Commissioners' Rep., Append. No. vi; State
Papers, lxxi. I67, 1871. [Hertslet, Commercial Treaties, vol. xxi. p. 834.]
Negrin (p. 180) well sums up as follows the conditions upon which belli-
gerent vessels are now admitted into neutral ports.
“Las condiciones,” he says, “del asilo respecto de los beligerantes son:
“ I”. Observar la mejor armonia y una paz completa en el puerto, aſſin con
los mismos enemigos.
* 2°. No reclutar gente para aumentar 6 completar las tripulaciones.
“3°. No aumentar el calibre de la artillería, ni embarcar armas y muni-
ciones de guerra en buques militares y corsarios.
“4”. No hacer uso del asilo para vigilar los buques enemigos mi obtener
noticias sobre sus futuros movinientos.
“5”. No abandonar el puerto hasta veinticuatro horas despues de haberlo
hecho la escuadra Ó buque enemigo, mercante 6 de guerra que en él se hallaba.
‘6°. No intentar apoderarse, ya sea por la fuerza 6 por la astucia, de las
presas que pueda haber en el puerto. .
‘7°. No proceder á la venta de las que se conduzcan al mismo, miéntras
no hayan Sido declaradas legitimas por el tribunal competente.”
PART IV
CHAP. IV
General
principles
of the law.
CHAPTER IV
GENERAL VIEW OF THE RELATIONS OF BELLIGERENT
STATES AND NEUTRAL INT)IVIDUALS
THE general right possessed by a belligerent of restraining
commercial acts done by private persons which materially obstruct
the conduct of hostilities, gives rise to several distinct groups
of usage corresponding to different commercial relations between
neutrals and the other belligerents.
All trade divides itself into two great heads. It consists
either in the purchase or sale of goods, or in carrying them for
hire from one place to another. The purchase of goods by
a neutral is the subject of no belligerent restriction. The
general principle that a neutral has a right to trade with his
belligerent friend, necessarily covers a commerce by which the
war can in no case be directly affected. The belligerent gains
nothing else than his mercantile profit, and to forbid such trade
would therefore be to forbid all trade. But by the sale of goods
the neutral may provide his customer with articles which, either
by their own nature, or from some peculiar need on the part of
the belligerent, may be of special use in the conduct of hostilities.
These therefore the enemy of the latter may intercept on their
road after leaving neutral soil, and before sale to a belligerent
purchaser has transformed them into goods liable to seizure as
enemy property. Again, under the second head a neutral may
send articles innocent in themselves for sale in places access to
which the belligerent thinks it necessary for the successful issue
of his war to forbid altogether, and which he is allowed to bar
by so placing an armed force as to make approach dangerous;
or the neutral may employ his ships in effecting a transport
illicit because of the character of the merchandise or of the place
to which it is taken ; or finally he may associate his property
BELLIGERENTS AND NEUTRAL INDIVIDUALS 631°
with that of the belligerent in such manner as to show the PART IV
existence of a community of interest, or an intention of using “*”
his neutral character to protect his friend. The effect of the
various acts which fall under these heads differs with the degree
of noxiousness which is attributed to them ; but in all cases, as
the possession of a right carries with it the further right to use
the means necessary for its enforcement, the belligerent is allowed
to inflict penalties of sufficient severity to be deterrent. *:::
The larger bodies of practice which have asserted themselves
successfully with reference to these divisions, may on the whole
be explained by the more or less reasonable application of the
principle that a belligerent has the right to carry on his opera-
tions without obstruction. It is easy to see the relation to this
principle of the prohibition to carry goods the supply of which
may increase the strength of a belligerent, and of that to carry
any goods to besieged places; and though the connexion is less &
plain, it can still be discovered in the cases where, by associating
himself with belligerent property, a neutral would, if left alone,
impede the belligerent right of weakening and embarrassing his
enemy by seizing his property. But two exceptional practices Excep-
must either be looked upon as abnormal, or must be explained by º
the admission of a different and very dangerous principle as
a ground of international rule.
The better established of these customs arises out of the right of Commer;
barring access of innocent trade to an enemy’s country, and under . block-
the name of commercial blockade has extended the prohibition
beyond the area of purely military operations to all coasts which
can be guarded by the fleet of the belligerent. A blockade which
is or which forms part of a military operation, may consist in
a siege—i.e. in an investment combined with an attack; or in
a simple investment, of which the object is to reduce a place by
famine; or in the denial to commerce of territory access to which
is commanded by an army, or finally in the denial to commerce
of a portion of coast of indefinite extent, in order to embarrass
the movements of a land force of the enemy which but for the
#
632 BELLIGERENT STATES AND
PART IV blockade would draw its supplies, or a portion of them, from
“” the sea. All these kinds of blockade are of course fully
warranted by the right of a belligerent to carry out his operations
of war without being obstructed by neutrals. But according
to existing usage it would be legitimate, in a war between
England and the United States, for the former power to blockade
the whole Californian coast, while the only military operations
were being conducted on the Atlantic seaboard and along the
frontiers of Canada. To forbid all neutral commerce, when no
immediate military end is to be served, and when the effect of
the measure upon the ultimate issue of the war is so slight as
usually to be almost inappreciable, is to contradict in the plainest
manner the elementary principle that neutrals have a right, as
a general rule, to trade with the enemy". If this principle can
* “The right of blockade is founded not on any general unlimited right
to cripple the enemy’s commerce with neutrals by all means effectual for
that purpose, for it is admitted on all hands that a neutral has a right to
carry on with each of the belligerents during war all the trade which was
open to him in time of peace, subject to the exceptions of trade in contra-
band goods and trade with blockaded ports. Both these exceptions seem
founded on the same reason, viz. that a neutral has no right to interfere
with the military operations of a belligerent either by supplying his enemy
with materials of war, or by holding intercourse with a place which he has
besieged or blockaded.” The Franciska, x Moore, 50.
Until the outbreak of the civil war in America some disposition was
shown by the statesmen of the United States to question the propriety of
commercial blockades, and they put the objection to them with much force.
Mr. Marshall said : “On principle it might well be questioned whether this
rule (viz. that of confiscation of vessels) can be applied to a place not com-
pletely invested by land as well as by sea. If we examine the reasoning
on which is founded the right to intercept and confiscate supplies designed
for a blockaded town, it will be difficult to resist the conviction that its
extension to towns invested by sea only is an unjustifiable encroachment
on the rights of neutrals.” Mr. Marshall to Mr. King, September 20, 1800 ;
iii. Wheaton, Append. -
And Mr. Cass, on the breaking out of the Italian war, issued a circular
to the American representatives in Europe in which it was laid down that
“The blockade of an enemy’s coast, in order to prevent all intercourse with
neutrals, even for the most peaceful purpose, is a claim which gains no
additional strength by an investigation into the foundation on which it
rests, and the evils which have accompanied its exercise call for an efficient
remedy. The investment of a place by sea and land with a view to its
reduction, preventing it from receiving supplies of men and materials neces-
NEUTRAL INDIVIDUALS 633
be invaded in order that a belligerent may be subjected to PART IV
a mere incidental annoyance, it is for all practical purposes “”
non-existent. The theoretic reasoning which would justify
a commercial blockade would equally justify an order, un-
supported by the presence of an armed force, prohibiting neutrals
from entering an enemy’s port, and declaring any vessel with
such destination to be a good prize. The best excuse for the
usage is that the line of separation between a military and
a commercial blockade is in some cases extremely fine; and that
occasionally a blockade which in its origin is of the latter
character is insensibly transformed into the former. Thus the
blockade of the whole coasts of the Confederated States during
the American Civil War, which began by being no more than
the largest commercial blockade ever instituted, was ultimately
of considerable military importance, and aided directly in carrying
out a plan of operations which had for its object to stifle the
enemy by compression on every side.
It may also be urged that in proportion as general maritime
commerce becomes freed from liability to capture, it is necessary
that a belligerent should be confirmed in the special privileges
which enable him to overcome the advantages derived by his
enemy from the ease and cheapness of transport by sea. Owing
to the limitation of transport by land to certain lines of road,
and to the cost of effecting it by indirect routes, an invasion
sary for its defence, is a legitimate mode of prosecuting hostilities, which
cannot be objected to so long as war is recognised as an arbiter of national
disputes. But the blockade of a coast, or of commercial positions along it,
without any regard to ulterior military operations, and with the real design
of carrying on a war against trade, and from its very nature against the
trade of peaceful and friendly powers, instead of a war against armed men,
is a proceeding which it is difficult to reconcile with reason or the opinions of
modern times. To watch every creek and river and harbour upon an ocean
frontier in order to seize and confiscate every vessel with its cargo attempt-
ing to enter or go out, without any direct effect upon the true objects of
war, is a mode of conducting hostilities which would find few, advocates,
if now first presented for consideration.’ Quoted in Cobden's Speeches, vol. ii.
288. Mr. Cobden himself argued warmly in favour of the suppression of
commercial blockades. See his Speeches, Foreign Policy, No. vii.
634 BELLIGERENT STATES AND
PART IV
CHAP. IV"
intercepts trade over a larger area than could be generally
touched by such maritime blockades as are combined with
military operations. Hence wars which are carried on by land,
incidentally establish blockades upon a very large scale, and
among the means by which an invasion is calculated and intended
to reduce an enemy, is the derangement to his foreign and
internal trade which is caused by the occupation of his country.
Although therefore, when this derangement is itself the sole
object to which naval or military forces are directed, they are
engaged in naval or military operations in so strained a sense
that the manner in which a neutral is affected must be looked
upon as anomalous, it is not likely that the right of maintaining
commercial blockades will be readily abandoned, nor, in spite of
the very serious objections which exist against them in their
more extreme forms, is it quite certain that neutrals have
a moral right to demand their cessation ".
The second exceptional practice is that known as the rule of
the war of 1756. It was formerly the policy with all European
governments to exclude foreign ships from trade with their
colonies, and though this rule has been destroyed or modified, it
is still unusual to permit strangers to engage in the coasting
trade from one port to another of the home country.
These exclusions gave rise to the question whether if a
belligerent throws open his close trade in time of war either to
a favoured neutral or to all neutrals, his enemy has a right to
The rule
of the war
of I756.
* Some foreign writers (Ortolan, ii. 329; Hautefeuille, tit. ix. chap. i. sect. 1)
have endeavoured to found the right of blockade on the theory that the
space of water attached territorially to the land is conquered by the belli-
gerent who occupies it with his naval forces, and that he refuses entrance
to it in virtue of his territorial right. M. Cauchy objects to this, that as
water is merely attached to the land, which alone renders it susceptible
of appropriation, conquest of the land must be a necessary preliminary of
legal right over the neighbouring sea. Whether the theory is tenable or
not it is scarcely worth while to consider, for the usage did not arise out of
it ; it is merely a modern invention, useless for any purpose except to give
a logical satisfaction to the minds of writers who without it would have
been painfully affected by the abnormal character of a practice which they
were bound to recognise. -
NEUTRAL INDIVIDUALS 635
deny to them the enjoyment of the proffered advantages. The
first occasion on which the principle came into dispute, on con-
siderations of general law", was in 1756, when the French,
under the pressure of the maritime superiority of England,
opened the trade between the mother-country and its colonies to
the Dutch, while persisting in their habitual exclusion of other
neutrals. The English captured and condemned the Dutch
ships, with their cargoes, on the ground that they had been
in effect incorporated into the French commercial navy. Before
the outbreak of war in 1779, France announced, probably as
a measure of precaution, that trade with her West Indian
colonies would thenceforth be permanently open; the rule which
the English had laid down in 1756 was therefore allowed to
sleep. It is not easy to say how far acquiescence in a change of
PART IV
CHAP. IV
policy on the part of France, which can only have been looked
upon as colourable, was suggested by the dominant opinion of
the time. In the century which preceded the commencement of
the American War, eight treaties, including those of Utrecht
between England and France, and between France and the
United Provinces, stipulated that either of the contracting
parties should be at liberty to trade between ports belonging
to enemies of the other *; and, as might be expected, the First
Armed Neutrality asserted the freedom of coasting trade as one
of the privileges for which its members contended. On the
other hand only two treaties have expressly declared such trade
to be unlawful: but the French Réglements of 1704 and 1744
both enforced the principle of the rule with the utmost
stringency. Whatever may have been the state of current
* A controversy which occurred between the English and the Dutch in
I674 seems to have been determined on conventional grounds.
* These treaties were, besides those of Utrecht, that between England and
the United Provinces in 1675 (Dumont, vii. i. 319), and those between
the United Provinces and Spain, 1676 (ib. 325), the United Provinces and
Sweden, I679 (ib. 439), the United Provinces and Russia, 1715 (id. viii. i.
469), Spain and the Empire, 1725 (ib. ii. 115), and France and the United
States, I778 (De Martens, Rec. ii. 598).
636 BELLIGERENT STATES AND
PART IV opinion before the beginning of the French revolutionary wars,
CHAP. IV
Its exten-
Sion in
I 793.
the rule of 1756 was then revived in more than its former
strength. -
There can be no question that a special privilege such as that
enjoyed by the Dutch, exposes the neutral to be suspected of
collusion with the belligerent whose favours he accepts; and
that he cannot complain if the enemy of his friend forms a harsh
judgment of his conduct. The matter stands otherwise if a
trade is opened to all neutrals indifferently. In 1793, however,
the French having opened their coasting and colonial trade to
neutrals, the latter were not only forbidden by England to carry
French goods between the mother-country and her colonies, or
to engage in her coasting trade *, but they were also exposed to
penalties for conveying neutral goods from their own ports to
those of a belligerent colony, or from any one port to another
belonging to the belligerent country. The reasons for this
severity may be gathered from the judgments of Lord Stowell.
It was considered that a belligerent would not relax a system of
such importance as that under which he retained in his own
hands the coasting and colonial traffic, unless he felt himself to
be disabled from carrying it on ; that under such circumstances
the neutral must be aware that he was assisting one of the two
parties to the war in a peculiarly effective manner; ‘ was it,”
in fact, ‘possible to describe a more direct and more effectual
opposition to the success of hostilities, short of actual military
assistance P’ With respect to colonial trade, there was a further
reason. Colonies were often dependent for their existence on
supplies from without ; if they could not be supplied and
defended by their owner, they fell of necessity to the belligerent
who had incapacitated him from holding the necessary communi-
cation with them. What right had a third party to step in and
* It was the rule of English prize courts to give freight to the neutral
carrier when enemy's goods in his custody were seized. The prohibition
to trade with belligerent goods between belligerent ports entailed as its
practical effect the withdrawal of this indulgence.
NEUTRAL INDIVIDUALS 637
prevent the belligerent from gathering the fruit of his exertions? PART IV
These arguments, taken alone, would be equally valid against CHAP. IV
any trade in innocent commodities, the possession of which
might be accidentally valuable to a belligerent; but they were
really rooted in the assumption that a neutral is only entitled to
carry on trade which is open to him before the war. Upon him
lies the burden of proving that his new trade is harmless to the
Belligerent ; and if he fails in this proof, the support which he
affords to the enemy may be looked upon as intentionally given.
The justice of this doctrine was strongly contested by the
American government; it has since remained a subject of lively
debate in the writings of publicists"; and it cannot be said to
have been sanctioned by sufficient usage to render such debate
unnecessary. Nor is it easy to see that the question has neces-
sarily lost its importance to the degree which is sometimes
thought. The more widely the doctrine is acted upon that
enemy’s goods are protected by a neutral vessel, the more
necessary it is to determine whether it ought to be governed in
a particular case by exceptional considerations.
The arguments which may be urged on behalf of the right
of neutrals to seize every occasion of extending their general
commerce do not seem to be susceptible of a ready answer.
Neutrals are in no way privy to the reasons which may actuate
a belligerent in throwing open a trade which he has previously
* See Wheaton, i. Append. Note iii for a detailed history of the practice
during the Seven Years' War, and those of the American and French Revolu-
tions. Mr. Justice Story thought coasting trade to be too exclusively
national for neutrals to be permitted to engage in it, and was “as clearly
satisfied that the colonial trade between the mother-country and the colony,
when that trade is thrown open merely in war, is liable in most instances
to the same penalty;” but he objected to the further extension of the rule
which forbade all intercourse with the colony. The English writers, Man-
ning (267), Phillimore (iii. § ccxxv), uphold the principle of the rule, and
Heffter (§ 165), though clearly disliking the rule, treats it as fairly
established ; Wheaton (pt. iv. chap. iii. § 27), Kent (Lect. v.) and Ortolan
(lib. iii. chap. v) come to no definite conclusion ; Bluntschli (§§ 799–8oo),
Gessner (266–77), Calvo (§ 24Io) pronounce for the legality of the pro-
hibited commerce.
638 BELLIGERENT STATES AND
PART IV been unwilling to share with them ; they can be no more bound
CHAP. IV"
Heads of
law.
to enquire into his objects in offering it to them than they are
bound to ask what it is proposed to do with the guns which are
bought in their markets. The merchandise which they carry is
in itself innocent, or is rendered so by being put into their ships;
in the case of coasting trade they take it to ports into which
they can carry like merchandise brought from a neutral harbour;
and the obstructing belligerent is unable to justify his prohibition
by any military strength which it confers upon him. On the
one hand the neutral is free from all belligerent complicity with
a party to the war; on the other the established restrictive
usages afford no analogy which can be extended to cover the
particular case.
The above being the only exceptions from the general rule
that permitted restraints upon neutral trade to flow from a right
conceded to the belligerent to prevent his military operations
from being obstructed, it is evident that such differences as
may exist in other matters between the practices and the doctrines
on the subject which are in favour with various nations, arise
not from disagreement as to the ground principles of law, but
as to the extent or the mode of their application. It is admitted
in a general sense that a belligerent may restrain neutral com-
merce, but it is disputed whether he may interfere at all with
certain kinds of trade, and with respect to others how far his
rights extend. In one or other of these ways each of the
divisions of trade before mentioned has been, or still is, the
subject of lively controversy; and in the following chapters it
will therefore be necessary to examine each in more or less
of detail. -
The law affecting them may be divided into the following
heads : —
i. That which deals with forbidden goods, viz. articles con-
- traband of war.
ii. That which deals with forbidden carriage in its sub-
divisions of
NEUTRAL INDIVIDUALS 639
I. Carriage of analogues of contraband, viz. persons and PARTIV
despatches affected with a specially dangerous character. CHAP. IV
2. Carriage of goods to forbidden places; i. e. to places
under blockade.
iii. That which deals with neutral goods entrusted to or under
the protection of a belligerent.
Together with the law belonging to the second head, must be
mentioned the prohibition to carry goods belonging to a belli-
gerent, which though no longer a dominant rule, is not yet so
fully abandoned that it can be passed by in silence.
Finally, it is convenient to treat separately the law of visit
and seizure, or the means which a belligerent is authorised to
take in order to establish that a neutral trader can be affected
by penalties for any of the above reasons.
PART IV
CHAP. V
Uncer-
tainty of
usage as
to what
objects are
included
in contra-
band.
Views of
Grotius.
C HAIPTER V
CONTRABAND
THE privilege has never been denied to a belligerent of
intercepting the access to his enemy of such commodities as are
capable of being immediately used in the prosecution of hostilities
against himself. But at no time has opinion been unanimous
as to what articles ought to be ranked as being of this nature,
and no distinct and binding usage has hitherto been formed,
except with regard to a very restricted class. -
Grotius placed all commodities under three heads. ‘There
are some objects,” he says, “ which are of use in war alone, as
arms; there are others which are useless in war, and which
serve only for purposes of luxury; and there are others which
can be employed both in war and in peace, as money, provisions,
ships, and articles of naval equipment. Of the first kind it is
true, as Amalasuintha said to Justinian, that he is on the side
of the enemy who supplies him with the necessaries of war.
The second class of objects gives rise to no dispute. With
regard to the third kind, the state of the war must be considered.
If seizure is necessary for defence, the necessity confers a right
of arresting the goods, under the condition however that they
shall be restored unless some sufficient reason interferes'. The
division which was made by Grotius still remains the natural
framework of the subject. Objects which are of use in war
alone are easy to enumerate and to define. They consist of arms
and ammunition, the lists of which, as contained in treaties,
remain essentially the same as in the eighteenth century. The
only variations which time has introduced have followed the
changes in the form and names of weapons. As to this head
* De Jure Belli et Pacis, lib. iii. c. i. § 5.
CONTRABAND 641.
therefore there is no difference of opinion; but beyond it certainty PART IV
is at once lost. The practice of different nations has been “”
generally determined by their maritime strength, and by the
degree of convenience which they have found in multiplying
articles, the free importation of which they have wished to secure
for themselves, or to deny to their enemy. Frequently, they
have endeavoured by their treaties to secure immunity for their
own commerce when neutral, and have extended the list of
prohibited objects by proclamation so soon as they became
belligerent.
Of the treaties concluded by the United Provinces with Practice in
o the seven-
England, France, Spain, and Sweden, between I646 and the end teenth
of the seventeenth century, only three contained articles classing *
tº tº o º €
as contraband any other commodities than munitions of war. United
Provinces.
In these three the addition of horses was made. In four
treaties provisions, and in two naval stores, were expressly ex-
cluded ". But in 1652, being at war with England, and again
in 1657 with Portugal, they issued edicts placing articles of naval
construction in the list of contraband; in the beginning of each
subsequent war a like edict was promulgated, and in 1689 a
further enlargement embraced grain and provisions of every sort ".
The stipulations of the treaties entered into by England were England.
more varied than those by which Holland was bound. In one
provisions were stated to be contraband; in two they were ex-
cluded. Horses and soldiers were included in three, and money
and ships in two; on the other hand materials of naval con-
struction were excluded in one *.
There is some reason to believe that the accepted English list
of contraband articles varied considerably during the century.
* With France, I646 (Dumont, vi. i. 342); Spain, 1650 (ib. 570); England,
1654 (ib. ii. 74); England, 1668 (id. vii. i. 74); England, 1674 (ib. 282);
England, 1675 (ib. 288); Sweden, 1675 (ib. 316); France, 1678 (ib. 357).
* Bynkershoek, Quaest. Jur. Pub. lib. i. c. x.
* Besides the conventions mentioned above, England concluded treaties
with Sweden, 1654 (Dumont, vi. ii. 80); France, 1655 (ib. 121); Sweden,
1661 (ib. 385); Sweden, 1666 (id. vi. iii. 83); Spain, 1667 (id. vii. i. 31);
France, 1667 (ib. 327). -
HALL T t
642 CONTRABAND
PART IV. In 1626, it appears from letters of the Maréchal de Bassompierre,
CHAP. v.
then ambassador in London, that the English negotiators with
whom he treated counted amongst the number metals, money,
timber, and provisions"; but in 1674, Sir Leoline Jenkins, in
reporting to the King upon a case in which English pitch and
tar, carried in a Swedish vessel, had been captured and taken
into Ostend for adjudication, said that ‘ these goods, if they be
not made unfree by being found in an unfree bottom, cannot be
judged by any other law but by the general law of nations.
I am humbly of opinion that nothing ought to be judged contra-
band by that law in this ease but what is directly and imme-
diately subservient to the use of war, except it be in the case
of besieged places, or of a general certification by Spain to all the
world that they will condemn all the pitch and tar they meet
with *. It would seem therefore that, in the opinion of the
chief English authority on international law in the latter end of
the century, articles of direct use for warlike purposes were alone
contraband under the common law of nations, but that each state,
in order to meet the special conditions of a particular war,
possessed the right of drawing up at its opening a list of articles
to be contraband during its continuance.
France was insignificant as a naval power till the war of I672,
and the larger number of her treaties have already been mentioned
in speaking of England and Holland. One which was entered
into with the Hanse Towns in I655 is to be noted as including
horses and naval stores, while excluding provisions; and the
Beace of the Pyrenees was silent as to naval stores, and coin-
cided in its stipulations as regards horses and provisions with the
treaty of 1655°. In 1681, the Ordonnance de la Marine, which
has been generally looked upon as fixing French law upon the
matter, laid down that ‘arms, powder, bullets, and other
munitions of war, with horses and their harness, in course of
transport for the service of our enemies, shall be confiscated *.’
France.
* Ortolan, ii. 185. * Wynne, Life of Sir Leoline Jenkins, ii. 751.
* Dumont, vi. ii. Io9 and 64. * Valin, Ord. de la Marine, ii. 264.
CONTRARAND 643
The eighteenth century was opened with the inclusion of naval PART IV
stores by France in 1704, but on the whole French practice was rººm
sufficiently consistent. Its treaties invariably stated munitions the eigh-
of war and saltpetre to be contraband, and with one exception tºº.
they included horses; but they all expressly excluded provisions;
except in one case they refused to admit into the list money and
metals; in two cases materials of naval construction are un-
mentioned, and in only one treaty, made in 1742, are they
specifically included. The treaties made with the United States
in 1778, with England in 1786, and with Russia in 1787, also
excluded ships. The practice of Spain has been identical in
principle with that of France".
The treaties concluded by Great Britain during the eighteenth England.
century in the main followed the terms of the Treaty of Utrecht,
which embodied the French doctrine of contraband ; they all
excluded provisions, and confiscated saltpetre; six include horses,
two are silent with respect to them, and one with Russia—a state
which seems to have made a point of securing free trade in
horses—strikes them from the list by name. In five cases no
mention is made of money or metals; in three both, and in one
money alone, are excluded. Naval stores are unmentioned in
five treaties; by the rest commerce in them is permitted”.
These treaties bound England at different times with France,
Spain, Sweden, Russia, Denmark, and the United States, but
they in no way expressed the policy of the country as apart
from special agreement; and their principles were not acted
upon in dealing with states with which no convention existed.
Thus a larger part of Europe was usually exposed to the opera-
tion of English private regulations than was protected by treaty
* [The Spanish Decree of April 23, 1898, does not expressly include horses
among contraband of war.] -
* It would seem from Burrell’s Admiralty Reports (p. 378) to have been
considered by England in 174I that contraband articles, apart from treaty,
were confined to arms, saltpetre, and horses with their furniture. ‘Ropes,
sails, anchors, masts, planks, boards, and all other materials for building
and repairing ships are reputed free goods.’
T t 2
644 CONTRABAND
PART IV
CHAP, V
from the effects of her maritime predominance. In the end
of the Seven Years' War, for example, Sweden and the United
Provinces were the only countries with which any limiting treaty
remained in force. Towards Russia, Denmark, the Hanse
Towns, Mecklenburg, Oldenburg, Portugal, the Two Sicilies,
Genoa, and Venice, she might act in accordance with her general
views of belligerent rights"; and these seem then, as afterwards,
to have permitted the list of contraband articles to be enlarged
or restricted to suit the particular circumstances of the war”.
The Baltic Powers are said by Wheaton to have been at issue
with England during the whole of the eighteenth century with
respect to the contraband character of naval stores”. But *
though Sweden concluded a treaty with Great Britain in 1720,
by which materials of naval construction were declared not to
be contraband, her own ordinance of 1715 includes all articles
‘ which can be employed for war *.” Russia agreed with the
United Provinces in 1715, that naval stores should be taken
to be contraband, and made a treaty with England in 1766, in
which the question is left open. Denmark on the other hand
excluded naval stores by her treaty of 17OI with the United
Provinces, but made them contraband by a regulation issued
in 1710 during war with Sweden ", as well as by treaty with
France in 1742, and with England in 1780. Down to the time
of the First Armed Neutrality therefore, the practice of the
three northern states does not seem to have been characterised
by definite purpose. Holland maintained her policy of varying
the lists of contraband articles at pleasure until the middle of
the eighteenth century, when the diminution of her naval power
carried her from among the advocates of belligerent privilege
into those of neutral rights.
The Baltic
Powers.
* The clause forbidding trade in contraband in the treaty with Denmark
of 1670 is not inconsistent with the inclusion of anything useful to the
enemy of the contracting parties.
* The Jonge Margaretha, i Rob. I93. * Elements, pt. iv. chap. iii. § 24.
* v Wheaton, Appendix, 75.
* Valin, Ord. de la Marine, ii. 264.
CONTRABANID - 645
The writers of the period were mot more eonsistent with each PART IV
other than was praetice with itself. Heineccius, writing in .'*' '
Jurists Of
I 72 I, ranked as contraband of war not only munitions of every the eigh-
ύ ¢ teent]
l«ind, saltpetre, and horses, but cordage, sails, and other naval άς.
stores, together with provisions'. Bynkershoek on the other
hand strives to limit the number of prohibited commodities as
rigidly as is possible, consistently with the rules applied by his
mation. He lays down broadly that everything is eontraband
which may be employed by belligerents for purposes of war,
whether it is a completed instrument of war, or some material
in itself suitable for warlike use. What articles however he
intends to indicate by the second clause of his deseription is not
very evident, for he immediately expresses a doubt whether the
material is eontraband out of which something may be fitted for
war. Descending to particulars, he allows materials for building
ships to be eonfiscated if the enemy is in urgent need of them ;
saddles, seabbards, and such artieles, he is ready to condemn
unless they are in numbers so small as not apparently to be
intended for hostile use ; as regards saltpetre he seems to leave
the question opem *. It is important, as Sir R. Phillimore re-
* * In quibus mercibus vetitis accenseri animadvertimus omnia arma
ignivoma, eorumque adparatus, qualia sunt tormenta, bombardae, mortaria,
betardae, bombi, granatae, circuli pieei, tormentorum sustentacula, furcae,
balthei, pulvis nitratus, restes igni eapiendo idoneae, sal nitrum, globi, item
hastae, gladii, galeae, cassides, loricae, bipennes, spicula, equi, ephippia,
aliaque instrumenta belliea. Quin et triticum, hordeum, avena, legumina,
sal, vinum, oleum, vela, restes, et siqua alia ad adparatum nauticum per-
tinent. . . . Ceterum sunt quaedam de quibus inter gentes aliquando discepta-
tum est, an mereibus vetitis sint accensenda. Sic de vaginis aliquando
dubitatum. . . . Vagimis non minus opus est hosti quam gladiis ; et quamvis
vaginis non vulneret aut stragem edat, inutiles tamen essent ipsi gladii
futuri, nisi vaginae eos a pluvia et rubigine tuerentur. Eadem ergo ratio,
quae vela, restes nauticas, frumenta, prohiberi suasit, ipsis etiam vaginis
facile poterit accommodari.* De Nav. ob Vect. Mere. Vetit. Comm. xiv.
* * Excute pacta gentium, quae diximus, excute et alia quae alibi exstant,
et reperies, omnia illa appellari contrabanda, quae, uti hostibus suggeruntur,
bellis gerendis inserviunt, sive instrumenta belliea sint, sive materia per
se bello apta. . . . Atque inde judicabis, an ipsa materia rerum prohibitarum
quoque sit prohibita ? Et in eam sententiam, si quid tamen definiat,
proclivior esse videtur Zoucheus * (De Jure Feciali, pt. ii. s. vii. q. 8). * Ego
non essem, quia ratio et exempla me movent in contrarium. Si omnem
646 CONTRABAND
PART IV marks, that Bynkershoek adopts the principle of considering the
CHAP. V.
circumstances of each case, and that the list of contraband
articles must therefore, according to him, be variable. Wattel
enumerates ‘arms and munitions of war, timber, and everything
which serves for the construction and armament of vessels of war,
horses, and even provisions, on certain occasions when there
is hope of reducing the enemy by famine ".” Valin, writing in
1766, says that ‘ tar has also been declared to be contraband,
with pitch, resin, sailcloth, hemp, and cordage, masts and ship-
building timber. Thus, apart from their contravention of
particular treaties, there is no reason to complain of the conduct
of the English, for by right these things are now contraband,
and have been so from the beginning of the century, though
formerly the rule was otherwise”.” Lampredi reduces contraband
merchandise to those articles only, “which are so formed, adapted,
and specialised as to be unfit to serve immediately and directly
for other than warlike use *.’ He appears to ground his doctrine
upon the language of treaties. On comparing the jarring
opinion of these different authors with the treaties which have
been enumerated and with the indications of unilateral practice
which here and there occur in history, it seems to stand out
with tolerable clearness that no distinct rule existed in the
eighteenth century with regard to the classification of merchan-
dise as innocent or as contraband. On the one hand, there is
no doubt that France thought it to her interest to restrict the
number of articles classed under the latter head; on the other,
it is as evident that England wished to preserve entire freedom
of action; but the position of other nations is not so certain,
materiam prohibeas, ex qua quid bello aptari possit, ingens esset catalogus
rerum prohibitarum, quia nulla fere materia est, ex qua non saltem aliquid,
bello aptum, facile fabricemus. Hac interdicta, tantum non omni commercio
interdicinus, quod valde esset in utile. . . . Quandoque tamen accidit, ut
et navium materia prohibeatur, si hostis ea quam maxime indigeat, et absºlue
ea commode bellum gerere haud possit.' Quaest. Jur. Pub. lib. i. c. x.
* Droit des Gens, liv. iii. chap. vii., § II2.
* Ord. de la Marine, ii. 264.
* Del Commercio dei Popoli Neutrali in Tempo di Guerra, 70.
CONTRAPAND 647
and the extended catalogues which were sanctioned by a German, PART IV
a Swiss, and a Frenchman must have been grounded on a wider “”
opinion than could be evidenced by the practice of England and
Holland alone. t
It was natural, however, that the secondary maritime powers The First
should in time accommodate their theories to their interests. §.
They were not sure of being able as belligerents to enforce ity.
a stringent rule; they were certain as neutrals to gain by its
relaxation. Accordingly, in 178o Russia issued a Declaration of
neutral rights, among the provisions of which was one limiting
articles of contraband to munitions of war and sulphur. Sweden
and Denmark immediately adhered to the Declaration of Russia,
and with the latter power formed the league known as the First
Armed Neutrality. Spain, France, Holland, the United States,
Prussia, and Austria, acceded to the alliance in the course of
the following year. Finally it was joined in 1782 by Portugal,
and in 1783 by the Two Sicilies. -
It is usual for foreign publicists to treat the formation of the
Armed Neutrality as a generous effort to bridle the aggressions
of England, and as investing the principles expressed in the
Russian Declaration with the authority of such doctrines as are
accepted by the body of civilised nations. It is unnecessary to
enter into the motives which actuated the Russian government 1;
but it is impossible to admit that the doctrines which it put
forward received any higher sanction at the time than such as
could be imparted by an agreement between the Baltic Powers.
The accession of France, Spain, Holland, and the United States
was an act of hostility directed against England, with which
they were then at war, and was valueless as indicating their
settled policy, and still more valueless as manifesting their views
of existing international right. It was the seizure by Spain of
two Russian vessels laden with wheat which was the accidental
* The intrigues which led to the issue of the Russian Declaration are
sketched by Sir R. Phillimore, iii. § clxxxvi; see also Lord Stanhope, Hist.
of Eng, chap. lxii.
648 CONTRABAND
PART IV cause of the original Declaration, and within a few months of
CHAIP. V.
adhering to the league France had imposed a treaty upon Meck-
lenburg, and Spain had issued an Ordinance, both of which were
in direct contradiction to parts of the Declaration *. The value
of Russian and Austrian opinion in the then position of those
countries as maritime powers is absolutely trivial. Whatever
authority the principles of the Armed Neutrality possess, they
have since acquired by inspiring to a certain but varying extent
the policy of France, the United States, Russia, and the minor
powers.
On the outbreak of war between France and England in 1793,
the Convention decreed that neutral vessels laden with provisions
destined to an enemy’s port should be brought in for preemption
of the cargo’, although treaties were then existent between
France and the Hanse Towns, Hamburg, the United States,
Mecklenburg, and Russia, in which it was stipulated that pro-
visions should not be contraband of war. But the Prize Courts
seem to have acted upon the rules of the Ordinance of 1681 °;
and of the few treaties which have been concluded by France
during the present century, only one varies from the form which
is usual in her conventions”.
The conduct of the United States has been less consistent.
Between 1778 and the end of the eighteenth century they
concluded four treaties, by which munitions of war, horses, and
sulphur or saltpetre, or both, were ranked as contraband; and pro-
visions, money and metals, ships and articles of naval construction,
were declared to be innocent". The treaty of 1794 with England
includes naval stores among objects of contraband, and provides,
France.
United
States.
* All the signataries to the Declaration of the Armed Neutrality violated
one or other of its provisions when they were themselves next at war.
* Phillimore, iii. § cxlv. The decree was issued on May 9, and the English
Instructions to the like effect were dated June 8.
* Il Volante, Pistoye et Duverdy, i. 4og.
* The convention with Denmark made in 1842 includes naval stores.
Phillimore, iii. § cclx.
* France, I778 (De Martens, Rec. ii. 598); Holland, 1782 (id. iii. 451);
Sweden, I783 (ib. 569); Spain, I795 (id. vi. 561).
CONTRATBAND 649
when ‘provisions and other articles not generally contraband PART IV
are seized,’ that they shall not be confiscated, but that the owner * *
shall be indemnified". But the government of the United States
did not look upon provisions as incapable of entering the class of
prohibited articles under special circumstances; for in 1793,
while protesting against the Instructions issued by England in
June of that year, it argued against them on the ground that
provisions can only be contraband when carried to a place which
is actually invested, and which therefore there is a well-founded
expectation of reducing by famine *. And it fully recognised
that materials of naval construction are contraband by the
common usage of nations *. In a case arising out of the sub-
sequent war with England, the Prize Courts of the United
States held that provisions “destined for the army or navy of
the enemy, or for his ports of naval equipment,’ were to be
deemed contraband *.
In the nineteenth century a treaty of the United States with Practice in
ſ' e & e the nine-
England retains naval stores and saltpetre, and is silent upon jº,
other points; another with Sweden includes sulphur and saltpetre, *
excluding naval stores; a third with France follows the terms º
affected by the latter power; and fourteen treaties, all, with one
exception, contracted with American States, mention munitions
of war and horses; and treat provisions, money, metals, ships,
, and articles of naval construction as innocent *. Those with
* De Martens, Rec. v. 674.
* Mr. Randolph to Mr. Hammond, May 1, 1794, American State Papers,
1. 450.
* Mr. Pickering to Mr. Pinckney, Jan. I6, 1797, American State Papers, i. 560.
* Maisonnave v. Keating, ii Gallison, 335; The Commercen, i Wheaton,
387 [followed in the Bénito Estenger, 176 United States Reports, p. 573, a case
arising out of the Spanish-American War of 1898].
* England, 1806 (De Martens, Rec. viii. 584); France, 18oo (id. vii. 202);
Columbia, 1824 (Nouv. Rec. vi. 996); Sweden, 1827 (id. vii. 279); and in
identical terms with Central America, 1826; Brazil, 1828; Chili, I832 ;
Venezuela, 1836; Peru-Bolivia, 1836; Ecuador, 1839; New Grenada, 1848;
Guatemala, 1849 ; Peru, 1851 and 1870 ; Italy, 1871. The treaty with
Mexico was made in 1831 (Nouv. Rec. x. 338); and that with San Salvador
in 1849 (ib. xv. 74).
650 CONTRAIBAND
PART IV Mexico and San Salvador contain the special stipulation that
CHAP. V.
provisions destined to a besieged port are to be excepted from
the usual immunity. It would seem, on the whole, that the
|United States have always recognised the English doctrine of
contraband to be more in consonance with existing usage than
that of France, but that they have wished in certain cases to
limit the application of the rule by express convention.
The practice of the Baltic States is of less interest, because
the events of the revolutionary wars tended greatly to reduce
their maritime importance; but before the antecedent conditions
had been altered, Denmark varied the definition of contraband
to which she had bound herself by issuing in 1793 a proclamation
of neutrality, in which horses, and ‘in a general way, articles
necessary for the construction and repair of vessels, with the
exception, however, of unwrought iron, beams, boards and planks
of deal and fir, are declared to be contraband *.” The Second
Armed Neutrality endeavoured to re-establish the doctrine of its
predecessor; and part of the compromise which, after its
destruction, was effected between the views of Russia and of
Lngland consisted in the recognition of the northern enumera-
tion of prohibited articles; but in 1803 a fresh agreement was
concluded between England and Sweden by which coined money,
horses, ships, and manufactured articles serving immediately for
their equipment, were declared liable to confiscation, while naval
stores, the produce of either country, were to be brought in for
pre-emption”. Since then the only treaties concluded by any
of the Baltic States which materially deviate from the principles
of the Armed Neutrality, are that made at Orebro between
England and Sweden in 1812, which includes horses, money,
and ships, and that signed between England and Denmark
in 1814, by which naval stores as well as horses are declared
to be contraband *.
Second
Armed
Neutral-
ity.
* v Wheaton, Appendix, 76.
* De Martens, Rec. viii. 91.
* De Martens, Nouv. Rec. i. 432 and 680. The other treaties defining
contraband of war made by the Baltic powers during the last century
CONTRABAND 651
Besides the treaties already mentioned, Great Britain has PARTIV
CHAP. V.
only twice entered into special agreements with reference to Great
contraband since the beginning of the nineteenth century 1; and Britain.
as almost all her previous contracts have been dissolved by war, e
her practice is mainly to be sought in the decisions of her Prize
Courts. These persistently carried out, through the whole of
the Revolutionary and Napoleonic wars, the traditionary
principles upon which England had always before acted, of
classing as contraband not merely articles susceptible only of
warlike employment, but also a large number of those ancipitis
%3?!S.
In presence of the foregoing facts some modern writers ºp.
Of Inn O'Clel"Il
can assert, with curious recklessness, that England is the only jurists.
power which for more than a century has refused to identify
articles of contraband with munitions of war”. Kent, Wheaton,
and Manning *, on the other hand, state the results of custom
with perhaps somewhat too exclusive a reference to English
and American practice, and without sufficient endeavour to
classify the objects which in a different measure and in their
divers ways have been included among the prohibited acts.
are as follows: Denmark and Prussia, 1818 (De Martens, Nouv. Rec. iv.
534); Denmark and Brazil, 1828 (id. vii. 614); Sweden and the United
States, 1827 (ib. 279); Prussia and Brazil, 1827 (ib. 470); Prussia and
Mexico, 1831 (id. xii. 534).
* With Portugal in 1820, when munitions of war, sulphur, horses, money,
and naval stores were classed as contraband; and with Brazil in 1827, when
munitions of war and naval stores only were enumerated. De Martens,
Nouv. Rec. iii. 211, and vii. i. 486. -
* E. g. Hautefeuille, tit. viii, sect. ii. § 3. The process by which M. Haute-
feuille arrives at his conclusions has the merit of boldness. He finds in the
imaginary ‘loi primitive,’ to which he refers in every page with wearisome
iteration, that contraband of war is “expressly” confined to arms, &c. His
assumption is readily supported by treaties, from the list of which those
which conflict with his theory are excluded as destitute of authority ; and
he provides against the interference of unilateral acts by a like rejection
of everything which militates against the simple dictates of the divine will.
He is obliged, however, to admit that the divine law has not been strong
enough to prevent the entry of saltpetre and horses into the established list
of contraband.
* Kent, Comm. lect. vii.; Wheaton, Elem. pt. iv. chap. iii. § 24; Manning,
chap. vii. - -
652 CONTRABAND
PART IV Among continental jurists two currents of opinion are visible.
GHA P. V
Some writers strive to reduce the list of contraband within
the narrowest dimensions, notwithstanding the increased variety
of material which is applicable more or less immediately to the
purposes of warfare. Their works show a love for theoretie
neatness, and some detachment from the practical aspects of
the subject *. Others, recognising the difficulty of making a
fixed and restrieted list of contraband, and the improbability
that assent to any such list would be generally given, or if given
would be adhered to in circumstances of temptation, retain the
principle of variability, while in most cases giving evidence of a
healthy wish to confine its effects within very moderate limits*.
· * Gessner, 92-6, Io9, I6o ; Hautefeuille, tit. viii. sect. ii. $ 6 ; Kleen, De
la Contrebande de Guerre, Paris, I893, p. 43. M. Kleen, in a spirit of
compensation for limiting contraband to completed munitions of War,
imposes the severest penalties upon the neutral state which fails to prevent
its subjects from supplying them to a belligerent. The belligerent must not
seize a marine engine capable only of use in a battle-ship, but he may use
reprisals against a neutral country that refuses to acknowledge liability in
respect of a single case of rifles which may have reached his enemy.
* Ortolan, for example (Dip. de la Mer, ii. 19o), while refraining from
forcing usage into any definite conclusion, owns himself to be of the opinion
of those * qui pensent que la liberté de commerce des neutres doit être le
principe général, et qu'il ne doit y être apporté d'autres restrictions que .
celles qui sont une conséquence immédiate et forcée de l'état de guerre entre
les belligérants.' He considers, looking at the matter * au point de vue
rationnel : que les armes et instruments de guerre quelconques, et les
munitions de toute sorte servant directement à l'usage de ces armes, sont
les seuls objets qui soient généralement et nécessairement contrebande de
guerre ; que les matières premières ou marchandises de toute espèce propres
aux usages pacifiques, bien qu'elles puissent servir également à la confection
ou à l'usage des armes, instruments ou munitions de guerre, ne sont point
comprises régulièrement dans cette contrebande ; que tout au plus est-il
permis à une puissance belligérante, eu égard à quelque circonstance
particulière de ses opérations militaires propres à justifier cette mesure, de
traiter comme contrebande telle ou telle de ces marchandises ; mais qu'une
telle assimilation ne doit être qu'une exception extraordinaire, limitée au
cas où ces marchandises formeraient véritablement une contrebande déguisée ;
que les vivres et tous les objets de première nécessité ne peuvent en aucun
cas et pour quelque motif que ce soit être rangés dans la contrebande de
guerre.'
* L'idée de la contrebande,' says Heffter (Le Droit Int. $ 16o), * est une idée
complexe, variable selon les temps et les circonstances, et qu'il est difficile
de déterminer d'une manière absolue et constante. . . .. D'après les usages
CONTRA BAND 653
That the weight of opinion is in favour of the latter view there PART IV
can be no question*; and it will be seen that the more important CHAP. V
5
states have given no reason to suppose that they are willing to
tie their hands by hard and fast rules, whatever restriction in
internationaux universels, la contrebande est exclusivement limitée aux
armes, ustensiles et munitions de guerre, en d'autres termes aux objets
façonnés et fabriqués exclusivement pour servir dans la guerre, non pas aux
matières premières propres à la fabrication des objets prohibés. ... Il y a
une autre classe d'objets qui, dans les traites seulement et dans les lois
intérieures de plusieurs nations, sont indiqués comme objets de contrebande.'
This includes horses, all raw materials suited for the manufacture of arms
and munitions of war, naval stores, and gold, silver and copper, whether
coined or in ingots. * On doit ranger dans la même catégorie certains objets
nouveaux que les progrès de la science ont appliqués de nos jours aux besoins
de la guerre. Telles sont les machines à vapeur, la houille,'&c. .. . * On ne
saurait prétendre ' that commodities of the latter class * portent nécessaire-
ment le caractère de contrebande. C'est seulement dans le cas où, par leur
transport vers l'un des belligérants, le commerce neutre prend le caractère
manifestement hostile, que l'autre belligérant a le droit d'empêcher de fait.'
M. Heffter's doctrine may be somewhat confused, but its results in practice
are evident.
M. Bluntschli, after a commonplace enumeration of articles which are
strictly contraband, says ($ 8o5) that * le transport d'objets servant aussi
aux besoins des particuliers, habillements, sommes d'argent, chevaux, bois
de construction pour les navires, toile à voiles, plaques de fer, machines à
vapeur, charbon de terre, navires de commerce, &c., est dans la règle
autorisé. On ne pourra exceptionnellement envisager ces objets comme
contrebande de guerre que si .. .. on peut démontrer qu'ils étaient destinés
à faire la guerre et transportés avec l'intention de prêter aide et assistance
à l'un des belligérants. Les chevaux, par exemple, devront servir à
remonter la cavalerie, les bois et le fer à construire des navires de guerre et
à les blinder,' &c. As a comment upon this it may be worth while to quote
some remarks which Dana makes with the strong common sense which
distinguishes him. * The intent of the owner,' he says, *is not the test.
The right of the belligerent to prevent certain things from getting into the
military use of his enemy is the foundation of the law of contraband ; and
its limits are in most cases the practical result of the conflicts between this
belligerent right on the one hand and the right of the neutral to trade with
the enemy on the other.' Note to Wheaton, No. 226.
* The Institut de Droit International in 1877 resolved that *—sont toutefois
sujets à saisie : les objets destinés à la guerre ou susceptibles d'y être
employés immédiatement. Les gouvernements belligérants auront, à l'occa-
sion de chaque guerre, à déterminer d'avance les objets qu'ils tiendront pour
tels ' (Annuaire for 1878, p. II2).
· Among recent writers Geffcken, in Holtzendorff's Handbuch (1889), v. 719-
24, ably and exhaustively discusses the question of contraband character.
See also M. F. de Martens ; Traité de Droit Int. iii. 35I.
654, CONTRABAND
PART IV certain particulars it is possible that some of them, as for
CHAP. V.
example Russia, may be anxious to place in their own interests
upon the list of contraband".
* In Mr. Holland's British Admiralty Manual of Prize Law (1888) it is
stated that “it is part of the prerogative of the Crown during the war to
extend or reduce the lists of articles to be held absolutely or conditionally
contraband. For the present the following goods are enumerated—
I. As absolutely contraband—Arms of all kinds and machinery for manu-
facturing arms; ammunition and materials for ammunition, including lead,
sulphate of potash, muriate of potash, chlorate of potash, and nitrate of
Soda ; gunpowder and its materials, saltpetre and brimstone, also gun
cotton ; military equipments and clothing ; military stores ; naval stores,
such as masts, spars, rudders, and ship timber, hemp and cordage, sailcloth,
pitch and tar, copper fit for sheathing vessels, marine engines and the
component parts thereof, including screw-propellers, paddle-wheels, cylinders,
cranks, shafts, boilers, tubes for boilers, boiler-plates and fire-bars, marine
cement and the materials used in the manufacture thereof, as blue lias and
Portland cements, iron in any of the following forms—anchors, rivet iron,
angle iron, round bars of from # to g of an inch diameter, rivets, strips of
iron, sheets, plate iron exceeding # of an inch, and Low Moor and Bowling
plates. #
2. As conditionally contraband—Provisions and liquors fit for the con-
Sumption of army or navy; money; telegraphic materials, such as wire,
porous oups, platina, sulphuric acid, and zinc ; materials for the construc-
tion of a railway, as iron bars, sleepers, &c.; coals; hay ; horses; rosin ;
tallow ; timber.
For recent conduct on the part of France, see postea, p. 662. Russia
objected at the West African conference to coal being considered contraband
in any circumstances whatever (Parl. Papers, Africa, No. iv. 1885, I32 and
II9), but she adheres to the principle of variability, since she made no
objection to the inclusion of other objects ancipitis w8ws, and in May 1877
the articles which were to be considered contraband during the war with
Turkey, which was then opening, were defined by Ukase. It appears from
an answer quoted by Geffcken (loc. cit.) as having been given by Prince
Bismarck to a deputation of Hamburg merchants, that the latter considers
it to be for belligerent powers to “in jedem einzelnen Falle mach Massgabe
der Oertlichkeit und ihrer Interessen diejenigen Waaren bezeichnen, welche
sie wahrend der Dauer der Feindseligkeiten als Contrebande zu behandeln.
beabsichtigen.’ *
[In 1896 the Institut de Droit International drafted a set of rules to govern
international practice with regard to contraband of war. By this ‘régle-
mentation it is proposed to do away with “les prétendues contrebandes
désignées sous les noms, soit de contrebande relative, concernant des articles
(wsus ancipitis) susceptibles d'être utilisés par un belligerant dans un but
militaire, mais dont I’usage est essentiellement pacifique, soit de contrebande
accidentelle, quând lesdits articles ne servent spécialement aux buts mi-
litaires que dans une circonstance particulière.” The right of pre-emption,
CONTRAEANT) 655
Upon the abstract merits of the question it is impossible to PART IV
refuse sympathy to the more theoretical writers. They aim at cº
giving the largest freedom that can be secured to the commerce of band not
neutrals; in other words they aim at freeing the trade of persons º
who, taken in bulk, are probably injured by the mere existence º of
of war, from additional injuries inflicted through the restraints
imposed by belligerents for their own selfish objects. But it
is useless to represent as law, or to propose as future law, rules
which states are not ready to accept; and it is idle to expect
them to adopt rules which do not correspond with belligerent
exigencies. -
If these exigencies be, taken instead of theory, as a starting-
point for definition of contraband, the proposition that contraband
cannot be limited to munitions of war, and that the articles
composing it must vary with the circumstances of particular
cases, becomes the simple expression of common sense. There
can be no question that many articles, of use alike in peace and
war, may occasionally be as essential to the prosecution of
hostilities as are arms themselves; and the ultimate basis of the
prohibition of arms is that they are essential. The reason that
no difference of opinion exists with respect to them is the fact
that they are in all cases essential. But it may also happen, after
a remote non-manufacturing country, such as Brazil, has suffered
a disaster at sea, that to prevent the importation of marine
engines would be equivalent to putting an end to the war, or .
would at least deprive the defeated nation of all power of actively
annoying its enemy. Marine engines then become as essential
as arms. In considering the matter logically therefore the mind
must chiefly be fixed upon the characteristic of essentiality; and
in determining under what circumstances the seizure of mer-
chandise of double use can be justified the main difficulty is
either to find a general test of essentiality, or in a given instance
however, is reserved to the belligerent in the case of objects ancipitis w8ws
seized while on the road towards a port of his adversary.—Annuaire for
I896, p. 230.]
656 CONTRAE AND
PART IV to secure adequate proof that delivery of particular articles would
CHAP. V.
be essential to the prosecution of the war.
While the exigencies of belligerency must primarily control
the definition of contraband, and therefore to a great extent
settle the list of contraband merchandise, there is a point at which
accepted law offers a barrier to further dictation on their part.
Except to the limited degree which has been indicated in treating
of belligerent rights, acts of war cannot be directed against the
non-combatant population of an enemy state. Hence seizure of
articles of commerce becomes illegitimate so soon as it ceases to
aim at enfeebling the naval and military resources of the country
and puts immediate pressure upon the civil population. In theory
it is easy to distinguish between merchandise which, by its nature
and the absence of a certain kind of destination, is presumably
intended for civil use, and merchandise which, by its nature or
clear destination, is obviously intended for use by the armed
forces of the state. A general test is thus provided. In practice
the difficulty need hardly be greater. Cases of permissible
seizure might consequently be readily separated from those in
which seizure is unwarrantable, could usage be set altogether
aside. This however cannot with propriety be done. The policy
of nations has, it is true, been governed by no principle ; the
wish to keep open a foreign market has generally been a motive
quite as powerful as the hope of embarrassing an enemy;
practice is thoroughly confused. Still practice cannot be devoid
of authority, and it must be subjected to analysis in a spirit of
willingness to give due value to any custom that may appear to
have fairly established itself. On the other hand, in view of the
exceptional confusion and arbitrariness by which practice is
marked, it may reasonably be regarded as of secondary value,
and appeal may in the first instance be made to principle. If an
inquiry into the due range of contraband be conducted in this
manner, it will be possible to classify broadly articles other than
munitions of war according to the greater or less intimacy of
their association with warlike operations, and consequently,
CONTRAIRAND 657
according to the less or greater urgency or peculiarity of cir- PARTIV
cumstance under which a belligerent may fairly prevent their “ ”
access to his enemy.
Horses, saltpetre and sulphur may be placed first as subjects Horses.
Saltpetre,
of the widest usage. It has always been the practice of England sulphur,
* . . and the
and France to regard horses as contraband; in a very large . .
number of treaties they are expressly included; in none are they . Of
II]. O'Cle?”Il
excluded except in a few contracted by Russia, and in those explosives.
between the United States and other American countries, the
latter however confining the prohibition to cavalry mounts.
M. Bluntschli treats this limitation as a matter of international
rule, without explaining in what way horses used for artillery
or transport are less noxious than those employed in the cavalry,
or how it can be determined for which use they are intended".
Under the mere light of common sense the possibility of looking
upon horses as contraband seems hardly open to argument.
They may no doubt be important during war-time for agricultural
purposes, as powder may be used for fireworks; but the
presumption is certainly not in this direction. To place an
army on a war-footing often exhausts the whole horse reserve
of the country; the subsequent losses must be supplied from
* The Russian treaties are those of I766 with England, and those of 1780–2
with Sweden, Denmark, Portugal, Prussia, Austria, and Holland. Bluntschli,
§ 805; Valin, Ord. de la Marine, ii. 264. See also Vattel, liv. iii. chap. vii.
§ II2; Kent, lect. vii.; Manning, 355; Calvo, §§ 245I, 2461, who sustains
the contraband character of horses ; and on the other side Hübner, who
makes a like distinction with Bluntschli, and Hautefeuille (tit. viii. sect. ii.
§ 6), who takes refuge from treaties in primitive law.
The military administration in Germany is apparently less inclined than
the jurists of that country to regard the acquisition of horses by an enemy
as unimportant. In 1870 Count Bismarck complained to Lord A. Loftus
that the ‘export of horses from England under existing circumstances pro-
vided the enemy of Prussia with the means of carrying on a war with a
power in amity with Great Britain.” State Papers, No. 3, 1870, Franco-
Prussian War. Horses are included in an Austrian ordinance of 1864, which
in other respects limits contraband to munitions, &c., saltpetre, and sulphur.
Calvo, $ 2.293. Prince Bismarck, it would appear, regarded the retention
of saltpetre in the lists of contraband articles as being objectless under the
conditions of modern war (see quotation in Geffcken, Holtzendorff’s Hand-
buch, iv. 723). - .
HALL TU Ul
658 CONTRABAND
PART IV
CHAP. V.
Materials
of naval
construc-
tion.
abroad, and more necessarily so as the magnitude of armies
increases. Almost every imported horse is probably bought
on account of the government ; if in rare instances it is not,
some other horse is at least set free for belligerent use.
The amount of authority and of reason in favour of including
saltpetre and sulphur is approximately the same as that which
governs the case of horses. But there are no treaties in which
these commodities are expressly excluded.
They are not now of so much importance as formerly, but the
principle upon which saltpetre and sulphur are included of course
covers also materials necessary to the manufacture of the various
kinds of explosives which have been invented of late, and which
are yearly increasing in number. . :
Materials of naval construction, e.g. ship timber, masts, spars
of a certain size in a manufactured state, marine engines, or
their component parts, sailcloth, cordage, copper in sheets, hemp,
tar, &c., have been deemed contraband by less general consent.
English usage bars all such objects from reaching the enemy,
but does not treat them as being all equally harmful. Manu-
factured articles are looked upon with more suspicion than raw
material; and where commodities are the staple produce of the
exporting country and owned by persons belonging to it, the
penalty of confiscation is relaxed, and they are subjected only to
pre-emption". The American rule on the subject is identical
with that of England, and the Confederates also acted upon it
during the Civil War *. In the course of a dispute with Spain
in 1797, the details of which are unimportant, the government
of the United States laid down that ‘ship timber and naval
stores are by the law of nations contraband of war,’ and the
* Jonge Margaretha, i Rob. 193; Maria, i Rob. 373. So late as 1750 pitch
and tar, the produce of Sweden, were confiscated by the English courts. The
Apollo, iv. Rob. 161 ; The Twee Juffrowen, iv. Rob. 243.
During the Crimean War Sir J. Graham stated the opinion of the govern-
ment that by the law of nations, timber, cordage, pitch, and tar could be
dealt with as contraband of war. Hansard, 3rd series, vol. cxxxiv. 916.
* Dana's Wheaton, note No. 226; The Commercen, i Wheaton, 143;
Ortolan, Dip. de la Mer, vol. ii. Appendix xxi. :
CONTRABAND 659
courts give expression to a like view. The custom of France PART IV
has now become fixed in an opposite sense". The policy of the CHAP. v
Northern States, which have always exported their timber
and tar, can only be confirmed by the modern necessity of
importing machinery 4. The views of the South American
world are probably indicated by its treaties with the United
States, the tenor of which is thoroughly in consonance with the
interests of the southern nations. Writers are divided into two
classes, the members of which correspond to those whose diverse
opinions as to horses have already been cited. In practice,
therefore, the maritime authority of England and America is
opposed by that of France, supported by a crowd of nations,
the future nature or importance of the naval action of many
of which cannot at present be foretold. Upon reasonable
grounds it would appear that it must always be a matter of the
highest and most immediate belligerent importance for a non-
manufacturing state to import machinery in safety, and for a
country poor in forests or in iron to be able to introduce ship
timber and armour plates. It need hardly be pointed out that
while the principle remains unaltered, under which materials
apt for the construction of warships used reasonably to be
confiscated, not only will the lists of noxious articles be found
in the next maritime war to need large revision by the addition
of new objects and the excision of others which have fallen out
of use, but the relative importance of those which are continued
from the old list will be found to have greatly changed. [In
the Spanish-American War of 1898 the Navy Department of
the United States, in their instructions to ‘Blockading vessels
and cruisers,’ included among articles conditionally contraband
‘ Provisions when destined for an enemy’s ship or ships, or for a
place that is besieged.” The Spanish government enumerated
as articles contraband of war: “Cannons, machine guns, mortars,
* Pistoye et Duverdy, i. 445; Il Volante, ib. 409; La Minerve, ib. 4Io.
* The Swedish neutrality ordinance of 1854 only mentions as contraband
munitions of war, saltpetre, and sulphur. Neut. Laws Commissioners' Rep.,
Appendix iv.
U u 2
660 CONTRABAND
PART IV guns, all kinds of arms and fire-arms, bullets, bombs, grenades,
CHAP. V"
Ships.
Coal.
fuses, cartridges, matches, powder, saltpetre, sulphur, dynamite
and every kind of explosive, articles of equipment like uniforms,
straps, saddles, and artillery and cavalry harness, engines for ships
and their accessories, shafts, screws, boilers and other articles
used in the construction, repair, and arming of warships, and in
general all warlike instruments, utensils, tools and other articles,
and whatever may hereafter be determined to be contraband.’]
The position occupied by vessels in modern practice has
already been so fully discussed under the head of State Duties,
that it does not seem necessary to recur to the subject.
Coal, owing to the lateness of the date at which it has become
of importance in war, is the subject of a very limited usage.
In 1859 and 1870 France declared it not to be contraband;
and according to M. Calvo the greater number of the secondary
states have pronounced themselves in a like sense. England
on the other hand, during the war of 1870, considered that the
character of coal should be determined by its destination, and
though she refuses to class it, as a general rule, with contraband
merchandise, vessels were prohibited from sailing from English
ports with supplies directly consigned to the French fleet in the
North Sea. Germany went further, and remonstrated strongly
against its export to France being permitted by the English
government". The claim was extravagant, but the nation
which made it is not likely to exclude coal from its list of
contraband. More recently, during the West African Con-
ference of 1884, Russia took occasion to dissent vigorously
from the inclusion of coal amongst articles contraband of war,
and declared that she would ‘ categorically refuse her consent
to any articles in any treaty, convention, or instrument what-
ever which would imply its recognition' as such ".
The view taken by England is unquestionably that which is
* Calvo, $ 2460 ; Bluntschli, Š 805; Hansard, 3rd series, vol. cc.iii. Io94;
State Papers, Franco-German War, 1870, No. 3.
* Parl. Papers, Africa, No. iv., 1885, 132.
CONTRABAND 661
most appropriate to the uses of the commodity with which it
deals. Coal is employed so largely, and for so great a number
of innocent purposes, the whole daily life of many nations is so
dependent on it by its use for making gas, for driving loco-
motives, and for the conduct of the most ordinary industries,
that no sufficient presumption of an intended warlike use is
afforded by the simple fact of its destination to a belligerent
port. But on the other hand, it is in the highest degree noxious
when employed for certain purposes; and when its destination
to such purposes can be shown to be extremely probable, as by
its consignment to a port of naval equipment, or to a naval
station, such as Bermuda, or to a place used as a port of call, or
as a base of naval operations, it is difficult to see any reason for
sparing it which would not apply to gunpowder. One article is
as essential a condition of naval offence as is the other". As will
be seen directly, France has endeavoured within the last few
years to treat as contraband an article so much more innocent in
the circumstances than coal could be, that she at least must be
regarded as estopped from further alleging its total exemption.
The doctrine of the English courts at the commencement of
the last century with respect to provisions was that ‘generally
they were not contraband, but might become so in circumstances
arising out of the particular situation of the war, or the conditions
of the parties engaged in it *. Grain, biscuit, cheese, and even
wine, when on their way to a port of naval equipment or to
a naval armament, were condemned, and, as has already been
seen, the same practice was followed by the courts of the United
States *. In 1793 and 1795, the English government indefen-
* The above view is that which was taken by Lords Brougham and
Ringsdown in 1861 in a discussion in the House of Lords upon the Pro-
clamation of Neutrality issued by the English government at the outbreak
of the American Civil War. Hansard, 3rd series, vol. clxii. 2084 and 2087.
Coal is at present included by England in the list of articles conditionally con-
traband, see Admiralty Manual of Prize Law (1888), p. 20, and antea, p. 654.
* The Jonge Margaretha, i Rob. I93.
* The Ranger, vi Rob. 125; The Edward, iv. Rob. 69. For the American
practice, See antea, pp. 648 and 659.
PART IV
CHAP. V.
Provi-
Sions.
662 CONTRAE AND
PART IV sibly extended the application of the doctrine to the point of
CHAP, Y
seizing all vessels laden with provisions which were bound to
a French port, alleging as their justification that there was a
prospect of reducing the enemy by famine. A serious disagree-
ment occurred in consequence with the United States, which
maintained that provisions could only be treated as contraband
when destined for a place actually invested or blockaded; and
the point remained wholly unsettled by the Treaty of 1794,
which, while recognising that provisions, under the existing law
of nations, were capable of acquiring the taint of contraband,
did not define the circumstances under which the case would
arise". The excesses of the English government cast discredit
on the doctrine under the shelter of which they screened them-
selves. Manning adopts it, but not without evident hesitation.
Wheaton seems to think that provisions can only be contra-
band when sent to ports actually besieged or blockaded; and
M.M. Ortolan, Bluntschli, and Calvo declare this to be undoubt-
edly the case”. Until lately no nation except England had pushed
its practice even to the point admitted in the American courts,
and England itself had long regarded its own doctrine of 1793
as wholly untenable ; but in 1885 the doctrine was revived to
its fullest extent by a country which has been in the habit of
including a very narrow range of articles in its list of contraband.
France, during her hostilities of that year with China, declared
shipments of rice destined for any port north of Canton to be
contraband of war. The pretension was resisted by Great
Britain on the ground that though, in particular circumstances,
provisions may acquire a contraband character, they cannot in
general be so treated. In answer the French government alleged
that a special circumstance of such kind as to justify its action
was supplied by the fact of ‘the importance of rice in the feeding
* De Martens, Rec. v. 674.
* Manning, 361–72; Wheaton, Elem. pt. iv. chap. iii. § 24; Ortolan, Dip.
de la Mer, ii. 191 and 216; Bluntschli, § 807; Calvo, § 2452. Phillimore (iii.
§§ ccxlvi-lviii) seems to look upon the practice of the English and American
courts as being the most authoritative part of a confused usage. *
CONTRABAND - 663
of the Chinese population’ as well as of the Chinese armies. PART IV
Thus they implicitly claimed that articles become contraband, “’
not by their importance in military or naval operations, but by
the degree in which interference with their supply will put stress
upon the non-combatant population. Lord Granville notified that
Great Britain would not consider itself bound by the decision of
any Prize Court which should give effect to the doctrine put
forward by France; but no opportunity was afforded for learning
whether the French courts would have upheld the views of their
government, as no seizure was made during the short remainder
of the war; shipments of rice, it would seem, were entirely
stopped by fear of capture". s •
The topic of the admissibility of provisions in general to the
list of contraband of war may be put aside as one which is not
open to serious argument. Further than this, it cannot be
doubted for a moment, not only that the detention of provisions
bound even to a port of naval equipment is unauthorised by
usage, but that it is unjustifiable in theory. To divert food
from a large population, when no immediate military end is
to be served, because it may possibly be intended to form
a portion of supplies which in almost every case an army or
a squadron could complete from elsewhere with little incon-
venience, would be to put a stop to all neutral trade in innocent
articles. But writers have been satisfied with a broad statement
of principle, and they have overlooked an exceptional and no
doubt rare case, in which, as it would seem, provisions may
fairly be detained or confiscated. If supplies are consigned directly
to an enemy’s fleet, or if they are sent to a port where the fleet
is lying, they being in the latter case such as would be required
* Parl. Papers, France, No. i, 1885. Dr. Geffcken says (Holtzendorff's
Handbuch (1889), iv. 723), ‘man kann Lord Granville nur dankbar sein,
dass er das gute Recht der Neutralen so entschieden gegen französische
Willkür vertheidigt hat.” M. Calvo, in the last edition of his work (Droit
Int. iv. 23), says, “nous nous croyons fondés a poser en principe que le
commerce des denrées alimentaires reste essentiellement libre en temps de
guerre.”
664 g CONTRABAND
PART IV by ships, and not ordinary articles of import into the port of
CHAP. V.
consignment, their capture produces an analogous effect to that
of commissariat trains in the rear of an army. Tetention of pro-
visions is almost always unjustifiable, simply because no certainty
can be arrived at as to the use which will be made of them ;
so soon as certainty is in fact established, they, and everything
else which directly and to an important degree contributes to
make an armed force mobile, become rightly liable to seizure.
They are not less noxious than arms; but except in a particular
juncture of circumstances their noxiousness cannot be proved".
Money and unwrought metals, and in general, clothing and
its materials, are of like character with provisions, and in prin-
ciple may become contraband under similar conditions; but
under modern conditions it would very rarely be necessary to
consign money directly to an army or fleet in a neutral vessel;
and though uniforms, soldiers’ great coats, &c., may offer some
difficulty, since their destination and their use for warlike pur-
poses is obvious, they are not, on the other hand, of such
necessity in ordinary circumstances that the presence or absence
of a particular consignment can be expected to affect in any way
the issue of hostilities”.
Clothing,
lmoney,
metals, &c.
* The general doctrine in the text as to the capture of provisions bound to
any ports of naval equipment, and the exceptions from it, were both upheld
by the British government in the course of the above-mentioned correspon-
dence with France. See Lord Granville's note of the 27th Feb., 1885. Parl.
Papers, France, No. i, 1885.
* Manning (p. 358) thinks that metals and money are not contraband.
The United States have gone so far as to regard cotton as contraband of war
when, in their view, it took the place of money. “Cotton was contraband
of war, during the late Civil War, when it was the basis upon which the
belligerent operations of the Confederacy rested.’ “Cotton was useful as
collateral security for loans negotiated abroad by the Confederate govern-
ment, or was sold by it for cash to meet current expenses, or to purchase
arms and munitions of war. Its use for such purposes was publicly pro-
claimed, and its sale interdicted, except under regulations established by, or
under contract with, the Confederate government. . . . . Cotton in fact was
to the Confederacy as much munitions of war as powder and ball, for it
furnished the chief means of obtaining these indispensables of warfare. In
International Law, there could be no question as to the rights of the Federal
commanders to seize it as contraband of war, whether they found it on rebel
CONTRABAND 665
In strictness every article which is either necessarily contra- PART IV
CHAP. V
Penalties
the war, is liable to confiscation; but it is usual for those nations affecting
who vary their list of contraband to subject the latter class to :*
band, or which has become so from the special circumstances of
pre-emption only, which by the English practice means purchase
of the merchandise at its mercantile value, together with a
reasonable profit, usually calculated at ten per cent. on the
amount. This mitigation of extreme belligerent privilege is
also introduced in the case of products native to the exporting
country, even when they are affected by an inseparable taint
of contraband 1.
territory or intercepted it on the way to the parties who were to furnish in
return material aid in the form of sinews of war, arms or general supplies.”
Mr. Bayard, Sec. of State, to Mr. Murnaya, June 28, 1886. Wharton, Digest,
iii. 438.
* Phillimore, iii. §§ cclxviii-lxx. Rules for ascertaining the value of the
merchandise seized, and for other matters of detail connected with the
practice, were laid down in the treaty between Great Britain and the United
States in I794, and in that between the former country arid Sweden in
1803. M.M. Heffter (§ 161) and Calvo (§§ 2517-8) look upon pre-emption not
as a mitigation but as an intensification of the privileges of a belligerent ;
but they start with assuming that it is only used with respect to articles not
contraband of war. That much of the merchandise to which pre-emption
was applied during the wars of the end of the eighteenth century was not
rightly considered to be contraband, does not alter the fact that, being con-
sidered to be contraband, it was lightly dealt with. M. Heffter however
seems to admit that pre-emption may be permitted on payment not merely
of ordinary mercantile profit, but of such profit as would probably be realised
if the voyage were completed. M. Ortolan (ii. 220–30) understands the theory
of the English practice, but is debarred by his views as to the proper defini-
tion of contraband from recognising any occasions on which it could be
exercised. M. Bluntschli (§§ 806 and 811) thinks that “contrebande de
guerre ne peut étre confisquée que lorsque les neutres prétent secours et
assistance à l'adversaire, c'est-à-dire lorsqu'ils agissent en ennemis; la Saisie
ne pourra avoir lieu lorsque les neutres font simplement du négoce.’ To use
his own example, if coal is found to be on its way to a port where a belli-
gerent fleet is at anchor, it may be detained on compensation being made to
the owner, but it cannot be confiscated unless the intention of delivering it
to the enemy’s fleet can be proved. He is silent as to any different rule
being applied to munitions of war. He does not state where the authority
for this doctrine is to be found; but as its adoption would be tantamount to
sweeping away the whole law of contraband, it can hardly be admitted
on the word of a single writer, however distinguished he may be. An
Ostensible destination to a belligerent government agent or to an armed
666 CONTRABAND
The injuriousness to a belligerent of contraband trade by
a neutral results from the nature of the goods conveyed, and
not from the fact of transport. This distinction prevents the
penalty which affects contraband merchandise from being extended
as a general rule to the vessel in which it is". Some writers
consider that the neutral vessel has even a right to purchase the
free continuance of her voyage at the price of abandoning to
the belligerent whatever contraband goods she has on board,
unless their quantity is so great that the captor cannot receive
them. The existence of any such general right would be difficult
to prove; but a large number of treaties have established the
practice between certain nations *; and it was followed by the
Confederate States during the American Civil War. It can
scarcely be believed however that its vitality could stand the
force would hardly ever be necessary; and it is needless to say that mer-
chandise would in consequence never be open to condemnation. And as
a market with a good profit would be certain, whether the adventure were
captured or arrived at its destination, no check would exist by which the
trader could be restrained. Finally, as the merchant would be without risk,
the belligerent would be relieved from the necessity of paying war-prices for
his goods.
* The ancient practice, except in France, where, until 1681, goods were
only seized on payment of their value, was to confiscate both cargo and ship.
The Neutralitet, iii Rob. 295. And to this Russia seems to adhere ; Russian
Declaration, 1854, quoted by Lawrence in note to Wheaton, 573. In some
treaties the freedom of the ship is expressly stipulated, e.g. in that between
Denmark and Genoa, I789. De Martens, Rec. iv. 443.
* It is provided for in the treaties between Russia and Denmark, 1782
(De Martens, Rec. iii. 476); the United States and Sweden, 1783 (ib. 571);
Austria and Russia, 1785 (id. iv. 78); England and France, I786 (ib. 172);
France and Russia, 1787 (ib. 212); Russia and Two Sicilies, 1787 (ib. 238);
Russia and Portugal, 1787 (ib. 329); United States and France, 18oo (id.
vii. Io4); Russia and Sweden, 18or (ib. 332); United States and Central
America, 1825 (Nouv. Rec. vi. 834); United States and Brazil, 1828 (id.
ix. 61); United States and Mexico, 1831 (id. x. 339); United States and
Venezuela, 1836 (id. xiii. 558); United States and Peru, 1836 (id. xv. 119);
United States and Ecuador, 1839 (Nouv. Rec. Gén. iv. 315); France and
Ecuador, 1843 (id. v. 172); France and New Grenada, 1844 (id. vii. 62o);
France and Guatemala, 1848 (id. xii. II); United States and New Grenada,
1848 (id. xiii. 653); United States and San Salvador, 1850 (id. xv. 74); the
Argentine Republic and Peru, 1874 (id. 2° sér. xii. 448). Russia seems no
longer to hold the views of which she was an apostle in the end of the
eighteenth century; see last note and antea, pp. 647, 657.
CONTRABAND 667
rude test of a serious maritime war. Dana observes with great
truth that ‘ as the captor must still take the cargo into port, and
submit it to adjudication, and as the neutral carrier cannot bind
the owner of the supposed contraband not to claim it in court,
the captor is entitled for his own protection to the usual evidence
of the ship’s papers and whatever other evidence induced him to
make the capture, as well as to the examination on oath of the
master and supercargo of the vessel. It may not be possible or
convenient to detach all the papers and deliver them to the captor;
and certainly the testimony of the persons on board cannot be
taken at sea in the manner required by law.” In face of these
difficulties he is inclined to think that even the treaties can only
apply to cases in which “there is a capacity in the neutral vessel
to insure the captor against a claim to the goods".’
The more common practice is to take the vessel with its cargo
into a port of the captor, where the articles of contraband are
duly condemned; but the vessel itself is ordinarily visited with
no further penalty than loss of time, freight, and expenses”. If
however the ship and the cargo belong to the same owners, or if
the owner of the former is privy to the carriage of the contraband
goods, the vessel is involved in their fate *. Ships have also
* Dana’s Wheaton, note No. 230. Bluntschli (§ 810), Calvo (§ 2502), and
Hautefeuille (tit. xiii. chap. i. sect. i. § i) elevate the practice into a neutral
right. Ortolan (Dip. de la Mer, ii. 203) is more cautious. In the scheme of
the Institut de Droit International for a Règlement des Prises Maritimes, it
is provided that ‘le navire arrété pour cause de contrebande de guerre peut
continuer sa route, si sa cargaison ne se compose pas exclusivement, ou en
majeure partie, de contrebande de guerre, et que le patron soit pret à livrer
celle-ci au navire du belligérant et que le déchargement puisse avoir lieu
sans obstacle selon l’avis du commandant du croiseur.” Ann. de l’Institut,
1883, p. 218. *g
* Wheaton, Elem. pt. iv. chap. iii. § 26; Phillimore, iii. § celkxv ; The
Sarah Christina, i Rob. 242 ; Heffter, § 16I.
* Wheaton, Phillimore, and Heffter, loc. cit.; Bluntschli, $ 8ro. Ortolan
(Dip. de la Mer, ii. 199) argues that it is immaterial whether the vessel and
the cargo belong to the same person or not. In the usual theory, “le fond de
la pensée serait toujours de traiter le commercant en ennemi, de dire: Nous
tenons tes biens, quels qu'ils soient, nous les gardons. Mais nous le répétons,
il n'est pas ennemi, il est commerçant; il ne s'agit pas d’actes d'un gouverne-
ment qui romprait la neutralité, mais d’actes de particuliers qui exercent leur
PART IV
CHAP. V.
668 CONTRABAND
PART IV
CHAP. V.
On inno-
cent goods
in the
Sar (16
vessel.
Within
what
time the
penalty
attaches.
English
doctrine
of con-
tinuous
Voyage. |
W
been condemned for having on board articles contraband under
a treaty to which their country was a party; and for the fraudu-
lent circumstances of false papers and false destination *.
The principle which, according to the English practice, governs
the treatment of innocent merchandise found on board a ship
engaged in the transport of contraband, is identical with that
which affects the vessel itself. “ The law of nations,’ said Lord
Stowell, ‘in my opinion is, that to escape the contagion of
contraband, the innocent articles must be the property of a
different owner *.”
It is universally admitted that the offence of transporting
contraband goods is complete, and that the penalty of confisca-
tion attaches, from the moment of quitting port on a belligerent
destination ; and a destination is taken to be belligerent if it
is not clearly friendly ; a vessel is not permitted to leave her course
open to circumstances, and to make her destination dependent
on contingencies. If in any contingency she may touch at
a hostile port she is regarded as liable to capture ; she can only
save herself by proving that the contingent intention has been
definitively abandoned *.
During the American Civil War the courts of the United
States gave a violent extension to the notion of contraband
destination, borrowing for the purpose the name of a doctrine
of the English courts, of wholly different nature from that
by which they were themselves guided. As has already been
stated *, it was formerly held that neutrals in a sense aided
trafic.’ It seems to me that M. Ortolan’s reasoning is sound ; but it may be
doubted if the current practice is likely at present to be disturbed.
* The Neutralitet, iii Rob. 296; The Franklin, iii Rob. 224.
Ortolan argues (Dip. de la Mer, ii. 220-2), but not convincingly, against
condemnation for fraud. He sums up his views by saying, “Dans notre
opinion la confiscation pour contrebande de guerre ne peut s'appliquer
qu'aux articles prohibés et jamais au navire innocent ni à la cargaison
innocente.’ -
* The Staadt Embden, i Rob. 31.
* The Imina, iii Rob. 167; Trende Sostre, cited in The Lisette, id. vi.
390 m.
* Antea, p. 634.
CONTRABAND 669
in the hostilitiés of a belligerent by taking advantage of PART IV
permission given by him to carry on a trade which was for- *** *
bidden to them in time of peace. Property engaged in such
trade was therefore deemed to be confiscable. During the Anglo-
French wars of the revolution traders foreign to France or Spain
were permitted to trade between French and Spanish ports and
French and Spanish colonies, commerce with the colonies in
question having before the war been restricted to trade with
foreign ports and the colony. To evade the liability to con-
demnation in the English courts which entering into the new
trade involved, neutral merchants endeavoured to give an air of
innocence to their ventures by making a colourable importation
into some port from which trade with the colony or the home
country was permissible. Thus a cargo taken on board at
La Guayra was brought to Marblehead in Massachusetts, was
landed, re-embarked in the same vessel with the addition of some
sugar from the Havannah, and within a week of its arrival was
despatched to Bilbao ". In this and in like cases the English
courts condemned the property; but they were careful not to
condemn until what they conceived to be the hostile act was
irrevocably entered upon ; cargo was confiscated only when
captured on its voyage from the port of colourable importation
to the enemy country. The doctrine upon which the English
courts acted was called by Lord Stowell the doctrine of con-
tinuous voyage.
By the American courts this idea of continuous voyage was American
seized upon and applied to cases of contraband and blockade. º º
l tinuous
Vessels were captured while on their voyage from one neutra
Voyage.
port to another, and were then condemned as carriers of
contraband or for intent to break blockade. They were thus
condemned not for an act—for the act done was in itself innocent,
and no previous act existed with which it could be connected
so as to form a noxious whole—but on mere suspicion of intention
* The William, v Rob. 385 ; and see the Maria, ib. 365, and the cases
reviewed in the judgment [more particularly the Essex].
670 CONTRABAND
PART IV to do an act. Between the grounds upon which these and the
cHAP. v English cases were decided there was of course no analogy.
The American decisions have been universally reprobated
outside the United States, and would probably now find no
defenders in their own country. On the confession indeed of
one of the judges then sitting in the Supreme Court they seem
to have been due partly to passion and partly to ignorance.
‘The truth is,” wrote Mr. Justice Nelson, ten years later, ‘ that
the feeling of the country was deep and strong against England,
and the judges as individual citizens were no exceptions to that
feeling. Besides, the court was not then familiar with the law
of blockade 1.”
* Letter to Mr. Lawrence of August 4, 1873, quoted by Sir Travers Twiss,
Law Mag. and Rev. 4th Ser. iii. 31. [The American decisions cited by
Mr. Hall are the Bermuda, iii Wallace 59, and the Springbok, id. v. 1.
To these should be added the Peterhoff, v. Wallace 28, in which case goods of
a contraband character, whose primary destination was the port of Matamoras,
on the Mexican shore of the Rio Grande, were condemned on the ground that
they were intended to be carried inland into territory then forming part
of the Southern Confederacy and consequently hostile. The court declared
that the conveyance by neutrals to belligerents of contraband articles is
always unlawful, and that such goods may always be seized during transit
by sea. On the only occasion since the date of these cases (1863–65) in
which a British government has been confronted with the question of
contraband carried by a neutral it has followed the doctrine laid down in
the Springbok, and as regards the liability to seizure in transit of contraband
goods whose ultimate destination is a hostile territory its position is hardly
to be distinguished from that of the American Prize Courts.
During the recent South African War it was matter of notoriety that the
Dutch Republics received supplies of men, arms and munitions through
the port of Lorenço Marques, on Delagoa Bay, which belonged to Portugal,
a neutral power, and was connected by forty miles of railway with the
Transvaal frontier. As neither the Transvaal nor the Orange Free State
possessed any seaboard the prevention of this traffic by blockade was
impossible, but the British government maintained that neutral ships
on the high seas were subject to visit and search in cases where there was
ground for suspecting that they carried contraband of war among the
cargo or combatants among the passengers. In December 1899 and January
190o three German vessels, the Herzog, the General, and the Bundesrath—
the latter a mail steamer, and all belonging to the German East Africa
Company—were seized in African waters on suspicion of carrying contraband
of war and persons intending to join the Boer armies as combatants. The
German government entered a strong protest, more particularly with regard
to the Bundesrath as being a mail steamer; and though the circumstances
CONTRABAND 67.1
As a consequence of the doctrine that the goods are seized PARTIV
because of their noxious qualities, and not because of the act of CHAP. V
were eminently suspicious it did not appear, after search, that there was
sufficient evidence either of the destination of the passengers or of the
existence of contraband to justify further detention of the vessels or to
send them before a prize court. Their release was ordered and compensation
agreed upon for any losses incurred by German subjects. As the ships
did not go before a prize court it became impossible to obtain a judicial
ruling, and it remains to be seen whether, in similar circumstances, the
English judges will feel themselves bound, as they did in Hobbs v. Henning,
I8 C. B. N. S. 791, by the dictum of Lord Stowell in the Imina, that goods
going to a neutral port cannot come under the description of contraband ; or
whether, in the words of Professor Holland (letter to the Times, Jan. 3, 1900),
they will be prepared to make ‘innovations which seem to be demanded
by the conditions of modern commerce.”
Immediately on learning of the seizure of the Bundesrath, Count Hatzfeldt,
the German Ambassador in London, was instructed to demand her release on
the ground that ‘whatever may have been on board the Bundesrath there
could have been no contraband of war, since, according to the recognised
principles of international law, there cannot be contraband of war in trade
between neutral ports.” And in a letter to Lord Salisbury Count Hatzfeldt
laid stress on a passage in the British Admiralty Manual of Prize Law which
declared that “a vessel’s destination should be considered neutral, if both
the port to which she is bound and every intermediate port at which she is
to call in the course of her voyage be neutral,” and, that ‘the destination of
the vessel is conclusive as to the destination of the goods on board.’ To this
Lord Salisbury replied by pointing out that the Admiralty Manual, while
stating in a convenient form the general principles by which naval officers
are to be guided in the exercise of their duties, expressly refrained from
treating of questions which would ultimately have to be disposed of by the
Prize Court. The passage cited from it ‘ that the destination of the vessel
is conclusive as to the destination of the goods on board,” had no application,
Lord Salisbury contended, to such circumstances as had now arisen, and
could not apply to contraband of war on board of a neutral vessel if such
contraband was, at the time of seizure, consigned or intended to be delivered
to an agent of the enemy at a neutral port, or, in fact, destined for the
enemy's country. The ‘true view in regard to the latter category of goods
is, as Her Majesty’s Government believe, correctly stated in paragraph 813
of Professor Bluntschli’s Droit International Codifié (French translation,
2nd edition): “Siles navires ou marchandises ne sont expédiés à destination
d’un port neutre que pour mieux venir en aide à l'ennemi il y aura contre-
bande de guerre et la confiscation sera justifiée.”’ Lord Salisbury concluded
by saying that the British government were unable to agree that there were
grounds for ordering the release of the Bundesrath without examination, but
that they had sent instructions by telegram requiring the senior naval officer
on the spot to carry out the examination with as little delay as possible, and
to show in doing so every consideration for the owner and the innocent
passengers. Parliamentary Papers, Africa, No. 1 (1900). As we have seen,
672 CONTRABAND
PART IV the person carrying them, it is held that so soon as the forbidden
CHAP. V.
merchandise is deposited, the liability which is its outgrowth is
deposited also, and that neither the proceeds of its sales can be
touched on the return voyage, nor can the vessel, although
previously affected by her contents, be brought in for adjudi-
cation'. Some cases have however been decided in the English
courts which go further. A contraband cargo, for example,
having been taken to Batavia, with fraudulent papers and a
fraudulent destination to Tranquebar, the return cargo was
condemned on the ground that “in distant voyages the different
parts are not to be considered as two voyages, but as one entire
transaction, formed upon one original plan, conducted by the same
persons, and under one set of instructions, ab ovo usque ad mala.”
And in a case in which contraband was carried, by means of false
documents and suppression, to the Isle of France, whence the
vessel went in ballast to Batavia, and subsequently sailed to
various ports with more than one cargo before capture took place,
it was even held that ‘it is by no means necessary that the cargo
should have been purchased by the proceeds of the contraband’
carried on the outward voyage”. The doctrine of these cases is
not approved of by Wheaton or by foreign jurists; and, while
undoubtedly severe, it does not appear to be a necessary de-
duction from the general principles governing the forfeiture of
contraband cargoes.
*
the examination proved futile, the compensation was duly paid and the
incident closed. It is unlikely that the exact circumstances of the Bundesrath
and her consorts will ever be repeated or that we shall again find ourselves
at war with a civilised power possessing no seaboard. But should we in the
future become involved in hostilities with a maritime power it is certain
that the interpretation of the questions grouped generally under the term
of ‘continuous voyage' will assume grave importance. And I venture to
think that the attitude of whatever British government may be in office will
tend rather to the views expressed by Lord Salisbury than to those enunciated
by Mr. Hall; and that the destination of the cargo, not merely the destination
of the vessel, will be the criterion.]
* The Imina, iii Rob. 168; Wheaton, Elem. pt. iv. chap. iii. § 26; Calvo,
§ 2465; Heffter, Ś I6I.
* The Nancy, iii Rob. 16; The Margaret, i Acton, 335.
CHAPTER WI
ANALOGUES OF CONTRAE AND
WITH the transport of contraband merchandise is usually PART IV
classed analogically that of despatches bearing on the conduct jº
of the war, and of persons in the service of a belligerent. It is the ear.
however more correct and not less convenient to place adventures tºº.
of this kind under a distinct head, the analogy which they º:
possess to the carriage of articles contraband of war being ſº
always remote. They differ from it in some cases by involving contra-
an intimacy of connexion with the belligerent which cannot band
be inferred from the mere transport of contraband of war, and
in others by implying a purely accidental and almost involuntary
association with him. They are invariably something distinctly
more or something distinctly less than the transport of contra-
band amounts to. When they are of the former character
they may be undertaken for profit alone, but they are not in
the way of mere trade. The neutral individual is not only
taking his goods for sale to the best market, irrespectively of
the effect which their sale to a particular customer may have
on the issue of the war, but he makes a specific bargain to carry
despatches or persons in the service of the belligerent for belligerent
purposes; he thus personally enters the service of the belligerent,
he contracts as a servant to perform acts intended to affect the
issue of the war, and he makes himself in effect the enemy of
the other belligerent. In doing so he does not compromise
the neutrality of his own sovereign, because the non-neutral
acts are either as a matter of fact done beyond the territorial
jurisdiction of the latter, or if initiated within it, as sometimes
is the case in carrying despatches, they are of too secret a nature
to be, as a general rule, known or prevented. Hence the
HALL X X.
674 ANALOGUES OF CONTRABAND
PART IV belligerent is allowed to protect himself by means analogous
CHAP. VI
to those which he uses in the suppression of contraband trade.
He stops the trade by force, and inflicts a penalty on the neutral
individual. The real analogy between carriage of contraband
and acts of the kind in question lies not in the nature of the
acts, but in the nature of the remedy applicable in respect of
them. -
When the acts done are of the second kind, the belligerent
has no right to look upon them as being otherwise than innocent
in intention. If a neutral, who has been in the habit in the
way of his ordinary business of carrying post-bags to or from
a belligerent port, receives sealed despatches with other letters
in the usual bags, or if he even receives a separate bundle of
despatches without special remuneration, he cannot be said
to make a bargain with the belligerent, or to enter his service
personally, for belligerent purposes. He cannot even be said
to have done an act of trade of which he knows that the effect
will be injurious to the other belligerent; despatches may be
noxious, but they may also be innoxious; and the mere handing
over of despatches to him in the ordinary course of business
affords him no means of judging of their quality. A neutral
accepting despatches in this manner cannot therefore be subjected
to a penalty. Whether those which he takes under his care are
exposed to seizure will be considered presently. When again
a neutral in the way of his ordinary business holds himself out as
a common carrier, willing to transport everybody who may come
to him for a certain sum of money from one specified place to
another, he cannot be supposed to identify himself specially with
belligerent persons in the service of the state who take passage
with him. The only questions to be considered are whether there
is any usage compelling him to refuse to receive such persons if
they are of exceptional importance, and consequently whether
he can be visited with a penalty for receiving them knowingly,
and whether, finally, if he is himself free from liability, they
can be taken by their enemy from on board his vessel.
ANALOGUES OF CONTRAE AND 675
Tespatches not being necessarily noxious, a neutral carrier is PART IV
CHAP. VI
not necessarily exposed to a penalty for having made a specific Carriage
bargain to carry them. He renders himself liable to it only of deº
when there is reasonable ground for belief that he is aware of * atches.
their connexion with purposes of the war. As the bearer of
letters cannot be assumed to be acquainted with their contents,
the broad external fact of their destination is taken as the test
of their character, and consequently as the main ground for
fixing him with or exonerating him from responsibility. Two
classes of despatches are in this manner distinctly marked.
Those which are sent from accredited diplomatic or consular
agents residing in a neutral country to their government at home,
or inversely, are not presumably written with a belligerent object,
the proper function of such agents being to keep up relations
between their own and the neutral state. The despatches are
themselves exempt from seizure, on the ground that their trans-
mission is as important in the interests of the neutral as of the
belligerent country; and to carry them is therefore an innocent
act". Those on the other hand which are addressed to persons
in the military service of the belligerent, or to his unaccredited
agents in a neutral state, may be presumed to have reference to
the war; and the neutral is bound to act on the presumption.
If therefore they are found, when discovered in his custody, to
be written with a belligerent purpose, it is not open to him to
plead ignorance of their precise contents; he is exonerated by
nothing less than ignorance of the fact that they are in his
possession or of the quality of the person to whom they are
addressed. Letters not addressed to persons falling within either
of the above categories are primd facie innocent; if they contain
noxious matter they can only affect the vessel when other facts
in the case show the knowledge of the owner or master”. Thus,
* The Caroline, vi Rob. 461 ; The Madison, ii Edwards, 226; Ortolan,
Dip. de la Mer, ii. 240 ; Calvo, § 603. Comp. Letter of Marque of the
Confederate States, ap. Ortolan, ib. Append. xxi. .
* In the statement, issued by the Russian government in 1877, of the rules.
X X 2.
676 ANALOGUES OF CONTRABAND
PART IV where official despatches of importance were sent from Batavia
C. H.A.P. VI
to New York, and were there given by a private person, enclosed
in an ordinary envelope, to the master of an American ship, for
transmission to another private person in France, the ship was
released, on the oath of the captain that he was ignorant of the
contents of the letters entrusted to him *.
A neutral vessel becomes liable to the penalty appropriate to
the carriage of persons in the service of a belligerent, either
Carriage
of persons
in the
by which it intended to guide its conduct during the war with Turkey, it is
said that “le transport de dépêches et de la correspondance de l'ennemiest
assimilé à la contrebande de guerre.’ Journal de St. Pétersbourg, ## Mai,
I877. No doubt it was not intended to fix the neutral who should un-
wittingly carry correspondence of the enemy government with the penalties
attached to the carriage of contraband of war. It would however have been
better had the intention of the Russian government been more clearly con-
veyed. Art. 34 of the scheme for a Règlement des Prises Maritimes of the
Institut de Droit International lies open to a like criticism.
* The Rapid, Edwards, 228. The English courts have unfortunately some-
times given decisions inconsistent with the principle of this case, and have
held that a vessel is not exempted from confiscation by having been
violently pressed into the belligerent’s service, so that the non-neutral act
was involuntary, nor by deception on the part of the belligerent, so that the
non-neutral act was unwittingly done. “If an act of force exercised by one
belligerent on a neutral ship or person is to be considered as sufficient
justification for any act done by him contrary to the known duties of the
neutral character, there would be an end of any prohibition under the law of
nations to carry contraband, or to engage in any other hostile act. If a loss
is sustained in such a service, the neutral yielding to such demands must
Seek redress from the government which has imposed the restraint upon him.”
The Carolina, iv. Rob. 259. Nor is it necessary. that the master shall be
cognizant of the service on which he is engaged. ‘It will be sufficient if
there is an injury arising to the belligerent from the employment in which
the vessel is found. If imposition has been practised, it operates as force ;
and if redress in the way of indemnification is sought against any person, it
must be against those who have, by means either of compulsion or deceit,
exposed the property to danger; otherwise such opportunities of conveyance
would be constantly used, as it would be almost impossible, in the greater
number of cases, to prove the knowledge and privity of the immediate
offender.” The Orozembo, vi Rob. 436. Sir R. Phillimore maintains the
authority of these cases; iii. § cclzxii. It is no doubt proper to throw upon
the neutral the onus of proving his innocence, and to sift the evidence which
he adduces with the most jealous suspicion; but to punish him for the acts
of another person, of which he has been the unwilling or unconscious subject,
is as useless as it is wrong. The belligerent cannot be intimidated by losses
inflicted on his victim.
ANALOGUES OF CONTRABAND 677
when the latter has so hired it that it has become a transport PARTIV
in his service and that he has entire control over it; or when º .
the persons on board are such in number, importance, or distinc- the belli-
tion, and at the same time the circumstances of their reception gerent.
are such, as to create a reasonable presumption that the owner
or his agent intend to aid the belligerent in his war. In the case
of the ship Friendship, a vessel was hired to bring home to France
eighty-four shipwrecked officers and sailors. It was confiscated
as a transport, because it appeared in evidence that the vessel
was not permitted to take cargo, and that the French govern-
ment had paid for the passage of the men; who were thus being
carried, not as common passengers, but as a part of the French
navy, from a port of the United States to a port in France. In
another case a vessel sailed from Rotterdam to Lisbon, where
it was ostensibly chartered by a Portuguese subject to carry
cargo or passengers to Macao; no cargo was shipped, but after
some time spent in fitting it for passengers with unusual care,
three Dutch officers of rank embarked in it, not for Macao, but
for Batavia. Lord Stowell, on the facts of the case, inferred that
a contract had been entered into with the Dutch government
before the vessel left Rotterdam, and condemned it ".
In the transport of persons in the service of a belligerent, the
essence of the offence consists in the intent to help him ; if
therefore this intent can in any way be proved, it is not only
immaterial whether the service rendered is important or slight,
but it is not even necessary that it shall have an immediate
local relation to warlike operations. It is possible for a neutral
carrier to become affected by responsibility for a transport
effected to a neutral port, and it may perhaps be enough to
establish liability that the persons so conveyed shall be in civil
employment.
As a neutral vessel may be the bearer of despatches passing
between a belligerent government and its diplomatic agents in
* The Friendship, vi Rob. 422 ; The Orozembo, ib. 433 ; Bernard, 224;
Ortolan, Dip. de la Mer, ii. 234.
678 ANALOGUES OF CONTRAE AND
PART IV a neutral country, so also, and for the same reasons, the transport
CHAP. VI
of diplomatic agents themselves is permitted.
It will be remembered that in the case of ordinary contraband
trade the contraband merchandise is confiscated, but the vessel
usually suffers no further penalty than loss of time, freight, and
expenses. In the case of transport of despatches or belligerent
persons, the despatches are of course seized, the persons become
prisoners of war, and the ship is confiscated. The different
treatment of the ship in the two cases corresponds to the
different character of the acts of its owner. For simple carriage
of contraband, the carrier lies under no presumption of enmity
towards the belligerent, and his loss of freight, &c., is a sensible
deterrent from the forbidden traffic ; when he enters the service
of the enemy, seizure of the transported objects is not likely
to affect his earnings, while at the same time he has so acted as
fully to justify the employment towards him of greater severity ".
Vessels not being subject to a penalty for Garrying despatches
in the way of ordinary business, packets of a regular mail line
are exempted as of course ; and merchant vessels are protected
in like manner when, by municipal regulations of the country
from the ports of which they have sailed, they are obliged to
take on board all government despatches or letters sent from the
post-offices”.
The great increase which has taken place of late years in
the number of steamers plying regularly with mails has given
importance to the question whether it is possible to invest them
with further privileges. At present, although secure from con-
demnation, they are no more exempted than any other private
ship from visit ; nor does their own innocence protect their
noxious contents, so that their post-bags may be seized on
account of despatches believed to be within them. But the
* Ortolan, Dip. de la Mer, ii. 234 ; Wheaton, Elem. pt. iv. ch. iii. § 25 ;
Phillimore, iii. § celixxii; Heffter, § 161°.
* Lawrence, note to Wheaton, pt. iv. chap. iii. § 25; Calvo, $ 2530 ; Ortolan,
Penalty
incurred
by the
transport
of ana-
logues of
contra-
band.
Carriage
of de-
spatches
in the
ordinary
way of
trade.
Whether
mail-bags
ought to
be exempt
from
search.
ii. 240. Hautefeuille exaggerates the immunities of neutrals carrying de-
spatches ; tit. viii. Sect. v. § 5.
ANALOGUES OF CONTRABAND 679
secrecy and regularity of postal communication is now so neces- PART IV
sary to the intercourse of nations, and the interests affected by “ ”
every detention of a mail are so great, that the practical enforce-
ment of the belligerent right would soon become intolerable to
neutrals. Much tenderness would no doubt now be shown in
a naval war to mail vessels and their contents; and it may be
assumed that the latter would only be seized under very excep-
tional circumstances. France in 1870 directed its officers that
‘when a vessel subjected to visit is a packet-boat engaged in
postal service, and with a government agent on board belonging
to the state of which the vessel carries the flag, the word of the
agent may be taken as to the character of the letters and
despatches on board *; and it is likely that the line of conduct
followed on this occasion will serve as a model to other belli-
gerents. At the same time it is impossible to overlook the fact
that no national guarantee of the innocence of the contents of
a mail can really be afforded by a neutral power. No govern-
ment could undertake to answer for all letters passed in the
ordinary manner through its post-offices. To give immunity
from seizure as of right to neutral mail-bags would therefore be
equivalent to resigning all power to intercept correspondence
‘between the hostile country and its colonies, or a distant expedi-
tion sent out by it ; and it is not difficult to imagine occasions
when the absence of such power might be a matter of grave
* Rev. de Droit Int. xi. 582. A treaty between England and Brazil of
the year 1827 provides that packets are to be considered king's ships until
a special convention on the subject is concluded. De Martens, Nouv. Rec.
vii. 486 : See also the Anglo-Belgian postal convention, and that of 1869
between France and Italy. In a series of postal conventions between
England and France it has been agreed, first, that packets owned by the
state should be treated as vessels of war in the ports of the two countries;
next, that vessels freighted as packets by the governments of the respective
states should be so treated ; and, finally, that lines subsidised by them should
have the same privileges. De Martens, Nouv. Rec. xiii. IoT ; Nouv. Rec.
Gén. v. 183; Hertslet’s Treaties, x. Io9. The conventions between England
and France, it will be observed, do not provide for the treatment of packets on
the high seas. [In the case of the Panama, 176 United States Reports, p. 535,
the Supreme Court of the United States refused to listen to the contention that
the fact of carrying mails exempted an enemy merchant ship from capture.]
680 ANALOGUES OF CONTRABAND
PART IV importance. Probably the best solution of the difficulty would
CHAP. VI
be to concede immunity as a general rule to mail-bags, upon
a declaration in writing being made by the agent of the neutral
government on board that no despatches are being carried for
the enemy, but to permit a belligerent to examine the bags upon
reasonable grounds of suspicion being specifically stated in
writing.
No usage has hitherto formed itself on the subject. During
the American Civil War it was at first ordered by the govern-
ment of the United States that duly authenticated mail-bags
should either be forwarded unopened to the foreign department at
Washington, or should be handed after seizure to a naval or
consular authority of the country to which they belonged, to be
opened by him, on the understanding that documents to which
the belligerent government had a right should be delivered to it.
On the suggestion of the English government, which expressed
its belief ‘ that the government of the United States was pre-
pared to concede that all mail-bags, clearly certified to be such,
should be exempt from seizure or visitation,” these orders were
modified ; and naval officers were directed, in the case of the
capture of vessels carrying mails, to forward the latter unopened
to their destination *.
The effect of the carriage of persons in the service of a belli-
gerent by a neutral vessel in the ordinary way of trade depends
upon the answer which has to be given to the question whether
such persons can be assimilated to contraband of war. If they
can be classed as a sort of contraband, they may be seized and
brought in with the vessel on board of which they are found, and
proof that they have been received with knowledge of their
character will entail the same consequences to the ship as follow
upon ordinary contraband trade. If they cannot be so classed,
the vessel in which they are travelling remains a ship under
neutral jurisdiction which has not been brought by the conduct
Carriage
of persons
in the
ordinary
way of
trade.
* See the correspondence in Bernard's Neut. of Great Britain, 319–23;
Dana, note to Wheaton, No. 228.
ANALOGUES OF CONTRAE AND 681
of the persons having control over it within the scope of those PART IV
exceptional rights in restraint of noxious trade which belligerents * *
have been allowed to assume; the enemy of the belligerent
travellers therefore is thrown back upon those ordinary rights
which he possesses in time of peace; in other words, he can only
seize the persons in question in the emergency of an immediate
and pressing danger".
The point came under discussion between England and the Case of
|United States during the American Civil War. In 1861 Messrs. the Trent.
Mason and Slidell, who had been appointed diplomatic agents of
the Confederate States at the Courts of St. James’s and the
Tuileries, came on board the English passenger steamer Trent at
Havana, and sailed in her from there to St. Thomas’s on their
way to England. While passing through the Bahama Channel
the vessel was boarded from the American frigate San Jacinto,
and Messrs. Mason and Slidell were taken out of her and carried
as prisoners to Boston, the Trent being allowed to continue her
voyage. The English government demanded and obtained their
immediate release, it being acknowledged by the United States
that they had been unduly arrested. Lord Russell and Mr. Seward
differed however in the view which they respectively took as to
the reasons for which the capture was irregular.
Captain Wilkes, the commander of the San Jacinto, professed
to regard Messrs. Mason and Slidell as embodied despatches. In
the same spirit Mr. Seward, in an elaborate note addressed to
Lord Lyons, declared them to be contraband, “since the word
means broadly, contrary to proclamation, prohibited, illegal,
unlawful. All writers and judges,’ he adds in an off-hand way,
but without giving any proof of his assertion”, “pronounce naval
or military persons in the service of the enemy contraband.’
Mr. Seward then claimed that Messrs. Mason and Slidell were
liable to capture. But he admitted that they were not properly
* Comp. antea, pp. 275 et seq.
* He refers to Wattel and Lord Stowell, but the passages which he para-
phrases have no reference whatever to the point in question.
682 ANALOGUES OF CONTRABAND
PART IV disposed of. If they were contraband of war, they and the vessel
CHAP. VI
ought to have been sent in together for adjudication; a captor
has no right to decide for himself whether particular things or
persons are in fact contraband; to do so is the business of the
courts, and a neutral state cannot be expected to acquiesce in the
rough conclusions of a naval officer arrived at on the deck of the
prize vessel. At this point Mr. Seward found himself confronted
with an insuperable difficulty which he tried in vain to get over.
If the captured persons had been really contraband, the courts
would have had no difficulty in dealing with them whether the
vessel were brought in or not. “But Courts of Admiralty have
formulas to try only claims to contraband chattels, but none to
try claims concerning contraband persons; the courts can enter-
tain no proceedings and render no judgment in favour of or
against the alleged contraband men.” The presence of the vessel
was necessary in order to place before the courts indirectly the
question whether the men were contraband or not ; and if that
question, so raised, were settled adversely to the men, Mr. Seward
acknowledged that the courts were incompetent to determine in
what way they should be disposed of ; that matter, he confessed,
was ‘still to be really determined, if at all, by diplomatic arrange-
ment or by war.” Mr. Seward’s own statement is conclusive
against himself. The whole law of contraband, blockade, &c., is
based upon the concession by the neutral state to the belligerent
state and its courts of whatever jurisdiction is necessary for self-
protection. To say that Admiralty Courts have no means of
rendering a judgment in favour of or against persons alleged to
be contraband, or of determining what disposition is to be made
of them, is to say that persons have not been treated as contra-
band. If they are contraband the courts must have power to
deal with them. -
Lord Russell controverted the doctrine of Mr. Seward in
a note which was also elaborate. He denied that the capture of
Messrs. Mason and Slidell was simply irregular in its incidents,
and maintained that they were not liable to capture at all; but
ANALOGUES OF CONTRABAND 683
he rested the immunity which he claimed for them on the PART IV
privilege of receiving diplomatic agents from belligerent states “*”
accorded by the practice of nations to neutral states, and on the
necessity that contraband articles shall have a hostile, and not
a neutral, destination ; he even seems, by quoting without com-
ment a passage from Bynkershoek, in which soldiers are classed
with arms and other articles of use in war, to favour the view
that at least persons who are in the military service of the state
may be treated as contraband 1. -
It is to be regretted that Lord Russell did not address himself
to the refutation of the doctrine that persons can be contraband
of war. For the reasons mentioned above, however, there need
be no hesitation in rejecting it. In the words of Mr. Bernard,
‘ it is incorrect to speak of the conveyance of persons in the
military or civil employment of a belligerent as if it were the
same thing as the conveyance of contraband of war, or as if
the same rules were applicable to it. It is a different thing, and
the rules applicable to it are different.” If a vessel is so hired by
a belligerent that he has entire control over it to the extent
of his special needs, the ship itself is confiscable as having
acquired an enemy character, and the persons on board become
prisoners of war. If on the other hand belligerent persons,
whatever their quality, go on board a neutral vessel as simple
passengers to the place whither she is in any case bound, the ship
remains neutral and covers the persons on board with the
protection of her neutral character”.
* Bynkershoek, Quaest. Jur. Pub. lib. i. cap. ix; but Bynkershoek is
speaking rather of a general state duty to prevent its subjects from helping
a belligerent than of the special question of contraband. In the next chapter,
where he discusses what articles are contraband of war, he makes no mention
of soldiers.
* Mr. Seward to Lord Lyons, Dec. 26, 1862, and Earl Russell to Lord
Lyons, Jan. 23, 1862, ap. Bernard, 20I and 215. On the general doctrine see
Bernard, 224; Bluntschli, $ 817; Dana, note to Wheaton's Elem., No. 228;
Marquardsen, Der Trentfall. The last-mentioned work may be consulted
with advantage on the whole subject of the transport by neutrals of belli-
gerent persons and despatches.
PART IV
CHAP. VII
Conflict-
ing theo-
ries on the
subject.
CHAPTER VII
CARRIAGE OF BELLIGERENT GOODS IN NEUTRAL
VESSELS
No branch of international law has been debated at such length
or with greater keenness than those which refer to belligerent
goods carried in neutral vessels, and to neutral goods in belligerent
vessels. It is possible, and indeed probable, that the Declaration
of Paris, to which most civilised states have adhered, has per-
manently secured an identical practice among the signataries to
it, and that it will in time be definitively accepted by those states
also which for the present have reserved the right to pursue their
accustomed policy. But the terms of the Declaration are not
strictly authoritative law, and it is therefore not yet superfluous
to sketch, though more lightly than was formerly necessary, the
history and the grounds of the rival doctrines which have been
held upon the two subjects. Usually these subjects have been
treated together, and the verbal jingle, “Free ships, free goods;
IEnemy ships, enemy goods,” has been thought to express a
necessary correlation, which has been equally supposed to exist
between the contrary doctrines. The Declaration of Paris, in
choosing from each system the part most favourable to neutrals,
has at least restored their natural independence to two essentially
distinct questions of law.
Two theories have been held, and two usages have existed,
with respect to the treatment of belligerent goods in neutral
vessels. In the simpler and primitive view they were enemy’s
goods, and therefore liable to seizure, wherever found outside the
jurisdiction of a third state; according to a later and more
artificial doctrine, the neutral vessel is invested with power to
protect them.
T}ELLIGERENT GOODS IN NEUTRAL WESSELS 685
The first of these doctrines is found in the Consolato del Mare, PART IV
the rules of which embodied the customs authoritative in the sº VII
western Mediterranean during the Middle Ages; and Louis XI, usage.
in writing to the King of Sicily, speaks of the principle as being
in his time accepted beyond all question". The French Ordon-
nances of 1538, 1543, and 1584, not only confiscated the hostile
goods, but extended the penalty to the ship in which they were
embarked, and though the courts appear to have avoided giving
full effect to the law, their actual rules were not milder than
those enforced by other nations”. It was not till 1650 that the Practice
principle of the immunity of goods carried in a neutral vessel º
was asserted or agreed upon. In that year a treaty was con- tº.
cluded between Spain and the United Provinces, in which it was
agreed that the goods of the enemies of either party should be
free from capture, when on board the ships of the other party,
the latter being neutral; and in 1655 a treaty was made between
France and the Hanse Towns, the language of which seems to
convey the privilege *, but its real meaning, as understood by
one of the contracting parties, may probably be best read by the
light of negotiations which took place some time before between
France and the United Provinces. In 1646 a treaty had pro-
vided that for four years the Dutch government should be
excepted from the operation of the Ordinances, and that ‘ their
ships should free their cargo, notwithstanding the presence in it
of merchandise, and even of grain and vegetables belonging to
enemies, excepting always articles contraband of war.’ On an
attempt being made by De Witt in 1653 to take the plain
* He says that it is a ‘usus in hoc occidentali mari indelebiliter obser-
vatus, res hostium et bona, etiamsi infra amicorum aut confoederatorum
triremes Seu naves positae sint, nisi obstiterit securitas specialiter super hoc
concessa, impune et licite jure bellorum capi posse ; * quoted by Heffter, § 163.
* Valin, Ord. de la Marine, liv. iii. tit. ix. art. 7. Grotius gave his sanction
to the principle of the French Ordonnances: ‘Neque amicorum naves in
praedam veniunt ob res hostiles, nisi ex consensu id factum sit dominorum
navis,' which of course would usually be the case. De Jure Belli et Pacis,
lib. iii. C. vi. § vi. note. - -
* Dumont, vi. i. 571, and ii. Io9.
686 CARRIAGE OF BELLIGERENT GOODS
PART IV
CHAP. VII
The Dutch
the pro-
moters of
the doc-
trine, Free
ships, free
goods.
meaning of these words as the ground of a permanent arrange-
ment, it appeared that the French had merely understood the
treaty of 1646 to preserve from confiscation the ship and neutral
merchandise associated in its cargo with that of an enemy. It
is not likely, as is remarked by Manning, that Louis XIV would
grant larger immunities to the Hanse Towns than to Holland,
and the treaty made with them in 1655 may therefore be no
doubt interpreted in the same sense". In 1659 a clause appears
in the Peace of the Pyrenees, by which free ships are made to
free goods, and during the remainder of the seventeenth century
France concluded nine treaties, in which a like provision was
contained ". But in the midst of these treaties the Ordonnance
of 1681 proved how entirely they were exceptions to the general
policy of the state, by re-enacting in all their severity the pro-
visions of the law of 1584, and in 1661 and 1663 treaties were
concluded with Sweden in which no stipulation inconsistent with
it was contained *.
The true promoters of the new principle were the Dutch, to
whom the security of their carrying trade was of the deepest
importance. They not only were the earliest people to stipulate
for the freedom of enemy’s cargo in neutral ships by a treaty of
undoubted meaning, but they steadily kept it before their eyes
as an object to be striven for, to such purpose that they induced
Spain, Portugal, France, England, and Sweden to grant or
confirm the privilege in twelve treaties between the years 1650
and 17oo *. The only treaty of the century to which neither
* Dumont, vi. i. 342; Manning, 317.
* With Denmark, 1662 (Dumont, vi. ii. 439); Denmark, 1663 (ib. 463);
United Provinces, 1662 (ib. 415); Portugal, 1667 (id. vii. i. 17); Spain, 1668
(ib. 90); Sweden, 1672 (ib. 166); England, 1677 (ib. 329); United Provinces,
1678 (ib. 359); United Provinces, 1697 (ib. ii. 389). - -
* Valin, Ord. de la Marine, liv. iii. tit. ix. art. 7. Treaties with Sweden,
Dunmont, vi. ii. 381 and 448. -
* With Spain, 1650 (Dumont, vi. i. 571); Portugal, 1661 (ib. ii. 369);
France, 1661 (ib. 346); France, 1662 (ib. 415); England, 1667 (id. vii. i.
49); Sweden, 1667 (ib. 38); England, 1674 (ib. 283); Sweden, 1675 (ib.
317); France, 1678 (ib. 359); Sweden, 1679 (ib. 440); England, I689 (ib. ii.
236); France, I697 (ib. 389). -> - • * • *.
IN NEUTRAL WESSELS 687
the United Provinces nor France was a party was concluded
between England and Portugal in 1652 *, but except when pre-
vented by express convention, England maintained the confiscation
of enemy’s goods, and she confirmed her practice by several
treaties”. At least ten treaties, dealing with the commercial
relations of the contracting parties, the greater number of which
were made between nations which were also parties to treaties
giving expression to the doctrine of Free ships, free goods,
permitted by their silence the common practice to continue, and
manifested the absence of a fixed policy on the part of the
countries which engaged in them *.
PART TV
CHAP. YII
At the commencement of the eighteenth century, therefore, Practice
& t e * II]
the new principle had made little solid progress; and one of the eigh.
teenth
century.
two nations which had concluded the largest number of treaties
embracing it, was in no hurry to adopt it as a voluntary rule.
the
The French Réglement of 1704 exaggerated the harshness of France.
former law by rendering liable to confiscation the raw or manu-
factured produce of hostile soil, when the property of a neutral,
except when it was in course of transport direct from the
enemy’s country to a port of the neutral state to which its owner
belonged. It was not till 1744 that neutral vessels carrying
enemy's goods were freed from confiscation, and it was only in 1778
that the freedom of the goods themselves was conceded by the
Reglement of that year 4. It must be presumed that the rules
* Dumont, vi. ii. 84. This treaty was confirmed in 1661 and 1703, so
that the rule of “Free ships, free goods’ remained in force as between England
and Portugal till 1810, when it was abandoned by the Treaty of Rio Janeiro.
Hansard, czlii. 491.
* With Sweden, 1654 (Dumont, vi. ii. 80); Denmark, 1654 (ib. 92);
Sweden, 1661 (ib. 387); Denmark, 1661 (ib. 346); Denmark, 1670 (id. vii. i.
I28).
* England and the United Provinces, 1654 (Dumont, vi. ii. 76); England
and Brandenburg, 1661 (ib. 364); England and Sweden, 1661 (ib. 384);
England and Denmark, 1661 (ib. 346); Sweden and France, 1661 (ib. 381);
England and the United Provinces, 1662 (ib. 423); England and Denmark,
1669 (id. vii. i. 126); England and Spain, 1670 (ib. 138); England and
Sweden, 1666 (id. vi. iii. 83); France and Sweden, 1672 (id. vii. i. 169).
* Valin, Ord. de la Marine, liv. iii, tit. ix. art. 7; Pistoye et Duverdy,
i. 344 and 360. --
688 CARRIAGE OF BELLIGERENT GOODS
PART IV enforced by a country, apart from treaties, correspond to its
CHAP. VII
views of justice or established usage. If, while maintaining
these rules, it at the same time multiplies treaties in an
opposite sense, the inference is not that it looks upon the law
which it is content to administer as destitute of authority,
but that its own interests are best served by inducing other
nations to alter its provisions. France became the advocate
of the principle of Free ships, free goods, but it is safer to
appeal to her regulations than to her treaties as evidence of
general rule, and it is not likely that those regulations would have
been expunged from her international code if the maritime
predominance of England had failed to consolidate itself.
Spain imitated the policy of France, and while recognising the
freedom of enemy's goods by treaty, it was not till 178o that
her private rules exempted either them or the neutral vessel
from confiscation". England fettered herself by treaties with
few states, and continued to give effect to the old practice of
seizing neutral goods, while releasing the neutral vessel with
payment of freight”. In maintaining this usage she was
brought in 178o into sharp collision with the neutral states.
The First Armed Neutrality put forward the immunity of belli-
gerent cargoes in neutral vessels as one of its doctrines; and
the weakness produced by the American War prevented England
from adopting any means for the vindication of her views.
But the members of the league were not themselves proof against
the temptation of war. In 1788 Sweden openly renounced the
Spain.
Great
Britain.
First,
Armed
Neutral-
ity.
* De Martens, Rec. iv. 270.
* The principal treaties concluded during the eighteenth century, down
to the time of the First Armed Neutrality, in which the principle of “Free
ships, free goods’ was contained, were those of Utrecht in I713 between
England, France, and the United Provinces (Dumont, viii. i. 348 and 379);
between England and Spain, 1713 (ib. 409); Spain and the United Provinces,
I714 (ib. 431); the United Provinces and Russia, 1715 (ib. 470); Spain
and the Empire, I725 (ib. ii. II5); France and the United Provinces, 1739
(Wenck. Codex Juris Gentium, i. 424); France and Denmark, I742 (ib. 621);
Sweden and the Two Sicilies, I742 (ib. ii. 143); Denmark and the Two
Sicilies, 1748 (ib. 281); France and the United States, 1778 (De Martens,
Rec. ii. 598).
IN NEUTRAL WESSELS 689
principles of the Armed Neutrality while at war with Russia, PART IV
CHAP. VII
and the latter power tacitly followed her example+. The
treaties which were made between the establishment of the
Armed Neutrality and the outbreak of the wars of the Revolu-
tion stipulate for the freedom of hostile goods “; but three Practice
months of hostilities had hardly passed, in 1793, when France tº the
wars,
5 º *
declared enemy’s goods on board neutral vessels to be good prize, I793–1815.
the neutral ship being released, and freight being paid by the
captors”. Russia had already denounced her treaty of 1787;
and Great Britain, Russia, Spain, the Empire, and Prussia
agreed that the contracting powers would unite all their efforts
to prevent neutrals “from giving, on this occasion of common
concern to every civilised state, any protection whatever, directly
or indirectly, in consequence of their neutrality, to the commerce
or property of the French, on the sea, or in the ports of France *.’
The general attitude of England in the matter was clearly de-
fined by Pitt. “I must observe,” he said, ‘ that the hon. gentle-
man has fallen into the same error which constitutes the great
fallacy in the reasoning of the advocates for the Northern
powers; namely, that every exception from the general law by
a particular treaty proves the law to be as it is stated in that
treaty ; whereas the very circumstance of making an exception
by treaty proves what the general law of nations would be if
no such treaty were made to modify or alter it. The hon.
* Manning, 336.
* United States and United Provinces, 1782 (De Martens, Rec. iii. 439);
Denmark and Russia, I782 (ib. 476); England, France, and Spain, 1783 (ib.
543); United States and Sweden, 1783 (ib. 568); United States and Prussia,
1785 (id. iv. 42); France and the United Provinces, 1785 (ib. 68); Austria
and Russia, I785 (ib. 76); England and France, 1786 (ib. 168); Russia and
France, I787 (ib. 210); Russia and the Two Sicilies, 1787 (ib. 236); Russia
and Portugal, 1787 (ib. 327); France and Hamburg, 1789 (ib. 426); Den-
mark and Genoa, I789 (ib. 442). But the United States distinctly asserted
the doctrine that “according to the law of nations, the goods of an enemy
found on board the ship of a friend are liable to capture.’ Messrs. Pinckney,
&c., to the French Minister of Foreign Affairs, January 27, 1798; American
State Papers, ii. 181. See also Mr. Jefferson to Mr. Morris, August 16, 1793;
ib. i. I23.
* De Martens, Rec. v. 382. * Ib. 409 and 440.
HALL Y y
690 CARRIAGE OF BELLIGERENT GOODS
PART IV gentleman alludes to the treaty made between this country and
CHAP. VII
Progress
of the
doctrine,
France in the year 1787, known by the name of the Commercial
Treaty. In that treaty it certainly was stipulated that in the
event of Great Britain being engaged in war and France being
neutral, she should have the advantage now claimed, and vice
versd; but the hon. gentleman confesses that he recollects that
the very same objection was made at that time, and was fully
answered, and that it was clearly proved that no part of our
stipulation in that treaty tended to a dereliction of the principles
for which we are now contending ".”
The Second Armed Neutrality reasserted for a moment the
principles of 1780, but one of the articles of the treaty concluded
between England and Russia in 1801, to which Denmark and
Sweden afterwards acceded, provided that the property of enemies
on board neutral vessels should be confiscable. In 1807 Russia
annulled the convention of 18OI, and proclaiming afresh the
principles of the Armed Neutrality, declared that she would
never depart from them *; but in 1809 an ukase was issued
under which ‘ships laden in part with the goods of the manu-
facture or produce of hostile countries were to be stopped, and
the merchandise confiscated and sold by auction for the profit
of the crown. But if the merchandise aforesaid compose more
than half the cargo, not only the cargo, but the ship also shall
be confiscated *.’
Thus at the general peace, not only had the ancient practice
been steadily acted upon by the most powerful maritime state;
but the advocates of the intrusive principle had permitted their
allegiance to it to be not infrequently shaken, under circumstances
which sufficiently prove their conduct to have been simply
dictated in all cases by the varying interests of the moment.
Between 1815 and 1854 France gave proof of her continued
preference for the doctrine of Free ships, free goods, by concluding
** several treaties in which it was embodied; and the United
* Pitt's Speeches, iii. 227–8. * Ortolan, Dip. de la Mer, ii. 156.
'. . . . . . . .” De Martens, Nouv. Rec. i. 485. . * -
IN NEUTRAL WESSELS 691.
States, while fully accepting the English view as expressing PART IV
isting law, entered into frequent ts i trary ºar. Vº
existing law, entered into requent engagements in a con rary free goods
sense". The new principle, therefore, acquired a certain amount towards
& * tº ſº tº 1 ac-
of additional strength; and at the same time no opportunities º
occurred for upholding the older usage by practice. Until
the beginning of the Crimean War, however, no change took
place in the relative legal value of the two principles. The
original adherents of the newer doctrine had embraced it afresh;
but it had not been admitted by the powers which before rejected
it. But in 1854 it was felt that it was difficult for allied states to It is acted
e tº º upon
apply different legal theories in a common war, and an agreement dºing the
for identical action was come to by Great Britain and France, Sººn
under which the principle of the immunity of enemy’s goods in
neutral ships was provisionally accepted by the former. On the Declara-
g * & e e f
conclusion of the Treaty of Paris the same principle was accepted º:
by the parties to it in a Declaration, which was intended to form
the basis of a uniform doctrine on maritime law, and to which all
states not represented at the Congress were afterwards invited to
accede. The only countries possessing a sea coast which, up
* “The United States and Great Britain have long stood committed 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; 2. 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 with it on the high seas. While the government of the United
States has endeavoured to introduce the rule of Free ships, free goods, by
conventions, her courts have always decided that it is not the rule of war;
and her diplomatists and text-writers, with singular concurrence, considering
the opposite diplomatic policy of the country, have agreed to that position.’
Dana’s Wheaton, note to § 475.
The treaties concluded by the United States are those with Sweden, 1827
(De Martens, Nouv. Rec. vii. 279); Colombia, 1824 (id. vi. 992); Central
America, 1825 (ib. 832); Brazil, 1828 (id. ix. 60); Mexico, 1831 (id. x. 336);
Chile, 1832 (id. xi. 442); Venezuela, 1836 (id. xiii. 556); Peru-Bolivia, 1836
(id. xv. II.8); Ecuador, 1839 (Nouv. Rec. Gén. iv. 310); New Grenada, 1846
(id. xiii. 659); San Salvador, 1850 (id. xv. 73); Russia, 1854 (id. xvi. i. 572).
Treaties have been concluded by France with Venezuela, 1843 (id. v. 170);
Ecuador, 1843 (ib. 4oo); New Grenada, 1844 (id. vii. 62o); Chile, 1846 (id.
xvi. i. 9); Guatemala, 1848 (id. xii. Io).
Y y 2
692 BELLIGERENT GOODS IN NEUTRAL WESSELS
PART IV to the present time, have withheld their formal adherence to the
CHAP. VII
Declaration are the United States, Spain, Mexico, and Venezuela.
But the United States announced at the beginning of the Civil
War [and in 1898] that they would give effect to the principle
during the continuance of hostilities”. [In the latter year Spain,
while reiterating that she was not bound by the Declaration of Paris,
gave orders for the observation of the rules that (a) a neutral flag
covers the enemies' goods, except contraband of war, and (b) neutral
goods, except contraband of war, are not liable to confiscation
under the enemies’ flag”.] •º *
Although, therefore, the freedom of enemy’s goods in neutral
vessels is not yet secured by a unanimous act, or by a usage
which is in strictness binding on all nations, there is little
probability of reversion to the custom which was at one time
universal, and which till lately enjoyed a superior authority.
Practice
of the
United
States,
and of
Spain.
* Dana's Wheaton, note to § 475. Hertslet, Commercial Treaties, xxi. IoT3.
* Id. p. 837.
CHAPTER VIII
BLOCKADE
BLOCKADE consists in the interception by a belligerent of access PART IV
to territory or to a place which is in the possession of his enemy. i."
As it is obviously a mode by which severe stress may be put upon blockade
the population subjected to it through the interruption of com- consists.
munication with the external world which it entails, it is an
invariable concomitant of all warlike operations by which control
is gained over avenues through which such communication takes
place. The conditions however under which communication is
interrupted by land and by sea are different, and they are such
that for the purposes of international law blockade consists only
in the interception of access by sea. On land it is enforced partly
as a consequence of the possession by a belligerent of the rights
of control which have been already mentioned, and partly through
the material power of which he can avail himself at every moment
within the range of his military occupation. Blockade on land
therefore calls for no special rules for its maintenance; sovereignty
in some cases and military occupation in others supply the re-
quisite rights of control, and the material conditions of its exercise
are simple. But at sea the rights of the neutral being equal to
those of the belligerent except in so far as they are subordinated
to the special needs of the latter, the neutral has primd facie
a right of access to the enemy; and when this right is ousted by
the assertion of the special needs of the belligerent, it must be
shown that the latter is in a position to render the assertion
effective, the right which is set up by his needs being a bare one,
like all other belligerent rights, and the conditions of maritime
warfare being such that control over a space of water in which
a naval force is stationed cannot be supposed to be effective as of
694 BLOCKADE
PART IV course. Maritime blockade therefore calls for special rules de-
*** fining the conditions under which it can be set up and those under
which it continues to exist.
It is agreed that for a maritime blockade to be duly set up
and maintained— -
Condi- I. The belligerent must intend to institute it as a distinct and
tions of e - * @ g
its due in- substantive measure of war, and his intention must have
stitution in some way been brought to the knowledge of the
and main- -
tenance. neutrals affected.
2. It must have been initiated under sufficient authority.
3. It must be maintained by a sufficient and properly disposed
force.
It is endeavoured to give effect to these general rules by means
of practices which enjoy very different degrees of authority.
FIow a As a blockade is not a necessary consequence of a state of war,
i., but has to be specially instituted, it would evidently be impossible
tººd to assume that a neutral possesses any knowledge of its existence
knowledge until the fact of its establishment has been in some manner
: * notified or brought home to him. So far not only is the general
rule as a matter of fact agreed upon, but it could not stand
otherwise. But opinions differ widely as to whether it is suffi-
cient in order to justify the belligerent in seizing the property
of the neutral that the knowledge of the latter shall be proved,
or whether a formal notification must be served upon him.
English According to the view which finds its expression in English
º * and North American practice, and has been adopted also by
theory. Prussia and Denmark", the source of liability to seizure is know-
ledge of the fact that a blockade has been established, together
with the presumption that an existing blockade will under
ordinary circumstances continue. A neutral therefore who sails
for a port with full knowledge that it is blockaded at the moment
* See an analysis of the Prussian Prize Regulations [which are now
presumably in force throughout the German Empire] in Bulmerincq (Le
Droit des Prises Maritimes, Rev. de Droit Int. x. 240), and of the Danish
Regulations (ib. 212). - 2
BLOCKAT).E 695
when his voyage is commenced, ought to expect that it will be PARTIV
in the same state when he arrives; and anything which can be “”
proved to affect him with knowledge at the former time will
render him liable to the penalties imposed for violation of
blockade. g
On the other hand, according to the view which is identified sº
with French practice, and which is also followed by Italy, Spain,
and Sweden', the neutral is not expected to shape his course on
any presumption with respect to the continuance or cessation of
a blockade; and he is not injuriously affected by knowledge
acquired at any time before he can experimentally test its exis-
tence as good on the spot which is subjected to it.
Hence, although it has lately become customary for the French French
government at the commencement of a blockade to notify the practice.
fact of its existence to foreign governments as a matter of
courtesy, their subjects are not considered to be affected by notice
through them. Each neutral trader approaching the forbidden
coast is individually warned by one of the blockading squadron,
a vessel not engaged in the blockade being incompetent to affect
the trader with notice, the fact of warning is endorsed on the
ship's papers, with mention of the date and place of notification,
and it is only for subsequent attempts to enter that the neutral
is liable to seizure. The practice was consistently followed by
France in blockading the Mexican ports in 1838, and those of
the Argentine Republic in the same year; it has been equally
respected during her recent European wars; and stipulations in
accordance with it are found in many modern treaties concluded
by her, as well as in a certain number of conventions between
other states. It is also adopted by several modern continental
writers; who argue that to sail for a blockaded place in the hope
of finding the entry freed by the chances of war, by the effects
of weather, or by some other cause, is in itself an innocent act,
and therefore not to be punished because the hope fails to be
For the Italian and Swedish rules see Bulmerineq (Rev. de Droit Int. x.
22O and 44I); for the Spanish practice, Negrin, 213.
696 BLOCKADE
justified by the circumstances existing at the moment of
arrival”.
The theory accepted in England and the United States is the
natural parent of a more elastic usage. Notification is a con-
venient mode of fixing a neutral with knowledge of the existence
of a blockade, but it is not the necessary condition of his liability
to seizure. In strictness, if a neutral vessel sails with the
destination of a blockaded port from a place at which the fact
of blockade is so notorious that ignorance of its existence is
impossible, confiscation may take place upon seizure without
previous warning”. But in practice notification of some sort is
PART IV
CHAP. VIII
English
and Ame-
rican prac-
tice.
* Ortolan, ii. 335–41. Calvo (§ 2581) considers that the French practice
ought to be the accepted rule of law; Pistoye and Duverdy (i. 370) and
Hautefeuille (tit. ix. chap. ii. sect. ii) hold that the special notification is
necessary, and that a diplomatic notification Ought also to be given.
For the French Regulations of 1870 see Bulmerincq in Rev. de Droit Int.
X. 4OO.
The treaties in which France has inserted stipulations in conformity with
her practice are those with Brazil, 1828 (De Martens, Nouv. Rec. viii. 60);
with Venezuela, 1843 (Nouv. Rec. Gén. v. I'72); with Ecuador, 1843 (ib. 4II);
with New Grenada, 1844 (id. vii. 621); with Guatemala, 1848 (id. xii. II);
with Chile, 1846 (id. xvi. i. Io); with Honduras, 1856 (ib. ii. 154); with
Nicaragua, I849 (ib. I91).
The treaties in which countries other than France have bound themselves
by like provisions are those between the United States and Sweden in 1816
(De Martens, Nouv. Rec. iv. 258); the Hanseatic Towns and Mexico, 1828
(id. Nouv. Supp. i. 687); the United States and Sardinia, 1838 (id. xvi. 266);
Austria and Mexico, 1842 (Nouv. Rec. Gén, iii. 448); the Argentine Republic
and Peru (id. 2° Sér. xii. 448); Italy and Uruguay (id. xii. 664). The
practice seems to have arisen out of the doctrine of the Second Armed
Neutrality, in the treaties concluded between the members of which the
principle was first laid down. De Martens, Rec. vii. 172, &c.
* The Columbia, i Rob. I56; The Adelaide Rose, ii Rob. III, note ; The
TJnion, Spinks, I64. ‘If a blockade de facto be good in law without notifica-
tion, and a wilful violation of a legal blockade be punishable with confisca-
tion, propositions which are free from doubt, the mode in which knowledge.
has been acquired by the offender, if it be clearly proved, cannot be of
importance.” The Franciska, on appeal, x Moore, 46. But capture on the
ground of notoriety would be looked upon with disfavour. Dr. Lushington,
in adjudicating in the first instance in the case of the Franciska, Said,
“ Unless the notoriety of the blockade be so great, that according to the
ordinary course of human affairs the knowledge thereof must have reached
all engaging in the trade between the ports so blockaded, a warning to each
vessel approaching is indispensably requisite.' Spinks, 135.
BLOCKAT) E 697
always given. If the blockade is instituted under the direct
authority of the government, the fact of its commencement is
always notified to foreign states. The information thus com-
municated affects their subjects, who must be supposed to be
put in possession of the knowledge which is afforded with the
express object of its being communicated to them. If therefore
a vessel sails to a blockaded port at a time clearly later than that
at which the general notification is matter of public knowledge,
no special notification is required before seizure". But the case
is different when vessels sail before such time, or approach a port
closed by a merely de facto blockade, which has been instituted
on the authority of the officer commanding the belligerent force
in the neighbouring seas, or which for some reason has not yet
been the subject of a diplomatic notification. Knowledge of the
fact cannot then be presumed, and vessels are consequently turned
back with a like notice endorsed on their papers to that which is
required under the French usage”. And a mitigation of the
strict rule is introduced when a vessel sails with full knowledge
of the existence of a blockade from a port at a great distance
from the closed harbours. The presumption in favour of con-
tinuance of the blockade is of necessity weakened with a lapse of
time sufficient for the completion of a long voyage; and it was
held during the wars at the beginning of the nineteenth century
that a vessel coming from America into European waters was
not rendered liable to capture by mere destination to a blockaded
port. Enquiry as to the continued existence or suspension of the
blockade was under these conditions justifiable; but it was held
that such enquiry ought to be made, not at the blockaded port, but
at intermediate places, where fraud was less likely to be masked
under enquiry than at the mouth of the blockaded harbour 8.
* The Columbia, loc. cit.; The Neptunus, ii Rob. I 14; The Wrow Johanna,
ii Rob. Io9 ; Mr. Justice Story in The Nereide, ix. Cranch, 440.
* Wrow Judith, i Rob. 15I ; The Neptunus, loc. cit.; Admiralty Manual
of Prize Law (Holland), 1888, p. 34. A vessel may sail with the intention of
enquiring whether a blockade de facto is continued or not, Naylor v. Taylor,
iv Manning and Ryland, 531.
* The Betsey, i Rob. 334. The United States have stipulated for the
PART IV
CHAP. VIII
698 BLOCKADE
PART IV
CHAP. VIII
The Eng-
lish prac-
tice to be
preferred.
The practice of England and the United States is unquestion-
ably better suited than that of France to the present conditions
of navigation". The electric telegraph and newspapers spread
authentic news rapidly and universally; steam has reduced the
length of voyages and rendered their duration certain; it can
mitigated practice of allowing a vessel to sail for a distant port notwith-
standing the existence of blockade in treaties concluded in 1806 with
England (De Martens, Rec. viii. 585); in 1816 with Sweden (id. Nouv. Rec.
iv. 258); in 1828 with Brazil (id. ix. 62); in 1836 with Venezuela (id. xiii.
560); in the same year with Bolivia (id. xv. 113); in 1839 with Ecuador
(Nouv. Rec. Gén. iv. 316); and in 1871 with Italy (Archives de Droit Int.
1874, p. 134). M. Calvo has misapprehended the effect of these treaties
in adducing them as examples of the adoption of the French practice with
respect to notification. He has shown an equal misapprehension of the
English practice in treating as a middle term between it and that of France
the Danish Regulations of 1864, providing that special notification is to be
given to a vessel which, from the shortness of time which has elapsed since
the issue of a general notification, has not had an opportunity of becoming
acquainted with the existence of a blockade (§§ 2589–90). M. Ortolan appears
also to have fallen into error with respect to the practice of the United
States, in saying, after stating the French practice, that ‘c’est ainsi égale-
ment, qu'agissent les États Unis d’Amérique.” Mr. Lincoln's Proclamation
of April 19, 1861, no doubt stated that vessels would be individually warned;
but Commodore Prendergast, in notifying the actual commencement of the
blockade of the Virginian coast in July of the same year, said only that
‘those coming from abroad, and ignorant of the blockade, will be warned
off; ' and the principle that sailing from a neutral port with intent to enter
a blockaded port, and with knowledge of the existence of the blockade,
subjects the vessel to capture, without special notice, was re-asserted with
much emphasis by Chief Justice Chase in the case of The Circassian,
ii Wallace, 151. It has always been a principle in American practice, and
was affirmed by Mr. Justice Story in the case of The Nereide, ix. Cranch,
44o. In the case of The Hiawatha (ii Black, 675), which issued from a
blockaded port during the civil war, it was contended that, under the
Proclamation of April 19, a warning was necessary, but it was decided that it
would be absurd to require a warning when the master of a vessel had actual
previous knowledge. [And see the Adula, I76 United States Reports,
p. 362. President McKinley by proclamation dated April 22, 1898, ordered
that all neutrals' vessels approaching or attempting to leave a blockaded port
‘without notice or knowledge" of the blockade should be duly warned by the
commander of the blockading force, id. p. 391.] See also postea, pp. 709, 7Io.
* M.M. Bluntschli (§ 832) and Heffter (§ 156) partially adopt the English
practice in admitting that special notification to the neutral trader is un-
necessary ; but they hold that capture can only be effected during an actual
attempt at violation on the blockaded spot itself. The same view is expressed
in the proposed Règlement des Prises Maritimes of the Inst. de Droit Int.
§§ 35–44. Annuaire de l’Institut, I883, p. 218.
BLOCKADE # 699
only be under rare circumstances, against the effect of which
mitigations such as those introduced into English usage may
easily provide, that a vessel will arrive innocently before a
blockaded port. If capture for attempt to break a blockade is
to be permissible at all, it must be morally permissible to, capture
under ordinary circumstances without individual notice, provided
diplomatic, or other sufficient general, notice has been given;
and if such capture is morally permissible, it is certainly to the
advantage of neutral states to allow it to take place. Belligerents
will not quietly suffer the results of commerce prejudicial to their
warlike operations; and unless they are entrusted with weapons
of sufficient strength to enable them to deal with it effectively,
they will try, with more or less success, to throw responsibility
upon the neutral states, to the confusion of legal distinctions
which it is highly convenient to the latter to maintain, and to
the vastly increased danger of national conflicts *.
PART IV
CHAP. VIII
A blockade is considered to be an act of war which affects, Authority
of right, not only the subjects of a neutral state, but also persons
and things partaking of the national character. Strictly, access
under
which a
blockade
may be
to a blockaded place is forbidden to ships of war as well as estab-
merchant vessels. The establishment of a blockade is therefore
so high an exercise of sovereign power that it can only be
effected under the express or implied orders of the government
of a country; and the general instructions given to the com-
mander of a belligerent force do not necessarily imply competent
orders. If however he is operating at a considerable distance
lished.
from home, he is supposed to be invested with such portion of
1. During the American Civil War Chief Justice Chase, in speaking of the
rule under which sailing from a neutral port with intent to enter a blockaded
port, and with knowledge of the existence of the blockade, subjects a vessel to
capture, declared that “we are entirely satisfied with this rule. It was estab-
lished, with some hesitation, when sailing vessels were the only vehicles of
ocean commerce ; but now when steam and electricity have made all nations
neighbours, and blockade-running from neutral ports seems to have been
Organised as a business, and almost raised into a profession, it is clearly
seen to be indispensable to the efficient exercise of belligerent rights.” The
Circassian, ii Wallace, I51.
700 BLOCKAT)E
PART IV the sovereign authority as may be required for the exigencies
CHAP. VIII
of the service; and it has even been held that when an officer'
not possessed of adequate powers had taken on himself to
commence a blockade, captures effected under it might be made
retrospectively valid by a subsequent adoption of his act by the
state. The principle therefore in practice goes little further
than to forbid subordinate officers from creating or varying
a blockade at their will”.
The doctrine with regard to the proper maintenance of
a blockade, which has been laid down by the English and
American courts, which is approved of by English and American
writers, and which is embodied in the policy of both countries,
requires that a place shall be ‘watched by a force sufficient to
render the egress or ingress dangerous ; or, in other words, save
under peculiar circumstances, as fogs, violent winds, and some
necessary absences, sufficient to render the capture of vessels
attempting to go in or come out most probable *.’
Provided access is in fact interdicted, the distance at which
the blockading force may be stationed from the closed port is
immaterial. Thus Buenos Ayres has been considered to be
effectually blockaded by vessels stationed in the neighbourhood
of Monte Video; and during the Russian war in 1854 the
blockade of Riga was maintained at a distance of one hundred
and twenty miles from the town by a ship in the Lyser Ort,
a channel three miles wide, which forms the only navigable
entrance to the gulf &
It is impossible to fix with any accuracy the amount of danger
in entry which is necessary to preserve the validity of a blockade.
Mainten-
ance by a
sufficient
and pro-
perly dis-
posed
force.
Practice of
England
and the
United
States.
* Phillimore, iii. § cclxxxviii.; Calvo, $ 2555; Bluntschli, § 831 ; The
Rolla, vi Rob. 365; The Hendrick and Maria, i Rob. I48; The Franciska,
x Moore, 46. [The Adula, I76 United States Reports, p. 361.]
* The Franciska, Spinks, II5; Phillimore, iii. §§ ccxciii-iv; Bernard, 245;
Rent, Lect. vii.; Wheaton, pt. iv. chap. iii. § 28; Mr. Mason’s instructions
to the naval forces of the United States, 1846, quoted by Ortolan, ii. 343.
Among continental publicists M. Bluntschli accepts and repeats the English
doctrine, § 829.
* The Franciska, loc. cit.
BLOCKAT)E 701
*f;
It is for the Prize Courts of the belligerent to decide whether
in a given instance a vessel captured for its breach had reason
to suppose it to be non-existent; or for the neutral government
to examine, on the particular facts, whether it is proper to with-
hold or to withdraw recognition. In some cases, where a block-
ading squadron, from the nature of the channels leading to
a port, can be eluded with ease, a large number of successful
evasions may be insufficient to destroy the legal efficiency of the
blockade. Thus during the American Civil War, the blockade
of Charleston was usually maintained by several ships, of which
one lay off the bar between the two principal channels of en-
trance, while two or three others cruised outside within signalling
distance. This amount and disposition of force seem to have
been thought by the British government amply sufficient to
create the degree of risk necessary under the English view of
international law, although from the peculiar nature of the coast
a large number of vessels succeeded in getting out and in during
the whole continuance of the blockade".
This abstention from any pedantic interpretation of general
rules extends to cases where, the force being adequate and the
fact of blockade known, a ship enters owing to a momentary
absence of a blockading vessel, not only when, as already
mentioned, the absence is owing to weather, but even when it
is caused by the chase of a prize. The blockade is not in these
cases raised, and an endeavour to take advantage of such absence
PART IV
CHAP. VIII.
is looked upon as an attempted breach. On the other hand, the when a
blockade ceases if an enemy’s force succeeds, for however short
a time, in driving off the squadron which is charged with main-
taining it *, or if vessels are diverted to other employment; and
if a prize is pursued so far from the blockading station that
a neutral ship on arriving near the entrance may fairly think
* Bernard, Neut. of Great Britain, chaps. x and xii.
* The Frederic Molke, i Rob. 87; The Columbia, i Rob. 156; The Hoffnung,
vi Rob. II5 ; Vos and Graves v. The Un. Ins. Cy., ii Johnson (American),
187; Radcliff v. Un. Ins. Cy., vii Johnson, 53.
blockade
Côa,SES.
702 BLOCKADE
that the blockade is abandoned, it may be held to be at least so
far impaired that the neutral so attempting to enter is relieved
from the natural penalty of his act".
The opinions held by the majority of modern continental
writers as to the conditions under which a blockade is efficiently
maintained, differ in several important respects from the principles
which guide the practice of England and the United States.
They may perhaps be summarised as follows. The immediate
entrance to a port must be guarded by stationary vessels, in such
number as either to render entrance impossible, or at least to
expose any ships running in to a cross fire from the guns of
two of them. Any accidental circumstance which makes it
temporarily possible to go in puts an end to the blockade, and
justifies a vessel in attempting to enter”. As, for three quarters
PART IV
CHAP. VIII
Opinions
of con-
tinental
writers.
* Bernard, 239. See, on diversion, the note of Lord Lyons to Mr. Seward,
May 22, 1861. The Niagara, blockading Charleston, had been sent away to
intercept a cargo of arms expected at another part of the coast, and the
harbour remained open for at least five days. Lord Lyons took for granted
that an interruption had occurred, but the government of the United States,
in view of the effect understood by it to flow from a general notification,
refused to admit that any cessation had taken place.
It was formerly held in the United States, and would, it may be pre-
sumed, be still held in England, that “although acquisitions made during
war are not considered permanent until confirmed by treaty, yet to every
commercial and belligerent purpose they are considered as part of the domain
of the conqueror so long as he retains the possession and government of
them ' (Thirty Hogsheads of Sugar v. Boyle, ix. Cranch, 195), and con-
sequently that a blockade is raised by the capture and occupation of the
blockaded place by the attacking force. But during the American Civil War;
a majority of judges in the Supreme Court asserted the doctrine, to which
reference has been already made (antea, p. 508), that “The occupation of
a city by a blockading belligerent does not terminate a public blockade of it
previously existing ; the city being itself hostile, the opposing enemy in the
neighbourhood, and the occupation limited, recent, and subject to the
vicissitudes of war;' Chief Justice Chase in The Circassian, ii Wallace, I35.
Compensation for wrongful capture was subsequently awarded in this case by
the Mixed Commission on British and American Claims (Parl. Papers, North
Am. No. 2, 1874, p. I24).
* The opinions of the various writers are essentially identical, but differ
from one another on some points. Heffter (§ 155) requires that vessels shall
be ‘stationnés en permanence et en assez grand nombre pour empêcher toute
espèce de communication avec la place ou le port investi;' but he does not
hold that temporary absence entails cessation of the blockade. Ortolan
BLOCKADE 703
of a century, by far the most extensive experience in blockades PART IV
has fallen to the share of England and the United States, these º "
opinions, whatever their abstract merits, labour under the
disadvantage of being inconsistent with the most authoritative
usage upon the subject. They are also much more rigid than
the principles embodied in the Declaration of Paris, and accepted
by the great majority of civilised nations. It is hardly necessary
therefore to inquire upon what ground they are stated to
represent existing law *. The signatary powers of the Declaration
(ii. 328) thinks that blockade of a harbour is not effective unless * toutes les
passes ou avenues qui y conduisent sont tellement gardées par des forces
navales permanentes, que tout bâtiment qui chercherait à s'y introduire ne
puisse le faire sans être aperçu et sans en être détourné ;' and considers (344)
that if weather has caused the temporary absence of the blockading squadron,
although the blockade is not raised, it is open to a vessel to attempt to enter,
and if taken, to allege ignorance of the fact of blockade. Calvo ($ 2567)
declares that the belligerent must have a sufficient force, so disposed as to
become * le maître de la mer territoriale qu'il occupe, et à pouvoir en interdire
l'accès à tout navire étranger ; ' apparently he requires that the ships shall
be anchored. Hautefeuille (tit. ix. chap. ii. sect. i. $ I) says that * le blocus
n'existe qu'autant que le belligérant qui attaque un port place devant ce port
un nombre de bâtiments de guerre suffisant pour en commander les abords
par leur artillerie ;'and holds (sect. iii. S 2) that interruption from any cause
terminates the blockade. To Gessner (179) * la définition de la première
neutralité paraît exemplaire ; ' a blockaded port is therefore one where there
is, * par la disposition de la puissance qui l'attaque avec des vaisseaux arrêtés
et suffisamment proches, un danger évident d'entrer.' He exhausts the
language of invective in assailing the existing doctrine and policy of England,
and is fully satisfied with the American practice during the Civil War. It
is not for me to attempt his extrication from the complieated inconsistencies
in which he has thus involved himself. Pistoye and Duverdy (i. 365) con-
fine themselves to cautious and accurate language. * Il faut,' they say, * que
la place soit investie par des forces suffisantes pour en rendre l'entrée péril-
leuse aux navires qui voudraient s'y introduire.'
The proposed * Règlement des Prises Maritimes,' adopted by the Institut de
Droit International, provides that a blockade is to be considered effective
* lorsqu'il existe un danger imminent pour l'entrée ou la sortie du port
bloqué, à cause d'un nombre suffisant de navires de guerre stationnés ou ne
s'écartant que momentanément de leur station.' It adds that * si les navires
bloquants s'éloignent de leur station pour un motif autre que le mauvais
temps constaté, le blocus est considéré comme levé.' Ann. de l'Institut,
1883, p. 218. The effect of the suggested rules would approach very nearly
to the English practice.
* A few treaties contain stipulations in agreement with the views of the
foreign writers whom I have quoted. I am not aware that anx blockade has - &
704 BLOCKADE
PART IV
CHAP. VIII
of Paris, which is perfectly in harmony with English doctrine,
were satisfied with declaring that ‘blockades in order to be
binding must be effective, that is to say, maintained by a force
sufficient really to prevent access to the coast of the enemy'.”
It may be remarked, apart from reference to existing law, and
apart also from all question whether blockades ought to be
permitted at every place where they are now lawful, that the
experience of the civil war in America has proved the use of
steam to assist so powerfully in their evasion, as to render it
unwise to shackle the belligerent with too severe restrictions.
If it is wished altogether to deprive blockades of efficacy, it
would be franker and better to propose to sweep them away
altogether.
ever been conducted under their provisions. In 1742 France and Denmark
agreed that a blockaded port should be closed by two vessels at least, or by a
battery of guns on 1and, and the same stipulation was made between Denmark
and Genoa in 1789. The treaty between Holland and the Two Sicilies in
1753 prescribes that at least six ships of war shall be ranged at a distance
slightly greater than gun-shot from the entrance, or else that the blockade
may be maintained by shore batteries and other works. The First Armed
Neutrality, in 1780, laid down that blockade must be effected with vessels
stationary and sufficiently near to produce evident danger in entering. The
Second Armed Neutrality put forward the same doctrine; but Russia, in her
treaty with England in 18or, consented to substitute the words “arrétés ou
suffisamment proches,’ for ‘arrétés et suffisamment proches;" and the only
treaty since concluded in which stringent stipulations are made is that
between Denmark and Prussia in 1818, by which it was required that two
vessels should be stationed before every blockaded port. Hautefeuille, tit. ix.
chap. ii. sect. i. § I ; Gessner, I59; De Martens, Rec. vii. 263.
* With reference to the meaning of the Declaration of Paris, Lord Russell,
in 1863, wrote as follows: ‘The Declaration of Paris was in truth directed
against what were once termed “paper blockades;” that is, blockades not
sustained by any actual force, or sustained by a notoriously inadequate
naval force, such as an occasional appearance of a man-of-war in the offing,
or the like. . . . The interpretation, therefore, placed by Her Majesty's
government on the Declaration was, that a blockade, in order to be respected
by neutrals, must be practically effective. . . . It is proper to add, that the
same view of the meaning and effect of the articles of the Declaration of
Paris, on the subject of blockades, which is above explained, was taken by
the representative of the United States at the Court of St. James' (Mr. Dallas)
during the communications which passed between the two governments
Some years before the present war, with a view to the accession of the United
States to that Declaration.” Lord Russell to Mr. Mason, Feb. Io, 1863, ap.
Bernard, 293.
T}LOCKADE 705
According to the English theory, as fully as by that adopted PART IV
in France, the limitations imposed on neutral commerce by the sº *
right of blockade depend for their validity solely upon the fact cessation
that a blockade really exists at any given moment. A belli-.”
gerent therefore has no power to subject a neutral to penalties
from the time that a port ceases to be effectively watched, and
the government of the United States was undoubtedly wrong in
holding the opinion put forward by it in 1861, that a blockade
established by notification continues in effect until notice of its
relinquishment is given by proclamation". It is no doubt the
duty of a belligerent state which has formally notified the
commencement of a blockade to give equal and immediate
publicity to its discontinuance, but a vessel bound for or
approaching a port at a time between the actual cessation of
blockade and the public notification of the fact is not liable to
confiscation. If a ship is captured under such circumstances, the
utmost, but also the legitimate, effect of a notification is that
the neutral, who has probably started with the intention of .
violating the blockade, and whose adventure has since become
innocent from events with which he has had nothing to do, is
bound to prove the existence of a state of facts which frees his
property from the penalty to which it is primá facie exposed.
The presumption of the court will be that a regularly notified
blockade continues to exist until that presumption is displaced
by evidence”. In the case of a de facto blockade the burden of
proof lies always upon the captor.
* Mr. Seward to Lord Lyons, May 27, 1861 ; ap. Bernard, 238.
* Bernard, 239. See also on the subject Phillimore, iii. ccxc, and The
Neptunus, i Rob. 171 ; The Circassian, ii Wallace, 150; The Baigorry, ib.
480. The tenour of the instructions issued to naval officers by the French
government in 1870 is given as follows by M. Bulmerincq (Rev. de Droit
Int. x. 4oo):—“Siles forces navales françaises étaient obligées, par, une
circonstance quelconque, de s'éloigner du point bloqué, les navires neutres
recouvreraient le droit de se rendre sur ce point. Dans ce cas aucum
croiseur français ne serait fondé à les entraver, sous prétexte de l’existence
antérieure du blocus, s'il ya d’ailleurs la connaissance certaine de la cessation
ou de l’interruption de ce blocus. Tout blocus levé ou interrompu doit étre
rétabli et notifié de nouveau dans les formes prescrites.’ -
HALL. Z Z
706 BLOCKAT)E
Neutral vessels lying in a belligerent port at the moment
when it is placed under blockade are subjected to special usages
with respect to which there is no difference of opinion. It would
be obviously unjust to shut up the unoffending neutral in a
common prison with the belligerent ; on the other hand, the
object of a blockade being to cut off all trade from the closed
port, the operation would be to a great extent nullified if vessels
within the harbour at the inception of the blockade were allowed
to come out with cargo shipped after its commencement *.
Hence, exit is allowed only under certain conditions, and it is
necessary, if a vessel is to appear at the mouth of the port in
a state according with these conditions, that she shall be in-
formed beforehand of the fact that they have been imposed.
A general notification is therefore sent to the authorities of the
blockaded port, announcing the commencement of the blockade
and specifying a time during which vessels may come out. It
being certain that a notice affecting the narrow space of a
particular port must of necessity become known to every person
within it, the practice of most nations dispenses with further
warning; and after a blockade has existed for a while, “it is
impossible for those within to be ignorant of the forcible
suspension of their commerce,” so that, even without notice,
warning to each ship is superfluous”. But the French perhaps
extend the privilege of special warning to vessels issuing from
a blockaded port with cargo laden after establishment of the
blockade 8.
PART IV
CHAP. VIII
Condi-
tions un-
der which
vessels
lying in
a port
when it
is placed
under'
blockade
Car? COIn €
out.
* It would seem however that Prussia and Denmark allow ships to come
out with cargo shipped after the commencement of the blockade. Rev. de
Droit Int. x. 212, 239. -
* The Vrow Judith, i Rob. 152. In 1855 it was laid down that ‘priná facie
every vessel whatsoever, laden with a cargo, quitting a blockaded port, is
liable to condemnation on that account, and must satisfactorily establish her
exception to the general rule.’ The Otto and Olaf, Spinks, 259. .
* The Eliza Cornish, Pistoye et Duverdy, i. 387. The Instructions of 1870
however seem to be silent upon the point, and by expressly mentioning
individual notification to ingoing vessels while keeping silence as to out-
coming vessels suggest that individual notification would not now be given
BLOCKADE 707
The period which is allowed for the exit of ships is usually
fixed at fiftéen days", and during this time vessels may issue
freely in ballast or with a cargo bond ſide bought and shipped
before the commencement of the blockade”. Probably fifteen
days should be looked upon as a minimum period, many ports
being so situated as to render exit from them within any given
time more difficult than from those which have usually been the
subject of the fifteen days' rule. In 1838, on establishing the
blockade of Buenos Ayres, France allowed neutral ships to come
out for forty-two days 8. It does not appear what circumstances
then demanded so exceptional an indulgence; but as sea-going
vessels now ascend to Rosario, it is clear that if the Argentine
ports were blockaded at the present day, a considerable time
might elapse before the existence of a blockade was known to all
neutral vessels, and that they might have great difficulty in
reaching the mouth of the river within any short period. Even
where a port on a navigable river is much nearer to its mouth
than in the supposed case, special circumstances might often
require an extension of time. When New Orleans was blockaded
in 1861 the water on the bar of the Mississippi was unusually
in the latter case. Negrin believes the latter to be the French practice;
p. 213.
A few exceptional treaties provide for special warning to vessels issuing
with cargo laden after the beginning of the blockade. These have been
concluded between the Hanseatic Towns and Mexico, 1828 (De Martens,
Nouv. Supp. i. 684); the United States and Brazil, 1828 (Nouv. Rec. ix. 62);
PART IV
CHAP. VIII
TInited States and Mexico, 1831 (id. x. 34o); United States and Venezuela,
1836 (id. xiii. 560); United States and Bolivia, 1836 (id. xv. 120); France
and Ecuador, 1843 (Nouv. Rec. Gén. v. 4Io); United States and Italy, 1871
(Archives de Droit Int. I&T4, p. 134). *
* This time was given in 1848 and 1864 by Denmark ; by England and
France during the Crimean War; by the United States during the Civil
War; and by France in the war of 1870. g
* The Wrow. Judith, i Rob. 152; The Franciska, Spinks, 122; Heffter,
§ 157; Bluntschli, § 837. But a vessel must not enter in ballast to bring
away a cargo bought before the commencement of a blockade. The Comet,
Rdwards, 32. A cargo which has been bond fide placed on board may be
partially transferred to lighters for purposes of navigation, and may be re-
shipped outside. The Otto and Olaf, Spinks, 257.
* De Martens, Nouv. Rec. xv. 503.
Z Z 2.
708 BLOCKADE
PART IV low, and the commander of the blockading squadron extended the
CHAP. VIII permitted time in favour of vessels of deep draught".
What acts The acts which constitute a violation of blockade necessarily
* vary with the theory which is held by the belligerent maintaining
ºlock the blockade as to the conditions of its legality; and their nature
has been already to a great extent indicated in discussing the
effect of notification.
Of the French practice it is sufficient to say that, as it does
not admit a presumption in favour of the continuance of a block-
ade, a distinct attempt to cross the actual barrier by force or
fraud is, as a general rule, necessary to justify condemnation.
Occasionally however an inference as to intention seems to be
allowed, as in the case of a vessel captured before actually
endeavouring to enter a blockaded port, but while making for it
after having received in the course of her voyage a regular
notification from a belligerent cruiser”. -
The English and American courts, on the other hand, in
arguing from a presumption of continuance to the intention of
the neutral trader, subject his property as a general rule” to con-
fiscation on seizure at any time after sailing with a clear destina-
tion to a blockaded port. Where there is a doubt as to intention
they submit to investigation all acts done from the commence-
ment of the voyage. If it appears from these that, though
anxious to go to the blockaded port, and sailing with that
destination, the trader had no intention of braving the belligerent
prohibition, his property will not be condemned. Thus a vessel
has been held innocent which sailed from America for Hamburg
with an intermediate destination to an English or neutral port
* Consul Mure to Lord J ohn Russell, June 6, 1861, ap. Bernard, 24a. [The
United States in 1898 granted a period of thirty days to neutral ships with
cargo. Proclamation of June 27. Hertslet, Com. Treat., xxi. p. Ioj9.]
* Calvo, § 2635. Ortolan (Dip. de la Mer, ii. 349 and 353) approves of the
practice of the English courts with respect to vessels approaching a blockaded
port on the pretext of enquiring whether the blockade still subsists. La
Carolina, Pistoye et Duverdy, i. 381. The proposed Règlement des Prises
Maritimes of the Inst. de Droit Int. adopts the French practice. -
* For qualifications of the general rule, see antea, p. 694.
BLOCKADE - 709
for enquiry; and in another case, although the ship's papers did
not show in distinct terms at what place enquiry was to be made,
she was released on fair grounds being afforded for the inference
that an intention to enquire really existed". But acts of doubt-
ful character will, in the absence of full explanation, be interpreted
against the trader. Thus vessels running for a port, known by
them to be blockaded, under pretext of taking a pilot on board,
because of falsely alleged unseaworthiness, have been held liable
to seizure; and the enquiries which it is eminently proper to
make at a place sufficiently distant from the blockaded harbour
must not be effected at its very mouth *. It is not absolutely
necessary, in order that a breach may be committed, that the
vessel shall herself cross the line of blockade; thus if a vessel lying
outside receives her cargo from lighters or vessels which have
issued from a blockaded port, she becomes liable to capture”.
During the American Civil War the courts of the United
States strained and denaturalised the principles of English block-
ade law to cover doctrines of unfortunate violence. A vessel
sailing from Bordeaux to Havana, with an ulterior destination to
New Orleans, or in case that port was inaccessible, to such other
place as might be indicated at Havana, was condemned on the
inference that her owner intended the ship to violate the blockade
PART IV
CHAP. VIII
if possible, notwithstanding that the design might have been .
* The Despatch, i Acton, 163. • - -
* “The neutral merchant is not to speculate on the greater or less pro-
bability of the termination of a blockade, to send his vessels to the very
mouth of the river, and say: “If you do not meet with the blockading force,
enter. If you do, ask a warning and proceed elsewhere.” Who does not
perceive the frauds to which such a rule would be introductory 2” The Irene,
v Rob. 80. In The Cheshire, iii Wallace, 235, Mr. Justice Field says: ‘If
approach for enquiry were permissible, it will be readily seen that the
greatest facilities would be afforded to elude the blockade ;’ and see The
IIurtige Hane, ii Rob. I27; The Charlotte Christine, vi Rob. IoI ; The James
Cook, Edwards, 264.
* Maria, vi Rob. 20I ; Charlotte Sophia, ib. 202 n. Of course a vessel
taking on board cargo, at a port not under blockade, which has arrived from
a blockaded port by canal or lagoon navigation, does not commit an infraction
of the blockade ; and conversely a vessel so delivering cargo is not liable to
capture. - *
710 BLOCKADE
FART IV
CHAP. VIII
abandoned on the information received at the neutral port'; and
goods sent from one neutral port to another within the same
dominions with an intent, formed either at the time of shipment
or afterwards, of forwarding them to a place under blockade
were condemned, and carried with them to a common fate the
vessel in which they were embarked, notwithstanding that their
transhipment was intended, unless there was reason to believe
that the owners of the vessel ‘were ignorant of the ulterior
destination of the cargo, and did not hire their ships with a view
to it, 2.” g * &
A vessel which has succeeded in effecting a breach of blockade
is not exonerated by her success from the consequences of her
illegal act. If a ship that has broken a blockade is taken in any
part of the same voyage, she is taken in delioto, the offence is
not terminated until she reaches the end of the voyage, and the
voyage is understood to include her return “; on this point, the
breach having been in fact committed, the French doctrine can
be, and perhaps is, in unison with that of England *. If the
blockade is raised during the voyage, the liability to capture
comes to an end, the existence of the offence being dependent on
the continuance of the state of things which gave rise to it".
As a general rule the penalty for a breach of blockade is the
confiscation of both ship and cargo; but if their owners are
different, the vessel may be condemned irrespectively of the latter,
which is not confiscated when the person to whom it belongs
is ignorant at the time of shipment that the port of destination
* The Circassian, ii Wallace, I35. -
* The Bermuda, iii Wallace, 574. Comp. antea, pp. 668 et seq. It is
sufficiently curious that any continental publicists should claim the United
States as adhering to the French practice, in face of the extreme doctrine
enforced in these and like cases.
* Wheaton, Elem. pt. iv. chap. iii. § 28. The right of capture on the return
voyage was maintained by the United States courts during the civil war.
Dana’s Wheaton, note to § 523. - -
* Ortolan (Dip. de la Mer, ii. 354), Hautefeuille (tit.xiii. chap. i. sect. i. § 3),
and Bluntschli (§ 836) refuse even in this case to admit the right to seize
Penalty of
breach or
attempted
breach.
elsewhere than within the blockaded spot.
* The Lisette, vi Rob. 378 ; Ortolan, ib. 356.
BLOCKAT) E 711.
is blockaded, or if the master of the vessel deviates to a blockaded PARTIV
harbour. If however such deviation takes place to a port the “”.
blockade of which was known before the ship sailed, the act is
supposed to be in the service of the cargo, and the complicity of
its owner is assumed".
There are a few cases in which neutral property can be Cases of
© º inn t;
brought into or out of a blockaded port or town without the j
tº gº of block-
Commission of a legal breach. . aded ports.
When a maritime blockade does not form part of a combined
operation by sea and land, internal means of transport by canals,
which enable a ship to gain the open sea at a point which is not
blockaded, may be legitimately used. The blockade is limited
in its effect by its own physical imperfection. Thus, during
a blockade of Holland, a vessel and cargo sent to Embden,
which was in neutral territory, and issuing from that port, were
not condemned”.
Again, if a vessel is driven into a blockaded port by such
an amount of distress from weather or want of provisions or
water as to render entrance an unavoidable necessity, she may
issue again, provided her cargo remains intact ". And a ship
which has been allowed by a blockading force to enter within
its sight, is justified in assuming a like permission to come out ;
but the privilege is not extended to cargo taken on board in the
blockaded port 4. -
The right possessed by a belligerent of excluding neutral ships
of war from a blockaded place is usually waived in practice as
a matter of international courtesy; and for a like reason the
minister of a neutral state resident in the country of the block-
aded ports is permitted to despatch from it a vessel exclusively
* The Adonis, v Rob. 258; The Mariana Flora, vii Wheaton, 57; The
Alexander, iv. Rob. 93 ; The Panaghia Rhomba, Moore's P. C. Reps.
xii. I&o. - - e
* The Stert, iv Rob. 65. .
* The Charlotta, Edwards, 252 ; The Hurtige Hane, ii Rob. I27. The
general principle is stated by Bluntschli, $ 838.
* The Juffrow Maria Schroeder, iii Rob. 16o.
712 BLOCKADE
PART IV employed in carrying home distressed seamen of his own
CIH.A.P. VIII Ina,tion 1. - -
Blockade The right of a belligerent to blockade the territory of his
: in enemy is sometimes complicated by the territorial rights of con-
*::::::. terminous governments. If one bank of a river is within
a neutral state, or if the upper portion of its navigable course
is beyond the frontier of the hostile country, a belligerent can
only maintain a blockade so far as is consistent with the
right of the neutral to preserve free access to his own ports or
territory, and with the right of other neutrals to communicate
freely with him *. Thus a blockade of Holland was held not
to be broken by a destination to Antwerp *. And during the
American Civil War, the Courts of the United States conceded
that trade to Matamoras, on the Mexican shore of the Rio
Grande, was perfectly lawful; but the Supreme Court laid down
the rule that it was a duty incumbent on vessels with the neutral
destination to keep south of the dividing line between the
Mexican and Texan territory; and in the case of vessels captured
for being north of that line, refused, while restoring them, to
allow their costs and expenses *. It is to be hoped that a rule
so little consistent with the right of neutrals to uninterrupted
commerce with each other will not be drawn into a precedent.
1. ortolan, Dip. de la Mer, ii. 329 ; Phillimore, iii. § cccxiii.
* Ortolan, ib. 332 ; Calvo, $ 26or. * The Frau Ilsabe, iv. Rob. § 6.
* The Peterhoff, v. Wallace, 54; The Dashing Wave, ib. 17o ; The Volant,
ib. 178; The Science, ib. 179. [In the case of the Peterhoff, the refusal to
allow costs and expenses seems to have been based on the conduct of that
ship's captain in throwing a suspicious package overboard at the moment of
capture and on his conduct generally.]
CHAIPTER IX
NEUTRAL GOODS IN ENEMY's SHIPS
THE question whether it is open to a neutral to avail himself PART IV
of belligerent vessels for the maritime transport of goods in cº
themselves innocent, has been, like the question of the effect ºne.
of neutral transport upon belligerent merchandise, the subject on the
of lively debate, and like it also it has now been reduced into subject.
insignificance by the Declaration of Paris.
Two doctrines are held on the subject. According to one, the
neutral property retains its freedom notwithstanding its associa-
tion with that of an enemy; according to the other, contact
with confiscable property taints it so irredeemably as to subject
it to the fate of the latter. The theoretic ground upon which
the former doctrine rests is that neutral goods are prima facie
free; they can be captured only because of some assistance
which a belligerent immediately or remotely derives from them
in the conduct of his war; goods in themselves incapable of
rendering him such assistance cannot change their nature because
they are carried by him; and neutrals cannot therefore be
expected to refrain from conveying their property to market
by means which happen to be convenient to them. The second
doctrine is really the offspring of a pretension to forbid all inter-
course between neutrals and an enemy ; but by attaching itself
to a principle, which though arbitrary is not inequitable, and
which serves the interests of neutrals, it has blinded the world
to its true nature; and as part of the formula, “Free ships, free
goods; enemy ships, enemy goods,’ it has been adopted into the
policy of nations which have shown themselves intolerant of far
less questionable usages.
The earliest custom in the matter agrees with the juster and Early
less artificial view. The rules of the Consolato del Mare, which “
714 NEUTRAL GOODS IN ENEMY'S SHIPS
PART IV enabled a belligerent to seize the property of his enemy wher-
CHAP. IX
ever he found it, prohibited him at the same time from robbing
his friend. While therefore an enemy’s ship was subjected to
confiscation, its neutral cargo remained free, and it was even
provided that the owners of the cargo should be permitted to
buy the vessel from the captain at a reasonable price, in order to
avoid the inconvenience and loss of being carried into his ports".
An early usage to a like effect may probably have existed in
the northern seas, for the Hollanders, during war with Lübeck
and other Hanse Towns in 1438, ordered that goods belonging
to neutrals found in an enemy’s ship should not be made prize;
and it is said that until the middle of the sixteenth century
France observed a like rule”. But in 1584 the first of a series
of edicts appeared in the latter country which established
a national custom of peculiar harshness. It was ordered that
* if the ships of our subjects make a prize in time of war of
enemy’s ships, in which are persons, merchandise, or other goods
of our said subjects or allies, the whole shall be declared good
prize as if the whole belonged to our said enemies *.”
England, on the other hand, generally maintained the doctrine
of the Conso/ato de' Mare ; but in the beginning of the seven-
teenth century its views do not appear to have been thoroughly
fixed, for in 1626 a French negotiator, the Maréchal de Bassom-
pierre, found the report of commissioners to whom certain points
of maritime law had been referred by the English government
to be in this point fully in accordance with the usage of his own
country “. France again perhaps recurred for a time to the
general practice by the Royal Declaration of 1650, which granted
the freedom of neutral goods in enemy's ships; but she con-
cluded a series of treaties from 1659 downwards, in which her
Practices
in the
SeVell-
teenth
century.
* See a translation of the text of the Consolato in Ortolan, Dip. de la Mer,
ii. 68, or Heffter, § 163.
* Hübner, I* partie, chap. i. § 8 ; Ortolan, ib. Ioo.
* Ortolan, ib. IoI. ‘Res non hostium non bene capitur ullibi' was the
opinion of Albericus Gentilis, De Jure Belli, lib. ii. c. 22.
* Ortolan, Dip. de la Mer, ii. II.4.
NEUTRAL GOODS IN ENEMY'S SHIPS 715
older custom was embodied, and as she formally re-enacted the
confiscation of neutral goods by the Ordonnance of 1681, it may
be doubted whether the Declaration of 1650 was ever acted
upon, and whether therefore it forms a real exception to the
settled policy of the country".
Whatever the practice of other countries may have been,
their external policy was determined by the degree to which
they were anxious to acquire or retain carrying trade in war
time. It was impossible to obtain the freedom of belligerent
goods committed to their care unless a corresponding advantage
was offered to belligerents; hence the Dutch, who made it
a cardinal object to secure the immunity of their flag, were
obliged to buy the privilege by giving up their own merchandise
when carried in a belligerent ship ; and in all treaties which
they concluded the fate of the cargo was determined by that of
the vessel 4. They were no doubt the more ready to make the
concession that neutrals seldom require to make use of belligerent
vessels to any large extent; and that they consequently gained
a valuable privilege at a small price.
PART IV
CHAP. IX
In the eighteenth century the history of the two doctrines In the
continued to follow the line sketched in the previous period.
eigh-
teenth
The private custom of England preserved the ancient rule under *Y.
which neutral goods are free. France, on the other hand, had
retained and reiterated in her internal legislation the severities
in which she stood alone, until Spain became her imitator under
the Bourbon kings. In 1704, 1744, and I778 the principle
* Valin, Ord. de la Marine, ii. 254. M. Ortolan (ii. IoA) suggests that the
Ordonnance of 1681 was intended only to apply to allies in a common war,
and not to neutrals ; and its language is not perhaps absolutely inconsistent
with his construction, it being only specified that “les marchandises de nos
sujets et alliés qui se trouveront dans un navire ennemi seront de bonne
prise.” But as the law was always administered on the assumption that
neutrals were affected by its provisions, M. Ortolan's interpretation is no
doubt the offspring of a patriotic wish to lessen so far as possible the contrast
which exists between the historic doctrines of his country and those which
she has adopted in recent times.
* Phillimore, iii. § clxxx; Manning, 319. See the Dutch treaties enume-
rated, antea, p. 686 n.
716 NEUTRAL GOODS IN ENEMY's SHIPS
PART IV that goods become enemy under an enemy's flag was freshly
*** asserted; and Spain, by Ordinances in 1702, 1718, and 1779
modelled her laws on the French Regulations in force at the
respective dates". Down to the time of the First Armed
Neutrality a large number of treaties, for the same reason as
in the preceding century, generally stipulated for the condemna-
tion of neutral merchandise in belligerent vessels”; but they
seem to have had little effect in changing the bent of opinion
in the direction of the practice for which they stipulated.
Writers so different as Wattel and Hübner could on this point
find themselves in accord *, and England was of one mind with
the members of the Armed Neutrality. It was impossible for
neutrals to ask more than England already spontaneously gave
to them, and accordingly the programme of the Armed Neutrali-
ties contained no articles on the subject. But in the nineteenth
century the confiscation of neutral goods reappears in the treaties
made by France and the United States, set off as usual against
the freedom of enemy’s goods in neutral vessels; though at the
same time the United States have always distinctly acknow-
ledged that under international common law the goods of
neutrals in enemy's vessels are free *.
* Ortolan, Dip. de la Mer, ii. Io9.
* See the treaties mentioned, antea, p. 688, note 2 ; except the treaty
between England and Spain in 1713, which contains no stipulation in the
matter. Sir R. Phillimore (iii. § clxxxi), adopting a computation made by
Mr. Ward, says that thirty-four treaties from 1713 to IT8o make no mention
of the principles, Free ships, free goods ; Enemy ships, enemy goods.
* “Les effets des peuples neutres, trouvés sur un vaisseau ennemi, doivent
être rendus au propriétaire, Sur qui on n’a aucun droit de les confisquer,
mais sans indemnité pour retard, dépérissement, &c. La perte que les
propriétaires neutres souffrent en cette occasion est un accident auquel ils
se sont exposés en chargeant sur un vaisseau emnemi; et celui qui prend ce
vaisseau, en usant du droit de la guerre, n'est point responsable des accidents
qui peuvent en résulter, non plus que si son canon tue sur un bordennemi
un passager neutre, qui s'y reneontre pour son malheur.” Wattel, liv. iii.
chap. vii. § II6. *
* See the treaties enumerated, antea, p. 691 m. The Atalanta, iii Wheaton,
415. “It is true that sundry nations have in many instances introduced by
their special treaties another principle between them, that enemy bottoms
shall make enemy goods, and friendly bottoms, friendly goods; but this is
altogether the effect of particular treaties, controlling in special cases the
NEUTRAL GOODS IN ENEMY'S SHIPS 717
Thus while England and the United States were committed, PARTIV
apart from treaties, to the view that the goods of neutrals in Fº
course of transport by a belligerent are free, the minor maritime tº,: S-
states were led by their interests to adopt the same doctrine ; iion.
and France stood alone with Spain in the assertion that their
confiscation was permitted by accepted usage. When therefore
France, in compliance with the request of England, abandoned
her national practice in 1854, Spain remained the only country
which adhered to it in principle; and the Declaration of Paris
has probably secured its abandonment beyond recall".
It is to be noticed that though neutral property in enemy Liability
e e * & ... of neutrals
ships possesses immunity from confiscation, the neutral owner is jºi.
dental loss
from cap-
association with belligerent property in which he has chosen ture.
to involve his merchandise. Just as a neutral individual in
belligerent territory must be prepared for the risks of war and
not protected against loss arising incidentally out of the
cannot demand compensation for loss or damage of property
resulting from military operations carried on in a legitimate
manner; so, if he places his property in the custody of a belli-
gerent at sea, he can claim no more than its bare immunity from
confiscation, and he is not indemnified for the injury accruing
through loss of market and time, when it is taken into the
captor’s port, or in some cases at any rate for loss through its
destruction with the ship. -
In 1872 the French Prize Court gave judgment in a case,
arising out of the war of 1870–1, in which the neutral owners
of property on board two German ships, the Ludwig and the
Vorwärts, which had been destroyed instead of being brought
into port, claimed restitution in value. It was decided that
though under the terms of the Declaration of Paris neutral
goods on board an enemy’s vessel cannot be seized, it only
general principle of the law of nations, and therefore taking effect between
such nations only as have so agreed to control it.” Mr. Pickering to
Mr. Pinckney, American State Papers, i. 559. - -
' [For Spain's practical compliance with the principles of the Declaration
of Paris in the war of 1898 see antea, p. 692.]
718 NEUTRAL GOODS IN ENEMY'S SHIPS
PART IV follows that the neutral who has embarked his goods on such vessel
*** * has a right to restitution of his merchandise, or in case of sale
to payment of the sum for which it may have been sold; and
that the Declaration does not import that an indemnity can be
demanded for injury which may have been caused to him either
by a legally good capture of the ship or by acts of war which
’ in the particular
may have accompanied or followed the capture;
case “the destruction of the ships with their cargoes having
taken place under orders of the commander of the capturing
ship, because, from the large number of prisoners on board, no
part of the crew could be spared for the navigation of the prize,
such destruction was an act of war the propriety of which the
owners of the cargo could not call in question, and which barred
all claim on their part to an indemnity".’
It is to be regretted that no limits were set in this decision
to the right of destroying neutral property embarked in an
enemy's ship. That such property should be exposed to the
consequences of necessary acts of war is only in accordance with
principle, but to push the rights of a belligerent further is not
easily justifiable, and might under some circumstances amount
to an indirect repudiation of the Declaration of Paris. In the
case for example of a state the ships of which were largely en-
gaged in carrying trade, a general order given by its enemy to
destroy instead of bringing in for condemnation would amount
to a prohibition addressed to neutrals to employ as carriers vessels,
the right to use which was expressly conceded to them by the
Declaration in question. It was undoubtedly intended by that
Declaration that neutrals should be able to place their goods on
board belligerent vessels without as a rule incurring further risk
than that of loss of market and time, and it ought to be in-
cumbent upon a captor who destroys such goods together with
his enemy's vessel to prove to the satisfaction of the prize court,
and not merely to allege, that he has acted under the pressure
of a real military necessity. -
- - * Calvo, § 2817.
CHAPTER x
VISIT AND CAPTURE
VISIT is the means by which a belligerent ascertains whether PART IV
CHAP. X
º (- Object of
neutral, and by which he examines whether she has or has not visit and
been guilty of any breach of the law. By capture he gives effect”
a mercantile vessel carrying the flag of a neutral state is in fact
to his rights over neutral property at sea which has become
noxious to him in any of the ways indicated in the preceding
chapters, and puts himself in a position to inflict the appro-
priate penalty. *
As the right possessed by the belligerent of controlling inter- Who can
course between neutrals and his enemy is an incident of war, and visit.
as war can only be waged by or under the authority of a state,
the rights of visit and capture must be exercised by vessels pro-
vided with a commission from their sovereign.
All neutral mercantile vessels are subject to visit upon the Who is
high seas, and within the territorial waters of the belligerent or º to
his enemy. On the other hand, as the pretension to search
vessels of war, which formed a grave matter of contest in the
early part of the nineteenth century, can no longer be seriously
urged, private vessels of the neutral state are the only subjects of
the belligerent privilege. It is incumbent on all such vessels to
be provided with certain documents for the proof of their neutral
character, and of the innocency of the adventure in which they
are engaged, and it is agreed that they are obliged as a general
rule to produce these proofs on the summons of a duly authorised
person. .
But it is a controverted point whether neutral merchant vessels Whether
º tº e - & ºt convoved
are liable to be visited, and are bound to suffer the visit, when ships :
sailing under convoy of ships of war of their own nation. The **
720 WISIT AND CAPTURE
PART IV question was first mooted in 1653, when, during the war between
mºr England and the United Provinces, Queen Christina of Sweden
*...* issued a declaration, reciting that the goods of her subjects were
* plundered by privateers, directing ships of war to be always ready
to convoy such vessels as might desire protection, and ordering the
convoying ships ‘in all possible ways to decline that they or any
of those that belong to them be searched".” The Peace of
Westminster, in 1654, by putting an end to the existing war,
prevented any immediate occasion of dispute from arising, and no
subsequent attempt seems to have been made by Sweden to act
upon the policy of the directions. The United Provinces how-
ever, finding themselves in turn in the position of neutrals,
shortly afterwards put forward like claims. In 1654, some
Dutch merchant vessels under convoy of a man of war having
been searched by the English, the States-General admitted that
* no reasonable complaints could be made,’ although they “were
persuaded that such visitation and search tended to an incon-
veniency of trade ; ” but two years afterwards De Ruyter con-
voyed ships from Cadiz to Flanders laden with silver for the use
of the Spanish troops in the latter country, and successfully
resisted an attempt to visit made by the commodore of an English
squadron. In the end the Dutch agreed that the papers of the
convoyed ships should be exhibited by the man of war in charge,
and that on sufficient ground a suspected vessel might be seized
and carried into the belligerent port’. The compromise, no
doubt, soon became a dead letter *; and nothing further was
heard of the immunities claimed for convoyed ships until 1759,
when the Dutch, who took improper advantage of a special
Thurloe's State Papers, i. 424. * Thurloe, ii. 504; Calvo, $$ 2744–5.
* The article in the maritime code of Denmark of 1683, quoted by Ortolan
(ii. 266) and Gessner (302) as affording another case in which exemption
from visit was claimed in favour of convoyed ships, is really a direction to
armed merchant vessels sailing together to resist visit whenever they are
strong enough. It represents an attempt to get rid of visit altogether.
Hautefeuille (tit. ix. chap. iii. seet. i.) admits that “la Hollande elle-même
chercha par tous les moyens à exercer le droit de visite sur les navires
convoyés toutes les fois qu’elle se trouva partie belligårante.' •
WISIT AND CAPTURE 721
privilege of trade with the French colonies which has been PART IV
granted to them, and who besides carried on a large traffic in “”
munitions of war and materials of naval construction with the
home ports of France, fruitlessly endeavoured to cover their illicit
transactions by reviving the pretension *. It was during the
War of American Independence that the doctrine was first
seriously urged. In 178o orders were given by the Dutch
government ‘ that a certain number of men of war should be
ready for the future to convoy naval stores to the ports of France,”
and the Count van Byland was directed to resist the visit and
search of a fleet of vessels so laden, which were sailing in his
charge. Some of the vessels were seized by an English force,
and were carried into Portsmouth with the convoying ship, which
had attacked that of the English commodore. In the lively
recriminations which ensued Holland warmly maintained the
proposition that convoyed merchantmen could not be searched;
and when, a few months afterwards, it found itself at war with
England, it was obliged in consistency as a belligerent to adopt
the principle of which it had tried to reap the advantage as
a neutral”. In 1781 a dispute arose between Great Britain and
Sweden on the subject of six merchantmen under convoy which
an English vessel had attempted to visit ; and on an appeal being
made by the latter power to Russia, the government of the
Empress declared that it considered the principle of the immunity
of convoyed vessels to be founded on the principles of the Armed
Neutrality. It was also embodied before the end of the century
in six treaties made by the Baltic powers, and in one between
Holland and the United States”. It had therefore acquired such
* It appears from a Report of Admiral Boscawen that complaint was made
by the Dutch government that he had caused certain merchantmen under
convoy to be searched. He says that he acted upon ‘ certain advice that the
Dutch and Swedes carried cannon, powder, and other warlike stores to the
enemy.” Ann. Register for 1759, p. 266.
* De Martens, Nouvelles Causes Célèbres, i. 165 ; Lord Stanhope, Hist. of
England, vii. 44; De Martens, iii. 281.
* United Provinces and United States, I 782 (De Martens, Rec. iii. 437);
Russia and Denmark, 1782 (ib. 475); Sweden and the United States, I783
HALI. 3 A.
722 VISIT AND CAPTURE
PART IV consistency and authority as it could gain by becoming a part of
CHAP. X
the deliberate policy of a knot of states possessing very defined
and permanent interests. But the doctrine had no claim to the
position assigned to it by Count Bernstorff, when, on the occasion
of a dispute arising in the year 1800 out of the capture of some
Danish vessels by an English squadron, he argued that the
privilege of visiting convoyed ships did not exist at common law,
because the right to visit at all being a concession made to the
belligerent, it could only exist in so far as it was expressly
conferred by treaty'. There can be no question that the practice
of visiting convoyed vessels had been universal until 1781 ; and
that frequent treaties, in specifying the formalities to be observed,
without limiting the extent of the right, had incidentally shown
that the parties to them regarded the current usage as authori-
tative.
Throughout the revolutionary wars England maintained the
traditionary practice, and imposed her doctrine by treaty upon
the Baltic powers. In consequence of the refusal of a Danish
frigate, the Freya, to permit the search of her convoy, a second
dispute occurred between England and Denmark, which was
ended, under threat of an immediate rupture, by a convention
under which the latter power engaged to suspend its convoys
until future negotiations should have effected a definitive arrange-
ment”. Immediately afterwards the Second Armed Neutrality
laid down as one of its principles that the declaration of the
officer commanding a vessel in charge of merchantmen should be
conclusive as to the innocence of the traffic in which they were
engaged, and that no search should be permitted *. But in the
treaties concluded with England in 1801 and 1802, Russia,
(De Martens, Rec. iii. 571); Prussia and the United States, 1785 (id. iv. 43);
Russia and France, I787 (ib. 212); Russia and the Two Sicilies, 1787 (ib. 238);
Russia and Portugal, 1787 (ib. 328).
* Count Bernstorff to Mr. Merry, ap. Ortolan, ii, Annexe E.
* August 29, 1800; De Martens, Rec. vii. 149.
* Conventions to this effect were signed between Russia and Denmark in
Dec. 1800, and between Russia and Sweden and Russia and Prussia ; De
Martens, Rec. vii. 172, 181, 188.
VISIT AND CAPTURE 723
Sweden, and Denmark abandoned the principle which they had PART IV
striven to introduce, and consented that though visit was not to “”
take place unless ground for suspicion existed, the belligerent
commander should have the power of making it at his discretion,
in presence, if required, of a neutral officer, and of carrying the
suspected vessel into one of the ports of his country if he should
see reason to do so *. In thus agreeing to limit the exercise
of the right, the principle of which she preserved, England
softened on her part the rigour of her usual practice, gaining, as
the price of her concession, the full abandonment of the principle
of the freedom of enemy's goods on board neutral ships, which
had also been adopted by the Armed Neutrality. But the treaties Modern
concluded between England and the three other parties to this practice.
compromise in 1812 and 1814 placed matters on their old footing,
and left the Baltic powers free to assert, and Great Britain to
refuse, the immunity of convoyed vessels”. Since then France
has accepted the principle of this freedom from visit in six treaties,
all with American republics; and the United States have em-
bodied it in thirteen treaties, of which all, with two exceptions,
have also been entered into with states on the same continent *.
But there has already been occasion to remark more than once
that the treaties entered into by the United States afford little
clue to the views entertained in that country; and on this point,
as usually, English and American writers and judges are fully in
* De Martens, vii. 264, 273, 276.
* De Martens, Nouv. Rec. i. 481 and 666, and iii. 227. In 1864 Denmark,
Prussia, and Austria announced that they would not visit vessels under
convoy ; Calvo, § 1219.
* France and Venezuela, I843 (De Martens, Nouv. Rec. Gén. v. I7I);
Ecuador, 1843 (ib. 409); New Grenada, 1844 (id. vii. 62o); Chile, 1846
(id. xiv. i. Io); Guatemala, 1848 (id. xii. Io); Honduras, 1856 (id. xvi. ii.
I54); United States and Sweden, 1816 (Nouv. Rec. iv. 258); Columbia, 1824
(id. vi. Iooo); Central America, 1825 (ib. 835); Brazil, 1828 (id. ix. 63);
Mexico, 1831 (id. x. 34o); Chile, 1832 (id. xi. 446); Venezuela, 1836 (id. xiii.
560); Ecuador, 1839 (ib. 23); New Grenada, 1848 (Nouv. Rec. Gén. xiii. 663);
Guatemala, 1849 (ib. 304); San Salvador, 1850 (id. xv. 77); Peru, 1870
(Nouv. Rec. Gén. 2° Série, i. Io9); and Italy, 1871 (Archives de Droit Int.
I874, p. I36).
3 A 2
724, VISIT AND CAPTURE
PART IV
CHAP. X.
accord". On the continent of Europe, Germany, Austria, Spain,
and Italy, in addition to the Baltic powers and France, provide
by their naval regulations that the declaration of a convoying
officer shall be accepted. Great Britain on the other hand
adheres to the practice upon which she has always acted *.
Continental jurists are almost unanimous in maintaining the
exemption from visit of convoyed ships, not only as a principle
to be advocated, but as an established rule of law ". That it has
any pretension to be so is evidently inadmissible ; the assertion
of it, and the practice, which have been described, are insufficient
both in kind and degree to impose a duty on dissenting states;
and it cannot even be granted that the doctrine possesses a reason-
able theoretic basis. The only basis indeed on which it seems to
be founded is one which, in declaring that the immunity from
visit possessed by a ship of war extends itself to the vessels in her
company, begs the whole question at issue *. It is more to the
purpose to consider whether the privilege claimed by neutrals is
fairly consistent with the interests of belligerents, and whether it
would be likely in the long run to be to the advantage of neutral
states themselves. It is argued that the commander of a vessel
of war in charge of a convoy represents his government, that his
affirmation pledges the faith of his nation, and that the belligerent
has a stronger guarantee in being assured by him that the vessels
in company are not engaged in any illicit traffic, than in ex-
amining for himself papers which may be fraudulent. But
Whether
exemption
of con-
voyed ves-
sels from
visit is
expedient.
* Kent, Comm. lect. vii.; Wheaton, Elem. pt. iv. chap. iii. § 29 ; Dana,
notes to Wheaton, § 526 ; Woolsey, Introduction to International Law, § 192.
Justice Story says, “The law deems the sailing under convoy as an act per se
inconsistent with neutrality, as a premeditated attempt to oppose, if
practicable, the right of search, and therefore attributes to such preliminary
act the full effect of actual resistance.’ The Nereide, ix. Cranch, 44o. The
judgment of Lord Stowell in the case of The Maria, i Rob. 34o, is the
recognised expression of English doctrine.
* Admiralty Manual of Prize Law (Holland), 1888, p. 2.
* Bluntschli (§§ 824–5) puts forward a doctrine as law which amounts to
the compromise of 1801 between Russia and Great Britain, construed
favourably for the neutrals.
* Ortolan, ii. 271.
VISIT AND CAPTURE 725
unless the neutral state is to exercise a minuteness of supervision
over every ship issuing from her ports which would probably be
impossible, and which it is not proposed to exact from her, the
affirmation of the officer commanding the convoy can mean no
more than that the ostensible papers of the vessels belonging to
it do not show on their face any improper destination or object.
Assuming that the officials at the ports of the neutral country
are always able and willing to prevent any vessel laden with
contraband from joining a convoy, the officer in command must
still be unable to affirm of the vessels under his charge, that no
single one is engaged in carrying enemy’s despatches or military
passengers of importance; that none have an ultimate intention
of breaking a blockade; or, if the belligerent nation acts on the
doctrine that enemy’s goods in a neutral vessel can be seized,
that none of the property in course of transport in fact belongs to
the enemy. If the doctrine is accepted, it would not infrequently
happen that instances in which protection of a convoy has been
abused will come afterwards to the knowledge of the belligerent
to whose injury they have occurred; he will believe that the
cases of which he knows are but a fraction of those which actually
exist, he will regard the conduct of the neutral state with
suspicion; complaints and misunderstandings will arise, and the
existence of peace itself may be endangered. It cannot be too
often repeated that the more a state places itself between the
individual and the belligerent, the greater must be the number of
international disputes. And belligerents will always look upon
convoys with doubt, from the mere fact that their innocence
cannot be tested. The neutrality of neutral nations is not always
honest, and the temptation to pervert the uses of a convoy has
not always been resisted; rightly or wrongly it will be thought,
as it was thought in England during the French wars, that
“if there is any truth in the reasons stated for searching mer-
chantmen not convoyed, it must be admitted that the presence of
the convoy ship, so far from being a sufficient pledge of their
innocence, is rather a circumstance of suspicion. If a neutral
PART IV
CHAP, X
726 VISIT AND CAPTURE
nation fits out ships of war, and escorts all its trading vessels with
them, we have a right to conclude that she is deviating from her
neutrality'.”
It cannot but be concluded that the principle of the exemption
of convoyed ships from visit is not embraced in authoritative
international law, and that while its adoption into it would
probably be injurious to belligerents, it is not likely to be
permanently to the advantage of neutrals. It is fortunate, in
view of the collision of opinion which exists on the subject, that
there is every reason to expect that the use of convoys will be
greatly restricted in the future by the praetical impossibility of
uniting in a common body vessels of very different rates of
speed, superior speed having become an important factor in
commercial success”.
The exercise of the right of visit is necessarily attended with
formalities, the regulation of which has been attempted in a
large number of treaties without any definite arrangement as to
the details having received universal assent *. . Usually the
visiting ship, on arriving within reasonable distance, hoists its
colours and fires a gun, called the semonce or affirming gun, by
PART IV
CHAP. X
Formali-
ties of
visit.
* Lord Brougham (1807); Works, vol. viii. 388.
* It is to be noted that in the scheme of the Institut de Droit International
for a Règlement des Prises Maritimes the visit of neutral vessels convoyed
by ships of war of their own state is prohibited. Ann. de l’Institut, 1883,
p. 215.
3 The following article of the Treaty of the Pyrenees (1659) has served as
the model for a great number of more modern conventions: “Les navires
d'Espagne, pour éviter tout désordre, n'approcheront pas plus près les
français que de la portée du canon, et pourront envoyer leur petite barque
ou chaloupe a bord des navires français, et faire entrer dedans deux ou trois
hommes seulement, a qui seront montrés les passeports par le maitre du
navire français, par lesquels il puisse apparoir, non seulement de la charge,
mais aussi du lieu de sa demeure et résidence, et du nom tant du maitre Ou
patron que du navire même, afin que, par ces deux moyens, on puisse
connaitre sºil porte des marchandises de contrebande, et qu'il apparaisse
suffisamment tant de la qualité du dit navire que de son maitre ou patron ;
auxquels passeports on devra donner entière foi et créance.’ Dumont, vi. ii.
264. Few treaties prescribing formalities of visit have been made between
European states during the present century, and in all the cases of such
treaties concluded within the last forty years one of the parties has been
a Central or South American State.
VISIT AND CAPTURE 727
which the neutral vessel is warned to bring to, but the ceremony, PART IV
though customary, is not thought to be essential either in CHAP. X
English or American practice". The belligerent vessel then
also brings to at a distance which, in the absence of treaties, is
unfixed by custom, but which has been often settled with
needless precision. The natural distrust of armed vessels which
was entertained, when privateers of not always irreproachable
conduct were employed in every war, and when pirates were not
unknown, dictated stipulations enjoining on the cruiser to remain
beyond cannon shot ; but the reason for so inconvenient a
regulation has disappeared, and the modern treaties which repeat
the provision, as well as those which permit approach to half
range, are alike open to the criticism of M. Ortolan, that ‘ they
have not been drawn by sailors ".’ The visit itself is effected by
sending an officer on board the merchantman *, who in the first
instance examines the documents by which the character of the
vessel, the nature of her cargo, and the ports from and to which
she is sailing, are shown. According to the English practice
these documents ought generally to be—
I. The register, specifying the owner, name of ship, size, and
other particulars necessary for identification, and to vouch
the nationality of the vessel.
2. The passport (sea letter) issued by the neutral state.
3. The muster roll, containing the names, &c., of the crew.
* The Marianna Flora, xi. Wheaton, 48.
* Dip. de la Mer, ii. 256. Negrin (p. 229, note) takes the same view.
* Modern usage allows the master of the merchantman to be summoned
with his papers on board the cruiser (The Eleanor, ii Wheaton, 262), and
the regulations of the German and Danish navies order that this shall be
done (Rev. de Droit Int. x. 214, 238); but Pistoye and Duverdy (i. 237)
think the practice open to objections both from the point of view of the
belligerent and of the neutral. The former may be easily deceived by false
papers ; and the latter is exposed to the less obvious risk that the documents
necessary to prove the legitimacy of his adventure may be detained.
The proposed Règlement des Prises Maritimes of the Institut provides that
‘le mavire arrété ne pourra jamais étre requis d'envoyer a bord du navire de
guerre son patron ou une personne quelconque, pour montrer ses papiers ou
pour toute autre cause.’ Ann. de l’Institut, 1883, p. 214.
728 WISIT AND CAPTURE
PART IV
CHAP, X
4. The log-book.
5. The charter party, or statement of the contract under
which the ship is let for the current voyage.
6. Invoices containing the particulars of the cargo.
7. The duplicate of the bill of lading, or acknowledgment from
the master of the receipt of the goods specified therein,
and promise to deliver them to the consignee or his
order. -
And the information contained in these papers is in the main
required by the practice of other nations".
If the inspection of the documents reveals no ground of
suspicion, and the visiting officer has no serious anterior reason
for suspecting fraud, the vessel is allowed to continue its voyage
without further investigation ; if otherwise, it is subjected to an
examination of such minuteness as may be necessary *.
Capture of a vessel takes place—
I. When visit and search are resisted.
2. When it is either clear, or there is fair ground for sus-
pecting, upon evidence obtained by the visit, that the
Capture
* For the papers which may be expected to be found on board the vessels
of the more important maritime nations see Holland’s Admiralty Manual of
Naval Prize Law, pp. 52-9.
The Institut de Droit International proposes to require possession of the
following papers as a matter of international legal rule:—
I. Les documents relatifs à la propriété du navire;
2. Le Connaissement ;
3. Le rôle d’équipage, avec l’indication de la nationalité du patron et de
l'équipage ;
4. Le certificat de nationalité, si les documents mentionnés sous le
chiffre 3 n'y suppléent ;
5. Le journal de bord. Ann. de l’Inst. 1883, p. 217.
[The modern practice of exercising the right of visit is fully expounded in
the instructions drawn up by the Spanish Ministry of Marine and communi-
cated to the British Foreign Office May 3, 1898. See London Gazette of that
date and Hertslet Com. Treaties, xxi. p. 888.]
* The absence of due conformity to the forms of visit, and of attention to
the evidences of nationality, prescribed by the regulations of the state to
which the visiting ship belongs, is not sufficient to invalidate the capture if
it be proved before the prize court that due cause of capture was in fact
existing. La Tri-Swiatitela, Dalloy, Jurisp. Gén. Ann. 1855, iii. 73.
VISIT AND CAPTURE 729
vessel is engaged in an illicit act or that its cargo is PARTIV
liable to confiscation. onar. x
3. When from the absence of essential papers the true
character of the ship cannot be ascertained.
The right of capture on the ground of resistance to visit, and on ground
that of subsequent confiscation, flow necessarily from the sº
lawfulness of visit, and give rise to no question. If the belli-
gerent when visiting is within the rights possessed by a state in
amity with the country to which the neutral ship belongs, the
neutral master is guilty of an unprovoked aggression in using
force to prevent the visit from being accomplished, and the
belligerent may consequently treat him as an enemy and confiscate
his ship.
The only point arising out of this cause of seizure which *
requires to be noticed is the effect of resistance upon cargo when
made by the master of the vessel, or upon vessel and cargo
together when made by the officer commanding a convoy. The
English and American courts, which alone seem to have had an
opportunity of deciding in the matter, are agreed in looking
upon the resistance of a neutral master as involving goods in
the fate of the vessel in which they are loaded, and of an officer
in charge as condemning the whole property placed under his
protection. “I stand with confidence,” said Lord Stowell, ‘upon
all fair principles of reason, upon the distinct authority of Wattel,
upon the institutes of other great maritime countries, as well
as those of our own country, when I venture to lay it down,
that by the law of nations as now understood a deliberate and
continued resistance to search, on the part of a neutral vessel,
to a lawful cruiser, is followed by the legal consequences of
confiscation".”
But the rules accepted in the two countries differ with regard by belli-
gerent in
to property placed in charge of a belligerent. Lord Stowell, charge of
in administering the law as understood in England, held that *::::::.
the immunity of neutral goods on board a belligerent merchant-
* The Maria, i Rob. 377. Holland's Manual of Prize Law, pp. 43–4.
730 VISIT AND CAPTURE
PART IV man is not affected by the resistance of the master; for while
CHAP. X
on the one hand he has a full right to save from capture the
belligerent property in his charge, on the other the neutral can-
not be assumed to have calculated or intended that visit should
be resisted”. “But if the neutral 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, and so far he adheres to the belligerent. . . . If a party
acts in association with a hostile force, and relies on that force
for protection, he is pro hde vice to be considered as an enemy “.’
The American courts carry their application of the principle
that neutral goods in enemy’s vessels are free to a further point,
and hold that the right of neutrals to carry on their trade in
such vessels is not impaired by the fact that the latter are
armed. According to Chief Justice Marshall, ‘the object of the
neutral is the transportation of his goods. His connexion with
the vessel which transports them is the same whether that
vessel be armed or unarmed. The act of arming is not his—it
is the act of a party who has a right to do so. He meddles not
with the armament nor with the war; and the belligerent
suffers no injury from his act, for ‘if the property be neutral,
what mischief is done by its escaping a search 2'
The same doctrine was applied by the government of the
Doctrine
of the
American
Courts.
* The Catherina Elizabeth, v Rob. 232.
* The Fanny, i Dodson, 448. Mr. Justice Story, dissenting from the
majority of the Supreme Court, argued strenuously in favour of the view
taken by the English courts. “It is necessarily known to the convoyed ships
that the belligerent is bound to resist, and will resist until overcome by
superior force. It is impossible therefore to join such convoy without an
intention to receive the protection of a belligerent force in such manner and
under such circumstances as the belligerent may choose to apply it. To
render the convoy an effectual protection it is necessary to interchange
signals and instructions, to communicate information, and to watch the
approach of an enemy. The neutral solicitously aids and co-operates in all
these important transactions, and thus far manifestly sides with the
belligerent, and performs as to him a meritorious service.’ The Nereide,
ix Cranch, 44I.
VISIT AND CAPTURE. 731
United States in a controversy with Denmark which sprung PART IV.
out of the use of English convoys by American vessels trading cº X
OIlúI’O-
to the Baltic during war between Denmark and Great Britain. versy be-
& wº $ tº tween
Large numbers of such vessels were in the habit, after receiving p.ark
and the
United
of Sweden, where they met British men of war, by which they States.
were protected until they were out of danger. As the nature
of the cargoes exposed the intention with which this practice
cargoes of naval stores in Russia, of assembling on the coasts
was carried on to extreme suspicion, the Danish government
issued an ordinance in 1810, declaring all neutral vessels availing
themselves of belligerent convoy to be good prize. Several
stragglers were captured, without actual resistance being made,
and were condemned by the Danish courts, it being considered
that an intention to resist had been sufficiently manifested by
joining the convoy. It was argued by the American government
that though a neutral may not escape from visit by the use of
force or fraud, he may use any means of simple avoidance; it
was apparently implied that the act of joining a convoy, being
open, could not be fraudulent ; and it was urged that an actual
participation in resistance must be required to involve the
neutral in its consequences. A mere intention to resist, not
carried into effect, had never, it was said, in the case of a single
ship been considered to entail the penalty of confiscation ; and
the two cases in no way so differed as to call for the application
of a different principle. The Danish government on its part
seems in effect to have maintained that not only is a settled
intention to resist equivalent to actual resistance, but that he
who causes himself to be protected ‘ by an enemy’s convoy
ranges himself on the side of the protector, and thus puts him-
self in opposition to the enemy of the protector, and evidently
renounces the advantage attached to the character of a friend
to him against whom he seeks protection.’
The United States, after a negotiation extending over twenty
years, succeeded in obtaining a treaty, under which Denmark,
while expressly declaring that its concession was not to be looked
732 VISIT AND CAPTURE
upon as a precedent, agreed to pay a sum en bloc by way of
indemnity to the American subjects whose property had been
seized ".
The occasions on which a neutral vessel may be seized for
illicit acts affecting itself, or because its cargo is liable to con-
fiscation, have for the most part been already specified”. But
there still remains to be noticed, as affecting it with penalties,
a class of fraudulent or ambiguous acts of the owner or master,
consisting in-
1. The possession of false documents.
2. The destruction or concealment of papers.
That a vessel is furnished with double or false documents is
invariably held to be a sufficient reason for bringing her in for
adjudication; and according to Russian practice, at any rate,
a false passport, and in Spanish practice double papers of any
kind, entail confiscation of both ship and cargo ; but generally
falsity of papers is regarded with leniency, and is only considered
to be noxious when there is reason to believe that the fictitious
documents were framed in order to deceive the capturing belli-
gerent, and that they would therefore fraudulently oust the rights
of the captors, if admitted as genuine. The ground of this
leniency is that, apart from indications that they are directed
against the interests of a particular belligerent, they are as
likely to have been provided as a safeguard against the enemy
of the captor as against the captor himself”.
PART IV
CHAP. X
Capture
for fraudu-
lent acts.
False
docu-
ments.
* Wheaton, Elem. pt. iv. chap. iii. § 32. Mr. Wheaton was the negotiator
of the treaty, and is naturally prejudiced in favour of the doctrine which he
was employed in pressing ; but his annotator, Mr. Lawrence, appears to take
a different view. Woolsey (Introd. § 193), Dana (note to Wheaton, § 535),
and Kent (Comm. lect. vii) assert the English doctrine as unquestionable.
Ortolan (ii. 275) adopts the same opinion, subject only to the reservation
that if a neutral vessel meeting a belligerent convoy attaches itself to it, her
conduct may be looked upon as an innocent ruse to escape the inconvenience
of a visit, and not as implying an intention to resist. The contrary doctrine
has no better defender than M. Hautefeuille, tit. xi. chap. iii. sect. 2.
* Comp. antea, pp. 667, 673, 693–5, 705, 7 Io.
* Halleck, ii. 299 ; The Eliza and Katy, vi Rob. 192; The St. Nicholas,
i Wheaton, 417 ; Rev. de Droit Int. x. 611 ; Negrin, 251.
By English practice captors are allowed expenses when they have been
WISIT AND CAPTURE 733
The destruction or ‘spoliation * of papers, and even, though PARTIV
to a less degree, their concealment, is theoretically an offence sº
of the most serious nature, the presumption being that it is of papers.
effected for the purpose of fraudulently suppressing evidence
which if produced would cause condemnation. The French
Regulations of 1704, repeated in 1744 and 1778, declared to be
good prize all vessels, with their cargoes, on simple proof of the
fact that papers had been destroyed, irrespective of what the
papers were; but the severity of the rule has been tempered
in practice, it being commonly required that the destroyed
papers should be proved to be such as in themselves to entail
confiscation *. In England and America a milder practice is
in use. Spoliation or concealment of papers, ‘if all the other
circumstances are clear,’ only affects the neutral with loss of
freight; but it is a cause of grave suspicion, and may shut out
the guilty person from any indulgence of the court, as for
example, from permission to bring further proof if further proof
be necessary. If the circumstances are not clear, if for example
spoliation takes place when the capturing vessel is in sight,
or at the time of capture, or subsequently to it without the
destroyed papers having been seen by the captor, further proof
would probably be shut out as of course, the natural inference -
from the circumstances being that they have been destroyed
because their contents were compromising *. Duties of
In the absence of proof that he has rendered himself liable to a captor.
misled by false papers into capturing an innocent vessel, the papers being
intended to deceive the enemy. The Sarah, iii Rob. 330.
* Pistoye et Duverdy, ii. 73, citing the case of La Fortune. But in the
case of The Apollos, the rule was pressed with extreme rigour. A prize was
wrecked at the entrance of the port of Ostend ; at the moment when it
grounded the captain snatched the ship's papers from the prize-master, and
on getting to shore at once lodged them with the juge de paix. They
established the neutrality of the ship and cargo, and there was no reason to
believe that any of the number had been abstracted, but it being possible
that in the confusion some might have been destroyed, the penalty of proved
destruction was inflicted. Pistoye et Duverdy, ii. 81.
* The Rising Sun, ii Rob. Iof ; The Hunter, i Dodson, 487; Livingston
v. The Maryland Ins. Cy., vii Cranch, 544; The Commercen, i Wheaton, 386;
The Pizarro, ii Wheaton, 241 ; The Johanna Emilie, Spinks, 22.
734 VISIT AND CAPTURE
PARTIV penalties, a neutral has the benefit of those presumptions in his
*** favour which are afforded by his professed neutrality. His goods
are primá facie free from liability to seizure and confiscation. If
then they are seized, it is for the captor, before confiscating them
or inflicting a penalty of any kind on the neutral, to show that
the acts of the latter have been such as to give him a right to do
so. Property therefore in neutral goods or vessels which are
seized by a belligerent does not vest upon the completion of
a capture. It remains in the neutral until judgment of
confiscation has been pronounced by the competent courts after
due legal investigation. The courts before which the question
is brought whether capture of neutral property has been effected
for sufficient cause are instituted by the belligerent and sit
in his territory; but the law which they administer is inter-
national law.
Such being the position of neutral property previously to
adjudication, and such being the conditions under which
adjudication takes place, a captor lies under the following
duties:
I. He must conduct his visit and capture with as much regard
for persons and for the safety of property as the necessities of
the case may allow ; and though he may detain persons in order
to secure their presence as witnesses, he cannot treat them as
prisoners of war, nor can he exact any pledges with respect to
their conduct in the future as a condition of their release. If he
maltreats them the courts will decree damage to the injured
parties”.
2. He must bring in the captured property for adjudication,
and must use all reasonable speed in doing so. In cases of
improper delay, demurrage is given to the claimant, and costs
* The Anna Maria, ii Wheaton, 332; The Vrow Johanna, iv. Rob. 351; The
San Juan Baptista, v. Rob. 23; Lord Lyons to Earl Russell, and Mr. Seward
to Mr. Welles, Parl. Papers, 1862, lxii. No. i. 119. By the German naval
regulations members of the crew detained as witnesses are kept at the cost
of the state until decision of the cause, after which they are handed over to
the consul of their state to be sent home. Rev. de Droit Int. x. 239.
WISIT AND CAPTURE 735
and expenses are refused to the captor. It follows as of course
from this rule—which itself is a necessary consequence of the
fact that property in neutral ships and goods is not transferred
by capture—that a neutral vessel must not be destroyed; and
the principle that destruction involves compensation was laid
down in the broadest manner by Lord Stowell: where a ship is
neutral, he said, ‘the act of destruction cannot be justified to the
neutral owner by the gravest importance of such an act to the
public service of the captor’s own state ; to the neutral it can
only be justified under any such circumstances by a full
restitution in value.’ It is the English practice to give costs
and damages as well; to destroy a neutral ship is a punishable
wrong ; if it cannot be brought in for adjudication, it can and
ought to be released'. If a vessel is not in a condition to reach
a port where adjudication can take place, but can safely be taken
into a neutral port, it is permissible to carry her thither, and to
keep her there if the local authorities consent. In such case the
witnesses, with the ship’s papers and the necessary affidavits, are
sent in charge of an officer to the nearest port of the captor
where a prize court exists.
3. In the course of bringing in, the captor must exercise due
care to preserve the captured vessel and goods from loss or
damage; and he is liable to penalties for negligence. For loss
by fortune of the sea he is of course not liable *.
* The Zee Star, iv. Rob. 71 ; The Felicity, ii Dodson, 383; The Leucade,
Spinks, 22I.
* Restitution in value or damages are given for loss or injury received by
a vessel in consequence of a refusal of nautical assistance by the captor.
Der Mohr, iv. Rob. 314 ; Die Fire Damer, v Rob. 357.
The principle that a captor must not wilfully expose property to danger of
capture by the other belligerent by bringing it to England, when he may
resort to Admiralty courts in the colonies, was admitted in the Nicholas
and Jan, i Rob. 97, though in the particular case the court decided against
the claimant of restitution in value on the ground that due discretion had
not been exceeded.
PART IV
CHAP. X
PART IV
CHAP. XI
General
CHAPTER XI
NEUTRAL PERSONS AND PROPERTY WITHIN
BELLIGERENT JURISDICTION
As a state possesses jurisdiction, within the limits which have
been indicated, over the persons and property of foreigners found
j. of upon its land and waters, the persons and property of neutral
neutral
persons
and pro-
perty
within
|belli–
gerent
jurisdic-
tion.
individuals in a belligerent state are in principle subjected to
such exceptional measures of jurisdiction and to such exceptional
taxation and seizure for the use of the state as the existence of
hostilities may render necessary, provided that no further burden
is placed upon foreigners than is imposed upon subjects.
So also, as neutral individuals within an enemy state are
subject to the jurisdiction of that enemy and are so far
intimately associated with him that they cannot be separated
from him for many purposes, they and their property are as
a general principle exposed to the same extent as non-combatant
enemy subjects to the consequences of hostilities. Neutral
‘persons are placed in the same way as subjects of the state
under the temporary jurisdiction of the foreign occupant, acts
of disobedience are punishable in like manner, and the belli-
gerent is not obliged, taking them as a body, to show more
consideration to them in the conduct of his operations than he
exhibits towards other inhabitants of the country—he need not,
for example, give them an opportunity of withdrawing from a
besieged town before bombardment, which he does not accord to
the population at large. Their property is not exempt from
contributions and requisitions.
To a certain extent however, which is not easily definable,
neutral persons taken as individuals are in a more favourable
position, relatively to an occupying belligerent, than are the
NEUTRAL PERSONS AND PROPERTY 737
members of the population with which they are mixed. As PART IV
subjects of a friendly state, it is to be presumed until the contrary CHAP. XI
is shown that they are not personally hostile; as such subjects,
living in a country under the government of the belligerent,
they are entitled to the advantages of his protection and of the
justice which he administers to his natural subjects, so far as
the circumstances of war will allow. Hence he ought to extend
to them such indulgences as may be practicable, and he is not
justified in subjecting them to penalties on those light grounds
of suspicion, which often suffice for him, perhaps inevitably, in
his dealings with enemies.
The general principle that neutral property in belligerent
territory shares the liabilities of property belonging to subjects
of the state is clear and indisputable; and no objection can be
made to its effect upon property which is associated either
permanently or for a considerable time with the belligerent
territory. But it might perhaps have been expected, and it
might certainly have been hoped, that its application would not
have been extended to neutral property passingly within a belli-
gerent state. The right to use, or even when necessary to sº
destroy, such property is however recognised by writers, under
the name of the right of angary *; its exercise is guarded against
in a certain number of treaties”; and when not so guarded
* In the end of the eighteenth century De Martens said (Précis, $ 269, ed.
I789) that “it is doubtful whether the common law of nations gives to a
belligerent except in cases of extreme necessity, the right of seizing neutral
vessels lying in his ports at the outbreak of war, in order to meet the require-
ments of his fleet, on payment of their services. Usage has introduced the
exercise of this right, but a number of treaties have abolished it.” Azuni,
on the other hand, treats it as a right existing in all cases of ‘necessity of
public utility,” and declares any vessel attempting to avoid it to be liable to
confiscation. Droit Maritime, ch. iii. art. 5.
Of recent writers Sir R. Phillimore (iii. § xxix), and M. Heffter (§ 150),
unwillingly, and M. Bluntschli (§ 795 bis) less reservedly, recognise the
right.
* Stipulations forbidding the seizure of ships or merchandise in times
both of peace and war for public purposes were not uncommon in the end
of the eighteenth century, but they do not appear after the early years of the
last century.
HALL 3 B
738 NEUTRAL PERSONS AND PROPERTY
PART IV against, it has occasionally been put in practice in recent times
CHAP. XI
with the acquiescence of neutral states. In a large number of
treaties the neutral owner is to some extent protected from loss
by a stipulation that he shall be compensated"; and it is possible
that a right to compensation might be generally held to exist
apart from treaties.
. The most recent cases of the exercise of the right of angary
occurred during the Franco-German War of 1870–1. The
German authorities in Alsace, for example, seized for military
use between six and seven hundred railway carriages belonging
to the Central Swiss Railway, and a considerable quantity of
Austrian rolling stock, and appear to have kept the carriages,
trucks, &c., so seized for some time. Another instance which
occurred nearly at the same moment attracted a good deal of
attention, and is of interest as showing distinct acquiescence on
the part of the government of the neutral subjects affected.
Some English vessels were seized by the German general in
command at Rouen, and sunk in the Seine at Duclair in order to
prevent French gun-boats from running up the river, and from
barring the German corps operating on its two banks from
communication with each other. The German commanders
appear to have endeavoured in the first instance to make an
agreement with the captains of the vessels to sink the latter after
payment of their value and after taking out their cargoes. The
captains having refused to enter into any such agreement, their
refusal was by a strange perversion of ideas ‘considered to be an
infraction of neutrality,” and the vessels were sunk by the un-
necessarily violent method of firing upon them while some at
least of the members of the crew appear to have been on board.
The English government did not dispute the right of the
Germans to act in a general sense in the manner which they had
adopted, and notwithstanding the objectionable details of their
conduct, it confined itself to a demand that the persons whose
property had been destroyed should receive the compensation to
* These treaties are all made with Central or South American States.
WITHIN BELLIGERENT JURISDICTION 739
which a despatch of Count Bismarck had already admitted their PART IV
right. Count Bismarck on his side, in writing upon the matter, CHAP. XI
claimed that ‘ the measure in question, however exceptional in its
nature, did not overstep the bounds of international warlike
usage; ” but he evidently felt that the violence of the methods
adopted needed a special justification, for he went on to say,
“ the report shows that a pressing danger was at hand, and every
other means of meeting it was wanting; the case was therefore
one of necessity, which even in time of peace may render the
employment or destruction of foreign property admissible under
the reservation of indemnification 1.’
* D'Angeberg, Nos. 914, 920, 957; State Papers, 1871, lxxxi. c. 250. A con-
siderable portion of the French expedition to Egypt in 1798 seems to have
been carried in neutral vessels seized in the ports of France, De Martens,
Rec. vii. I63; and compare an order of Napoleon for the seizure for that
purpose of some vessels in Marseilles (Corresp. iv. Ior).
TA B L E O F C A S E S
ENGLISH AND AMERICAN
ACTEON, The, 556.
Adelaide Rose, The, 696.
Adeline, The Schooner, 495.
Adonis, The, 711.
Adula, The, 698, 700.
AEolus, The, 557.
Alexander, The, 7II.
American Insurance Company v.
Canter, 466.
Amy Warwick, The, 40.
Ann Green, The, 507, 508.
Anna, The, I22, 603.
Anna Catherina, The, 5or.
Anna Maria, The, 734.
Anne, The, 621, 625.
Anthon v. Fisher, 461.
Apollo, The, 658.
Arrogante Barcelones, The, 622.
Atalanta, The, 716.
BAIGORRY, The, 705.
Baltica, The, 5oo.
Benito Estenga, The, 649.
Bermuda, The, 670, 710.
Bernon, The, 506.
Betsey, The, 697.
Betsey Cathcart, The, 62 I.
Boedes Lust, The, 369.
Bousmaker, ex parte, 391.
Briggs v. Light Boats, 20I.
Brown v. United States, 39 I, 440,
53O.
Bullen v. The Queen, 506.
CAROLINA, The, 676.
Caroline, The, 675.
Catherina Elizabeth, The, 730.
Ceylon, The, 494.
Charkieh, The, I97.
Charlotta, The, 71.I.
Charlotte Christine, The, 709.
Charlotte Sophia, The, 709.
Cheshire, The, 709.
Circassian, The, 509, 698, 699, 702,
7O5, 7Io.
Columbia, The, 696, 697, 701.
Comet, The, 707.
Commercen, The, 649, 733.
Constitution, The, 198.
Crawford and Maclean v. The William
Penn, 563.
DAIFJE, The, 551.
Danckebaar Africaan, The, 509.
Dashing Wave, The, 712.
De Haber v. The Queen of Portugal,
I7o, IQ3.
Der Mohr, 735.
Despatch, The, 709.
De Wutz v. Hendricks, 597.
Diana, The, 498.
Die Fire Damer, 735.
Direct United States Cable Company
v. Anglo-American Telegraph Com-
pany, I56.
EDWARD, The, 661.
Edward and Mary, The, 456.
Effurth v. Smith, 557.
Eleanor, The, 727.
Eliza and Katy, The, 192.
Emma, The, 557.
Ernst Merck, The, 500.
Essex, The, 669.
Exchange, The Schooner, v. M*Fad-
don, 191.
FANNY, The, 730.
Feize v. Thompson, 556.
Felicity, The, 458, 735.
742
TABLE OF CASES
Francis, The, 508.
Franciska, The, 632, 696, 7oo, 707.
Franklin, The, 668.
Frau Ilsabe, The, 712.
Frederic Molke, The, 701.
Freundschaft, The, 5o I.
Friendship, The, 677.
GROTIUS, The 456.
IHALL v. Campbell, 57 I.
Harmony, The, 499.
Hendrick and Maria, The, 7oo.
Hiawatha, The, 698.
Hobbs v. Henning, 671.
Hoffnung, The, 7or.
Hoop, The, 391, 461.
Hope, The, 555.
Hudson v. Guestier, 622.
Hunter, The, 733.
Hurtige Hane, The, 709, 7II.
IMINA, The, 668, 671, 672.
Indian Chief, The, 5oo, 501.
Irene, The, 711.
JAMES COOK, The, 709.
Jan Frederick, The, 507.
Johanna Emilie, The, 442, 733.
Jonge Classina, The, 501, 556.
Jonge Margaretha, The, 644, 658, 661.
Juffrow Maria Schroeder, 711.
KENSINGTON v. Ingles, 554.
King of Spain, The, v. Hullet and
Widder, 17o.
Klingender v. Bond, 556.
LA AMISTAD DE RUES, 621.
La Estrella, 621.
La Gloire, 551.
L’Actif, 494. -
L'Invincible, 617, 622.
Leucade, The, 29, 458, 735.
Lisette, The, 668, 711.
Livingstone v. The Maryland Insur-
anee Co., 733. -
Louise Charlotte de Guilderoni, The,
556. s -
MACARTNEY v. Garbutt, 178, 300.
Madison, The, 675.
Magdalena Steam Navigation Co. v.
Martin, 176.
Maissonave v. Keating, 649.
Manly, The, 557.
Marais, ex parte, 471.
Margaret, The, 672.
Maria, The, 658, 668, 724, 729.
Mariana Flora, The, 711, 727.
Mary Ford, The, 462.
Mentor, The, 564.
Mighell v. Sultan of Johore, I70.
Molly, The, 563.
Musgrove v. Chun Teeong Toy, 56.
Musurus Bey v. Gadban, 176.
NANCY, The, 672.
Naylor v. Taylor, 697.
Neptunus, The, 697, 705.
Nereide, The, 697, 698, 724, 730.
Neutralitet, The, 668.
Newbattle, The, I?o, 198.
Nicholas and Jan, The, 735.
Nostra Signora del Rosario, 493,
Nuestra Señora de los Dolores, 559.
ODIN, The, 507.
Orozembo, The, 676, 677.
Otto and Olaf, The, 706, 707.
PACKET DE BILBOA, The, 508.
Panaghia Rhomba, The, 711.
Panama, The, 679.
Paquete Habana, The, 450.
Parlement Belge, The, 162.
Peacock, The, 539.
Penhallow v. Doane’s Executors, 622.
Peterhoff, The, 669, 712.
Phoenix, The, 504.
Pizarro, The, 733.
Portland, The, 5or.
Prinz Frederick, The, 197.
RADCLIFF v. The United Insurance
Company, 7or. -
Ranger, The, 661.
Rapid, The, 65, 391, 676.
Regina v. Cunningham, 156.
TABLE OF CASES
743
Regina v. Keyn, 205.
Regina v. Lesley, 254.
Rex v. Lynch, 233, 390.
Resolution, The, 456.
Rising Sun, The, 733.
Robinson v. Morris, 556.
Rolla, The, 7oo.
Rose v. Himeley, 622.
ST. NICHOLAS, The, 732.
San Juan Baptista, The, 734.
Santa Cruz, The, 455, 495.
Santissima Trinidad, The, 79, 162,
I9 I, 61 I, 62.I. -
Sarah, The, 733.
Sarah Christina, The, 667.
Sarah Maria, The, 557.
Science, The, 712.
Shanks v. Dupont, 236, 467.
Society for Propagation of the Gospel
v. Town of Newhaven, 386.
South African Republic v. La Com-
pagnie Franco-Belge, I 7o.
Springbok, The, 670.
Staadt Embden, The, 668.
Stert, The, 7 II.
Sutton v. Sutton, 386.
TALBOT v. Janson, 621.
Thirty Hogsheads of Sugar v. Boyle,
504, 509, 702.
Trende Sostre, 668.
Twee Gebroeders, The, I24, 150, 617,
62I.
Twee Juffrowen, The, 658.
UNION, The, 696.
United States v. De Repentigny, 571,
572.
Usparicha v. Noble, 554.
WAVASSEUR v. Krupp, 20I.
Venus, The, 5oo, 551.
Vigilantia, The, 504.
Volant, The, 712.
WOs & Graves ty. The United Insurance
Company, 701.
Vriendschap, The, 556.
Vrow Cornelia, The, 557.
Vrow Johanna, The, 697, 734.
Vrow Judith, The, 697, 706, 707.
Wrow Margaretha, The, 507.
WARIN v. Scott, 556.
White v. Burnley, 66.
Wiberg v. United States, 608.
Wildenhus’ Case, 204.
William, The, 669.
Williams v. Marshall, 557.
Wolff v. Oxholm, 440.
YOUNG Jacob & Johanna, The, 45o.
ZEE Star, The, 735.
IN DE X
ABANDONMENT of enemy property
captured at sea, effect of, 461.
Absorption of a state, effects of, I 99.
Accretion, I2 I.
Adams, Secretary, on recognition of
a revolutionary state, 85 m.
Admiralty Manual of Prize Law,
504 m, 506 n. ; list of articles at pre-
sent held to be contraband, 654 m ;
on destination of vessel as indica-
tive of destination of cargo, 671 m. ;
Lord Salisbury’s observations on,
ib.; onvisiting convoyed ships, 72.4%;
on requisite ships’ papers, 728 n.
— Regulations of, 1805, with refer-
ence to the sovereignty of the
British seas, I47.
Africa, unoccupied territory on con-
tinent of, declaration of Berlin with
reference to, II4 ; and see Boer
War, South African Republic.
Agents of a state ; persons entrusted
with the management of foreign
affairs, 297, 326; diplomatic agents,
299; officers in command of armed
forces of the state, 313, 326, 549,
552; secretly accredited diplomatic
agents, 315; commissioners, 316 ;
bearers of despatches, ib. ; consuls,
ºb.
Aix la Chapelle, dispute between
England and the United Provinces
as to meaning of treaty of, 336.
Alabama, case of the, 608.
Alaska, claims of United States with
regard to seal fisheries on the coast
of, I49 ; boundary dispute between
United States and Great Britain,
365; and see Behring Sea.
Albericus Gentilis; on acts permitted
during a truce, 546 m ; on rights of
neutral states, 581 m ; on capture of
neutral goods, 714 m.
Alienation of territory; see Cession.
Aliens, limits of the general rights of
sovereignty over, 5o ; right of a state
to exclude, 56 m, 21.3; how far a
state has a right to their services
in maintenance of the public safety,
207 ; crimes committed by, in terri-
tory foreign to state exercising
jurisdiction, 2 Io.
Allegiance, whether retained by sub-
jects of ceded territory, 57.2 m.
Ambassador, immunities of, 172 ;
domicil of, 185; whether he has
power to legalise marriage, ib. and
n; refusal to receive, 299; and see
Diplomatic agent.
Amnesty, 563.
Analogues of contraband, 657.
Angary, right of, 737.
Apollos, case of the, 733 m.
Arbitration, 362; list of disputes
settled by, 364 m.
— Permanent Court of, established
at the Hague, 365 ; and see under
Hague Peace Conference.
Archives, whether seizable in war;
423 ; consular, alleged cases of
seizure and sale of, 32 I m.
Argentine Confederation, persons in-
cluded as subjects by, 233; persons
destitute of nationality in, 246.
Armed neutrality,+
First, the ; its doctrine as to
contraband, 647; as to enemy's
goods in neutral vessels, 688; as to
blockade, 704.
Second, the ; its doctrine as to
contraband, 650 ; as to enemy's
goods in neutral vessels, 690 ; as to
blockade, 704 m ; as to visit of con-
voyed vessels, 719.
Armistice, 544; revictualment dur-
ing, 546; effect of preliminaries of
peace in Operating as, 560.
Asylum, whether house of diplomatic
agent can confer, 182 ; modern in-
stances of, in Spain, Greece, and
South America, ib. n, 183; on board
ships of war, 196; right of states
to afford, 213 ; to the land forces of
a belligerent, 625; to his naval
forces, 626.
Aube, Admiral, his views on French
naval policy, 339; appointed Minis-
ter of Marine, ib. n.
Australian ports; projected raid on,
by Russia, 434.
Austria, circumstances under which
its personal identity might be lost,
23 m ; law of, as to the immunities
of diplomatic agents, I/7 ; with
INDEX
745
respect to marriages celebrated at
Foreign Embassies, 185 m. ; with re-
spect to the nationality of persons,
226, 246; naturalisation laws, 237,
239; case of Martin Koszta, 242 ;
pacific blockade by, 372 ; practice
with respect to capture of private
property at sea, 445; neutrality
Ordinance of 1803, 611, 617 m, 627 m ;
neutrality law of, 614 ; practice as
to what constitutes contraband,
657 m ; practice as to visiting con-
Voyed ships, 719.
Authorisation from the sovereign, to
carry on war, whether necessary
for combatants, 517; for the estab-
lishment of a blockade, 699 ; for
exercising right of visit and cap-
ture, 719. -
Ayala, on detention of enemy sub-
jects at outbreak of war, 392 n.
BALLOONS, persons in, harsh treat-
ment of, by Germans in Franco-
Prussian War, 54o ; now protected
under Hague Convention, 341 ; and
regarded in French official manual
as prisoners of war when captured,
Žb.
Baltic powers, the, joint action of,
with regard to contraband, 647,
65o ; to immunity of convoyed ves-
Sels, 721, 722.
Bar, von, on military forces in foreign
territory, 199 m.
Barcelona, case of the Swedish galliot
at, 538 r.
Base of operations, when a neutral
State is used as one, 603; when
not, 609. *
Bassompierre, the Maréchal de, Eng-
lish list of contraband according to,
642 ; on English usage as to confis-
cation of neutral goods, 714.
Bayard, Secretary, refuses to acknow-
ledge power of Colombia to close
ports by order during civil war,
35 m; justifies the inclusion of
cotton among contraband in the
American civil war, 664 m.
Bechuanaland, notification of occupa-
tion of, by Great Britain, I 15 m.
Behring Sea arbitration, 149, 155 m,
I58 m, 257 m, 364.
Belgians, King of the, assumes sove-
reignty of the Congo State, 89.
Belgium, mode in which its recogni-
tion was effected, 86 m, 87 ; laws of,
with respect to the power of legal-
ising mixed marriages, 186 m; with
respect to the nationality of per-
Sons, 226 ; refusal of passage by, to
wºnded after battle of Sedan,
O2.
Belleisle, case of the Maréchal de,
3II.
Belligerent communities, 29; circum-
stances in which they may be re-
cognised as such, 34; withdrawal
of recognition, 35.
Belligerents; origin of their right to
interfere with neutral trade, 74;
carriage of persons in the service
of, 502, 676, 68o ; carriage of goods
belonging to, in neutral ships, 684;
carriage of neutral goods by, 713 ;
convoy of neutrals by, 729.
Berlin, Declaration adopted at Con-
ference of, II.4, 126 m ; Madagascar
excluded from operation of, II5 ;
applicable only to coasts of Africa,
7b. ; notifications under, ib. n.
Bernard, Mr., on the twenty-four
hours' rule, 628; on conveyance by
a neutral of persons in the employ-
ment of a belligerent, 683.
Bismarck, Prince ; remonstrances
against British trade in contra-
band, 80, 657 m, 660 ; on effectual
occupation of new territory, II 5 ºn ;
On the rights of Co-riparian States,
I39 m ; pretension of, that sailors in
merchant vessels cannot be made
prisoners, 407 n. ; on Balloons in
warfare, 540 ; on Contraband, 657 re;
on belligerent right of using neutral
property for warlike purposes, 739.
Bismarck Bohlen, Count, proclama-
tion of in Alsace, 467 m ; declara-
tion of, as governor of occupied
country, 47I n.
Blockade, commercial, 631 ; in what
blockade consists, 693 ; how a neu-
tral becomes affected with know-
ledge of a blockade, 694; blockade
by notification, 695, 706 ; de facto,
697, 706; authority under which
a blockade is established, 699 ;
what is sufficient maintenance, 7oo;
when blockade ceases, 701; doctrine
of the United States as to effect of
occupation by a belligerent of a
place blockaded by him, 702 ºn ;
effect of cessation of blockade, 705 ;
under what conditions exit from
blockaded port allowed, 706; what
constitutes breach of blockade, 708 ;
penalty of breach, 7Io; avoidance
of blockade by inland navigation,
7II ; entry from distress into block-
746.
INDEX
.aded port, ib.; entry of ships of war,
ib. ; blockade of river partially in
neutral territory, 712.
Blockade, pacific, 37I ; variations in
the practice of, 372; instances of con-
fiscation of vessels of third powers,
ib. ; general prevalence of a milder
course, ib. ; attempt of France to
combine the powers of a hostile
blockade with, 373; unwarrantable
conduct of England in case of La
Plata, 374 ; true principles of con-
duct of, 375; declaration by Institut
de Droit International on the sub-
ject of, 376 n.
Bluntschli, M.; on the Treaty of Paris,
8; on the recognition of the Con-
federate States by England as belli-
gerent, 4o n; on extradition, 58 ;
on the legal character of contra-
band trade, 8o; on the navigation
of rivers, 135 m; on the position of
a diplomatic agent engaging in
commerce, 175 m ; on power of
states to enrol aliens for defensive
purposes, 209 ; on liberty of emi-
gration, 239 m ; on piracy, 261 m ;
on interpretation of conflicting
treaties, 343 ºn ; on effect of collec-
tive guarantees, 345; when treaties
are null according to, 358 ; on se-
questration of the public debts of
the state by way of reprisal, 371 m ;
on pacific blockade, 375 ºn ; on em-
bargo in contemplation of war,
376 m ; whether declaration of war
is necessary, 382 ; On the Geneva
Convention, 405 m. ; on the destruc-
tion of enemy vessels, 459 m ; on
punishment by a military occupant,
478 r ; on the conditions under
which military occupation is set
up and continues, 48o n ; on the
conquest of Genoa, 491 ; on loans
by neutrals, 596; on the twenty-
four hours' rule, 628 ºn ; on contra-
band, 653, 657, 662, 665 m, 671 m.
Boer War, The, of 1899, commenced
after delivery of ultimatum, 384;
violations of Geneva Convention
during, 405; abuse of Volunteer
Ambulance Corps during, 406; ad-
ministration of martial law during,
47I n ; use of hostages in, to prevent
train-wrecking, 476; question of
contraband arising out of, 670 m.
Bombardment, 398, 536; of Valpa-
raiso, ib. n ; of shipbuilding yards,
ib. ; of open towns by a naval force,
436 rº, 537.
Bons de requisition, 429.
Booty, 437.
Boscawen, Admiral, pursues a French
Fleet into Portuguese waters, 582 ;
Searches Dutch merchantmen un-
der convoy, 72 I.
Bosnia, difficulty of determining its
legal position towards Turkey, 5 Io.
Boundaries of state territory, how
defined, 122.
Bourgois, Admiral, expresses dissent
from views of Admiral Aube, 434 n.
Brazil exacts reparation for seizure of
the Florida, 62o ; rules of, as to
vessels infringing neutrality, 624.
Brougham, Lord, on relation of belli-
gerent states and neutral indivi-
duals, 75 m ; on convoy, 726.
Brunei, Protectorate of Great Britain
over, I28 m. -
Brussels Conference, project of Con-
vention of the, 407 m, 523, 55o 7.
Buenos Ayres, blockade of, 700, 707.
Bulwer, Mr., case of, 307.
Bunch, Mr. Consul, case of, 319 m.
Bundesrath, seizure of the, 670 ??.
Burnet, Bishop, on French levies in
England, 579.
Bynkershoek; who are neutrals, 583;
whether a neutral may help an
ally, 586; on levies in a neutral
country, 588; on contraband, 645.
CALVO, M. ; on the navigation of
rivers, I 35 m; on the rights of
states over marginal seas, &c., I537, ;
on piracy, 261 m ; on the grounds
which entitle a state to demand
recall of a minister, 305 m. ; on the
dismissal of Mr. Bulwer, 307 m ; on
classification of treaties, 360 m ; on
an alleged breach of neutrality by
Great Britain, 538 m ; on loans to
neutrals, 596; on provisions as
contraband, 663 ºn ; on blockade,
703 7%.
Canada, invasions of, from the United
States, 218 m, 270, 604. -
Canals, escape from blockade by, 7II.
Canning, Sir Stratford, refusal of the
Emperor Nicholas to accept as Am-
bassador, 3oo.
Canon de Treuga, prohibition to kill
non-combatants, 397 m.
Capitulations in war, 551. -
— with Turkey, Servia, and Rou-
mania, 53 m. -
Captor, duties of a, 456, 458 m, 734.
Capture of enemy property, what con-
stitutes a valid, 453; of neutral
INDEX
747
property, for what reasons it takes
place, 665, 668, 6.71, 708, 728 ; lia-
bility of neutral to incidental loss
from, 717.
Cargo, penal consequences to, in case
of breach of blockade, 7 Io; in case
of resistance to visit, 729. -
Caroline, case of the, 218 m, 270, 314.
Cartel. ships, 550.
Cartels, 413, 536, 550.
Cºhagena. case of the insurgents of,
205.
Casaregis, on the immunities of naval
and military forces, 186; on piracy,
260 m.
Cass, Mr., on American view of na-
turalisation, 235; on commercial
blockades, 632 n.
Cassation, French Cour de, on effect
of military occupation, 47.o.
Castlereagh, Lord, on appropriation
of works of art by the French, 424.
Cellamare, Prince, case of, 173.
Ceremonial rules, international, 58,
59 7%.
Cession, effects of, on rights, &c. of
the states ceding, 98 ; general view
of the effects of, I 18; with reference
to the nationality of persons, 572.
Change of character by vessel when
in foreign territory, I62.
Change of government in a state, in
its general international aspect, 21,
298; whether it puts an end to a
diplomatic mission, 304, to the
functions of a consul, 322.
Chaplains, military, 398, 407.
Chargés d'Affaires, 302; and see Diplo-
matic agents. *
Charmes, M., supports views of Ad-
miral Aube, 434 n.
Chaudordy, M. de, on the revictual-
ment of besieged places, 547 n.
Chesapeake, case of the, 62o.
Chesterfield, case of the English
packet, 189.
Chile, right of asylum exercised dur-
ing civil war of, in 1891, 183.
China, represented at the Hague
Peace Conference, 42, 366 m ; how
far subject to international law, 42;
War with Japan in 1894, 42, 295;
admits foreigners to trade in inland
waters, I39; objects to receive
Mr. Blair as United States Minister,
3OI ºn ; independence of, guaranteed
by Great Britain and Japan, 344;
war with France in 1885, 662. -
Christina, Queen, declaration of, as
to convoys, 720.
Civil War, recognition of belligerents
in, 30 et seq.; closure of ports during,
by order, not permissible, 35 m;
responsibility for effects of, upon
foreigners, 222 ; intervention by
invitation of a party to, 293. -
Clarendon, Lord, on the interpreta-
tion of treaties, 337.
Clayton-Bulwer treaty, dispute be-
tween England and the United
States as to meaning of the, 337.
Closure of ports by order, 35 m. *
Clothing, whether contraband, 664.
Coal, restrictions on the supply of, to
belligerents, 41, 605; whether con-
traband, 660.
Coasting trade, freedom of, asserted
by First Armed Neutrality, 635.
Cobden, opposition of, to Commercial
blockade, 633 m.
Coimbra, case of the hospital at, 405 n.
Colombia, pretensions of, to close in-
surgent ports by order, 35 m; navi-
gation laws of, 504 m.
Colonial trade, whether it could be
thrown open in time of war, 634.
Combatants, rights of enemy against,
398.
Comino Islands, notification by
France of occupation of, II5 n.
Commercial Blockade, 632 ; Ameri-
can opinion on, ib. n, 633.
Commission, conclusive evidence as
to the public national character of
a vessel, 161, 622.
Commissioners, 316.
Communities imperfectly possessing
the marks of a state, 23.
Concordats, 325 n. -
Confederate States, recognition of, by .
England as belligerents, 37; con-
fiscation of enemy's property by
the, 44o ; destruction of prizes by
cruisers of, 458.
Congo State, its formation and recog-
nition, 88; agreement with Great
Britain for lease of territory, 89 ºn ;
bequeathed to Belgium by the King,
90.
Conquest, when effected, 566 ; case
of Hesse Cassel, 567; of the Nether-
lands, 570 m ; effects of, 57.I.
Consignment of goods during war so.
as to remain the property of the
consignor, effect of, 507.
Consolato del Mare, 454, 685, 714.
Constitution, case of the United
States frigate, 1977. º
Consular Conventions, 203, 317 m,
32.3%.
748
INDEX
Consuls, appointment of, to a new
state does not constitute recogni-
tion, 88 m. ; their functions, 316;
mode of appointment, 318; dis-
missal, 319 ; privileges, 320 ; in
states not within the pale of inter-
national law, 323 ºn ; effect of mer-
cantile domicil of, in time of war,
5OI.
Continuous voyage, English doctrine
of, 668; American doctrine, 669.
Contraband, 640 ; practice with re-
ference to what is, 641 et seq. ;
whether limited to munitions of
war, 652, 655; horses, saltpetre
and Sulphur, and raw materials of
explosives, 657; materials of naval
construction, 658 ; ships, 660 ; coal,
Žb. ; provisions, 661 ; rice, 662 ;
clothing, money, and metals, 664 ;
cotton, ib. ?, ; penalties affecting,
665; effect of, on vessel carrying
it, 666; on innocent goods in the
same vessel, 668; English doctrine
of continuous voyage with respect
to, ib. ; American, 669 ; Anglo-Ger-
man dispute as to, during Boer War,
670 m ; analogues of, 673.
Contributions and requisitions,levied
by a land force, 427; whether they
are a form of appropriation of pri-
vate property, 431 ; under what
conditions they may be levied by
a naval force, 433 ; French opinion
on the subject, ib. ; the right to
demand requisitions exists where
there is power to enforce, 435 ; such
requisitions must not be money
contributions in disguise, ib. n. ;
levy of contributions only justifiable
if a body of men are landed capable
of enforcing them, 436; levy of con-
tributions as carried out in recent
British Naval manoeuvres indefen-
sible, ib. n.
Convoy; whether convoyed ships can
be visited, 718 ; effect of resistance
by neutral convoy, 729 ; by belli-
gerent convoy, ib.
Cotton, treated as contraband during
the American Civil War, 664 m.
Courtesy, duties of, 58, 168.
Credentials of a diplomatic agent, 302,
3O5.
Crete, pacific blockade of, 372 ; in-
ternational status of, 51 on ; Greek
troops landed in, 604 m.
Crimean War, articles declared con-
traband during, 658 n ; doctrine of
free ships, free goods adopted in, 691.
Criminals, surrender of, to a new state
does not necessarily imply recog-
nition, 88 m.
Cutting case, the, 212 n.
Cyprus, difficulty of determining its
legal position towards Turkey, 5 Io.
DANA, Mr., on confiscation of enemy
property within belligerent juris-
diction, 44.2 m; on capture of private
property at Sea, 443; on responsi-
bility of a neutral state for acts
begun within and completed out-
side its territory, 608; on contra-
band, 653, 667 ; on enemy's goods
in neutral vessels, 691 m.
Danube, provisions of the treaty of
Adrianople as to, I 25 %.
De Martens, on the navigation of
rivers, 136 × ; on punishment of
crimes committed by foreigners in
territory foreign to state exercising
jurisdiction, 212 r ; on classifica-
tion of treaties, 360 ºn ; on neutral
state duty, 590; on the right of
Angary, 737 n.
De Martens, F., unwarranted state-
ment of, as to conduct of Great
JBritain towards neutral vessels,
37o n; on declaration of war, 383 m ;
on right of aliens to remain in an
enemy country during war, 394 r.
Debts of a state ; when apportioned
between the state and a separating
part of it, 92; with reference to a
state absorbing it, 99 ; practice of
not interfering in behalf of subjects
who are creditors of a defaulting
state, 281 ; not confiscable in time
of war, 437. -
Deceit, under what conditions per-
missible against an enemy, 537.
Declaration of neutral right by the
Baltic powers, 647.
Declaration of war, whether neces-
sary, 377; Sir F. Maurice on, 381 n :
in relation to neutrals, 574.
Delagoa Bay, dispute between Great
Britain and Portugal as to, II 7 ;
passage of contraband through, in
Boer War, 670.
Denmark, violation of sovereignty of,
8o ; claim of, to the Northern seas,
I41, 147; to the Baltic, I48; laws
of, with respect to nationality, 226;
English operations against, in 1807,
273 ; prize regulations of, 619 rº,
694 m ; joins the Armed Neutrality,
647 ; regulations as to notification
of blockade, 698 m ; practice as to
INDEX
749
exit of ships from blockaded ports,
706 ; disputes with England as to
visit of convoyed ships, 722 ; with
the United States as to neutral ships
under belligerent convoy, 731.
Derby, Lord, on effect of a collective
guarantee, 346.
Despatches, carriage of, for a belli-
gerent, 675, 677 ; in the ordinary
way of trade, 678.
Destination ; false, as a ground of
condemnation, 668; when taken to
be belligerent, ib.
Destruction of enemy vessels, 457,
459 m. ; case of, in 1870, ib. ; of
neutral goods in enemy vessels,
718.
Destruction of neutral vessels, 735,
739.
Destruction, permissible means of,
53I.
Detention of enemy subjects at out-
break of war, 391.
Devastation, 436, 533 et seq.
Dieppe, burning of, by Lord Berkeley,
5.33%.
Diplomatic agent, immunities of, in
the country to which he is accre-
dited, 173; immunities of his
family and suite, 178 ; of his house,
I8o ; how his evidence is obtained
for purposes of justice, I84; exemp-
tions from taxation, ib.; his domi-
cil, I85 ; his powers in legalising
wills, &c., ib. ; grounds on which
a state may refuse to receive, 299 ;
position of subject when accredited
to his own government, 300 m ;
how accredited, 302; his rights,
303 ; how his mission is terminated,
3o4 ; dismissal and recall of, 305 ;
grounds on which such demand
may be made, ib. ; modern in-
stances, 306; in a state to which
he is not accredited, 308 ; at a con-
gress, 3IO ; within enemy jurisdic-
tion, ib.; found in a country to
which he is accredited by the
enemy of the latter, 3 II ; illegal
capture, and restoration of, in
American Civil War, 681.
Discovery, effect of, in conferring title
to territory, IoI.
Domicil, as conferring a national
character, 242 ; with reference to
protection of subjects in foreign
countries, 282 ; what constitutes it
for belligerent purposes, 497 ;
change of, during war, 499.
Drouyn de Lhuys, M., on diplomatic
agents in countries to which they
are not accredited, 308.
Duclair, sinking of English ships at,
738.
Dunkirk, case of the fortifications of,
339.
Duties of a state ; the fundamental
duties correlative to its funda–
mental rights, 43 ; duty of good
faith, 55 ; alleged duty of inter-
course, 56; of extraditing criminals,
58; duties arising out of the atti-
tude of neutrality, 72 ; duty of
preventing acts injurious to other
states, 22I.
EAST AFRICAN Company, its com-
petency to effect legal occupation,
IO3 %.
Eastern Question, interference in the,
on what grounds to be justified,
295 %.
El Arisch, capitulation of 553.
Elizabeth, declaration of Queen, as to
the freedom of the seas, 143.
Embargo, by way of reprisal, 369 ;
in contemplation of war, 376.
Employment, civil or military, in the
service of a belligerent, effect of, in
imprinting an enemy character,
5OI, 673. -
Enemy character, 496; of persons,
497 ; of property, 504; possibility
of a double character, 51.o.
Enemy ships, enemy goods, doctrine
of, 684, 713.
Engelhardt, M., on the navigation of
rivers, 137 m.
Engines, marine, whether contra-
band, 654, 655, 659.
England ; see Great Britain.
Envoys, 302 ; and see Diplomatic
agent.
Equipment of vessels of war in neu-
tral territory, 61o ; within what
limits it should be forbidden, 616.
Evelyn expresses disapproval of the
burning of Havre and Dieppe, 533 m.
Exchange of prisoners, 414.
Exclusion and expulsion of foreigners,
right of, considered theoretically,
2I3; of ships from neutral ports,
623.
Exeguatur, 318; revocation of, 319.
Expedition, what constitutes an, 606;
combination of, outside neutral
territory, 608.
Exterritoriality, doctrine of, 167; of
sovereigns, 169 ; of diplomatic
agents, 172; of armed forces of the
750
INDEX
state, 186; reasons for discarding
the fiction of 200.
Extradition, alleged legal duty of, 58.
Extraterritorial crime, practice of
different countries with regard to
the punishment of, 2 Io.
FEDERAL UNION between states,
as conferring international inde-
pendence, 24.
Fénelon, on prescription, 351 m.
Fiore, M. ; on war as affecting indi-
viduals, 67 ºn ; on the navigation of
rivers, I 35 m. ; on immunities of
public vessels, IQ4 n ; on interven-
, tion, 291 m ; when treaties are null
according to, 359.
Fish, Mr. Secretary, on Russian
claims in the Pacific, I48 m ; on
immunities of diplomatic corre-
spondence, 312 ; on what consti-
tutes an expedition, 607.
Fisheries, British American ; dis-
putes between Great Britain and
the United States with reference
to, 94.
Fishing-boats, doctrine of their im-
munity from capture in war, 449.
Florida, case of the, 62o.
Foraging, 437.
Forces of a state,
Maritime ; history of opinion and
practice as to their immunities
within foreign territory, I86 ;
present state of the law, 195 ;
whether ships of war are liable
for salvage, 1977. See also Vessels.
Military; views as to their immu-
nities within foreign territory,
186; present state of the law, 198;
what are legitimate forces, 515.
Foreign Enlistment Act, 6.13.
Forests, French state, case of exces-
sive felling by Germany in, 42.2 m,
488.
Formosa, Blockade of, 41, 372, 373.
Foron, case of the, with reference to
state boundaries, I 24.
JFortune Bay fishery dispute, 34o.
France ; question as to title to Santa
Lucia, II6; extent of sea claimed
as territorial by, I 55 and n ; law
of, with reference to foreigners
married at an Embassy, 185 m, to
mixed marriages, ib. ; with refer-
ence to foreign ships in French
ports, IQ4, 20I ; with reference to
the nationality of persons, 225, 227,
229 n ; with reference to natural-
, isation, 236, 238, 24I ; case of Mr.
Soulé, 309; dispute with England as
to the fortifications of Dunkirk, 339;
arbitration agreement with Great
Britain, 366; instances of Pacific
Blockade by, 372, 373; conduct of, in
Blockade of Mexico, 372, of Formosa,
373 ; expulsion of Germans from,
in 1870, 393 ; dispute with Great
Britain as to exchange of prisoners,
415 ; practice of, with respect to
ransoming vessels, 460 m ; protests
against Prussian volunteer navy,
527 ; relation between mail lines
and navy, 529 ; dispute with Eng-
land as to American privateers,
589; neutrality law of, 614 ; prac-
tice with regard to what constitutes
contraband, 642, 648, 657 et seq. ;
recent attempt of, to include rice
among articles subject to contra-
band, 662 ; ancient practice as to
confiscation of contraband goods,
666 m ; practice with regard to
enemy’s goods in neutral ships,
684 et seq. ; as to notification of
blockade, 695, 696, 698 m, 707 ; as to
what acts constitute a breach of
blockade, 708; as to neutral goods
in enemy’s ships, 714 et seq. ; as to
freedom of convoyed ships from
visit, 723, 724; as to ships captured
for destruction, &c. of papers, 733.
Francs Tireurs, 522.
Frankfurt, questions arising out of
Treaty of, 573 m.
Fraudulent acts, effect of, in con-
demning a vessel carrying contra-
band, 668; use of false documents,
732 ; spoliation of papers, ib.
Frederic II, on requisitions, 428 w; on
rights of a military occupant, 464.
Free ships, free goods, doctrine of,
684, 690.
Freya, case of the, 722.
Fuca, Strait of, boundary between the
|United States and Great Britain in
the, I57.
GALLATIN, Mr., case of the coach-
man of, 179, 18o.
Geffcken, M., on declaration of war,
383 m ; on capture of private pro-
perty at sea, 449 n ; on the volunteer
navy of Prussia, 529 n ; on contra-
band, 654 m ; on Lord Granville's
declaration as to the non-contra-
band nature of rice, 663.
General Armstrong, case of the, 624.
Genêt, M., his attempt to violate the
neutrality of the United States, 591.
INDEX
751
Geneva Arbitration, the, 74, 220, 604,
608, 623 m.
— Conventions, the, 401, 538; how
affected by the Hague Conventions,
4O2.
Genoa ; whether it could claim the
advantages of postliminium after
its conquest by the English in 1814,
489, 493 *.
Georgia, case of the, 608, 616.
German Confederation; its constitu-
tion, 26.
— Empire ; its constitution with
reference to its international rela-
tions, 25; mode in which its recog-
nition was effected, 87 ; objects to
agreement between Great Britain
and the Congo State, 89 n ; organ-
isation of its Protectorates, 126 m,
I 28 n ; law of, with respect to the
immunities of diplomatic agents,
I77; with respect to marriages
celebrated by diplomatic agents,
I86 m. ; with respect to the nation-
ality of persons, 226 ; with respect
to naturalisation, 238; pacific block-
ades by, 372 ; questions as to right
of military passage simplified by for-
mation of, 601 ºn ; dispute with Great
Britain over seizure of the Bundes-
rath, 670 m.
Germans in France in 1870, excessive
felling by, in French state forests,
422, 488; means taken by to en-
force payment of requisitions, 428 n;
punishment by, for destruction of
the bridge of Fontenoy, 472 ; gen-
eral orders issued to army of, 473 m ;
use of hostages by, 475, 476 m ; ad-
ministrative practice, 477 m, 480 m ;
proclamation of, in Alsace, restrain-
ing French from joining the
armies, 478 m ; method of maintain-
ing occupation, 482 ºn ; treatment
of combatants unprovided with
express state authorisation, 519 ;
attempt to evade neutrality of
Belgium, 6oz ; exercise of right of
angary by, 738.
Gessner, on English practice with
regard to blockade, 703 m.
Goods, belligerent, in neutral vessels,
684; neutral, in belligerent vessels,
I 3.
dºg. seizure of the ship, 603.
Granville, Lord, on unilateral rescis-
sion of a treaty, 356 ; on pretensions
of French Government during the
blockade of Formosa, 373 ; on at-
tempted inclusion by France of rice
among contraband articles, 663,
664 n.
Great Britain ; its relation to the
Ionian Islands when protector of
the latter, 28 ; recognition of the
Confederate States as belligerent
by, 37 ; recognition of the South
American republics by, 85 ; dis-
putes with the United States in
reference to the Newfoundland
fisheries, 94, 34o ; with the United
States in reference to the Mos-
Quito protectorate, 95 ; with the
United States as to the Oregon
territory, IoS, as to the Venezuela
Hinterland, III ; with France as
to title to Santa Lucia, 116; with
Portugal as to Delagoa Bay, 117 ;
with the United States as to the
navigation of the St. Lawrence,
I33 ; with Russia as to the North
Pacific, 148; pretension to the
dominion of the British seas, 141
et seq. ; extent of sea now claimed
as territorial by, I56; Iaws of, with
respect to the nationality of persons,
227, 229 ; naturalisation laws of,
231 ; case of the Virginius, 267, 275 ;
self-preservative action of, in the
case of the Caroline, 270 ; in the
case of Denmark in 1807, 273,
2747, ; case of M*Leod, 3I4 ; guar-
antees the independence of China
jointly with Japan, 344; dispute
with Holland as to effect of treaty
of Aix la Chapelle, 336; with the
United States as to meaning of the
Clayton-Bulwer Treaty, 337; with
France as to the fortifications of
Dunkirk, 339 ; arbitration agree-
ment with France, 364; accepts
settlement of Alaskan boundary
dispute, 365 m ; reprisals exercised
by, upon Holland in 1780, 367 ;
embargo of Neapolitan vessels by,
369 ; instances of pacific blockades
by, 371, 372 ; instructions given to
her admirals in blockades of
Greece and Venezuela, 373 m ; equi-
vocal conduct of, in case of blockade
of La Plata, 374; refuses to sign
declaration at Hague Peace Confer-
ence prohibiting use of expanding
bullets, &c., 396 m ; dispute with
the United States as to exchange
of prisoners, and with France on
same subject, 415 ; practice of, with
respect to ransoming vessels, 460 m;
use of Lyddite by in Boer War, 533;
dispute with France as to American
752
INDEX
privateers, 589 ; neutrality procla-
mations of 599 ; restrictions on the
supply of coal to belligerents in
ports of, 606; conduct of, with re-
spect to Portuguese expedition to
Terceira, 607 ; Foreign Enlistment
Act of, 613; rule as to the admission
of prizes into her ports when neutral,
618 m ; practice as to contraband,
64I, 643, 651, 657 et seq. ; dispute
with France on question of rice as
a subject of contraband, 662 ; doc-
trine of, as to continuous voyage,
668; dispute with Germany over
the seizure of the Bundesrath, 670m ;
as to enemy's goods in neutral ves-
sels, 688, 689, 692 ; as to blockade,
694, 695, 698, 7oo, 705 ; as to neu-
tral goods in enemy’s ships, 714 et
seq. ; dispute with Holland as to
visit of convoyed ships, 720 ; with
Denmark on same subject, 722 ;
present practice, 723 ; practice in
case of Spoliation of papers, 732 ; as
to compensation for destruction of
neutral vessels, 735.
Greece, mode in which its recognition
was effected, 87 ; exercise of right
of asylum in, 183 m. ; law of, with
respect to the nationality of per-
sons, 226 ; pacific blockades of ports
of, 371, 372 ; advantages of pacific
blockade shown in the case of, 375 ;
breach of neutrality by, 604.
Grotius, views of, as to the founda-
tion of international law, 2 n. ; on
effect of division of a state with
reference to its property, 93 m. ; on
right to innocent use of the pro-
perty of others, I 31 ; Mare Liberum,
143 ; on detention of enemy sub-
jects at outbreak of war, 392 ºn ; on
devastation, 533 ; on neutrality,
578; on contraband, 640.
Guarantee, treaties of, 343; effect of
several, or joint and several, 345 ;
of collective, ib.
Guizot, M., on ratification of treaties,
332.
Gustavus Adolphus, army regulations
of, on pillage, 426 n.
Gyllenborg, case of Count, 172.
HAGUE, the Peace Conference at,
365, 396 m.
— Convention for the pacific settle-
ment of international disputes, 365,
367.
— Convention for regulating the
laws and customs of land warfare,
396 m ; forbids belligerent to refuse
Quarter, 399; its effect on the
Geneva Conventions, 402 ; non-
Combatant prisoners under, 408 m ;
on punishment of prisoners at-
tempting to escape, 409, or break-
ing their parole, 412 ; on treatment
of prisoners of war generally, 41 on ;
on powers of an army of occupation,
42I n, 422, 464 m ; on belligerent
status of irregular soldiers, 525 ; on
bombardment, 537; forbids balloon-
ists to be treated as spies, 54I ;
provides for passage of sick and
wounded through neutral state,
602 , on the maintenance of in-
terned troops, 626.
Hague Convention for adapting to
maritime warfare the principles of
the Geneva Convention of 1861,
396 m, 404.
— Conventions dealing with the use
of expansive bullets, of asphyxiating
gases, and the dropping of projec-
tiles from balloons, 396, 532, 533.
Płalleck, General, on personal union
of states, 24; on effect of dismem-
berment of a state upon its rights
and obligations, 94 m ; on the navi-
gation of rivers, 136 n. ; on inter-
vention, 203 m.
Hamilton, Mr., on remedy for cap-
tures made in violation of neu-
trality, 81.
Hanover, instance of personal union
between two states, 24.
Harcourt, Sir W., on recognition of
independence, 86 m.
Hatzfeldt, Count, denies that there
can be contraband in trade between
neutral ports, 671 m.
Hautefeuille, on the legal value of
treaties, 7 n ; on repudiation of a
treaty by one of the parties to it,
358 ; whether declaration of war is
necessary, 382 ; on what constitutes
contraband, 651 ; on blockade, 6347,
703 ; on visit, 720.
Havre, burning of, by Lord Berkeley,
533 71.
Hawkesbury, Lord, conduct of, with
respect to captures made in viola-
tion of neutrality, 80.
Heffter, M., on the navigation of
rivers, I 35 m. ; on the rights of states
Over marginal seas, &c., I53 ºn ; on
piracy, 261 m ; on repudiation of
a treaty by one of the parties to it,
358 ; on classification of treaties,
360 m ; on detention of enemy sub-
INDEX
753
jects at outbreak of war, 391 m ; on
the twenty-four hours' rule, 455 m ;
on acts permitted during a truce,
546 m ; on what constitutes contra-
band, 652 ºn ; on pre-emption of
contraband goods, 665 m ; on block-
ade, 702 n.
Heineccius, on contraband, 645.
Henfield, case of Gideon, 592.
Herzegovina, difficulty of determin-
ing its legal position towards Tur-
key, 51O.
Hesse Cassel, case of the domain of
the Elector of, 567.
High seas, claim of the United States
to make enactments binding on
the, 257 m.
Hohenlohe, Prince, ‘refusal by the
Pope to accept as German Ambas-
Sador, 299.
Holland, dispute with Great Britain
as to effect of treaty of Aix la
Chapelle, 336; practice as to con-
traband of war, 641, 644, 647 ; true
promoter of doctrine of Free ships,
Free goods, 686; resistance of, to
search of convoys, 720, 721 ; and see
Netherlands.
Holland, Mr. T. E., on English naval
manoeuvres of 1888, 434; Admiralty
Manual of Prize Law, 501 m, 504 n,
507?, 724 m, 728 m, 729 m ; on the
case of the Kowshing, 503 m; on con-
traband in goods shipped to a neu-
tral port, 671.
Hong Kong, French fleet not allowed
to coal at, during blockade of For-
mosa, 373.
Horses, as contrabandof war,643,657.
Hospital ships, non-liability of, to
capture, 403.
Hospitals, military, 402, 405 m.
Hostages, to secure execution of
treaties, 348; as securities during
hostilities, 418 ; to secure payment
of contributions, 418 ; in occupied
Countries, 475, 476*.
Huascar, case of the, 266.
Hübner ; doctrine of the territori-
ality of merchant vessels, 25o.
IDENTITY, personal, loss of, by a
State, 22.
Illegitimate children, nationality of,
228.
Incorporation of mercantile marine
in fleet, 529.
Independence, rights of, 47 ; duty of
respecting, 54; when held to be
acquired, 87.
HALL
Indian Empire, position of protected
states in, 27 m.
Individuals, how far, as such, affected
by war, 63.
Institut de Droit International, reso-
lutions of the, as to extension of
the three-mile limit, I53 m ; as to
punishment of crimes committed
by foreigners in territory foreign
to state exercising jurisdiction,
213 m ; as, to the right of expulsion
of foreigners, 215 m ; as to pacific
blockade, 376 m ; as to capture of
private property at Sea, 448 ºn ; as
to destruction of captured vessels,
459 m ; as to duties of neutrals,
616 m ; as to contraband, 654 m.
— Proposed Règlement des Prises
Maritimes of the, 459 m, 667 m, 698 m,
703 m, 727 m, 728 m.
— Manuel des Lois de la Guerre sur
Terre of the, 397 n ; on newspaper
correspondents, 407 n.
Instructions for the Government of
the Armies of the United States in
the Field, 66 m, 399%, 407 m, 408 n,
409 7%, 4Io n, 414 n, 415 m, 418 m,
423 m, 519, 538 m, 539 m, 543 m, 546?,
549 %.
International duty, its relation to
municipal law,612 n.
International law, in what it consists,
I ; views held as to its nature, ib. ;
whether a branch of true law, I 3 ;
communities which it governs, 17 ;
protected states in British India
not subject to, 27 ºn ; semi-civilised
states how far the subject of, 4o :
fundamental principles of, 43.
— private, not a part of international
law proper, 5 I ; and not touched
upon in this work, 52.
Intervention, 284 ; cases of recogni-
tion partaking of the nature of, 86 n. ;
general conditions of the legality of,
285 ; On the ground of self-preserva-
tion, ib. ; to preserve rights of suc-
cession, 287; in restraint of wrong-
doing, 288; under a treaty of
Guarantee, 292 ; by invitation of a
party to a civil war, 293 ; under the
authority of the body of states, 294 ;
supposed exception in the case of
the Eastern Question, 295 m.
Ionian Islands, their international
position under the protectorate of
England, 28.
Ismail, massacre of the garrison and
people of, in I790, 400 m.
Italy, Sardinian treaties applicable
3 C
754.
INDEX
to, 22 n ; laws of, with respect to
nationality, 227, 229 n ; naturalisa-
tion law of, 236, 238; pacific block-
ade by, 372.
JACKSON, Mr., case of, 306.
Japan, its position in International
Law, 42 ; abandonment of extra-
territorial privileges in 42, 53 r ;
war with China, 42, 295; treaty with
Great Britain, 42, 344; massacre at
Port Arthur, 4oo n.
Jefferson, Mr., on trade in contra-
band, 79 ; on remedy for captures
made in violation of neutrality, 81 ;
on the rights and duties of neutral
states, 591.
Jenkins, Sir Leoline, on the inviola-
bility of territory, 581 ; on contra-
band, 642.
Johnson, case of Mr., 5oo.
Jomini, on hostilities waged by the
population of a country, 51.8 m ; defi-
nition of a base of operations, 604.
KANG-YU-WEI, escape of, from
China, assisted by English war
vessel, IQ7 n.
Kant, views of, as to the sphere of
law, 3 m.
Kent, on effect of division of a state
upon its rights and obligations, 93%;
on piracy, 261 m.
Kleen, M., on contraband, 652 n.
Klüber, on the navigation of rivers,
I 36m ; on the use of territorial waters
of a state, I 59 m.
Koszta, case of Martin, 242.
Kowshing, case of the, 503 m.
LAFAYETTE, the, carriage of arms
and men by, held not to be an ex-
pedition, 607.
Lagoons, whether enclosed within
territory or not, I 24.
Lambermont, Baron, on the legal
position of inhabitants of a mili-
tarily occupied country, 7o r.
Lampredi, on the extent of territorial
waters, I 50 m ; on the immunities
of armed forces of the state, 187; on
contraband, 646.
La Plata, pacific blockade of, 371 ;
equivocal conduct of Great Britain
with regard to, 374.
Larpent, Mr., case of the exchange
of, 408 m.
Legate, 3or ; and see Diplomatic agent.
Levies en masse, 472, 517 et seq.
Licences to trade, 554.
Lincoln, President, proclamation of,
instituting blockade of the Confede-
rate ports, 38, 698 m.
Liners, subsidised, 530.
Liverpool, Lord, on the principles on
which recognition should be ac-
corded, 86.
Loans, to belligerent states, whether
permissible, 596.
Ludwig, case of the, 717.
Lushington, Dr., on seizability of
enemy property within belligerent
jurisdiction, 442 m ; on destruction
of enemy vessels, 458 m ; on notifi-
cation of blockade, 696 n.
Luxemburg, effect of the convention
of 1867 respecting, .346.
Lynching of Italians at New Orleans,
conduct of American government
with regard to, 219 m.
MACKINTOSH, Sir James, on effect
of recognition of independence by
a parent state and by other states,
86; on the conquest of Genoa, 490 ;
on destruction of public buildings
at Washington, 535.
M*Leod, case of, 314.
Madagascar, expressly excluded from
operation of Declaration of Berlin,
I ſ 5.
Magny, Affaire, decision by, as to status
of French Protectorates, 126 m.
Mail, steamers, their relation to the
navy in France, 529 ; bags, whether
they ought to be exempt from
search, 675.
Maine boundary ; dispute between
England and the United States
with reference to the, 97.
Mamiani, Count ; on title by pre-
Scription, I2O m ; on intervention,
29I m.
Manifesto, at commencement of war,
in relation to enemies, 377 et seq. ;
to neutrals, 574.
Marcy, Mr., on national character, 243.
Maritime forces of a state ; see Forces.
Marque, letters of, whether use of, by
neutrals is piratical, 262 ; practice
of the eighteenth century, 589;
their acceptance by a neutral now
illegal, 599.
Marriages celebrated by Diplomatic
Agents, uncertainty in practice re-
lating to, I86 m.
Married women, nationality of, 229.
Marshall, Chief Justice, on immuni-
ties of ships of war in foreign coun-
tries, 190 ; on effect of military
INDEX
755
occupation on the national charac-
ter of a place, 508; on neutral goods
in armed vessel of a belligerent,
73O.
Martial Law, 471 m.
Massé, on punishment of crimes com-
mitted by foreigners in territory
foreign to the state exercising juris-
diction, 212 n.
Matamoras, position of, as a neutral
port in American Civil War, 670 m,
7 I2.
Materials of naval construction,
whether contraband, 658.
Maurice, Major-General Sir F., on
Hostilities without declaration of
war, 381.
Mexico, pacific blockade of, 371, 372.
Military forces of a state ; see Forces.
Militia, how far allowed combatant
privileges in the eighteenth cen-
tury, 518.
Ministers plenipotentiary and resi-
dent, 3O2; and see Diplomatic
agent.
Mississippi, controversy between the
United States and Spain as to the, 132.
Molloy, on pirates, 26o n.
Monaco, legal position of, considered,
29 ºt.
Money, whether contraband, 664;
and see Contributions.
Monroe, President, message as to
recognition of South American Re-
publics, 84; Doctrine, invoked in con-
nexion with Venezuela dispute, II 2.
Moore, Mr., on the right of asylum,
I83 m.
Morgan v. French, case of, 185 m.
Moser, on detention of enemy subjects
at outbreak of war, 392 m.
Mosquito Protectorate ; dispute be-
tween Great Britain and the United
States with reference to, 95.
Municipal laws, relation of, to inter-
national duty, 612 n.
Munitions of war, whether sale of, to
neutral state is permissible, 597;
whether contraband, 640, 651 et seq.
Museums, contents of, whether seiz-
able in war, 423.
NAPOLEON : on war as affecting in-
dividuals, 65 m ; manner of dealing
with risings in occupied countries,
473 m. ; method of administrating
Occupied countries, 476 n. ; practice
of, in regard to occupation by flying
columns, 482 ; seizure of neutral
vessels by, 739.
Nationality, 224; of children of
foreigners, 225 ; of illegitimate
children, 228 ; of married women,
229 ; of children of naturalised
parents, 24I ; persons destitute of
any, 246; effect of cession, &c. upon,
572.
Naturalisation, 215, 23o et seq.; in-
complete, effect of, 242 ; collective,
57I et Seg.
Naval forces of a state ; see Forces.
— stores, whether contraband, 658.
Naval Manoeuvres, British, imaginary
contributions levied in those of 1888,
434; of 1889, 436 n.
Negrin, on conditions which may be
imposed on admission of vessels of
war into neutral ports, 623 m, 629 n.
Netherlands, laws of the, with respect
to nationality, 227 ; questions con-
nected with the date of origin of
the, 569 m. ; neutrality laws of, 614;
and see Holland.
Netze, case of the, with reference to
state boundaries, I 23.
Neutral individuals ; their relations
with belligerent states, 77, 497, 502,
575 m, 630 et seq., 709, 714, 736.
Neutral property within belligerent
jurisdiction, 736.
— states, their duties in the seven-
teenth century, 581 ; in the eigh-
teenth century, 586 et seq. ; their
duties as to furnishing troops to
belligerents, 595 ; as to the sale of
warlike stores, 597; as to prohibit-
ing levies of men, 598 ; duty of pro-
hibiting hostilities within their
territory, 6oz ; standard of duty
raised since American Civil War,
605; how far responsible for acts
done within their territory, 609 ;
duty of exacting reparation for
violation of their neutrality, 619;
of making reparation for permitted
violation, 625.
Neutrality, general principles of the
law of, 7 I ; division of the law of,
into two branches, 77 ; occasional
confusion between the two, ib.
— Proclamations and Ordinances of,
38, 596 m, 617, 624, 627.
Newfoundland Fisheries Dispute, 94.
New Granada, pretension of, to close
insurgent ports by Order, 35 m.
New Orleans, case of lynching at,
2 IQ 7.
Newport, case of English sloop in
harbour of, 188.
Niagara, case of the, 702 r.
3 C 2
756 INDEX
Niger, British Protectorate on the,
127 n ; transference of Niger Com-
pany's territories to the crown, ib.
Non-combatants, 397.
Nootka Sound Convention, the, III n.
North Borneo, British Protectorates
in, I28.
Norway, law of, with respect to the
nationality of persons, 226; with
respect to citizens naturalised
abroad, 237.
Notification, of occupation of new
territory in Africa made obligatory
by Declaration of Berlin, II.4; of
blockade, 694, 704 n, 705.
Nuñez, Admiral, Bombardment of
Valparaiso by, 536 n.
OBLIGATIONS, relation of the per-
sonal, of the parent state to those of
a new state, 91 ; of the local, 92 ;
effects of cession upon, 98, 571; effect
of outbreak of war upon, 385 et
S60.
Occupation ; as a means of acquiring
property, Ioo ; must be a State Act,
Io2 ; competency of a Chartered
Mercantile Company with regard
to, Io9 n ; cases illustrative of the
law of, Iof ; recent tendency to
change in the law of, II 3 ; Decla-
ration with regard to, adopted at
Berlin Conference of 1885, II.4 ;
abandonment of property acquired
by, II6.
Occupation, military ; theories with
respect to its nature and legal effects,
462 ; true nature of, 469 ; extent of
rights of a military occupant, ib. ;
effect of acts done by an occupant in
excess of his rights, 470 m, 489; prac-
tice in matters bearing on the
security of the occupant, 471 ; in
administrative matters, 476; in
using the resources of the country,
478 ; legal relations of an enemy
to the government and people of
an occupied territory, 479 ; duties
of an occupant, 48o ; when, occupa-
tion begins and ceases, 481 ; in
relation to postlininium, 487; na-
tional character of an occupied
place, 508 ; whether occupation
puts an end to blockade of the
territory occupied, 509, 702 m.
— under treaty, as mode of securing
execution of treaty, 348.
Officers in command of armed forces
of the state, their privileges and
powers, 313, 326.
Ordenanza, the Portuguese, whether
legitimate combatants, 52.4 n.
Oregon, dispute between England
and the United States as to the
title to, Io8.
Orkney, mortgage of, by Denmark to
Scotland, 348.
Ortolan ; on the legal value of trea-
ties, 8 m ; on the rights of states
over marginal seas, &c., I 53 n ; on
immunities of vessels of war within
foreign territory, IQ4 ºn ; on piracy,
26 I n ; on cases of alleged breach of
neutrality by Great Britain, 538; on
contraband, 652 m, 665 m, 667 n ; on
blockade, 698 m ; on the meaning of
the Ordonnance of 1681, 715 m.
Oster Risøer, seizure of Swedish
vessels at, 8o.
PACIFICBLOCKADE; see Blockade.
Pacific Ocean, Russian claims in, I46.
Packet boats, 162 m, 675.
Palatinate, devastation of the, 533.
Palmerston, Lord, on immunities of
ships of war within foreign ter-
ritory, IQ3 ; on practice of Great
Britain as to debts due to subjects
by foreign states, 281 n ; on the dis-
missal of Mr. Bulwer, 307; on con-
duct of the blockade of La Plata,
374-
Pando, on levies made in a neutral
state, 588 m. ; on right of passage
through neutral territory, 6oo n.
Paraguay, the river, with reference
to occupation, I.24 m.
Paris, Treaty of, in 1814, declaration
as to Rhine navigation, I 37.
— Treaty of, in 1856, repudiation by
Russia of Black Sea stipulations of,
354. t
— Declaration of, 526, 691, 713, 718.
— question as to the revictualment
of, 547.
Parole, 41 I.
Passage, innocent, whether right to it
exist over rivers, 131 ; over terri-
torial Sea, I58; whether passage in
time of war over neutral territory
permissible, 6oo.
Passports, 543.
Peace, effect of treaty of, 558, 562 et
seq. ; date from which it operates,
56o ; preliminaries of, ib. n.
Persia, represented at the Hague
Peace Conference, 42.
Personal identity, under what con-
ditions retained by a state, 20 ; case
of Sardinia, 22 m ; when lost, ib.
INDEX 757
of an invader by a power not in
alliance with the occupied state, ib.
Pre-emption, English usage as to, 665.
Preliminaries of peace, 560 m.
Prescription, I 18.
Prisoners of war; who may be made
prisoners, 406; treatment of, 409 ;
dismissal of, on parole, 41 I ; ran-
som of, 412 ; exchange of, 414 ; effect
of treaty of peace upon, 558; effect
of bringing them within neutral
territory, 617.
Private international law, 51 ; not
touched upon in this work, 52.
Privateers, 526.
Prizes; general rule that they must
be brought into port for adjudica-
tion, 455, 734 ; destruction of, 457;
ransom of, 460 ; whether they can
be taken into neutral ports, 618 ;
made in violation of neutrality,
when and how restored, 621 and n.
Property, enemy; state property,
when seizable, 420 ; duty of an
occupant not to use certain kinds
wastefully, 422 ; property of hos-
pitals not seizable, 423 ; land of
private owners not seizable, 425 ;
private property seized by way of
contributions and requisitions, 427;
foraging and booty, 437 ; private
property within territorial waters
of its own state, ib. ; debts due
from a belligerent state, whether
they can be confiscated, ib. ; other
property of enemy subjects within
jurisdiction of a belligerent, 438 ;
entering territorial waters of belli-
gerent, 442 ; On the high seas, 443 ;
theory of the immunity of private
property at sea from capture, 444;
advisability of England retaining
the right considered, 448 m ; ex-
ceptions to seizability of private
property at Sea, 449; when it vests
if captured, 453, 455 m ; general
rule that it shall be brought into
port for adjudication, 457; de-
struction of, ib. ; how devested,
461 ; transfer of, to neutral during
war, 505; transfer of, in transitu,
506; effect of treaty of peace upon,
558; brought by a captor within
neutral territory, 621.
Property, neutral; destruction of, in
capture, 459 m, 734 ; how it becomes
affected with an enemy character,
504, 666; when seizable, 640, 666,
7c8, 728; in enemy's ships, 713.
Property, rights of a state with re-
*: ". . .
‘. ...f
: S-3-3,
* > *
3. * :...
# * *, , .
i.
t .
%
**
- x
{ } {~ *
~. * º - .*, ſ". ſ .*
- & r ...”. * t
Q, * YºrN("Vºs .*.* gºrs; ! wº:
- .. g -
ź
. $ . .*
‘. . . . *...* *-* . .
- !,
º } º
Personal union, effect of, 24, 88,
5 I 2.
Persons in international law, what
communities are, I 7, 20.
Phillimore, Sir R., on effect of the
division of a state upon its rights
and obligations, 93 n ; on the navi-
gation of rivers, 136 m ; on proceed-
ings for salvage against a foreign
public vessel, IQ6; on piracy, 261 r. ;
on intervention, 29I n, 293 m. ; On
right of passage over neutral ter-
ritory, 6oo; on condemnation of
prizes lying in a neutral port, 61.9 m.
Piacenza, case of the surrender of,
342.
Pierce, President, on trade in con-
traband, 79. -
Pillage, 426, 427.
Pious Fund of the Californias, case
of, 366. I A -
Pirácy, 257 ; jurisdiction in respect
of, 265; acts piratical by municipal
laws, 268.
Pitt, on treaties as exceptions from
the common law, 689.
Port, peace of the, French practice
as to, 2O2.
Portalis, on the jurisdiction of a state
over foreigners, 51 m. ; on the rela-
tion of war, 65.
Port Arthur, Russian occupation of,
295; massacre at, by Japanese troops,
4OO ºv. … ."
--~~~
º
Ports, closure of, by order during civil
war not permissible, 35 m, 37; public
vessels in, 194; foreign, merchant
vessels in, 20I ; enemy, merchant
vessels in, at commencement of a
war, 452 ; neutral, as a base of
operations for cruisers, 604 ; sale of
prizes in, 619; belligerent vessels
in, 623, 626; the twenty-four hours'
rule, 627; blockaded, conditions of
exit of neutral vessels from, 706;
innocent entrance into, 7II ; under
what circumstances a captured vessel
may be brought within, 735.
Portugal; dispute with England as
to Delagoa Bay, II 7 ; claims of, to
maritime sovereignty, I43; law of,
with respect to the immunities of
diplomatic agents, 177, with re-
Spect to nationality, 227.
Postal Conventions, 679 m.
Postliminium, what it is, 486; limi-
tations in its operation in the case
of occupied territory, 488; effects
of acts done by an invader in excess
of his rights, 489; effect of expulsion
3 C 3
* : *z, * *
758 INDEX
gard to, 45; what is retained on
separation of a new state from an
old one, 91 ; what is transferred,
92 ; effects of cession on, 98 ; ter-
ritorial property of a state, Ioo ;
modes of acquiring it, ib.; non-
territorial, I 61 ; property of a state
within foreign jurisdiction, IQ5.
Protected states in British India,
position of, 27 n.
Protectorates over uncivilised and
semi-civilised peoples, I25 ; in
what respects they differ from
colonies, ib."; from protected states
in British India, ib. ; how far
the subjects of international law,
I26; jurisdiction exercised over
foreign subjects in, ib. n ; what
requirements on the part of foreign
governments as to, need be satis-
fied, I 27; questions that may
arise from the relation so consti-
tuted, 128 m. ; instances of British,
ib. ; organisation of German, ib. ;
extend over territorial waters of the
protected states, I29.
Provisions, whether ever contraband,
661.
Prussia ; discussions with the United
States with respect to natural-
isation, 2.34; laws of, with respect
to naturalisation, 236; creates a
so-called volunteer navy, 527 ; and
See German Empire, and Germans
in France.
Pufendorf, views of, as to the law of
nature, 2 n.
Pyrenees, article in Treaty of, pre-
scribing formalities in exercising
right of visit, 726.
QUARTER, duty of giving, 399.
RAHMING, case of Mr., 279.
Ransom Bills, 391, 460, 563.
Ransom of prisoners, 412 ; of towns,
426 n. ; of vessels, 460.
Rastadt, action of the Congress of,
with reference to Rhine tolls, 137.
Ratification of international con-
tracts, 323, 330, 552 ; tacit, 33o ;
express, ib. ; effeet of a provision
that a treaty shall be put in force
without, 334.
Recapture of private property cap-
tured at Sea, 461, 493. -
Recognition ; of communities as hav-
ing belligerent rights, 3o et Seg. ;
of the Confederate States by Eng-
land as belligerent, 37; of com-
munities as having become states,
82, 87 ; of the South American
Republics by England and the
United States, 84 et seq.
Refugees, political, protection of, on
board ship, 196.
Religion, right of exercise of, by
diplomatic agent, 184 m. ; circum-
stances under which military occu-
pant may prohibit public exercise
of, 47 on.
Repairs to ships of war in neutral
ports, 626.
Reprisal, case of the privateer, 590.
Reprisals, pacific, 367 ; reprisals
made by Count Bismarck for capture
of merchant seamen by the French,
407 n. ; hostile, 417, 535 m; re-
prisals may not improbably result
from bombardment of undefended
coast towns, 536.
Requisitions, 427 ; see Contributions.
Residuary jurisdiction, reserved to
Imperial Government in relation
to native Indian states, 27 m.
Responsibility of a state ; in general,
53 ; of a neutral state arises out of
territorial sovereignty, 73 ; arising
out of asylum given to refugees,
213 ; for acts done within its
jurisdiction, 217 ; by agents of the
state, ib., 3II, 323; by private
persons, 218 ; pushed to extreme
limits, 219 n ; whether it can be
claimed for effects of civil commo-
tion, 222.
Restitution of property captured in
violation of neutrality, mode in
which it is effected, 621 m.
Retorsion, 367.
Revictualling of a besieged place, 546.
Rice as a contraband, 662.
Riga, blockade of, 700.
Rights of a state, the fundamental,
43; Of continuing and developing
existence, ib. ; of property, 45, 92,
I6o ; of independence, 48; of sove-
reignty, ib., I66, 224; of self-
preservation, 54, 249, 269 ; of vin-
dicating law, 55; in the relation
of war, 6o ; how affected by sepa-
ration of a part of a state as a new
state, 91 ; of hospitality, 213 ; of
admitting foreigners to the status
of subjects, 215; of pursuing a
vessel into non-territorial waters
for infractions of municipal law,
256; of punishment and security
with regard to enemies, 416; over
property of an enemy, 425 et seq. ;
INDEX
7.59
of offence and defence, means of
exercising them, 515.
Rio de Janeiro, blockade of, 372.
Ripperda, case of the Duke of, 182 n.
River basins, as a means of defining
the limits of newly occupied ter-
ritory, IoS.
Rivers, as frontiers, 122 ; whether
states have rights of river naviga-
tion outside their own territory,
I? I.
Roberts, Lord, on violations of the
laws of war, 406 n.
Rolin Jaequenyns, M., on the right
of expulsion of foreigners, 215 n;
On interference in the Eastern
Question, 295 m. ; on punishment
inflicted by a military occupant,
472 m, 478 m.
Roumania, the capitulations as affect-
ing, 53 m. ; recognition of, by the
Great Powers, 86 m.
Rousseau, on the relation of war,
65 m.
Rule of the war of I756, 634; its ex-
tension in 1793, 636.
Russell, Earl, on recognition of in-
surgents as belligerents, 31 m ; On
closing insurgent ports by order,
35 m; on confiscation of enemy pro-
perty, 440 m. ; on the Trent case,
682 ; on the meaning of the De-
claration of Paris, 704 n.
Russia, claim of, to sovereignty on
the North Pacific, 148 m. ; laws of,
with respect to nationality, 226,
246; naturalisation laws, 237 ; cir-
cular of, on intervention, 291 m ;
occupation of Port Arthur by, 295;
recall of their minister required
by the United States, 305; repudia-
tion by, of the Black Sea stipulations
of the Treaty of Paris, 354; instances
of pacific blockade by, 372; massa-
cre of Blagovestchensk, 401 ºn ; con-
stitution of so-called volunteer navy,
529; issues declaration leading to
First Armed Neutrality, 647; on
the contraband character of coal,
66o ; ukase of 1809 on belligerent
goods in neutral vessels, 690 ; prac-
tice as to false ships' papers, 732.
Russian Dutch Loan, case of the,
438 m.
SACKVILLE, Lord, case of, 308 m.
Safeguards, 554.
Salisbury, Lord, on destination of
goods in neutral ship as the true
criterion of contraband, 671 m.
San Lorenzo et Real, treaty of,
I 33 7t.
San Stefano, treaty of, 343.
Santa Lucia, question as to the title
to, II6.
Sarawak, British protectorate over,
I 28 m.
Sardinia, identity of, maintained
after becoming kingdom of Italy,
22 70.
Schaffhausen, canton of, German
right of military passage through
railway in, 60I 'n.
Schomburgk Line, III.
Sea, the ; its insusceptibility as a
general rule to appropriation, 59 ;
to what extent it can be appropri-
ated, I4o ; appropriation of enclosed
seas and straits, I45 ; present state
of the question as to marginal seas,
straits, gulfs, &c., I 52 et Ség.
— non-territorial ; jurisdiction exer-
cised by states on, 247; over their
own private vessels, 253 ; over
public vessels, 255; over foreigners
in their ships, ib. ; improper ex-
ercise of, ib. n ; over foreign persons
and vessels for infraction of law
committed in territorial waters, 256;
Over pirates, 257; self-protective
acts of a state upon, 274.
— territorial ; includes territorial
waters of a protected state, I 29 ;
immunities of public vessels of a
foreign state within, 194; of
foreign public property other than
public vessels of the state, 200 ;
merchant vessels within, 20I ; right
of visiting ships within, 719.
Selden, Mare Clausum, I44.
Self-preservation, right of, 54, 249,
269 ; limitations upon, 272; pro-
tection of subjects abroad, 278 ;
intervention on the ground of, 285;
treaties only to be maintained if
consistent with, 357. -
Semi-civilised states, how far they
can expect to be treated in accord-
ance with international law, 40.
Serrano, Marshal, sheltered at British
ministry, I83 n.
Servia, the Capitulations as affecting,
53 m. ; recognition of, by the Great
Powers, 86 n.
Servitudes, I 59 m.
Seward, Mr., on the Trent case,
68I.
Shenandoah, case of the, 605.
Shimonoseki, Treaty of, 295.
Ships; see Wessels.
760 INDEX
Ships’ papers, 165; with what a
vessel must be provided, 727 ;
effect of false, and of spoliation of,
732.
Sick, treatment of, in war, 401.
Silesian loan, case of the, 249, 371 m,
438 m.
Sitka, case of the, 192.
Sitting Bull, incident of, 219 m.
Skiathos, incident of, 373.
Socotra, protectorate over, by Great
Britain, not notified, II5 m.
Soulé, case of Mr., 309.
South African Republic, case of
commandeering in, 209 ; not repre-
sented at the Hague Peace Confer-
ence, 405 ; and see under Boer War.
Sovereign, immunities of, in a
foreign country, 169; his position
when in the service of another
sovereign or when incognito, I 7 I,
when a subject, ib. ; as agent of
the state, 298.
Sovereignty, rights of, 48; in relation
to the territory of the state, 49,
I61, to the subjects of the state,
49, 224, to the subjects of foreign
powers, 50, 207, 2IO, 215 ; as a
Source and measure of neutral re-
sponsibility, 73 ; double or ambigu-
ous, 5 Io; violation of neutral, by
belligerents, 619.
Sovereignty of England over the
British seas, I41 et seq.
Spain ; dispute with the United
States as to the boundaries of
Texas, Iof ; as to the navigation
of the Mississippi, 132 ; claim of, to
maritime dominion, I43; law of,
with respect to the immunities of
diplomatic agents, 177 ; modern
exercise of right of asylum in, 183
n; law of, with respect to nation-
ality, 226 ; to naturalisation, 236,
238; case of the Virginius, 267,
275 ; recall of their minister de-
manded by the United States, 306;
dismissal of English minister by,
307 ; time allowed by, for enemy
vessels to clear on outbreak of
American War of 1898, 452; practice
of, with respect to ransoming
vessels, 460 m ; neutrality law of,
614; practice as to carriage of
belligerent goods in neutral vessels,
685, 688; attitude of, towards
Declaration of Paris in the American
War of 1898, 692 ; practice as to
visit, 724, 728 m ; as to penalties
entailed by false documents, 732.
Spheres of influence, I29.
Spies, 539.
St. Lawrence, dispute between Great
Britain and the United States as to
the navigation of the, I 33.
St. Petersburg, Declaration of, 532.
State, marks of a, 18; when a com-
munity becomes one, 20 ; identity
of, how lost, 22 ; fundamental
rights and duties of, 43; territorial
jurisdiction of, 49, I60 ; respon-
sibility of 53 ; relation of a new, to
the contract rights, &c., of the
parent state, 91 ; effects of absorp-
tion of, 99 ; territorial property of,
Ioo; extra-territorial jurisdiction
of, 247.
States; which of them are persons
in law, I8, 20, 23; joined in a per-
sonal union, 24; by a federal union,
ib. ; by a real union, 26; in a con-
federation, ib. ; protected states, 27,
125; under the suzerainty of others,
29; how states outside European
civilisation become subject to inter-
national law, 40.
Story, Justice, on the immunities of
vessels of war in foreign ports,
191 ºn ; on the doctrine of natural-
isation, 233; on trade in armed
vessels, 6 II ; on procedure in
claims for restitution of prizes
made in violation of neutral sove-
reignty, 621 m ; on coasting trade,
637 n ; on sailing under neutral
convoy, 724 n, under belligerent
convoy, 73o 7%.
Stowell, Lord, on extent of territorial
waters, I 50 m ; on immunities of
vessels of war in foreign countries,
190 ; on territoriality of vessels,
252 m ; on effect of embargo, 369 m ;
on capture of fishing boats, 450 m ;
on destruction of enemy vessels,
458 m. ; on effect of military occupa-
tion, 466; on domicil with refer-
ence to war, 498; on transfer of
vessels in transitu to neutrals during
war, 507 ; on licences to trade, 555;
on effects of acts of war done after
conclusion of peace, 5647, ; on hos-
tilities commencing from neutral
ground, 603; on effect of contra-
band on rest of cargo, 668 ; on
continuous voyage, 669; on effect
of resistance to visit, 729.
Stratagems, 537.
Subjects of a state ; sovereignty of
the state over, 49 ; responsibility
for acts done by, 217 ; who are Sub-
INDEX
761
jects, 224 et seq., 24I ; protection of,
abroad, 278.
Subjects of foreign states; jurisdic-
tion of a state over, 5o ; duty of due
administration of justice towards,
52 ; power to compel them to as-
sist in maintaining public Safety,
207 ; crimes committed by them
in foreign jurisdiction, 2Io; right
of giving hospitality to, 213 ; of
admitting to status of subjects,
215; jurisdiction over, on board
ships, 255.
— of an enemy state ; whether they
are enemies, 63; whether they can
be detained on outbreak of war,
391 ; whether they can be expelled
except by way of military pre-
caution, 393.
Suhlingen, case of the Convention of,
5 I 3.
Sully, case of the servant of the Duc
de, I 79 m.
Sulu, Archipelago of, recognition of
sovereignty of Spain over, II6 n.
Surgeons, military, 401, 407.
Suspension of arms, 544.
Suzerainty, 29.
Sweden; laws of, with respect to
nationality, 226 ; to naturalisation,
236; guarantee of territory of, by
England and France, 344; dispute
with Denmark as to right of giving
Succour under treaty with a belli-
gerent, 590 ; Sale of Superfluous
ships of war by, 598; dispute with
England as to visit of convoyed
ships in 1781, 721 ; and see Baltic
Powers.
Swineherd, case of the, 561.
Switzerland, law of, with respect to
nationality, 226 ; naturalisation
laws, 237, 238 m, 241 ; passage of
the allies over territory of, in 1815,
6oo ; denies passage to French in
I87o, ib. ; gives asylum to General
Clinchant’s forces, 626.
TAGUS, pacific blockade of the, 371.
Talleyrand, on the laws of war,
65 m.
Tempest, case of the, 204.
Terceira, expedition to, 607.
Territorial sea; see Sea.
Territorial Waters Jurisdiction Act,
2O6 n.
Territoriality of vessels, theory of
the, 248.
Territory of a state, in what it con-
Sists, Ioo; modes of acquiring it,
£b. ; whether lagoons are comprised
in it, I 24.
Texas, dispute between Spain and
the United States as to the boun-
daries of, Ioé.
Thalweg, defined, 123.
Thomasius, views of, as to the sphere
of law, 3 m.
Three-mile limit, as measure of terri-
torial waters, 154 ; desirability of
extending, ib. n.
Trade ; general right of a neutral to
trade with a belligerent, 75, 505;
and see Contraband ; Blockade.
Transfer in transitu, effect of, during
war, 506.
Treaties, classification of, with refer-
ence to their legal value, 9; of a
parent state, when binding on a
state formed by separation, 91 ; of
boundary, effects of, 96; ante-
cedent conditions of validity of,
326; their forms, 329 ; necessity
of ratification, 330 ; interpretation
of, 335 ; treaties of guarantee, 343;
effects of treaties, 347; modes of
Securing their execution, 348; how
they cease to be obligatory, 351 ;
their renewal, 359 ; formal classifi-
cation of, 360 m ; personal treaties,
not the subject of international
law, 361 7, ; when abrogated or sus-
pended by war, 385.
Trent, case of the, 681.
Triest, case of double sovereignty in,
5.I.O.
Truce, 544, 548; flags of, 542 ; per-
sons competent to conclude truces,
549.
Turkey, the capitulations with, 53 m.
Tuscarora, blockades the Nashville
in English waters, 628.
Twenty-four hours' rule; as to vesting
captured property in captor, 454 ;
as to issue of belligerent vessels
from neutral ports, 627; its in-
sufficiency, taken by itself, 628.
Twiss, Sir Travers, on the doctrine
which regards the shores of a river
as attendant on it when owned
solely by one power, I24 ºn ; on the
navigation of rivers, I 36 m ; on the
rights of states over marginal seas,
&c., I 53 ºn ; on embargo in contem-
plation of war, 376; on necessity
for declaration of war, 382 ; on
abrogation and suspension of
treaties by war, 387 ; on expulsion
of enemy subjects on outbreak of
War, 394 %.
762
INDEX
UNITED PROVINCES; see Holland
and Netherlands.
TJnited States, the ; their constitution
in its international aspect, 24; views
of, in 1779, as to belligerent recog-
nition, 32 m. ; pretensions of, to
close belligerent ports by order,
35 m; recent acceptance of estab-
lished principle as to blockading
ports by order, ib. ; proclamation
of, establishing blockade of the
Southern ports, 38 n ; views of,
with respect to contraband trade
as stated before the Tribunal of
Arbitration of Geneva, 79 ; recog-
nition of the South American Re-
publics by, 84 ; disputes with
Great Britain with reference to
Newfoundland fisheries, 94, 34o ;
with Great Britain with reference
to the Mosquito protectorate, 95 ;
with Great Britain with reference
to the Maine boundary, 97 ; refuses
to assume any portion of the Cuban
debt, 98 n ; disputes with Spain as
to the boundaries of Texas, Ioé ;
with Great Britain as to the Oregon
Territory, Io8; with Great Britain
as to the Venezuelan Hinterland,
III ; with Spain as to the naviga-
tion of the Mississippi, I32 ; with
Great Britain as to the navigation
of the St. Lawrence, I33; claim
of, to sovereignty on the North
Pacific, I48 ; extent of sea claimed
as territorial by, I56, 157; attitude
of, with regard to right of asylum,
183; practice of, with regard to
jurisdiction over foreign merchant
vessels in their ports, 202, 207 ºn ;
complicity of, in invasions of
Canada, 218 m, 604 ; unreasonable
demands of, on Great Britain in
the case of Sitting Bull, 219 n ; law
of, with respect to nationality, 227,
229 ; naturalisation law, 232, 233,
24I, 243 m ; case of Martin Koszta,
242 ; of the Virginius, 267, 275;
of the Caroline, 270, 314 ; of Mr.
Rahming, 279 ; of Mr. Blair, 301 m ;
of Mr. Jackson, 306; of M. Cata-
cazy, 307; of Lord Sackville, 308 m ;
of Mr. Soulé, 309 ; of M*Leod, 3I4;
dispute with Great Britain as to
meaning of the Clayton-Bulwer
treaty, 337 ; with Great Britain as
to fishery clauses of the treaty of
Washington, 34o; party to Behring
Sea arbitration, 364; rejection of
arbitral award by, ib. n. ; dis-
pute with Great Britain as to the
Alaskan boundary, 365 m. ; dispute
with Great Britain as to exchange
of prisoners, 415 ; war with Spain,
452 ; time allowed for Spanish
ships to clear, 453 ; instructions of,
in 1812, to cruisers to destroy
English vessels, 457; practice
of, with regard to ransoming ves-
sels, 460 m ; neutrality policy of, in
I793, 591, 603, 612 ; sale of Sur-
plus arms by, 598 ºn ; neutrality act
of, 612 ; argument of, at Geneva,
as to use of neutral ports by
cruisers, 604; as to effect on a
vessel of a belligerent commission,
623 m. ; joins the First Armed Neu-
trality, 647; practice of, as to what
constitutes contraband, 648, 649,
658, 659, 661 ; doctrine of continu-
ous voyages, 669 m ; as to immunity
of mail bags, 68o ; dispute with
Great Britain over the Trent case,
681 ; gives effect to Declaration of
Paris during war with Spain, 692 ;
as to what constitutes an efficient
blockade, 694, 696, 698, 7or, 702 n :
view of, as to notification, 696, 705;
as to what constitutes a breach of
blockade, 708, 709, 712; as to visit
of convoyed ships, 723 ; as to effect
of resistance upon neutral cargo,
729–73o ; dispute with Denmark as
to neutral vessels sailing under
belligerent convoy, 731 ; as to
penalty for spoliation of papers,
733-
United States; Instructions for the
Government of Armies in the Field;
see Instructions.
Usage, its place in international law,
7.
Uti possidetis, principle of, 559, 566,
57 I.
Utrecht, Treaty of, dispute between
Pngland and France as to the
effect of, 339; liberty of retaining
nationality of origin secured by,
572 ºn ; French doctrine of contra-
band embodied in, 643.
WALAIS, proclamation issued in, by
the Russo-Austrian army in 1799,
518 m.
Valin on destruction of enemy's ves-
sels, 458 m ; on contraband, 646.
Valparaiso, bombardment of, 536 m.
Wattel ; on territoriality of merchant
vessels, 25o ; on renewal of trea-
ties, 359 ; on classification of trea-
INDEX.
763
ties, '360 n ; whether a state can
detain enemy subjects on outbreak
of war, 393 ; on devastation, 534;
on neutrality, 584; on contraband,
646; on neutral goods in enemy's
vessels, 716 n.
Venezuela, dispute as to Hinterland
of, III, referred to arbitration,
II 2 ; pacific blockade of, 372.
Venice, claim of, to the dominion of
the Adriatic, I4I, I45.
Vergennes, M. de, observations on
English Mémoire Justificatif, 78,
589.
Vessels, armed, outfit of, forbidden
by Neutrality Edicts of Venice, &c.,
588; equipment of, in neutral terri-
tory, 6 Io; export of, is merely
trade in contraband of war, 61 I ;
outfit of, forbidden by Great Bri-
tain, &c., 6.13 et seq.; present state
of the law as to the outfit of, 615;
within what limits their equip-
ment ought to be forbidden by
international law, 616.
— enemy, indulgence occasionally
given to, on outbreak of war, 452 ;
transfer of, to neutrals during war,
505 ; See also Property.
— non-commissioned, change of cha-
racter by, how acquired, 162 ; can
resist capture, 530 ; cannot attack,
ib.
— private, covered by the national
flag ; what are such, 164; when in
the ports of a foreign state, 20I ;
passing through territorial waters,
204; theory of the territoriality
of 248; jurisdiction of a state over,
on non-territorial waters, 253; over
foreigners on board in such waters,
255; pursuit of, into non-territorial
waters, for infractions of local
laws, 256; incorporation of, into
navy of a state, 529 ; effect upon,
of carrying contraband, 666; of
carrying despatches or persons for
a belligerent, 675 ; enemy’s goods
in neutral vessels, 684; conditions
of exit from blockaded port, 706;
effect upon, of breach of blockade,
7 Io; entry of, into blockaded ports
when in distress, 7II ; neutral
goods in enemy, 713; visit of, 719 ;
when convoyed, ib.; capture of 728.
— public, of the state; what are
such, 161 ; principle on which to
decide, 162; their immunities with-
in foreign territory, 187; jurisdic-
tion over, on the high Seas, 255, 256;
presumption against acts done by,
being piratical, 264; not seizable
in War if engaged in scientific dis-
COVery, 425 ; regulations as to
Supply of coal to, in war time, 606;
privilege of retaining prisoners on
board in neutral territory, 617;
hospitality and asylum to, 625;
entry of, into blockaded ports, 711;
not subject to visit, 719.
Victoria, Franciscus à, on right of
intercourse, 56 n. ; on slaughter of
non-combatants, 397 m.
Vienna, Congress of, action of, with
reference to navigable rivers, 137 m.
Virginius, case of the, 267, 275.
Visit ; who can visit, and who is
liable to be visited, 719 ; whether
convoyed vessels can be visited,
ib. ; expediency of their exemption
considered, 724 ; formalities of
visit, 726; effect of resistance to,
729.
Vřivostock, intended raid from, on
Australian ports, 434.
Volunteer navies, 527 et seq.
Worwarts, case of the, 717.
WAR ; general principles of the law
of, 6o ; international law as applied
to, 63 ; doctrine that war affects
individuals only as agents of their
state, ib. ; reasons for rejecting it,
69 ; declaration of, whether neces-
Sary, 377; manifestos on outbreak
of, 381 ; effect of, on treaties, 385;
effect of, in putting an end to non-
hostile relations between subjects
of enemy states, 390 ; termination
of, by treaty of peace, 558; acts of,
done subsequently to conclusion of
peace, 564; termination of, by
simple cessation of hostilities, ib. ;
commencement of, in relation of
neutrality, 574.
Washington, treaty of, in 1846, defines
boundary between Great Britain
and the United States in the Strait
of Fuca, I57; destruction of public
buildings at, in 1814, 535.
Webster, Mr., on merchant vessels
in foreign ports, 202 m ; on terri-
toriality of vessels, 252 n ; on free-
dom of individuals from responsi-
bility for acts done by order of
their state, 315 ; On loans by a
neutral to a belligerent, 597.
Wellington, Duke of, on the appro-
priation of works of art by the
French, 424.7% ; on military occu-
764,
INT).EX
pation, 471 n; method of adminis-
tering occupied countries, 476 n.
Westminster, provisions of the treaty
of, relating to British maritime
sovereignty, I46 n.
Wheaton, on the navigation of rivers,
I36 m; on punishment of crimes
committed by foreigners in terri-
tory foreign to state exercising
jurisdiction, 212 n ; on piracy, 261
m; whether declaration of war is
necessary, 382 ; on suspension and
abrogation of treaties by war, 385;
TEIE
on unauthorised risings against an
invader, 519.
Whitehill, case of Mr., 498 m.
Wolff, views of, as to the sphere of
law, 3 m ; on devastation, 534; as
to who are neutrals, 584.
Woolsey, Dr., on the navigation of
rivers, I 36 m; on punishment of
crimes committed by foreigners, in
territory foreign to state exercising
jurisdiction, 2 II m.
Wounded, treatment of, in war, 401.
Wrech, case of Baron von, 176.
IEND
CLAREND ON PRESS, OXFORD.
SELECT LIST OF STANDARD WORKS.
DICTIONARIES tº g e ... page r | PHILOSOPHY, LOGIC, ETC. . . page 6
L 3, 2 | PHYSICAL SCIENCE, ETC. . . , , 7
#ory, Biography, ETC. . . .
1. DICTION A. R.I.E.S.
A NEW ENGLISH DICTION ARY
- ON HISTORICAL PRINCIPLES,
Founded mainly on the materials collected by the Philological Society.
Imperial 4to.
EDITED BY DR, MURRAY.
PRESENT STATE of THE Work.
*
Vol. I. A, B By Dr. MURRAY . . . . . . Half-morocco
Vol. II. C. By Dr. MURRAY . . . . . . Half-morocco I2
Vol. III. D, E By Dr. MURRAY and Dr. BRADLEY Half-morocco I2
Vol. IV. F., G. By Dr. BRADLEY . . . . . . Half-morocco I2
Vol. V. H–K By Dr. MURRAY . . . . . . Half-morocco
I-Lap . . . . .
Lap—Leisurely . . .
Leisureness—Lief .
Thief—Lock
Lock—Tºyyn .
M—Marndragon . *
Mandragora—Matter .
Matter–Mesnalty .
| O—Onomastic
Vol. VI. L-N. By Dr. BRADLEY . -
Onomastical—Outing .
Outjet—Qzyat .
P–L'argeted . . . .
IPargeter—Pennached.
Fennage—IPfennig
Ph–Piper
Vol. VII. O, P By Dr. MURRAY
- E–Beactive . . . .
Vol. VIII. Q—S By Mr. CRAIGIE . . . . Reactively—Ree
Ree—IReign
IReign—IReserve .
The remainder of the work is in active preparation.
Vols. IX, X will contain S—Z with some supplemental matter.
Orders can be given through any bookseller for the delivery of the remainder of
the work in complete Volumes or in Half-volumes or in Sections or in Parts.
HALF-VOLUMES. The price of half-volumes, bound, with straight-grained
persian leather back, cloth sides, gilt top, is £1 7s.6d. each, or £16 ios. for the
twelve now ready, namely, A, B, C–Comm., Comm.–Czech, D, E, F, G, H, T-K,
I-Matter, O—Pf.
SECTIONS. A single Section of 64 pages at 2s. 6d. or a double Section of 128
pages at 58. is issued quarterly.
PARTS. A. Part (which is generally the equivalent of five single Sections
and is priced at 12s. 6d.) is issued whenever ready; M-Meet is now ready.
Nearly all the Parts and Sections in which Volumes I–V were first issued are
still obtainable in the original covers.
FORTHCOMING ISSUE, October 1, 1906. N–Niche, by Mr. CRAIGIE.
Oxford: Clarendon Press, London: HENRY FROWDE, Amen Corner, E.C.,
I
I. 4000
2 A. WGLISH A WD ROMA W LA W.
A Hebrew and English Lexicon of the Old Testament, with
an Appendix containing the Biblical Aramaic, based on the Thesaurus
and Lexicon of Gesenius, by F. Brown, S. R. Driver, and C. A. Briggs.
Small 4to, cloth, 34s. net. Parts I-XI, 2s. 6d. each. Part XII, completing
the work, 5s.
Thesaurus Syriacus: collegerunt Quatremère, Bernstein, Lorsbach,
Arnoldi, Agrell, Field, Roediger: edidit R. Payne Smith, S.T.P. Vol. I
(Fasc. I–V), sm. fol., 51. 5s. Vol. II, completion (Fasc. VI-X), 8l. 8s.
A Compendious Syriac Dictionary, founded upon the above.
Edited by Mrs. Margoliouth. Small 4to, complete, 63s. net. Part IV,
I58. Met. Parts I–III can no longer be supplied.
A Dictionary of the Dialects of Vernacular Syriac as spoken
by the Eastern Syrians of Kurdistan, North-West Persia, and the Plain
of Mosul. By A. J. Maclean. Small 4to, 15s.
An English-Swahili Dictionary. By A. C. Madan. Second Edition,
Revised. Extra feap. 8vo, 7s.6d. net.
Swahili-English Dictionary. By A. C. Madan. Extra feap. 8vo.
7s. 6d. het. -
A Sanskrit-English Dictionary. Etymologically and Philologically
arranged, with special reference to cognate Indo-European Languages.
By Sir M. Monier-Williams. New Edition. Cloth, bevelled edges,
37. I 38. 6d. ; half-morocco, 41. 48.
A Greek-English Lexicon. By H. G. Liddell and Robert Scott.
Eighth Edition, Revised. 4to. Il. I6s.
An Etymological Dictionary of the English Language, ar-
ranged on an Historical Basis. By W.W. Skeat. Third Edition. 4to. 21. 48.
A Middle-English Dictionary. By F. H. Stratmann. A new
edition, by H. Bradley. 4to, half-morocco. Il. II.s. 6d.
The Student’s Dictionary of Anglo-Saxon. By H. Sweet. Small
4to. 8s. 6d. net.
An Anglo-Saxon Dictionary, based on the MS. collections of the
late J. Bosworth. Edited and enlarged by T. N. Toller. Parts I–III.
A-SAR, 4to, stiff covers, 15s. each. Part IV, 5.1, SAR–SWIBRIAN.
Stiff covers, 8s. 6d. Part IV, $ 2, SWip-SNEL-YTMEST, 18s. 6d.
An Icelandic-English Dictionary, based on the MS. collections of
the late R. Cleasby. Enlarged and completed by G. Vigfússon. 4to. 31.7s.
2. L.A.W.
Anson. Principles of the
English Law of Contract, and of Agency
in its Relation to Contract. By Sir
W. R. Anson. Tenth Edition. 8vo.
Ios. 6d.
Anson. Law and Custom of
the Constitution. 2 vols. 8vo.
Part I. Parliament. Third Edition.
I 2s. 6d.
Partſ I. The Crown. Second Ed. 14s.
Bryce. Studies in History and
Jwrisprudence. 2 Vols. 8vo. By the
Right Hon. J. Bryce, M.P. 258. met.
Digby. An Introduction to
the History of the Law of Real Property.
By Sir Kenelm E. Digby. Fifth
Edition. 8vo. I2s. 6d.
Grueber. Leº Aquilia. By
Erwin Grueber. 8vo. Ios. 6d.
Oxford Clarendon Press.
J.A. W. 3
Goudy. Von Jhering's Law
£r, Daily Life. Translated by H.
Goudy. Crown 8vo. 3s. 6d. wet.
Hall. International Law. By
W. E. Hall. Fifth Edition. Revised
by J. B. Atlay. 8vo. 21s. net.
— A Treatise on the Foreign
Powers and Jurisdiction of the British
Crown. 8vo. Ios. 6d.
Holland. Elements of Jwris-
prudence. By T. E. Holland. Tenth
Edition (1906). 8vo. Ios. 6d.
Studies in Intermational
Law. 8vo. Ios. 6d.
Gentilis, Alberici, De
Iure Belli Libri Tres. Small 4to,
leather back. 2 Is.
— The Institutes of Jus-
tinian. Second Edition. Extra feap.
8vo. 5s. -
- The European Concert
Markby. An Introduction
to Hindu and Mohammedan Law, for
the use of Students. 8vo. 6s. 776t.
Moyle. Imperatoris Iws-
tiniani Institutionwm, Libri Quattuor,
with Introductions, Commentary,
Excursus and Translation. By J. B.
Moyle. Fowrth Edition. 2 vols. 8vo.
Vol. I. I6s. Vol. II. 6s.
Contract of Sale in the
Civil Law. 8vo. Ios. 6d.
Am.
Pollock and Wright.
Essay on Possession in the Common Law.
By Sir F. Pollock and Sir R. S.
Wright. 8vo. 8s. 6d.
Poste. Gaià Institution wºm
Juris Civilis Commentarii Quattuor; or,
Elements of Roman Law by Gaius.
With a Translation and Commen-
tary by E. Poste. Fourth Edition,
revised and enlarged. 8vo. I6s. Met.
Radcliffe and Miles. Cases
Illustrating the Principles of the Law of
Torts. By F. R. Y. Radcliffe and
J. C. Miles. 8vo. I2s. 6d. wet.
Sohm. The Institutes. A
Text-book of the History and
System of Roman Private Law.
By R. Sohm. Translated by J. C.
Led lie. Second Edition. 8vo. I 8s.
Stokes. The Anglo-Imdiam
Codes. By Whitley Stokes.
Vol. I. Substantivelaw. 8vo. 3cs.
Vol. II. Adjective Law. 8vo. 35s.
First and Second Supplements to
... the above, 1887–1891. 8vo. 6s. 6d.
Separately, No. 1, 2s. 6d.; No. 2, 48.6d.
Young. Corps de Droit Otto-
man Recueil des Codes, Lois, Réglements,
Ordonnances et Actes les plus importants
du Droit intérieur, et D’Études sur le
Droit cowfumier de l’Empire Ottoman.
Par George Young. Part I (Vols.
I–III), cloth, 27. I7S. 6d. net ; paper
covers, 27. I2s. 6d. net. Part II
(Vols. IV-VII), cloth, Il. 17s. net ;
paper covers, Il. IIs. 6d. The com-
plete Parts I and II separately, will
cost 21. I2s. 6d. met in paper covers,
or 27. 17s. 6d, net in cloth each.
in the Eastern Question, a collection
of treaties and other public acts.
8vo. I2s. 6d.
Holland and Shadwell. Select
Titles from the Digest of Justinian. By
T. E. Holland and C. L. Shadwell.
8vo. I4s. Also in Parts, paper
covers — I. Introductory Titles.
2s. 6d. II. Family Law. Is. III.
Property Law. 2s. 6d. IV. Law of
Obligations (No. 1), 3s. 6d. (No. 2),
4s. 6d. *
Ilbert. The Government of
India. Being a Digest of the Statute
Law relating thereto. By Sir
C. Ilbert. 8vo, leather back. 2 Is.
Legislative Forms and
Methods. 8vo, leather back. 16s.
Jenks. Modern Land Law.
By Edward Jenks. 8vo. 158.
Jenkyns. British Rule and
Jurisdiction beyond the Seas. By the
late Sir H. Jenkyns. 8vo, leather
back. I6s. Yet.
Markby. Elements of Law
considered with reference to Principles of
General Jurisprudence. By Sir W.
Markby. Sixth Edition. 8vo. 12s. 6d.
London : HENRY FROWDE, Amen Corner, E.C.
4 A/ISTORY, BIOGRAPHY, ETC.
3. HISTORY, BIOGRAPHY, ETC.
Asser. Life of King Alfred, Freeman. The History of
together with the Annals of St.
Neots, erroneously ascribed to
Asser. Edited with Introduction
and Commentary by W. H. Steven-
son. 2 vols. Crown 8vo. I28. Met.
Aubrey. ‘Brief Lives,’ chiefly
of Contemporaries, set down by John
Aubrey, between the Years 1669 and
1696. Edited from the Author's
MSS., by A. Clark. With Fac-
similes. 2 vols. 8vo. 25s.
Ballard. The Domesday Bor-
Sicily from the Earliest Times.
‘Vols. I and II. 8vo, cloth. 2.l. 28.
Vol. III. The Athenian and
Carthaginian Invasions. 248.
Vol. IV. From the Tyranny of
Dionysios to the Death of
Agathoklés. Edited by A. J.
Evans. 2 Is.
E’reeman. The Reign of
William Rufus and the Accession of
Henry the First. By E. A. Freeman.
2 vols. 8vo. Il. I6s.
Gardiner. The Constitutional
Docwments of the Puritan Revolution,
1628–1660. By S. R. Gardiner.
Second Edition. Crown 8vo. Ios. 6d.
Gross. The Gºld Merchant;
oughs. By Adolphus Ballard. 8vo.
With four Plans. 6s. 6d."met.
Barnard. Companion to Eng-
lish History (Middle Ages). With 97
Illustrations. By F. P. Barnard.
Crown 8vo. 8s. 6d. net.
Boswell’s Life of Samwel
Johnson. Edited by G. Birkbeck
Hill. In six volumes, medium 8vo.
With Portraits and Facsimiles.
Leather back. 31. 38.
Bright. Chapters of Early
English Church. History. By W.
Bright. Third Edition. Revised and
Enlarged. With a Map. 8vo. 12s.
Bryce. Studies in History
and Jwrisprudence. By J. Bryce.
2 vols. 8vo. 258. 776t.
Butler. The Arab Conquest
of Egypt and the last thirty years of the
Roman Dominion. By A. J. Butler.
With Maps and Plans. 8vo. 16s. net.
Chambers. The Mediaeval
Stage. By E. K. Chambers. With
two illustrations. 2 vols. 8vo. 25s.net.
Clarendon’s History of the
Rebellion and Civil Wars in England.
Re-edited by W. D. Macray. 6 vols.
Crown 8vo. 27. 5s.
Fisher. Studies in Napole-
onic Statesmanship.— Germany. By
H. A. L. Fisher. With four Maps.
8vo. 12s. 6d. net.
a Contribution to British Municipal
History. By C. Gross. 2 vols. 8vo,
leather back. 24s.
Hill. Sowrces for Greek
History between the Persian and Pelopon-
nesian Wars. Collected and arranged
by G. F. Hill. 8vo. Ios. 6d.
Hodgkin. Italy and her In-
vaders. With Plates & Maps. 8 vols.
8vo. By T. Hodgkin.
Vols. I–II. 42s. Vols. III–IV.
36s. Wols. V-VI. 36s. Wols.
VII-VIII. 24s.
IHollis. The Masai; their Lam-
guage and Folklore. By A. C. Hollis.
With Introduction by Sir Charles
Eliot. 8vo, with 27 full-page Plates
of Illustrations, and a Map. I4S. net.
Johnson. Letters of Samwel
Johnson, LL.D. Collected and Edited
by G. Birkbeck Hill. 2 vols. 8vo,
leather back, 248. net; cloth, 2 IS. net.
Johnsonian Miscella/mies.
2 vols. 8vo, leather back, 248. net ;
cloth, 2 Is. Yet. -
Lives of the Poets. With a
Memoir of Dr. Birkbeck Hill, by his
nephew, H. S. Scott, and a full
Index. 3 vols. 8vo, leather back,
428. net; cloth, 36s. Met.
Oxford : Clarendon Press,
HISTORY, BIOGRAPH V, ETC. 5
Ringsford. Chronicles of Lom-
don. Edited, with Introduction and
Notes, by C. L. Kingsford. 8vo.
Ios. 6d. net.
Kitchin. A History of France.
By G.W. Kitchin. In 3 vols. Cr. 8vo,
each Ios. 6d. Vol. I. to 1453. Vol.
II. I.453–1624. Vol. III. I624–1793.
Kyd. The Works of Thomas
Ryd. Edited with Introduction,
Notes, and Facsimiles, by F. S. Boas.
8vo. I58. net.
Legg. Select Docwments Illus-
trative of the History of the French
Revolution. The Constituent Assembly.
Edited by L. G. WICKHAM LEGG.
2 vols. Crown 8vo. 12s. net.
Lewis (Sir G. Cornewall).
An Essay on the Government of De-
pendencies. Edited by C. P. Lucas.
8vo, leather back.
I4S.
Lucas. The Canadian War
of ISI 2. By C. P. Lucas. With
Maps. 8vo. I 2s. 6d. mel.
Historical Geography of
the British Colonies. With Maps.
Cr. 8vo.
The Origin and Growth of the
English Colonies and of their
System of Government. By H. E.
Egerton, 2s. 6d. Also in binding
uniform with the Series. 3s. 6d.
Vol. I. The Mediterranean and
Eastern Colonies (exclusive of
India). Second ed., revised
to 1906, by R. E. Stubbs. 5s.
Vol. II. The West Indian Colo-
nies. Second edition, revised
to 1905, by C. Atchley. 7s.6d.
Vol. III. West Africa. Second
Edition, revised to the end of
I899, by H. E. Egerton. 7s.6d.
Vol. IV. South and East Africa.
Hist, and Geographical. 9s.6d.
Or, Part I, Historical, 6s. 6d. ;
Part II, Geographical, 3s. 6d.
Vol. W. The History of Canada
(Part I, New France). 6s.
Ludlow. The Memoirs of
Edmund Ludlow, Lieutenant-General of
the Horse in the Army of the Common-
4–-
wealth of England, 1625–1672. Edited
by C. H. Firth. 2 vols. 36s.
Lyly. The Works of John Lyly.
Collected and edited, with facsim-
iles, by R. W. Bond. In 3 vols.
8vo, uniform with Kyd. 42s. met.
Merriman. Life and Letters of
Thomas Cromwell. With a Portrait
and Facsimile. By R. B. Merriman.
2 vols. 8vo. I 8s. net.
Morris. The Welsh Wars of
Edward I. With a Map. By J. E.
Morris. 8vo. 9s. 6d. net. p
Oman. A History of the Penin-
sular War. 6 vols. 8vo. With Maps,
Plans, and Portraits. By C. Oman.
Vol. I, 1807-1809. I4S. net. Vol. II,
Jan.-Sept., 1809 (from the Battle
of Corunna to the end of the Tala-
vera Campaign). I4S. net.
The Great Revolt of 1381.
With two Maps. 8vo. 8s. 6d. net.
Payne. History of the New
World called America. By E. J.
Payne. 8vo.
Vol. I, containing The Discovery
and Aboriginal America, I8s.
Vol. II, Aboriginal America (con-
cluded), I48. g
Plummer. The Life and Times
of Alfred the Great. By Charles
Plummer. Crown 8vo. 58. rºet.
Poole. Historical Atlas of
Modern Europe from the decline of the
Roman Empire. Edited by R. L.
Poole. 57. I5s. 6d. net. Each Map
separately, Is. 6d. net.
Prothero. Select Statutes and
other Constitutional Documents, illustra-
tive of the Reigns of Elizabeth and
James I. Edited by G. W. Prothero.
Cr. 8vo. Edition 2. Ios. 6d.
Ramsay (Sir J.H.). Lancaster
and York (A.D. 1399–1485). 2 vols.
8vo. With Index, 37s.6d. ....
Ramsay (W. M.). The Cities
and Bishoprics of Phrygia. Vol. I.
Part I. The Lycos Valley and
South-Western Phrygia. Royal 8vo.
I8s. net. Vol. I. Part II. West and
West-Central Phrygia. 21s. rºet.
London: HENRY FRowdE, Amen Corner, E.C.
6 PHILOSOPHY, LOGIC, ETC.
Ranke. A History of Eng-
land, principally in the Seventeenth
Century. By L. von Ranke. Trans-
lated under the superintendence of
G. W. Kitchin and C. W. Boase.
6 vols. 8vo. 63s.
Revised Index, separately, Is.
Rhys. Studies in the Arthwr-
ian Legend. By J. Rhys. 8vo. 12s. 6d.
Celtic Folklore: Welsh and
Manx. By the same. 2 vols. 8vo. 21s.
Sanday. Sacred Sites of the
Gospels. By W. Sanday. With many
illustrations, including drawings
of the Temple by Paul Waterhouse.
8vo. I 3s. 6d. net.
Scaccario. De Necessariis
Observantiis Scaccarii Dialogus. Com-
monly called Dialogus de Scaccario.
Edited by A. Hughes, C. G. Crump,
and C. Johnson. 8vo. 12s. 6d. net.
Smith’s Lectures on Justice,
Police, Revenue and Arms. Edited,
with Introduction and Notes, by
Edwin Cannan. 8vo. Ios. 6d. net.
Wealth of Nations.
With Notes, by J. E.Thorold Rogers.
2 vols. 8vo. 2 Is.
Smith (V.A.). The Early His-
tory of India, from 6oo B.C. to the Mu-
hammadan Conquest, including the
IWvaSiO7. $f Alexander the Great. By
V. A. Smith. 8vo, with Maps and
other Illustrations. I4S. net.
Stubbs. Select Charters and
other Illustrations of English Constitu-
tional History, from the Earliest Times
to the Reign of Edward I. Arranged
and edited by W. Stubbs. Eighth
Edition. Crown 8vo. 8s. 6d.
The Constitutional His-
tory of England, in its Origin and
Development. Library Edition. 3 vols.
Demy 8vo. 27.8s.
Also in 3 vols. crown 8vo. I2s, each.
Seventeem. Lectures on
the Study of Mediaeval and Modern
History and kindred swbjects. Crown
8vo. Third Edition. 8s. 6d.
Registrum Sacrwm
Anglicanwm. Sm. 4to. Ed. 2. Ios. 6d.
Vigfússon and Powell. Ori-
gines Icelandicae. A Collection of
the more important Sagas and other
Native Writings relating to the
Settlement and Early History of
Iceland. Edited and translated
by G. Vigfússon and F. York Powell.
2 vols. 8vo. 42s, net.
Vinogradoff. Villaimage im,
England. Essays in English Medi-
aeval History. By Paul Vinogradoff.
8vo, leather back. I 6s.
4. PHILOSOPHY, LOGIC, ETC.
Bacon. Novum Organwm.
Edited, with Introduction, Notes,
&c., by T. Fowler. Second Edition.
8vo. I5s.
Berkeley. The
George Berkeley, D.D., formerly Bishop
Works of
Butler. The Works of Joseph
Butler, D.C.L., sometime Lord Bishop
of Durham. Edited by the Right
Hon. W. E. Gladstone. 2 vols.
Medium 8vo. I4s. each.
Campagnac. The Cambridge
Platonists: being Selections from the
writings of Benjamin Whichcote,
John Smith, and Nathanael Culver-
wel, with Introduction by E. T.
Campagnac. Cr. 8vo. 6s. 6d. met.
Fowler. Logic; Deductive and
Inductive, combined in a single
volume. Extra feap. 8vo. 7s. 6d.
Fowler and Wilson. The
Principles of Morals. By T. Fowler.
and J. M. Wilson. 8vo. I4s.
of Cloyne; including many of his writ-
ings hitherto winpublished. With Pre-
faces, Annotations, Appendices,
and an Account of his Life, by A. C.
Fraser. New Ed. 4 vols., cr. 8vo. 24s.
The Life and Letters,
with an account of his Philosophy. By
A. Campbell Fraser. 8vo. 16s.
Bosanquet. Logic ; or, the
Morphology of Knowledge. By B.
Bosanquet. 8vo. 2 Is.
Oxford: Clarendon Press,
PHYSICAL SCIENCE, ETC. - 7
Green. Prolegomema to Ethics.
By T. H. Green. Edited by A. C.
Bradley. Fourth Ed. Cr. 8vo. 7s.6d.
Hegel. The Logic of Hegel.
Translated from the Encyclopaedia
of the Philosophical Sciences. With
Prolegomena to the Study of Hegel’s
Logic and Philosophy. By W. Wal-
lace. Second Edition, Revised and Awg-
mented. 2 vols. Cr. 8vo. 1 os.6d. each.
Hegel’s Philosophy of Mind.
Translated from the Encyclopaedia
of the Philosophical Sciences. With
Five Introductory Essays. By W.
Wallace. Crown 8vo. Ios. 6d.
Hume's Treatise of Hwman
Nature. Edited, with Analytical
Index, by L. A. Selby-Bigge. Second
Edition. Crown 8vo. 6s. Met.
Enquiry concerning
the Human Understanding. Edited
by L. A. Selby-Bigge. Second Edition.
Crown 8vo. 6s. net. *
Joachim. Essay on the Nature
of Truth. By H. H. Joachim. 8vo.
6s. Thet.
Joseph. Introdwction to Logic.
By H. W. B. Joseph. 8vo. 9s. 6d. net.
Leibniz. The Monadology and
other Philosophical Writings. Trans-
lated, with Introduction and Notes,
by R. Latta. Crown 8vo 8s. 6d.
5. PEIYSICAL
Chambers. A Handbook of
Locke. An Essay Concern-
ing Human Understanding. By John
Locke. Collated and Annotated
by A. C. Fraser. 2 vols. 8vo. Il. I28.
Lotze’s Logic, in Three Books
—of Thought, of Investigation, and
of Knowledge. English Transla-
tion; edited by B. Bosanquet.
Second Edition. 2 vols. Cr. 8vo. I 28.
Metaphysic, in Three
Books—Ontology, Cosmology, and
Psychology. English Translation ;
edited by B. Bosanquet. Second
Edition. 2 vols. Cr. 8vo. 12s.
Martineau. Types of Ethical
Theory. By James Martineau. Third
Edition. 2 vols. Cr. 8vo. I 5s.
A Study of Religion :
its Sources and Contents. Second Edition.
2 vols. Cr. 8vo. I 5s.
Rashdall. The Theory of Good
and Evil. By H. Rashdall. 8vo.
2 vols. In the Press.
Selby-Bigge. British Moral-
ists. Edited by L. A. Selby-Bigge.
2 vols. Crown 8vo. I2s. wet.
Spinoza. A Study in the
Ethics of Spinoza. By Harold H.
Joachim. 8vo. Ios. 6d. net.
Wallace. Lectures and Essays
on Natural Theology and Ethics. By
W. Wallace. Edited, with Bio-
graphical Introduction, by E. Caird.
8vo, with Portrait. I 2s. 6d.
SCIENCE, ETC.
De Bary. Comparative Mor-
phology and Biology of Fungi, Mycetozoa
and Bacteria. By Dr. A. de Bary.
Translated by H. E. F. Garnsey.
Revised by Isaac Bayley Balfour.
Royal 8vo, morocco back, 24S. net;
cloth, 2Is. net. º
DeBary. Lectures on Bacteria.
By Dr. A. de Bary. Second Improved
Edition. Translated and revised by
I. B. Balfour. Cr. 8vo. 5s. net.
Ewart. On the Physics and
Physiology of Protoplasmic Streaming
in Plants. By A. J. Ewart. With 17
illustrations. Royal 8vo. 8s. 6d. net.
Descriptive and Practical Astronomy.
By G. F. Chambers. Fourth Edition,
in 3 vols. Demy 8vo.
Vol. I. The Sun, Planets, and
Comets. 2 Is. Vol. II. Instru-
ments and Practical Astronomy.
2 Is. Vol. III. The Starry Heav-
ens. I4s.
De Bary. Comparative Ama-
#07my of the Vegetative Organs of the
Phanerogams and Ferns. By Dr. A.
de Bary. Translated by F. O.
Bower and D. H. Scott. Royal 8vo,
morocco back, 248. net; cloth, 21s, met.
ſº
London : HERRY FRow DE, Amen Corner, E.C.
8 * PHYSICAL SCIENCE, ETC.
IFischer. The Structwre and
Functions of Bacteria. By Alfred
Fischer. Translated into English
by A. C. Jones. Royal 8vo. With
Twenty-nine Woodcuts. 7s.6d. net.
Goebel. Owtlines of Classift-
cation and Special Morphology of Plants.
By K. Goebel. Translated by
H. E. F. Garnsey. Revised by I. B.
Balfour. Royal 8vo, morocco back,
22s. 6d. wet ; cloth, 20s. net.
Organography of Plants,
especially of the Archegoniatae and Sper-
7mophyta. By K. Goebel. Authorized
English Edition, by I. B. Balfour.
Part I, General Organography.
Royal 8vo, morocco back, I2s. net;
cloth, Ios. Wet. Pt. II, morocco back,
24s. ret; cloth, 2IS. net.
Rnuth. Handbook of Flower
Pollination : based upon Herman?
Müller's work. “The Fertilisation of
Flowers by Insects.” By Dr. Paul
Iºnuth. Authorized English Edi-
tion, by J. R. Ainsworth Davis. Wol.
I. Introduction and Literature.
Royal 8vo, with 81 illustrations.
Morocco back, 2 Is. met; cloth, 18s. Yet.
Mercier. Criminal Responsi-
bility. By C. Mercier. 8vo. 7s.6d. net.
Miall and Hammond. The
Structure and Life-History of the
Harlequin Fly (Chironomus). By L. C.
Miall and A. R. Hammond. 8vo.
With 130 illustrations. 7s. 6d.
Pfeffer. The Physiology of
Plants. A Treatise wpon the Metabolism
and Sources of Energy in Plants. By
W. Pfeffer. Second Edition, trans-
lated and edited by A. J. Ewart.
Royal 8vo. Vol. I, morocco back,
26s. net; cloth, 23s. met. Vol. II,
morocco back, 16s. Wet; cloth, I4S.
Sir J. Prestwich. 2 vols. Royal
8vo. 61s.
Sachs. A History of Botany.
Translated by H. E. F. Garnsey.
Revised by I. B. Balfour. Cr. 8vo,
IOS. Meč.
Schimper. Plant Geography
^{pon a Physiological Basis. By Dr.
A. F. W. Schimper. The Author-
ized English Translation. Royal
8vo. With a photogravure portrait
of Dr. Schimper, five collotypes,
four maps, and four hundred and
ninety-seven other illustrations.
Morocco back, 42s. net.
Solms-Laubach. Fossil Bot-
any. Being an Introduction to Palaeo-
phytology from the Standpoint of the
Botanist. By H. Graf zu Solms-
Laubach. Translated and revised
by the same. Royal 8vo, morocco
back, I 7S. net; cloth, 15s. net.
Suess. The Face of the Earth
(Das Antlitz der Erde). By E. Suess.
Authorized English translation, by
H. B. C. Sollas, under the direction
of W. J. Sollas. With many maps
and illustrations. Vol. I, 25s, met ;
Vol. II, 25s. net.
OXFORD HISTORY OF MUSIC,
8vo. Edited by W. H. Hadow. Price
I 58. met each volume.
I. The Polyphonic Period. Part I
(Method of Musical Art, 330–1330).
By H. E. Wooldridge.
II. The Polyphonic Period. Part II.
By H. E. Wooldridge.
III. The Seventeenth Century. By Sir
C. H. H. Parry.
IV. The Age of Bach and Handel.
By J. A. Fuller Maitland.
net. Vol. III (completing work), W. The Viennese School. By W. H.
morocco back, 2 Is. Tet; cloth, I88. Tet. Hadow.
Brestwich. Geology—Chemº- VI. The Romantic Period. By E.
cal, Physical, and Stratigraphical. By Dannreuther.
OXFORD
AT THE CLARENDON PRESS
LONDON, EDINBURGH, NEW YORK, AND TORONTO
HENRY FROWDE
|||||||||
3|||||||||||||||||||IV*.
R S. Penfield
WILLIAM L. PEN FIE
GLAss OF 1870
- Bºº Cº-º º
TIIIlúIIIllilililillſ|[Illilillſ





į.“ **********ç， * · · · · ·| ** **** • ** *******
· · · · **********************************¿
¿¿.*）, ！
********************** arºſae
ſa s …….….………………………………………
º * * * * * • • 4. **<<<=<ss *=-.*<<， <.›› ‹‹. <<<.››
• • • • • • • •------~--~ºģ （）， sae， C =<！-- =
ºsae sº: * - zaeae， sº sáſs:
*********** ！！ ！！ ！！***** : ? * * * * * * · * * ?，…“ " .
******** --> ************ſ-º ºſae************ • ••••••*********！！！！！！！！Saesaesºxae
şi-aegs
Ķ
*** • *s*）， §§ → · § ， ， ， ， , ， ,, ，'; ： « – »， «… •¿•）›› ‹‹. sae sae,，。
** .*** · · -£ .•Šºšº: -， Staeaeae